A lawyer for Wisconsin voters begged the Supreme Court on Monday to fix how states draw their election maps — for the sake of democracy.
“The country is going to lose faith in democracy. You are the only institution that can resolve this problem,” said Paul Smith, the lawyer arguing for Wisconsin voters challenging their state’s map.
For the first time in more than a decade, the Supreme Court will decide just how biased state legislatures can be when they draw election district lines to their party’s advantage — a process known as partisan gerrymandering. While the case — Gil v. Whitford — focuses on Wisconsin’s election map, the stakes are much higher; after the 2020 census, every state will redraw its districts to last the next ten years.
“If you let this go, in 2020 you are going to have a festival of copycat gerrymandering the likes of which this country have never seen,” Smith continued in court on Tuesday.
The lawyer defending Wisconsin’s map, Misha Tseytlin, however, called the fears about more political gerrymandering after the 2020 census “scare tactics” and argued the twelve voters who brought the case don’t have a right to sue over the entire state’s map.
The challenge originated when Wisconsin Republicans won control of both the state legislature and the governor’s office in 2010, a rare occurrence in a typically purple state. They seized the opportunity to have their own party-controlled legislature redraw the district maps instead of the courts, which take over in the case of a divided state government.
And it payed off.
During the next election cycle in 2012, Democrats received a higher percentage of the vote but secured fewer seats in the legislature. In 2014, Republicans once again secured a higher percentage of seats than votes.
As a result, twelve Democrat voters sued the state over an election map they consider unconstitutional for diluting Democratic votes. When a district court agreed with the voters, Wisconsin appealed to the Supreme Court.
The voters challenging the map have suggested a new test the courts should use to identify unlawful political gerrymandering called the efficiency gap, a mathematical equation that measures the extent to which a person’s vote matters if they vote for one party versus the other. Chief Justice John Roberts and Justice Stephen Breyer called the arithmetic “gobbledygook.”
During oral arguments on Monday, the justices seemed to agree that extreme political gerrymandering could pose a problem — but they remained divided about how to ensure states lawfully draw their maps, and, perhaps more profoundly, the court’s role in creating the standard at all.
“What’s behind all of this?” Justice Ruth Bader Ginsburg asked. “If you stack a legislature in this way, what incentive is there to vote? What becomes of the precious right to vote?”
While the liberal justices seemed compelled to intervene, some of the conservative justices, like Chief Justice Roberts, voiced concerns about opening the floodgates to future litigation from other states.
“You’re taking these issues away from democracy and you’re throwing them into the courts,” he said. “That is going to cause very serious harm to the status and integrity of the decisions of the court in the eyes of the country.”
The traditional swing vote, however, Justice Anthony Kennedy, remained relatively silent, making it difficult to predict which way the court would rule.
More than a decade ago the Supreme Court decided not to get involved in claims of partisan gerrymandering because the issue was too difficult for the court to parse. But the twelve Wisconsinites suing the state — along with fifteen other groups who filed amicus briefs supporting them — hope the court will finally draw a constitutional line that states cannot cross.
“Politicians are never going to fix gerrymandering,” Smith said in court. “This is the last chance.”
WASHINGTON — State election officials, worried about the integrity of their voting systems, are pressing to make them more secure ahead of next year’s midterm elections.
Reacting in large part to Russian efforts to hack the presidential election last year, a growing number of states are upgrading electoral databases and voting machines, and even adding cybersecurity experts to their election teams. The efforts — from both Democrats and Republicans — amount to the largest overhaul of the nation’s voting infrastructure since the contested presidential election in 2000 spelled an end to punch-card ballots and voting machines with mechanical levers.
One aim is to prepare for the 2018 and 2020 elections by upgrading and securing electoral databases and voting machines that were cutting-edge before Facebook and Twitter even existed. Another is to spot and defuse attempts to depress turnout and sway election results by targeting voters with false news reports and social media posts.
West Virginia’s elections team has added a cybersecurity expert from the state National Guard with a top-secret federal security clearance. Colorado and Rhode Island will now verify election results via an advanced statistical procedure called a risk-limiting audit.
