Faced with eroding federal protections, some states have tried to shore up voting rights. They have passed their own voting rights acts, banned partisan gerrymandering, and expanded the franchise. But their efforts are facing legal challenges as well, this time from the right, raising fresh questions as to what strategies can most effectively strengthen democracy.

Heading into this new political era, Bolts has identified eight legal battles that are likely to shape voting rights in 2025.

These cases will affect election rules locally, from redistricting in Florida and Louisiana to the future of mail ballots in Mississippi and the fate of new protections in New York. But their effects will also ripple nationwide, as other states eye how they may further buttress or cut down on voting.

1. Will a redistricting case out of Louisiana weaken the VRA?

Conservatives are pursuing a multi-pronged attack to eliminate what is left of the Voting Rights Act. Since the U.S. Supreme Court struck down affirmative action in college admissions in 2023, conservatives have objected with renewed vigor to the longstanding approach of considering race in redistricting to create minority-majority districts, arguing that race-based districting is unconstitutional.

Their effort is coming to a head this year in a blockbuster Supreme Court case that is centered around Louisiana’s congressional map.

After the 2020 census, Louisiana legislators approved a new congressional map that included only one Black-majority district, stretching from Baton Rouge to New Orleans. A lawsuit countered that this map diluted the power of Black voters, and that the Voting Rights Act required two Black-majority districts. After lengthy proceedings, the Fifth Circuit of Appeals sided with plaintiffs in late 2023 and ordered that a new map be drawn by January 2024. 

The legislature abided by the ruling, creating a second majority-Black district that goes from Baton Rouge in central Louisiana to Shreveport in the far northwest corner. The district elected Cleo Fields, a Black Democrat, in November.

But a group of mostly white voters, who describe themselves as “non-African American,” now wants to throw the new map out. They claim the legislature impermissibly relied on race to draw the districts, violating the Fourteenth Amendment’s Equal Protection Clause. Two Trump-appointed judges ruled last year that the map was likely unconstitutional and struck it down, though the Supreme Court stepped in and allowed it to be used in the 2024 election. 

The Supreme Court will hold hearings on this case in the spring of 2025. The justices will decide whether Louisiana’s new map survives by the end of their session in late June.

Complicating matters: The state of Louisiana is ostensibly defending the new map, but voting rights advocates have accused the state of deliberately undermining its own case. Louisiana officials already raised eyebrows last year when they chose to draw a new majority-Black district that bore a striking resemblance to a district that was struck down in the 1990s. Civil rights groups had pushed for a more compact design they deemed legally safer, and they suspected Republicans had different intentions. 

If the Supreme Court sides with the plaintiffs, it could gut Section 2 of the VRA, which shields minority-majority districts. Or, the court may introduce new restrictions on factoring in race in redistricting. Even if it doesn’t strike down Section 2, this would raise a host of new questions about its implementation and the viability of minority-majority districts nationwide. In either case, it would spell major trouble for Cleo Fields’s future in Congress.

2. How will courts treat new state-level Voting Rights Acts?

As the U.S. Supreme Court has trimmed the federal VRA, some states have stepped in to pass VRAs of their own. Though details vary depending on the state, they frequently go much further than federal law in safeguarding fairness in redistricting and access to the ballot. 

But these laws have sparked conservative challenges of their own. Last fall, a superior court judge in New York struck down the state’s VRA, concluding that it violated the U.S. Constitution’s Equal Protection Clause.

The case is now working its way through New York’s appeals process, an important test of the viability of state VRAs as an alternative to the federal law. Other VRAs have fared better in their own state’s courts so far, but still more states have adopted these laws in recent years (including New Mexico in 2023 and Minnesota last year), creating new battlegrounds to watch. 

3. Will mail ballots still be afforded a grace period to arrive?

In 18 states, mail ballots can trickle into election offices after Election Day, as long as they’ve been postmarked by Election Day. The approach helps people vote by mail without needing to worry about possible delays in delivery, but it also lengthens election counts, and Republicans have accused it without evidence of facilitating voter fraud. 

In a bombshell ruling in October, a panel of conservative federal judges threw this longstanding practice into question. The case will continue in 2025 and possibly create new obstacles to mail voting.

The Republican National Committee and the Mississippi Republican Party last year challenged Mississippi’s rule, which allows ballots to arrive up to five days after Election Day, arguing that it conflicts with a federal law that sets the date of the election. Three Trump-appointed judges on the Fifth Circuit agreed. They ruled that “ballots must be both cast by voters and received by state officials” by the “day of the election,” though they did not apply their holding to the 2024 elections. Several voter groups have asked the full Fifth Circuit to hear the case; their appeal may end up in front of the U.S. Supreme Court, which could swat away the ruling. 

But the Supreme Court could also apply the rule nationwide, affecting all of the states that allow ballots to arrive after Election Day. This would risk disenfranchising thousands of voters. Administrative delays and errors in sending ballots out are common enough, and a requirement that ballots be received by Election Day would put voters at the mercy of how quickly the U.S. Postal Service operates. Trump has evoked the prospect of privatizing USPS, which could add further complications.

4. Will GOP states succeed at criminalizing voter assistance?

GOP-run states have passed new bans in recent years on civic organizations helping people vote. They’ve made it harder to provide assistance with registration, to fill out requests for mail ballots, and to collect filled-out ballots.

Just last year, Alabama adopted a law that imposes lengthy prison sentences on paid organizers who help people vote by mail. A new Missouri law similarly restricts assisting people with absentee ballots and with voter registration. And Florida barred non-citizens from assisting with voter registration efforts.

These bans on voter assistance now all face legal tests. All three suffered early defeats in 2024; the Florida and Alabama laws were suspended or struck down by a federal district court, and a state court judge blocked Missouri’s. But proponents of the bans have appealed to salvage the laws. These cases in 2025 will shape how similar restrictions evolve around the country.

5. Will lifetime disenfranchisement survive two lawsuits in Virginia?

Youngkin has made Virginia one of the harshest states in the nation when it comes to restoring the voting rights of people with criminal convictions. Two years ago, he rescinded policies put in place by his predecessors and brought back a lifetime ban on voting for anyone convicted of a felony. 

The ACLU of Virginia and other groups have filed an unusual lawsuit in response: They claim that Youngkin’s decision violates the Virginia Readmission Act, the Reconstruction-era federal law that allowed Virginia to rejoin the United States. In an effort to limit schemes to exclude Black residents, Congress in 1870 restricted the range of felonies that Virginia can use to strip people of the right to vote. Yet, Virginia today disenfranchises people who’ve been convicted of any felony whatsoever; the practice disproportionately affects Black Virginians.

The case is now poised to go to trial in federal court, after the Fourth Circuit greenlit the lawsuit in December. Jared Davidson, a co-counsel for the plaintiff, has said the case is a “milestone in terms of ensuring that the promises and guarantees of the Reconstruction Congress are finally fulfilled and honored by the state of Virginia.”

Virginia’s felony disenfranchisement rules are also the target of a separate lawsuit, this one brought by George Hawkins, a Virginian profiled by Bolts in 2023 who expected to regain his voting rights until Youngkin cut down his hopes. The lawsuit alleges that Virginia’s new rules violate the First Amendment. A district court ruled in favor of the state last year, and this case currently sits with the Fourth Circuit.

If courts strike down Virginia’s approach in either case this year, it may expand the franchise just in time for the state’s elections that will decide, among other offices, Youngkin’s successor. 

6. How will eligible voters be affected by measures targeting noncitizens?

Donald Trump and his allies have relentlessly spread the false claim that non-citizens are illegally voting in significant numbers in U.S. elections, and Republican state officials have taken a range of actions in response. Arizona and New Hampshire have passed laws requiring that voters provide proof of citizenship at the time of registration; the rule is tripping up many people who are citizens but lack the proper documentation. And in the final stretch of the 2024 election, several GOP-led states purged their voter rolls, claiming they were getting rid of alleged non-citizens. But the purges affected U.S. citizens who were eligible to vote. 

This issue is sure to keep grabbing legal headlines in 2025. 

Voting rights advocates have battled Arizona’s law for years, pointing out that the National Voter Registration Act, or NVRA, shields voters from needing to prove their citizenship. The Supreme Court last summer allowed parts of the law to be enforced in the 2024 elections, but the case remains alive in the Ninth Circuit. In September, voting rights advocates also filed a similar suit against the New Hampshire law. Should federal courts end up ruling that the NVRA authorizes proof-of-citizenship requirements, it may open the floodgate to similar laws in other states. Republicans in Congress have also signaled this will be a priority for them at the federal level.

And Virginia’s upcoming elections will be fought in the shadow of Governor Glenn Youngkin’s decision to order a big voter purge last summer. Youngkin issued his order 90 days before the presidential race, even though the NVRA bars “systematically” purging voters within 90 days of a federal election. A lawsuit to block his order saw some early success but, in a shock order, the U.S. Supreme Court intervened and allowed the purges to continue with no explanation. 

The case will still be heard in lower court to determine the legality of Youngkin’s purge. The result may set important precedent, not just for purges in other parts of the country, but also for how Youngkin himself acts in the lead-up to Virginia’s gubernatorial race in November.

7. Will courts allow noncitizens to vote in New York’s local elections?

Across the country, even as nativist rhetoric has amped up, some municipalities have gone in the opposite direction: They’ve allowed noncitizens to vote in local elections, with the idea of giving them a voice in the decisions closest to them. 

But conservatives have sued to stop these laws, arguing that they dilute the political power of citizens. Federal law does not prohibit allowing noncitizens to vote in local elections, so these lawsuits are usually playing out in state court. San Francisco, Washington, D.C, and multiple towns in Vermont have managed to implement this reform in recent years despite litigation to stop them. 

But with just months to go before New York City’s municipal elections this summer, this reform remains stuck in the country’s most populous city. The city council passed an ordinance to allow noncitizens to vote in its local elections in late 2021, but a local judge struck it down in the spring of 2022 and an appeals court affirmed that ruling last year. The city council has since appealed the decision to the state’s highest court, but there’s been no development since.

