June 2 primaries mark highest concentration of voting activity since March
On June 2, nine states held statewide primary elections (and the District of Columbia conducted its district-wide primary). This represented the busiest single day of voting since March 3. The reason? The COVID-19 outbreak prompted a series of election postponements and other modifications.
How many of the June 2 primaries were postponements?
Of the 10 jurisdictions conducting statewide or district-wide primaries on June 2, five had originally scheduled their primaries for an earlier date:
Idaho (originally May 19)
Indiana (originally May 5)
Maryland (originally April 28)
Pennsylvania (originally April 28)
Rhode Island (originally April 28)
How did voter turnout on June 2 compare to turnout in 2016?
The table below compares voter turnout in primary elections in 2020 versus 2016. In the five states for which information is available, turnout increased between 6.24 and 15.10 percentage points between 2016 and 2020.
Indiana, Iowa, Maryland, Pennsylvania, and Rhode Island are not included in this table because the figures needed to calculate voter turnout in those states have not yet been fully released.
How many votes were cast by mail, relative to 2016?
Most of the jurisdictions that held primaries on June 2 have not yet released complete information on the number of votes cast by mail. In the District of Columbia, 71.11 percent of all votes cast on June 2 were cast by mail, an increase of 62.82 percentage points over 2016. In Idaho, 57.51 percent of all votes cast were cast by mail, an increase of 43.41 percentage points over 2016.
Of the remaining eight states, seven modified their absentee/mail-in voting procedures, suggesting a possible increase in the share of votes cast by mail in those states:
Indiana: Absentee/mail-in voting eligibility requirements suspended, allowing all voters to cast ballots by mail.
Iowa: Mail-in ballot applications automatically sent to all voters.
Maryland: Mail-in ballots automatically sent to all voters (at least one in-person voting center open in each county).
Montana: Counties authorized to automatically send mail-in ballots to all voters.
Pennsylvania: In Allegheny, Dauphin, Delaware, Erie, Montgomery and Philadelphia counties, absentee ballot receipt deadline extended to June 9.
Rhode Island: Mail-in ballot applications automatically sent to all voters.
South Dakota: Mail-in ballot applications automatically sent to all voters.
Although New Mexico did not modify its absentee/mail-in voting procedures for the June 2 primary, it already provided for universal absentee voting eligibility (i.e., no excuse required). Iowa, Maryland, Montana, Pennsylvania, and Rhode Island likewise already allowed for no-excuse absentee voting.
Absentee/mail-in voting modifications
Since our June 3 edition, we’ve tracked the following absentee/mail-in voting modifications:
Alabama: On June 15, Judge Abdul Kallon, of the United States District Court for the Northern District of Alabama, issued a preliminary injunction barring election officials from enforcing witness and photo ID requirements for select voters casting absentee ballots in the July 14 runoff elections.
Missouri: On June 4, Gov. Mike Parson (R) signed SB631 into law, permitting any registered voter to cast an absentee ballot in any 2020 election, subject to a notarization requirement.
New York: On June 7, Gov. Andrew Cuomo (D) signed into law legislation extending the submission deadline for absentee ballots in the June 23 election to June 23.
North Carolina: On June 12, Gov. Roy Cooper (D) signed HB1169 into law, reducing the witness signature requirement on completed absentee ballots from two to one.
Tennessee: On June 4, the Chancery Court for Tennessee’s Twentieth Judicial District ruled that Tennessee’s absentee voting law, which limits eligibility to those meeting certain criteria, “during the unique circumstances of the pandemic, constitutes an unreasonable burden on the fundamental right to vote guaranteed by the Tennessee Constitution.” The court ordered the state to extend absentee voting eligibility to all Tennessee voters during the course of the pandemic.
Texas: A three-judge panel of the United States Court of Appeals for the Fifth Circuit stayed a district court decision ordering that all eligible Texas voters be allowed to cast absentee ballots in order to avoid transmission of COVID-19.
To date, 32 states have modified their absentee/mail-in voting procedures. These modifications can be divided into five broad categories:
Automatic mail-in ballots: Five states (California, Maryland, Montana, Nevada, and New Jersey) have opted to automatically send mail-in ballots to all eligible voters in certain elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below.
Automatic mail-in ballot applications: Twelve states (Connecticut, Delaware, Georgia, Idaho, Iowa, Michigan, Nebraska, New York, North Dakota, Rhode Island, South Dakota, and West Virginia) are automatically sending mail-in ballot applications to all eligible voters in certain elections. These states are shaded in dark blue in the map below.
Eligibility expansions: Nine states (Indiana, Kentucky, Massachusetts, Missouri, New Hampshire, Oklahoma, South Carolina, Tennessee, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below.
Deadline extensions: Four states (Ohio, Pennsylvania, Utah, and Wisconsin) have extended absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below.
Other process changes: Two states (Alabama and North Carolina) have made other modifications to their absentee/mail-in ballot procedures in certain elections. These states are shaded in light gray in the map below.
Litigation tracking
To date, we have tracked 98 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. Beginning this week, in each issue of The Ballot Bulletin, we’ll shine a spotlight on what we think is one of the more interesting recent events in this area. Click here to view the complete list of lawsuits and court orders.
This week, we turn our attention to a case out of California, Gallagher v. Newsom.
Case name: Gallagher v. Newsom
Case number: CVCS-20-0912
State of origin: California
Court: Sutter County Superior Court
Summary: On June 12, Judge Perry Parker, of the Sutter County Superior Court, issued a temporary restraining order suspending Gov. Gavin Newsom’s (D) Executive Order N-67-20. The order, issued June 3, had permitted counties to consolidate polling places in the Nov. 3 general election, provided they offer three days of early voting. Parker’s order came as the result of an action filed by two Republican state Assembly members, James Gallagher and Kevin Kiley. Gallagher and Kiley alleged Newsom’s order usurped the legislature’s authority, in violation of the state constitution. Parker enjoined Newsom’s order pending further proceedings in the case.
To date, we have tracked 196 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.
Lawsuits involving election policy proliferate in response to COVID-19 outbreak
The COVID-19 outbreak in the United States has prompted election postponements, alterations to absentee/mail-in voting procedures, and modifications to candidate filing protocols. It has also resulted in at least 90 lawsuits filed in state and federal courts touching on various aspects of election administration. These lawsuits span 32 different states.
In this edition of The Ballot Bulletin, we take a closer look at five of what we think are the most noteworthy lawsuits filed to date. We selected these lawsuits because they deal with a variety of election-related issues and originate in different regions of the country. For a complete list of all the election lawsuits we’re tracking, click here.
Esshaki v. Whitmer (Michigan)
The parties to the suit: The plaintiffs were Eric Esshaki, Matt Savich, and Deana Beard, candidates for Congress, the Forty-Seventh Judicial District Court, and the Third Circuit Court, respectively. The defendants were Gov. Gretchen Whitmer (D), Secretary of State Jocelyn Benson (D), and Elections Director Jonathan Brater.
The issue: Attorneys for the plaintiffs argued that Whitmer’s stay-at-home order, which disallowed large gatherings and closed numerous businesses, prevented them from collecting the number of signatures needed to earn a place on the ballot. They argued that these conditions imposed a severe burden on the plaintiffs’ ability to seek elective office, violating their constitutional free-speech and associational rights.
