However, the new bill also has some major differences compared to its predecessor. The public campaign financing system has been significantly weakened, states would have greater ability to purge their voter rolls, and a measure that would have removed the even bipartisan split on the Federal Election Commission to break through the commission’s longrunning gridlock has been dropped. Importantly, the Freedom to Vote Act does not impose a national voter ID requirement in every state, which had previously been part of Manchin’s earlier compromise proposal.
Unlike the For the People Act, the new bill no longer requires states to establish independent redistricting commissions for congressional maps but instead relies on certain criteria and statistical tests for partisan fairness that courts could then aggressively enforce to block the worst gerrymanders from taking effect. That system also relies heavily on revamping federal court procedures to make litigation much speedier than under the status quo and put more of the burden on mapmakers to defend why their districts that exceed certain partisan limits shouldn’t be struck down rather than putting that burden on plaintiffs to argue why they should.
The bill includes a number of other important provisions as well, many of which were contained in the For the People Act:
- adopting Automatic, same-day, and online voter registration;
- making Election Day a holiday;
- mandating a 15-day early voting period including two weekends, with some exceptions for small jurisdictions or those that vote largely by mail;
- requiring no-excuse absentee voting and minimum standards for ballot return drop boxes;
- requiring more reliable data be used in order to remove voters from the rolls;
- counting provisional ballots cast in the wrong precinct but in the right county for the races where the voter is still eligible;
- allowing many different types of photo and non-photo ID to satisfy voter ID requirements in states that have them and allowing voters who lack ID to swear to their identity under penalty of perjury; and
- ending felony disenfranchisement for everyone who is not in prison.
The bill also includes several measure to ensure the integrity of election results and prevent Republican officials and activists from subverting them by:
- setting federal protections for state and local election administrators to insulate them from partisan interference;
- establishing standard procedures for handling election records such as ballots and other materials to ensure their integrity;
- requiring voter-verifiable paper ballot voting systems and routine audits;
- providing grants to help states buy new voting equipment;
- directing the federal Election Assistance Commission to help with poll worker training and recruitment;
- setting standards for voting equipment manufacturers; and
- requiring election campaigns to disclose attempts at foreign interference.
On the campaign finance front, the For the People Act included a program matching every dollar in private small donations to congressional campaigns with six dollars of public funds; the new bill makes that program optional for states to adopt, and limits it only to House races.
However, it still requires disclosure rules for so-called “dark money” groups by mandating that super PACs and other nonprofits disclose their donors, and it also extends transparency requirements to online ads that already exist for ads on TV or radio. In addition, it adds new limits to better enforce the existing ban on super PACs coordinating with candidates.
● NE Redistricting: A committee in Nebraska’s unicameral legislature has advanced a new congressional redistricting plan along party lines that would make the state’s only competitive district considerably redder. The plan would do so by splitting Omaha’s heavily urban and suburban Douglas County, which is currently located entirely within the 2nd District, and placing half of it in the solidly Republican and more rural 1st District.
Democrats can still stop the plan from advancing when it proceeds to the full chamber because legislative rules allow them to filibuster, which can only be ended by a two-thirds supermajority vote. Republicans are just one vote shy of the 33 they’d need to cut off debate, so all 17 Democrats would have to stick together to block this map. If they do so, it would require both parties to reach a compromise, otherwise redistricting would wind up in the courts.
The stakes here are higher than usual because Nebraska, along with Maine, is one of just two states that awards Electoral College votes to the winner of each congressional district. Joe Biden carried the 2nd District last year, as did Barack Obama in 2008. However, Republican Rep. Don Bacon won re-election in 2020 despite Biden’s performance.
● OH Redistricting: Despite reforms that were sold to voters as making redistricting fairer and less partisan, the Republican majority on Ohio’s bipartisan legislative redistricting commission has approved new legislative districts along party lines that lock in their already extreme gerrymanders.
Initial analyses of the new districts indicated they are heavily tilted toward the GOP and would likely give Republicans in this red-leaning swing state roughly a 62-37 state House majority and 23-10 edge in the state Senate. At that level, the GOP would continue to enjoy the three-fifths supermajorities needed to override gubernatorial vetoes, just as they do now. (You can find data files and interactive maps here.)
A number of analysts, including Daily Kos Elections’ Stephen Wolf, have long argued that the measures passed by Republicans to alter the redistricting process in recent years were in fact sham reforms intended to head off activists’ attempts to pass more vigorous reforms, such as a ballot initiative creating a truly independent redistricting commission.