8. Will Florida judges destroy protections against gerrymandering?

Floridians in 2010 embraced redistricting reform. They approved two constitutional amendments that barred partisan and racial gerrymandering and set up other measures to force lawmakers to draw fair maps. After GOP lawmakers largely ignored those requirements, the state supreme court in 2015 struck down their maps for violating the 2010 measures. Significantly, this produced a new Black-majority congressional district that connected Tallahassee to Jacksonville in north Florida, which elected Democrat Al Lawson in 2016.

Urged on by Governor Ron DeSantis, Republicans in 2022 adopted new aggressive gerrymanders and eliminated Lawson’s seat. And this decade, the voting rights groups that are challenging the maps are faced with a judiciary that has veered sharply to the right during DeSantis’ tenure. This has left the Fair District Amendments on the brink of irrelevance.

The Florida Supreme Court heard a lawsuit against the state’s new congressional map in September. The plaintiffs argued that the state diluted Black political representation by eliminating the Black-majority district in North Florida, in violation of the 2010 amendments. “Under Florida precedent from last decade, this is an open and shut case,” Michael Li, a redistricting expert at the Brennan Center for Justice, told NPR at the time.

Instead, Chief Justice Carlos Muniz, a DeSantis appointee, raised the prospect that the 2010 Fair Districts Amendments might be unconstitutional altogether—and that the court might strike it down. 

While this court always appeared unlikely to strike down the legislature’s map, striking down the fair districting requirements entirely would be another matter. There would be no more protection against partisan gerrymandering in the Florida Constitution, allowing Republicans going forward to freely gerrymander without even the feeble threat of state court intervention.

Honorable mentions

There can be no exhaustive list of the challenges that await democracy in 2025, and there are plenty of other state-specific legal battles that are already brewing.

In the final days of 2024, North Carolina Republicans passed legislation that upended election administration, stripping the Democratic governor of his authority over election boards and transferring that power to an office held by a Republican; Democrats have signaled they will sue over these changes. Wisconsin awaits a supreme court decision on the fate of Meagan Wolfe, the state’s top election administrator whom Republicans hope to fire. And today, Pennsylvania’s supreme court said it will decide whether mail ballots that have not been dated should count; the state has a complex legal landscape when it comes to mail voting.

And the upcoming legislative sessions may create new sources of litigation if states pass laws that affect voting rights. For instance, an Idaho lawmaker just introduced legislation to make it harder to pass ballot instance; the state supreme court struck down a prior round of restrictions on direct democracy at the beginning of this decade.

The post On Voting Rights, Eight Legal Battles to Watch in 2025  appeared first on Bolts.

The result is a blow to the democracy organizations that have been combating gerrymandering in the state. They mobilized on behalf of Issue 1 after the lengthy legal standoff with Ohio Republicans in 2022, when the GOP, in a repeat of the prior decade, drew maps that locked in comfortable majorities for their candidates.

It’s also a repeat of two prior defeats for similar ballot measures that would have created independent commissions in both 2005 and 2012. 

“It’s incredibly sad, and it’s not clear to me what the next steps are to improve our democracy,” said Catherine Turcer, executive director of Common Cause, an organization that was part of the coalition that collected hundreds of thousands of signatures that qualify Issue 1 for the ballot. “Addressing gerrymandering is so much about holding elected officials accountable and creating fair districts and fair elections so that we can actually have a functional government.” 

As of publication, the measure is trailing by roughly eight percentage points, with some ballots remaining to be counted.

While several polls in October showed Issue 1 with very large leads, those surveys were simply asking voters if they wanted to create an independent redistricting commission. The official language Ohioans saw on their ballot was very different: GOP officials wrote an official summary that characterized the measure as requiring gerrymandering rather than restricting it. A rare poll that tested the official language found the race effectively tied.

Voters came forward during the early voting period in October to warn that they felt tricked by the GOP-crafted summary. Songgu Kwon, a comic book writer living near Athens, told Bolts that he meant to support the independent redistricting commission but mistakenly voted against Issue 1 after feeling confused in the voting booth. “I didn’t think that they would go so far as to just straight up lie and use a word that means one thing to describe something else,” he said. 

Other media outlets reported similar complaints from other voters who said they only realized after voting ‘no’ that they had meant to vote ‘yes.’ Turcer attributes Issue 1’s failure to the “incredibly deceptive ballot language,” telling Bolts, “elected officials were willing to do anything to stop Issue 1.” 

Opponents of Issue 1 defended the ballot language, with Secretary of State Frank LaRose, a Republican who drafted much of it, calling it an “honest explanation.” A spokesperson for Ohio Works, the committee that promoted the ‘no’ vote, said that, “If people go in and intend to vote for Issue 1, read the ballot language and vote no, they are not confused.” 

Issue 1 prevailed in Ohio’s urban centers, which are also the regions whose power the GOP’s gerrymanders have undercut, but it trailed in the more exurban and rural areas. 

Ohioans on the same day voted for Donald Trump for president, and the county-level results for Issue 1 broadly correlate with the presidential results, with more Republican areas opposing the proposed reform.

Aware that they had to persuade Ohioans who vote Republican in this red-leaning state, the ‘yes’ campaign made the case that stopping gerrymandering should not be a partisan issue.

“When you have a gerrymandered state, whether it’s Republicans or Democrats doing the gerrymandering, what you end up with is legislators who are not responsive to the citizens, and you end up with bad public policy, and it just holds your state back,” Chris Davey, a spokesperson for Citizens Not Politicians, the campaign for Issue 1, told Bolts.

One of the measure’s chief proponents was Maureen O’Connor, Ohio’s former Republican chief justice. O’Connor joined her Democratic colleagues on the state supreme court two years ago to strike down Republican-drawn maps seven separate times, but the GOP leaders ran out the clock until O’Connor retired in December of 2022 and her Republican replacement blessed gerrymanders. O’Connor also featured in advertising for Issue 1 this fall, telling voters that the measure “will restore power to where it belongs—with citizens, not politicians.”

But the state’s Republican leaders, including Governor Mike DeWine, rallied against Issue 1. The ‘no’ campaign appealed to Ohio’s overall red lean, making the case that the measure boiled down to an attempt by the Democratic Party to expand its influence on the state. “Don’t let Democrats rewrite the rules,” one ad for the ‘no’ campaign stated. “Protect Ohio’s voice!”

The ‘no’ campaign also emulated the ballot language in trying to turn the table on Issue 1, with yard signs and other messaging that proclaimed that a ‘no’ vote would “stop gerrymandering.” Opponents of Issue 1 made the case that it would erase constitutional protections against unfair maps that Ohioans approved in a 2015 referendum, but reform advocates complained that the Republican mapmakers basically ignored those criteria when they last redrew districts in 2022.

Issue 1 would have set up a new, 15-member panel made up of citizens selected from a pool of applicants; the body, tasked with redrawing the state’s maps, would have included five registered Republicans, five registered Democrats, and five people who are neither. 

This system would have broadly resembled similar commissions set up in states like Arizona, California, and Michigan, which adopted new redistricting processes through successful ballot initiatives. Most recently, in 2018, Michigan voters approved a constitutional amendment that set up an independent redistricting commission by an overwhelming majority, with 61 percent of the vote.

Instead, the failure of Ohio’s measure protects the status quo, which grants the authority to draw districts to a panel of elected officials, including the governor and secretary of state, plus appointees of legislative leaders. 

Going into Tuesday, Ohio’s congressional delegation has 10 Republicans and 5 Democrats. The state House is made up of 67 Republicans and 32 Democrats. And the state Senate is made up of 26 Republicans and 7 Democrats. 

These splits mask a deeper asymmetry in the current congressional map: All 10 of the GOP-held congressional districts are considered to be safely Republican, meaning that they pack so many voters who reliably vote for the GOP that Democrats are not expected to be able to compete there. By contrast, three of the five Democratic-held districts are competitive and winnable by the GOP. In fact, Democrats may lose one of the seats they hold on Tuesday, as the 9th District remains too close as of publication.

Issue 1 included a requirement that the state’s congressional and legislative maps closely mirror Ohio’s statewide partisan split. It likely would have resulted in maps that included at least one additional Democratic-leaning congressional seat, and at least a dozen additional Democratic-leaning legislative seats. This would not have guaranteed how each district votes on any election day, but it would have likely changed the composition of the legislature and House delegation. 

Turcer, of Common Cause, said she is not sure yet what comes next for her and other anti-gerrymandering advocates. “We need to regroup and figure out how we’re actually going to get the job done,” she said. “What I do know is that it is going to take time and effort, and we’re gonna have to be really thoughtful and strategic, and that means it’ll take time to figure out what our next steps are.”

But she also stressed she is determined to find a way to constrain gerrymandering to ensure that voters’ partisan preferences are better reflected in Congress and the legislature. “Their goal is to maximize their power, not to actually create fair elections,” she said of the state’s elected officials.

She added, “We all want to participate in meaningful elections. We don’t want to participate in theater.”

The post Ohioans Reject Redistricting Reform, Protecting GOP Gerrymanders appeared first on Bolts.

Utah lawmakers responded by rewriting if not gutting the three propositions. 

On redistricting, the GOP-led legislature repealed the measure’s centerpiece, a requirement that new maps be drawn by an independent commission. Freed from that constraint, lawmakers then proceeded in late 2021 to design a congressional map that eliminated the state’s only competitive district, “cracking” Salt Lake City into four to establish four reliably Republican seats. 

The Utah Supreme Court pushed back on Thursday, issuing a landmark and unanimous ruling that affirmed a vital right to direct democracy and restricted lawmakers’ ability to ignore that power. 

“We hold that when Utahns exercise their right to reform the government through a citizen initiative, their exercise of these rights is protected from government infringement,” Justice Paige Petersen wrote in her opinion.

The ruling comes with many limitations and caveats. It does not by itself strike down the GOP’s gerrymandered maps, which remain in use for now. It does not shield initiatives from all rollback. It doesn’t even apply to all ballot measures, just those that “reform the government.” Still, it gave Utahns a new tool to challenge legislators who disregard their initiatives. 