The outcome: On April 20, Judge Terrence Berg, of the United States District Court for the Eastern District of Michigan, ruled in favor of the plaintiffs and issued an order reducing the petition signature requirements for certain primary candidates to 50 percent of their statutory thresholds. Berg also extended the filing deadline from April 21 to May 8 and directed election officials to develop procedures allowing for the collection and submission of electronic petition signatures. Berg’s order applied only to candidates for offices without a filing-fee option: U.S. Senate, U.S. Congress, and judicial offices. The order did not apply to state legislative candidates, who could pay filing fees to get on the ballot.
Berg’s order was appealed to the United States Court of Appeals for the Sixth Circuit, which ruled on May 5 that Berg had erred in his initial order. Although the appeals court agreed that the original ballot requirements were unconstitutional, it ruled that Berg had exceeded his authority in mandating new requirements. The appeals court directed the state “to select its own adjustments so as to reduce the burden on ballot access, narrow the restrictions to align with its interest, and thereby render the application of the ballot-access provisions constitutional under the circumstances.” On May 8, state authorities announced they would abide by the requirements laid out in Berg’s original order. Jake Rollow, a spokesman for the Michigan Department of State, said, “As the district court declined to amend its order, and with the revised filing deadline today, May 8, the best course of action to reduce further uncertainty in advance of the rapidly approaching August elections is to maintain the procedures that have been in place for the last two and a half weeks.”
Issa v. Newsom (California)
The parties to the suit: The plaintiffs are former U.S. Rep. Darrell Issa (R) and four registered California voters: James Oerding, Jerry Griffin, Michelle Bolotin, and Michael Sienkiewicz. The defendants are Gov. Gavin Newsom (D) and Secretary of State Alex Padilla (D).
The issue: On May 8, Newsom issued an executive order directing county election officials to deliver mail-in ballots to all registered voters in the Nov. 3 general election. California law allows any eligible voter to vote by mail, but the voter is required to submit a mail-in ballot application first in order to receive an actual ballot. Under Newsom’s order, all voters will automatically receive the mail-in ballots.
On May 21, the plaintiffs filed suit in the United States District Court for the Eastern District of California. In their complaint, attorneys for the plaintiffs allege that Newsom’s order violates both the Elections Clause and the Electors Clause of the United States Constitution. The Elections Clause (Article I, Section 4) establishes that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” The Electors Clause (Article II, Section 1) establishes that each state may appoint presidential electors “in such Manner as the Legislature thereof may direct.” Attorneys for the plaintiffs argue that neither Newsom nor Padilla meet the definition of a “Legislature” for the purposes of these provisions.
The outcome: The case is pending before Judge Morrison England, who was appointed to the court by President George W. Bush (R).
League of Women Voters of Oklahoma v. Ziriax (Oklahoma)
The parties to the suit: The plaintiffs were the League of Women Voters of Oklahoma and two qualified Oklahoma voters, Angela Zea Patrick and Peggy Jeanne Winton. The defendant was Paul Ziriax, in his capacity as secretary of the Oklahoma State Election Board.
The issue: Attorneys for the plaintiffs alleged that official absentee ballot forms and other instructional materials were misleading voters by suggesting that a notarized affidavit was required in order for absentee ballots to be counted. The plaintiffs argued instead that a personally signed statement, under penalty of perjury, was sufficient in lieu of a notarized affidavit.
The outcome: On May 4, the Oklahoma Supreme Court ruled 6-3 in favor of the plaintiffs, striking down the contested requirement. The court ruled that the requirement did not qualify as an exception under a state law establishing that statements, signed and dated under the penalty of perjury, carry the force of an affidavit.
However, on May 7, Gov. Kevin Stitt (R) signed SB210 into law, reinstating the absentee ballot notarization requirement. The legislation also included provisions applicable only to the 2020 election cycle. SB210 permitted voters to submit copies of their identification in lieu of fulfilling the notarization requirement in the event of a state of emergency occurring within 45 days of an election. The legislation also specified that individuals experiencing symptoms indicative of COVID-19, and individuals classified as vulnerable to infection could cast absentee ballots under the ‘physical incapacitation’ eligibility criterion.
Wisconsin Legislature v. Evers (Wisconsin)
The parties to the suit: The plaintiff was the Wisconsin Legislature, in which Republicans have majorities in both chambers. The defendant was Gov. Tony Evers, a Democrat.
The issue: On April 6, Evers issued an executive order postponing in-person voting in the spring election, scheduled to take place on April 7, to June 9. Evers also extended the receipt deadline for absentee ballots to June 9.
State Senate Majority Leader Scott Fitzgerald (R) and Assembly Speaker Robin Vos (R) argued that Evers’ order exceeded his constitutional authority. They filed suit in the state supreme court, seeking an emergency stay of Evers’ order. In their motion for the stay, plaintiffs’ attorneys said, “Given that the Governor’s order comes mere hours before the in-person election is set to begin, the Legislature will suffer irreparable harm if Executive Order 74 is not immediately enjoined. Moreover, such sweeping changes to an election made just before the election is set to begin will undoubtedly cause voter confusion and call into question the integrity of the electoral process.”
In an unsigned opinion, the court majority wrote, “The question presented is not whether the policy choice to continue with this election is good or bad, or otherwise in the public interest. … Rather, the question presented to this court is whether the Governor has the authority to suspend or rewrite state election laws. Although we recognize the extreme seriousness of the pandemic that this state is currently facing, we conclude that he does not.”
Bradley wrote the following in her dissent, which Dallet joined: “[The] majority gives Wisconsinites an untenable choice: endanger your safety and potentially your life by voting or give up your right to vote by heeding the recent and urgent warnings about the fast growing pandemic. These orders are but another example of this court’s unmitigated support of efforts to disenfranchise voters.”
Yang v. Kellner (New York)
The parties to the suit: The plaintiffs were Andrew Yang, a former candidate for the Democratic presidential nomination, and several candidates for New York’s delegation to the Democratic National Convention. The defendants were Robert Brehm, Douglas Kellner, Peter Kosinski, Andrew Spano, and Todd Valentine, all members of the New York State Board of Elections, and Gov. Andrew Cuomo (D).
The issue: On April 27, the New York State Board of Elections moved to cancel the Democratic presidential preference primary, which had been scheduled to take place on June 23. The Republican presidential preference primary had already been canceled. The statewide primary election was scheduled to proceed as planned on June 23. Earlier in April, the state enacted a law authorizing the board of elections to remove candidates’ names from the ballot upon the suspension or termination of their campaigns. Sen. Bernie Sanders (I) suspended his presidential campaign on April 8, making former Vice-President Joe Biden (D) the presumptive Democratic nominee.
In their complaint, filed April 28, attorneys for the plaintiffs alleged that “this unprecedented and unwarranted move infringes the rights of Plaintiffs and all New York State Democratic Party voters … as it fundamentally denies them the right to choose our next candidate for the office of President of the United States.”
The outcome: On May 5, Judge Analisa Torres, of the United States District Court for the Southern District of New York, ordered the New York State Board of Elections to reinstate the Democratic presidential primary. Torres wrote, “[T]he removal of presidential candidates from the primary ballot not only deprived those candidates of the chance to garner votes for the Democratic Party’s nomination, but also deprived their pledged delegates of the opportunity to run for a position where they could influence the party platform, vote on party governance issues, pressure the eventual nominee on matters of personnel or policy, and react to unexpected developments at the Convention.” Torres joined the court in 2013, having been nominated by President Barack Obama (D).
