Welcome to The Ballot Bulletin, where we track developments in election policy at the federal, state, and local levels. In this month’s issue, we cover the following:
- U.S. Supreme Court upholds Arizona voting policies
- Redistricting round-up: Colorado redistricting commissions release preliminary congressional, state legislative maps (and other news)
- Legislation update
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U.S. Supreme Court upholds Arizona voting policies
On July 1, the U.S. Supreme Court ruled 6-3 that two Arizona voting policies – one barring the counting of a ballot cast in person on Election Day outside a voter’s assigned precinct, and the other limiting who may return a voter’s absentee/mail-in ballot – did not violate Section 2 of the Voting Rights Act. The case name is Brnovich v. Democratic National Committee.
How we got here
The Democratic Party filed suit in U.S. District Court over the two policies in 2016. The suit alleged that both violated the First, Fourteenth, and Fifteenth Amendments to the U.S. Constitution and Section 2 of the Voting Rights Act “by adversely and disparately impacting the electoral opportunities of Hispanic, African American, and Native American Arizonans.”
In October 2017, the U.S. District Court heard oral arguments on the merits, ultimately ruling in favor of the state and upholding the policies. On appeal, a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling. In an en banc rehearing (i.e., a rehearing before all active judges on the court), the Ninth Circuit reversed the panel’s decision. A 7-4 majority ruled that the out-of-precinct policy violated Section 2 of the Voting Rights Act. A 6-5 majority ruled that the ballot-collection law violated Section 2 and the Fifteenth Amendment. Arizona Attorney General Mark Brnovich (R), in his official capacity, and the Arizona Republican Party, appealed to the U.S. Supreme Court.
Justice Samuel Alito delivered the court’s opinion, which Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined. Alito wrote:
“After a trial, a District Court upheld these rules, as did a panel of the United States Court of Appeals for the Ninth Circuit. But an en banc court, by a divided vote, found them to be unlawful. It relied on the rules’ small disparate impacts on members of minority groups, as well as past discrimination dating back to the State’s territorial days. And it overturned the District Court’s finding that the Arizona Legislature did not adopt the ballot-collection restriction for a discriminatory purpose. We now hold that the en banc court misunderstood and misapplied §2 and that it exceeded its authority in rejecting the District Court’s factual finding on the issue of legislative intent.”
Justice Elena Kagan wrote a dissent, joined by Justices Stephen Breyer and Sonia Sotomayor. Kagan wrote:
“Today, the Court undermines Section 2 and the right it provides. The majority fears that the statute Congress wrote is too ‘radical’—that it will invalidate too many state voting laws. See ante, at 21, 25. So the majority writes its own set of rules, limiting Section 2 from multiple directions. Wherever it can, the majority gives a cramped reading to broad language. And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters.”
Redistricting round-up: Colorado redistricting commissions release preliminary congressional, state legislative maps (and other news)
Today’s redistricting round-up includes news from:
- Colorado, where the state’s independent redistricting commissions have released preliminary congressional and state legislative maps;
- Alabama, where a federal circuit court has rejected the state’s attempt to force the early release of U.S. Census Bureau redistricting data;
- Louisiana, where state lawmakers have adopted a resolution laying out redistricting criteria; and
- Michigan, where the state supreme court is considering extending redistricting deadlines.
Colorado: Colorado redistricting commissions release preliminary congressional, state legislative maps
On June 23, staff of the Colorado Independent Congressional Redistricting Commission released preliminary congressional district maps, making Colorado the first state in the current redistricting cycle to produce a draft congressional plan. As a result of reapportionment, Colorado is gaining one U.S. House district, increasing from seven representatives to eight. Colorado is one of six states that gained U.S. House districts from reapportionment.
On June 29, 2021, staff of the Colorado Independent Redistricting Commission released preliminary maps for the Colorado House of Representatives and the Colorado Senate.
The commission will now conduct at least three public hearings on the proposed maps in each of the state’s current congressional districts, all of which must also be broadcast online.
After public hearings are concluded, the commission can vote on the preliminary maps or ask commission staff to make revisions. Eight of the commission’s 12 members (including at least two unaffiliated members) must approve the maps. The Colorado Supreme Court must also sign off on the maps.