Until now, the legislature could do virtually whatever it wanted in response to citizen measures. Lawmakers will now face a tougher test when they try to modify measures that deal with government rules and structures, and organizers may feel greater confidence that the statutes they jumpstart have at least some protection.

“This is a historic ruling,” said Ben Phillips, a lawyer with Campaign Legal Center who took part in the case on behalf of plaintiffs. “The legislature cannot, in any way it wants, just repeal any initiative that the people pass.” This is the first time the court addressed whether Utahns have a basic right to change their government, Phillips explained, and it held that giving lawmakers carte blanche to override ballot measures “would render that fundamental right meaningless.”

The ruling comes as some GOP-led states like Arkansas and Idaho have pursued aggressive efforts to narrow the scope of direct democracy. New laws have made it harder to get initiatives on the ballot. Statewide officials have resisted routine steps to stall the process. And lawmakers have tried to raise the threshold for passage, while circumventing some successful measures.

In response, some proponents of the initiative process have turned to state constitutions to protect direct democracy. Many constitutions contain provisions that pertain to access to ballot initiatives, but many state courts have taken a narrow view of them. Mississippi justices even struck down the initiative process altogether in 2021. Idaho’s supreme court took a different path the same year, striking down a new Republican law that had restricted ballot measures in a decision that affirmed “the people’s fundamental right to legislate directly.”

As a result, organizations like Reclaim Idaho, whose success in pushing progressive measures like Medicaid expansion has angered GOP lawmakers in the state, have been able to place new measures on the ballot. Idahoans in November will decide on an initiative, again supported by Reclaim Idaho, that would move the state to a ranked-choice voting system. 

In Utah, voting rights groups reacted with anger to lawmakers’ ignoring Proposition 4, the 2018 initiative on redistricting. “When the Legislature did indeed do what they wanted anyway, they confirmed the beliefs of the discouraged, the cynical, all the people who believe their votes and their opinions don’t matter,” Catherine Weller, then president of the League of Women Voters of Utah, said in early 2022.

Several groups, including the League of Women Voters, filed a lawsuit that year against the new map. They argued that the new districts were an unconstitutional partisan gerrymander; other state supreme courts have recognized partisan-gerrymandering claims, even as the U.S. Supreme Court has refused to. But these groups also raised another claim: that it was unconstitutional for lawmakers to just gut the 2018 redistricting initiative.

They rooted their claim in Article I, Section 2, of the Utah Constitution, which states that “the people” have “the right to alter or reform their government as the public welfare may require.” The lawsuit argued that, in passing a statute to set up a new redistricting process, voters exercised their power to “alter or reform their government,” and that the legislature violated that right when it repealed the powers of the independent redistricting commission.

The state supreme court agreed with the plaintiffs’ argument that Utahns have a right to “alter or reform their government.” Peterson wrote that “government-reform initiatives are constitutionally protected from unfettered legislative amendment, repeal, or replacement.”

While the ruling was immediately celebrated by voting rights groups, it also left much unresolved.

For one, the decision doesn’t protect all initiatives, only those that concern “government reform.” What exactly falls under that purview will likely be the subject of future litigation. Even then, the court said that lawmakers retain the power to change citizen initiatives; but changes cannot “impair the reforms” unless that impairment is “narrowly tailored to advance a compelling government interest.” 

This test, known as “strict scrutiny,” is generally difficult to meet. Still, whether changes are “narrowly tailored,” and whether lawmakers’ interest is “compelling,” is left to courts to decide.

The court did not even say whether Senate Bill 200—the specific legislation at issue in this case, with which lawmakers gutted Prop 4 and ended independent redistricting reform—crossed that line. It affirmed the people’s protected right to reform their government, but it did not provide any answer as to whether the GOP’s decision to gut the redistricting initiative violated that right.

Instead, they sent the case back to the trial court to hear arguments on that point, a process that will take a lot of additional time. (They also did not address whether the Utah Constitution bans partisan gerrymandering.)

The court has already drawn scrutiny for how long this case has dragged on: It heard arguments in July 2023 and waited roughly a year to issue a ruling. 

The delay, and their decision to send the case back to a district court, guarantees that the state will again elect its members of Congress this year under the same maps as in 2022, despite the allegation that they were unconstitutionally drawn. 

Still, if the lower court finds that Utah lawmakers lacked a “compelling government interest” in gutting the 2018 redistricting reform, it may end up reinstating that proposition, and the state’s maps would have to be redrawn in advance of the 2026 elections. 

There’d need to be plenty of additional litigation before any new districts are ordered. But on Thursday at least, advocates were hopeful that the court’s ruling would bring back redistricting reform and lead to fairer maps. 

Phillips, the Campaign Legal Center attorney, thinks the plaintiffs will win again in district court. He believes that a judge will find that GOP lawmakers’ law gutting Prop 4 fails strict scrutiny and reinstate the independent commission. “No matter what compelling interest [lawmakers] assert, it’s hard to imagine that completely gutting Prop 4 would be narrowly tailored,” he said. “The ruling is an important step in ensuring that Prop 4 is back in effect, with all of its provisions for independent redistricting.”

He added, “The bottom line is that we overcame an important hurdle on the way to fair maps.”

The post Utah’s Highest Court Safeguards the People’s Right to Direct Democracy appeared first on Bolts.

The proposed reform would have ended what is known as prison gerrymandering, which distorts census counts by inflating population totals where prisons are located—typically rural, politically conservative areas—and lowering them in the places prisoners come from, disproportionately communities of color in urban centers. But Minnesota lawmakers rejected the change in 2010, which, as ever, gave extra political clout to prison communities. After that year’s redistricting cycle, the Prison Policy Initiative found that at least five county and municipal districts in the state had their populations inflated by at least 16 percent, by counting state prisoners, who cannot vote, as local residents.

Minnesota lawmakers again considered fixing this ahead of the 2020 redistricting cycle, and again failed to approve two different legislative proposals, leaving the skewed counts intact on its current political maps. By that cycle, prison gerrymandering bans had become more common, with more than a dozen states adopting reforms in time to affect maps redrawn after the 2020 census. (In addition to states that ended prison gerrymandering in time for the 2020 cycle, Maine and Illinois have also passed bans that will apply for the first time during the 2030 cycle.)

After 14 years of deliberation, Minnesota finally got on board last week: Democratic Governor Tim Walz signed into law a ban on prison gerrymandering in the state. The reform is part of an omnibus elections finance and policy bill that contains other provisions meant to protect voting rights and expand ballot access in general.

Unlike in the immediate leadup to the 2010 and 2020 censuses, when no party enjoyed full control of the state government in Minnesota, Democrats now have a legislative trifecta in the state thanks to their gains in the 2022 midterms, which they’ve already used to reverse the political exclusion of some Minnesotans with criminal convictions. They needed every bit of that power to get this new reform passed: The omnibus bill cleared the state Senate on a party-line 34-33 vote, and passed the state House by a vote of 69-62, with every Democratic member, plus one Republican, in support.  

“We wanted to pass it now, just to make sure that we could be ready for 2030,” Democratic state Representative Esther Agbaje, who championed the prison gerrymandering ban, told Bolts. “This gives time for our secretary of state office and for our counties to get ready to do that count.”

The secretary of state and top Minnesota elections official, Democrat Steve Simon, was appreciative that lawmakers gave the state a long runway to implement the change: “I really am glad this is under consideration now, in a year ending in four,” he told a state legislative committee in March. “When you start talking about redistricting issues in years that end in eight, nine, or zero, it tends to get more political.” 

In terms of raw numbers, the impact of this reform can appear marginal: Minnesota has a population of almost 6 million people, of which some 8,000, or 0.1 percent, are incarcerated in state prisons. Minnesota’s move will apply to local, state, and congressional redistricting, and, in that latter category, the shift in political power will be especially small; U.S. House districts each represent close to a million people.

At the state level, however, the change is easier to spot. The Prison Policy Initiative, which publishes research on and advocates against prison gerrymandering, reports that three different Minnesota state legislative districts count prisoners for at least 4 percent of their populations.

The distortion of prison gerrymandering can be particularly stark at the local level. PPI reported that in 2013, one district in Waseca, a small Minnesota town with a state prison, counted prisoners for 35 percent of its population. 

PPI spokesperson Mike Wessler told Bolts that elsewhere in the country, incarcerated people who cannot vote comprise up to 13 percent of the population in state legislative districts. In some local jurisdictions with prisons, he said, incarcerated people count for up to 80 percent of the population.

Skewing census counts in this way, Wessler argued, “creates a pretty twisted incentive for the people who represent prisons in the legislature to keep those prisons and prison communities full, and maybe even make them fuller. The fuller they are, the louder voice those communities have in government.”

In states with prison gerrymandering, this boosting of political power in prison communities dilutes representation in many of the places where higher portions of the population are incarcerated. Data show people rarely are incarcerated in their home communities, and that holds true for many Minnesotans: The Twin Cities metro is home to some 60 percent of Minnesotans, but several of the largest state prisons are located in small towns far from that area. 

The geographic skew most acutely affects Black Minnesotans, who comprise about 7 percent of the state population and 35 percent of its prison population. The vast majority of Minnesota’s Black population calls the Twin Cities area home.

“These prisons are often built way out in the rural communities, and the very communities where harm may have happened are harmed yet again,” Elizer Darris, an advocate for criminal justice reform, who previously served time in multiple Minnesota prisons, told Bolts. “You leave the pain here, but you put the dollars there. It’s very undemocratic and predatory.”

Darris was closely involved in a 2023 Democrat-led reform in Minnesota to restore voting rights to about 50,000 people serving terms of parole or probation. But imprisoned Minnesotans still cannot vote, and that reality, along with prison gerrymandering, has left politicians who represent prison communities with little reason to view incarcerated people as constituents, Darris says.

“It kind of has hallmarks back to the three-fifths Compromise,” he added. “Despite the fact that we weren’t able to vote, our bodies were being counted.”

He recalled his time incarcerated at the Stillwater prison on the outskirts of the Twin Cities area. It was punishingly hot inside that prison, he said, and so he reached out to local officials about the problem.