On May 6, the state board of elections appealed the decision. On May 19, a three-judge panel of the United States Court of Appeals for the Second Circuit affirmed Torres’ ruling. The panel comprised Judges Amalya Kearse, Dennis Jacobs, and Jose Cabranes. Kearse, Jacobs, and Cabranes were appointed to the court by Presidents Jimmy Carter (D), George H.W. Bush (R), and Bill Clinton (D), respectively. The state board of elections indicated it would make no further appeal.
Election postponements
Since our May 20 edition, we’ve tracked the following election postponement updates:
Puerto Rico: On May 21, the Democratic Party of Puerto Rico announced its presidential preference primary would take place on July 12. The primary was originally scheduled for March 29. It was first postponed to April 26. It was then postponed indefinitely.
To date, 20 states and one territory have postponed upcoming state-level elections. These states are shaded in dark blue on the map below.
Absentee/mail-in voting modifications
Since our May 20 edition, we’ve tracked the following absentee/mail-in voting modifications:
Connecticut: Gov. Ned Lamont (D) issued an executive order extending absentee voting eligibility to any registered voter in the Aug. 11 primary if there is no “federally approved and widely available vaccine for prevention of COVID-19” at the time he or she requests an absentee ballot.
Montana: On May 27, the Montana Supreme Court voted 5-2 to halt a lower court order that had extended the absentee ballot receipt deadline for the June 2 primary to June 8.
Pennsylvania: On June 1, Gov. Tom Wolf (D) issued an executive order extending the absentee ballot receipt deadline for the June 2 primary to 5:00 p.m. on June 9 (with a postmark deadline of June 2) in Allegheny, Dauphin, Delaware, Erie, Montgomery and Philadelphia counties.
South Carolina: On May 25, Judge J. Michelle Childs, of the United States District Court for the District of South Carolina, issued a preliminary injunction barring election officials from enforcing South Carolina’s witness requirement for absentee ballots in the June 9 primary and subsequent runoff elections.
Texas: On May 27, the Texas Supreme Court ruled that a voter’s lack of immunity to COVID-19 does not qualify as a disability under the state’s election laws and, therefore, cannot be cited as an excuse for voting absentee.
To date, 28 states have modified their absentee/mail-in voting procedures. These modifications can be divided into five broad categories:
Automatic mail-in ballots: Five states (California, Maryland, Montana, Nevada, and New Jersey) have opted to send mail-in ballots automatically to all eligible voters in certain elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below.
Automatic mail-in ballot applications: Twelve states (Connecticut, Delaware, Georgia, Idaho, Iowa, Michigan, Nebraska, New York, North Dakota, Rhode Island, South Dakota, and West Virginia) are automatically sending mail-in ballot applications to all eligible voters in certain elections. These states are shaded in dark blue in the map below.
Eligibility expansions: Seven states (Indiana, Kentucky, Massachusetts, New Hampshire, Oklahoma, South Carolina, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below.
Deadline extensions: Four states (Ohio, Pennsylvania, Utah, and Wisconsin) have extended absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below.
Legislation tracking
To date, we have tracked 165 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.
On June 2, Ballotpedia covered 1,990 primary elections for 1,011 offices across 12 states and Washington, D.C. In our June 17 issue, we’ll examine the effects of the COVID-19 outbreak on the conduct of these elections, turning our attention to the use of absentee/mail-in voting, consolidation of polling places, and preliminary data on voter turnout rates.
Article I, Section 2, of the United States Constitution requires that a census of the U.S. population be conducted every 10 years. Census results inform apportionment and redistricting efforts. The congressional and state legislative district maps drawn on the basis of 2020 census results will stand until after the next census in 2030 (although maps may be subject to court challenges).
Article I, Section 2, also stipulates that congressional seats be apportioned, or allotted, to the states on the basis of population. There are 435 seats in the United States House of Representatives. A state may gain or lose seats in the House if its population increases or decreases, relative to the other states. In 1964, the United States Supreme Court ruled in Wesberry v. Sanders that the populations of House districts must be equal “as nearly as practicable.”
The Constitution is silent on the issue of state legislative redistricting. In the mid-1960s, the Supreme Court issued a series of rulings establishing standards for state legislative redistricting. In Reynolds v. Sims, the court ruled that “the Equal Protection Clause [of the United States Constitution] demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.”
COVID-19 and the 2020 census
The 2020 census, the nation’s 24th, is already underway. However, the COVID-19 outbreak may cause significant delays in the count.
The Census Bureau has requested that Congress approve a four-month delay in delivering redistricting data to the states. This would postpone the following key census events (original dates are italicized; proposed postponements are bolded):
Process apportionment counts (July 31, 2020 – Dec. 31, 2020; Oct. 31, 2020 – April 30, 2021)
Process redistricting data (January 1, 2021 – March 30, 2021; May 1, 2020 – July 31, 2021)
Deliver apportionment counts to the president (Dec. 31, 2020; April 30, 2021)
Deliver redistricting counts to the states (April 1, 2021; July 31, 2021)
These delays, in turn, would affect redistricting efforts set to begin next year:
Two states – New Jersey and Virginia – are scheduled to conduct state legislative elections in 2021. In both states, primaries are scheduled for June 8, more than a month in advance of the Census Bureau’s proposed July 31 data delivery deadline.
Three states – California, Delaware, and Maine – have fixed redistricting deadlines set to occur before the July 31 deadline. Another six states – Hawaii, New York, Ohio, South Dakota, Utah, and Washington – have fixed redistricting deadlines set to occur at some point after July 31.
Nine states – Alabama, Arkansas, Illinois, Massachusetts, Nevada, New Hampshire, Oklahoma, Oregon, and Vermont – have census-contingent deadlines for state legislative redistricting. One state – Indiana – has a census-contingent deadline for congressional redistricting. Two states – Connecticut and Michigan – have census-contingent deadlines for both congressional and state legislative redistricting.
Eleven states – Alaska, Colorado, Iowa, Louisiana, Minnesota, Missouri, Montana, North Carolina, Pennsylvania (legislative districts only), Texas, and Wisconsin – have redistricting deadlines tied to the receipt or publication of census data.
Five states – Florida, Kansas, Maryland, Mississippi, and Wyoming – are not required to complete legislative redistricting until 2022. Two states – Mississippi and New Jersey – are not required to complete congressional redistricting until 2022.
Eleven states do not have any statutory or constitutional state legislative redistricting deadlines. Twenty-eight states do not have statutory or constitutional congressional redistricting deadlines.
Redistricting ballot measures
We have tracked nine statewide redistricting ballot measures this year. These measures would, to varying extents, alter existing redistricting processes ahead of the coming redistricting cycle. Social distancing protocols implemented at the state and local levels have affected signature-gathering efforts for some of these measures. Here is a brief status update on each of these nine measures:
Since our May 6 edition, we’ve tracked the following election postponement updates:
Delaware: On May 7, Gov. John Carney (D) announced the postponement of the state’s presidential primary to July 7. Carney also postponed school board elections to July 21.