Alabama: Federal court rejects Alabama’s attempt to force early release of Census Bureau redistricting data
On June 29, a three-judge panel of the U.S. District Court for the Middle District of Alabama rejected Alabama’s attempt to force the U.S. Census Bureau to release redistricting data before Aug. 16, when the Bureau has said it will release the data to the states.
Federal law requires that the Bureau deliver redistricting data to the states by April 1 of the year following a census. However, due to delays in conducting the 2020 census and processing the data, the Bureau announced in early 2021 that it would miss this deadline. This prompted the state of Alabama to file suit on March 11. In his complaint, Alabama Solicitor General Edmund G. LaCour, Jr. said, “[t]he Bureau has no authority to grant itself this extension and deprive Alabama of information to which it is entitled.” He asked that the court block application of the differential privacy method and order the U.S. Census Bureau to deliver data to the states by March 31. A three-judge panel – including Judges Kevin Newsom, Emily Marks, and R. Austin Huffaker, all Donald Trump (R) appointees – heard the case.
The court unanimously rejected Alabama’s request: “The court cannot force the Bureau to do the impossible – that is, comply with an already-lapsed deadline. … Furthermore, the Bureau has made quite clear that it will be able to deliver the redistricting data to the State by August 16, 2021. Again, Plaintiffs have acknowledged that date suffices for them to be able to complete redistricting without injury. We see no prejudice to Plaintiffs in denying a writ of mandamus requiring the Bureau to issue the data any earlier.”
In his complaint, LaCour also alleged the U.S. Census Bureau “intends to use a statistical method called differential privacy to intentionally skew the population tabulations given to States to use for redistricting,” which would deny the state “accurate information about where Alabamians actually live.” The court also dismissed this challenge.
Louisiana: State lawmakers adopt resolution laying out criteria for redistricting plans
On June 10, the Speaker of the Louisiana House of Representatives and the President of the Louisiana Senate signed HCR90, a concurrent resolution outlining the “minimally acceptable criteria for consideration of redistricting plans.” The resolution prohibits district-to-district population deviations exceeding 5% of the ideal district population for state legislative district plans. The resolution also requires that lawmakers use census data for redistricting purposes (not American Community Survey data, which some states have used or are considering using).
In Louisiana, Republicans control both chambers of the state legislature. Governor John Bel Edwards is a Democrat. The state legislature is responsible for both congressional and state legislative redistricting. District maps are subject to gubernatorial veto. In the event that the legislature is unable to approve state legislative district boundaries, the state supreme court must draw the lines. There is no such practice that applies to congressional districts.
Michigan: State supreme court considers extending redistricting deadlines
On June 21, the Michigan Supreme Court heard oral arguments over the Michigan Independent Citizens Redistricting Commission’s request to extend the state’s constitutional deadline for adopting new redistricting plans.
Under the Michigan Constitution, the commission must adopt new redistricting plans by Nov. 1. It must also publish plans for public comment by Sept. 17. However, because of the delayed delivery of detailed redistricting data by the U.S. Census Bureau, the commission says it will “not be able to comply with the constitutionally imposed timeline.” Instead, the commission is asking that the state supreme court issue an order directing it to propose plans within 72 days of the receipt of redistricting data and to approve plans within 45 days thereafter.
The state supreme court asked the Office of the Attorney General to assemble two separate teams to make arguments, one team supporting the commission’s request and another opposing. The court heard oral arguments on June 21. Deputy Solicitor General Ann Sherman, speaking in support of the proposed deadline extensions, said, “[t]he very maps themselves could be challenged if they are drawn after the November 1 deadline.” Assistant Attorney General Kyla Barranco, speaking in opposition, said, “[t]here isn’t harm in telling the commission at this point, ‘Try your best with the data that you might be able to use and come September 17, maybe we’ll have a different case.'”
The court did not indicate when it would issue a decision.
Legislation update: Redistricting, electoral systems, and primary systems bills
Redistricting legislation: So far this year, we’ve tracked at least 186 redistricting-related bills up for consideration in state legislatures.
Redistricting legislation in the United States, 2021
Current as of July 6, 2021
Electoral systems legislation: So far this year, we’ve tracked at least 143 bills dealing with electoral systems that are up for consideration in state legislatures.
Electoral systems legislation in the United States, 2021
Current as of July 6, 2021
Primary systems legislation: So far this year, we’ve tracked at least 20 bills dealing with primary systems that are up for consideration in state legislatures.
Primary systems legislation in the United States, 2021
Current as of July 6, 2021