“The walls were sweating,” Darris said, “The representatives never represented us. There were plenty of times I wrote to the local state rep or the mayor, and absolutely none of them ever intervened. They did not see themselves as representing us despite the fact that the prison was inside their community, and the issues we were complaining about were in their community.”

Annastacia Belladonna-Carrera, director of the Minnesota branch of the national advocacy organization Common Cause, told Bolts that previous efforts to end prison gerrymandering failed because politicians from both major parties were glad to keep counting prisoners in their districts, even if those politicians made little effort to represent prisoner interests.

“Power doesn’t like to give up power easily,” she said, reflecting on why this reform struggled for so long in Minnesota. “The resistance came from people who asked why we’d need to reform something that works. My question is: Who does it work for? It may work for the political parties, but not for constituents.” 

This argument is evidently an easier sell in states where Democrats hold power. Save for Montana, no red state has yet adopted a reform similar to Minnesota’s, which leaves prison gerrymandering intact in most of the country. 

Wessler told Bolts that the U.S. Census Bureau could end these state-level debates by changing its policy of counting people in prison as residents of the facilities in which they are held. The agency has so far declined to do that, though it has blessed the efforts of individual states that want to undo prison gerrymandering, and has even published data to help facilitate those changes. 

Absent federal action, the project of dismantling prison gerrymandering remains incremental.

Agbaje, the Minnesota lawmaker who sponsored this year’s reform, said she hopes the change her state has made will encourage government officials to rethink how they view people held in custody. 

“You shouldn’t be counted where you lay your head, as a prisoner. You’re there involuntarily,” she said. “I think this really with our efforts to make sure that people look at prisoners, and the formerly incarcerated, as whole people.”

The post Minnesota Just Became The Latest State to Eliminate Prison Gerrymandering 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.

Practitioners like Pernick need to go town by town, village by village, collecting and cleaning data themselves, often spending hundreds of hours on mundane tasks just to get this basic information. That is, if local election offices are even willing to provide it in the first place. 

School districts across New York are especially prone to discrimination because they often use at-large voting systems that can marginalize residents of color, Pernick explained. But the lack of accessible data poses obstacles to investigating them. “There’s something like 700 school districts across New York and the only way to do an analysis of those school districts is to go one-at-a-time and send an open records request to each one,” Pernick told Bolts. “There could be confusion and delay in responding to requests that could push back even the beginning of an investigation by months.” 

“Because of these challenges in identifying and gathering data, we knew that in some jurisdictions where there is racial discrimination in voting, it would be difficult or even impossible to prove it,” he added. 

Perry Grossman, director of voting rights at the New York Civil Liberties Union, shares Pernick’s frustration at the countless hours his team has poured into data gathering, often dealing with resistant or unresponsive local offices. “I shouldn’t have to threaten to sue counties to get this data,” he said.

The New York Senate passed legislation in January that would mandate a centralized state election database that anyone could access. But the bill has since languished in the Assembly, leaving its champions anxious that the problems may endure well past the next round of elections this fall. 

And the problem extends far beyond New York. Precinct-level election data underpins a world of election analyses. It’s a foundation for Voting Rights Act lawsuits throughout the country. Proving how badly maps are gerrymandered is impossible without this data, since it’s needed to assess districts’ partisanship. It’s also used to make all sorts of maps, graphics and tools of neighborhood partisan trends. And combining precinct partisanship data with demographic, geographic and income data is used to address a wide range of political science questions, including showing that voter fraud claims in the 2020 election were unfounded. 

Yet there is no entity in the United States that records election returns or maintains boundary maps for the country’s 180,000 precincts. Many states don’t even provide this data for the full collection of precincts within their borders. Instead, universities, newsrooms, nonprofits and volunteers collectively spend thousands of hours after every major election gathering it themselves. 

It’s a Herculean task for organizations that are often short on time and resources, and leaves the people who need precinct data at the mercy of individual county or local election offices whose data quality varies drastically. It also burdens underfunded election officials who are inundated with repeated requests for the same data. 

Some states make this process a lot easier than others. For example, Minnesota’s secretary of state’s office posts the entire state’s precinct-level election results together on its website; it also provides digital maps of precinct boundaries, called shapefiles. 

The variation between states was captured in dramatic visual form in a project published by The New York Times after the 2020 election. A team of journalists, data scientists, and developers set out to produce a map of U.S. precincts, color-coded by how each voted. 

Four states on the map—Alabama, Alaska, Louisiana, and Virginia—are completely blank, as are large swaths of Idaho, Kentucky, and Missouri.

It took The Times three months of full-time data and software development work to assemble the data after the election, plus months of preparation ahead of election night, according to Miles Watkins, who helped manage the project. “As of when we published the nationwide map, I feel pretty confident that we were using every single piece of open data or FOIA-able information that we could,” he told Bolts. But even with that effort, one of the best-staffed publications in the nation wasn’t able to obtain the data to complete the map. 

Ultimately, over 10 percent of all votes cast in the election weren’t pictured in the map.

One problem that proved intractable was that some counties report a combination of their mail-in, early, and provisional ballots as one lump total, rather than distributing them based on where voters reside at the precinct-level. This practice prevents analyses of voting patterns at a more granular level, as was the case in the four completely blank states in The Times’ map.

Zach Mahafza, an analyst at the Southern Poverty Law Center who investigates voting rights violations in the South, says this lack of precinct data often stalls his efforts. In 2021, he was part of a team looking into the city council map of Mobile, Alabama. The 2020 Census showed that Mobile was majority-Black. But  there were only three majority-Black districts in their seven-district city council map. Stand Up Mobile, a local voting rights organization, enlisted Mahafza and the SPLC to see whether a new council map could be drawn with at least four majority-Black districts where Black residents would have a meaningful opportunity to elect their preferred candidate. They needed precinct level election returns and precinct maps for the project.

The city of Mobile provided maps in PDF format, forcing Mahafza to jump through various hoops to extract reliable data. “We’d have a zoom-in of this precinct in the northern part of the city, and another precinct in the southern part of the city and trying to weave all that back together got very difficult,” he said. He estimated that recreating the city’s maps took him 80 to 85 hours.

Ultimately Mahafza’s team showed that it was indeed possible to draw such a map; they warned local leaders that they may violate the VRA if they failed to ensure that Black voters were fairly represented when they redistricted the map. The city eventually adopted a map that has four districts with voting age populations that are over 53 percent Black.

To show that a map or election system violates the VRA’s ban on racial discrimination, plaintiffs must demonstrate several features about their jurisdiction, including racial polarization among voters; that is, whether different racial groups actually prefer different candidates. Practitioners conduct these analyses by looking at the demographic makeup and election returns of individual precincts and inferring the voting preferences of different populations. “If you don’t have precinct-level election returns, you have no way to show racially polarized voting,” Ruth Greenwood, director of the Election Law Clinic at Harvard Law School, told Bolts.

“We couldn’t enforce the federal or any state voting rights act if we didn’t have precinct-level data,” Greenwood added.

In the absence of centralized information, a number of organizations have cropped up to fill the gap. OpenElections, a volunteer group of journalists and software developers, the Voting and Election Science Team from the University of Florida and Wichita State University, the Redistricting Data Hub and the MIT Election Lab have all poured resources into collecting, standardizing and publishing precinct-level election results or compiling precinct shapefile maps. 

After the 2020 presidential election, while The Times was embarking on their nationwide precinct map, the MIT Election Lab set out to make its own database of the country’s precinct results. It took a dozen computer scientists and political scientists nearly two years to complete this project—just in time to start over again after the 2022 midterms. Only about 10 states had data organized enough to put in their database without much work. For the remaining states, they wrote code to clean data, called county offices to get returns that weren’t posted online, used Optical Character Recognition software to read election returns from PDF files and other images and designed quality control processes to check their work. 

They even found the precinct-level results of a recount in Idaho’s Bonner County from a newspaper picture of numbers written on a whiteboard, recalled Samuel Baltz, a research scientist in the group. 

Tired of hitting a wall after every election cycle, some researchers and lawyers are pushing for reform, demanding that states clean up and post complete precinct-level data in accessible formats.

In early 2018, Kansas data scientist Peter Karman emailed his state representative, Boog Highberger, with just such a proposal. He had just spent months trying to compile the state’s precinct data by calling county offices, wrangling it out of PDF files and tediously matching precinct names between digital maps and spreadsheets. He thought the Kansas secretary of state’s office should be required to publish the data on its website. 

Highberger initiated a bill to address these issues, and Karman provided testimony in both chambers. He even included requests for data formatting: “publish the spreadsheet as a spreadsheet, not as a picture of a spreadsheet,” he implored. Within four months, Karman stood by as Governor Jeff Colyer signed legislation that required the secretary of state’s office to post precinct-level data on its website for all federal, statewide, and legislative races within 30 days of the final election canvass. 

More recently, Connecticut mandated a statewide elections database as part of its new Voting Rights Act; the broader legislation is part of a multistate effort to reproduce voting rights protections that federal courts have eroded. Pernick, the Legal Defense Fund lawyer, said the law’s database component was modeled after the legislative proposal in New York.

The New York bill, which Pernick and Grossman helped draft, would establish a statewide database that would house centralized election data and shapefiles for the entire state, down to the precinct level. Sponsored by Senator Zellnor Myrie, the proposal first passed the Senate in 2022, but didn’t receive a hearing in the state Assembly by the end of that legislative session. 

The reform’s latest version, Senate Bill S657A, is in danger of suffering the same fate, having passed the state’s upper-chamber in January but now stuck again in the House Election Law Committee. The committee is chaired by Latrice Walker, who is also a sponsor of the bill. Myrie and Walker did not return a request for comment. 

In the meantime, people who want New York precinct data have been left to their own devices, compiling the data on their own. Ben Rosenblatt, an independent New York political consultant who has worked on Democratic campaigns in the state, decided to cobble together a statewide precinct shapefile in 2022. He posted his progress on Twitter as he went, announcing it was complete in December 2023 after a year of gathering and cleaning data from each of New York’s 62 counties. The Times’ 2020 mapping project cites Rosenblatt’s work as its only New York data source.

“I’m trying to do it again this year for 2024,” Rosenblatt told Bolts.