New York: On May 19, a three-judge panel of the U.S. Court of Appeals for the Second Circuit affirmed a lower court decision reinstating New York’s Democratic presidential preference primary on June 23.
To date, 20 states and one territory have postponed upcoming state-level elections. These states are shaded in dark blue on the map below.
Absentee/mail-in voting modifications
Since our May 6 edition, we’ve tracked the following absentee/mail-in voting modifications:
California: On May 8, Gov. Gavin Newsom (D) signed an executive order directing county election officials to send mail-in ballots to all registered voters in the Nov. 3 general election.
Delaware: On May 7, Gov. John Carney (D) announced that the state would automatically mail absentee ballot applications to all eligible voters in the presidential preference primary.
Michigan: On May 19, Secretary of State Jocelyn Benson (D) announced that all registered voters in the Aug. 2 primary and Nov. 3 general election would automatically receive mail-in ballot applications.
New Jersey: On May 15, Gov. Phil Murphy (D) issued an executive order providing for expanded mail-in voting in the July 7 elections. All registered, active Democratic and Republican voters will automatically receive mail-in ballots. Unaffiliated and inactive voters will automatically receive mail-in ballot applications.
Oklahoma: On May 7, Gov. Kevin Stitt (R) signed SB210 into law, reinstating the absentee ballot notarization requirement struck down by the state supreme court on May 4. The legislation also included provisions applicable only to the 2020 election cycle, including absentee voting eligibility expansions and a modified verification requirement for those unable to have their absentee ballots notarized.
South Carolina: On May 13, Gov. Henry McMaster (R) signed into law a bill allowing any eligible South Carolina voter to request an absentee ballot for the state’s June 9 primary and subsequent runoff elections.
To date, 28 states have modified their absentee/mail-in voting procedures. These modifications can be divided into five broad categories:
Automatic mail-in ballots: Five states (California, Maryland, Montana, Nevada, and New Jersey) have opted to send mail-in ballots automatically to all eligible voters in advance of certain elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below.
Automatic mail-in ballot applications: Twelve states (Connecticut, Delaware, Georgia, Idaho, Iowa, Michigan, Nebraska, New York, North Dakota, Rhode Island, South Dakota, and West Virginia) are automatically sending mail-in ballot applications to all eligible voters in advance of certain elections. These states are shaded in dark blue in the map below.
Eligibility expansions: Eight states (Indiana, Kentucky, Massachusetts, New Hampshire, Oklahoma, South Carolina, Texas, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below.
Deadline extensions: Three states (Ohio, Utah, and Wisconsin) have extended absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below.
Legislation tracking
To date, we have tracked 118 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.
We are tracking 60 lawsuits in 26 states involving pandemic-related election issues. In our next issue, we will turn our attention to these lawsuits, examining in greater detail some of the more noteworthy suits that have been filed in recent weeks.
States modify absentee/mail-in voting procedures in response to the COVID-19 pandemic
In response to the COVID-19 pandemic, at least 22 states have modified their absentee/mail-in voting procedures for select upcoming elections. Today, we examine this topic in depth, reviewing both the permanent statutory framework for absentee/mail-in voting and the temporary modifications made in response to the current public health emergency. We also turn our attention to the legal mechanisms for making these changes and the emerging debate surrounding the issue.
Background
Every state provides for some mechanism whereby voters can cast ballots without visiting a physical polling place. The terms absentee voting, voting by mail, all-mall voting, or voting from home are sometimes used to describe these methods, which can be divided into two categories: automatic mail-in ballot systems and request-required mail-in ballot systems. Automatic mail-in ballot systems require that all eligible voters automatically receive either a ballot or ballot application. These are sometimes referred to as all-mail voting systems. Access to mail-in voting is not restricted to voters meeting certain eligibility criteria. Request-required mail-in ballot systems require that eligible voters initiate the process for receiving, and casting, mail-in ballots. These have traditionally been described as absentee voting systems. Access to mail-in voting may be restricted to voters meeting certain eligibility criteria. The map below summarizes the existing statutory absentee/mail-in voting procedures in the states. These are the permanent rules that govern absentee/mail-in voting under normal circumstances and in the absence of temporary emergency measures. Five states (shaded in blue) provide for automatic mail-in voting. Twenty-nine states (shaded in yellow) allow any voter to request a mail-in ballot. The remaining 16 states (shaded in gray) restrict absentee/mail-in voting to those who provide a qualified excuse for casting their ballots by mail.
Modifications in response to the COVID-19 outbreak
To date, at least 22 states have modified their statutory absentee/mail-in voting procedures in response to the COVID-19 outbreak. These modifications can be divided into four broad categories:
Automatic mail-in ballots: Six states (California, Idaho, Maryland, Montana, Nevada, and New Jersey) have opted to send mail-in ballots automatically to all eligible voters in advance of select upcoming elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below.
Automatic mail-in ballot applications: Seven states (Georgia, Iowa, Michigan, Nebraska, North Dakota, South Dakota, and West Virginia) and the District of Columbia are sending mail-in ballot applications automatically to all eligible voters in advance of select upcoming elections. These states are shaded in dark blue in the map below.
Eligibility expansions: Seven states (Delaware, Indiana, Massachusetts, New Hampshire, New York, Texas, and Virginia) have expanded absentee voting eligibility in select upcoming elections. These states are shaded in light blue in the map below.
Deadline extensions: Two states (Ohio and Wisconsin) have extended absentee/mail-in ballot request or submission deadlines in select upcoming elections. These states are shaded in dark gray in the map below.
Mechanisms for changing absentee/mail-in voting procedures
At least eight states have statutes dealing specifically with the expansion of absentee/mail-in voting in response to an emergency: Alabama, Hawaii, Illinois, Indiana, Kansas, Maryland, Utah, and Virginia.
Another eight states, at a minimum, have statutes granting state officials the authority to make general changes to election procedures in response to an emergency. The authority to expand absentee/mail-in voting may be permitted under these statutes. These states are California, Iowa, Louisiana, Maine, North Carolina, Oklahoma, West Virginia, and Wyoming.
Debate
Expansions on absentee/mail-in voting procedures have prompted considerable debate in recent weeks. A couple of representative examples of recent commentary are presented below. Additional commentary can be accessed here. Ronald J. Krotoszynski, Jr., writing for The Atlantic on March 27, said the following in favor of expanding absentee/mail-in voting:
“Today, and possibly even this November, the potential cost of casting a ballot in person on Election Day could be considerably higher, given that crowds and shared surfaces (such as the interface of an electronic voting machine) present perfect environments for spreading the coronavirus. The election is too important to let fall prey to this virus. Americans must ensure that the country’s democratic process moves forward as scheduled. And there is one time-tested and straightforward way to do that: nationwide vote by mail. The question of expanding access to voting by mail should not be left to the states to decide. The country needs a federal law that ensures all citizens may exercise their right to vote, without having to jeopardize their health. Congress should swiftly pass a law that mandates the option of early voting by mail in all 50 states and the District of Columbia.”