Delaware is moving its voter-registration list off the state’s aging mainframe computer and preparing to replace a 21-year-old electronic voting system that does not leave a paper record of votes to be audited.
Last month, a panel of state, federal and private election experts completed a sweeping revision of guidelines for manufacturers of new voting equipment, the first major overhaul in a dozen years. While the guidelines are voluntary, they are endorsed by all but three states, so manufacturers effectively must meet the new standards to sell their equipment in most of the nation.
Of course, threats to democracy and fair voting — such as gerrymandered election districts and disinformation campaigns on Facebook and other social media platforms — go well beyond election technology. And so far state and federal funds have often failed to match the scale and urgency of the problem. But in a time of widespread skepticism about the security of American elections, ensuring people that their votes have been counted accurately has become a pressing demand.
“What’s happening is a psy-ops operation,” said Mac Warner, the West Virginia secretary of state. “That’s what the Russians are running against us now, trying to erode confidence in our democratic process. We need to assure our citizens that we’re aware of these attacks, that we have assistance to counter them, and that when they do occur, don’t panic — there are resources to turn to.”
In an era of bitter political divisions and elections-rules disputes, the effort to make the vote more secure is notably bipartisan and relatively rancor-free. Republicans like Mr. Warner are largely aligned with Democrats on the need to act before the next presidential election in 2020, and there is some support in both parties in Congress for helping to finance changes.
Experts have warned for years that state and local election equipment and security practices were dangerously out of date, but state and local election agencies short of cash have often lagged in updating their systems. The 2016 election, however, laid bare the seriousness of the threat.
Federal officials have said they are confident that November’s election results were not tampered with. But federal intelligence and security officials were so shaken by Russian attempts to compromise the vote that the Department of Homeland Security designated election systems a critical national infrastructure, like banking and the electrical grid, that merit special protection.
The scope of the threat was underscored on Tuesday when a new report concluded not only that widely used voting systems can be breached by hackers — sometimes with almost trivial ease — but that they contain components manufactured in nations like China with a clear interest in undermining American democracy.
“It’s really important not to overstate the risk. There are lots of things that can be done to make sure machines are as secure as possible,” Lawrence Norden, the deputy director of the Democracy Project at the Brennan Center for Justice of the New York University School of Law. “But when you’re dealing with a nation-state, you have to assume that at some point they’re going to be successful in their efforts to breach things. The question then becomes resiliency and the ability to show people that you can fix things even if there is a breach.”
State officials, who zealously guard their control of elections, have greeted federal efforts to address voting security with wariness. But that, too, has changed. State election directors who were blindsided and angered by the Homeland Security department’s critical infrastructure designation will meet with department officials in Atlanta this month to discuss how they can share information about threats. The department also is working to give state election officials security clearances so they can view classified assessments of dangers to the election system.
The new guidelines for manufacturers of voting equipment — reduced to five pages from more than 200 — include for the first time principles as basic as a requirement that voting devices produce written records that can be verified, and that software or hardware errors cannot lead to undetectable changes in tallies. They are expected to spur the development of a new generation of cheaper and more secure equipment, said Matthew Masterson, the chairman of the federal Election Assistance Commission.
He said the shared guidelines would allow for the deployment of election software on products like tablets and iPads, which could be ready as soon as the 2020 election, rather than force 50 states to put together their own systems. “It’s going to drive innovation, hopefully save money for election officials, and allow us to test and certify equipment more efficiently,’’ Mr. Masterson said.
Foreign governments that regularly crack the computers of military contractors and federal agencies will not be daunted by the cyberdefenses of voter databases and electronic pollbooks. A determined adversary could compromise voting equipment at many points along the supply chain, from the factory assembler to the election software programmer to the technician who makes a repair or installs a software upgrade. And in an industry dominated by a handful of companies, malicious tinkering could have a broad impact.
