Republicans seized the state Supreme Court after changing how judges are elected. The political implications — and ramifications for everyday life — are huge.

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NEW BERN, N.C. — As the daylight faded on April 12, 2018, a Craven County sheriff’s deputy pulled over a white pickup. Heather French was sitting in the passenger seat.

The deputy began tailing the truck on the other side of the Trent River, in a location he deemed “consistent with [a] drug area.” He eventually pulled over the driver, whose registration had recently expired. During the stop, the deputy called in a K9 unit from the local police department, which sniffed for drugs as night set in. The officers didn’t find drugs on French, but they searched through her wallet and noticed something else: Twenty-nine imitation one dollar bills.

The officers would later say that the material felt unusual and that each bill had a matching serial number and “pink Chinese lettering stamped on it.” They also said the bills looked “very realistic.” The prop money — which French maintains she never passed off as real money, something law enforcement has not contradicted — would become the reason she was stripped of her right to vote.

Over the next five years, French’s eligibility see-sawed with a series of court rulings. They left her eligible to vote in some elections but not others, and illustrated the power of judges to grant, and to claw back, Americans’ most basic rights. 

The rulings also tell a story about the North Carolina Supreme Court, whose Republican majority traces back to changes legislators made in the dying days of 2016. North Carolina is one of eight states where Republican politicians have passed laws that pushed the courts in a conservative direction or helped strengthen Republican control, according to a Center for Public Integrity investigation.

These changes have ramifications for those states’ residents and, increasingly, for the country.

In many ways, North Carolina represents the starkest example.

The driver of the truck in New Bern that April evening was John Cuddy, who purchased the prop money online for $2. He told police that he and his wife had used it to tease French, who he described as “pretty much our only friend.” In turn, she’d kept some of it and played a joke on her mother.

“You know, we’re poor. So for us, this is a prank,” French said.

She was arrested and charged with possessing “five or more counterfeit instruments with the intent to injure or defraud any person.”

Prosecutors offered French a misdemeanor plea deal, but she rejected it. “I have no problem admitting when I f— up … That’s not one of those times. I will forever, ever maintain my innocence.” The money, she says, “is clearly fake.”

At a trial on July 6, 2020, her attorney argued the bills were only “play money,” and that no evidence showed French used it to buy anything or defraud anyone. Prosecutors argued that the location of the bills in her wallet was itself evidence of “an intent to defraud.” Judge Joshua W. Willey called the case “circumstantial” but said he was swayed by the location in the wallet.

He sentenced French to three years of probation and to pay court costs and for her court-appointed attorney, a total of over $1,600. Additionally, she would pay a state-mandated $40 each month she was on probation.

When the judge’s ruling came down, the felony on her record meant that French couldn’t cast a ballot.

“I was upset because the presidential election was coming up,” she said. After Trump was elected, she had begun paying closer attention to politics. “I would have given anything to be able to vote.”

The legal case made a rough stretch of French’s life rougher. Hurricane Florence ripped through eastern North Carolina in 2018, badly damaging the mobile home where she lived with her parents. The floor began sinking, mold crept in from the moisture, and the family had to live around holes in the walls, ceilings and floor. Eventually, with government support, she and her parents moved into an RV.

The felony made finding work nearly impossible. She put her energy into helping care for her aging, disabled parents, and began attending classes at Craven Community College. “I plan to pursue a degree in political science, actually, because of this court case,” said French, 32.

So when French received a text last year from a nonprofit, telling her she could now vote despite her criminal record, she was intrigued. But she didn’t do anything right away — French was concerned she might be arrested, like 20 people had been in Florida for voting with criminal records. “I did not want to get slapped with another felony,” she said.

But a second text convinced her to call the county. She was eligible to vote, they told her, due to a ruling in a court case called Community Success Initiative v. Moore.

The same court system that had taken away French’s right to vote in her criminal case had now given it back, in this civil one.

In November 2022, she sat down in the kitchen of the RV and cast a ballot for the first time. She had jotted down notes about the U.S. Senate race, local contests and two state Supreme Court elections, and marked her absentee ballot accordingly.

“I felt like I was finally contributing something positive to society,” she said.

‘Your voice is your vote’

The case that enabled Heather French to vote challenged the state’s felony disenfranchisement law, which bars people on probation, parole or post-release supervision from voting. People remain ineligible if their inability to pay fines and fees extended their supervision, even if they have completed all other terms.

The lawsuit was brought by groups that work with North Carolinians wrapped up in the criminal justice system. A key plaintiff, Community Success Initiative, was founded by Dennis Gaddy, 66.

Voting rights are Gaddy’s heritage. He grew up on a dirt road in rural Fairmont, North Carolina, in the 1960s. He and his mother would drive around the area with stacks of the state’s big, brown voter registration forms, “going up to people who didn’t ever think they could even register to vote, and get them registered by hand.”

His father was the chair of what locals called the “Gaddy Precinct.” After polls closed on election day, the elder Gaddy would transport ballots to the smoke-filled rooms of the local board of elections to be tabulated.

“He guarded those ballots like they were gold,” Gaddy remembered. “So I saw that, smelled all that, was part of all that, knew how important it was.”

Gaddy went to law school and became an attorney, but he was disbarred in 1990 and convicted of a string of felonies in the ensuing years. When Barack Obama became the first Black major party presidential candidate in 2008, Gaddy was still on probation and couldn’t vote.

“It was devastating to me,” he said.

He founded Community Success Initiative to assist people leaving prison with reintegrating into their communities. Regaining the right to register and vote was a key piece of that process. “Your voice is your vote,” Gaddy said. “If you can’t vote, you’re not really a citizen in North Carolina.”

Gaddy estimates 90% of the people he works with are Black men, and he saw how the law deprived many of a political voice. He also had clients deprived of the right to vote even when they’d otherwise be eligible, simply because they couldn’t afford to pay the costs associated with their cases.

The lawsuit filed by Gaddy and others made those issues explicit. “This case is about the General Assembly’s intentional discrimination against Black people and against poor people,” Forward Justice’s Daryl Atkinson, one of the attorneys who argued the case for the plaintiffs, told Public Integrity.

In legal filings and expert testimony, the plaintiffs documented how over 56,000 North Carolinians were stripped of the right to vote due to the state’s felony disenfranchisement laws. Virtually everyone with a felony owes money as part of their case, with the median amount for those on probation around $2,400. Failing to pay those costs can extend probation for years, and, in rare cases, lead to arrest.

“You’ve got to pay to be able to vote in North Carolina. Flat out,” Atkinson said.

Before trial, a three-judge panel found that the requirement imposed an unequal burden, and issued an injunction. That granted the right to vote to roughly 5,000 people who had completed their felony terms except for the payment of fines and fees.

The trial that followed focused on the racially disparate impact of the law. Felony disenfranchisement has a long history in North Carolina, and legal filings pored over the past in exacting detail.

After the Civil War, former Confederates embarked on a campaign to convict Black men of petty crimes and publicly whip them. An 1867 article in the National Anti-Slavery Standard deduced that the whipping campaign’s “real motive … is to guard against their voting in the future, there being a law in North Carolina depriving those publicly whipped of the right to vote.” Crowds would gather every day at the courthouse in Raleigh to watch the violence.

After the Fifteenth Amendment was ratified in 1870, politicians shifted to tactics that were not explicitly race-based. A version of the state’s current felony disenfranchisement law went on the books in 1877. Modifications to the law in the early 1970s provided more routes to people to get their voting rights restored, but the statute maintains “origins in racial discrimination and still disproportionately negatively affects African Americans in North Carolina,” Clemson University historian Orville Vernon Burton wrote in a filing.

The racial disparities are stark. When the lawsuit was filed, Black people made up 21% of the voting-age population of North Carolina, but over 42% of those disenfranchised. Black residents were denied the vote at nearly triple the rate of white residents.

At trial, Orlando Rodriguez, an attorney for the state legislature, granted that “the rate of felony convictions and, therefore, felony disenfranchisement, they fall crushingly hard on the African American community.” But, the state argued, that misses the point. Because 100% of people with felony convictions are disenfranchised, the law is not discriminatory.

After a four-day trial, the three-judge panel ruled in March 2022 that North Carolina’s “denial of the franchise to people on felony supervision has the intent and effect of discriminating against African Americans, and unconstitutionally denies substantially equal voting power on the basis of race.”

With the stroke of a pen, tens of thousands of people regained their right to vote.

The geography of people under state supervision who were re-enfranchised underscores the disparities. Craven County, where Heather French was prosecuted, had the highest rate of people re-enfranchised of any county with over 100,000 residents. Many of the areas with high rates were among North Carolina’s poorest, while the ruling had less impact in higher-income counties, according to Public Integrity’s analysis of data from the State Board of Elections.

Felony disenfranchisement “seems like a double punishment,” said Ricardo Gonzalez, a 20-year Navy veteran currently on probation, who registered and voted in Elizabeth City after the ruling. “I really do value service. And so part of voting, to me, is service.”

“I voted for every race I could,” said Lewis Whitmire, currently on post-release supervision in Catawba County. “Definitely want to vote in local elections. … The one that affects my life a lot is who the sheriff is.”

“I think everybody should have a right to vote,” said Scott Wright, an avid Trump supporter in Carteret County on probation. He hoped to vote for the former president again in 2024.

“I got [to the voting site] early, because I just want to make sure that I'm going through the right steps,” said Damien Jacobs, who originally heard about the legal case on TV in prison. “You still have a voice.”

But the case wasn’t resolved. The state legislature appealed the ruling that allowed Jacobs and others to vote, putting it before the North Carolina Supreme Court.

The court had recently swung to Republican control, the result of partisan efforts in the state and a number of others to alter how justices reach the bench.

‘A very sudden and brutal use of legislative power’

In 2010, North Carolina Republicans won majorities in both houses of the General Assembly for the first time in over a century. Two years later, they secured the governor’s mansion.

But political consultant John Davis’ eye was on the third branch. “Lose the courts, lose the war,” he wrote in a series of memos titled, “How the North Carolina Republican Party Can Maintain Political Power for 114 Years.” (His memos about Democrats only briefly mentioned state courts that year.)

Davis cast a skeptical eye on the work of the judicial branch. “Lady Justice may be blindfolded, and those scales she holds may be balanced, but if the case impacts the outcome of political races, Lady Justice will take that blindfold off to check the political party of the plaintiffs … then she will adjust the scales accordingly,” he wrote.

Davis argued that politicians would be smart to enact laws “to give Republicans advantages in judicial races.” In 2013, Republicans passed a bill that gutted the state’s public financing for judicial elections, a bête noire of powerful conservative donor Art Pope.

About this series

State supreme courts were once dominated by Democrats. A concerted effort by right-wing groups has changed that — with massive implications for abortion, LGBTQ+ rights and elections.

Read more

“Republicans take over and had a lot of pent-up frustration,” said Chris Cooper, a political science professor at Western Carolina University. “And so they very quickly tried to remake the state in the image that they wanted.”

Then 2016 happened. The same election that swept Donald Trump into the White House also saw Democrat Roy Cooper win the governor’s race in North Carolina. After the results came in, and before Cooper took office, Republicans convened an emergency session of the legislature and passed laws designed to weaken the powers of the state’s executive.

They also introduced a bill to make North Carolina’s judicial elections partisan contests. The state had adopted nonpartisan elections in 2004, a move supported by Democrats. A switch back to partisan contests would make the state the first in nearly a century to adopt that method.

“Is a person more or less partisan, just because their party is listed on the ballot?” GOP Rep. Bert Jones asked during floor debate. “The answer is no. … Folks, we're not kidding anybody. Everybody here knows.”

Rep. Justin P. Burr was interrupted by protestors during his remarks. After legislative leaders directed law enforcement to lock the demonstrators out, Burr said that “the Democratic Party and its elected officials here know that the chances of electing a Democrat judge are increased if their party affiliation is hidden from the average voters.”

Senate President Pro Tem Phil Berger and House Speaker Tim Moore did not respond to repeated interview requests from Public Integrity about the bill. The measure passed, with all Republicans who voted supporting the change.  

“It was a very sudden and brutal use of legislative power,” said state Sen. Graig Meyer, who was a Democrat in the House in 2016 and voted against the changes.

Gov.-elect Roy Cooper, who wouldn’t take office until 2017, was watching closely. “They believed that if they could make judicial races partisan again, that they would have a much better opportunity to control the courts and inject right-wing politics into the judicial system,” Cooper told Public Integrity this spring. “And they have been successful.”

IN HIS OWN WORDS

Listen to North Carolina's Gov. Roy Cooper, a Democrat, on Republican's efforts to control the courts.

(Photo credit: Chip Somodevilla / Getty Images)

Since North Carolina returned to partisan Supreme Court elections, Republicans have won five of six contests. (The only Democratic victory came in a race where two Republicans appeared on the general election ballot and split the conservative vote.)

Results from Burke County, North Carolina, illustrate the difference the party label makes. The area is the longtime home of the Ervin family, a Democratic political dynasty in the state. In the 2014 state Supreme Court race, without party labels, Sam Ervin IV received 62% of the Burke County vote.

When Ervin came up for re-election as an incumbent in 2022, his party affiliation appeared next to his name. In that election, he received just 34% of the vote in Burke County.

Ervin lost statewide in November, as did the Democrat running for another seat, flipping the court from a 4-3 Democratic majority to a 5-2 Republican one.

Same case, different results

The court’s new Republican majority wasted no time making its impact felt. On February 3, they announced they would rehear two politically charged cases the court had decided less than two months before.

In the last three decades, the Supreme Court had reheard just two cases, both lower-profile matters. The cases being reheard in 2023 were anything but. 

One concerned a voter ID law that justices found in December had discriminated against Black voters. The other, also decided in December, involved political maps that the court ruled were unconstitutional gerrymanders.

“None of the facts have changed. The law hasn't changed. None of the circumstances have changed,” said Atkinson, the Forward Justice attorney. “The only thing that has changed is that new people have gotten elected.”

“I think this new Republican majority thinks that they were elected with a mandate to undo what the previous Democratic majority did,” said Billy Corriher of the People’s Parity Project, who has written widely about state high courts in North Carolina and elsewhere.

The court also heard the appeal in Community Success Initiative v. Moore, the felony disenfranchisement case. Attorneys for the state said that the terms of voting after a felony conviction are up to the state legislature, and not guaranteed by the constitution. In a legal filing, they argued that the plaintiffs, who included the North Carolina NAACP, were "tarring the civil rights reformers" of the 1970s by minimizing changes to the law in that decade.

One of the judges sitting on the bench for the case was Justice Phil Berger Jr., the son of the senate Republican leader. The plaintiffs had filed a motion for his disqualification, which argued that “the appearance of impartiality is at its apex when, as here, the judge’s own father is a named defendant.” Berger chose to remain on the bench, as he has in other cases involving his father.

The North Carolina Supreme Court released its opinions in the redistricting, voter ID and felony disenfranchisement cases on the same day: April 28. In each case, the new majority handed a victory to Republicans in the legislature in a 5-2 ruling split along party lines.

In the redistricting case, the majority held that claims of partisan gerrymandering fall outside the purview of the state Supreme Court. The ruling means that the state’s legislative and congressional districts could be redrawn in the coming months — a huge victory for state Republicans, which could also shift several seats in the U.S. Congress.