Bills with similar provisions have been introduced in Michigan and New Jersey. Florida’s and Maryland’s versions did not move forward by the end of this year’s legislative sessions.

If this type of regulation existed in every state, with each state cleaning and posting their own precinct data in accessible formats, the resources spent on this task by outside groups would change drastically, if not cease altogether. 

Bolts asked Watkins how long his team would have needed to complete the data for The Times’ mapping project under these conditions. It probably would have taken “a few days,” he said. He paused to reflect and then added, “Maybe one week.”

The post Election Data Is Vital to Voting Rights. So Why Is It So Hard to Track Down? appeared first on Bolts.

“The court didn’t make it any easier to win voting rights cases,” redistricting expert Justin Levitt told Bolts at the time. “It just declined to make it much, much, much, much, much, much harder.”

But the reprieve may have been temporary, and winning voting rights cases may still get much harder this year. A series of cases are working their way through federal courts that represent grave threats to Section 2 of the VRA, which prohibits denying the right to vote “on account or race or color,” language that extends into protection against racial gerrymandering. 

In these cases, conservatives are trying out a suite of new legal arguments, each of which would dramatically narrow the scope of the VRA. The cases are still making their way through district and appellate courts, with some early rulings favoring conservatives, at times authored by judges nominated by Donald Trump. Many are expected to end up at the Supreme Court, where members of the conservative majority have already expressed skepticism at various aspects of the VRA. 

Judges will decide if critical protections afforded by Section 2 of the VRA remain applicable to the present, whether the law applies to statewide races and coalition districts, and even whether voting rights groups can ever bring a lawsuit under Section 2—a sleeper case that already detonated in an appeals court last fall. The most acute stakes concern the rules of redistricting, with officials in GOP-run states including Alabama, Arkansas, Louisiana, North Dakota, and Texas proposing new interpretations that would fuel gerrymandering and undercut the voting power of communities of color. 

Here is your roadmap to four major legal threats that may further unravel the VRA in 2024, and what cases you should be watching.

1. What if private plaintiffs can no longer sue?

What is the threat to the VRA?

For decades, ordinary citizens and voting-rights organizations have brought lawsuits alleging VRA violations. These lawsuits, and the mountain of legal work and research that goes into them, have been critical to getting courts to strike down discriminatory legislation and create districts that allow communities of color to be represented by candidates of their choice.

In what’s undoubtedly the biggest threat facing the VRA, federal courts might invalidate that entire approach. Conservatives have made the case that only the U.S. Attorney General has the power to sue over violations of Section 2 of the VRA, and they landed a startling ruling by a district court judge last year. If the ruling stands, it would ban private parties from bringing these lawsuits, massively shrinking enforcement; when the Department of Justice is controlled by politicians hostile to civil rights, it may eliminate these VRA lawsuits altogether. 

What are the cases to watch?

Keep an eye on Arkansas State Conference NAACP v. Arkansas Board of Apportionment, the challenge to Arkansas’s state legislative districts. 

After Arkansas Republicans drew new legislative maps in 2021, the state NAACP sued in federal court, arguing that Black Arkansans were underrepresented, and that this violated Section 2 of the VRA. But the district court judge who heard the case, Trump-appointee Lee Rudofsky, questioned whether the NAACP was even allowed to bring suit at all. 

It’s been a long-established practice for private parties to sue over Section 2 allegations. But Justices Neil Gorsuch and Clarence Thomas encouraged that question to be revisited in a 2021 concurrence, stating that courts have “assumed” that this is appropriate without ever deciding it. Walking into that breach, with an explicit appeal to Gorsuch, Rudofsky ended up dismissing the suit with a bombshell finding: “Only the Attorney General of the United States can bring a case like this one.” 

In November, a three-judge panel on the Eighth Circuit, one of the most conservative appellate courts in the country, affirmed that ruling in a decision authored by Eighth Circuit Judge David Stras.

If the ruling holds—the NAACP has asked the full Eighth Circuit to reconsider the decision, and an appeal to the U.S. Supreme Court is likely regardless—it would be sure to sideline a great many VRA cases. Besides the Arkansas litigation, high-profile cases last year that led to new maps in Alabama and Louisiana were brought by private plaintiffs, and would have been dismissed outright under Stras’ ruling.

The GOP has rushed to defend the holding and use it in other contexts. In December, the Republican attorneys general of twelve states (including Idaho’s Raul Labrador, Kansas’ Kris Kobach, and Texas’ Ken Paxton, all prominent far-right figures) signed on to an amicus brief asking the Fifth Circuit to take on the Eighth Circuit’s interpretation and rule against voting rights groups in the ongoing litigation around Alabama’s congressional map.

And in North Dakota, a state that falls within the Eighth Circuit, the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe successfully challenged legislative districts in 2023 for diminishing the voting power of Native voters. State officials have agreed to use a replacement map for the 2024 election but have appealed the use of the map beyond that point. And in pushing back against the ruling last month, North Dakota’s Republican Secretary of State, Michael Howe, has already invoked the same argument that private parties cannot bring suits under Section 2 of the VRA, an argument that would outright silence the legal power of the two tribes that challenged the state.

2. The conservative case that times have changed

What is the threat to the VRA?

When the Supreme Court in 2013 struck down Section 5 of the VRA, which required certain jurisdictions to seek D.O.J. approval before changing their voting procedures, Chief Justice John Roberts wrote that “things have changed dramatically” in the South since 1965.

Some conservatives want federal courts to go even further, and dramatically re-interpret Section 2 on that same basis. And Justice Brett Kavanaugh last year gave them a reason to keep trying, doing so in the very same Alabama case in which he sided with the liberal justices to otherwise save the VRA. He noted that Justice Clarence Thomas’s dissenting opinion in the case argued that “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” But Kavanaugh wrote that “Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.” The time may now be coming that’ll test Kavanaugh: Despite the massive barriers that people of color continue to face in exercising the franchise, multiple cases are working their way through the legal system in which defendants are renewing the argument that “things have changed” too much to keep enforcing Section 2.

What are the cases to watch?

Keep an eye on Milligan v. Allen, the continued litigation over Alabama’s congressional map, and Robinson v. Landry, the challenge to Louisiana’s congressional map 

Alabama this year will vote under a new congressional map that a federal court drew in late 2023 to create an additional district likely to elect a Black candidate. State officials have objected to the new map, and in so doing they’ve picked up on Kavanaugh’s argument: Alabama is asking courts to decide whether “the authority to conduct race-based redistricting extends to the present day,” regardless of its original justification. 

Louisiana officials have made a similar claim in their effort to fight court rulings that have struck down the state’s congressional maps as violating the VRA. (Louisiana adopted a new map creating a new majority-Black district this month due to a court-ordered deadline, but the litigation over that order continues.) 

Alabama has called the litigation against its original map “affirmative action in redistricting.” In 2023, the U.S. Supreme Court in 2023 struck down affirmative action in university admissions, and even though that case did not touch on voting rights, GOP officials in several states have weaponized the case to argue that the VRA is no longer applicable to the present.

In July, Louisiana officials filed a brief arguing that the affirmative action decision shows that “statutes requiring race-based classification” will “necessarily become obsolete.” They ask courts to settle “whether the facts on the ground here similarly warrant a rejection of Section 2 of the VRA, as applied, because it is no longer necessary.”

If the Fifth Circuit and the Supreme Court take the bait and say the established interpretation of Section 2 as no longer permissible, it would greatly narrow the legal space for racial discrimination claims.

It would amount to a judicial carte blanche for states to double down on discriminatory practices, except now shielded by the argument that the country is too enlightened to allow such practices.

3. Courts may shut the door to sue over statewide elections

What is the threat to the VRA?

Legal challenges often focus on how politicians have drawn districts: Have they respected the VRA in how they’ve separated or combined a state’s communities? But civil rights litigants have also contested the use of “at-large” elections, which are elections that elect the members of a body (say, a city council) throughout the jurisdiction, without the use of districts. Using this “at-large” structure for local races can prevent minority groups from electing a candidate of their choice; in some contexts, lawsuits have successfully forced counties and cities to convert their electoral system to use districts, allowing different communities to be better represented.

A case that’s percolating through the federal court system may decide whether similar lawsuits can ever be brought in the context of statewide elections. If that door is shut, it would put many government bodies whose members are elected at-large—most commonly, public utility commissions, boards of university regents, or boards of education—beyond the reach of VRA litigation.

What is the case to watch?

Keep an eye on Rose v. Raffensperger, the challenge to Georgia’s public service commission elections. 

In 2020, several Georgia voters sued over the use of statewide (“at-large”) elections for the five members of the state’s Public Service Commission, the body that regulates public utilities. They argued that a compact, Black-majority district could be created to elect a member of the Commission; a district court agreed after a trial, and ordered the state legislature to draw districts to that effect. But the state’s decision to appeal dragged out the process, leading to canceled elections. And in November, in a ruling authored by Judge Elizabeth Branch, another Trump appointee, a three-judge panel on the Eleventh Circuit reversed that decision. The panel held that the plaintiffs had not made out a sufficient claim under the VRA because their proposed remedy would “upset Georgia’s policy interests,” specifically, its “interest in maintaining its form of government.” In other words, because the Georgia legislature decided to make the Public Service Commission elected statewide, the court was obligated to respect that decision.

The ultimate resolution of this case will shape the viability of a lot of prospective litigation. This is believed to be the first case challenging the use of a statewide electoral system, so the district court’s decision had opened the door to similar challenges popping up elsewhere. If lawsuits like this can be brought against the use of statewide elections to pick members of state boards, voters may be able to target other elected state institutions whose “at large” membership is largely or all-white—Alabama’s Public Service Commission and Texas’s Railroad Commission come to mind—with the demand that they replace statewide elections with a system that providing communities of color a better opportunity to elect a member. 

If these challenges can’t be brought, however, communities of color may keep being systematically shut out with impunity.

4. The use of “coalition districts” is under threat

What is the threat to the VRA?

The VRA may compel states or localities to create districts that give voters in a racial group the opportunity to elect a candidate of their choice. In deciding whether such a district is required, federal courts assess whether a specific group’s size and voting behavior warrant such an opportunity district. But what happens when no single racial group is large enough to reach that threshold, but several do so when combined? 