Tierney Sneed, writing for Talking Points Memo on April 14, said the following about the challenges involved with expanding absentee/mail-in voting:
“Only a handful of the states have the infrastructure already in place to handle the expansion of mail-in voting the coronavirus is expected to bring about. For the rest of the country, election officials will have to work aggressively to overhaul their voting procedures so that, for public health reasons, in-person interactions can be limited. In a vast majority of states, officials will have to consider buying new equipment, retraining or hiring additional staff, revamping the current way they handle absentee ballots, and changing procedural deadlines — which in some places require the cooperation of the legislature. Experts anticipate bumps in the road — if not major hurdles — everywhere. Whether other states repeat last week’s primary fiasco in Wisconsin will depend on how proactive policy makers are in reconfiguring their systems and what level of absentee voting they will be starting from.”
Election postponements
Since our April 8 edition, the following states have postponed upcoming elections:
Connecticut: On April 17, Gov. Ned Lamont (D) issued an executive order postponing the state’s presidential preference primary to Aug. 11, the same day as the statewide primary election.
This marked the second postponement of Connecticut’s presidential preference primary. The primary, originally scheduled to take place on April 28, was first postponed to June 2.
Georgia: On April 9, Secretary of State Brad Raffensperger (R) announced the postponement of Georgia’s statewide and presidential primary elections to June 9. The primary runoff was postponed to Aug. 11.
The state had previously postponed its presidential primary to May 19, the original date of its statewide primary.
Louisiana: On April 14, Gov. John Bel Edwards (D) issued Proclamation Number 46 JBE2020, postponing the state’s presidential preference primary election to July 11.
This marked the second postponement of Louisiana’s presidential preference primary. The primary, originally scheduled to take place on April 4, was first postponed to June 20.
Maine: On April 10, Gov.Janet Mills (D) issued Executive Order No. 39 FY 19/20, postponing Maine’s statewide primary election, originally scheduled for June 9, to July 14.
New Jersey: On April 8, Gov. Phil Murphy (D) issued Executive Order No. 120, postponing the statewide primary election, originally scheduled for June 2, to July 7.
Virginia: On April 8, Gov. Ralph Northam (D) postponed the statewide primary, originally scheduled for June 9, to June 23.
To date, 20 states and one territory have postponed upcoming state-level elections. These states are shaded in dark blue on the map below. In another five states, state-level officials have modified, or have authorized the modification of, municipal election dates. These states are shaded in light blue on the map below.
Legislation tracking
To date, we have tracked 55 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.
Virginia General Assembly passes bill allowing localities to use ranked-choice voting in some municipal elections
On Feb. 27, the Virginia State Senate voted 22-18 to approve HB1103, which would allow local governments to implement ranked-choice voting (RCV) for select municipal elections. All of the Senate’s 21 Democrats and one Republican voted in favor of the legislation. Eighteen Republicans voted against it. The same bill had passed the Virginia House of Delegates on Feb. 7 by a vote of 57-42. Fifty-four House Democrats and three Republicans voted in favor of HB1103. Forty-two Republicans voted against it (one Democratic member did not vote). HB1103 now goes to Gov. Ralph Northam (D) for his action.
If enacted, HB1103 would allow local governments to implement RCV in elections for county boards of supervisors and city councils. The state board of elections would be authorized to “promulgate regulations for the proper and efficient administration of elections determined by ranked-choice voting, including (i) procedures for tabulating votes in rounds, (ii) procedures for determining winners in elections for offices to which only one candidate is being elected and to which more than one candidate is being elected, and (iii) standards for ballots.” Localities would be liable for any implementation costs incurred by the state. The Department of Planning and Budget has estimated those costs at approximately $1.3 million.
What have been the reactions?
The following is a sample of the commentary surrounding HB1103:
Del. Sally Hudson (D), the bill’s chief sponsor, said, “It’s a benefit to communities like mine in Charlottesville that tend to have very low-turnout primaries in the summer and then local elections in the fall that often have multiple candidates running for a handful of open seats. You end up with really split elections and less certainty about which candidate has majority support from the community.”
Del. Chris Runion opposed the bill, saying, “It confuses the voter, and it complicates the process. I would prefer that a voter goes in and makes his decision, casts their ballot and goes back and knows this is who they voted for and that’s who they support and they go home satisfied with that result.”
Elizabeth Melson, president of FairVote Virginia, which has advocated in favor of the bill, said, “With ranking, if a candidate meets a voter who favors an opponent, the conversation need not end; it can shift to second choices and areas of mutual concern. In places with ranked choice already implemented, candidates sometimes even campaign in groups of two or three and ask to be second or third choices. It could lead to more civilized and issue-based campaigns and less mud-slinging.”
Quentin Kidd, a professor at Christopher Newport University, said, “So if you had a city or a county that was 50-50 split, ranked-choice voting could really mix things up and make for some really healthy political competition. But in a county that’s really rural and really Republican, Democrats would almost be locked out. In a city that’s really Democratically-oriented, Republicans would almost be locked out.”
What other jurisdictions have implemented RCV?
Maine is the only state that has implemented RCV for federal and state-level elections. Nine states have jurisdictions with RCV at the local level. On the map below, these states are shaded in gold. Another four states have jurisdictions that have adopted, but have not yet implemented, RCV. These states are shaded in blue. A complete list of implementation sites is available here.
In other RCV news …
On March 3, citizens in Portland, Maine, approved a charter amendment extending the use of ranked-choice voting to all city council and school board elections. Previously, ranked-choice voting only applied to mayoral elections. The charter amendment passed with 81 percent of the vote.
Virginians to decide constitutional amendment transferring redistricting power from legislature to commission
On March 5, the Virginia House of Delegates voted 54-46 to approve a resolution placing a redistricting-related constitutional amendment on the ballot for Nov. 3, 2020. The ballot measure would transfer the authority to draft the state’s congressional and legislative district plans from the Virginia General Assembly to a 16-member redistricting commission comprising eight state legislators and eight citizens.
What does the constitutional amendment propose?
Under the amendment, the commission would draft the maps and the Virginia General Assembly would vote either to approve or reject them. The Virginia General Assembly would be prohibited from amending the maps. If the Virginia General Assembly were to reject a map, the redistricting commission would draft a new one. If the second map is rejected, the state supreme court would enact a district map.
Maps would require approval by 12 of 16 (75 percent) commission members, including six of eight legislator-members and six of eight citizen-members. Leaders of the legislature’s two largest political parties would select members to serve on the commission. Based on the current composition of the General Assembly, the commission’s legislative members would include two Senate Democrats, two Senate Republicans, two House Democrats, and two House Republicans. The commission’s eight citizen members would be recommended by legislative leaders and selected by a committee of five retired circuit court judges.
How did the amendment make it to the ballot, and what comes next?
In order to place a constitutional amendment on the ballot, a majority vote in each chamber, in two successive legislative sessions, is required. In 2019, the House and Senate, with Republican majorities, approved the amendment. Democrats won control of both legislative chambers in November 2019. This year, the Senate approved the amendment 38-2. In the House, nine Democrats and all 45 Republicans voted to advance the amendment; 46 Democrats voted against the amendment. In November, a simple majority vote is required to enact the constitutional amendment.
For more information on the support and opposition arguments on this amendment, click here.
For more information about the legislative process that put the amendment on the ballot, click here.
Are other states considering similar measures this year?
This is the first ballot measure certified for 2020 related to redistricting. Measures might also be on the ballot in Arkansas, Missouri, Nevada, Oklahoma, and Oregon. In 2018, five states — Colorado, Michigan, Missouri, Ohio, and Utah — voted on initiatives to alter redistricting procedures or establish redistricting commissions. Voters approved all of them.