Common Cause’s Bob Phillips called the ruling “the worst decision, perhaps, the state Supreme Court has ever made.” In her dissent, Justice Anita Earls wrote that “today’s result was preordained on 8 November 2022, when two new members of this Court were elected to establish this Court’s conservative majority.”

In the wake of the ruling, Davis, the political consultant, wrote that “the Republican General Assembly will also likely gerrymander new legislative districts that will guarantee GOP super majorities for the remainder of the decade. And you can count on the 5-2 GOP-majority NC Supreme Court to rule that any new GOP-gerrymandered districts are constitutional.”

In Community Success Initiative v. Moore, the majority found that felony disenfranchisement is required by the state constitution. They ruled that the trial court’s finding of discriminatory intent in the law was due to “legal error” and tossed it aside. Justice Trey Allen adopted the state’s explanation for the disparities, a stark departure for a court that only a few years earlier had acknowledged discriminatory inequalities in the state’s judicial system. “Since a disproportionately large percentage of felons are African American, it stands to reason that African Americans constitute a disproportionate share of felons currently incarcerated,” he wrote.

The decision split not just on partisan lines, but also on racial ones, with the court’s five white justices in the majority, and its two Black justices dissenting. In that dissent, Earls wrote that saying the law has no disproportionate impact "is plainly incorrect" and that requiring people to pay fines and fees before being eligible to vote is "shocking in multiple respects."

The ruling ended the right to vote for North Carolinians on probation, parole and post-release supervision for felonies. 

They’d had it for just 276 days.

At least 49,200 people lost their voting rights that day, according to a Public Integrity analysis of state and federal data. The true number is almost certainly higher, as the data doesn’t reveal how many people had their terms extended because of unpaid fines and fees, or were convicted of a crime in another state.

More than 8,600 registered voters immediately lost their eligibility as a result of the ruling, according to the North Carolina State Board of Elections.

Kevin Slade, 43, had been looking forward to voting in municipal elections later this year. “It'd be a blessing for me to be able to vote,” he said in early May, just three days after the court ruling was handed down.

Slade served 16 years in federal prisons around the United States, after he pleaded guilty to charges connected to selling cocaine in the New Bern area. Slade had been living in a halfway house since December, and looking out at the confluence of the Neuse and Trent Rivers in his hometown felt like a fresh start, even if the ankle monitor he wore was a reminder of his ties to the criminal justice system.

For Slade, the North Carolina Supreme Court’s ruling was a setback. Without changes to the law or the terms of his supervised release, it will be at least five years before he can cast a ballot.

“A year from now, if there's a politician who was planning to do things that can prevent young males and young females from falling into the situation [that] I fell into? I would want to vote for that person,” Slade said. “They took that away from us.”

‘Much more hostile to civil rights’

Early on the morning of May 2, people boarded buses across North Carolina chartered for Raleigh, the state capital. Forty-one people left from a Craven County parking lot that day, just after 7:30 a.m.

When they arrived in Raleigh, they walked over to the Halifax Mall, across the street from the state legislature, and joined the crowd of 700 for the Second Chance Lobby Day.

The state Supreme Court’s rulings, less than a week old, weighed heavily on organizers and participants, there to advocate for policies that help people with criminal records reestablish their lives. A planned voter registration drive was scrapped at the last minute.

Under a bright blue sky with few clouds, Rev. William J. Barber II addressed the crowd. Barber was a driving force in Moral Mondays, a protest movement in North Carolina that began in 2013. Speaking about the previous week’s Supreme Court rulings, Barber said that “according to five of them, democracy is not welcome in North Carolina. Full citizenship is not welcome in North Carolina.”

He ticked through a list of priorities — allowing people with drug felony charges to receive SNAP benefits, reducing criminal court fines, removing criminal charges from records. Barber got the loudest cheer when he mentioned voting rights.

Caitlin Swain, an attorney with Forward Justice, which represented plaintiffs in Community Success Initiative v. Moore, said that RSVPs for the event poured in after the rulings. She was taken aback by the trio of decisions, which she said sent a clear message.

“State courts have just become much more hostile to civil rights,” she said.

Corey Purdie was at the event with his daughter. In 2007, Purdie opened a car wash in New Bern so he could offer jobs to people returning from prison. In the years since, Purdie expanded to helping people with housing, transportation and other needs. His organization, Wash Away Unemployment, was one of the plaintiffs in the case.

He was still reeling from the decision. “It's almost suffocating,” he said. Purdie said the saga would make it more difficult for the people he works with to trust the system and opt to vote, even when they were eligible.

Heather French, who was convicted of a felony over 29 imitation dollar bills in her wallet, took the news hard, tearing up when she learned about the ruling.

“You just don’t feel like a person,” she said. “Ever since I've dealt with being a felon, you don't really realize how little of a person they view you as.”

She and her parents had recently moved into a new home, at the end of a gravel road in unincorporated Craven County. It was a step up from their storm-damaged mobile home and the RV where she cast her ballot in 2022. But money remains tight, and she struggles to pay the $40 fee she owes each month. “One of the most stressful parts of being on probation is worrying about how you're going to pay it,” she said.

At the earliest, French won’t be able to vote until her probation ends in November 2024, after the next presidential election.

But the wait could take far longer. Debt from unpaid court costs and probation fees could extend her probation term. She’s not sure when she’ll be able to pay those — the felony on her record makes steady work hard to get — and regain the right to vote the court took away.

“I know they're the Supreme Court,” French said in her modest home, 100 miles from the state’s neoclassical high court building. “I'm here, I'm the felon, and what am I going to say that's going to matter? But no, I don't think it's right.”

Public Integrity journalist Pratheek Rebala contributed to this article.

The post ‘Lose the courts, lose the war’: The battle over voting in North Carolina appeared first on Center for Public Integrity.

State supreme courts have the final word on interpreting state constitutions. Their decisions have massive implications for abortion access, taxes, LGBTQ+ rights, labor, policing and other issues that affect people’s lives.

So why do these courts fly under the radar? That’s partly by design. Justices rarely seek public attention, preferring to let their opinions do the talking. But just because they’re not loud doesn’t mean they’re not powerful.

At the Center Public Integrity, we spent six months looking into eight states where Republican politicians passed laws that pushed state supreme courts in a conservative direction or helped strengthen Republican control.

In the process, we learned how reporters — and other interested people — can dig into high courts in any state.

Explore how judges reach the bench

America has a unique system for picking judges. For one, almost nowhere else in the world, except for the United States, has judicial elections.

But not every state has these elections or uses the same type. Some have “retention elections” — where voters can keep or kick a sitting judge off the bench — while others have partisan elections or nonpartisan ones. Some states have no direct role for voters whatsoever, leaving the matter up to governors and legislatures. (Muddying the waters even further, states often have one method for filling seats on an interim basis, and another for a justice’s first full term.)

You can learn more about your state’s system using this map from the Brennan Center for Justice at New York University and this one from the National Center for State Courts.

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About this series

State supreme courts were once dominated by Democrats. A concerted effort by right-wing groups has changed that — with massive implications for abortion, LGBTQ+ rights and elections.

Read more

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Any proposed change to judicial selection in your state could represent an attempt by politicians and activists to help their favored judges reach the bench. The National Center for State Courts helpfully tracks proposed legislation.

Our investigation focused on eight states that have passed laws affecting their high courts in recent years, while legislators in many other states are seeking to follow suit.

If your state has made changes to its system of judicial selection, ask questions about them and their impact. Who are the new justices on the bench? Have they flipped partisan control? Are they overturning precedents?

And learn about judges by reading their financial disclosures and exploring when they have and haven’t recused themselves from cases. For example, North Carolina collects financial disclosures here.

Small process changes fuel big results

Some of the changes that we reported on seem minor, like tweaking the membership of a nominating commission. But the people proposing them are often sophisticated political actors who know bureaucratic details won’t grab headlines but can have major implications.

Politicians are unlikely to say they’re making a change for political gain, but you can contextualize changes by seeing what they’ve meant in other states.

Is your state considering adopting partisan elections? Ohio and North Carolina have in recent years.

Are legislators considering weakening the role of the state bar on a nominating commission? They are following in the footsteps of Iowa, Utah and Idaho.

Do they want to dump the nominating commission entirely? That’s what Montana did.

Or maybe your governor wants to add seats to the high court? That would put it in line with Georgia and Arizona.

Data can help tell the story

Your state’s supreme court is worth investigating, whether or not there have been changes to how judges reach the bench. 

Data can help you pinpoint the impact of the decisions made by justices, cutting through the fog of judicial opinions and the legal arguments of the parties.

In our reporting on North Carolina’s Supreme Court, we decided to focus on one case in particular, about felony disenfranchisement. A lower court ruled in 2022 that barring people on probation, parole and post-release supervision from voting was unconstitutional. That instantly restored the voting rights of about 56,000 North Carolinians — before the state’s high court clawed that back this April.

Data from the State Board of Elections that included the names of tens of thousands of people affected by the lower court’s decision was key to the reporting. It allowed us to map where the decision had a disproportionate impact, and to find individual people impacted by the rulings.

Find people directly impacted

It’s one thing to report that a court decision will affect people’s lives. It’s another to document concrete impacts in a specific person’s life. These personal stories will help your reporting resonate with readers and show the human stakes of the decisions made by the people in black robes.

First, it helps to identify significant cases where the ruling may have marked a turning point in someone’s life. Legal experts in the state may be able to help there.

Then, consider a roadmap for how you will find individual people. Think bigger than just the parties directly involved in the case. In our North Carolina reporting, we were able to compare a dataset of people who had their right to vote restored with historical data on voting. This allowed us to identify hundreds of people who voted in the 2022 midterms, thanks to the lower court ruling.

We started calling them. Many had emotional stories about what the experience meant to them.

State supreme court cases impact just about every beat. Whether you cover climate change, education, law enforcement, healthcare or something else entirely, there’s a story to tell about how political and judicial power ripple through people’s lives.

The post State high courts get limited attention. Here’s how to change that. appeared first on Center for Public Integrity.

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In 2018, the Iowa Supreme Court ruled that the state constitution included a right to abortion, finding that “nothing could be more fundamental to the notion of liberty.”

Just four years later, the court reversed itself. Iowa’s constitution does not, the justices decided, guarantee a right to abortion after all. That 2018 ruling? It had “a one-sided quality to it,” the new majority found. Iowans could no longer rely on a constitutional protection that existed just hours before.

The day the ruling was issued, staff at a Planned Parenthood clinic on Des Moines’ south side were preparing to perform surgical procedures. But their work ground to a halt. Staff had to inform patients already at the clinic that they couldn’t operate, as they scrambled to understand the decision. “It’s devastating,” said Jordawn Williams, the clinic manager. “It’s hard to tell patients that, it’s hard to see their reaction, it’s hard to go through that over and over and over again.”

The state constitution hadn’t changed in the four years between the state Supreme Court’s two rulings. But the justices on the bench had — and so had the role state politicians play in putting them there.

One month after the ruling, Chuck Hurley, the chief counsel of influential Iowa conservative group the Family Leader, took the stage before a sold-out convention center crowd. The gathering, which was attended by Republican Gov. Kim Reynolds, U.S. Sen. Chuck Grassley and then-Fox News host Tucker Carlson, was just over the Des Moines River from the Supreme Court. Hurley told the room that “Iowa is on the verge of limiting the barbaric practice of abortion” after the court’s decision. He added, “Governor Reynolds and our legislators played a huge role in that win — by changing the way we select judges in Iowa.”

Iowa is not alone. In less than a decade, Republican politicians in eight states have transformed their state supreme courts — altering the process by which justices reach the bench, or the size of the court. The moves have pushed the courts to the right or solidified conservative control.

The changes take different forms. North Carolina and Ohio made their judicial elections partisan contests. Arizona and Georgia expanded the number of justices. And Iowa, Idaho, Montana and Utah granted Republican governors greater control over the process of picking justices.

This paved the way for rulings in Iowa and North Carolina that overturned precedents and rulings from just a few years, or months, before.

But while individual rulings have attracted public scrutiny, the changes to the courts have flown under the radar. That’s despite the key role that state courts, which hear 95% of all cases in the U.S., play in American democracy.

“It's hard to flip a whole state legislature. It's really expensive to win a governor's race. But it's not as hard, frankly, to turn over a state supreme court,” said Michael Kang of Northwestern University.

Other Republican-led states have taken notice. In 2023, 15 legislatures considered bills to increase partisan influence in judicial selection, according to a tally by the Brennan Center for Justice at New York University School of Law.

The shifts on state supreme courts resonate far beyond the ornate chambers where justices confer and issue rulings. State constitutions often grant rights that aren’t guaranteed in the U.S. Constitution, and state supreme court justices have the final say on what those are.

Civil rights, taxes, LGBTQ+ rights, labor law, policing and more — all of it hangs on which justices take the bench. This year alone, five recently reconstituted state supreme courts have heard or are due to hear cases about abortion restrictions.

What’s underway now is part of a long-term project by conservatives to transform state courts, dating back to the 1980s and efforts such as Republican strategist Karl Rove’s campaign to unseat liberals in Texas. It was supercharged by an Iowa campaign in 2010 to remove three justices who overturned a ban on same-sex marriage.

That election “changed the dynamic. It opened the court up as a site for political gain,” said Rachel Paine Caufield, a professor at Drake University. “In Iowa, they've really done a good job of pinpointing specific changes that very few people would pay attention to, but will be very effective.”

After the changes to the state’s nominating commission, “there's no question that the direction of the court has shifted. It's a much more conservative court,” Caufield added.

That’s true nationwide, too. In 1980, just 30% of state high court justices in the U.S. were Republican, according to data compiled by Stanford researcher Brett Oliver Parker and shared with the Center for Public Integrity. (The analysis excludes justices whose party could not be determined, but keeps those who are independents.) The same data shows that by 2013, that figure crossed 50%.

About this series

State supreme courts were once dominated by Democrats. A concerted effort by right-wing groups has changed that — with massive implications for abortion, LGBTQ+ rights and elections.

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This year, data from the progressive legal organization Alliance for Justice shows, over 60% of state high court justices are Republican.

That’s sharply out of step with the country’s political leanings. Roughly 30% of Americans told pollsters this year that they consider themselves Republican, with independents and Democrats accounting for the rest.

“All the energy on this issue is on the right,” said law professor Brian Fitzpatrick of Vanderbilt University. He points to data that indicates attorneys lean left; lawyers play a key role in many states where commissions nominate judicial candidates. “It’s the Republicans that are not happy with the status quo,” he said.

In the states examined by Public Integrity where there has been turnover on the bench, the courts added conservatives — or replaced Republican moderates with more right-wing justices.

Politicians have come to regard courts less as a check on power than a part of the state’s governing coalition, academics and activists say. In two states, more than ideology binds judges to politicians: Ohio Supreme Court Justice Pat DeWine is the son of Republican Gov. Mike DeWine, and North Carolina Supreme Court Justice Phil Berger Jr. is the son of the state’s most powerful Republican politician, state Senate President Pro Tem Phil Berger.

The decisions made by justices shape the lives of residents in direct, dramatic fashion. 

In Arizona, the high court stripped in-state tuition from more than 2,000 students in DACA, the program that protects people brought to the country as children from deportation.

In Iowa, the court ruled that pretext stops by police — including those based partly on race — were legal in some circumstances, and that the justices lacked the authority to order regulation of the harmful nitrates flowing into Iowa rivers and fouling drinking water.

