U.S. Immigration & Customs Enforcement detains an average of 37,000 people per night, often partnering with sheriffs who hold immigrants in their local facilities in exchange for a profit. For over a century, the U.S. government has relied on local jails to detain immigrants, creating a vast network of incarceration that operates with minimal oversight. Other detention centers, run by private companies, have also proliferated. The incoming Trump administration is likely to tap into this network.

We suspected that you have questions about this system, so we asked you to reach out and let us know as part of our series “Ask Bolts.”

To answer them, we turned to historian Brianna Nofil, an assistant professor at William & Mary who traces these developments in her new book, The Migrant’s Jail: An American History of Mass Incarceration.

The growth in the detention of migrants, she argues, has fueled the broader expansion of the carceral state. From the detention of Chinese migrants in New York in the early 1900s to the jailing of Caribbean refugees in the South in the 1980s, her research explains how federal authorities and local law enforcement have helped each other create a patchwork of policies that incentivizes incarceration. 

Nofil answered ten of your questions, exploring the legacy of the internment of Japanese Americans, the detention of Haitian refugees in the 1980s, and other pivotal historical moments that normalized and entrenched mass detention as a central feature of U.S. immigration policy. Many queries we received revolved around instances of pushback against this history and the lessons those hold for opponents today; Nofil tackles some of those questions too.

What historical moments changed public opinion and “normalized” immigration detention? — @behrbones, on BlueSky

For as long as migrant detention has occurred, Americans have raised questions about its morality and legality. Often this happened in the small towns that rented jail space to the immigration service. In Malone, New York, a border community that detained hundreds of Chinese migrants between 1900 and 1904, for example, the local newspaper described the incarceration of migrants as “a shame upon civilized government.” Still, detention has always been most politically popular when it targets people seen as too poor, too radical, too sick, and above all, too racially different to be citizens. 

In 1981, the Reagan administration began debating building federal detention centers in response to rising numbers of refugees from Haiti arriving in South Florida—the first major investment in permanent migrant detention infrastructure. But Reagan’s Department of Justice had hesitations. They wrote in an internal memo that the “appearance of ‘concentration camps’ which, at the present time, would be filled largely by blacks, may be publicly unacceptable.” There has always been uncertainty with whether Americans would tolerate migrant detention, or whether incarceration without trial was a bridge too far in American jurisprudence.

Mass migration from Haiti—and fear and demonization of Black refugees, of HIV-AIDS, of poverty—was a transformative moment for the normalization of detention. The Reagan administration successfully argued that Haitians were not legitimate asylum seekers and that detention was necessary to deter migrants from coming to the U.S. in the first place. It also marked a pivotal moment for how Americans think about refugees: for many policymakers and citizens, the migrants of the 1980s weren’t the “good” post-war refugees who patiently waited in Europe until the U.S. sent for them; these were people from the Caribbean and Latin America who were showing up in the U.S. and claiming asylum. The Reagan administration was terrified of what this change in asylum practice meant, and detention aided in transforming asylum seekers into another form of “illegal immigrant” in the eyes of the American public.

Why did sheriffs become such huge players in detaining immigrants if the feds are the ones arresting people? What’s stopping ICE from just detaining people on its own? — adapted by Bolts staff from a comment on sheriffs shared by Janice, from Ohio

A persistent obstacle for the immigration service has been finding physical space to detain people. At the turn of the 20th century, the U.S. had detention beds at major ports of entry, such as Ellis Island in New York City and Angel Island in San Francisco. But if agents apprehended a migrant away from major cities, the immigration service had little detention space of its own. This became a particular issue as more migrants began using the U.S. land borders as an entry point to thwart restrictive immigration laws. In order to detain people in most of the country, the immigration service brokered deals with sheriffs to detain migrants awaiting hearings and deportations in local jails, in exchange for a nightly rate paid to the county. 

Many sheriffs saw these arrangements as highly desirable—an easy way to pump federal money into their communities and turn the local jail into a revenue-producing institution. Some sheriffs had strong political and ideological commitments to deportation and immigration restriction; others saw it as simply a favor to the feds. As communities overbuilt jail space in the 1980s and 1990s, working with the immigration service became a way to keep rural jails filled and financially afloat. And revenue from migrant incarceration was often reinvested into prison expansion and law enforcement.

Jails, and the sheriffs who oversaw them, gave the immigration service a detention footprint in virtually every American community. When things went wrong at privately-run and federal facilities, jails served as the safety valve—a place where the immigration service could transfer migrants to deter protests, respond to legal interventions, and counter criticism. In recent years, sheriffs have become even more essential in deportation, via programs like 287(g) that deputize local law enforcement to carry out certain functions of federal immigration officials.

Japanese immigrants & US citizens were rounded up & placed in internment camps during WW2. What laws or court precedents were the authorization for this action, and are these still relevant today? — Ginger, from Arizona

The FDR administration apprehended Japanese nationals under the wartime authority of the Alien Enemies Act of 1798, a law which Trump has promised to immediately invoke as the backbone of his deportation program. The law empowers the president to detain and deport non‑citizens when the nation is at war—or in the case of a presidentially proclaimed “invasion” or “predatory incursion” by a foreign nation. The law has never been used when the U.S. is not at war. However, U.S. immigration law has long blurred the lines between migration and invasion: The pivotal 1899 Chinese Exclusion case that established federal control over immigration described migration control as a by-product of foreign affairs and immigration as an act of “foreign aggression and encroachment.” 

Japanese Americans were apprehended via an Executive Order, which was upheld by the Supreme Court in Korematsu v. United States (1944). Korematsu wasn’t overturned until 2018, during Trump v. Hawaii, which ruled on the legality of the ‘Muslim ban.’ Legal scholars have different interpretations about whether Trump can use the Alien Enemies Act in this way—but there’s good reason to believe the courts won’t stop him. 

The Migrant’s Jail looks at these legal precedents, but it also looks at the legacies of Japanese wartime incarceration in terms of built environment: The U.S. immigration service used existing relationships with sheriffs to aid in apprehending and jailing Japanese nationals, and after the war was over, repurposed Japanese detention barracks for the mass deportation drives of Mexican migrants in the 1950s. The immigration service has long described itself as pursuing a strategy of “flexible detention space”—this is an extreme example, but it shows how detention infrastructure could be reimagined for whichever project of racial control and removal the state deemed most pressing.

My understanding is that the Obama administration tried to get rid of for-profit prisons on a federal level. Has that work been completely undone? I’m thinking of this especially in light of the planned mass deportation (and presumably incarceration), and how private prisons and profits will play into this. — @thehoneytheif, on BlueSky

(Editor’s note: President Barack Obama’s executive order against private prisons, which was rescinded by President Donald Trump, did not apply to immigration lock-ups. But the question of how private companies feature into this detention landscape remains relevant.)

Presidents Obama and Biden both restricted the Bureau of Prisons (BOP) contracting for private prisons (and indeed, the BOP ended their last private prison contract in 2022) while leaving the door open for ICE to continue using for-profit facilities. In 2023, 90 percent of people in ICE custody were held in for-profit detention centers—that’s a 10 percent increase from the Trump administration. The private prison business has boomed under Biden, and Trump stands to inherit a multi-billion dollar network of private sector detention sites. This will be supplemented by the continuing cooperation of sheriffs and local law enforcement in housing migrants in local jails, many of which are also operated by private prison companies. 

The federal government owns and operates very few of its own migrant detention sites today. The agency claims it’s faster and cheaper to outsource detention to the private sector. But another big reason for the embrace of private prisons is that it distances the federal government from accountability for detention practices; since the privatization boom of the 1980s, the immigration service has regularly shielded itself from criticism and attempted to insulate itself from legal liability by arguing that detention’s worst abuses are the faults of contractors, rather than the directives of the government itself.

Who will be making money off of this? — @sbec, on BlueSky

Everyone! The migrant detention system (like for-profit incarceration, more broadly) rewards those who can sustain human life at the lowest possible cost: Everything from food services to medical care to data management to transportation services between detention centers to deportation flights is making companies money. In 2019, employees of Wayfair staged a walkout to protest their company providing furniture to detention centers—a reminder that even beyond the obvious suspects, like prison private companies, there is enormous profit to be made by the private sector across the board from government contracting.

What sources do you use for data around ICE detention, and how concerned should we be about their accuracy over the next few years? — DSinger, from Illinois

Decades of scholars and activists have bemoaned the inadequacy of data and recordkeeping by immigration services. In 1923, the former president of the American Prison Association attempted to find out how many local jails detained migrants for the federal government, and was stunned to find that the federal government did not maintain this information. Similarly, in writing this book, I wasn’t able to find any data on how many migrants the U.S. detained annually prior to 1947—I’m fairly certain this data doesn’t exist. And because so much of detention is happening locally, and happening in ad hoc ways (in warehouses, in office buildings, in motels), the numbers we do have are likely imperfect.

Many of these problems persist, and one nonpartisan group of scholars describes the data released under the Biden administration as “inconsistent, error-ridden, and misleading.” A 2024 Government Accountability Office report suggested that the ICE’s methodology may be seriously undercounting the number of individuals detained in the U.S. And there’s plenty of other data ICE doesn’t collect at all: It’s extremely hard to find comprehensive information about all of ICE’s intergovernmental contracts, for example. The decentralization and outsourcing of detention makes the practice all the more difficult to monitor.

But there are resources that try to fill this void. The Transactional Records Access Clearinghouse, based out of Syracuse University, does tremendous work in tracking immigration court backlogs, detainee transfers, and other enforcement metrics—much of which they acquire through FOIA. Austin Kocher’s substack is essential for dissection and analysis of immigration data; he also has a great list of additional data resources.

Do detained immigrants have access to the same rights in the justice system as legal residents who are arrested? — Bolts Lover, from Virginia

They do not. In the 1883 case of Fong Yue Ting v. United States, the Supreme Court ruled that deportation, and by extension, detention, was not a punishment for a crime. This created one of the fundamental paradoxes of immigration detention—that it’s a civil or administrative form of imprisonment, rather than criminal punishment, even when it’s taking place in the exact same jail! In practice, this means that migrants in deportation proceedings have few due process protections: They are not entitled to legal representation, to a trial by jury, to a speedy trial. If apprehended within 100 miles of the border, migrants who entered the U.S. without authorization can be removed without a hearing. 

Access to legal aid is a particular issue for migrants in detention: Only 14 percent of detained immigrants go to court with lawyers, and migrants are twice as likely to obtain relief from deportation when they have legal representation. The U.S. has tried countless ways of distancing migrants from access to legal aid and accelerate deportations and removals, such as placing detention sites in rural communities and erratically transferring migrants across state lines. They have also tried to remove migrants from U.S. soil altogether, both through practices like interdicting migrants at sea, and through the creation of extraterritorial detention camps, like the one operated at Guantánamo Bay in the 1990s.