The revised state constitution requires maps to not unfairly benefit one party or the other compared to their statewide support, which Republicans acknowledged was roughly 54% Republican and 46% Democratic according to an average of the last decade’s statewide elections. But Republicans argued in defense of their new maps that because they’ve won 81% of those same elections, maps that give them anywhere from 54% to 81% of seats therefore match statewide voter preferences. As multiple commentators noted, under that cynical logic, Democrats would be entitled to up to 100% of seats in states such as California or even Virginia since Republicans last won a statewide race there more than a decade ago.
Another key component of the new process is that maps approved along party lines are only good for four years instead of the full decade. While that provision was supposed to encourage compromise, it could instead benefit Republicans by letting them more frequently fine-tune their gerrymanders in future years so long as they maintain control of the redistricting commission—a self-reinforcing trend. (The separate congressional redistricting commission process is slightly different and has a role for the legislature, but the outcome is likely to be the same.
The GOP’s new maps are all but certain to face lawsuits, setting up a likely showdown at the state Supreme Court. The court currently has a 4-3 Republican majority but GOP Chief Justice Maureen O’Connor has frequently been a swing vote.
Even Republican Gov. Mike DeWine, who serves on the commission and voted to approve the new maps, acknowledged their potential legal deficiencies by stating, “What I am sure in my heart is that this committee could have come up with a bill that was much more clearly constitutional. I’m sorry that we did not do that.” However, it remains to be seen whether those deficiencies will be enough to persuade a majority of justices to strike down the districts and order the commission to come up with fairer alternatives.
Voting Access Expansions
● California: California Assembly Democrats have followed their state Senate counterparts in passing a bill that would permanently adopt universal vote-by-mail following its temporary adoption during the pandemic, sending the bill to Democratic Gov. Gavin Newsom for his signature.
● Montana: Youth voter advocacy groups have filed a lawsuit in state court seeking to block new laws that Montana Republicans passed earlier this year adopting a stricter voter ID requirement; eliminating Election Day voter registration; and barring voters who will become eligible by Election Day from getting an absentee ballot until they turn 18 or have lived in their precinct for at least 30 days, arguing that they violate the state constitution. The suit notes that the GOP’s legislation requires additional ID for voters using a student ID to vote (a group that leans Democratic) while allowing people with concealed-weapon permits (a Republican-favoring group) to use just that ID to satisfy the requirement.
● New York: Black voter advocates have filed a federal lawsuit challenging the constitutionality of a New York state law that prohibits nonpartisan groups from providing food and drink to people waiting in line to vote.
● North Carolina: On Friday, a three-judge North Carolina court ruled 2-1 to strike down the voter ID law that Republicans passed in 2018. The panel held that the measure intentionally discriminated against Black voters and permanently blocked the requirement ahead of this fall’s upcoming municipal elections. Despite the passage of a GOP-sponsored constitutional amendment requiring a photo ID to vote at the ballot box in 2018, the court ruled that the voter ID statute itself violated other sections of the constitution protecting voters’ rights.
Republican legislators passed this law using lame-duck supermajorities that were themselves obtained thanks to an illegal gerrymander, which was subsequently redrawn the following year. The law was enacted to replace a previous voter ID measure that a federal court struck down in 2016 for targeting Black voters “with almost surgical precision.”
Republicans argued that their new law lacked the discriminatory intent of the earlier law, which had been devised after Republicans ordered data on the types of IDs Black voters were less likely to possess than white voters and required those very types of IDs, but the state court disagreed.
GOP lawmakers have yet to indicate whether they will appeal this latest ruling, but they may not find a favorable audience further up the line as North Carolina’s Supreme Court has a 4-3 Democratic majority. A separate federal case over the voter ID law also remains ongoing. In that case, the 4th Circuit Court of Appeals earlier this year refused to temporarily block the law from taking effect while the case proceeds on the merits in federal district court, but the new state court ruling ensures that the law remains blocked for now.
Meanwhile, in a different case regarding felony voter disenfranchisement, the state Supreme Court has partially upheld a stay issued by the state Court of Appeals that temporarily blocked a trial court ruling that had allowed roughly 56,000 people on parole or probation to register to vote. The high court’s decision kept the trial court’s ruling on pause while Republican legislative leaders appeal, though it did at least allow people who had registered to vote during the brief period when the lower court’s ruling was still in effect to remain on the rolls.