Ballot access requirements for U.S. Senate candidates in 2020
Thirty-three seats in the United States Senate are up for election in 2020. How do prospective candidates get on the ballot in their respective states?
Generally speaking, a candidate must pay a filing fee, submit petition signatures, or both in order to appear on the ballot. Filing requirements vary from state to state. Filing requirements also vary according to a candidate’s partisan affiliation. Candidates of the major political parties are sometimes subject to different filing requirements than unaffiliated candidates.
Petition signature requirements exist on a broad spectrum. For example, Kentucky requires partisan primary candidates to submit two petition signatures (candidates are also liable for a $500 filing fee). This petition requirement is the lowest in the nation for Senate candidates in 2020. By contrast, Texas requires unaffiliated candidates to submit 83,717 petition signatures, 1 percent of all votes cast for governor in the last election. This petition requirement is the highest in the nation.
Filing fees are similarly variable. Kansas requires unaffiliated candidates to pay a $20 administrative fee. This fee is the smallest in the nation for Senate candidates in 2020. By contrast, Arkansas Republican candidates are liable for a $20,000 filing fee, a larger filing fee than that imposed in any other state this cycle.
We have compiled complete filing requirements for major-party and unaffiliated Senate candidates in 2020. To peruse the data, click here.
Legislation tracking
Redistricting legislation
The map below shows which states have taken up redistricting policy legislation this year. A darker shade of red indicates a greater number of relevant bills.
The map below shows which states have taken up electoral systems legislation this year. A darker shade of red indicates a greater number of relevant bills.
The map below shows which states have taken up electoral systems legislation this year. A darker shade of red indicates a greater number of relevant bills.
The Idaho State Legislature passed House Joint Resolution 4 by a vote of 65-3 in the House and 31-4 in the Senate. The amendment would remove language in the state constitution that allows the legislature to have between 30 and 35 districts and, instead, require the state to have 35 state legislative districts.
Currently, the Idaho State Senate contains 35 Senators, who are elected from 35 districts. The Idaho House of Representatives consists of 70 Representatives, who are elected from the same 35 districts, with two being elected from each constituency.
House Speaker Scott Bedke (R), who sponsored the resolution, said, “[Since the 1980s], we have had 35 legislative districts, and it seems to suit us well. Yet your Constitution says you can have as few as 30. So why would we want to change this? I think the reasoning is as Idaho grows, then our citizens are better served with more legislative districts than fewer. It’s certainly something that we’re all used to for the last 30-plus years. But our Constitution allows for fewer legislative districts, and I think we’d be well-served going forward pegging that at 35.”
The Idaho Legislature has the power to place constitutional amendments on the ballot when both houses of the legislature approve the amendment by a two-thirds majority vote. Once on the ballot, the amendment must be approved by a simple majority of the electors. The 2020 state legislative session is expected to run from January 6 to March 27, 2020.
Idaho residents may qualify measures for the ballot through initiative petition. For 2020, initiative supporters must gather 55,057 valid signatures and must submit signatures no later than May 1, 2020, in order to qualify initiatives for the ballot. Three citizen initiatives have been filed in Idaho targeting the 2020 ballot: one measure would incrementally raise the state minimum wage to $12 by 2024, one measure would create a medical marijuana program, and the third would increase the income tax rate for individuals with incomes above $250,000 and create the Quality Education Fund.
From 1996 to 2018, 36 measures have been on the ballot in Idaho, of which, 72% (26 of 36) were approved and 28% (10 of 36) were defeated.
On Monday, the Missouri Senate approved Senate Joint Resolution 38 (SJR 38) that would amend Article III of the Missouri Constitution to change certain provisions of Missouri Amendment 1 passed in 2018. SJR 38 was approved in a vote of 22-9. The amendment would enact the following changes:
• eliminate the nonpartisan state demographer and revert back to a bipartisan commission appointed by the governor;
• alter the criteria used to draft district maps;
• change the threshold of lobbyist gifts from $5 to $0; and
• lower the contribution limit for state senate campaigns from $2,500 to $2,400.
The measure must receive a simple majority vote (82 votes) in the state House to appear before voters.
Missouri Amendment 1 (2018) was an initiated constitutional amendment approved with 62% of the vote. The amendment created a position called the non-partisan state demographer, which was tasked with drawing state legislative districts. Amendment 1 required the state demographer and redistricting commissions to consider specific criteria, including what the initiative calls partisan fairness and competitiveness, contiguousness, compactness, and the boundaries of political subdivisions. SJR 38 would require that population size, adherence to voting rights laws, compactness, and boundaries of political subdivisions have a higher priority than partisan fairness and competitiveness in the criteria used for redistricting.
Amendment 1 also prohibited the Missouri State Legislature from passing laws allowing for unlimited campaign contributions to candidates for the state legislature. Amendment 1 established campaign contribution limits for legislative candidates and their committees for a single election cycle to $2,500 per person to a state Senate candidate and $2,000 per person to a state House candidate.
Amendment 1 was sponsored by Clean Missouri. On February 10, the committee reported receiving a $100,000 contribution from the Action Now Initiative after SJR 38 passed the state Senate. In 2018, Clean Missouri and an allied committee, Fight for Reform – Missouri, raised a total of $5.63 million, including $1.01 million from the Action Now Initiative and $1.00 million from the National Education Association. The Missourians First and Advance Missouri PACs, which registered to oppose Amendment 1, raised $343,201.
SJR 38 was introduced in the Missouri House of Representatives on February 11.
On Jan. 27, Wisconsin Gov. Tony Evers (D) signed an executive order creating an advisory redistricting commission. The commission will prepare congressional and state legislative district plans for Wisconsin lawmakers to consider. The plans are advisory, and the legislature will be under no obligation to accept the commission’s recommendations. The commission will be made up of members from each of the state’s congressional districts. Elected and political party officials, as well as lobbyists, will be barred from serving as commissioners. The order specified neither the number of commissioners nor the manner of appointment. It established the following criteria for the commission’s proposed maps:
“Be free from partisan bias and partisan advantage”
“Avoid diluting or diminishing minority votes, including through the practices of ‘packing’ or ‘cracking'”
“Be compact and contiguous”
“Avoid splitting wards and municipalities”
“Retain the core population in each district”
“Maintain traditional communities of interest”
“Prevent voter disenfranchisement”
Evers said, “I believe, and Wisconsinites do, too, that people should get to choose their elected officials, not the other way around. So, when the People’s Maps are presented to the Legislature next year, I hope they will receive unanimous, bipartisan support.” Assembly Speaker Robin Vos (R) criticized the order, saying, “He can form whatever kind of fake, phony, partisan process he wants to create, but I have no doubt in the end we will do it the way we have always have, which is to follow the constitution.”
Upon completion of the census in 2020, congressional seats will be reapportioned to the states on the basis of population. Complete data sets will be delivered to the states in early 2021, at which time they will redraw their congressional and state legislative district maps. The Wisconsin congressional delegation is expected to remain unchanged at eight seats post-census. The legislature is responsible for drafting and adopting both congressional and state legislative district plans, both of which are subject to gubernatorial veto. Lawmakers are expected to take on redistricting as soon as census data is made available in early 2021.