“In computer security, you’re talking much more about the capabilities of local jurisdictions,” said Joseph Lorenzo Hall, the chief technology officer at the Center for Democracy and Technology in Washington. “And they vary dramatically, from L.A., which has a small army of folks, to many jurisdictions that don’t even have a full-time person for their election work. To the extent they have an ability to defend against these attacks, it’s quite limited.”
Mr. Hall said election officials need to be even more vigilant, and impose a “zero-trust networking” policy on their agencies. “Don’t assume that because something is locked in a case that it’s safe,” he said. “Assume they’re already in your system, and set up things that will catch them — honey pots, fake data stores. If anyone hits them, then you know someone’s poking around.”
For all the expressions of resolve, money remains the biggest obstacle to a complete overhaul of the system. Many jurisdictions rely on equipment bought after the 2002 Help America Vote Act, Congress’s response to the problems exposed by the 2000 presidential election, allotted nearly $4 billion for new machines and other reforms. Many of those machines are at or past the end of their service lives; Georgia conducted November’s elections on voting machines running Windows 2000, and parts of Pennsylvania relied on Windows XP.
Most states still use paper ballots that are counted by hand or by machines. But four other states besides Delaware — Louisiana, Georgia, New Jersey and South Carolina — use paperless systems that leave no audit trail, as do large swaths of Pennsylvania and some other states. Virginia scrapped thousands of paperless voting machines in 2015 after discovering that even an amateur hacker could easily and secretly change vote tallies.
A number of states and jurisdictions are replacing old equipment, and Los Angeles County — with 5.3 million registered voters, the nation’s largest election district — has designed an election system from scratch, and is asking manufacturers to bid on supplying it.
Bipartisan legislation in both the House and Senate would provide a modest amount of federal money for new machines. But prospects for passage are uncertain, and many states are unable or unwilling to fill the breach.
The South Carolina Election Commission estimates that it could cost $40 million to replace the state’s antiquated voting equipment with machines that used auditable paper ballots. So far the State Legislature has come up with $1 million, said Chris Whitmire, a spokesman for the commission.
“We’re using the same equipment we’ve used since 2004,” he said. “If $40 million dropped into our hands today, we’d have a paper ballot trail, too.”
But even states that cannot afford more secure machines are taking steps to harden their election systems and bolster public confidence in the vote. South Carolina has accepted an offer of free “cyberhygiene” scans of its system by Homeland Security experts. Colorado is upgrading its voting equipment, but it has also begun to receive Homeland Security screenings, added national guard security experts to its election team and tacked a basic security measure onto its voter-registration database: two-step authentication for anyone seeking to log into the system.
State election officials are now in regular contact with federal security and intelligence agencies about threats to the vote, said Trevor Timmons, the chief information officer for Wayne W. Williams, the Colorado secretary of state.
Trump stoked outrage when he signed an executive order on May 11 creating the so-called Presidential Advisory Commission on Election Integrity. Without proof, the President claimed he only lost the popular vote to Democrat Hillary Clinton because scores of undocumented immigrants had voted for her.
The voter fraud commission would get to the bottom of the issue, Trump claimed at the time.
Failing to prove those unsubstantiated assertions, Trump dissolved the commission Wednesday night. But he still insisted — once again without proof — that there's "substantial evidence" of voter fraud.
"Many states have refused to provide the Presidential Advisory Commission on Election Integrity with basic information relevant to its inquiry," Trump said in a statement. "Rather than engage in endless legal battles at taxpayer expense, today I signed an executive order to dissolve the Commission."
Trump added that he has asked Department of Homeland Security officials to look into the issue and see if any further investigative action can be taken.
The controversial commission was co-chaired by Vice President Mike Pence and Kris Kobach, the Kansas Secretary of State. Kobach made national headlines after calling for a Muslim registry and waging legal battles to purge more than 20,000 properly registered voters from his state's voting rolls.
The voter fraud commission only met twice throughout its nearly seven month tenure. Several civil rights groups, and one member of the commission, filed lawsuits alleging that the commission's manner of collecting Americans' personal data violated privacy laws.
Senate Minority Leader Chuck Schumer welcomed the commission abolishment.
