Welcome to The Ballot Bulletin, where we track developments in election policy at the federal, state, and local level. In this month’s issue:
- State trial court upholds Alaska’s top-four primary and ranked-choice voting general election systems
- Redistricting round-up: Virginia House of Delegates candidate sues over 2021 elections using existing maps (and other news)
- Legislation update
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State trial court upholds Alaska’s top-four primary and ranked-choice voting general election systems
On July 29, Alaska Superior Court Judge Gregory Miller upheld the constitutionality of Alaska’s electoral system, which pairs a top-four primary election with a ranked-choice voting general election for statewide offices, the legislature, and Congress.
How primaries and general elections work in Alaska
In the Nov. 3, 2020, election, Alaska voters approved Ballot Measure 2, instituting a top-four primary for state executive, state legislative, and congressional elections. In a top-four primary, all candidates for a given office run in a single primary election. The top four vote-getters advance to the general election, regardless of their partisan affiliations. Alaska’s top-four primary is similar to the top-two primaries conducted in California and Washington.
In the general election, voters use ranked-choice voting. Voters rank candidates by preference on their ballots. If a candidate wins a majority (50% plus 1) of first-preference votes, he or she is declared the winner. If no candidate wins a majority of first-preference votes, the candidate with the fewest first-preference votes is eliminated. First-preference votes cast for the failed candidate are eliminated, elevating the second-preference choices indicated on those ballots. A new tally is conducted to determine whether any candidate has won a majority of the adjusted votes. The process is repeated until a candidate wins an outright majority.
Alaska is the first state to adopt a top-four primary system. It is the second state (after Maine) to adopt ranked-choice voting at the statewide level. Before Ballot Measure 2, political parties conducted separate primaries, with the winners moving on to the general election. In the general election, the candidate with the most votes would be declared the winner.
The lawsuit and the court’s ruling
On Dec. 1, 2020, the Alaskan Independence Party, Scott Kohlhaas, Robert M. Bird, and Kenneth P. Jacobus filed suit over Ballot Measure 2. The plaintiffs alleged that Ballot Measure 2 “violates the First and Fourteenth Amendments to the United States Constitution because it denies plaintiffs their rights of free political association, political expression, free speech, free assembly, and to petition the government for redress of grievances.”
The plaintiffs also said that Ballot Measure 2 violates Article I of the state constitution “because it withholds political power from the people, and denies plaintiffs the right to this political power, and to free speech, to assemble, to petition the government for redress of grievances, and to privacy.” The plaintiffs asked that the court declare the new systems unconstitutional and block their use in the 2022 election cycle.
Miller denied the plaintiffs’ requests, dismissing the plaintiffs’ argument that Ballot Measure 2 infringes on political parties’ rights to free association:
“[The] U.S. Supreme Court in Washington State Grange specifically held that states have the right to adopt various election methods, that ‘freedom to associate’ carries with it the equal right to not associate, and that political parties do not have the constitutional right to force states to run the parties’ nominating process.”
Miller also rejected the plaintiffs’ argument that Ballot Measure 2 contradicts Article III, Section 3, of the state constitution, which says “the candidate receiving the greatest number of votes shall be governor.” Miller said, “Plaintiffs never quote the new law’s language and then compare it to the constitutional language, above. They simply make the argument in a vacuum.”
Miller wrote, “[This] court is finding that Plaintiffs have not met their burden of showing that any part of the new law is unconstitutional on its face.”
Kohlhaas said an appeal was likely. “I’m sure we’ll go to the Alaska Supreme Court,” he said.
Redistricting round-up: Virginia House of Delegates candidate sues over 2021 elections using existing maps (and other news)
Today’s redistricting round-up includes news from:
- Virginia, where a candidate for the Virginia House of Delegates has sued over using pre-existing district maps for this year’s elections;
- Michigan, where the state supreme court declined to extend redistricting deadlines; and
- New Jersey, where GOP leaders of the state’s redistricting commissions are seeking guidance on how incarcerated people should be counted for reapportionment and redistricting purposes;
Virginia: House of Delegates candidate sues over 2021 elections using existing maps
On June 28, Paul Goldman, a potential candidate for the Virginia House of Delegates, sued Gov. Ralph Northam (D) and the Virginia State Board of Elections (among other state officials), asking a U.S. District Court to declare the Nov. 3, 2021, elections for the House of Delegates invalid, limit the terms of delegates elected in 2021 to one year, and order new elections to take place in 2022. Because members of the House of Delegates serve two-year terms, a court order to this effect would result in elections in three consecutive years: 2021, 2022, and 2023.