Despite these limits, migrants regardless of immigration status do have guaranteed rights under the Constitution. With raids likely to be a component of Trump’s deportation efforts, it’s critical that our neighbors know their rights, particularly when it comes to allowing ICE into their homes. ICE frequently misrepresents themselves as “police” during traffic stops and raids, or uses other ruses to access migrants, like claiming that they are investigating a crime or that they found a lost ID. ICE agents must have a signed judicial warrant from a judge to enter your home, not an administrative warrant signed by an ICE agent—and they rarely have a judicial warrant!

Have naturalized citizens or Americans born abroad been affected by these detention practices? Will they be now? — Gina, from North Carolina

Citizens have always gotten caught in the deportation machine: sometimes by design, sometimes by the machine’s imperfect (and categorically racist) methods of identifying, sorting, and adjudicating. There are countless mentions in newspapers and other archival records: For example, in 1929, the immigration service detained Emilio Martinez, a 15-year-old Mexican-American citizen, in Edinburg’s Hidalgo County Jail for three months on a charge of illegal entry. It took a small army of sympathetic lawyers, including famed South Texas lawmaker José Tomás Canales, to locate his birth certificate and secure his release. The U.S. also has a long history of denaturalization; historian Patrick Weil found that more than 22,000 Americans had their citizenship revoked away between 1906 and 1967, some on the basis of fraudulent documents or statements in their naturalization cases, but many others on the basis of purported political radicalism or “disloyal” conduct. 

Citizens certainly could become vulnerable. But far more vulnerable will be folks with legal status that could expire or be terminated with relatively little fanfare—for example, the approximately 1 million people who are currently shielded from deportation via Temporary Protected Status. “Legal” and “illegal” are not stable categories of belonging.

Are there historical examples of pushback that have restrained immigration detention? Or has it been a one-way ratchet? — @behrbones, on BlueSky

There have been significant legal victories against immigration detention. In 1982, for example, the Haitian Refugee Center challenged the mandatory detention of Haitian asylum seekers on the grounds that the Reagan administration had made the policy through improper channels and that it almost exclusively impacted Haitians. The judge ordered the release of 1,900 Haitians from detention. 

However, the federal government’s power over immigration is so sweeping that these legal victories have often forced the immigration service to formalize policies, rather than significantly stunting detention’s growth. In the aftermath of Louis v. Nelson, the courts conceded that the Reagan administration could simply create these same detention policies through proper administrative channels and continue the practice. After a lot of grumbling, the federal government did just that. 

Outside of the courts, some of the most successful pushback to detention has been via community organizing. Making the abuses and atrocities of migrant incarceration visible has been central to restraining detention. In the 1950s, when the U.S. formally disavowed detention except in “exceptional” cases, it was due in part to public outrage about migrants being detained for years on Ellis Island while awaiting investigations. Groups like the ACLU portrayed these lengthy detentions (mostly impacting Europeans) as evidence of an out-of-control Department of Justice, and an American form of gulag or concentration camp—ideologically and morally indefensible. They published political cartoons, memoirs of detainees, countless op-eds, and generally put names and faces to the suffering.

What options do local governments have to resist detention efforts? — MB, from New Mexico | How can progressive governors push back against Trump’s agenda? (While New Jersey has enacted laws barring the law enforcement and county governments collaborating with ICE, there are all these ways ICE still gets law enforcement collaboration.) — Satenik, from New Jersey

ICE acquires the majority of its detention space through intergovernmental service agreements (IGSAs), a contract between the federal government and a county or city indicating that the locality will provide detention services. In some cases, this means migrants are held in the local jail. In other cases, localities subcontract with private prison companies. Using localities as a middleman allows ICE to acquire beds quickly and circumvent the more cumbersome federal procurement process. It also means revenue for localities: To this day, ICE does not track the amount of money localities collect from private prison companies when they subcontract detention services.

Much of the organizing of recent years has focused on pressuring localities to end IGSAs and get ICE out of local jails. It has been remarkably effective: New Jersey, California, Washington, Nevada, and Illinois have all passed laws that limit or bar migrant incarceration. But these laws have been controversial. In 2023, the courts sided with private prison company CoreCivic and the Biden administration in a lawsuit challenging the New Jersey detention ban. The judge called the ban “a dagger aimed at the heart of the federal government’s immigration enforcement mission and operations.” 

Many of these federal-local relationships flourish in the shadows—people simply don’t know all of the ways their cities and counties are aiding in deportations. 

Sanctuary policies—policies of non-cooperation with ICE—aren’t a silver bullet. ICE and the federal government have resources to work around them and coerce localities into cooperation, such as cutting funding to local law enforcement who refuse to aid in deportations. (This will also likely be challenged in court.) However, sanctuary policies do throw sand in the gears of the deportation system: They can delay removals, create time-consuming litigation, and make it more difficult for ICE to identify targets for deportation. Aside from defensive maneuvers, local governments can do more to ensure equitable access to social services and legal aid: The American Immigration Council has a list of model legislation for protecting migrants’ rights on the local level.

Questions and responses have been edited for length and clarity.

The post The Past and Present of Immigration Detention: Your Questions Answered appeared first on Bolts.

I answered six of your questions in the first part of our mailbag two weeks ago, from the role of state auditors to the most pivotal referendums. Today, I tackle six more. 

Navigate to the question that most interests you here, or scroll down to explore them all at your leisure:

Which legislative chambers may flip in November?
Jump to our answer.

What happens in elections where no one is running?
Jump to our answer.

Which party will win more congressional delegations, in case that matters for the presidential election?
Jump to our answer.

What happens if you walk into the wrong polling place by mistake?
Jump to our answer.

I spent hours trying to research our local candidates’ platforms and it was fruitless. Shouldn’t every candidate have a website with their platform?!
Jump to our answer.

I can’t seem to get people to care about boards of canvassers. Can you explain the significance of the offices that play a role in elections?
Jump to our answer.

The election is now just days away—so explore our cheat sheet of more than 500 critical races, and our election guides to supreme court races and to local criminal justice races. Before you know it, we’ll have plenty more on the results in November.

What is the [state legislative] chamber with the best chance of switching to blue? (Arizona I assume, but is there another?) — @sidewalkslam, on BlueSky

You’re right that Democrats’ biggest target is Arizona: If they pick up two seats each in the Senate and House, they would secure full control of the state government—a first since 1966.

But that’s not all. 

There’s Wisconsin, most notably. The victory of a liberal justice in 2023 paved the way for a ruling that struck down GOP gerrymanders. Now, the legislative elections are taking place under radically different maps that give Democrats a chance to flip the chambers; that’s especially true in the Assembly, since only half of the state Senate is up this year.

The New Hampshire House ended in a near-draw two years ago; if Democrats flip it this year, they would end GOP control over the state no matter what happens in the governor’s race. This chamber often comes down to tiny margins: It has 400 seats—that’s a national high, by far—and 30 races went to a recount two years ago; six were decided by a margin under 10 votes. 

But the GOP is also looking for gains. In 2022, Democrats unexpectedly flipped four chambers, which sparked major policy swings. This fall, control of three of them hangs by a thread. In Pennsylvania’s House, Michigan’s House, and Minnesota’s Senate, losing a single seat would cost Democrats the majority. (Democrats’ fourth 2022 gain, Michigan’s Senate, is not on the ballot this fall.)  The GOP is also eying other chambers, most notably Alaska’s House and Minnesota’s House.

And don’t just look at which party wins more seats. Many states are on supermajority watch. Nevada Democrats might gain a two-thirds majority in the state Senate, to go along with the one they already have in the Assembly; this would allow them to override vetoes by the Republican governor. The GOP, meanwhile, hopes to keep new supermajorities in Nebraska and North Carolina: The defection of a single Democrat in each state handed Republicans that edge, and now they can’t afford to lose any seat.

North Carolina Democrats, in fact, want to avenge that defection directly: Tricia Cotham, the lawmaker who switched parties, paving the way for major conservative wins like new abortion restrictions, is running for reelection in the Charlotte suburbs. The GOP redrew legislative maps to help her, but this is one of the most expensive races of the year.

Hoping to go even more granular and learn about which specific districts will determine the majority in these chambers? Our Bolts cheat sheet provides you information, state by state.

What happens in elections where no one is running? In my county in South Carolina, we have no one running for Soil and Water District Commission, but there is an ability to write-in a candidate. — Noah, from South Carolina

It’s extremely common for elections to feature one candidate running unopposed. Prosecutor races are often elections in name only, with incumbents waltzing into office with no opponent. This fall, all five of Oregon’s supreme court races feature a sitting justice with no challenger. Democrats are already sure to run the Massachusetts legislature next year, and Republicans the Oklahoma legislature, because most seats in each state have been left uncontested. 

But what about elections where no one files at all? That’s far less common, but it’s by no means unheard of. They’re more likely to pop up for local offices that are under the radar, like municipal treasurers, school board members, or neighborhood councils. 

Elections for soil and water commissions, which are local bodies that are meant to protect natural resources, are a prime spot for this. You just asked about one South Carolina county, but there are actually a handful in your state where no one filed to run for these bodies. It’s a similar story in North Carolina and Oregon, two other states with soil and water districts. 

If no one files to run by the deadline for candidates to appear on the ballot, it’s still possible for someone to mount a write-in bid. But that’s not as simple as just getting a few friends to jot down your name. Many states require that someone come forward and formally register as a write-in contender, though what that means varies greatly. In South Carolina, where you live, there’s no form to file, though the state asks candidates to notify local authorities. In Wisconsin, you need to file a form at least a few days prior. In North Carolina, depending on the office, you may need to collect signatures and file a petition months before an election. 

For instance, in Dare County, North Carolina, no one filed to appear on the ballot for the soil and water commission job, but a resident is currently mounting a write-in campaign.

What if an election really has no winner? Say no one ran, and no write-in materialized. The next step, once again, depends on your local laws. In many cases, this gets treated like a regular vacancy that the governor, county board, or city council would fill via an appointment. Here, too, some states have idiosyncratic rules: If such a situation occurs in North Carolina, the incumbent office-holder may hold the seat for the entire term even if they didn’t run for reelection.

Is there a chance for Democrats to win more congressional *delegations* this cycle? I’m thinking about the situation where neither candidate gets 270 electoral votes. Can Democrats get the lead in 26 states? — @MeWritesGood on X

This question refers to a possible scenario in which neither Harris nor Trump reach a majority in the electoral college—whether because they tied at 269 each, or even because of a faithless elector. In such a case, the U.S. House would decide the election: Each state’s delegation gets one combined vote, and someone needs the support of 26 delegations to become president. The presidential election hasn’t been decided in this way since 1824.