"The commission never had anything to do with election integrity," the New York Democrat tweeted. "It was instead a front to suppress the vote, perpetrate dangerous and baseless claims, and was ridiculed from one end of the country to the other."
ACLU voting rights director Dale Ho, whose organization was among those lobbing lawsuits against the commission, blasted Trump's voter fraud effort as "a sham from the start."
"We have real problems when it comes to elections: low voter turnout, unnecessary barriers to participation, outdated and insecure machines, and possible foreign interference," Ho said in a statement. "But rather than address these real threats to election integrity, the commission engaged in a wild-goose chase for voter fraud, demonizing the very American voters whom we should all be helping to participate."
Thirty years ago, the United States had a big problem. Barely half of eligible voters had cast a ballot in the 1988 presidential election—the lowest voter turnout since the 1920s. In an effort to increase participation, Democrats in Congress—backed by a few Republicans— drafted the National Voter Registration Act, a bill that would require states to allow voters to register at Department of Motor Vehicle offices and other public agencies.
Sen. Mitch McConnell, a Kentucky Republican, led the opposition to the legislation. “This bill wants to turn every agency, bureau, and office of state government into a vast voter registration machine,” McConnell said in 1991. “Motor voter registration, hunting permit voter registration, marriage license voter registration, welfare voter registration—even drug rehab voter registration.” That same year, McConnell, who is now the Senate majority leader, wrote that “low voter turnout is a sign of a content democracy.”
The NVRA passed Congress in 1992, but President George H. W. Bush vetoed it. Congress passed it again a year later, and this time President Bill Clinton signed it into law, calling it “a sign of a new vibrancy in our democracy.” The “motor voter” law, as it became known, was an immediate success. In its first year in effect, more than 30 million people registered or updated their registrations through the NVRA. Roughly 16 million people per year have used it to register ever since.
But in recent years, Republicans have sought to gut the law. In 2013, the Supreme Court weakened a key part of the Voting Rights Act, ruling that states with long histories of voting discrimination no longer needed to clear their election changes with the federal government. After winning that fight, Republicans are now going after the NVRA in what voting rights advocates say is a thinly veiled effort to make it more difficult for Democratic-leaning constituencies to register to vote—and far easier for state officials to remove them from the voter rolls. “We’re seeing a coming fight over how voter rolls are maintained,” says Dale Ho, director of the ACLU’s Voting Rights Project. “It’s a new front in the voter suppression battles.”
On Wednesday, the Supreme Court will hear the newest challenge to the law, concerning whether Ohio can remove voters from the rolls who don’t vote over a six-year period. If a voter in Ohio misses an election, doesn’t respond to a subsequent mailing from the state, and then sits out two more elections, he or she is removed from the registration list, even if this person would otherwise be eligible to vote. Critics of this process say it turns voting into a “use it or lose it” right and will open the door to wider voter purges.
Ohio purged 2 million voters from 2011 to 2016, more than any other state, including over 840,000 for infrequent voting. At least 144,000 voters in Ohio’s three largest counties, home to Cleveland, Columbus, and Cincinnati, have been purged since the 2012 election, with voters in Democratic-leaning neighborhoods twice as likely to be removed as those in Republican-leaning ones, according to a Reuters analysis.
A federal appeals court ruled in September 2016 that the state’s purging of infrequent voters violated the NVRA, which states that someone cannot be removed from the rolls “by reason of the person’s failure to vote.” As a result of that ruling, 7,500 people who had been purged from the rolls were reinstated and were able to vote in the 2016 election.
Ohio says it should be allowed to remove these voters from the rolls under the NVRA, claiming that “a failure to respond to a notice— not a failure to vote—is the sole proximate cause of removal” under its purge program. Ohio adds that if the Supreme Court finds that the NVRA does prohibit its actions, it would raise “serious constitutional questions” about the law. A supporting brief by the American Civil Rights Union, a conservative group that has sued states to force aggressive voter purges, says that if “the NVRA indeed prohibits the states from utilizing inactivity as a factor that leads to deeming a registrant ultimately to be unqualified—as the lower court found—then the NVRA intrudes on the important federalist balance in the Constitution.”