And this spring in North Carolina, a fresh Republican majority took the highly unusual step of rehearing two politically charged cases decided the previous term. The state’s Supreme Court also overturned a lower court ruling that had restored the voting rights of tens of thousands of people with felonies.

For those who registered and voted after the lower court’s ruling, the thought of losing the franchise was painful. “It's like they give us a taste, and then they snatch it back,” said Anton Sluder, 31, who lives in western North Carolina.

Around the nation, the stakes are high. State supreme court justices, said Jake Faleschini of Alliance for Justice, “are the most important political actors in this country that no one's ever heard of.”

‘The Republican Party has wised up’

States have four basic methods of selecting judges: appointment by a governor or legislature, partisan elections, non-partisan elections and nominating commissions that recommend a slate of candidates elected officials must pick from (often dubbed merit selection).

The patchwork emerged out of different moments in American history. At the country’s founding, politicians appointed many judges. In the early 1800s, states adopted elections to empower independent judiciaries. In the mid-20th century, nonpartisan elections swept across the country, an attempt to sever the connection between political machines and judges. In later decades, nominating commissions became a popular method of injecting the process with transparency and legal expertise.

Herbert Kritzer, an emeritus professor at the University of Minnesota, has studied states that changed their method of judicial selection. “In the roughly 20 years before 2000, the dominant motivation was more good government, legal professionalism, etc. Post-2000 it was very, very heavily policy, political,” he said. 

Academic research has demolished the perception that judges stand apart from politics. Legal scholars Michael Kang and Joanna Shepherd have consistently found that “judges’ voting in cases tends to favor the interests of their campaign contributors in a predictable and statistically meaningful way,” as they wrote in one paper.

Their work has documented that judges favor their own parties when ruling on election cases, and that “campaign contributions from the Republican Party and its allies are associated with an increased likelihood Republican elected judges will vote in favor of their party’s interests.” Their research also found that judges who receive contributions from business groups are more likely to favor business interests on the bench.

“Judges respond to incentives, and a lot of those incentives are financial ones,” Kang said in an interview. “The money does matter.”

Or, as former West Virginia Supreme Court Justice Richard Neely said in 2006, “It’s very hard not to dance with the one who brung you.”

That’s not to say the details of individual cases don’t matter: Justices frequently vote unanimously — including in the many cases that don’t touch on hot-button social or political issues. Kang and Shepherd also found that judges were more likely to rule against their own party in election cases when the other party brought a strong case.

IN HIS OWN WORDS

Listen to Michael Kang of Northwestern University talk about the politics of flipping a state supreme court.

(Photo credit: Courtesy Northwestern University Pritzker School of Law)

Notably, they found that justices rule in a less partisan manner when they’re not running for reelection.

The fact that the U.S. Supreme Court hears fewer cases, and has left issues like abortion up to states, has empowered state high courts. That has not been lost on legislators and governors.

“These institutions are too damn powerful for politicians to let them be independent and run amok,” said James Gibson of Washington University in St. Louis. “They'll do anything to try to control them.”

State elected officials who altered how judges reach the bench are often reacting to shifting political landscapes and controversial rulings. Conservative groups have actively pushed for these changes, Public Integrity found. The result is that courts have gradually trended to the right.

Democrats have rallied to support candidates in elections, like the Wisconsin Supreme Court race this spring, but have not been active in altering the methods of selecting justices. (The exception is Illinois, where a Democratic-led effort in 2021 to address population imbalances in court districts also gave the party a leg up in judicial elections.)

National political organizations like the Republican State Leadership Committee have been key to the long-term project. The group unveiled an effort in 2014, dubbed the Judicial Fairness Initiative, declaring that “Republicans have had a significant amount of success at the state level. … Unfortunately, that’s running into a hard stop with judges who aren’t in touch with the public.”

The organization’s website says it has spent more than $29 million in judicial races across the country, in Illinois, Louisiana, Michigan, Pennsylvania, West Virginia, Wisconsin and elsewhere.

The group credited a "clean sweep" in the 2022 elections in North Carolina and Ohio to its spending, saying that it was working to "ensure that the redistricting fights ahead in those states are ruled on by strong conservatives.” The RSLC did not respond to requests for comment.

The RSLC spent over $1 million in 2012 to boost North Carolina Supreme Court justice Paul Newby; in 2023, Newby penned a ruling that hands legislative Republicans near-unlimited power to gerrymander political districts.

Conservative megadonors have been paying attention, too. In an invitation to a secret 2010 meeting convened by billionaire Charles Koch, the agenda included a discussion of state judicial elections as an opportunity “for advocates of free enterprise to have their voices heard." In Iowa in 2019, a Koch-aligned group backed changes to the state’s nominating commission, running Facebook ads that said, “Iowa's judicial branch is controlled by an oligarchy of attorneys. Don’t you deserve a voice?"

The Federalist Society, which helped elevate conservatives to the U.S. Supreme Court, also has ties to dozens of state supreme court justices. A 2019 review by Billy Corriher of the People’s Parity Project linked a majority of state supreme court justices in eight states to the group. “The Federalist Society is very influential at the state level,” Corriher said.

Vanderbilt’s Fitzpatrick has done research showing that nominating commissions and nonpartisan elections produce more liberal judges, that partisan elections produce more moderate judges, and that appointments result in more conservative judges.

Fitzpatrick, who clerked for former Supreme Court Justice Antonin Scalia, favors appointments, the most reliable path to conservative justices. He said a switch Tennessee made in 2014 to an appointment system was “in light of this emerging research,” and the legislator who pushed for changes in Iowa cited Fitzpatrick’s work.

“The Republican Party has wised up to the fact that some of these selection methods are producing courts that are out of step with their states,” Fitzpatrick said.

Backlash in the heartland

Iowa’s Supreme Court has been notably progressive dating back to its first ruling, in 1839. That case established that a Black man who had escaped slavery in Missouri was a free man in Iowa.

But progressive rulings have provoked furious conservative backlash twice in the state in recent decades.

In 2009, the court unanimously ruled that gay couples have a right to marry, making Iowa one of only three states in the country where same-sex marriage was legal.

After the ruling, legislators kicked around proposals to expand the size of the court, set term limits and change the nominating system, though none passed.

Conservatives won a different sort of victory: Iowans voted out three Iowa Supreme Court justices who were on the ballot in retention elections in 2010. Before that, no Iowa high court justice had ever lost such an election.

Justices again angered conservatives with their 2018 decision finding that the Iowa Constitution contained a fundamental right to abortion, and striking down a 72-hour waiting period for the procedure.

The next year, Iowa Rep. Steven Holt, a Republican, introduced a bill overhauling the state’s nominating commission. The group recommends a slate of candidates that the governor is required to select a justice from. Its membership was balanced: eight people chosen by the governor and eight by the state bar association, with a member of the state Supreme Court serving as the chair.

The nominating commission was a product of the state’s 1962 constitution. Typically, it would require a constitutional amendment to alter the commission. But an obscure provision stated that, after 1973, the bar for changing the nominating commission would be lowered so a bill would be enough.

The language had no practical impact for decades — until Republicans seized on it in 2019. Holt called the provision “a very strange escape clause.”

His original idea was to completely remove members of the state bar from the commission. That met the approval of Vanderbilt’s Fitzpatrick, who wrote an op-ed in support. The Koch-aligned Americans for Prosperity pushed legislators to support Holt's bill, and the Judicial Crisis Network, the conservative legal organization tied to the Federalist Society, launched a website that told Iowans that “our courts are soft on crime, big on abortion, and a gold-mine for trial lawyers.”

But the bill drew significant opposition from former justices, a former Republican state chairman and a host of advocacy groups — from the Sierra Club to legal organizations to the Iowa City Area Chamber of Commerce.

"Let’s face it, that's what this is about: They want to get conservative judges on the Supreme Court so they hopefully will overturn some of the rulings that our majority party doesn't like," Democratic Rep. Mary Wolfe said in a TV debate.

During the 2019 session, Holt’s proposal appeared to lose momentum. But on the second-to-last day of the session, it reemerged — this time attached to an appropriations bill securing funding for flood recovery.

The new version no longer completely cut out the state bar from the nominating commission, but it still handed majority power to the governor. It mimics a change Florida made in 2001 that has reshaped that state’s high court.

“This is not a power grab, this is a majority party in this chamber exercising our authority,” Holt said on the floor of the statehouse. "A little more voice to the governor is important because that means a little more voice for the people."

The bill passed, and Gov. Kim Reynolds signed it.

“They wanted to empower a Republican governor. And this was one way to do it,” said Drake University’s Caufield.

Two months after signing the bill, Reynolds boasted that "the tide is turning in Iowa’s Supreme Court. In just two short years, we’ve moved the needle from left to right." Reynolds has since put her imprint on the court, selecting three new justices.

A law firm that tracks the court's rulings said that it seems to have “less appetite,” after the addition of Reynolds’ appointees, for finding the Iowa Constitution grants rights beyond the U.S. Constitution. In surveys conducted by the state bar, Iowa lawyers have given the court’s justices declining marks for whether they decide cases “on basis of applicable law and fact, not affected by outside influence.”

The bench is now fully made up of Republican appointees. Four of the five justices who were in the majority in finding a constitutional right to abortion in 2018 were no longer on the bench four years later, when the court removed that right.

The 2022 case’s conclusion also allowed implementation of a 24-hour waiting period for abortions, which was passed by the legislature after the court struck down the 72-hour waiting period.

“It was certainly a surprise to many to see such a reversal of rights in such a short period of time,” said Mazie Stilwell, the public affairs director for Planned Parenthood in Iowa, which was a party in both cases. She said the change in the nominating commission “gave tremendous leeway to Governor Reynolds to be able to really create the courts that she wanted to see.”

Stilwell said the decision would be felt most acutely by rural residents, Iowans of color and poor residents. It forced many to delay care. Second trimester abortions at Planned Parenthood locations in the upper Midwest rose by 40%, Stilwell said, due to new restrictions.

The court heard another abortion case in 2023, which sought a ban on abortions after six weeks. Justices deadlocked in a 3-3 ruling in June.

“This lack of action disregards the will of Iowa voters and lawmakers who will not rest until the unborn are protected by law,” Reynolds said after the ruling. The president of the Family Leader said that the three justices who ruled against the abortion restrictions “should resign, be impeached or be ousted.” 

In July, Reynolds called a special session of the legislature. Since the legal case concerned procedural issues, Iowa Republicans passed a nearly identical six-week ban, which Reynolds signed into law on July 14. It’s likely the high court will have the final say on the restrictions.

In another 2023 decision, justices ruled that Iowans could only seek monetary damages from the government in situations where the legislature had explicitly allowed it. That overturned a precedent set by the court in 2017, removing another constitutional right.

Two years after Iowa made its changes, state politicians in Montana went after their own nominating commission. There, Republican legislators completely abolished it. The state has nonpartisan elections, but now the governor — himself a Republican — has nearly unchecked power to appoint judges to open seats, though the state Senate still plays a role in confirming certain appointments. 

As in Iowa, some Republicans came out against the changes. Former Montana attorney general and governor Marc Racicot wrote an editorial stating that the bill would consolidate power “solely in the hands of one person — the governor — who could appoint any lawyer with zero regard for his or her qualifications, experience, integrity, record or judicial disposition.” Proponents of the bill argued that the status quo was already partisan.

“It felt like there was either tacit or explicit permission to really hyperpartisan-ize the courts in ways that previously had been taboo,” said Alex Rate of the ACLU of Montana.

The high court has continued to frustrate Republicans by striking down laws making it harder to vote and limiting abortion. That’s because there have been no vacancies for the governor to fill. Yet.

“Where the court fits into the political evolution of Montana is an open question,” the University of Montana’s Lee Banville said.

Controlling the third branch

In two states, Republican politicians eyed their state supreme courts and decided the solution was to expand them.

While adding justices to the U.S. Supreme Court has been political kryptonite for nearly a century, Arizona and Georgia did just that at the state level in 2016. The two states are separated by different climates, political cultures and 1,300 miles, but both have been trending purple in recent years and have undergone significant demographic change.

Adding justices gave Republicans a chance to entrench a majority in Arizona that will persist long after they ceded the governor’s mansion to a Democrat in 2022. In Georgia, it created an opportunity to end a then-current majority of Democratic appointees.

“At the state level, conservatives have been packing their courts for years,” said the Brennan Center’s Douglas Keith.

J.D. Mesnard, the Arizona representative who sponsored the legislation to expand that court from five to seven seats, admitted the party affiliation of the governor was on his mind when he spoke at a committee hearing in 2016. “I’ll just candidly say if there were [a] different person appointing, I might feel less comfortable,” he said.

All five of the state’s justices opposed the change, but Mesnard’s bill passed without Democratic support.

By 2019, Republican Gov. Doug Ducey had appointed a majority of the Supreme Court, partly thanks to the two new seats on the bench he was able to fill. In 2020, he set the record for judicial appointments by an Arizona governor.

Not everything came easy: Ducey had to maneuver in 2019 to push through a candidate for the high court that the state’s nominating commission initially rejected, replacing four members of the commission with enough sympathetic votes to recommend conservative attorney Bill Montgomery.

Ducey was explicit about the role conservatives should play in the courts. At a Federalist Society event in 2019, Ducey said he had recently spoken with co-chairman Leonard Leo and told him “the Federalist Society has now fixed the judicial branch.”

Arizona’s court already had a majority of Republicans, but the expansion bolstered it and gave the bench a libertarian bent. “It's not just that we've expanded the court, but very intentionally, I think, put much more conservative, ideological people on the court,” said David Lujan, a former Democratic state senator who commented while president of the Children’s Action Alliance. He now heads an agency in Gov. Katie Hobbs' administration.

Hobbs will have a chance to put her imprint on the courts, but it’s unlikely the high court will be made up of a majority of Democratic appointees anytime soon.

Mesnard, now a state senator, said he wanted to spread out power among a greater number of justices. “I was just forthright with the fact that you really can't separate the political implications from a decision like that,” he said. “There was just no way to.” Mesnard sponsored other bills to add supervisors to populous counties, create a lieutenant governor and add seats to the legislature.

Since Arizona expanded its bench, the Supreme Court has ruled that voters can’t repeal tax cuts enacted by the legislature and blocked a ballot measure passed by Arizona voters to bolster funding for K-12 schools. “​​Our public schools have a billion dollars less in revenue each year without that funding,” said Lujan, who helped write the measure.

A third ruling denied in-state tuition to students receiving DACA, substantially increasing the cost of attending the state's public colleges and universities for 2,000 students.

“I know for a fact that people had to drop out,” said Karina Ruiz of the Arizona DREAM Act Coalition. “I don't know that the Supreme Court in the state of Arizona realized the real harm that they caused, with this decision, in people's lives.”

The impact was deeply felt at the Maricopa County Community College District, the defendant in the case. The district counted 574 DACA recipients in its student body in spring 2018, the semester that the Supreme Court’s ruling came out. By fall of 2019, that number had fallen to just 115, a drop of four-fifths. 

Four years after the ruling, Arizonans passed a ballot measure that will allow many non-citizen high school graduates to receive in-state tuition going forward.

In 2016, the year Arizona added two members to its Supreme Court, Georgia did the same, expanding its bench from seven to nine justices. Advocates for the change argued that the state’s growing population and economy necessitated additional justices to help bring down the workload.