The GOP currently controls 26 delegations and Democrats 22. Two are tied. But what matters is the next Congress, the one that’ll be elected on Nov. 5. So could things change?

To your question: It’s exceedingly difficult to come up with a plausible set of November results that get Democrats to 26. Even if they were to sweep all districts on Bolts’ cheat sheet of competitive U.S. House races, they would only get to 23 delegations. 

Democrats face many obstacles here. For one, the more sparsely populated states lean red, the same structural issue that skews the U.S. Senate to the GOP. Just like in the Senate, the blue bastion of D.C. has no congressional representation. Plus, while North Carolina’s delegation is currently tied, the GOP redrew the state map with an aggressive gerrymander that guarantees it will gain a clear edge. 

A more worthwhile question is: Could the GOP slip below 26? This would happen if delegations end up tied, effectively canceling out their votes entirely and preventing the House from choosing any winner. (In such a scenario, the Vice President-Elect, chosen by the U.S. Senate, becomes the acting president.) 

Even for this goal, Democrats need a lot to go right for them. Accounting for the GOP’s likely gain of North Carolina, they need to defend their vulnerable seats in Alaska, Michigan, Minnesota, Pennsylvania, and Virginia, and gain enough seats to erase the GOP’s majorities in two of these four state delegations: Arizona, Iowa, Montana, and Wisconsin. 

The basic issue here: You’d expect House Democrats to only pull off such a sweep if the election cycle is very favorable to them—if their base turns out much more, for instance, or if undecided voters swing their way. But if the presidential race is so tight that it’s been thrown to the House, that’s probably not what election night looks like down ballot.

What happens if you walk into the wrong polling place by mistake? — @sommersmurf on BlueSky

If you realize that you’re in the wrong polling place, poll workers may be able to identify where you should go, and you may still have time to head to the correct location. But things may not be so simple. Maybe poll workers say they don’t know where you’re supposed to vote, or you believe your name was removed from voter rolls incorrectly, or there’s just no more time. Some states are also prone to cut polling places at the last minute, creating confusion. 

At that point, you can ask to cast a provisional ballot. (This option exists in every state other than Idaho and Minnesota, both of which offer same-day registration, which mitigates this issue.) A provisional ballot is one that’s put aside pending verification of a voter’s eligibility. 

But what happens next varies greatly by state: If local officials end up confirming that you did cast a provisional ballot in the wrong polling place, there’s a big range in what they’ll do with it. 

Broadly speaking, they fall in two big categories. They could count your vote for all the races you were eligible for: If you went a neighborhood over, you may have cast a vote in the wrong city council race, but why should your vote for governor or president also be tossed? 

But some states don’t even allow such a partial count. They completely reject a provisional if a voter casts it in the wrong place. Nothing is salvaged. This approach of fully rejecting provisionals “makes no sense,” says Jon Sherman, an attorney with the Fair Election Center who has written on the issue. “It’s totally irrational to reject people’s federal and statewide choices when they would be eligible to vote in those races anywhere in the state.”

You can find a comprehensive breakdown on which side each state falls in on Ballotpedia.

To reduce these risks, many states have set up at-large voting centers: These are polling places that can accommodate people living anywhere in a county or a city. Chicago calls them “supersites.” Such centers are common during the early voting period; some places also set them up on Election Day. 

“(At-large) voting centers are a major boost for turnout, particularly for low-propensity voters,” says Sherman, pointing to the research into their effects. “They are more convenient locations, and bigger and more accessible.”

But like so much else about how we vote, these rules are caught up in restrictions and litigation that sometimes produce a strange mismash. 

Take Arizona. On Election Day, this state uses at-large county centers, and simultaneously it uses precincts, much smaller locations that each voter is assigned to. On Nov. 5, there will be 246 at-large locations dispersed across the sprawling Maricopa County where people can vote regardless of where they live in the county. But if they go to a precinct location, and get it wrong, the state shows no mercy: Republicans passed a law that requires officials to toss provisionals cast in the incorrect location in their entirety—no partial count. Democrats sued but lost in a landmark Supreme Court case in 2021. This year, the GOP tried to ban the at-large centers as well, blaming them with no evidence for voter fraud, but they fell short.

I live in a pretty rural town in Virginia. I spent almost 2 hours the other day trying to research our local candidates’ platforms and it was basically fruitless. By the end I was poring through their LinkedIn profiles and the Facebook accounts of their various relatives trying to learn ANYTHING. Shouldn’t every candidate have to have a website with their platform?! — @usetyourloafman on Threads

I’ve shared your experience as a voter—and also as a journalist covering races that touch the criminal legal system, like prosecutors and sheriffs. Many candidates running for these offices avoid sharing their policies. They also sometimes insist they shouldn’t have to answer policy questions because they’re just running to apply the law, a response that ignores the vast discretion they’ll inherit.

In a past election cycle, I reached out to dozens of candidates running for sheriff in Texas about whether they planned to assist ICE with immigration enforcement as part of the agency’s 278(g) program, which is a key policy question that sheriffs control. Few responded. One replied with, “I do not think it is appropriate for me to speak about specific program recommendations for the sheriff’s office until I am sheriff.” (This candidate lost, by the way.)

Journalists here play an important role in asking candidates about their views, and many newsrooms have created extensive guides to help people navigate their local ballots. 

Nonpartisan groups like the League of Women Voters also publish candidate questionnaires and organize forums—though candidates will often decline to participate. And advocacy organizations may also want to pin them down about their commitment.

Leslie Cushman, an advocate with the Washington Coalition for Police Accountability, a group that’s talking to candidates in a local sheriff’s race, talked to me recently about why it’s important to her to press local candidates for answers. “We’ll ask them to get their policies in writing,” she said. “That’s the only way you can hold a candidate accountable, is if they violated a policy. If you don’t have a policy, then there’s nothing to measure anything against.”

In my state, Michigan, commissioners choose boards of canvassers. When we almost refused to certify our 2020 elections, people were furious and asked, how did these canvassers get their jobs? Now, I can’t seem to get people to care. Can you explain the significance of this and other downballot offices that can have major effects on elections? Roles that may not be obvious for their importance but are very much so? — Stacey, from Michigan

“Sometimes the vote counter is more important than the candidate,” Trump told Pennsylvania Republicans two years ago. His efforts to subvert the 2020 presidential election, from telling the Georgia secretary of state to “find” him thousands of votes, to his team’s hope that local officials would delay certification to create what they called a “cloud of confusion,” relied on the complicity of people sitting on local and state boards.

This is why Bolts created a resource, “Who Counts Our Elections,” that details who processes, counts, and certifies results in each state, and how they come to be in office. Here readers can learn, in their state, what offices play what role in this process.

In Michigan counties, for instance, local commissioners appoint the members of the canvassing board. In Pennsylvania, elected commissioners double as a board of elections. In Florida, three local officials come together to act as a certifying board. There are also separate statewide offices to finalize the results in each. To make matters more complicated, the officials who handle elections in the runup to election night may be different than those who handle the count; we have compiled state-by-state information on who runs elections in a separate resource.

And many of these election officials are elected themselves. 

In 2022, election deniers tried to take over elections offices but largely lost. Still, some sitting officials have signaled an openness to stretching their role and helping the GOP. If they act on it, it’d be up to state officials and courts to intervene and keep the count running smoothly. 

And this fall, there are still more downballot races that may hand election systems to election deniers. This includes the statewide races in Oregon and Missouri, and local races in Arizona’s all-important Maricopa County (Phoenix) and across the state of Florida. 

The post Downballot Stakes: Your Questions Answered appeared first on Bolts.

But we also wanted to hear from you. For “Ask Bolts,” our ongoing series in which we tackle reader questions, we asked you what you wanted to know about these upcoming elections. 

As always, you came through with many thoughtful questions. Today I tackle six of them—a fun opportunity to introduce you to our team’s elections reporting and research in a new way.

Navigate to the question that most interests you here, or scroll down to explore them all at your leisure:

What are the interesting referenda in November?
Jump to our answer.

What is a state auditor, and why should I care?
Jump to our answer.

What’s the best way to find out about nonpartisan judges? So many people tell me they have no idea and leave the ballot blank.
Jump to our answer.

I have a lot of friends who say, “I live in D.C., it’s not like my vote matters that much.” What downballot races can I advocate for?
Jump to our answer.

What’s the most unusual office that’s having elections?
Jump to our answer.

Where can people get involved as poll monitors? I can travel.
Jump to our answer.

Stay tuned for more before election day. And if you have a question, it’s not too late to share it!

What are the interesting referenda in November? — @tomwwhittington, on BlueSky

Lucky for you, our cheat sheet lists dozens of state and local ballot measures, ranging from abortion rights and labor to criminal justice and election rules. You may have heard of the biggest ones: Arizona and Florida could reverse abortion restrictions. Ohio may switch to independent redistricting, which would undo GOP gerrymanders by 2026. Alaska could repeal ranked-choice voting, two years after Sarah Palin blamed it for her loss.

But many important measures remain under the radar. Take Arizona’s Prop 134: The GOP hopes it’ll squash future citizen-led initiatives, as their party is frustrated that progressives have used this to sponsor reforms like an increase to the minimum wage. This is happening beyond Arizona, too. If Measure 2 passes, North Dakota would become the only state where a measure has to pass on two separate election days within the same year to become law.

Conservatives are pushing many other big changes. North Dakota could also become the first state to eliminate property taxes if it passes Measure 4, a proposal put forth by a right-wing organization that calls property taxes “immoral.” A Kentucky measure could greenlight public funding of private schools. In Washington, a pair of referendums could undo a capital gains tax and environmental regulations. An initiative in Colorado may make it harder for people with long prison sentences to be released.

Some of the most interesting progressive efforts are happening at the municipal level. Memphis is defying Tennessee’s GOP lawmakers with a gun control measure. Some cities are looking to create new funds to boost affordable housing; many others, like Columbus and Nashville, are asking voters to hike local taxes to pour more money into public transit. I’m also watching a pair of local measures in California that would expand the franchise: Albany may lower the voting age to 16, and Santa Ana may allow noncitizens to participate in local elections. At the state level, will Nebraskans mandate paid sick leave from employers?

My list could go on, so let me end with: California and Nevada are voting on removing language from their state constitutions that allow “involuntary servitude” for incarcerated people. This would have the major ramifications in restricting forced prison labor, we reported recently. 

