While public backlash led Republicans to drop the provision that would let them overturn election results, they nevertheless passed the rest of their broad set of voting restriction measures out of committee in the middle of the night this past weekend. With no little irony, the package included a ban on overnight early voting after a populous and diverse Democratic-leaning county adopted 24-hour early voting last year.
Republicans in the state Senate have passed their own similar version of the legislation, but the absence of House Democrats has brought Texas’ legislature to a standstill—for now.
As we’ve previously detailed, the GOP’s bills include measures that would:
- Ban drive-thru early voting;
- Eliminate 24-hour early voting locations by setting limits on hours of operation from of 6 AM to 10 PM at the latest;
- Expand early voting in small, mostly white counties while limiting it in larger, more diverse counties that lean Democratic;
- Add new voter ID requirements for absentee voting;
- Make it a felony for election officials to send unsolicited absentee ballot applications to voters or use public funds to help third parties to do so; and
- Enable partisan “poll watchers” to potentially harass and intimidate voters while limiting their oversight by election officials by imposing criminal penalties for getting in their way.
Texas is one of just four states, along with Indiana, Oregon, and Wisconsin, that requires more than a simple majority for a legislative quorum, allowing legislative minorities from both parties to occasionally stage boycotts to stop proposals they opposed from advancing. Texas Democrats themselves previously fled the state in 2003 in an unsuccessful effort to stop Republicans from orchestrating a notorious mid-decade congressional gerrymander known as the “DeLaymander,” after its architect, then-Rep. Tom DeLay, who was House Majority Leader at the time. (That new gerrymander was ultimately curtailed in court for violating federal law by discriminating against Latino voters.)
More recently, Oregon Republicans have repeatedly boycotted the legislature starting in 2019 to stop Democrats from passing a wide array of measures addressing topics such as climate change and gun safety—efforts that have so far succeeded. By contrast, Democrats in Indiana and Wisconsin also left their states in 2011 to prevent Republicans from passing anti-union laws, but in neither case did those boycotts result in anything more than a brief delay.
While each of these efforts drew harsh criticism for blocking a duly elected majority from exercising its democratic right to govern, the ongoing situation in Texas differs in a crucial way, because in this case, the majority party is directly trying to restrict the minority party’s ability to win future elections by restricting access to voting. In other words, Republicans want to install themselves as a permanent future majority that will not be duly elected but elected in name only.
As law professor Steve Vladeck at the University of Texas recently wrote, federal courts generally display a great deal of deference to laws passed by democratically elected legislatures. But the Supreme Court long ago ruled that in certain instances, that deference should give way to skepticism, particularly when laws restrict “those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.” By targeting voting methods that were disproportionately used by Black voters, Latinos, and other Democratic-leaning demographics in recent elections, Texas Republicans threaten to do just that.
Ever since taking full control of state government two decades ago, Republicans have resorted to increasingly extreme attempts to undermine fair elections via gerrymandering and some of the country’s most restrictive voting laws. As demographic change and Donald Trump’s alienation of college-educated suburbanites has pushed Texas to the cusp of swing-state status, Lone Star Republicans have only grown more desperate.
Democrats have for now stopped Republicans from passing their latest voting restrictions, with some vowing to stay away for as long as it takes to ensure the legislation dies. But nothing short of a permanent boycott could prevent the GOP from reviving their plans at a later date, and Republican Gov. Greg Abbott has threatened to keep calling special sessions. The sustainability of such a boycott is a major question.
However, with Texas Republicans poised to take up new legislation later this year to gerrymander the legislature and other levels of government to entrench themselves further into power regardless of popular support, a protracted standoff that could last for weeks or months is not out of the question.
● California: California’s independent redistricting commission unanimously voted to ask the state Supreme Court to extend its deadline to complete redistricting by two weeks, from the end of December to Jan. 14. The court previously agreed to extend what would have been an Aug. 15 deadline by four months thanks to the Census Bureau’s delayed release of key data needed to conduct redistricting.
Voting Access Expansions
● Hawaii: Democratic Gov. David Ige has signed a law that expands in-person voting throughout Hawaii. Last year, the state began its transition to mail voting, which helped the state break records for turnout with an increase greater than that of any other state. However, the lack of adequate in-person polling options for those voters who preferred not to vote by mail or couldn’t easily do so sparked long voting lines last November, something this law aims to prevent in the future. The law also requires that officials give voting information to citizens on parole or probation, who automatically regain their voting rights upon release from prison.
● Arizona: Republican Gov. Doug Ducey has signed a law making it a felony for election officials to mail unsolicited absentee ballots to voters, as former Maricopa County Recorder Adrian Fontes, a Democrat who is currently running for secretary of state, tried to do during last year’s primary. Fontes aimed to protect voting access and encourage voter turnout amid the pandemic, but his effort was blocked in court.
● North Carolina: State Senate Republicans in North Carolina have passed three bills aiming to restrict voting, one of which would require absentee ballots to be received by officials no later than Election Day in order to count. That measure would replace the current law that allows ballots to count so long as they are postmarked by Election Day and received up to three days later. Had this proposal been in effect in 2020, it would have impacted 11,000 ballots.