What is an advisory redistricting commission, and how many states use them? An advisory redistricting commission advises state legislatures in drafting and implementing electoral district maps. These recommendations are not legally binding, though they can influence a legislature’s final decisions. An advisory commission is distinct from an independent commission, which can adopt maps without the involvement of the state legislature.
After the 2010 census, eight states used advisory commissions for some portion of the redistricting process. On the map below, states shaded in dark red used advisory commissions in congressional districting. States shaded in light red used advisory commissions in state legislative districting (note that Rhode Island used advisory commissions for both congressional and state legislative redistricting).
Missouri Supreme Court strikes down law requiring voters without photo ID to sign affidavits
On Jan. 14, the Missouri Supreme Court, in a 5-2 ruling, upheld a lower court’s decision striking down a state law requiring voters without photo identification to sign affidavits before voting. Missouri voters may now present either photo or non-photo identification at the polls and cast regular ballots without signing affidavits.
On Oct. 9, 2018, Richard Callahan, a state court judge, originally enjoined the affidavit provision. Callahan ruled that the affidavit’s language was “contradictory and misleading,” requiring signers to “swear that they do not possess a form of personal identification approved for voting while simultaneously presenting to the election authority a form of personal identification that is approved.” Callahan ordered officials to desist from executing the affidavit for voters presenting non-photo ID at the polls. Callahan also ordered officials not to distribute any materials indicating that a photo ID is required to vote. State officials appealed to the Missouri Supreme Court, asking it to stay Callahan’s order. On Oct. 19, 2018, the Court denied the request for a stay, but permitted the appeal to proceed. This allowed Callahan’s order to stand in advance of the Nov. 6, 2018, election.
The Court heard oral arguments in the appeal in Oct. 2019. Justice Mary Russell wrote the court’s opinion, which was joined by Chief Justice George Draper and Justices Paul Wilson, Patricia Breckenridge, and Laura Stith. Justices Wesley Powell and Zel Fischer dissented. Russell wrote, “Because the affidavit requirement of sections 115.427.2(1) and 115.427.3 is misleading and contradictory, the circuit court’s judgment declaring the affidavit requirement unconstitutional is affirmed. Further, the circuit court did not err in enjoining the State from requiring individuals who vote under the non-photo identification option provided in section 115.427.2(1) to execute the affidavit or in enjoining it from disseminating materials indicating photo identification is required to vote.”
Powell, joined by Fischer, wrote in his dissent: “If the affidavit requirement set forth in section 155.4271 is ambiguous, contradictory, and unconstitutional as the principal opinion proclaims, the opinion errs in severing the entire affidavit requirement without also severing the non-photo identification option set out in section 115.427.2 in its entirety. Because the legislature would not have enacted the non-photo identification option without an accompanying affidavit requirement, the principal opinion’s remedy is contrary to law.”
Ballot access requirements for U.S. House candidates in 2020
All seats in the U.S. House of Representatives are up for election in 2020. How do prospective candidates get on the ballot in their respective states?
Generally speaking, a candidate must pay a filing fee, submit petition signatures, or both in order to appear on the ballot. Filing requirements often vary from state to state and between districts within a state. Filing requirements also differ according to a candidate’s partisan affiliation. Candidates of the major political parties are sometimes subject to different requirements than unaffiliated candidates.
Petition signature requirements exist on a broad spectrum. For example, in Kentucky, a partisan candidate for the U.S. House must submit a petition containing two signatures in order to get on the ballot (the candidate must also pay a $500 filing fee). This petition requirement is the lowest in the country. By contrast, an unaffiliated candidate for Georgia’s 5th Congressional District must submit 26,538 petition signatures to get on the general election ballot, than in any other congressional district or state (the candidate must also pay a $5,220 filing fee).
Note: Georgia’s filing requirements for independent and minor-party U.S. House candidates are currently the subject of ongoing litigation. Judge Leigh May, of the U.S. District Court for the Northern District of Georgia, upheld the requirements in 2019. The U.S. Court of Appeals for the Eleventh Circuit will hear oral argument in the case during the week of May 18-22. For more information, see Richard Winger’s coverage in Ballot Access News.
Filing fees are similarly variable. Of the states that require payment of filing fees, Kansas levies the lowest: $20 for unaffiliated candidates (the candidate must also submit 5,000 petition signatures). Meanwhile, in Arkansas, a Republican candidate must pay a filing fee of $15,000, a higher fee than in any other congressional district or state (the candidate does not need to submit petition signatures).
We have compiled complete filing requirements for major-party and unaffiliated candidates in all 435 U.S. House districts. To peruse the data, click here.
Legislation tracking
Redistricting legislation: The map below shows which states have taken up redistricting policy legislation this year. A darker shade of red indicates a greater number of relevant bills.
Electoral systems legislation: The map below shows which states have taken up electoral systems legislation this year. A darker shade of red indicates a greater number of relevant bills.
Primary systems legislation: The map below shows which states have taken up electoral systems legislation this year. A darker shade of red indicates a greater number of relevant bills.
On January 27, 2020, Wisconsin Governor Tony Evers (D) signed an executive order creating an advisory redistricting commission to prepare congressional and state legislative district plans for consideration by the state legislature in the coming redistricting cycle. The legislature, vested with the authority to adopt redistricting plans, will be under no obligation to accept the commission’s recommendations.
It established the following criteria for the commission’s proposed maps:
• “Be free from partisan bias and partisan advantage”
• “Avoid diluting or diminishing minority votes, including through the practices of ‘packing’ or ‘cracking'”
• “Be compact and contiguous”
• “Avoid splitting wards and municipalities”
• “Retain the core population in each district”
• “Maintain traditional communities of interest”
• “Prevent voter disenfranchisement”
The order mandated that commissioners must come from each of the state’s congressional districts and barred elected, public, and political party officials and lobbyists from serving as commissioners. The order specified neither the number of commissioners nor the manner of appointment.
Evers said, “I believe, and Wisconsinites do, too, that people should get to choose their elected officials, not the other way around. So, when the People’s Maps are presented to the Legislature next year, I hope they will receive unanimous, bipartisan support.” Assembly Speaker Robin Vos (R) criticized the order, saying, “He can form whatever kind of fake, phony, partisan process he wants to create, but I have no doubt in the end we will do it the way we have always have, which is to follow the constitution.”
Upon completion of the census in 2020, congressional seats will be reapportioned to the states on the basis of population. Complete data sets will be delivered to the states in early 2021, at which time they will redraw their congressional and state legislative district maps. Wisconsin is neither expected to gain nor lose congressional seats in the next apportionment. The legislature is responsible for drafting and adopting both congressional and state legislative district plans, both of which are subject to gubernatorial veto. Lawmakers are expected to take on redistricting as soon as census data is made available in early 2021.
Electoral policy legislation in 2019: the year in review
With the year drawing to a close, let’s take a look back at electoral policy legislation in the states in 2019.
Redistricting legislation: This year, we’ve tracked 243 bills relating to redistricting policy. This represents a 179 percent increase over the 87 relevant bills introduced in 2018. Of the 243 bills introduced in state legislatures this year, 22 (or 9 percent) have become law.
Examples of enacted legislation:
Virginia HB2760: Requires municipal clerks to furnish Geographic Information Systems (GIS) maps, along with ordinances describing district boundaries, to local election boards, the secretary of the commonwealth, the department of elections, and the division of legislative services whenever redistricting local districts.