The court’s growth meant that then-Gov. Nathan Deal would have the opportunity to appoint a majority of the bench during his term. (Georgia has judicial elections, but in practice most judges are initially appointed by the governor.) The bench flipped from a majority of Democratic appointees to a majority of Republican ones.

“If you look at Georgia in 2016, there was a Republican supermajority in the legislature. There was a Republican in the governor's mansion,” said Georgia State University’s Michael Fix. “This was their way to control the third branch of government.”

Georgia’s Supreme Court heard a case on a six-week abortion ban in March. A ruling is expected later this year.

In another Republican-controlled state, Ohio, legislators were dissatisfied with nonpartisan general elections chipping away at a Republican majority on the high court, which had shrunk from 7-0 to 4-3 in recent years. So they proposed in 2021 to make elections partisan.

In debates over the bill, Republican state Sen. Theresa Gavarone called nonpartisan judicial elections a “ruse.” Sitting Supreme Court Justice Pat DeWine, the son of the governor, penned an op-ed supporting the change. Echoing arguments made in North Carolina, DeWine wrote that “rather than hiding party affiliation from the voters, we are far better served by trusting voters with the information and allowing them to make their own decisions.”

While Republicans had maintained a majority on the Ohio Supreme Court, it was close enough that a single vote could swing a case. Indeed, in a series of 2022 rulings, Republican Chief Justice Maureen O’Connor sided with Democrats on gerrymandered political maps.

O’Connor was forced to retire due to age limits. Republicans swept the 2022 races, the first with a partisan label on the ballot. Observers expect the court’s new members will not share O’Connor’s independent streak.

Adding partisan labels “encourages the candidates and voters to think about these justices as partisan actors,” said Common Cause Ohio’s Catherine Turcer. “And that's a real problem when it comes to wanting an independent, impartial judiciary.”

Lawrence Baum, a political science professor at the Ohio State University, said it’s unclear precisely how the new justices will vote. “But there's every reason to think that they will be reliable on ideological issues, as well as partisan issues. We'll just have to wait and see just how reliable they are.”

The wait may not be long. The justices will hear a case concerning a six-week abortion ban this term.

And in June, the four Republican justices sided with Republican legislators seeking to schedule a ballot initiative in August. The measure would increase the threshold for passing future initiatives to 60 percent — and would make it significantly harder for voters to add a right to abortion to the Ohio Constitution with a measure on the ballot in November.

More states lining up to change their courts

Utah and Idaho are the latest states to the party, with each changing how justices reach the bench in 2023.

Utah’s move followed major losses for conservatives at the high court, which had blocked laws banning nearly all abortions and stopping transgender girls from playing high school sports.

The state’s new law reshapes Utah’s nominating commission, handing the governor greater power and stripping the state bar of any input. The bill was sponsored by a state senator whose father runs the largest eviction law firm in Utah, and who had previously introduced legislation that would allow such firms, among others, to avoid unfriendly judges.

“There's no longer any attempt to at least have different voices heard on the nominating commission,” said Erik A. Christiansen, president of the Utah State Bar. The bill also removed a requirement that Democrats play a role on the commission. “That's a pretty strong indicator that they're going to appoint more people who are strictly Republicans,” Christiansen said.

In neighboring Idaho, Republican legislators were seething after the state Supreme Court struck down a law in 2021 that made it more difficult for citizens to place an initiative on the ballot.

This year, legislators passed a bill to transform the state’s nominating commission. As in Iowa and Utah, they granted more power to the governor and weakened the bar’s influence. Under the new structure, the governor will have a role in choosing eight of the commission’s nine members.

State Sen. Abby Lee, who introduced the bill, said during debate, “This is a change to wrest a little bit of influence from the state bar. I admit that. I am not against the bar, but I do think they have had an outsized influence."

Former Idaho Supreme Court Chief Justice Jim Jones could hardly believe that line of reasoning. “Well, she’s dead wrong,” he told Public Integrity.

Jones is concerned about the future of the state's high court. He said political affiliation had only rarely factored into court rulings when he was a judge, but recent changes in Idaho could lead to it resembling “some other states where they have judiciaries that are essentially arms of one or the other parties,” he said, citing North Carolina. Jones, a former Republican attorney general, deemed recent proposals to reshape courts in Idaho "thinly-veiled payback" for the Supreme Court's ruling on initiatives.

In many states, plans to tilt courts to the right percolate for years before becoming law. This year, legislators in over ten states introduced ultimately unsuccessful bills that sought to make judicial selection more partisan, according to an analysis by the Brennan Center — proposals that could come back in future sessions.

Moving to partisan elections has been especially popular, with Tennessee, Pennsylvania, Montana, Arkansas, Oklahoma and West Virginia all considering legislation to do that. “State legislators are taking lessons from what's happened in Ohio and North Carolina,” said Brennan’s Keith.

Other states looked at increasing partisan influence over nominating commissions or in judicial appointments. Nearly all states that considered changes are run by Republicans.

But it’s not only the states making changes where ripple effects could be felt. 

State supreme court justices are poised to play a decisive role in the 2024 election. Legal scholars point out that such courts have unique authority over voting. 

“Most law when it comes to elections is state law,” said Rebecca Green of William & Mary Law School. In 2022, Wisconsin’s Supreme Court banned drop boxes, and Pennsylvania’s high court ruled that undated mail ballots could not be counted.

After the 2020 presidential election, attorneys tied to the Trump campaign and its allies filed 76 legal cases, the overwhelming number of them in state courts, and many challenging the outcome. Trump and his allies lost nearly every case. But not every ruling was unanimous.

With different circumstances and justices, state supreme courts could deliver different decisions.

“These courts are going to decide the next presidential election,” Washington University’s Gibson predicted. “I don't think there's any doubt whatsoever about that. And so everybody knows that, and everybody’s gearing up.”

Public Integrity journalist Ileana Garnand contributed to this article.

The post How Republicans flipped America’s state supreme courts appeared first on Center for Public Integrity.

Santiago Mayer moved to Southern California from Mexico City in 2017, around the time President Donald Trump’s “Muslim ban” was sparking nationwide protests. “I kept wanting to talk about it with people in my classes and with my friends,” Mayer said recently. “And I realized that many people either didn’t know what was happening, or just really didn’t have the tools to talk about it.”

Mayer formed the nonprofit Voters of Tomorrow in 2019 to boost Generation Z engagement in politics and at the polls. It has been a busy four years for the organization since. Gen Z, the generation born after 1996, has dealt with voting during a pandemic, the rise of election denialism and recent efforts in statehouses around the country to make it more difficult for young people, especially college students, to cast a ballot. 

Members of the generation first became eligible to vote in 2015. The first presidential election where a large number of Gen Z voters cast ballots was 2020. 

Amid all that, Mayer, 21, studied at California State University, Long Beach, earning a political science degree this spring. The Center for Public Integrity spoke with Mayer as he was preparing a post-graduation move to Washington, D.C., to continue his work with Voters of Tomorrow.

This conversation has been edited for length and clarity.

Q. In 2020, you were part of an initiative called Prom at the Polls. Can you describe where that concept came from?

Prom at the Polls was really Voters of Tomorrow’s first big initiative. I was Class of 2020. And we missed out on prom, we missed out on graduation. 

We knew that all of our friends had maybe already bought outfits, they were already thinking, “Okay, who am I asking out to prom?” So we really tapped into that energy and that frustration and redirected that energy towards voting. 

It was honestly a lot more successful than we were hoping for. I mean, I’m a big Star Wars fan. So the second I saw Mark Hamill tweet about it, it was like, “Okay, I made it. We’re here.” And we got so much buy-in from so many people, it was really just phenomenal to see videos and photos of people lined up to vote, wearing dresses and wearing suits, and asking each other out, and asking people to go vote with them.

Q. In recent months in 2023, we’ve seen this concerted effort from Republican-controlled legislatures in states like Ohio and Idaho to make it more difficult for young people to vote. 

The conservative election denier Cleta Mitchell recently said, “They basically put the polling place next to the student dorm. So they just have to roll out of bed, vote, and go back to bed.” Why do you think these politicians are so aggressively going after student voters?

Because they’re terrified of us. That’s the simple answer. They are terrified because they know that young people are not buying what they’re selling. We’ve seen it in 2018. We’ve seen it in 2020. We’ve seen it in 2022. 

Young people are turning away from the hate-filled platform that many people on the right have. I don’t think that describing Gen Z as a Democratic generation is accurate. What Gen Z is really looking for is a future that works for them, and a government that works for them, and that protects them. 

And what we have seen from people on the right, especially over the last few years, and with people like Cleta Mitchell, is that they acknowledge what is happening, they know young people are rejecting them. But they refuse to really turn their platform around. And they are much more interested in continuing this wave of hate and harassment against LGBTQ+ rights, of turning back rights that my generation has never lived without, like abortion rights.

[They are] trying to figure out a way to make young people not be able to vote. And we’re seeing that in Ohio, we’re seeing it in Florida. We’re seeing it in Texas, where there’s really a coordinated effort to make voting more complicated and harder for young people.

Q. A lot of the conversation around Gen Z voters is about college students and voting sites near campus. But there are also millions of young people who don’t attend college. What can groups like yours do to help mobilize those people?

The way that Voters of Tomorrow works, it’s really open to everyone. We obviously have concentrations of young people on college campuses, but our outreach is not limited to those college campuses. 

I think everything has to be locally driven. We really work with our local chapters to understand what they’re doing, what young people in their area want to do, and support that. Whether that’s introducing bills in a state legislature, whether that is working and doing voter registration drives in parks or community centers, outside of schools, or whether that’s literally going out to the state capitol and distributing books with voter registration information. 

The goal really is to find the young people wherever they are, meet them there and allow them to become an active part of politics and government.

Q. Do you think that the parties do an effective job of reaching out to and engaging young voters?

We were just talking about how there’s a concentrated effort to stop young people from voting on one side, right. And that’s obviously not all Republicans, there are Republicans who have actually been pretty good about working with young people. But we do see that from that side. 

On the Democratic side, I think there’s been a realization over the past few cycles that young voters are a key part of their constituency, especially as we gear up for ‘24. 

Q. Voters of Tomorrow has several policy areas that you focus on: climate change, economic issues, democracy, others. Do you think that the relatively low turnout among young voters — at least as compared to older voters — reflects that candidates aren’t running on or speaking to the issues that are relevant to Gen Z?

The way we approach the issue is by what we call “the cycle of disengagement.” 

And that means young people may not be super engaged. And thus, politicians don’t feel like they need to speak to them, or represent them. And until politicians stop ignoring us, young people aren’t going to be super engaged. It’s like this self-confirming cycle.

What we’ve seen over the past few elections is both young people realizing that, and actually turning out to make sure that politicians realize that they are an important voting bloc.

Q. Mindy Romero at the University of Southern California recently wrote that even though youth turnout improved in the 2022 midterms, it was still low compared to overall voter turnout. Only 27% of those 18-29 cast ballots. What will it take to get that number up?

It takes more than one cycle, right? We have been building at this.

Cycle by cycle, that number keeps increasing. And if organizations like Voters of Tomorrow continue to invest, if the parties continue to invest, if the candidates recognize the value in young voters, we’re going to continue to see that number rise, because also young people are realizing the power that they have. 

Q. Along with young voters, Latino voters are underrepresented in the electorate. And there’s a lot of overlap there, as Latinos as a group skew pretty young. What can groups like yours do to help engage and mobilize young Latinos?

I think in the past, we’ve had this misconstrued idea that the way to get Latinos is to go out there and talk somewhat decent Spanish, right? I mean, I’m obviously an immigrant, I didn’t grow up in the U.S. and my experience as a Latino in the U.S. is very different from someone who has lived here their entire life. But I really do think that just platitudes, like talking Spanish, isn’t going to cut it. You need to show actual policy-based solutions to problems that a lot of Latinos have.

And I think what we have seen is sort of the compartmentalization of Latinos into “they only care about immigration.” When in reality, Latinos, both young and old, are a very diverse demographic, and treating them as a complex part of the electorate, rather than this group in a box, I think that’s very important. 

Q. What are you paying attention to, as we gear up for a presidential election next year? 

The attacks on young people. We have seen pretty clearly that the far right is engaged in what we call a war on youth, and that encompasses everything from banning books to suppressing our voting rights. So seeing what they are doing on that front and fighting back against it is probably our biggest concern right now.

But we’re also seeing and we’re also tracking really what sort of investments are coming into this space. Historically, the youth space has not been one that is well funded. 

We’re paying attention to the emphasis that the political infrastructure overall places on young people and seeing what the priorities are. Like, are they investing in campus organizers? Are they investing in TikTok influencers? Are they investing in online ads? 

Figuring out what people are doing, I think, is going to be particularly important moving into 2024, just because it is going to be a substantially different election from 2020, without COVID. And the ways that we can organize young people are going to be so much different.

The post A Gen Z voting activist discusses the ‘war on youth’ appeared first on Center for Public Integrity.

It was a crowning achievement of the civil rights movement: the Voting Rights Act of 1965. For decades, it gave the federal government the power to shut down potentially discriminatory voting changes before they took effect. And on June 25, 2013, the U.S. Supreme Court gutted it.

The court ruled that the formula behind the law’s preclearance measure — which required some jurisdictions with histories of discrimination to secure approval for new voting laws — was unconstitutional. The preclearance requirement had been reauthorized several times by Congress, most recently in 2006.

In his opinion in the Shelby County v. Holder case, Chief Justice John Roberts argued that the measure was no longer necessary: “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

The decision was a blow to advocates for voter access, including Debo Adegbile. As an attorney for the Legal Defense Fund, Adegbile argued the Shelby County case before the court.

In the years since, he worked as senior counsel for the Senate Judiciary Committee and was appointed by President Barack Obama to a six-year term on the U.S. Commission on Civil Rights, which ended in 2022. (Adegbile’s experience prior to his legal career included acting on Sesame Street for several years as a child.)

Now in private practice at the law firm WilmerHale, Adegbile spoke to Public Integrity about the legacy of Shelby County v. Holder, 10 years on.

This conversation has been edited for length and clarity.

Q. You represented a man named Ernest Montgomery, who had been the only Black elected official on the Calera, Alabama, city council. How did a lawsuit over Ernest Montgomery’s city council district become a referendum on the Voting Rights Act?

The Alabama area where Ernest Montgomery lived essentially eliminated his district in a redistricting plan that they failed to submit to the Department of Justice initially. 

And then, once it was submitted, a number of things were discovered. First, they had been engaging in a number of annexations to change the composition of the districts and have the effect of diluting the Black vote. Second, they then ran the election that DOJ objected to — because it would worsen the position of African American voters to elect candidates of their choosing; they went ahead and ran the election anyway. And the Black member of the council was eliminated. 

Later, DOJ brought an enforcement action and restored the district that ultimately Ernest Montgomery was elected back into. [Montgomery is still on the Calera City Council in 2023.]

It became the theater of war for a larger attack that ultimately disemboweled a core provision of the Voting Rights Act, the Section 5 preclearance provision.

Q. The court’s ruling said, essentially, that the moment in American history where preclearance was necessary had passed. What was preclearance and what did it mean for elections in this country?

The preclearance provision — which I like to refer to as the heart of the Voting Rights Act — was a provision that essentially focused on certain parts of the country, which had some of the most severe histories of discrimination. 