The second bill would ban private grants to mitigate election administration underfunding after nonprofits tied to Facebook’s Mark Zuckerberg, former California Gov. Arnold Schwarzenegger, and other philanthropic efforts gave hundreds of millions of dollars in 2020 to ensure elections would run smoothly during the pandemic. Republican legislatures across the country have passed similar bills on the pretext that private funding presents a corrupting influence, but none have sought to sufficiently increase public funding so as to render private assistance unnecessary.
The final bill would codify the ability of voters to register online, which the Democratic-controlled state Board of Elections implemented administratively last year due to the pandemic. It would also enshrine a recent federal court ruling that requires visually impaired voters to be able to vote electronically to ensure their privacy. However, the bill would also provide funding for implementing the voter ID law that Republicans passed in a 2018 lame-duck session and has been blocked in state court while two different lawsuits proceed at both the federal and state levels.
Republicans control the legislature but are a few seats shy of veto-proof majorities in either chamber. But while Democratic Gov. Roy Cooper is likely to veto these bills in their present form, Republicans may try to incorporate parts of them into unrelated legislation such as the state budget that would be harder for Democrats to oppose. The House is in fact set to consider the budget later this month after it passed the upper chamber last month with veto-proof support thanks to a handful of Democratic votes.
● Arizona: Arizona is on track for an election showdown next year over the fate of voting access and direct democracy after Republican legislators voted to refer two measures to the ballot that would, respectively, restrict the scope of future citizen-led ballot initiatives and make it easier for GOP lawmakers to overturn voter-approved laws. The twin moves come just as Democrats are gearing up to put their own measures on the ballot that would veto new voting restrictions passed by Republican lawmakers earlier this year.
The GOP’s first amendment would limit voter initiatives to a single subject, a requirement that many states, particularly in the western U.S., have enacted in part to combat “logrolling” that combines an unpopular policy with one or more unrelated popular ones.
The merits of this requirement aside, it’s been interpreted very differently by the courts. The Michigan Supreme Court, for instance, allowed a 2018 redistricting reform package with multiple related planks to go before voters as a single measure. In 2006, however, Florida’s highest court took the single-subject rule to an extreme, saying that a proposed amendment that would both establish a new redistricting commission and set down new requirements for how districts would be drawn violated the rule—and knocked the initiative off the ballot.
The question therefore is whether Arizona’s Supreme Court will adopt an approach more like Michigan’s or more in tune with Florida’s. Reformers have reason to worry, though, since Republican Gov. Doug Ducey packed the court in 2016 by adding two seats to ensure hardline conservative control.
The GOP’s second amendment, meanwhile, would weaken Arizona’s unusually strong law, known as the Voter Protection Act, that makes it difficult for lawmakers to modify voter-approved laws, which voters adopted in 1998 after the legislature overturned an initiative to legalize medical marijuana that had been passed two years earlier.
The VPA allows changes to laws adopted by initiative only if the legislature can muster a three-fourths supermajority, with the key requirement that any such changes must “further the purpose” of the original law—meaning that a law passed at the ballot box can only be overturned at the ballot box. But the GOP’s new amendment would, if it passed, enable the legislature to make significant changes to voter-approved laws with simple majorities if a federal or state court rules even just part of such a law unconstitutional.
That change would let Republicans set their sights on dismantling another 1998 initiative called the Clean Elections Act, which established a vigorous public campaign finance regime and ethics rules for state elections. In a 5-4 ruling in 2011, the U.S. Supreme Court’s conservatives struck down part of the act that gave publicly financed candidates larger sums if any rivals engaged in major self-funding, but the court otherwise left most of the law intact and insulated from GOP interference. Consequently, if voters approve this latest amendment, Republicans could target the Clean Elections Act and potentially many other voter-approved laws in ways that undermine their purpose.
Arizona is just one of many states in the past decade where Republicans have tried to enact new voting restrictions and gerrymanders, then tried to make ballot initiatives harder after voters resorted to direct democracy in the face of GOP efforts to sabotage representative democracy. The 2022 elections represent a continuation of that trend, since Arizona Democrats have launched a veto referendum effort that, if it makes it onto the ballot, would block the GOP’s recently adopted law ending the permanence of Arizona’s mail voting list until voters have a chance to weigh in next year.
Democrats are also attempting to veto Republican legislation that stripped Democratic Secretary of State Katie Hobbs’ power to settle voting rights lawsuits and instead transferred that power to GOP Attorney General Mark Brnovich—but only until their terms end next year. Additionally, they are trying to block a new Republican-backed law that bans private grants for election administration after philanthropic groups gave hundreds of millions nationally in 2020 to address chronic underfunding, along with so-called “ballot security” measures pushed by Trump-fueled conspiracy theorists that could compromise voter privacy.
However, Republicans have so far been unable to put two other ballot initiative restrictions on the 2022 ballot after advancing them in the legislature earlier this year. Those proposals would have required 60% voter support for ballot initiatives instead of the current simple majority, as well as a two-thirds supermajority for voters to raise taxes.
Electoral System Reform
● District of Columbia: Seven out of 13 members on the Washington, D.C. Council have introduced a bill that would adopt ranked-choice voting for city offices beginning in 2024 and require voter education efforts, too. The bill’s text does not appear to be available yet, so the exact nature of the ranked-choice system it would implement, and the elections it would apply to, are not yet clear.