What is a state auditor, and why should I care? — from @rutiregan, on BlueSky

Auditors, or controllers as they’re known in some places, are meant to check that government agencies are working properly—that they’re implementing programs as they should, that they’re allocating funds where they should. So it can make a difference whether an auditor believes in the basic mission of the public services they’re supposed to be assessing. 

But auditors also have the discretion to set the priorities of their office, based on which agencies and programs they believe are most in need of supervision. And their political outlook matters here. In 2022, Bolts covered the unusual candidacy of Kenneth Mejia, who won the office of Los Angeles controller on a vow to audit the police department after a campaign in which he raised questions about the scope of the LAPD’s $3 billion budget. He has since released a critical review of their large helicopter program. And while Mejia was running for a municipal office, state-level auditors can similarly direct their office’s resources where they think there’s a need. 

This year, two states are holding competitive auditor races (North Carolina and Pennsylvania), and a common thread stands out in each: The GOP candidates are saying that state elections systems need auditing, amid conservatives’ broader rhetoric questioning election integrity. 

Pennsylvania Auditor Timothy DeFoor, a Republican running for reelection, launched a review in mid-September of the state’s program to automatically register eligible voters when they interact with the Department of Motor Vehicles. Republicans have pushed a false narrative this fall that noncitizens are participating in U.S. elections, with Pennsylvania at the center of their efforts given its role in the presidential race. DeFoor’s Democratic challenger, state Representative Malcolm Kenyatta, accused DeFoor of “paving the way for Trump’s Big Lie 2.0” and “provid[ing] cover for dangerous conspiracies and election denialism.” DeFoor has said he was not motivated by partisan purposes in launching this review.

In North Carolina, the GOP’s auditor nominee Dave Boliek wants to create a division in charge of investigating voter rolls and voting equipment. “There’s a tremendous amount of distrust in the election process,” he said in the GOP primary. Boliek faces Democratic Auditor Jessica Holmes, who was appointed to the office last year after a prior auditor resigned in scandal. 

What’s the best way to find out about non-partisan judges? So many people tell me they have no idea and leave the ballot blank. — @IndyDeVoe, on Twitter | How can I find out the party affiliation of judges running for office? — Eliz, in California

Far and away, some version of this question is what we heard from you the most—where can I possibly learn more about judicial elections? 

Unfortunately, there’s no getting around the fact that it’s very difficult to find the information you’d want. Depending on where you live, you may see a dozen judicial races on your ballot at once, and in many states, these races are nonpartisan. You’re likely to find little about the candidates. Even if you come across their website or an interview with the press, which is by no means a given, they’re probably just promising to be fair and follow the rule of law. 

Some local publications prepare extensive voter guides for all local judges, looking into their backgrounds and records: I’m thinking for instance of Injustice Watch in Chicago, which just published its judicial guide this week. At Bolts, we cover some local judgeships, but our comprehensive coverage is reserved for state supreme court races. To explain the stakes, we identify recent cases, review who is backing the candidates, and ask how a change in membership would shift a court. 

So the first thing I’d recommend is to see if you have a newsroom in your backyard with such a guide. But as you can see from these examples, these projects devour a lot of time and resources. 

If you don’t find that, there may be local legal organizations that have issued assessments. But ideally there’d be several such reports to compare critically; such organizations may conceal biases of their own, and ignore the differences between candidates’ ideological commitments. 

Many judges insist they’re apolitical, even when their rulings reveal a consistent outlook. But you may find hints. For instance, who appointed them to the bench? But be careful to also learn if that official really has control over who they chose. In Florida, for instance, Governor Ron DeSantis has pushed the courts to the right with his nominations; his choice is technically constrained by the state’s nominating commission, but that body is now staunchly conservative. 

Even in an ostensibly nonpartisan race, judicial candidates often receive public endorsements from parties or financial support from partisan PACs. They may be part of groups like the progressive American Constitution Society or the conservative Federalist Society. And they may have a trail of statements that clarify their beliefs. For instance, in looking at the social media account of one of the candidates for Minnesota’s supreme court, I came across numerous comments supportive of Donald Trump and conservative legal positions.

And sometimes, you’ll find candidates who are open about their views while campaigning. They may be saying that they hope to reduce mass incarceration or combat criminal justice reform, that they support or oppose abortion rights, or that they’d combat gerrymandering. Judicial races always have consequences; these are just the cases where it’s easiest to see how.

I live in Washington, D.C., and I have a lot of friends who say something along the lines of, “Well, I live in D.C., so it’s not like my vote matters that much.” What downballot races can I advocate for? — Paige, in Washington, D.C.

I won’t lie to you: The D.C. ballot isn’t the most eventful this November. Most D.C. elections are settled in Democratic primaries, since Democrats are so dominant. Plus, the contests for mayor and attorney general will only be on the ballot in two years. And while some residents tried to force recall votes against Charles Allen and Brianne Nadeau, two progressive city councilors who backed criminal justice reforms, they failed to gather enough signatures.

In fact, the most interesting aspect of D.C.’s elections this year may be who gets to vote in them: The city has begun implementing a new reform that allows noncitizens to vote in local elections. 

Still, there is one big-ticket item on November’s ballot: Initiative 83. 

This measure would transform the way D.C. runs its local elections. If it passes, the city would still hold primaries to decide each party’s nominee, and then a general election. But two things would change: Independents would be allowed to vote in a party’s primaries. And primaries and general elections would be decided through ranked-choice voting. Proponents say this would ramp up competition and enable more people to participate in the typically-decisive primaries. The Democratic establishment is largely fighting it, arguing that the system is too complicated and that parties should have the right to restrict their primary electorate. 

But when it comes to national politics, the voices of D.C. residents continue to be devalued: They have no representation in Congress, a situation with a long and racist history. Democrats in the U.S. House passed a bill in 2021 that granted statehood to D.C., but the bill faltered in the Senate. 

“D.C.’s lack of congressional representation in the year 2024 is unconscionable,” Ankit Jain told me this week. Jain, a voting rights attorney, is running this year to be one of the district’s two shadow senators. These are officials elected by residents as though they are a senator; they do not get a seat in the chamber, but they take an active part in the city’s advocacy for more representation. (Jain, a Democrat, is heavily favored against GOP nominee Nelson Rimensnyder.)

“We are American citizens who simply want the same right as every other American citizen—the right to vote and to influence our own government,” Jain said, denouncing “the injustice and racism of denying the right to vote to 700,000 tax-paying American citizens, a majority of whom are people of color and a plurality of whom are Black.” He added, “I cannot help but think that if our population was whiter that getting statehood would be much easier.”

What’s the most unusual office that’s having elections? — Paul, from New York

There’s a bevy of riches when it comes to elections that people don’t think of. Did you know Florida elects public defenders, or that, in Montana, contests for a local government study commission have become a key test for housing affordability?

For this question, I’ll pick a little-known office: Vermont’s high bailiffs. Each of Vermont’s 14 counties elects this obscure position with limited formal powers—technically, their role is to arrest the sheriff, and to act as sheriff when the sheriff is incapacitated. But in 2020, two progressives ran, and won, races for high bailiff in Addison and Windsor counties on the idea that they could leverage whatever visibility the office has to help reduce incarceration.

Dave Silberman, a drug decriminalization advocate who became Addison County high bailiff, told me at the time that people should get creative in using whatever levers of power exist in their areas to make a difference. “It’s up to me as an activist, as a person who’s looking to change the system, to use the tools at our disposal to make our society better,” he said. 

I recently caught up with Silberman to talk about his first four years in the office. Silberman, who actually briefly served as acting sheriff in 2022 when the sitting sheriff was arrested over sexual assault charges, said he is wielding his bully pulpit to promote the idea that Vermont should altogether eliminate sheriffs, and has repeatedly pressed that case at the state legislature. “What we’re seeing across the country, but also here in Vermont, is that the entire construct of elected sheriffs is dangerously prone to corruption and serious abuse,” he told me. 

Silberman, a Democrat, is running for reelection this fall against Ron Holmes, a Republican who has repeatedly run for sheriff and has made it clear that this is his driving ambition, in stark contrast with Silberman’s position that the office ought to be abolished.

Where can persons available to serve as poll monitors be best enlisted? I can travel. Do some states require you to be a resident to be a poll monitor? — @duanehere, on BlueSky

I took your question to Jeanette Senecal, who for the last 25 years has worked at the League of Women Voters, one of the nation’s chief civic engagement organizations. Her overarching message: “It’s never too late to engage in the election process.” The increase in threats and harassment against election officials since 2020, she says, ramped up a chronic need for workers, observers, and volunteers. 

If that interests you, broadly speaking, you’re allowed to engage in two ways. 

First, you could be a poll worker: You’d staff the local elections office to help them run a polling place or process ballots. This is crucial, Senecal says, so “voters have the staffing and support that they need when they go to the polling places.”

Many jurisdictions already have staffed up, but some say they still need help. As of publication, for instance, Arizona says that four of its 15 counties are looking for assistance. Senecal advises people to get in touch with their local elections office, or input their information in Power the Polls, a program the League helps run that connects people to election offices.

Second, you could be an election observer. Observers monitor that processes are compliant; typically, they don’t intervene. Observers can increase public trust, Senecal says. “You become a trusted messenger within your own network to help improve confidence within your networks.” But there are also concerns that people who echo Trump’s false allegations of widespread voter fraud will fill monitor roles and act in ways that intimidate election workers.

What this all means concretely varies greatly from place to place. The National Conference of State Legislatures has a comprehensive guide that lays it out for each state. And the Brennan Center has a series on the rules in the major battleground states. Senecal says people should start by getting in touch with a local organization with an established observation program.

Can you travel to fill any of these roles? That depends. Many states require poll workers and/or election observers to reside or even be registered to vote there. But some don’t; you don’t have to be a resident of Wisconsin to be an observer there, for instance. But for anyone who wishes to get involved away from home, Senecal stresses, “there’s a lot of get out the vote activities that people can support in jurisdictions that are not their own.”

The post What’s on Your Local Ballots: Your Questions Answered appeared first on Bolts.

Alongside the new bans on abortion, laws have popped up to encourage people to snitch on their neighbors and empower prosecutors to file criminal charges. So-called personhood laws are exposing more people to heightened punishment, plus endangering access to other procedures like IVF. The Republican Party has proposed scaling that up further by codifying ‘personhood’ at the federal level.

But pregnancy was policed long before the Dobbs decision came down. Even under Roe, many women faced arrest and prosecution due to allegations over how they handled their pregnancy.

Grace Howard meticulously lays out this history in her new book The Pregnancy Police: Conceiving Crime, Arresting Personhood. An associate professor of justice studies at San José State University, Howard has studied over 1,000 pregnancy-related arrests since 1973, a period that saw the rapid growth of the war on drugs. Her book reconstructs how legal statutes and surveillance tools were used to punish not just abortions, but also stillbirths and miscarriages.