Virginia’s constitution requires that elections for the House of Delegates take place every two years on the Tuesday following the first Monday in November. Regularly scheduled elections occur in odd-numbered years. Because of the delayed release of U.S. Census data, redistricting authorities in Virginia did not draft new legislative district maps for this year’s elections. Consequently, existing maps will remain in force. Goldman says conducting the 2021 elections under the existing maps violates both the state and federal constitutions. Citing Cosner v. Dalton, a 1981 decision in which a federal court ordered that the terms of delegates elected in 1981 under invalid maps be limited to one year, Goldman is asking the court to limit the terms of delegates elected in 2021 to one year and schedule elections under new maps in 2022.
In his complaint, Goldman said, “According to Cosner, plaintiff’s protected core political rights should allow him to run for the House of Delegates in 2022, not being forced to wait until 2023 due to the failure of the appropriate state authorities to adhere to the requirements of the federal constitution.”
Del. Marcus Simon (D), who serves on the Virginia Redistricting Committee, said the Cosner precedent does not necessarily apply to this situation: “In the 1980s, we deprived people of their civil rights, we had racially improper districts. Given the circumstances for why we don’t have districts today, I don’t know that the same urgency would apply.”
For more information about the current redistricting cycle in Virginia, click here.
Michigan: State supreme court declines to extend redistricting deadlines
On July 9, 2021, the Supreme Court of Michigan rejected the Michigan Independent Citizens Redistricting Commission’s request to extend the state’s redistricting deadlines.
Under the Michigan Constitution, the commission must adopt new redistricting plans by Nov. 1. It is required to publish plans for public comment by Sept. 17. However, due to the delayed delivery of detailed redistricting data by the U.S. Census Bureau, the commission said it would “not be able to comply with the constitutionally imposed timeline.” Instead, the commission asked the court for an order directing the commission to propose plans within 72 days of receiving redistricting data and to approve plans within 45 days.
In its unsigned order, the court said it was “not persuaded that it should grant the requested relief.” In a concurring opinion, Justice Elizabeth Welch wrote, “The Court’s decision is not a reflection on the merits of the questions briefed or how this Court might resolve a future case raising similar issues. It is indicative only that a majority of this Court believes that the anticipatory relief sought is unwarranted.”
For more information about the current redistricting cycle in Michigan, click here.
New Jersey: Republicans request clarification from secretary of state about how to count prison inmates
On July 26, the New Jersey Globe reported that the Republican leaders of New Jersey’s redistricting commissions had asked Secretary of State Tahesha Way (D) for clarification on how prison inmates in the state should be counted in the reapportionment and redistricting processes. Under S758, passed in 2020, New Jersey must count incarcerated individuals at their last known residential address for the purposes of legislative redistricting, rather than the location of their incarceration at the time of the census. Additionally, A698, which awaits action from Gov. Phil Murphy (D), would expand that requirement to redistricting for municipal, county, school board, and congressional purposes.
Under S758 and A698, the secretary of state must submit an apportionment report based on numbers from the New Jersey Department of Corrections (DOC). Legislative Apportionment Commission Republican Chairman Al Barlas and Congressional Redistricting Commission GOP Chairman Doug Steinhardt said in their request to Way that the U.S. Census Bureau’s use of differential privacy in the 2020 census would produce data inconsistent with DOC data because “this statistical technique deliberately manipulates census data to assertedly protect the confidentiality of respondents by introducing ‘statistical noise; into both population totals and demographic characteristics.” “Barlas and Steinhardt asked whether there was a plan for “addressing the consequences of differential privacy with regard to New Jersey’s prison populations [and] … how will discrepancies between census and DOC data be rectified.”
For more information about the current redistricting cycle in New Jersey, click here.
Legislation update: Redistricting, electoral systems, and primary systems bills
Redistricting legislation: So far this year, we’ve tracked at least 193 redistricting-related bills up for consideration in state legislatures.
Redistricting legislation in the United States, 2021
Current as of Aug. 4, 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 Aug. 4, 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 Aug. 4, 2021