And it said that in those places, no voting change could take effect before it was submitted to the Department of Justice and the showing was made, by the jurisdiction that was seeking to make the change, that it wouldn’t worsen the position of minority voters. The other way that the jurisdiction could get approval was to go to a three-judge court in Washington and make the same showing.

And that provision was very powerful, because the necessity of having to get a voting change approved before it could take effect meant that if there were discriminatory voting changes, they could be blocked and stopped by the Department of Justice. 

Separately, it was a very powerful part of the statute because it deterred lots of bad behavior. Because the jurisdictions that were covered by preclearance knew that they were going to have to come forward, and that they would bear the burden of making the affirmative showing that the proposed voting change didn’t adversely affect minority voters. 

It was very powerful and protected minority voting rights in these places where discrimination had been persistent and adaptive.

Q. Just a few years before Shelby County, you had argued another case before the Supreme Court, Northwest Austin Utility v. Holder. In that case, the court left Section 5 standing. What changed between that ruling, in 2009, and Shelby County v. Holder in 2013?

It was a copycat case, with one significant difference. 

The earlier case had a statutory claim. They made a claim that not only was the preclearance provision unconstitutional, they also argued that the jurisdiction that was bringing forward the challenge — the Northwest Austin Municipal Utility District — had an opportunity to “bail out” from coverage of the preclearance system. 

The statute had an incentive mechanism built into it, that jurisdictions that had a clean bill of health for 10 years could apply to be exempted from having to submit their voting changes going forward. That provision, that incentive for good behavior, was called the bailout provision. 

And in the Northwest Austin case, the plaintiffs in that case argued both that the statute was unconstitutional; but separately, that the jurisdiction, the utility district, should be eligible to try and bail out because they didn’t have any voting discrimination.

In that case, the court ruled that they were eligible for bailout, and so the court took that off-ramp [by not ruling on a constitutional issue, only the issue of the bailout].

The difference in Shelby County was that there was no statutory claim. It was only the constitutional claim that was squarely presented to the court, and thus there was no similar off-ramp. And the ruling then was 5-to-4 declaring the preclearance provision unconstitutional, over some very strong dissent by Justice Ginsburg.

Q. So we are now nearly a decade from that ruling. What has a weakened Voting Rights Act meant for our democracy?

The discriminatory voting measures began on the day of the Shelby County ruling. States that had previously been covered by preclearance, like Texas and North Carolina, immediately put into place voting measures that would be challenged in long litigation, and ultimately be found to be discriminatory. 

And so what we predicted would happen began immediately, and it has only continued. That’s a terrible outcome for our democracy. 

The ruling had a signaling effect, that the court and the federal government was in retreat from the longstanding mission of minority voter protection. And that signaling effect has had an equally damaging impact as not having the statute itself. 

It has given some power and some motivation to those who would seek to impose discriminatory voting measures to try and see how many of them they can get by, because it seems like the court is not going to be as vigilant in protecting our democracy. What the court misunderstood is just how fragile our democracy is.

Q. There’s currently a case in a lower court that could reach the U.S. Supreme Court and hamstring Section 2 of the VRA — potentially limiting private individuals and groups from bringing lawsuits. What would that kind of change mean for voters?

One of the primary arguments at the time of the Shelby County case was that the preclearance provision that applied only to some parts of the country with long histories of voting discrimination was not necessary, because there was another provision that applied nationwide. That other provision is Section 2 of the Voting Rights Act. 

What we have seen is that folks are now attacking and undermining Section 2 itself. And so it’s dismantling the statute and its purpose, piece by piece. 

We need to see if the Supreme Court was serious when they relied, in part, on the existence of Section 2 as being an adequate voter protection measure.

Q. The court in Shelby County didn’t find that Section 5 of the law was unconstitutional — instead they said the “coverage formula” in another part of the law was. Congress has the power to come up with a new coverage formula. Are you hopeful that Congress could do that in a way that would satisfy the current court? Or that Congress might take any action on federal oversight of voting rights?

We’re now 10 years on and no legislation has passed yet. I know that Congress continues to work on that legislation. I actually left LDF and went to work on the Hill for Senator [Patrick] Leahy on that legislation, and so I worked on an early version of [the John Lewis Voting Rights Advancement Act]. I do think that in time, Congress will act. But it has been very slow to act. 

In the meantime, all of the discrimination in these formerly covered jurisdictions is unfolding, and is having an impact unless voting litigators are able to block it bringing one case at a time — which of course is less efficient and less effective than the prophylactic measure of having the preclearance provision in place.

Q. We’ve been talking about the last 10 years, but what do you think the next 10 years hold for election law and voting in this country?

We’re going to have to decide: What are we prepared to tolerate in terms of our democracy?

But what we have seen is that these problems are intense, they’re still real, they are with us and they can affect elections every day. And so what needs to happen at the state and federal levels is that there are bills and measures that affirmatively protect people’s access to participate in our democracy. We can only be a beacon of democracy if we practice it at home first. 

I like to say that there are two ways to win elections. One is to motivate more of your voters to get people out to vote, to have ideas that people are attracted to and get behind. And I call that democracy’s high road, through voter mobilization.

The reality is that there’s another path to win elections, and there’s a long history of it in the United States. That’s the path of trying to block or deter your opponents’ voters from getting to the polls. Essentially, democracy through subtraction, rather than democracy through addition. That is the low road of American democracy.

Q. Is there anything else you want to say?

I believe Shelby County will go down in the annals of Supreme Court jurisprudence as one of the most harmful decisions in the area of American democracy and in civil rights. I believe that history will not be kind to the ruling in Shelby County. 

All of the facts and evidence were before the Supreme Court. There was an extraordinary, virtually unprecedented congressional record to support what Congress did. And we, immediately, have seen the impact of that ruling. And so what we will need to do is to stay on the course of the long fight to protect American democracy, know that democracy is an active sport and not shrink from that fight. Even in the face of obstacles.

The post ‘What the court misunderstood is just how fragile our democracy is’ appeared first on Center for Public Integrity.

This story is a collaboration between the Center for Public Integrity and Bolts.

The Howard R. Young Correctional Institution sits between a creek and Interstate 495 in Wilmington, Delaware. For the last ten years, the prison’s 1,281 residents were counted as constituents of Wilmington’s third city council district.

But when local officials sat down to redraw Wilmington’s city council lines after the 2020 Census, they took a new approach: They counted people in the prison at their last known address in Wilmington — and didn’t count them at all if they hadn’t lived in the city.

“Counting people where they are incarcerated during redistricting, it distorts our system of representative government,” said Wilmington Councilmember Shané Darby, who pushed for the change.

Several states, and a growing number of cities and counties across the U.S., have adopted this reform. They’re seeking to end prison gerrymandering — the term advocates use for counting incarcerated people at the facility where they’re locked up, rather than in their home community. The practice typically dilutes the power of urban areas and communities of color, which see higher rates of incarceration, and at their expense boosts white and rural areas where most prisons are located.

But prison gerrymandering affects more than the representation cities receive in statehouses and Congress, where the issue has drawn significant attention. It also distorts representation within a city, affecting the boundaries that define politics at the local level.

That’s the case in Wilmington, Delaware’s most populous city and one where Black residents make up a majority. The city also has the highest rate of incarceration in the state. And not only does a state prison sit within city limits, Wilmington is also home to a facility for people in substance abuse treatment programs and on work release, which itself has about 150 residents.

Delaware passed a law in 2010 ending prison gerrymandering in state legislative maps — but not in maps for municipal or county governments. That left it up to city and county officials to decide whether to do the same for their local districts. 

Predictably, different places made different choices. Now, for the rest of the decade, people in this state will be governed by local maps that follow conflicting standards. This idiosyncrasy extends to several other states, with local officials’ choices on prison gerrymandering typically receiving little scrutiny.

In Wilmington, Darby and other officials voted to follow in the state’s footsteps in September 2021. Darby said the approach was designed to better reflect the city.

“When you divide up communities, you diminish their power and their voice,” she said.

In the city’s third district, that meant subtracting the 1,281 residents at the prison from its population count. But it also required adding back 281 residents of the district who were incarcerated around Delaware — some at the prison in Wilmington, but many in other parts of the state.

Wilmington’s third district, on the city’s east side, had the highest share of Black residents of any of its eight council districts as well as the largest number of residents who are incarcerated in Delaware. Several census tracts within the district have lower median incomes than the city as a whole.

The new approach to map-drawing left Wilmington’s third district with fewer residents than under the old formula. So the committee shifted its boundaries, adding several downtown blocks to ensure it had a population in line with other districts.

The end to prison gerrymandering enjoyed wide support among the politicians redrawing the lines in town.

The city finalized its maps in December 2021, and voters will cast ballots in the new districts for the first time in 2024. Separately, the city council adopted a measure sponsored by Darby to continue drawing maps this way in future cycles of redistricting.

“I was glad that we were able to count folks back in their home district and not overinflate the population of the district that has the facility,” said Dwayne Bensing, legal director of the ACLU of Delaware. In a newspaper editorial, Bensing wrote that Wilmington “avoided a prison gerrymandering fiasco.”

He told the Center for Public Integrity and Bolts that the redrawn districts weren’t likely to lead to huge political changes in the city, but in Wilmington’s compact districts, with about 8,800 people each, it’s a meaningful step.

The new approach “ensures that every person in Wilmington has an equal say in their government,” said Mike Wessler of the nonprofit Prison Policy Initiative, which tracks reform efforts across the country.

A rising effort to restrict prison gerrymandering

Exploding prison populations in the 1980s and 1990s, fueled by America’s war on drugs, reshaped communities and political maps across the country. They also added weight to the issue of prison gerrymandering.

The city of Anamosa, Iowa, became a poster child for challenges at the local level: In one of its city council districts, about 95% of residents were incarcerated in a state prison. (After a local man won the seat with two votes in 2006, he told a reporter, “Do I consider [incarcerated people] my constituents? … They don’t vote, so, I guess, not really.”)

Prison gerrymandering “distorts our democracy,” Wessler said. “It fundamentally alters political representation, and that harms every single person, whether they live one mile from a prison or 1,000 miles from a prison.” He said local governments were early leaders on the issue, with over 200 adopting reforms in the 2000 and 2010 cycles.

In 2010, New York and Maryland passed laws ending prison gerrymandering at the state legislative level. By the next cycle, a decade later, over a dozen states had passed similar laws. 

Nearly half of Americans now live in a state that has taken action to end the practice in drawing statewide maps, the Prison Policy Initiative estimates.

Wessler called the adoption of these laws “a sea change” from the situation two decades ago.

States that ended prison gerrymandering heading into the last redistricting cycle were nearly all run by Democrats, with a wave of newcomers passing the reform in rapid succession over the past four years — including Colorado, New Jersey and Virginia. In these states, with vast disparities in the geography of where people are arrested and where they serve prison terms, legislative maps now count incarcerated people at their last known address.  

The issue has attracted attention in some areas that tilt Republican. Earlier this month, Montana’s state Senate passed a bill to end prison gerrymandering after the state’s bipartisan redistricting commission unanimously supported the change.

But any movement to end the practice altogether would have to come at the federal level. With that in mind, a group of three dozen advocacy organizations are calling on the U.S. Department of Commerce to change the tally in the 2030 Census. They write in a letter that “counting incarcerated people at home ensures that communities hit hardest by mass incarceration get equal representation in state and local governments.”

Even within a state, a patchwork of laws

The combination of state and local laws leaves some Americans without any representation.

Take the situation in Delaware. Wilmington ended prison gerrymandering, but Newark, the state’s third most populous city, didn’t. That means a Newark resident incarcerated in Wilmington wouldn’t be counted in a city council district in their hometown — and also wouldn’t be counted in the city where they are incarcerated.

For the purposes of city council representation, they are counted nowhere.

Muddying the waters further: New Castle County, which includes Wilmington, still draws lines for its own districts that count people as living in prison.

“This fits within a broader scheme of a patchwork of laws governing voting rights within the state of Delaware,” said the ACLU’s Bensing. Several states take a scattershot approach to the issue, with inconsistent requirements for congressional districts, state legislative districts and even school boards.

A similar dynamic has played out in Nevada: The state ended prison gerrymandering in congressional and state legislative districts, but left decisions at the city council level up to local governments. In the most recent cycle, Las Vegas counted incarcerated people at their last pre-prison address, and Reno did not.

Some of these asymmetries stem from state legislators’ decision to exempt local governments from the laws they passed. Kathay Feng, an advocate at the voting rights organization Common Cause, said this may have been a tactic in some states to avoid paying the cost of local changes, or to sidestep conflicts with “home rule” laws that give localities wide latitude.

Darby, the Wilmington councilmember, was happy to bring her city in line with the way Delaware draws state legislative districts.

Now, she says she’d like to see governments include incarcerated people in the political process. Delaware currently bars people in prison with felony convictions from voting, and it also disenfranchises thousands of people on probation or parole. The state makes it more difficult to regain voting rights than most in the Northeast.

“How do we take it a step further?” Darby asked. “They need rights to vote — not everybody, but some people who are in prison should still be able to vote and have their voices be heard.”

Currently, only Maine, Vermont and Washington, D.C., allow people in prison to vote. Many Americans held in local jails also retain their right to vote but find it nearly impossible to cast a ballot. Advocates say that this “de facto disenfranchisement” affects the majority of the roughly 445,000 people in American jails who have not been convicted of a crime. A handful of states and counties around the U.S. have made a push to facilitate jail voting, including establishing precincts in jail, but some local officials have resisted such efforts.

As a result, thousands of Americans are counted for the purpose of redistricting where they are detained, increasing that area’s political clout, without the ability to participate in local elections.

And until the Census Bureau changes the way it counts incarcerated people, advocates and elected officials will be forced to address prison gerrymandering one place at a time. 

“The city of Wilmington is small, and the population of the prison wasn’t anything crazy,” said Darby, who sponsored the measure to permanently end the practice in the city. “But I thought it was important to make that point.”

The post How one city ended prison gerrymandering appeared first on Center for Public Integrity.

Voting itself was on the ballot in the 2022 midterm elections, with initiatives seeking to revamp election laws in states across the country.

Measures that promoted early voting and increased access to the ballot box saw wins in multiple states, but so did restrictive proposals that tightened voter ID laws or barred non-citizens from voting on local matters. The results follow a two-year period during which legislators in Republican-controlled states moved to create barriers to the franchise, and states controlled by Democrats largely made access to voting easier and more equitable.

This year’s ballot measures suggest that voters may take a more nuanced view on democracy than the politicians they elect, said Jasleen Singh of the Brennan Center for Justice. She pointed to the success of a sweeping elections proposal in Michigan and the defeat of voter ID requirements in Arizona, two states with significant shares of Republican voters.

“When voter access is up to the voters, voters are going to choose, by and large, to protect that access and protect democracy,” Singh said.

In other states, including Arkansas, Connecticut, Louisiana, Nebraska and Ohio, voters decided the fate of ballot measures impacting elections. But these state-level fights were overshadowed in national media coverage by the candidates vying for statewide office who refused to accept the results of the 2020 presidential election. Those candidates were resoundingly rejected this year in purple states.

Their defeats mean that the most direct impact from this year’s midterms on voting will come from ballot measures.

‘The voters weren’t having it’

The most sweeping measure was Michigan’s Proposal 2, which sought to add several voter-friendly policies to the state constitution, including nine days of early in-person voting, state-funded drop boxes in communities across Michigan and pre-paid postage for absentee ballots.