As part of our “Ask Bolts” series, we invited you to ask Howard any question you had about the policing of pregnancy. And once again, you delivered with many thoughtful questions, touching on everything from landmark court cases to new technology. We narrowed your submissions to just nine reader questions to share with Howard, also throwing in a tenth from our own staff.

Howard replies to your questions below, sharing what gravely worries her about the realities of policing and surveillance today, but also finding advocacy to be hopeful about. We’ve organized your questions under four themes—explore at your leisure:

Decades of policing

The realities of criminalization today

Standards of care

What lies ahead?

Read on to learn more about the most consequential legal cases, new tools of surveillance, and a lot more.

Decades of policing

Dobbs galvanized more attention on reproductive rights, but you began your research on the policing of pregnancy long before that decision. What was happening in the decades that your book covers—what has criminalization looked like, besides restrictions on abortion? And what made you start paying such close attention to it? — Bolts staff

In the decades before Dobbs, there was a lot of action in the courts and in state legislatures carving out fetal personhood beyond the scope of abortion. Fertilized eggs, embryos, and fetuses were defined as legal persons in tort law. Pointing to the reality of homicidal violence against pregnant people, pregnancies were defined as crime victims, independent of the people gestating them. 

After Roe, criminalization began in earnest in the 1980s, as the “War on Drugs” drove punitive approaches to social issues, and the anti-abortion movement became a more organized political force. Panic over crack cocaine led to a focus on impoverished Black women who tested positive for the drug while pregnant. 

Most pregnancy criminalization cases involve a positive drug test, but other arrest cases involve self-harm, car accidents, self-managed abortion or miscarriage, failing to protect a fetus from third party violence, and even failure to take good care of themselves. 

Though I had been very passionate about sexual and reproductive health issues, I actually didn’t realize that the criminalization of pregnancy was happening until grad school. We read Dorothy Roberts’ Killing the Black Body and I was forever changed. I was outraged—that it was happening, that so many people either didn’t know or didn’t care. And, there were some great law review articles on it, but not a lot of data. So, I decided I wanted to do something about that. 

What are some landmark legal cases related to the criminalization of pregnancy that concerned citizens should be aware of, and what were their implications? — Chrissy T.

This issue has only come before the Supreme Court once, in Ferguson v. City of Charleston, a 2001 case. This case began as a lawsuit against the Medical University of South Carolina, which had adopted a policy of drug testing certain pregnant patients and reporting positive tests to law enforcement. By the time the case got to SCOTUS, it wasn’t about whether we could punish pregnant folks for crimes against their pregnancies, it was about illegal searches and seizures: Can you drug test a patient for the purposes of law enforcement activity alone, without reasonable suspicion or a warrant? The court said no, you can’t. 

And yet this hasn’t stopped the practice: The case only ever applied to public medical facilities, and healthcare providers can essentially lie about why a drug test is offered. 

Today, drug testing and reporting of pregnant patients and newborns is common and widespread, though most of the time the reports result in family court cases, not criminal ones. 

Another notable case is ex parte Ankrom (2013), which is when the Alabama Supreme Court said that a 2006 law passed by Alabama to punish the chemical endangerment of a child could also be applied to pregnancy. Despite the law saying nothing about pregnancy, the court basically defined fertilized eggs as “children” and uteruses as contaminated “environments.” Though pregnancy-related arrests started years before Ankrom, the decision emboldened prosecutors and opened the door to further legal developments. 

For example, the Alabama Supreme Court case earlier this year that defined embryos created by IVF as extrauterine children, endangering the procedure in the state, cited Ankrom multiple times as precedent.

What does your research show about the way women of color and low income women have been treated on this front during the period you studied, versus white women and higher income women? — Morgan M., from California

The criminalization of pregnancy is inherently racist. Across the U.S., the drugs that women of color are more likely to use have been treated with more scrutiny and have been uniquely stigmatized than those used by white women, despite comparable rates of substance abuse. 

Alabama has been a somewhat different story, in that the racial composition of the arrest pool is much more comparable to state demographics—although this does not mean that it has a racially egalitarian criminal justice system. Alabama’s criminalization period started in 2006, when the big drug panic was related to home-cooked methamphetamine. This focus on meth, and the drug’s association with impoverished white people, led to a wave of them being targeted. 

In my book, I explore rhetorical connections between the panic over so-called “meth babies,” to the early U.S. eugenics movement’s focus on impoverished white people—a white supremacist attempt to shore up the strength of the “white race” by eliminating the whites on the fringes. While information on income was not available in all of my cases, I was able to see if a defendant qualified for a public defender. Perhaps unsurprisingly, the vast majority of the people who were arrested in my study were impoverished enough to qualify for public defense. 

The realities of criminalization today

When I was pregnant in MA in 2021, I was told that because I had a medical marijuana card prior to being pregnant, I could be drug tested at any point in my pregnancy, even though I reported not using it while pregnant. When I read up on the legality of that, I found out that women testing positive for marijuana during delivery accounted for the largest share of referrals to the Department of Children and Family Services. I would love to know more about how marijuana can be legal in a state but criminalized for pregnant people. — Mae, from Massachusetts

Unfortunately, there are a lot of areas of law where pregnancy knocks a person down a peg, legally. You can lose some of your most fundamental rights, including the right to reject medical treatment, the right to privacy, the right to liberty. And people who are reported to Child Protective Services for using drugs during pregnancy usually lose their children at least temporarily—an inherently traumatizing experience. This has included people who use legally prescribed medications, including marijuana.

A case on this question just came out of Oklahoma. The state’s Court of Criminal Appeals ruled that you cannot be prosecuted for using medical marijuana while pregnant; local prosecutors were trying to charge multiple women with criminal neglect. This does not, however, prevent CPS from getting involved—this would be left up to the discretion of the relevant agency.

I’m in Virginia, the last state in the South with access to abortion, and law enforcement here has advocated for a wide expansion of Automated License Plate Reader (ALPR) technology across the commonwealth. Attorneys general across the country have articulated their desire to access this sort of data to track movements of pregnant people to see if they access abortion care across state lines. What are some of the dangers of expansive surveillance networks, like Flock’s ALPR networks, and how does that apply to access to care? — Shawn W., from Virginia

Some of the key differences between today and the last time abortion was criminalized are that our criminal justice apparatus has expanded considerably, as have our surveillance networks.

All forms of electronic surveillance, from ALPR to credit card transactions can potentially be used as evidence in a pregnancy case. Law enforcement can get clearance to examine your text messages, your search history, your credit card statement, and even GPS data to track your location. I worry that this will frighten people away from using the internet to find safe ways of self-managing pregnancies, to arrange travel out of state, or even to find support in understanding what options and resources are available. This leaves people who need abortions isolated.

That being said, we haven’t found a single case where a person was “caught” because of their digital footprint. Everyone who has been arrested, to date, was found because a person told on them: a neighbor, a boyfriend, a nurse. We need to be cautious about who we talk to.

Is performing an abortion the only situation in which these laws apply criminal liability to men? — Alan M., from Washington

So far, yes, the only situation where cisgender men have faced prosecution is for performing abortions. But some states have also been exploring the criminalization of abortion “helpers.” A new Louisiana law goes into effect on October 1 that will classify abortion pills as “controlled dangerous substances.” Any non-pregnant person found to be in possession of these substances without a prescription has committed a crime–even if that person has secured the medication for their own future use in the event of an unplanned pregnancy.

Meanwhile, in family court, there have been a few cases where men have been targeted; not for using drugs themselves, but for failing to prevent their wives from using drugs. This is reminiscent of the law of coverture, a “olde time” legal doctrine from English common law, that basically treated women like legal dependents of whichever man they were attached to—a father or brother or husband. Men were held responsible for “making” their wives behave.

Standards of care

How do these laws affect women with ectopic pregnancies? My friend had an ectopic pregnancy after her daughter was born; the doctors recommended she have tubal ligation to ensure no additional similar pregnancies. — Kirsten, from Maryland

In case readers don’t know, an ectopic pregnancy is a pregnancy where the fertilized egg has implanted somewhere other than the uterus, most often in the fallopian tube. These pregnancies are never viable, and they are extremely dangerous, as the growing embryo can cause tissues to tear and organs to rupture. These must be treated by ending the pregnancy with surgery or with a medication called methotrexate. 

Ectopic pregnancies have been in the news since the Dobbs case, because these medical emergencies bump up against vague laws banning abortions. Healthcare providers are put into a position where they have to wonder: Will offering this life-saving care result in the loss of my medical license, or even my incarceration? For example, in Texas, healthcare providers face 99 years in prison if a prosecutor decides they have violated the abortion ban. In practice this means that emergency medical care can be dangerously delayed while lawyers try to decide whether or not your doctor is allowed to help you. 

This is what happened to Kelsie Norris-De La Cruz, a 25-year old woman in Texas who was ordered to go home and wait after she was diagnosed with an ectopic pregnancy, as there was a chance the pregnancy was still “alive.” She was unable to receive care until her fallopian tube began to rupture. 

(Editor’s note: A new investigation published this week by the Associated Press identified the cases of 100 pregnant women who were denied emergency service in different states.)

How have healthcare providers become part of this apparatus of criminalization? Are there certain things they have to report if they notice them? — Anonymous | Why doesn’t federal HIPPA protect women from states accessing their medical records? — @cyndtrueme, on X   

Healthcare providers are the primary gatekeepers for this whole thing: Of the over 1,000 pregnancy-related arrest cases that I studied, 75 percent originated by a healthcare provider making a report. 

There are two federal laws to consider: HIPAA and CAPTA. HIPAA is basically a record-sharing law that places some limits on when medical information can be shared. In general, without your permission, information can only be shared when a person thinks a patient is a direct threat to themselves or others. Healthcare providers have made reports based on their belief that a fertilized egg, embryo, or fetus is a child facing imminent harm.

CAPTA (the Child Abuse Prevention and Treatment Act) provides federal funding for the “prevention, assessment, investigation, and treatment” of child abuse. Many healthcare providers assume (or are advised) that CAPTA specifically requires that states define substance use during pregnancy as child abuse, and mandate reports to authorities, but this is incorrect. CAPTA does not require prosecution, drug testing, or filing abuse reports of babies exposed to drugs in utero. 

What lies ahead?