In that context, some federal courts have required the creation of “coalition” districts, a practice that has boosted representation for people of color. For instance, they may consider Black and Latinx residents together to force the creation of a district in which voters would have a better shot at electing a nonwhite candidate. A case out of Texas is now threatening this practice, however. 

What are the cases to watch?

Keep an eye on Petteway v. Galveston County, the challenge to county commission districts in Galveston County, Texas. 

Following the 2020 census, Galveston County commissioners drew a new set of districts for their county commission; their map eliminated the county’s only “majority-minority” district—a coalition district in which Black and Latino voters make up a majority. Backed by conservative legal groups, the county argued during a trial last year that the VRA should not be used to protect multiracial coalitions; but a federal court sided with plaintiffs in restoring the district. Judge Jeffrey Brown, who was nominated by Trump, even wrote that the “circumstances and effect of the enacted plan were mean-spirited and egregious.”

But the conservative Fifth Circuit chose to suspend the decision until it could decide the county’s appeal, and the U.S. Supreme Court blessed that move in December over the objections of liberal justices. The appeals court made clear that it wanted to revisit its past decisions that have endorsed the use of coalition districts.

The case may hand conservative justices another shot at upending the redistricting norms, if they choose to weigh in for the first time on the permissibility of coalition districts. If coalition districts are no longer used as a remedy to racial discrimination, it may further cut the number of districts drawn to elect people of color; in racially diverse regions like Texas, it would make it harder to challenge maps that are resulting in a disproportionate number of white officials.

Some of these questions are playing out in Georgia. A federal court last year struck down the state’s congressional map, ordering an additional Black opportunity district. The legislature responded by carving up an existing coalition district and turning it into a Black majority district. The challengers have argued, unsuccessfully so far, that this is impermissible: that fixing a VRA violation cannot involve eliminating an existing coalition district.

The post Your Guide to Four Emerging Threats to the Voting Rights Act appeared first on Bolts.

Conservative justices on the U.S. Supreme Court ruled in 2019 that federal judges could not entertain complaints of partisan gerrymandering. In its landmark 5-4 decision Rucho v. Common Cause, the court said that it’s not for federal courts to decide whether an election map is designed to give one party an illegal advantage. But Chief Justice John Roberts assured plaintiffs that his decision does not leave them powerless to stop partisan gerrymandering since they still have a path for litigation: state courts.

The Rucho decision did not “condemn complaints about districting to echo into a void,” Roberts wrote, since states “are actively addressing the issue on a number of fronts.” 

New Hampshire last week became the latest state to show the promise was largely illusory. 

Its state supreme court ruled that it couldn’t consider whether the state’s election maps are illegal partisan gerrymanders because that’s not something that state judges should be deciding either. The 3-2 decision—with the three judges appointed by Republican Governor Chris Sununu in the majority—left in place the GOP gerrymanders signed into law by Sununu. This likely locks the party’s structural advantages in New Hampshire’s Senate and executive council through the 2030s. 

And it condemns complaints of partisan gerrymandering claims to echo into a void after all, with nowhere to turn in either federal court or New Hampshire court. 

The court said plaintiffs could address their grievances by getting state lawmakers to pass redistricting reform. But the odds of such a reform are low since the New Hampshire legislature is already gerrymandered, a circular dynamic that explains why voting groups tried to turn to federal and state courts on the issue. Any bill would have to be approved by the state Senate, a body whose districts have long been drawn to give Republicans an edge.

The New Hampshire decision adds to a trend in the nation since Rucho, with other state courts retreating from Roberts’ assurance and showing that they can just as easily refuse to answer the same questions. Earlier this year, for example, North Carolina’s supreme court ruled that partisan gerrymandering lawsuits can’t be brought under the state constitution, reversing past decisions to the contrary and paving the way for maps meant to maximize the GOP’s power.

New Hampshire Republicans won complete control of state government in 2020. They then proceeded to cement their advantage after the decennial census, adopting districts for the state Senate and executive council that created more Republican-leaning seats. A group of voters challenged the maps in court, alleging that they were partisan gerrymanders that violated New Hampshire’s constitution. 

But New Hampshire’s supreme court upheld the maps’ constitutionality on Nov. 29. The court declined to even consider the merits of the challenge, holding instead that partisan gerrymandering is a policy matter for other institutions to debate, and is a non-justiciable political question.

In practice, this means that no case alleging partisan gerrymandering, regardless of how egregious, can be brought in state courts. 

The New Hampshire court argued that there is no consistent method through which state judges could adjudicate such cases: no “discernible and manageable standards for adjudicating partisan-gerrymandering claims.” The language mirrors the U.S. Supreme Court’s decision in Rucho on how federal courts should approach partisan gerrymandering claims: Roberts argued in that case that adjudicating such claims is overly subjective. “There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral,” the chief justice wrote.

The New Hampshire court’s decision flips an important part of the rationale in Rucho on its head. Roberts’ opinion also doubled as an ode to federalism; even as he sidelined federal courts, he invited states to look to their own laws and constitutions for alternative protections against partisan gerrymandering that don’t rely on the U.S. constitution. Writing in 2019, he offered as an example a 2015 decision  by Florida’s supreme court striking down a congressional map as an illegal gerrymander under the state constitution. 

Plaintiffs in New Hampshire asked state courts to similarly consider their own constitution. But in closing the door on their challenge, the state supreme court heavily relied on Rucho—calling it “directly on point” even though Rucho was interpreting the U.S. Constitution—and it drew extensively from Roberts’ opinion, even as Roberts invited states to chart their own path. 

“Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” Roberts wrote in Rucho, but that approach can’t get out of the starting blocks if a state court then turns to Rucho to decide how to interpret its state constitution.

Florida’s constitution, unlike New Hampshire’s, contains a clause that expressly restricts partisan gerrymandering. But even in states without such an express prohibition, some courts have found implied protections against partisan gerrymandering. In the last several years alone, courts in Alaska, Maryland, New Mexico, North Carolina, and Pennsylvania have all affirmed such protections. 

In their arguments to the New Hampshire supreme court, plaintiffs pointed to these decisions. They argued that the guarantee of “free” elections in New Hampshire’s constitution (which does not exist in the U.S. Constitution), along with other free-expression rights, established a right of voters to elect representatives on equal footing with each other. 

The court found this unpersuasive. It reiterated that developing and consistently applying standards for reviewing partisan gerrymandering isn’t possible in practice. As a “telling” sign of this inconsistency, the New Hampshire justices pointed to recent events in North Carolina, where the state supreme court struck down GOP gerrymanders in 2022 before reversing itself this year. 

But North Carolina’s court didn’t just change the standards for deciding whether maps are unconstitutional, or apply old standards differently. It simply ruled that this is not a question that judges can rationally decide, in language very similar to the New Hampshire decision. 

“There is no judicially manageable standard by which to adjudicate partisan gerrymandering claims,” North Carolina Chief Justice Paul Newby, a Republican, wrote in February. “Courts are not intended to meddle in policy matters.”

New Mexico’s supreme court offered the opposite answer this year when it confronted a similar question.

It ruled that state courts can entertain claims of partisan gerrymandering, and decide whether a map is unduly giving an advantage to a party. To get around the concern that there’s no criteria judges could manage, the court identified a set of standards with which to analyze maps. It adopted a three-part test laid out by U.S. Supreme Court Justice Elena Kagan in her dissent in the Rucho case; Kagan proposed that courts could strike down a map if they have proof that its creators’ purpose was to “entrench their party in power;” that it has had “the intended effect”; and, if so, that mapmakers cannot provide a “legitimate, non-partisan justification” for the map. 

The same court in November then upheld New Mexico’s congressional map, which delivered Democrats an additional seat in 2022, ruling on the merits that it did not violate Kagan’s test. 

The decision is a reminder that a state court’s decision to hear partisan gerrymandering claims does not mean they’ll automatically strike down a map. And when such cases come up, there’s no telling how left-leaning and right-leaning justices may rule, depending on who has drawn maps; in New York State last year, it was the conservative-leaning judges who struck down gerrymanders drawn by Democrats over the objections of more liberal judges.

But these decisions also underscore the widening contrast between courts on the first-order question of whether they’ll even entertain such claims: on whether partisan gerrymandering is a judiciable question. 

Conservative jurists have been more likely to rule that it is not. The North Carolina reversal came after the court flipped from 4–3 Democratic to 5–2 Republican last year. The Rucho decision was a similarly narrow 5-4 win for the court’s then-five conservative justices. 

And in New Hampshire, the decision to reject the partisan gerrymandering claims came down to a 3–2 vote, with the 3 justices nominated by a Republican governor in the majority, and the two nominated by Democratic governor dissenting. 

One of the justices in the majority was Chief Justice Gordon MacDonald, whose nomination by Sununu was initially rejected by the executive council when it was under Democratic control. MacDonald was then confirmed to his seat when the council flipped to the GOP in 2020.

One of the Democratic-nominated justices who dissented in this case, Gary Hicks, left the court the day after the court issued its decision because he hit the mandatory retirement age. Sununu has nominated Melissa Beth Countway, a local judge, to replace him. 

Even Florida has come a long way since Roberts mentioned its supreme court: The mere threat that its new conservative justices may now shrug off partisan gerrymandering complaints has made the state’s existing protections virtually toothless. 

After voters amended their state constitution in 2010 to add provisions against partisan gerrymandering, Florida’s supreme court used those provisions to strike down state maps in 2015 for being “tainted” by partisanship. But by the time Republicans adopted a new set of aggressively gerrymandered maps masterminded by Governor Ron DeSantis in 2022, Florida’s judicial landscape was very different: The supreme court’s liberal majority had been wiped out, replaced by hard-right justices appointed by DeSantis. 

While plaintiffs initially filed a lawsuit challenging the state’s new congressional districts as partisan and racial gerrymanders, they later dropped all of their partisan gerrymandering claims, perhaps out of a concern that the Florida supreme court would be unwilling to meaningfully enforce the anti-gerrymandering provisions in the constitution.