The measure won resoundingly, attracting 60% of the vote. That significantly outpaced two statewide Democratic candidates, who themselves comfortably won re-election in Michigan’s governor and secretary of state races.

“It passed in many heavily Republican parts of the state,” said University of Michigan political scientist Tom Ivacko. 

He said that a series of restrictive bills that passed out of Michigan’s Republican Legislature, before being vetoed by Democratic Gov. Gretchen Witmer, alarmed people across Michigan. “The voters weren’t having it,” he said.

About this series

This project looks at the state of voting access, voting rights and inequities in political representation in all 50 states and Washington, D.C.

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Republican-aligned groups opposed Proposal 2. Michigan Fair Elections, a conservative outfit that denied the results of the 2020 election and fixated on the idea that Democrats cheat, was one of them. 

Representatives of the group did not respond to requests for an interview, but wrote on their website after the election that “many of these naive souls bought the lies inflicted on them” about 2022 ballot measures, including Proposal 2. “They simply could not fathom — nor dared they contemplate — the forces at work to steal our elections,” the blog post said.

Supporters cheered the result, with the leader of a coalition of groups backing the measure saying it “protects the fundamental right to vote while enhancing security and expanding the accessibility of Michigan’s future elections.”

Proposal 2 will allow local clerks to continue accepting outside money to fund elections, a practice that became contentious in 2020 as underfunded local officials scrambled to conduct elections during a pandemic. Many election officials praised the outside money from nonprofits as a lifeline, but donations from Facebook CEO Mark Zuckerberg to one major nonprofit sparked conspiracy theories from former President Donald Trump and his allies.

Ivacko said “the ideal situation here is that the state would fund local governments sufficiently,” but that that’s far from the reality in Michigan or around the country. Proposal 2 requires transparency around donations and prohibits foreign funding of elections.

The measure also takes aim at a tactic that election deniers attempted to use to overturn the 2020 election results in Michigan: It removes power from canvassing boards, which certify election results. The measure clarifies that boards must certify the officially reported vote totals, not investigate fraud claims. Trump allies attempted to convince boards to hand the election to the former president in 2020, after he lost Michigan by 154,000 votes.

“Election denialism is an extraordinary threat to our democracy. It was rejected here in Michigan, statewide, pretty thoroughly,” Ivacko said about the 2022 results. That underscores that strengthening democracy is a top priority for a majority of voters, he added.

The 2022 initiative follows a measure passed four years ago that allowed Michiganders to request absentee ballots without an excuse and established same-day voter registration.

Diverging results on voter ID

Arizona and Nebraska voters both faced initiatives on voter ID this year. The two states went in opposite directions, with Nebraska giving a green light to tighter restrictions and Arizona narrowly defeating additional ID requirements.

Nebraska’s 93 counties all voted in favor of Initiative 432, which garnered nearly two-thirds support across the state. But the measure did not specify what ID requirements voters will face. Instead, it directs the state Legislature to come up with them.

“Our main concern is that it’s incredibly vague,” said Heidi Uhing of Civic Nebraska, which opposed the measure. “It just provides no detail about what this voter ID bill would even look like, how it would be carried out, how it would be funded,” she said.

Proponents said it would help secure Nebraska elections. Nebraska Secretary of State Robert Evnen, who supported Initiative 432, has denied that there was evidence of voter fraud in 2020.

“Nebraska has never had a problem with voter identification fraud. There just are no reported cases of this. And so it’s really a solution in search of a problem,” Uhing said. She’s concerned that strict voter ID requirements will make voting difficult for young people, people with disabilities and voters of color.

“It really does affect people across the board,” she said. That includes rural Nebraskans, many of whom live in counties where motor-vehicle offices are rarely open. 

The precise impact will depend on the bill that legislators craft. Nebraska has resisted placing restrictions on voting in recent years, in part because lawmakers aligned with Democrats — the state’s Legislature is officially nonpartisan — have successfully filibustered a series of bills. After this year’s elections, Republican-aligned lawmakers are one vote short of a supermajority, meaning that any voter ID measure will have to contend with the threat of a filibuster again.

The details of any bill, and when it might pass, are up in the air heading into 2023.

Nearly 1,000 miles to the southwest, Arizona lawmakers placed their own voter ID measure on the ballot this year — part of a flurry of legislative activity rolling back access to voting. Proposition 309 sought to require certain types of photo ID at the polls and remove the option to present two types of non-photo ID. It also would have required voters to write their date of birth and voter ID number on affidavits when returning mail ballots.

The measure lost by the narrowest of margins, netting 49.6% of the vote. That means Arizona voters won’t face the additional ID requirements to vote in-person and by mail in future elections.

“That’s too close for comfort,” said Carolina Rodriguez-Greer of Mi Familia Vota. Still, she was breathing a sigh of relief. “I’m glad to see that the majority of the voters who voted in this election understood that this wouldn’t actually make voting easier. It would make it harder.”

As in Nebraska, opponents of additional voter ID feared the laws would disenfranchise Arizonans, and in particular Indigenous voters whose tribal ID cards don’t include photos, and who may not have a street-level address. 

“This ballot measure was crafted in response to historic turnout,” said Alex Alvarez of Progress Arizona. “Legislators saw this as an opportunity to stop communities — like Indigenous communities — from exercising their vote.”

A number of studies have found that strict voter ID laws disproportionately affect voters of color. And a law that impacts even a small share of voters can have massive implications: the lead for Democratic candidate Kris Mayes in Arizona’s Secretary of State race is just 511 votes out of more than 2.5 million cast.

Other measures on the Arizona ballot were designed to transform the initiative process itself. Alvarez called them “a suite of ballot measures that were meant to do the same thing, which is to take away power from Arizonans in citizen-led ballot initiatives.”

A proposition to allow the Legislature to amend or repeal ballot measures failed. But efforts to limit ballot measures to a single subject and to require 60% of the vote for measures that increase taxes succeeded. In both cases, voters opted to limit their own power.

Separate propositions to create an office of lieutenant governor and to increase transparency in campaign finance disclosures both succeeded in Arizona.

Changes to voting laws around the country

On December 10, voters in Louisiana passed a constitutional amendment that barred noncitizens from voting in elections.

It followed the success of a similar initiative in Ohio in November. While noncitizens can’t vote in federal elections in the U.S., they can in a few local elections; 15 municipalities in the U.S. have passed laws allowing noncitizens to vote. In recent years, a handful of states have changed their constitutions to prohibit noncitizens from voting, part of a nationwide push by Republican groups.

Ohio and Louisiana are the most recent states to ban noncitizen voting, joining Alabama, Colorado, Florida and North Dakota.

In Connecticut, voters passed a constitutional amendment that will pave the way for early voting there. Connecticut was one of the few states without early voting. As in Nebraska, the initiative directs the state Legislature to craft a bill, so the details aren’t yet known. Local advocates are hopeful the changes will take effect in time for the 2024 elections.  

Other changes this year included Nevadans approving open primaries and ranked-choice voting, and voters in Arkansas shooting down a ballot measure that would have required 60% of the vote to pass initiatives. 

In South Dakota, voters chose to amend the state constitution to expand Medicaid eligibility. They cast their votes in November after defeating a separate measure in June  that sought to raise the threshold for initiatives to 60%. The state’s Legislature had placed the June measure on the ballot, hoping to stymie Medicaid expansion. 

It didn’t work. South Dakota became the seventh state in recent years to expand Medicaid through the ballot box.

The post This year’s ballot measures will change how many Americans vote appeared first on Center for Public Integrity.

The voter turnout in 2020 was a stunning 67%, according to one source.

Another had it at 94%.

A third fixed 2020 voter turnout at 63%.

All three are correct — because they do the math differently. They’re comparing actual voters with the number of eligible voters, registered voters and Americans of voting age, respectively.

The turnout for 2022 is still coming into focus as the last ballots continue to be tallied, but it looks to be unusually high for a midterm election. Those turnout figures are typically discussed as evidence of voter interest (or apathy) in an election. But the way that voter turnout is calculated reveals who counts, and who is left out, in American elections.

Generally, turnout considers “the number of registered voters who actually get to the polls or send in their mail-in ballots,” said Khalif Ali of Common Cause Pennsylvania.

The tricky part is determining what figure to divide that number of votes by. Election officials and journalists often use the number of registered voters. (That’s not static: 22 states allow same-day registration. And since the 2020 election, Republican-controlled legislatures in some states have made it more difficult to register to vote.)

Academics who study elections favor other measures. One, used by the U.S. Census, is the “citizen voting-age population,” which it determines after each national election. That figure grew from 145 million in 1980 to more than 230 million in 2020.

But not all U.S. citizens of voting age are eligible to vote. So the University of Florida’s Michael McDonald calculates the “voting-eligible population” for each state, subtracting people barred from voting because they are in prison, have a felony on their record, or are on probation or parole.

That type of disenfranchisement varies wildly across the country due to state laws. In Georgia, it blocked 4% of the voting-eligible population from casting a ballot in 2020, while in Massachusetts the figure was 0.1%, according to McDonald’s estimates. Calculating turnout using the voting-eligible population is a more precise accounting of the participation of Americans, since it considers those who could register and vote, but haven’t.

By that measure, turnout was 67% two years ago.

But even that doesn’t tell the whole story. 

“Looking at aggregate or overall turnout is certainly important, but considering who turns out to vote is just as important,” said Zoltan Hajnal, a political science professor at the University California San Diego. 

In 2020, the electorate was older, whiter, more female and more educated than the country as a whole. That’s a consistent pattern in American elections, even as the nation has become more diverse.

A slew of new laws that made voting more difficult in states that include Georgia, Iowa and Florida add to the challenge of addressing those disparities. The bills, passed in the last two years, have targeted methods disproportionately used by people of color and younger, more Democratic-leaning voters. The measures attacked mail voting, non-governmental funding for elections and ballot drop boxes.

For all the hand-wringing over national turnout, the figures are dramatically worse at the local level, where mayoral races see less than 25% of potential voters actually cast a vote. But there are ways to boost that. Hajnal found that in California, timing local elections to coincide with national ones led to a larger and more representative electorate, boosting turnout among Latino voters, Asian voters, and voters with less family wealth. 

“By simply shifting the date of the election, we can basically double or triple participation in local democracy,” he said.

One other factor looms large over discussions about turnout: It’s much more difficult to register to vote in the U.S. than in other countries. That’s no coincidence. The Center for Public Integrity found that many Republican-controlled states have made it harder to register and vote since 2020.

“That additional hurdle lowers turnout in the United States relative to other countries by a significant margin,” Hajnal said.

Nations like Taiwan, Brazil, Sweden and Mexico all see higher shares of their voting-age population turning out in elections than the U.S., according to Pew Research Center.

Turnout takes time

The most intense interest in voter turnout comes on election night and the days after. But that’s a poor time to gauge turnout in states with widespread mail voting and postmark deadlines.

In those places, counting can take weeks.

Two days after the 2022 election, officials in the nation's largest local election jurisdiction, Los Angeles County in California, announced they had over 1 million ballots left to process. Those were a mix of vote-by-mail ballots, ballots cast by voters who registered "conditionally" and ballots that were damaged or required closer inspection from officials.

And some ballots were still on the way at that point, since California allows those postmarked by Election Day to arrive as late as seven days after the election.

The number of yet-to-be-processed ballots means that turnout can look lousy for several days after the election — and then steadily climb in the days that follow. L.A. County’s turnout climbed more than 20 percentage points two years ago, as more and more ballots were counted. 

Turnout that initially appears weak but later grows is common in states with substantial amounts of mail voting. Local pundits bemoan the initial figures, then fail to point out the much higher final turnout.

The amount of time it takes all ballots to be counted does not affect only voter turnout and local media coverage — it has transformed into an explosive political issue. In 2020, it took four days for news organizations to call Joe Biden’s victory over Donald Trump in Pennsylvania. In the intervening time, as Trump’s lead shrank, the former president and other right-wing figures pushed false information about the election.

The delays happen, in part, because Pennsylvania is one of nine states that forbids election workers from processing ballots before Election Day. The state’s Democratic governor and Republican-controlled legislature haven’t been able to agree on a bill to change that. Most other U.S. states, including Florida, New Jersey and Wyoming, do allow ballots to be processed pre-election.

“Since we don't have that, then what is required of us is patience,” said Common Cause’s Ali. “I'm more concerned about an accurate count than I am a quick count.”

The post What voter turnout shows, and hides, about elections appeared first on Center for Public Integrity.

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In 2020, ballot drop boxes were a sturdy, metallic symbol of increased voter access amid a pandemic. Absentee and mail voting surged across the country, and voters used drop boxes to return 41% of those ballots.

Two years later, they’ve become a symbol of the attacks on voter access. After 2020, right-wing activists scrutinized security footage of drop boxes but failed to turn up evidence of widespread voter fraud. States across the country told the Associated Press there were no cases of fraud, vandalism or theft involving drop boxes that could have affected election outcomes.

But the campaigns against them are increasingly succeeding. Laws, court rulings and local and state politicians in at least a dozen states have targeted drop boxes in the last two years.

A Texas law banned them. New Hampshire eliminated them after its governor terminated an emergency order that allowed them during the pandemic.

Wisconsin had more than 500 locations in 2020, but the state’s Supreme Court declared drop boxes illegal in July.

And local access is shrinking in other places:

• Battles in Pennsylvania include elected officials in one county cutting the number of drop boxes from six to one — and then to zero.
• A Florida law prompted counties to ax locations and limit hours. In Palm Beach County, about 190,000 voters lived at least half a mile farther from a drop box in the 2022 primary, compared to 2020.
• Populous places in Georgia reduced drop boxes to comply with a new state law, including one county that now has 80% fewer locations than it did in 2020.

Further restrictions appear likely. Bills to ban drop boxes in Idaho, Arizona and Pennsylvania passed in one chamber of the legislature this year before falling short. With hundreds of GOP candidates on the November ballot who question the 2020 election results, bans could become law in 2023 and beyond.

“There’s definitely a national push,” said Georgia Rep. Rhonda Burnough. Clayton County, in her district, offered seven drop boxes in 2020 but was restricted to three in 2022. Neighboring Fulton County dropped from 37 drop boxes to seven.

“Everybody benefited from drop boxes, regardless of age or occupation. It was just one of those things that was very, very convenient,” Burnough said.

In many areas, the curtailments will hit voters of color hard. Due to Georgia’s restrictive state law, the number of drop boxes across the diverse, vote-rich Atlanta area has dwindled. Clayton County, where Burnough lives, is 69% Black and 14% Hispanic.

In Florida, “restrictions on drop boxes will fall disproportionately on Black voters, voters affiliated with the Democratic party, and younger voters,” Michael C. Herron, a Dartmouth College academic analyzing the impact of the state’s 2021 law, found. Advocates, officials and academics also stress the changes will burden working-class voters and people who work nights or irregular schedules.

The campaign against drop boxes is part of the broader push to make voting more difficult after the 2020 election and former President Donald Trump’s effort to overturn and cast doubt on the results.

“So much of what has been standard operating procedure for election administration has been weaponized and has come under attack. And it’s a wide spectrum of functions, including ballot drop boxes,” said Tammy Patrick of Democracy Fund. She said states that have cut drop box locations without making it easy to vote by mail “are setting up voters to fail, rather than allowing the system to serve them.”