The GOP’s official policy platform adopted at the RNC wants more states to establish ‘fetal personhood’ laws. Can you explain what the impact of this would be? — Anonymous

The GOP platform endorses the idea that the U.S. Constitution defines fertilized eggs, embryos, and fetuses as full legal persons. (Editor’s note: Courts have not recognized this conservative interpretation of the Fourteenth Amendment, but there are signs that several justices are open to it.) I can’t overstate how impactful this would be. Anybody with the capacity for pregnancy, or who even looks like they have the capacity for pregnancy, would be suspect at all times, and lose the right to medical privacy. They would be banned from doing anything considered (rightly or wrongly) unsafe for a pregnancy, from a seemingly endless list of foods and beverages that are off limits, to forms of medical care including abortion. They would lose the right to medical privacy, and we would nullify advance directives (legal documents where a person states their decisions about life-sustaining care should they become incapacitated) during pregnancy. They could be fired from jobs deemed unsafe. Pregnant people who are abused by their partners could be charged for failing to protect their “unborn child.” 

You can’t have fetal personhood and full legal recognition of people with the capacity for pregnancy at the same time: You are a womb before you are a person.

The bulk of the legal action establishing fetal personhood comes from states. One horrifying reality is that homicide is a leading cause of death for pregnant women, usually at the hands of their intimate partners. Instead of focusing on the factors that make pregnant people more vulnerable to homicidal violence, 38 states have responded by defining fertilized eggs, embryos, or fetuses as potential crime victims. The legislation is sometimes inspired by specific cases that get a lot of press coverage and cause public outrage—most often involving a white victim. For those of us who care about intimate partner violence, this might seem like a great solution to a terrible problem. I argue, however, that these laws are trojan horses, establishing fetal personhood in the criminal code under the auspices of protection. In turn, these very laws have been used as precedent to establish fetal personhood elsewhere in state law, and have been used to punish pregnant women deemed to have endangered or harmed their own pregnancies. 

Are there grassroots groups that you see are doing a good job fighting against this? — I’m worried, from Ohio

It is easy to feel overwhelmed when I think about the work that needs to be done. Thankfully, none of us have to do this work alone, and there are many groups and organizations fighting back. There are two legal advocacy organizations worth looking into: Pregnancy Justice provides legal defense, guidance, resources, and education for cases involving pregnancy criminalization and CPS reporting. If/When/How also does amazing work on legal defense in abortion cases, and they operate both a legal help hotline and a Repro Legal Defense Fund to help cover bail and legal fees. 

There are also some local and state-specific groups working on this, including Healthy and Free Tennessee, Sister Reach, and Sister Song, which focuses on the South. One of the most powerful things you can do right now is to get involved with your local abortion fund or practical support network. Not only do they help fund abortions and make arrangements for people who need support, but they also support folks who want to continue their pregnancies, give birth, and parent their children. They are the grassroots backbone of the reproductive justice movement.

The post How Pregnancy is Policed: Your Questions Answered appeared first on Bolts.

The timing of both elections are major surprises. British Prime Minister Rishi Sunak called them in late May, while French President Emmanuel Macron shocked his country on June 9 by announcing that he was dissolving the National Assembly and organizing elections within a month.

Each election will decide who governs the country, using rules that often differ from U.S. norms. The modes of government vary, of course, but so do policies, gerrymandering, voter registration, voting in or after prison, voter ID, tabulations, and much more. 

At Bolts, we’re always interested in varying models of democracy, and what lessons they teach us. And we suspected that our readers have many questions as well. 

As part of our ongoing “Ask Bolts” series, we asked you to let us know what you’re thinking—and you delivered. We narrowed down your questions (with great difficulty) and had fun answering them below.  

We’ve organized your questions under five themes—explore at your leisure:

Why is this happening right now?

How do these parliamentary elections even work?

So, how do you vote?

How are districts drawn?

Who can vote?

Read on to learn how people vote in France and the U.K., why snap elections are a thing, what constraints exist on gerrymandering, and much more. 

Why is this happening right now?

Why are they allowed to decide when to hold elections? That seems kind of undemocratic to me, to call an election whenever the political tide favors them. What sort of balance is there in the system to prevent one party from running up the numbers for decades? — @aurorasintexas, on X

Snap elections are indeed unusual by U.S. standards: Current U.S. law dictates that federal elections be held in early November every two years—rain or shine. State governments tend to have similarly rigid calendars. 

In France, by contrast, the president has unchecked power to dissolve the National Assembly and order parliamentary elections; the only constraint is that it can’t be done again for a year. But this move is always a personal gamble: When presidents lose parliamentary elections, they appoint a prime minister from within the coalition that controls the Assembly; in such a configuration, presidents are largely reduced to a figurehead when it comes to domestic affairs. That’s what happened in 1997, the last time a president called snap elections: Conservative President Jacques Chirac thought his camp would emerge victorious, but there was instead an upset by the left. 

And now it’s happening to Macron, who called elections three years before they were scheduled. His party held a plurality in the outgoing Assembly but now appears on track to lose at least half of its seats later this week. 

In the U.K., snap elections are even more routine. It’s always the prime minister’s prerogative to decide when exactly to schedule the next national elections, though they must be within five years of the last ones. Unlike in France, there isn’t even a default date for the next election.

This system has faced plenty of criticism that it gives the ruling party an unfair advantage, and the U.K. actually experimented with reform in recent years: A 2011 law significantly constrained the PM’s prerogative, setting a default term of five years and requiring that the House of Commons approve earlier elections. “For the first time in our history the timing of general elections will not be a plaything of governments,” said one of the reform’s champions at the time. But subsequent PMs still managed to convince Parliament to schedule unexpected snap elections to take advantage of favorable polling, and the reform was repealed in 2022. 

But let’s return to the U.S.: Manipulating the timing of elections isn’t exactly rare here either.

State and local officials sometimes schedule ballot measures on dates they think will be most favorable to their goals. In 2018, for instance, Missouri Republicans controversially rescheduled a labor initiative from the November general election to the lower-turnout summer primary, expecting that this would yield better outcomes for them; last year, the Oklahoma governor scheduled a popular initiative to legalize marijuana on a standalone winter date, a choice denounced by state groups as a maneuver to depress turnout. 

How do these parliamentary elections even work?

Can you explain the runoff process in France? How is it determined which candidates make the runoff, e.g. how can three candidates qualify? — B., from New York | I see that France and the U.K. both elect representatives by district. Does that look the same as in the U.S.? — Anonymous

Just like in the U.S., France and the U.K. are carved up into districts, and each district elects one member of Parliament. (That’s what’s happening this week.) Unlike in the U.S., neither country has intraparty primaries; party leaders designate their nominees, rather than leave that decision to a popular vote. 

Otherwise, the rules of U.K. elections should be familiar to Americans: Each district holds a first-past-the-post election to select its MP, much like what’ll happen in the U.S. in November. In each district, the candidate with the most votes wins the seat, whatever their share of the vote. 

France holds its parliamentary elections over two rounds, though. In the first round, voters get to choose between all candidates who filed to run. If a candidate tops 50 percent, they win outright. Otherwise, a runoff is held a week later, and whomever gets the most votes in the runoff wins.

But who exactly makes these runoffs? Here’s where things get tricky: Runoffs in France’s parliamentary elections can have more than two candidates. 

The top two candidates always advance, plus any candidate who gets the support of more than 12.5 percent of the district’s registered voters. When turnout is low, it’s a lot harder to cross that threshold; candidates need a prohibitively high share of the actual votes cast. But when turnout is high, as it is this year, third-placed candidates routinely make it through. 

In France’s 2022 elections, turnout was just 48 percent; as a result, just eight out of 577 districts saw three-way runoffs. But turnout last Sunday surged to 67 percent. As a result, 311 districts saw three candidates advance; a handful of districts even had four candidates make the runoffs.

This set up a mad scramble. There are many French districts in which the far-right party, the Rassemblement National, likely cannot top 50 percent of the vote in two-candidate runoffs; but it has a much stronger shot in three-way battles where it only needs a plurality. In an effort to block the far-right and not split the vote, over 200 candidates dropped out in the days after the first round; as of publication, only 91 districts are still set for a runoff of more than two candidates.

Do these countries end up electing leaders who are more representative? — Bolts Lovers, in Virginia | Does the two round system work to improve representation? Why does France use it instead of instant runoffs/the single transferable vote? — Sefine 

In fact, France came close to having a system that looks a lot more like the U.K.’s: One of the main drafters of the 1958 constitution admired the British first-past-the-post system, but was overruled by President Charles de Gaulle, who saw the runoff system as likelier to produce stable majorities, according to Georges Bergougnous, a professor at the Sorbonne University. 

Neither the French nor British system is ultimately conducive to a parliamentary landscape where smaller political forces are well represented. The U.K.’s first-past-the-post system creates the same sort of pressure for voters to opt for the dominant parties as in U.S. general elections. In France, with each district electing one member and a two-round system that usually requires candidates to get a majority, it boxes out many parties unless they ally with larger forces.

Both countries have seen insistent calls by smaller parties and some election reformers to select at least part of Parliament through a method of proportional representation, but these proposals have not come through. (France briefly switched to a proportional system from 1986 to 1988.) 

Both countries’ parliaments also skew male and white, and people with immigrant backgrounds are underrepresented. 

France does have a law requiring that parties nominate an equal number of men and women, or else face fines. Since the law was adopted by the left in 2000, the share of women in the National Assembly has soared from 11 percent to 37 percent in 2022, but some parties don’t respect the requirement. (France imposes stricter gender parity in other elections.) In the U.K, which has no such requirement, women make up a third of the outgoing House of Commons. Women in the U.S. won 29 percent of House seats in 2022, which was a record-high for the country. 

So, how do you vote?

A family friend from France was visiting and told us that, instead of absentee ballots, you deputize another person who fills out a ballot for you on Election Day. How many people do that? — @rvarco, on X

Neither France nor the U.K. has any in-person early voting. Polls are open on Election Day. In France, that’s always on a Sunday; in the U.K., it’s always been on a Thursday since the 1930s. 

So what do you do if you can’t make it to the polls on that one day? As the question indicates, France has no mail-in voting. The U.K. does, though: Voters there can cast postal ballots.

Plus, both France and the U.K. have a system of proxy voting: People can deputize their right to vote to someone else by filing an application, which in both countries can be done online. On Election Day, this person then has the ability to go to your polling place and cast a ballot in your name—in addition to the ballot they’ll cast in their own name. There’s no way to control what the person you deputized does: You’ll have to find someone you trust will respect your wishes.

To your final question, the number of people who deputized their right to vote surged in France, in part due to the fact that Macron timed these snap elections for the early summer. More than 2 million voters signed up for proxy voting, which is more than double the 2022 elections.

I believe that, as reported, voter fraud was not a problem that needed solving in the U.K.. But why was voter fraud not more common before voter ID was required? — Paula 

The U.K.’s Conservative government recently adopted new requirements for people to show photo ID to vote. It was implemented for the first time in local elections last year, and will be used again in the national elections this week. We posed your question to Jessica Garland, director of research and policy at the U.K.-based Electoral Reform Society and a critic of this new requirement.