Looming over all of this is the threat that the U.S. Supreme Court could step in against a state supreme court that actually does strike down a state map as a partisan gerrymander.

In its June decision in Moore v Harper, the court rejected the so-called independent state legislature doctrine, which argued that congressional maps drawn by legislatures (as well as other state statutes regulating federal elections) should not be subject to any review by state courts. But the decision, which was authored by Roberts, again, still kept open the possibility that it may intervene if state courts “transgress the ordinary bounds of judicial review.” 

State courts trying to stop partisan gerrymandering may feel some trepidation about stepping over this ambiguous  line. After all, here was the same justice who told them in Rucho to look at their own state constitutions and statutes, now warning them in Moore that he may stop them even if they ground their rulings on state law. Roberts hollowed out his own promise, restricting with one hand what he had invited with the other.

The post Yet Another State Shuts the Door on Partisan Gerrymandering Complaints appeared first on Bolts.

Workman sat on West Virginia’s supreme court in 2018—one of the three Democratic justices in the court’s majority—when Republican lawmakers decided to impeach that entire court. The GOP had flipped the legislature in 2014 for the first time in decades, and it had seized the governorship in 2017; only the supreme court stood in the way of one-party rule in the state. 

“All of a sudden, we had this right-wing legislature wanting to impeach everybody,” she recalls, “and they wanted in my opinion to get rid of us so they could put their own.”

When Workman read this summer that Protasiewicz may be impeached, shortly after her victory flipped Wisconsin’s high court to the left, she was struck by the parallels with what she herself went through. “The Wisconsin situation is a complete power grab to undermine democracy,” she told Bolts. “It shocks me because it even goes further than the one that I experienced.” 

She added, “It’s this whole thing that’s scary going on in this country, that if you can’t defeat people’s votes then you do it in some other way.” 

Protasiewicz won Wisconsin’s supreme court election in April, giving liberals a 4-3 majority on the court, their first in 15 years. But Republicans began to float impeaching Protasiewicz before the results were even known. The party has already locked down control of the legislature, using aggressive gerrymanders to protect itself from election defeats. It has also deflated the powers of the Democratic governor, Tony Evers, undercutting his authority to appoint people to executive branch positions. 

But by electing Protasiewicz, voters threatened the GOP’s hold on power by opening the door to an anti-gerrymandering ruling by the court. Just days after Protasiewicz was sworn-in, voting rights groups filed two lawsuits asking for the state’s legislative maps to be struck down as unconstitutional gerrymanders. 

Speaker Robin Vos, former Governor Scott Walker, and other Republicans have demanded that Protasiewicz recuse herself from these cases or else risk impeachment. They say comments she made while running—she notably called the state’s current legislative maps “rigged”—mean that she has “prejudged” the cases. Candidates in Wisconsin routinely share views on issues or are attached to political parties, though, and the Wisconsin Judicial Commission dismissed complaints filed by the GOP that her statements violated ethics rules.

Vos, who leads the Assembly, where impeachment proceedings would start, is still pushing forward this month. Thanks to the large majorities the state’s gerrymandered maps have delivered the GOP, his party currently holds enough seats to impeach Protasiewicz in the Assembly and then convict her in the Senate if all Republican lawmakers hold together.

Removing Protasiewicz would go far beyond the legal guardrails for impeachment laid out in the state constitution. Legal experts in Wisconsin say a plain reading of the document undermines the Republicans’ case against Protasiewicz.

But these legal barriers may not constrain the GOP. Constitutional protections are only as strong as the will to enforce them. Republican lawmakers may try to blow past them even if there is little legal justification, because at that point it’s uncertain at best who or what could stop them. 

Most notably, the allegations against Protasiewicz do not seem to fit the circumstances under which Article VII of the state constitution contemplates impeachment: It reserves it for “corrupt conduct in office, or for crimes and misdemeanors.” Protasiewicz is not accused of criminal conduct, she has yet to do much of anything “in office,” and she faces no allegations of bribery or personal gain, which is traditionally how corruption was defined. 

“It’s a difficult fit with the historical understanding of corrupt conduct in office,” says Chad Oldfather, a professor at Marquette University Law School. “You are talking about a justice being impeached before even hearing or deciding a case,” says Doug Keith, senior counsel in the Brennan Center’s Judiciary Program, a national program that tracks state courts. “This is not how impeachment has been used, or how I would expect it to be used.” 

In fact, Wisconsin has a separate procedure, known as “removal by address,” allowing lawmakers to remove judges for “misconduct”—a broad category that would better fit the GOP’s charges against Protasiewicz. Republicans lack the votes for the far higher threshold that this procedure requires in the Assembly (two-thirds, rather than a simple majority).

But Keith added that this may not matter in practice to how this confrontation unfolds, saying, “it’s a separate question of what would happen if the legislature followed through on this.” 

Miriam Seifter, a professor at the University of Wisconsin-Madison Law School, also says she does not think that the allegations against Protasiewicz meet the constitutional standards of impeachment, but she too warns that lawmakers may decide they don’t care, betting that no one will check them.

“That is one of the precarious aspects of this situation,” says Seifter, “once one legal actor does not adhere to the constitution, it’s hard to predict the rest of the legal trajectory.”

A lawsuit would likely follow Protasiewicz’s impeachment, but it’s unclear whether any judge would agree to even consider if the charges against her fit the circumstances laid out in Article VII. Courts have typically deferred to lawmakers on impeachment, treating it as a “political question” that is not subject to judicial review, Oldfather and several other legal experts told Bolts. Still, Oldfather also said there is no telling how that question would go in Wisconsin because there’s virtually no precedent in Wisconsin’s court system. (No public official has been impeached in Wisconsin since 1853.) 

Even if courts agreed to review the articles of impeachment, the core effect of the GOP’s actions is to affect who sits on the highest court—targeting who gets to even interpret the constitution in the first place. Protasiewicz recused herself this month from a lawsuit asking the state supreme court to block attempts by the legislature to impeach her, signaling that liberals have already lost their edge on the supreme court for cases that touch on her removal.

“It’s a legal question that’s to a greater extent than most floating in this sea of politics,” says Oldfather on the matter of whether impeachment is an appropriate response to the accusations against Protasiewicz.

Vos, the state Speaker, did not respond to a request for comment on these constitutional concerns. On Sept. 13, he said he was setting up an advisory panel made up of former supreme court justices to consider when a justice can be impeached. One of the members is a former conservative justice and former Republican lawmaker who donated to Proasiewicz’s opponent.

West Virginia’s GOP in 2018 similarly tested the bounds of their power once they had the votes. “Impeaching the entire court was entirely political,” says Robert Bastress, professor at the West Virginia College of Law, “it was motivated by Republicans who had just recently taken over the legislature, and they were flexing their muscle.” 

The overhaul of West Virginia’s supreme court dates back to 2018, when Chief Justice Allen Loughry, a Republican, was federally indicted on fraud and witness tampering charges that stemmed from allegations of him using state funds for his personal enjoyment and spending excessive amounts of money on furnishing his office. A concurrent fraud scandal also engulfed Justice Menis Ketchum, a Democrat. By mid-2018, Ketchum had pled guilty in a federal case and resigned, and Loughry was suspended from the court. 

But Republicans also went after the remaining members of the supreme court, alleging in part that they were all responsible for the court’s insufficiently clear ethics policies. 

“They had very good reasons for impeaching two of the justices—two of them were convicted of federal felonies—there were no grounds for impeaching the other three,” Bastress says. 

Workman stood her ground after her impeachment and fought the proceedings until a panel of state judges blocked the Senate from holding a trial and ruled that the legislature was violating procedural requirements in its impeachment proceedings. The state Senate, which by then had acquitted the GOP chief justice and was gearing up for a trial against Workman, fought the ruling but the U.S. Supreme Court let it stand. As a result, Workman got to stay on the court, though she then chose not to seek re-election in 2020. 

But by the time a court intervened to stop West Virginia’s impeachment trials, another Democratic justice, Robin Davis, had already chosen to resign rather than let the proceedings against her drag out. To replace Davis, Governor Jim Justice appointed Evan Jenkins, one of the state’s Republican U.S. representatives. 

“What the legislature was attempting to do was to stack the court with what I would call their puppets,” Davis told Bolts. “They were hell bent on getting control of the court.” She says she did not want to participate in what she viewed as “a very unfair, highly political proceeding.”

Unlike West Virginia in 2018, Wisconsin is a closely divided swing state with obvious stakes for national politics, making it likely that a judicial impeachment would receive far more attention and become a magnet for fundraising and political activism. That also gives Democrats an additional avenue to respond: activating public opinion.

In an interview with Bolts, Ben Wikler, chair of the Wisconsin Democratic Party, stressed that he is focused on putting pressure on Republican lawmakers. Democrats have also launched a multimillion-dollar campaign to air ads on this situation. 

“Our number one goal in the first phase of this fight is to make sure that every Wisconsin voter knows Republicans are threatening to overturn the election, and to encourage them to contact their legislators to let them know how they feel about it,” Wikler says. “It’s going to remind voters exactly why they voted for Democrats in the midterms and threw out Trump in the first place, which is that the Wisconsin Republicans are a clear and present danger to democracy.”

Politically-speaking, Democrats’ strongest asset in the confrontation over their new supreme court majority is the governor’s mansion: If Republicans manage to remove Protasiewicz, Evers would have the power to appoint a new justice to fill the vacancy, and he would presumably pick another liberal-leaning justice to replace her.

Vos and his allies may still be thinking it’s worthwhile to float impeachment because the threat alone could persuade Protasiewicz to bow to their demand and recuse herself on at least redistricting cases; Protasiewicz has not at this stage indicated what she would do. In addition, if they do impeach and convict Protasiewicz before Dec. 1, it would trigger a special election in 2024, giving conservatives a shot to flip back the court next year. 

Still, even if there is an election in 2024, Evers’ interim appointment would sit on the court for long enough that the court would have time to strike down gerrymanders.