The Ohio case isn’t the only way Republicans are trying to weaken the motor voter law.
In 2013, Kansas implemented a law championed by Secretary of State Kris Kobach that required people to show a birth certificate, passport, or naturalization papers to register to vote. The proof-of-citizenship law ultimately blocked 1 in 7 eligible voters who attempted to register, nearly half of whom were under 30. The ACLU sued, alleging that the law violated the NVRA by preventing people from registering at the DMV. The ACLU won a preliminary injunction in 2016, with a federal appeals court ruling that if the law remained in effect, “there was an almost certain risk that thousands of otherwise qualified Kansans would be unable to vote in November.”
After the election, Kobach drafted federal legislation to amend the NVRA to allow states to require proof of citizenship for registration. He shared his draft with Donald Trump and his top advisers during a meeting in November 2016. Kobach, who later became the vice chair of Trump’s now-defunct election integrity commission, fought relentlessly to shield this proposal from the public and was fined by a federal court last year for telling the court that “no such document exists.”
The ACLU’s case against Kobach is going to trial in March. If Kobach wins, the precedent will allow more states to pass similar proof-of-citizenship laws. If he loses, Kobach will no doubt intensify his efforts to amend the NVRA. “The NVRA has been abused by organizations like the ACLU,” Kobach told the New York Times Magazine last year. “They’ve twisted the words to try and say it prevents proof-of-citizenship laws.”
Even as Republicans are seeking to weaken the NVRA, three conservative lawyers who worked in the George W. Bush Justice Department are turning the law on its head by attempting to use it to force states and localities to engage in Ohio-style voter purges. As my colleague Pema Levy reported, they’ve targeted nearly a dozen states, along with small counties in places like Mississippi and Texas with large minority populations:
The letter to Noxubee County [Mississippi] alleged that the county was violating a federal law that requires states to keep their rolls up to date. The commissioners maintained that they were following the law. In fall 2015, the ACRU’s [American Civil Rights Union] attorneys began to push the commission to sign a consent decree that would commit the county to vigorous vetting of its registered voter list in order to avoid a lawsuit. Among its provisions, the draft decree would require the commission to send a non-forwardable notice to all registered voters asking them to confirm their eligibility. Every voter who did not fill it out and return it would be put on a list of inactive voters, and anyone on that list who failed to vote in two federal elections would be removed from the rolls.
For its part, the Trump administration has come out squarely in support of voter purges. The Obama Justice Department opposed the Ohio purge program, but Trump’s DOJ abruptly switched sides in the case. “After this Court’s grant of review and the change in Administrations, the Department reconsidered the question,” the DOJ informed the Supreme Court in August. “It has now concluded that the NVRA does not prohibit a State from using nonvoting as the basis for sending a [removal] notice.”
In June 2017, the DOJ also sent a letter to 44 states informing them that it was reviewing their voter list maintenance procedures and asking how they planned to “remove the names of ineligible voters.” If Ohio wins at the Supreme Court, it will “certainly embolden” the department and GOP-controlled states to undertake aggressive voter purges, says Vanita Gupta, who headed the DOJ’s Civil Rights Division under Obama and is now president of the Leadership Conference on Civil and Human Rights.
And that would open the door to broader challenges to the NVRA. “It’s a hugely significant case,” Gupta says. “If the court comes out with a broad ruling that says inactivity in voting is sufficient proof to kick a voter off of the rolls, that could have broad implications across the country for how voters are purged off the rolls per the National Voter Registration Act.”
I'm totally confused by politics in this country. Republicans is the party that works to take away health insurance from 31 million Americans, defund Medicare by $1 trillion dollars, create handicaps for the poor and blacks to vote, and lock up congress to become so impotent, they're approval rating is the lowest in history. Their approval rating was as low as 9%, and it's now sitting at 16%. Why do the American people keep voting these losers back into office? That's the mystery of our times.