This is a “solution looking for a problem,” she answered. “Prior to the introduction of voter ID there were very low levels of recorded personation fraud in Britain,” she said, pointing to the country’s 2019 national and local elections: “Out of all alleged cases of electoral fraud that year, only 33 related to personation fraud at the polling station—this comprises 0.000057% of the over 58 million votes cast in all the elections that took place that year.” 

Compare those tiny numbers to the disruptions caused by the new law: Thousands of British people were turned away from the polls in 2023 due to the requirement, and thousands more did not attempt to vote as a result, according to the nation’s Electoral Commission. 

Said Garland, “Since its introduction, voter ID has prevented thousands more people from voting than have ever been accused of personation fraud.” This is a familiar phenomenon in the United States. Under the guise of cracking down on fraud, which is tremendously rare, conservative laws have deterred large numbers of eligible Americans from voting.

Do [France and the U.K.] have voter registration? Can you register between the 1st and 2nd rounds in France? — @m_schettig, on X

In both countries, it’s up to residents to proactively register to vote and update their registration as they move (either online, or at a government agency). And they must register weeks before election day. In France this year, because Macron organized snap elections within three weeks—an exceptionally rapid campaign—the deadline came within a day of his announcement, leaving people virtually no time to check their status and get on voter rolls amid widespread confusion.  

Reformers warn that millions of people are falling through the cracks of this system in both the U.K. and France. Many aren’t registered to vote or are registered at the wrong address. 

“This process for registration is proving to be an obstacle to universal suffrage,” Garland told Bolts about the U.K., where she works. “The groups most likely to be missing from the electoral registers are those who rent their homes (only 65 percent of private renters are registered compared to 95 percent of those who own their homes) and young people.” 

Garland wants the U.K. to adopt automatic voter registration, a model that exists in other European countries and many U.S. states. (French people are automatically registered at age 18, provided they abided by the mandatory census at age 16; but there is no update after they inevitably move.)

The idea is for public agencies to use information they already have to proactively register people to vote; this increases the registration rates among groups that are less likely to be engaged in the electoral process. (In the U.S., many states automatically register people through the DMV; some states are trying to register people when they interact with Medicaid services or when they are released from prison.)

The Labour Party has said it’ll introduce automatic voter registration in the U.K. if it wins Thursday’s elections. 

How are districts drawn?

In the U.K. and France, what is the (re)districting process like? Is there a scheduled amount of time until new boundaries are drawn? How does it compare to the U.S., where redistricting is plagued with gerrymandering, protection of incumbents, and litigation? — Tommy, in Pennsylvania

Let’s tackle them one by one. In the U.K., these districts are drawn by so-called boundary commissions. There’s a separate commission for each of England, Wales, Scotland and Northern Ireland. Since a reform adopted in 2020, boundaries are meant to be reviewed every eight years.

These bodies are mostly independent. “The scope for electoral gerrymandering, U.S.-style, is vanishingly small,” The Guardian quipped in 2023, the last time the map was redrawn. Garland agrees: “Changes must include public consultation and be agreed by parliament, and boundary decisions must be made according to principles that are set out in law,” she told Bolts. “This process and the commissions are generally viewed as non-partisan, and the commissioners are not under direct ministerial control.”

France mostly ignores redistricting. The country last redrew its boundaries in 2010; despite extensive demographic change, the rounds of redistricting before that were in 1986 and 1958.

It’s effectively up to the ruling Cabinet to decide if the time has come. At that point, the process is led by the Minister of the Interior in consultation with local leaders and political parties.

On paper, this could be a recipe for gerrymandering gone wild since the entire nation’s map is overseen by one partisan actor. But that doesn’t tend to be the case, according to Thomas Ehrhard, a professor of political science at the University of Paris II Panthéon-Assas who has written a book on redistricting in France. He told Bolts that redistricting in the past has produced maps that were meant to protect incumbents, but that they were not distorted by partisanship. 

One reason for this is that districts must respect other administrative boundaries; this “prevents monstrous forms of gerrymandering,” Ehrhard said. For instance, districts can’t overlap between different départments (the rough equivalent of a U.S. county), many of which are quite small; this greatly constrains what can be done with them. Districts “have fairly homogeneous territorial cohesion that respects the socio-economic realities of small geographical areas,” Ehrhard says. 

Each of the last two rounds of redistricting was overseen by the ruling conservative party, Ehrhard points out. Each time, the center-left won the first elections held under the new maps. 

How does the malapportionment of representatives compare between the U.S., the U.K. and France? — @USHouseEquality, on X

The fact that France redistricts so rarely means that it addresses demographic shifts very slowly, and population disparities between districts can snowball. 

And even when the country adopts a new map, districts may already be drawn with uneven sizes. Each district can deviate by up to 20 percent from its county’s average district population. That’s a large allowance compared to the U.S., where all districts within a state must be as equal as possible. 

Right before the 2010 redistricting, there was a 7 to 1 disparity between the populations of the smallest and largest district in mainland France. (Districts in some of France’s overseas regions tend to be smaller.) As of 2022, the disparity was 3 to 1, according to an analysis by Le Monde that shows large variance across the country. 

On paper, the U.K. is much stricter: The country only allows for a variation of 5 percent.

But there’s another major source of disparity there: The size of districts is assessed based only on the number of people who are registered to vote, not based on an area’s total population. This dilutes representation for areas that have a greater number of residents who are ineligible to vote, or who simply are less likely to be on voter rolls. 

“Practically, it means the [Members of Parliament] representing young and diverse inner-city seats have to serve much larger populations of constituents than MPs representing older, rural seats with high registration rates,” Robert Ford, a professor of political science at Manchester University, told The Guardian. An analysis released last year by pollster Peter Kellener confirmed that this significantly distorts the political map; districts held by Labour are on average more populous than districts held by the Tories. 

Who can vote?

Can voting rights be removed from citizens in France and the U.K., such as if they receive a felony conviction? — Madison, from New York

France mostly does not strip people of the right to vote when they’re convicted of a crime—including while they’re incarcerated.

It largely enables people to vote even from prison, as Cole Stangler reported in Bolts during the country’s 2022 presidential election. “Today, only a small minority of the country’s prisoners are stripped of their voting rights—political officials who have misused their power and convicted terrorists,” Stangler wrote at the time. This is a far cry from the U.S., where only Maine, Vermont, and Washington, D.C., have no restrictions on people voting from prison.

France has also taken proactive steps in recent years to help incarcerated people actually exercise this right. Turnout among people from prison surged nearly 13-fold between 2017 and 2022.

The U.K. disenfranchises people convicted of a crime while they’re in prison. The European Court of Human Rights repeatedly said that this ban violates human rights, rulings that triggered some debate in the country but ultimately led to only minor changes. 

But the U.K. allows its citizens to vote when they’re released from prison.

That, too, is a far cry from vast swaths of the United States; in roughly half of the states, people with felony convictions are barred from voting long after they’ve been released; sometimes they have to pay hefty fees to regain their voting rights. Neither France nor the U.K. does anything resembling the practice of some U.S. states like Mississippi and Virginia, which strip people of their right to vote for life over most or all felony convictions. 

I’m a British citizen living abroad. I still can vote and I have applied for a postal vote in the last constituency in which I lived in the U.K.. Do French citizens living outside of France have voting rights, and if so, where do their votes get counted? — Ray 

The two countries approach representation for citizens who live overseas very differently. 

U.K. citizens vote in the district where they used to live. (This means that they cannot vote in parliamentary elections if they’ve never lived in the country in the past.) In practice, this means they have to cast a mail ballot or deputize a proxy to vote for them. 

France, by contrast, has seats just for its citizens who live outside of France: The entire globe is carved up into 11 districts, and each of these districts elects an Assemblymember through the same exact procedure as any other seat. (There are calls in the U.K. to set up similar districts.) French citizens who live abroad can vote at polling centers set up by their consulate on election day, or they can vote online—an option that does not exist in mainland France. 

For instance, all of the United States makes up one French district alongside Canada. In the district’s first round this past Sunday, a candidate from Macron’s party and a candidate from the Left coalition advanced to a runoff.

The post How Voting Works in the U.K. and France: Your Questions Answered appeared first on Bolts.

Written by election law expert Joshua Douglas, The Court v. the Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights dives into nine landmark cases in which the court undercut U.S. democracy. These include Citizens United, which struck down campaign finance regulations, and Rucho, which shrugged away partisan gerrymandering.

The country is now approaching an election in which the Supreme Court is poised to play an unusually large role, with uncertainty around what will be left of the VRA, what congressional maps will be used, and how justices will respond to lawsuits around the presidential results. 

At Bolts, we suspected that our readers may be trying to make sense of the legal landscape today with regards to voting rights. So last week, we asked you to share your questions about the Supreme Court’s ongoing effect on voting rights—and how the damage may be repaired. And Douglas agreed to respond to them.

Floored by all the submissions we received on social media and on our website, we struggled to narrow the list down but finally settled on eleven questions to pose to Douglas, from big-picture inquiries to some that dive into the weeds of election law.

Below, Douglas answers Bolts readers. He identifies the Supreme Court cases you may never have heard of despite their role in undermining voting rights, assesses where VRA protections may go from here, explains why he thinks ranked choice voting is safe for now, and much more.

Voting rights today: How we got here

What’s the most underrated case where this court weakened voting rights, but that we just don’t talk about enough? — Anonymous

There are two cases that hardly anyone has heard of but that have had a major impact on the way the Supreme Court treats the constitutional right to vote: Anderson v. Celebrezze, in 1983, and Burdick v. Takushi, in 1992. Anderson dealt with the desire of an independent candidate to gain ballot access after a state’s deadline for turning in enough signatures. Burdick was about an individual’s attempt to write-in a candidate instead of choosing one of the candidates listed on the ballot. (These two cases are the subjects of Chapters 1 and 2 of my new book.) But the specific disputes in these cases are less important than the judicial test that came out of them.

These two cases began the Supreme Court’s descent into its underprotection of the right to vote by failing to apply the highest judicial standard, known as strict scrutiny. 

Previously, the court in the 1960s had strongly protected voters by requiring a state to prove that it had a really good reason for a law that infringed upon the right to vote, and that the law actually achieved that goal. But in Anderson, the court began to weaken that test, instead balancing the burden that a law imposes on voters with a state’s interests in regulating the election as it wishes. Burdick went further, accepting a state’s desire to run its election as it sees fit. These two cases comprise what election scholars call the “Anderson–Burdick” balancing test. 