Washington SB5502: Moves the deadline by which the redistricting commission must submit its plan to the legislature from Jan. 1 of the year ending in two to Nov. 15 of the year ending in one following completion of the census.
The map below shows which states having taken up redistricting policy legislation this year. A darker shade of red indicates a greater number of relevant bills.
Electoral systems legislation: This year, we’ve tracked 142 bills pertaining to electoral systems policy, addressing such issues as ranked-choice voting and approval voting. This represents a 35 percent increase over the 105 relevant bills introduced in 2018. Of the 142 bills introduced in state legislatures this year, 21 (or 15 percent) have become law.
Examples of enacted legislation:
Colorado SB042: Enters Colorado into the National Popular Vote Interstate Compact.
Maine LD1663: Technical revisions to the state’s election laws relating to ranked-choice voting.
The map below shows which states having taken up electoral systems legislation this year. A darker shade of red indicates a greater number of relevant bills.
Primary systems legislation: This year, we’ve tracked 13 bills pertaining to primary systems policy, addressing such issues as top-two primaries and open primaries. This represents a 41 percent decrease from the 22 relevant bills introduced in 2018. Of the 13 bills introduced in state legislatures this year, none have become law.
Examples of proposed legislation:
North Carolina H994: Proposes implementation of a top-four primary and ranked-choice voting in the subsequent general election for all state and federal offices (except the presidency).
New York A07934: A proposed constitutional amendment creating top-two primaries for state and federal offices.
The map below shows which states having taken up electoral systems legislation this year. A darker shade of red indicates a greater number of relevant bills.
North Carolina court allows remedial U.S. House maps to stand for 2020, opens candidate filing period
On Dec. 2, 2019, a three-judge panel of North Carolina’s state superior court ruled unanimously that U.S. House elections in 2020 will take place under a remedial map (depicted below) that state lawmakers adopted in November. The court had earlier ruled that the original map was an unconstitutional partisan gerrymander under state law. The court also ordered that the candidate filing period open immediately, having previously delayed the filing period pending consideration of the remedial map and the objections to it.
How did this start? On Sept. 27, opponents of North Carolina’s congressional district plan filed suit, alleging that the district map enacted by the state legislature in 2016 constituted a partisan gerrymander in violation of state law. The plaintiffs asked that the court bar the state from using the maps in the 2020 election cycle. On Oct. 28, the court granted this request, enjoining further application of the 2016 maps. In its order, the court wrote, “The loss to Plaintiffs’ fundamental rights guaranteed by the North Carolina Constitution will undoubtedly be irreparable if congressional elections are allowed to proceed under the 2016 congressional districts.” The court did not issue a full decision on the merits, stating that “disruptions to the election process need not occur, nor may an expedited schedule for summary judgment or trial even be needed, should the General Assembly, on its own initiative, act immediately and with all due haste to enact new congressional districts.” The same three-judge panel, comprising Judges Paul C. Ridgeway, Joseph N. Crosswhite, and Alma L. Hinton, struck down the state’s legislative district plan on similar grounds on Sept. 3.
The House approved the remedial map (HB1029) 55-46 on Nov. 14 .The vote split along party lines, with all Republicans voting in favor of the bill and all Democrats voting against it. The Senate approved the bill 24-17 on Nov. 15, also along party lines.
What were the reactions to the remedial map? Democrats opposed the remedial plan and announced their intention to challenge it in court. Eric Holder, former U.S. Attorney General and chair of the National Democratic Redistricting Committee, said, “The congressional map passed by Republicans in the North Carolina legislature simply replaces one partisan gerrymander with a new one. This new map fails to respond to the court’s order by continuing to split communities of interest, packing voters in urban areas, and manipulating the district lines to provide Republicans with an unfair partisan advantage.” Rep. Patrick McHenry (R) dismissed Holder’s criticism: “Eric Holder and (former President) Barack Obama have raised a lot of money for this outcome, and they’ve pursued a really aggressive legal strategy for their partisan outcomes, and right now they’re calling it partisan gerrymandering, but what they’re seeking is partisan gerrymandering for the left. We basically have a Wild West of redistricting. This will be the fourth map in six cycles, and I think that is so confusing for voters and has a major negative impact on voters.”
What comes next? In 2020, North Carolina’s 13 seats in the U.S. House will be up for election. Heading into 2020, Republicans hold 10 of those seats, and Democrats hold the remaining three. In the wake of the court’s Dec. 2 order confirming the implementation of the remedial map in 2020, Kyle Kondik, managing editor of Sabato’s Crystal Ball, said via Twitter, “Not going to officially make NC House ratings changes until we know the new map is final, but here’s what’s tentatively coming: NC-2: Likely R to Safe D; NC-6: Safe R to Safe D; NC-8: Safe R to Likely R; NC-13: Likely R to Safe R. Ratings changes suggest a two-seat D net gain.”
California Supreme Court rules law requiring presidential candidates to disclose income tax returns unconstitutional
On Nov. 21, 2019, the California Supreme Court ruled unanimously that SB27, which requires presidential candidates to file copies of their income tax returns with the California secretary of state in order to qualify for placement on the primary ballot, violates Article II, Section 5(c) of the state constitution. Article II, Section 5(c) states that “the Legislature shall provide for partisan elections for presidential candidates, and political party and party central committees, including an open presidential primary whereby the candidates on the ballot are those found by the Secretary of State to be recognized candidates throughout the nation or throughout California for the office of President of the United States, and those whose names are placed on the ballot by petition, but excluding any candidate who has withdrawn by filing an affidavit of noncandidacy.” Writing for the court, Chief Justice Tani Cantil-Sakauye, joined by Associate Justices Goodwin Liu, Mariano-Florentino Cuéllar, Carol Corrigan, Leondra Kruger, Ming Chin, and Joshua Groban, said, “The Legislature may well be correct that a presidential candidate’s income tax returns could provide California voters with important information. But article II, section 5(c) embeds in the state Constitution the principle that, ultimately, it is the voters who must decide whether the refusal of a ‘recognized candidate throughout the nation or throughout California for the office of President of the United States’ to make such information available to the public will have consequences at the ballot box.”
Enforcement of SB27, which was signed into law by Governor Gavin Newsom (D) on July 30, 2019, had already been enjoined by Judge Morrison England of the U.S. District Court for the Eastern District of California. In his opinion, dated October 1, 2019, England wrote, “[The] Court finds that Plaintiffs are likely to prevail on the merits of their arguments that the Act 1) violates the Presidential Qualifications Clause contained in Article II of the United States Constitution; 2) deprives Plaintiffs of their rights to associate and/or to access the ballot, as guaranteed by the First Amendment of the Constitution; 3) further violates the Constitution’s Equal Protection Clause as set forth in the Fourteenth Amendment; and 5) is preempted by the provisions of [the Ethics in Government Act of 1978] in any event.”
On Oct. 8, California Secretary of State Alex Padilla (D) appealed England’s ruling to the U.S. Court of Appeals for the Ninth Circuit. In light of the state supreme court’s ruling on the matter, Padilla announced Nov. 21 he would abandon his appeal to the Ninth Circuit.
Looking ahead 
Looking ahead 
Legislation tracking 
Looking ahead 