While drop boxes became a more common sight in 2020, they have long been popular and uncontroversial in Western states such as Washington, Utah, Oregon and Arizona. That has changed since Trump’s loss, with right-wing activist groups pledging to surveil ballot drop boxes in Washington and Arizona this year.

This election, voters have reported they have been intimidated by vigilantes staking out drop boxes near Phoenix.

Obstacles and barriers in Florida

In April 2022, Florida Gov. Ron DeSantis declared in a press release that Florida had “stopped drop boxes.”

It was a misleading claim. They had been rebranded in state law as “secure ballot intake stations.”

Local election officials had to scramble to update references on ballot sleeves, literature for voters and flutter flags. “We had to change all of those,” said Wendy Sartory Link, the election supervisor in Palm Beach County. “So there was an expense and time commitment there.”

But that wasn’t the only change. Florida’s SB90, signed into law in 2021, targeted drop box access following an election in which 1.5 million Floridians used one.

Now, they can be placed only in early voting sites and in elections offices, reducing location options. All drop boxes must be monitored in-person by employees of the local elections office, making round-the-clock access impractical for many Florida counties. Election officials who break the rules are subject to a $25,000 fine under the new law.

University of Florida political scientist Daniel A. Smith reviewed information from counties and estimated that one-fourth of Florida’s ballot drop boxes would be eliminated or limited due to the law. Boxes at early voting sites can be used only during early voting hours, for instance.

“It’s like having an ATM outside of a bank that is only open during banking hours. What’s the point? Except … to restrict the ability of people to use them,” Smith said. 

Smith reviewed data from Florida’s Manatee County in 2020 and found that Black voters, Hispanic voters and voters with disabilities were more likely than white voters to drop off their ballots at the 24/7 locations after hours.

Previously, many election offices had used video surveillance to safeguard drop boxes, a common practice in other states. In Palm Beach County, four locations were monitored by video round the clock and attended to by law enforcement. Now, elections employees, and only elections employees, must monitor the boxes.

The hours of availability for drop boxes in Palm Beach County dropped nearly 30%, compared with the 2020 general election. Link, the election supervisor, said the new law is the reason.

Other changes will make the drop boxes less accessible to voters in some areas. Polk County, in Central Florida, can’t offer the James P. Austin Community Center as an early voting site and drop box location this year, due to an after-school program at the facility. “We always thought it was an ideal spot, and so I’m very disappointed,” said election supervisor Lori Edwards.

About this series

This project looks at the state of voting access, voting rights and inequities in political representation in all 50 states and Washington, D.C.

Read more

The loss of the site meant more than 40,000 Polk County voters lived farther from a ballot drop box in this year’s primary, an analysis by the Center for Public Integrity found. Half of them will have to travel at least eight additional miles.

Changes to sites around the county left about 88,000 voters at least half a mile farther from a drop box, compared to 2020. Most live more than a mile farther from the nearest location, including the majority of the more than 13,000 Latino and 14,500 Black voters impacted. 

“Location is vitally important,” said Mindy Romero of the Center for Inclusive Democracy at the University of Southern California. Romero has created a tool that draws on demographic data to help election officials place polling sites and drop boxes.

As in Palm Beach County, Polk County no longer has a drop box available 24/7. The number of total operating hours dropped 25%.

Experts say ballot drop boxes with round-the-clock video monitoring are secure and reducing their availability hurts voters.

“The nurse that gets off at 12 o’clock midnight, and has a ballot, she could just drop it off at one of the sites,” said LaVon Bracy of Faith in Florida, a longtime voting rights advocate in the state.

Bracy — who was the first Black student to graduate from Gainesville High School, in 1965 —  sees echoes of past voter suppression efforts in the new law. “It is voter suppression 101,” she said. “It is done purposefully. And particularly it will affect people of color.”

Research supports the idea. Dartmouth’s Herron, who submitted an expert report as part of litigation over the law, found that “SB 90’s restrictions on drop box locations will aggravate the already existing burdens on drop box voters who reside in heavily Democratic and non-White counties in Florida.” (The University of Florida’s Smith also submitted an expert report in the suit.)

In Broward County, election supervisor Joe Scott campaigned on expanding the number of locations where people could drop off their ballots.

A West Point graduate and Iraq veteran, Scott won election to the office in 2020 — only to find after the passage of SB90 that expanding access in the county of 1.9 million would be challenging.

The restrictions struck him as intentional obstacles to voting. The requirement that boxes be monitored by employees is “incredibly inefficient,” he said, since it effectively requires two employees to be assigned at all times — accounting for needs like bathroom breaks.

Still, Scott added early voting sites in Broward County, where election supervisors also offer drop boxes. He also made plans to open up six branch offices, hoping to add drop boxes for voters that were available outside of early voting hours.

But the state intervened. The Florida Legislature passed a law in April 2022 that defines which branch offices qualify for drop boxes. Florida’s secretary of state said the six sites in Broward didn’t meet the new definition of a “permanent branch office.”

Scott wasn’t happy. “They’re moving the goalposts,” he said. “And I would say that it’s a safe bet at this point that anything that I do, they’ll go and change the law so that we can’t do it.”

Scott also decided that the 24/7 drop boxes were so important that he needed to make one available in the final days of voting, despite the cost. So he’s staffing a station, which meets the state’s definition of a permanent branch office, at the Lauderhill Mall for what Scott calls “a 60-hour marathon” on the final three days of the election.

“That’s really where the impact will be, is working-class voters, who do tend to be disproportionately people of color,” he said. “If you look at working-class people, especially people who work maybe more than one job, people who are very busy, who are raising families, these are the people who are going to put off returning their ballot until the last minute.”

Putting a ballot in the mail in Florida close to Election Day is not a reliable option because it must be received by elections officials by the close of polls, regardless of when it was postmarked.

Scott says a single 24/7 site isn’t enough — but it’s all he can manage under Florida’s new laws. And he doubts many counties have the funds to staff even one.

Requiring access while also limiting it

Georgia’s sweeping election law, SB202, mandated that every county offer a drop box for the first time in the state’s 234-year history.

It also sparked an outcry from major Georgia corporations, voting rights advocates and Major League Baseball, which pulled the 2021 All-Star Game out of the state in protest.

The law’s provision that makes it illegal to provide food or water to voters in line drew widespread condemnation. But so did another change, which slashed the numbers of drop boxes in populous areas. Counties are now limited to just one drop box per 100,000 voters, or one box per early voting site — whichever is less. The law also moves drop boxes inside election offices and early voting sites so they’re no longer accessible round-the-clock.

“We have 11 advance in-person voting sites, currently, and only six of them can have a drop box under the law because of the population requirement,” said Zach Manifold, Gwinnett County’s elections supervisor. The county had 23 drop boxes two years ago.

The law means that Taliaferro County, population 1,596, will have a per-capita rate of drop boxes that is 100 times higher than Gwinnett County’s.

Manifold said friends and family, and even his movers, were shocked when he told them he was accepting the job in Gwinnett County after the furor over the 2020 election results and SB202. Neighboring Fulton County, Georgia’s most populous, has struggled to find an election supervisor.

The two counties are part of the Atlanta area, which was particularly affected by the drop box provision. Advocates believe it was targeted. 

“They took a look at how minority communities of voters participated in the election, and they made those processes much more difficult,” said Jerry Gonzalez of the Georgia Association of Latino Elected Officials.

SB202 quickly drew legal challenges — including one from the U.S. Department of Justice that called provisions of the law “racially discriminatory.” In a legal filing disputing that claim, attorneys for the state argued that drop box availability has been expanded, since one is now required in each county.

That ignores the situation in Atlanta. According to an NPR analysis, over half of the 550,000 Georgia voters who used drop boxes in 2020 lived in four Atlanta-area counties. Roughly half of voters in those counties are people of color. And those counties saw the number of drop boxes decline precipitously after SB202 became law — from 107 to 25.

Proximity matters, experts say. Research in Washington state found that most voters used the drop boxes closest to their homes, and that voters who live further from them tended to use other methods of voting.

The same researchers also found that adding drop boxes in Washington’s Pierce County “modestly increased voter turnout.” That effect was most prominent in primary and off-year elections.

“Because of the large expansion in the number of boxes [in 2020], it was treated like this was a new form of voting,” said Benjamin Gonzalez O’Brien, one of the researchers. “In fact, a number of states have had ballot drop boxes, have had no issues with them.” Oregon has used them for more than two decades.

The boxes are also critical in some rural areas, advocates say, including for Indigenous voters on reservations with limited mail service. “Throughout Indian Country, Native Americans are receiving insufficient services. And where ballot collection boxes can be utilized, it’s a helpful way to increase access,” said Jacqueline De León, an attorney with the Native American Rights Fund.

‘Extremely negative opinions about drop boxes’

In cities across Wisconsin, ballot drop boxes haven’t been restricted, they have been eliminated.

The state’s Supreme Court ruled in July that Wisconsin election law does not permit drop boxes. The ruling didn’t mince words: Ballot drop boxes had been used for years in parts of Wisconsin, and “thousands of votes have been cast via this unlawful method, thereby directly harming the Wisconsin voters. The illegality of these drop boxes weakens the people’s faith that the election produced an outcome reflective of their will,” wrote Justice Rebecca Bradley, part of the court’s conservative majority.

The ruling came as a blow to local officials like Celestine Jeffreys, Green Bay’s city clerk. In 2020, she helped map out six drop boxes across the city. The metal boxes, black with a blue stripe around the middle, were set up in a park, at city hall and near busy commercial areas. They received hundreds of ballots each day in the run-up to the election.

Those boxes are gone now. They’re stored in a garage on the city’s west side, and it’s unclear if they will ever be used in elections again — even though the city uses drop boxes for other business, like dropping off payments for parking ticket fines.

“My goal is to make voting calm, safe, secure, welcoming and predictable,” Jeffreys said. “And, you know, predictability and changing the rules all the time don’t go together.”

The intense scrutiny on Wisconsin elections and the outcome in 2020 has made her job challenging. “There were some of our neighbors who really had extremely negative opinions about drop boxes,” Jeffreys said.

Ron Heuer is one of them. Heuer lives in Kewaunee County, just east of Green Bay, and his concerns about drop boxes run so deep he put up billboards about them.

“2020 Green Bay Election,” says one south of the city, followed by two questions in all caps: “ILLEGAL DROP BOXES? ELECTION BRIBERY?”

“The purpose of the billboard was to keep that message in front of the general public,” said Heuer, whose Wisconsin Voter Alliance brought an unsuccessful lawsuit seeking to overturn Wisconsin’s election results in 2020. He formed the group in 2020 after learning about grants that the Chicago-based Center for Tech and Civic Life provided to local election officials during the pandemic.

Wisconsin’s five most populous cities, including Green Bay and Milwaukee, requested grant money to set up drop boxes in 2020.

“The Zuckerberg money came in deploying these things,” said Heuer, referring to a $350 million donation Facebook CEO Mark Zuckerberg and his wife Priscilla Chan made to the Center for Tech and Civic Life. “In these areas that were Black and brown communities, in these big cities. And they shut out everybody else. That wasn’t right.”

State data shows jurisdictions across Wisconsin, including Lake Nebagamon, with a population of 835 that is 98% white, offered ballot drop boxes in 2020. A map published by APM Reports shows that the Center for Tech and Civic Life awarded grants to both large and small jurisdictions.

The belief that drop boxes benefit Democrats and open the door to fraud is widely shared on the right. Dinesh D’Souza’s discredited film “2000 Mules” airs unproven allegations, based on misinterpreted cell-phone location data and surveillance footage, that drop boxes were stuffed with potentially fake ballots.

The suspicion over outside funding has also become an animating cause nationally. While local election officials say the money was a lifeline in 2020, more than a dozen GOP-controlled states have adopted bans on outside funding for elections.

Yet even after the 2020 election, some Republican legislators were working to establish a framework for drop boxes in Wisconsin. A statement by Trump in early 2022 blew up the effort.

“Some RINO Republicans in Wisconsin are working hand in hand with others to have drop boxes again placed in Wisconsin,” Trump said. “These fools are playing right into the Democrats’ hand. Drop boxes are only good for Democrats and cheating, not good for Republicans.”

The statement effectively killed support for the provision in the statehouse. The Wisconsin Supreme Court’s ruling came six months later.

“We’ve had so much litigation in Wisconsin since 2020,” said Barbara Beckert of Disability Rights Wisconsin. She said this year alone has been “chaos and confusion,” with the ruling in the drop box case also calling into question the right of disabled voters to have someone else return their ballot for them. (A federal court affirmed that right in August.)

For voters, Beckert said, “a drop box was a great thing — it was just one additional option to make voting more accessible and inclusive for people with disabilities.” The drop boxes were also convenient for people who provide care to those with disabilities, she added, and more secure than U.S. Postal Service mailboxes.

Most voters are likely unaware of the security measures election officials take around drop boxes, which typically include video or in-person surveillance, detailed chain of custody procedures for election workers handling ballots, and the security of the box itself.

Larry Olson’s company Laserfab has manufactured ballot drop boxes for over a decade. The Puyallup, Washington-based manufacturer currently has about 900 drop boxes in the field, he said, many ordered during the 2020 election cycle.

The wave of misinformation and harassment of election officials following 2020 caught him by surprise.

“Our box is just a box, it obviously doesn’t have feelings,” Olson said. But he wishes people suspicious of them knew more about their design. Laserfab’s boxes are built so that water won’t drip on ballots, with tamper-proof hinges, and with ballot collection doors that automatically lock. “Literally every design feature came back to the integrity of the box and the ballots,” Olson said.

The boxes are sturdy and have withstood cars and buses running into them. Even the paint the company uses is designed so that white envelopes will show up clearly against it, to help election workers picking up ballots. Olson said that he’s puzzled by the controversies surrounding drop boxes. He’s used one to vote for a decade.

Fighting over drop boxes at the local level

In areas where state laws and court rulings haven’t targeted drop boxes, they’ve become a flash point locally.

Some local jurisdictions have resisted efforts to remove drop boxes. 

In early October, interim Secretary of State Karl Allred sent a letter to Wyoming’s 23 county clerks. “There is concern over the use of absentee ballot drop boxes,” Allred wrote. “I’m mindful of the fact that there have been no issues reported with the use of drop boxes in Wyoming, but that does not alleviate the potential for abuse or destruction of ballots through use of fire or other means.”

Albany County’s clerk, Jackie Gonzales, responded to Allred six days later. “Thank you for stating that you do not wish to interrupt or cause confusion to the voting process that is already in progress,” she wrote. “At this time, having to remove our absentee ballot drop box for the 2022 General Election would do both.” She added that the drop box is under constant surveillance and that a bipartisan team retrieves ballots daily and diligently logs them.

Other local officials have moved in the other direction.

In Westmoreland County, Pennsylvania, county commissioners set up six drop boxes for voters in the 2020 election after several requests for them, including a petition signed by more than 1,000 people.

This year, commissioners decided that access was no longer worth paying for. For the 2022 primary, commissioners voted to eliminate five of the six drop boxes.

And in September, the commission’s Republican majority refused to consider a plan to offer one during this year’s general election. That meant that the county would no longer have a single drop box.

Westmoreland County Commission chair Sean Kertes did not respond to several requests for an interview. In public statements, Kertes, a Republican, objected to the cost.