Now, states no longer have to explain, with specificity, their reasons for a law to have the Supreme Court uphold its voting regulation. As far as this court is concerned, a state can simply offer a more general assertion that it’s looking to “prevent voter fraud” or “ease election administration,”  even when doing so is at the expense of voters’ easy access to the ballot.

If voting is a constitutional right (isn’t it?), how is it that requiring an ID, to which one isn’t entitled to by constitutional right, can be used to trump (pun intended) the right to vote?  — Rocky, from California

This question goes to a broader point: The Supreme Court has failed to protect the constitutional right to vote and instead has unduly deferred to state rules on election administration, even when these rules infringe upon voters’ rights. 

In recent decades, the court has routinely credited state assertions of their desire to root out voter fraud, even when the state has zero evidence that there are real election integrity concerns. On voter ID specifically, in its 2008 decision in Crawford v. Marion County Election Board, the court rejected a challenge to Indiana’s ID law, saying that the plaintiffs had not presented enough evidence that the rules imposed a burden on voters. At the same time, it accepted the state’s generalized assertions of its desire to prevent in-person impersonation, even though Indiana could not point to a single example of this kind of voter fraud in its history. That is why, as I argue in the book, the court’s approach to the constitutional right to vote is backward.

Would you see any legal challenges the Supreme Court may accept in opposition of states implementing ranked choice voting for all their elections? — J.C.

It is hard to see what the successful legal challenge might be to ranked choice voting, and lower courts have already rejected some theories. In one case out of San Francisco, plaintiffs argued that ranked choice voting violated the concept of “one-person, one-vote” by giving voters the chance to choose multiple candidates. The court rejected the challenge because in the end each ballot is counted only once for one candidate. 

There was, however, a successful challenge to ranked choice voting in Maine, though it was brought under Maine’s state constitution, which explicitly says that the winner of state elections is the candidate with the most votes. That’s why Maine does not use ranked choice voting for the general election for governor, state senator, or state representative, even though it uses it for federal elections. But courts rejected other legal challenges to ranked choice voting in Maine.

Why is 18 the voting-age floor in the U.S.? Did SCOTUS have anything to do with that? — Lewis M.

At the founding the voting age was 21, which simply came from English common law. But 21 was essentially a historical accident: in medieval times, 21 was the age that men were thought strong enough to wear a suit of heavy armor and therefore entered adulthood. In the U.S., there was a long movement to lower the voting age to 18, starting around the time of World War II and increasing during the Vietnam War. Congress tried to lower the voting age to 18 for all elections, but the Supreme Court struck down the provision as it applied to state and local elections in Oregon v. Mitchell in 1970. That decision spurred Congress and the states to enact and ratify the 26^th Amendment in 1971, which lowered the voting age to 18 for all elections. 

Interestingly, although the amendment says that states cannot deny the right to vote to those 18 and older, it does not prohibit states or localities from lowering the voting age further. Several jurisdictions in California and Maryland have set a voting age of 16 for local or school board elections. And several states allow 17-olds to vote in the primary if they will be 18 by Election Day. There is nothing unconstitutional about these rules, at least under the U.S. Constitution.

Threats to the Voting Rights Act and redistricting reform

SCOTUS unexpectedly struck down Alabama’s congressional map last year in Allen v. Milligan. Could that decision have an impact on other states’ gerrymandering cases? Could it be enough to slow down gerrymandering in Texas? — Moon, from Texas

The Allen v. Milligan case was helpful to ensure stronger minority representation within a map, but the case itself did not make any new law. The court simply refused Alabama’s extreme argument to overturn decades of precedent in how the court construes Section 2 of the federal Voting Rights Act, which prohibits a voting practice (including redistricting) that has the effect of harming minority voters. As for Texas, the question is whether the map has sufficient minority representation, and there has been a lot of litigation on that front; the Allen v. Milligan ruling kept lawsuits like this alive but it did not create new precedent to help plaintiffs.

Setting aside whatever official immunity a state actor might have, does an individual voter have a private right of action against someone else for interfering with the voter’s electoral rights? — curiousKat, from Texas

The courts have long agreed that there is a private right of action under the Voting Rights Act for an individual or group to sue a governmental entity for violating the law. But several lower courts, most prominently the Eighth Circuit Court of Appeals, have recently questioned that rule, spurred by a comment that Justice Neil Gorsuch made in a concurring opinion in Brnovich v. DNC in 2021. Contrary to all history and precedent, the Eighth Circuit ruled that only the federal Department of Justice can bring suit under Section 2 of the Voting Rights Act. (Editor’s note: Bolts reported on this and other emerging threats to the VRA in January.)

That issue might reach the U.S. Supreme Court soon, and if the court agrees with the Eighth Circuit, then it will be much harder to effectuate equal voting rights, as the Department of Justice does not have the resources to bring many cases. The bottom line: if the court agrees that there is no private right of action under Section 2 of the Voting Rights Act, then you will likely see many fewer lawsuits that challenge unfair voting rules, and states will have even further leeway to regulate their elections without meaningful judicial oversight. 

I’m wondering if the Supreme Court will revisit its 2015 decision upholding Arizona’s independent redistricting commission. It seems they now have the votes to end redistricting reforms by proposition. The cynic in me says they haven’t overturned it because Dems would benefit compared to the current system. — @controversycow, on Threads

(Editor’s note: Arizonans set up an independent redistricting commission through a ballot initiative; but this case argued that redistricting power belongs to lawmakers, and that the citizens-led initiative improperly wrestled it from the legislature. The court rejected that theory on a 5-4 vote.)

If new challenges emerge to these commissions, the votes are probably there to strike them down, though there are reasons to think the Supreme Court might not go that far. 

That Arizona case was 5-4 with Chief Justice John Roberts writing a vigorous dissent. Justice Anthony Kennedy was in the majority in that case and now Justice Brett Kavanaugh is in the seat. And, of course, Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg, who wrote the majority opinion in 2015. So it’s quite possible that the court could strike down independent redistricting commissions, at least for drawing congressional lines, saying that under the U.S. Constitution only the state “legislature” can engage in redistricting. 

That said, the court rejected a similar argument last year that only a state legislature can promulgate voting rules in Moore v. Harper, the case about the independent state legislature theory. That could be a saving grace for these initiative-created commissions: I could see enough justices refusing to go down the path of explicitly overturning both the Arizona Independent Redistricting Commission and Moore v. Harper decisions.

What can be done to bolster democracy?

In light of all the recent rulings striking down campaign finance rules, what can still be done legally to combat dark money in elections? — @sophieclw5, on Threads

The Supreme Court has still upheld disclosure requirements for campaign finance. In fact, in Citizens United, the 2010 case that I cover in chapter 5 of my book, the court voted 8-1 to uphold the disclosure requirements of federal law, with only Justice Clarence Thomas dissenting. So, I think both Congress and state legislatures could enact more robust disclosure rules. That would not stop the flow of money in campaigns, but it could close some of the loopholes that allow groups to hide behind fictitious names or organizations.

Of course, the political problem remains, in that Congress and many state legislatures do not have the political will to enact stronger disclosure rules.

Is there a path to restoring the VRA by invoking the 15th Amendment? — Donald, from Louisiana | Could Congress argue that Section 2 of the Fifteenth Amendment means that Congress’ judgment on voting rights supersedes court rulings (as long as Congress is acting to protect voting rights)? — @carlnyberg312, on BlueSky 

(Editor’s note: Section 1 of the 15th Amendment says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Section 2 adds: “The Congress shall have the power to enforce this article by appropriate legislation.”)

The problem with using the 15^th Amendment is that the Supreme Court has long said that plaintiffs must prove intentional discrimination to invoke that amendment. That is why Section 2 of the Voting Rights Act is more powerful: it prohibits both discriminatory intent and discriminatory impact or effect. Unless the court changes its case law on the Fifteenth Amendment, it is hard to use that provision to protect voting rights unless there is clear evidence of a discriminatory intent, which is difficult to prove. 

Section 2 of that Amendment authorizes Congress to act, but the court has also narrowly construed a similar provision of the Fourteenth Amendment to say that any federal legislation must be “congruent and proportional” to the harm Congress is trying to address, which is a restrictive standard.

If the U.S. Supreme Court is undermining voting rights, what are state supreme courts doing? What can they do? Wisconsin’s supreme court struck down gerrymandering last year, is that the solution? — Anonymous

State courts are a great source of stronger voting rights protection, especially given that state constitutions go much further than the U.S. Constitution in conferring and protecting the right to vote. Virtually all state constitutions explicitly grant the right to vote, and, as I’ve written in recent scholarship, state constitutions have several provisions that collectively elevate the status of voters. 

The key is for state courts to use those provisions and not simply follow U.S. Supreme Court case law. Some state courts have construed their state constitutions to be in “lockstep” with the U.S. Constitution and federal case law, meaning that they simply follow U.S. Supreme Court precedent even though their state constitutions go beyond the U.S. Constitution in protecting voters. In my view, that approach is wrong given the stronger protection for voters within state constitutions. That is, state courts should be more protective of voting rights.

Take the issue of gerrymandering: Several courts, such as the Pennsylvania Supreme Court and the Wisconsin Supreme Court, have gone beyond the U.S. Supreme Court’s refusal to address partisan gerrymandering by pointing to more specific language in their state constitutions. But other state courts have adopted the U.S. Supreme Court’s ruling in Rucho v. Common Cause that issues of partisan gerrymandering are not for the courts to resolve. If neither federal courts nor state courts will address partisan gerrymandering, however, then there are few outlets for voters to vindicate their right to a fair election.

The Roberts Court has been willing to negate laws and constitutional amendments. In light of that, what might be the most practical and effective steps that can be taken to protect voting rights nationally, so that it will protect voters in states that have become increasingly hostile to voting? — Firthermor, from Maryland

I think that the best path to securing stronger voting rights in the current climate—especially given restrictive rulings from the Supreme Court—is to focus on local, grassroots movements to expand voting opportunities. As I discuss in my 2019 book, Vote for US, there are many examples of individuals working in communities all over the country to make our elections more convenient, inclusive, and democratic. Many movements, including women’s suffrage, vote-by-mail, ranked choice voting, and others started at the local level and then spread to other places. 

For example, I love the efforts of the organization VoteRiders, which helps people obtain IDs so they can vote. Having a valid ID also assists them in so many other aspects of their lives. I am also impressed with a local group in my own community in Kentucky, CivicLex, which helps members of the community understand and engage with local government. [Full disclosure: I am a Board member of CivicLex.] The National Vote at Home Institute does great work in promoting expanded vote-by-mail policies.

The post How the Supreme Court Is Undermining Voting Rights: Your Questions Answered appeared first on Bolts.