To tie Evers’ hands, Republicans may turn to a very aggressive maneuver. If the Assembly impeaches Protasiewicz, it would suspend her and therefore deprive liberals of their majority until the Senate holds a trial that results in either an acquittal or conviction. But the Senate could indefinitely delay trial on the articles of impeachment and keep Protasiewicz sidelined without allowing Evers to appoint a replacement. The state constitution sets no timeline for how quickly the Senate has to take up articles of impeachment. 

“It’s one of those situations where the constitution assumes good faith, regularity of proceedings, and doesn’t spell it out,” Oldfather says.

Protasiewicz could still try to sue to force a resolution, some legal observers say. But here again, she and state Democrats also have political leverage that may prove more important than possible lawsuits. 

At any moment, Protasiewicz could break the logjam by resigning, allowing Evers to appoint a replacement even if at a personal cost to her. In a bizarre twist due to the particularities of state law regarding the timing of elections (there can be no more than one supreme court seat on the ballot on any given year), if Protasiewicz resigned on or after Dec. 1, Evers’ replacement appointee would get to serve until 2031 without facing an special election (seats on the court are currently scheduled for re-election each year from 2025 to 2030)—hardly an appealing prospect for the GOP. 

Seifter, the University of Wisconsin professor, also envisions a scenario in which Evers could claim the authority to appoint a justice if the Senate is delaying a trial.

“It’s hard to say how the courts or other actors will respond in this unprecedented situation,” says Seifter. “For example, the governor could declare that the legislature’s inaction creates a temporary judicial vacancy, or a court—whether the high court or a lower court—could reject the holdup as an encroachment on the judicial function. There isn’t clarity at this point on who would have the final word.”

Republican lawmakers this week also introduced articles of impeachment this week against the state’s elections chief, Meagan Wolfe, whom they have been aiming to fire all summer. The charges against Wolfe stem largely from conspiracies about the 2020 presidential election that have been debunked. Either Protasiewicz or Wolfe would be the first Wisconsin official impeached in roughly 170 years.

Such extraordinary events, if they unfold in coming months, may also ratchet up what other politicians are willing to consider in other states. Republican lawmakers in Montana, Ohio, and Pennsylvania in recent years have talked about impeaching state supreme court justices whose decisions they disliked, but have ended up not moving forward. 

“You see states learning from one another and adopting the strategies that legislators have found successful in other states to gain an upper hand in their courts,” says Keith of the Brennan Center. “And so if this happens in one state, I would not be surprised to see other states follow.”

The post With Impeachment Push, Wisconsin GOP Tests Bounds of Political Power appeared first on Bolts.

Known as the independent state legislature doctrine, the theory claims that the Elections Clause of the U.S. Constitution grants state legislatures near-total authority to regulate federal elections and draw congressional districts, and that no other institution can check them. Had justices embraced the doctrine, it could have drastically curtailed if not eliminated the ability of state courts to thwart lawmakers looking to suppress votes, gerrymander election maps, and subvert election results. It could even have sidelined governors, independent redistricting commissions, and other state officials from overseeing federal elections.

Instead, writing for a majority of six justices, Chief Justice John Roberts rejected the theory. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” he wrote in a decision that’s largely focused on the power of state courts.

Roberts was joined by the court’s three liberal members, Justices Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor, as well by Justices Amy Barrett and Brett Kavanaugh. Three conservative justices dissented. 

Tuesday’s decision keeps alive high-stakes litigation challenging gerrymanders and onerous voting requirements in state courts, such as a lawsuit challenging Wisconsin’s congressional map that is expected to be filed once the state supreme court flips to a liberal majority this summer. Given the conservative bent of the federal bench, civil rights litigants have increasingly turned to state courts on all sorts of matters from abortion rights to criminal justice; an adverse ruling in this case could have gutted that strategy on voting rights.

Stuart Naifeh, manager of the Legal Defense Fund’s Redistricting Project, stressed his relief that his organization will be able to continue litigation on issues they cannot bring in federal courts. “The Supreme Court has affirmed that state courts are not barred from addressing critical issues, like partisan gerrymandering, which the Supreme Court held in 2019 that it did not have jurisdiction to consider,” he said in a statement, alluding to a ruling, also authored by Roberts, that partisan gerrymandering claims in particular cannot be brought in federal court. 

He added, “By rejecting ISL theory, the Supreme Court has set an important precedent that state courts retain the authority to prevent suppression and protect their citizens from disenfranchisement.”

Still, Tuesday’s ruling came with a caveat whose full ramifications may not be known until 2024, if not later. 

The fifth section of Roberts’ opinion stresses that the authority of state courts authority is not unlimited when it comes to regulating federal elections, and that the U.S. Supreme Court has an “obligation” to intervene to ensure that state courts do not “transgress the ordinary bounds of judicial review.” This language is vague as to how the justices will test this criteria, and when they might intervene. But in a break with usual practice, it hints that they may be more aggressive going forward in policing how state courts interpret their own state’s laws and constitutions.

In light of the right’s dominance on the federal bench, this caveat could end up undermining state courts as a fruitful alternative for voting rights litigation after all. And with the 2024 presidential election just around the corner, it is also creating new uncertainty for future election cases. One election law expert labeled it a potential “time bomb.”

The independent state legislature doctrine arose for the first time in recent memory in the litigation over the 2000 presidential election, but the doctrine’s visibility in conservative legal circles grew as state courts asserted a greater role in combating partisan gerrymandering, as well as in the aftermath of the 2020 election.

In late 2020, several GOP-led states asked the U.S. Supreme Court to block the certification of some states’ election results to help Donald Trump overturn his loss to Joe Biden. They argued that changes ordered by state courts in places like Pennsylvania, for example, had violated the U.S. Constitution because the authority to order those changes should have been reserved for lawmakers. This legal effort failed but some conservatives remained intent on further testing the doctrine.

When the North Carolina Supreme Court in 2022 struck down a congressional map approved by the state legislature as an illegal gerrymander, state Republicans invoked the independent state legislature theory and appealed to the U.S. Supreme Court. Voting rights advocates grew alarmed when it agreed to hear the case.

The federal court heard Moore vs. Harper in December, just weeks after control of the North Carolina’s supreme court flipped from a liberal to a conservative majority in the midterms, and the new court in early 2023 overturned the earlier rulings striking down the state’s congressional map. Some court observers thought that the U.S. Supreme Court may use this as an opportunity to declare the case moot, deferring the showdown over the independent state legislature theory to a future date.

But the 6–3 majority determined that the case wasn’t moot and proceeded to rule on the merits. Writing for the majority, Roberts pointed to a long string of precedents in which the U.S. Supreme Court has held that state legislatures’ power under the Elections Clause isn’t absolute.  In the past century, Roberts detailed, the court has greenlit many instances in which the rules of federal elections have been set by actors other than state lawmakers. Those include voters using ballot initiatives to reject a redistricting proposal, a governor vetoing a map, and independent redistricting commissions drawing new congressional lines.

Roberts’s defense of independent redistricting commissions is especially striking since he wrote a vocal dissent in the 2015 case that tested their constitutionality. Roberts castigated Justice Ruth Bader Ginsburg’s majority opinion in that case as “perform[ing] a magic trick,” and many thought the decision was under threat of being reversed. But on Tuesday Roberts seemed to have changed his tune and approvingly cited Ginsburg’s opinion.

Justice Clarence Thomas, joined by Justice Neil Gorsuch and only in part by Justice Samuel Alito, dissented on Tuesday. He argued the case should have been dismissed as moot but he also made a case for the doctrine on the merits. State constitutions, he wrote, “cannot control what substantive laws can be made for federal elections.”

Despite North Carolina Republicans’ failure to get their arguments upheld, Tuesday’s ruling brings no relief to the original plaintiffs who had challenged the GOP’s gerrymander. The new Republican majority on that state’s supreme court has given lawmakers there a virtual carte blanche in how they redraw maps, and the GOP is now widely expected to adopt a brutal gerrymander that could give them as many as four new congressional seats in 2024.

Moreover, many voting rights lawyers and election law experts are now expressing nervousness about Part V of Roberts’ opinion: This is the section that defies the typical deference that federal courts have shown to state court decisions that are grounded on that state’s own statutes and constitution. It carves out an exception to that general practice when it comes to federal election cases. 

The U.S. Supreme Court can always receive appeals of state supreme courts decisions, but its typical practice is to not review the validity of rulings that are focused on state texts. Moore vs. Harper tweaks that approach. Citing the unusual opinion overruling the Florida Supreme Court in Bush v. Gore (this is the first time ever that a majority opinion has cited that case), Roberts’ majority opinion hints that his court will keep a more watchful eye on state judges.

The chief justice nods toward a soft version of the independent state legislature theory. “State courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections,” he writes. “The Elections Clause expressly vests power to carry out its provisions in ‘the Legislature’ of each State, a deliberate choice that this Court must respect.”

In practice, there is no way of fully anticipating what this means for future decisions, and whether the U.S. Supreme Court will step in only for extraordinarily rare cases or more frequently, until those cases arise. “The Court makes clear that it is not providing any standard at all—even an attempt at a standard—as to what this means concretely,” Rick Pildes, a professor at New York University School of Law, wrote on Tuesday.  

The concern is that this ruling may give the conservative majority on the U.S. Supreme Court more room to second guess state supreme courts—and that this will be tested in the cases that are bound to arise in the midst of the crucible of the upcoming presidential election. Moore vs. Harper, writes Rick Hasen, a professor at the UCLA School of Law, “is going to potentially allow for a second bite at the apple in cases involving the outcome of presidential elections.”

Still, the U.S. Supreme Court’s rejected voting rights organizations’ worst fears, and these groups largely celebrated Tuesday’s ruling. This was their second court victory this month, after a decision earlier this month that salvaged what’s left of the Voting Rights Act. 

Both cases could have thrown a major wrench into how U.S. elections are run but a majority of justices chose to mostly uphold the status quo. 

“This is the second time this month that the Supreme Court has ruled in favor of protecting our democracy through voting rights,” Maya Wiley, president of The Leadership Conference on Civil and Human Rights, which filed an amicus brief in this case, said in a statement. “We will continue the fight to ensure all of us can participate in our democracy and hold accountable the elected officials who abuse their power.”

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