Commissioner Gina Cerilli Thrasher, the lone Democrat on the commission, criticized the change. “This is a huge issue for senior citizens and those disabled that may receive their ballot late in the mail,” she told Public Integrity.

She disputed the idea that cost was behind the removal of drop boxes, pointing to a $1.2 million grant the county received from the state to assist with election costs.

“This has zero to do with finances and everything to do with a national political push from the far right,” she said.

Drop boxes are a target in other parts of Pennsylvania, a swing state Trump won in 2016 and lost in 2020.

America First Legal, a group headed by former Trump advisor Stephen Miller, filed suit in two other Pennsylvania counties, seeking to require 24/7 staffing of ballot drop boxes. In Lehigh County, a judge sided with the county, while Chester County agreed to add additional security measures.

Luzerne County’s council narrowly defeated a measure to bar the county from paying for drop boxes. Fulton County eliminated availability except on Election Day. And the Pennsylvania Senate passed a bill that would have banned them throughout the state.

“Drop boxes were never approved by the General Assembly in the first place,” state Sen. Doug Mastriano, who co-sponsored the bill, said in a statement.

The measure failed to advance in the House of Representatives. Mastriano is the Republican candidate for governor in Pennsylvania, and in his platform, he pledges to “get rid of drop boxes.”

The attacks on this method of voting don’t sit right with Greg Guzik. The 75-year-old retired Vietnam veteran is a Westmoreland County booster, calling it “the best place in the nation.” He lives in Ligonier, at the foot of the Laurel Highlands.

He was among those submitting public comments to the county commission in October 2020, calling for additional drop boxes. He tried to use what was then the county’s only location but arrived with his ballot before it had been set up.

Guzik was not pleased about the county commission’s changes in 2022 and didn’t buy the explanation that cost was the driver. “I’m appalled, to tell you the truth,” he said.

Misinformation about the 2020 election is rampant in the area, Guzik said. That suspicion over elections didn’t exist when he was growing up in nearby Bradenville, but over the last two years “it seeped into every crack and town and small burg in these Southwestern PA counties.”

He’s watched with dismay the restrictions in the nation’s voting access. Guzik describes himself as “all about flag waving” and says he believes the government should make it easy for Americans to cast their ballots. “To have that taken away? We’re moving backwards as a country.”

Center for Public Integrity journalist Ileana Garnand also contributed to this story.

The post ‘Chaos and confusion’: The campaign to stamp out ballot drop boxes appeared first on Center for Public Integrity.

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Iowa eliminated nine days of early voting. New Hampshire took away ballot drop boxes. And Georgia made providing water to voters waiting in line a crime.

In many states, nearly all controlled by Republicans, it will be more difficult to vote than it was two years ago. That’s especially true for lower-income Americans and people with disabilities, voting-access advocates warn. They stress that new restrictions target methods of voting used disproportionately by people of color.

In those states, voting has also been reshaped by rulings from conservative judges and newly drawn districts that favor Republican candidates.

A review of voting laws in the 50 states and Washington, D.C. by the Center for Public Integrity paints a stark picture of the state of voting in America — one in which states are taking two different paths. While several states passed bills that grabbed headlines and created barriers to the franchise, states controlled by Democrats made access to voting easier and more equitable. Some states with split-party control went one direction and some went the other.

We found:

• Twenty-six states worsened equity in voting and representation.
• Twenty states and Washington, D.C., improved it.
• Four states have made little change in either direction.

Our review found that 160 million Americans live in the states reducing equity, and 151 million live in the places expanding it. About 20 million Americans live in the states where the situation did not change substantially.

The rollback in voting access has been fueled by falsehoods from former President Donald Trump and his allies about the 2020 election — an election that officials in his own administration, elections experts and state and federal judges have affirmed was secure and accurate. “Instead of celebrating that, what we saw was a rush to enact legislation on the false premise that the 2020 election, and elections generally, are riddled with widespread voter fraud,” said Jasleen Singh of the Brennan Center for Justice.

The attacks on access have targeted methods disproportionately used by people of color and younger, more Democratic-leaning voters. “These are direct attacks on voters that legislators think will vote for the other party,” said Sylvia Albert of Common Cause. “It is clearly an attack on Black and brown and low-income voters.”

The restrictive state laws have come as the Supreme Court has dealt several blows to the Voting Rights Act. The court will consider significant cases about gerrymandering and state legislative powers over elections in its current term, which began this week.

The Democratic and mixed-party-control states that made voting and registering easier since the 2020 election span the country: New Mexico created protections for polling places on tribal land; Illinois made vote-by-mail accessible to all voters permanently; Maine made it easier to participate in primaries.

In a handful of states where voting rules have barely budged since 2020, Democratic governors thwarted GOP legislation with vetoes, an establishment Republican blocked restrictive voting measures, or court challenges paused or prevented legislation from taking effect. In those states, the status quo could easily be shattered by a flip in control over the governor’s office or a handful of politicians retiring or losing primaries.

Voting laws, and the way they’re interpreted by election officials, depend on where you live. Voters in different states — and sometimes even neighboring cities or counties — can face sharply different options for casting their ballots.

About this series

This project looks at the state of voting access, voting rights and inequities in political representation in all 50 states and Washington, D.C.

Read more

In Utah, for example, all voters receive a mail ballot and can track its status online. If the voter wants to register and vote in person at a polling place, the law allows for them to do that on Election Day.

In Mississippi, meanwhile, voting in person on Election Day is the only option available to all voters. Excuses for voting absentee are limited, mail voting ordinarily requires multiple notarized signatures, and a voter must register 30 days before an election.

The varying rules make for a disjointed, unequal landscape of voting in the United States. 

“We should all have equal access to the ballot. Otherwise, we don’t all have the same freedom to vote,” said Danielle Lang of the Campaign Legal Center.

Our team of journalists took a close look at the details of voting across the United States, reporting on the registration process, voter-roll purges, redistricting and more. As Democracy Fund’s Tammy Patrick, a former elections official in Arizona, put it: “In elections, the details matter.”

Millions of Americans face challenges to exercising their right to vote, even if they live in a state that has increased access. For voters with disabilities, Indigenous voters living on reservations and eligible voters with felonies on their records, barriers have been especially high.

Many voters will also find that their influence in state legislatures and the U.S. Congress has been diluted by a round of partisan gerrymandering. Political districts are redrawn each decade, with the most recent round based on the results of the 2020 Census.

In 2019, the Supreme Court ruled that partisan gerrymandering is a political issue beyond the reach of federal courts. Politicians — who draw the maps in many states — took the cue.

Across the country, states have drawn maps in ways that reduce the number of competitive congressional districts nationwide. Republican leaders in Indiana created a congressional map an expert called “one of the most extreme gerrymanders in history.”

Many states’ redistricting maps have been contested in court, with plaintiffs alleging that their state’s constitution bars partisan gerrymandering or contending that the maps discriminate against Black or Latino voters. Judges have ordered maps in some states, including New York, to be redrawn. Ongoing litigation in several states means that district boundaries could change for some voters again before 2024.

Districts for some state legislative, city council and school board seats have also been redrawn, often with little of the public attention that maps for congressional seats receive. Battles for the future of democracy are not restricted to statehouses and Washington, D.C. — they are taking place at city halls, county government buildings and school board meetings across the nation.

“Democracy isn’t just about voting rights, pulling a lever for your candidate. It’s the idea that everyone matters, that we’re in it together,” said Micah Kubic of the American Civil Liberties Union of Kansas.

Fights over access to the ballot box raise fundamental questions, he said: “Who counts? Who matters?”

Record voter turnout and conspiracies

Absentee voting surged in the 2020 election, conducted in the midst of the COVID-19 pandemic. States scrambled to craft policies that allowed more voters to cast a ballot without visiting a polling place on Election Day. When the dust settled, 2020 proved to be the highest-turnout election in 120 years.

“Voters responded to expansions in access in 2020 by coming out in record numbers,” said Common Cause’s Albert.

Falsehoods about Trump’s loss, many of which focused on mail voting and election results in racially diverse urban areas, became motivating forces for Republican candidates and elected officials at all levels — from Congress to sheriff’s departments.

On Capitol Hill, federal voting rights legislation stalled. Senate Democrats couldn’t break a filibuster to act on what President Joe Biden has called “the single biggest issue.”

Lawmakers in states where Republicans control all branches of government have run into no such gridlock. They seized on Trump’s rhetoric about fraud to pass a flurry of election-related bills in 2021 and 2022 that make voting more difficult.

“These changes are saying back to voters, ‘Oops, we don’t actually want you to vote,’” Albert said.

Texas, Florida and Georgia all attracted nationwide scrutiny for election bills that restrict access to ballot drop boxes, and several states have created potential criminal penalties related to the work of election officials. 

“This past session was spent on what I consider voter suppression bills,” said LaVon Bracy of Faith in Florida, a longtime voting rights advocate in the state.

In Virginia and Florida, Republican officials have created units to investigate and prosecute election fraud, an issue that is vanishingly rare in the United States. Florida’s election police recently made high-profile arrests of 20 people for voting with felony convictions, which the state allows in some cases but not others. But reporters quickly found major flaws, including evidence that state officials and even the head of the election police were involved in approving those Floridians’ efforts to register.

Beyond specific policies making voting more challenging, advocates fear that the headlines about arrests and criminalization of election violations will keep some people from even trying to vote.

And then there are the battles over mail and absentee voting. In places where these options have long been popular and uncontroversial, such as Utah and Arizona, the practice has come under attack by right-wing activists and elected officials. Republican legislators in Arizona passed a law to purge people from the state’s list of voters who automatically receive a mail-in ballot. They will now be removed if they fail to vote for two election cycles and don’t respond to a notice sent by mail.

Even proposals that haven’t become law concern elections experts. “We have never seen the number of restrictive laws being proposed,” said Singh, who tracks voting legislation at the Brennan Center for Justice.

The misinformation about voting has also upturned the lives of the professionals who run elections. Many have received threats and now fear for their safety. Others have quit.

“In that absence, you get the loss of institutional knowledge. But then you also have this void that can be filled by bad actors,” said Democracy Fund’s Patrick. “And that’s a concern by many election officials in the field: Who’s going to fill those roles?”

Patrick added that if the attacks on election officials continue, the profession could see another wave of resignations before the 2024 presidential election.

Disenfranchisement and barriers to voting as old as the country

Changes in state laws are written in language that is race-neutral, but their impact is anything but.

“Racial discrimination in voting has been a particularly pernicious and enduring American problem,” a U.S. Commission on Civil Rights report stated in 2018. The commission pointed to voter ID laws, voter-roll purges, challenges to eligibility and proof of citizenship measures as “voting procedures that wrongly prevent some citizens from voting.”

Legislatures in states around the nation debated and passed precisely those types of measures in 2021 and 2022, often invoking voter fraud and election security.

The current wave of election legislation comes less than a decade after the nation’s strongest tool for battling disenfranchisement was gutted.

Previously, Section 5 of the Voting Rights Act of 1965 required jurisdictions with a history of discrimination in voting to “preclear” changes with the Department of Justice or a federal court in D.C. Several southern states, along with Arizona and Alaska, fell under the preclearance requirement. So did counties in states including California, Florida and North Carolina.

All are now free to make changes without federal approval because of the 2013 Supreme Court ruling in Shelby County v. Holder.

Many of those jurisdictions began making major changes to elections well before 2020, with Texas alone closing over 700 polling places. Recently enacted laws in states including Texas and Georgia would have previously required preclearance. Now they don’t.

“There is a direct attack on Black voters,” said James “Major” Woodall of the Southern Center for Human Rights.

Woodall and other voting access advocates say that the restrictive laws make their work even more difficult. Jerry Gonzalez of the Georgia Association of Latino Elected Officials said the state’s 2021 law, SB 202, “leaves undue pressure on local organizations like ourselves that work to help people navigate the gauntlet of trying to cast your vote. It shouldn’t be that difficult to vote in our democracy.”

The Center for Public Integrity’s reporting documented inequities in access to voting and representation in every state and D.C., regardless of which party controlled state government. In some cases, voting laws are governed by state constitutions that date back to the era when Black Americans, Indigenous people and women were denied the right to vote.

In many Democratic-controlled states, Black and Latino voters wait in long lines simply to vote — sometimes because their communities lack the resources to open additional polling places, staff additional early voting sites or provide language assistance.

Yet our review also found that in states controlled by Democrats, and some whose control is split between the parties, voting has become easier. Kentucky opened vote centers, allowing residents to cast ballots at any voting site in their jurisdiction. California made 2020’s universal vote-by-mail effort permanent, while Connecticut expanded access to absentee voting.

Voting access doesn’t always break down cleanly on red-blue lines. Voting in the United States is in many ways regional. Western states like Colorado, Washington and Utah have long embraced mail voting, among the biggest equalizers in access to elections. In addition to Washington, D.C., the two states that allow people incarcerated for felonies to vote are in northern New England and among the least diverse states in the country: Maine and Vermont. Southern states, where Black voters make up a significant share of the electorate, and conservative Midwestern states have enacted many of the strictest voter identification laws.

But in the aftermath of the 2020 election, with a weakened Voting Rights Act, national politics are playing a powerful role in the rules determining how Americans do — and don’t — cast their ballots.

More than a dozen GOP-controlled states adopted bans on outside funding for elections. Money from the nonprofit Center for Tech and Civic Life was a lifeline for underfunded elections offices in 2020 but became the subject of right-wing conspiracies centered around its ties to Facebook founder Mark Zuckerberg.

“Those policies were being driven by a national narrative,” said the Campaign Legal Center’s Lang. “That came straight from the top in 2020, from President Trump.” 

In Idaho, League of Women Voters President Betsy McBride said she’d never previously heard concerns about voter registration drives or people delivering absentee ballots for their elderly neighbors.

That changed after national Republicans and right-wing media targeted both. “This list of bills all over the country look pretty much the same, the talking points are the same,” she said.

The Idaho League of Women Voters fought hardest against a proposed bill, similar to laws passed in other Republican states, that would have made it a crime to “knowingly collect or convey another voter’s voted or unvoted ballot.”

“It was a felony with a big fine,” McBride said. “So it was clear that a lot of the work that the churches were doing and other groups was just going to come to a halt. We have a huge veterans home. And whether or not they have a living spouse is quite problematic.”

The proposal was passed by the Idaho House along with a slew of other voting restrictions, but they died in the state Senate, where a single Republican legislator, State Affairs Committee Chairwoman Patti Anne Lodge, refused to give them a hearing. Lodge did not seek re-election, and McBride worries that there will be no stopping similar bills next year.

In the coming months, the Supreme Court will consider Moore v. Harper, a case that could give state legislatures nearly unchecked power to set election laws — even if those laws violate state constitutions or create extreme partisan gerrymanders. If the justices side with the “independent state legislature theory,” it will open the door for further restrictions in voting access in dozens of states.

The court also agreed to take up Merrill v. Milligan, another case that could weaken the Voting Rights Act. If the court’s conservative majority sides with Alabama’s attorney general in the case, they could make it possible for states to draw districts in a way that dilutes the power of voters of color. That would gut one of the last remaining voting rights provisions of the law.

Advocates for voting access say their work has never felt more urgent. “It’s pretty terrifying how fragile our democracy is right now,” said Davis Hammet, the president of Kansas-based civic engagement group Loud Light.

The post A headlong rush by states to attack voting access — or expand it appeared first on Center for Public Integrity.