State of Elections

William & Mary Law School | Election Law Society

A Case Study in Independent Redistricting – Washington State

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By Megan Bodenhammer

Any native of Washington State knows, first-hand, the degree of political polarization that exists in the state. The western part of Washington State encompasses the most heavily populated and liberal part of the state, including Seattle and the rest of King County. In contrast, the eastern part of the state is much more conservative and rural. This split makes politics in the state especially contentious and divisive. Interestingly, as a result of this stark geographical and cultural divide, the eastern part of Washington State has threatened to secede and create its own state quite frequently throughout history. 

This split political climate forms the background for all legal and political issues in the state. This is especially true for election laws and redistricting. In most states, politicians or legislatures draw the maps for state elections. In other words, the politicians whose job security depends on elections are the same people who draw the districts that determine the outcome of elections. In places like Washington, where political opinions are deeply entrenched and divisive, this can be problematic. In thirty-four states, districting for state elections is done predominately by state legislatures. Washington is just one of fourteen states that has an independent districting commission. The remaining two states have a hybrid model. 

The body that draws maps in Washington is called the Washington State Redistricting Commission, which is a board made up of five commissioners. Four of the commissioners are selected by the majority and minority leaders in each chamber of the state legislature. These four commissioners, then, vote on a fifth commissioner who serves as the non-voting chair. The non-voting chair’s role is to establish areas of common ground and facilitate compromise. This results in a bi-partisan commission with two seats for the Democratic Party and two seats for the Republican Party, who decide the fifth, non-partisan chair together. This makes Washington unique because it is only one of nine states with a non-politician districting commission. This means that commissioners may not have been elected as a district, county, or state party officer, nor may they have been another type of elected official within two years of appointment to the commission. Additionally, commissioners may not have been a registered lobbyist within one year of appointment. There are also requirements during a commissioner’s appointment. Commissioners may not campaign for elected office or participate in or donate to any political campaign for state or federal elected office. For two years following their service, commissioners may not hold or campaign for congressional or state legislative office. 

In a staunchly divided state like Washington, it would seem beneficial to have a non-politician and bipartisan districting commission. However, it is questionable whether these requirements actually prevent political gamesmanship and gerrymandering. First, the prohibition on politicians is not a difficult hurdle to overcome. Two years without running for public office hardly prevents someone with political motivations or budding political ambitions from being selected to the commission. Further, because commissioners are selected by state legislatures, they are likely colleagues or affiliates of politicians, not far-removed non-partisan individuals as is required. Further, because the majority and minority leaders each get to pick a representative, it is likely they will pick a commissioner that represents their political ideations. Being selected by a group of politicians is not altogether different from the leaders appointing a politician to the commission.

The Washington State Redistricting Commission has not been without its flaws. The Commission was unable to come to a consensus and meet its November 15, 2021, deadline to draw district maps. Instead, the Washington State Supreme Court was tasked with drawing the state’s new legislative maps. In March of this year, the chair of the commission, Sara Augustine, resigned from her position. Her decision came after the commission failed to intervene in a lawsuit regarding its own maps. She claims that in failing to defend the maps, state authorities have undermined the compromise that went into creating maps that protect the public interest. Moreover, the Commission is under suspicionfor conducting their deliberations of map drawing in private, in violation of a Washington law called the Open Public Meetings Act. This act requires all meetings of governing bodies of public agencies be open to the public. Clearly, the realities of bipartisan map drawing are not as idyllic as they may seem on paper.            

While the basis of a non-politician and bipartisan districting commission sounds like a modern solution to districting issues, Washington State is an important case study testing out this theory. While the Commission may not have been wholly successful, it will be interesting to see how Washington approaches its next redistricting. If Washington, with its intense political polarization, can find a way to manage bi-partisan and apolitical districting, perhaps the rest of the nation could follow its lead.

Arizona’s Newest Proof-of-Citizenship Law is Potentially Unconstitutional (Again)

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By Sarah Bradley

Arizona has a well-known history of stringent anti-immigration laws and policies, from the widely covered “show me your papers” law—at the time, the strictest anti-immigration law in the country—to more recent busing of migrants to D.C., following Texas’s lead. In its most recent session, the state legislature has followed this trend, passing a law that echoes an attempt in 2004 that was later struck down.

On March 30, 2022, Arizona Governor Doug Ducey signed House Bill 2492 into law, jeopardizing the voter registrations of tens of thousands of state residents. HB 2492 requires voters to demonstrate proof of citizenship at registration or within 30 days of registering to vote, despite opposing Supreme Court precedent.

In 2004, Arizona passed Proposition 200, a highly restrictive anti-immigration law which included a provision requiring voters to present proof of citizenship. After multiple legal challenges, the Supreme Court eventually struck down the proof of citizenship requirement for federal elections. In 2013, the Court heard Arizona v. Inter Tribal Council of Ariz., Inc., ruling that the state could not impose this requirement on voters who use a federal voter registration form. A federal voter registration form, required by the National Voter Registration Act of 1993, is prepared by the U.S. Election Assistance Commission and allows registrants to vote in national elections. “Federal-only” voters are not required to provide proof of citizenship (some states may require proof of identification, a much lower burden). In response to this ruling, the Arizona legislature bifurcated the state’s voting system and imposed the proof-of-citizenship requirement on state and local elections. There are currently around 31,500 federal-only voters in Arizona.

The NAACP, in an amicus brieffiled regarding Arizona v. ITC, noted that throughout the tenure of Proposition 200, Arizona found no instances in which an undocumented immigrant registered or voted in the state, yet rejected the registration applications of over 30,000 residents, with a disparate impact on the Latino population. HB 2492 is poised to have an even more destructive impact on voting access beyond the federal-only voters. 

Critics of HB 2492 have argued that the new law would cause thousands of previously registered voters to lose their access to the polls. Proposition 200 included language that grandfathered in previously registered voters, but HB 2492 would supersede the old law and would retroactively apply the citizenship requirements. Marilyn Rodriguez, a lobbyist for the ACLU of Arizona, told the state Senate Government Committee prior to the passage that “thousands of eligible voters could lose access to the polls based on specific and targeted criteria. This bill singles out older voters, on average, and people who have lived in Arizona for a longer amount of time.” Additionally, proof of citizenship laws have historically had a discriminatory effect on communities of color.

Estimates of the numbers of voters losing access to the polls are as high as 192,000, the number of residents who were issued a driver’s license prior to 1996 and have not altered it since, according to the Arizona Department of Transportation. In 1996, the state began requiring drivers to provide proof of their lawful presence in the United States, and a license is one of very few ways that a resident may prove citizenship.

Governor Ducey, in his defense of the bill, cited the high number of federal-only voters in the 2020 election—over 11,600—as evidence of its necessity to prevent election fraud. The bill’s sponsor, Republican Rep. Jake Hoffman, claimed that it was necessary to protect elections from foreign interference. Hoffman supported former President Trump’s claims that the 2020 election was stolen and was one of the 84 people to act as a fake elector for Trump. He also runs a marketing firm that was banned from Facebook for engaging in “coordinated inauthentic behavior”, running a “troll farm” that advocated right-wing opinions on social media, including the claim that mail-in ballots would lead to fraud. Hoffman’s personal Twitter account was suspended prior to the 2020 election.  

In July, the Department of Justice filed suit against the state, claiming that HB 2492 violates both Section 6 of the National Voter Registration Act and the Civil Rights Act of 1964. Kristen Clarke, Assistant Attorney General for the Civil Rights Division of the DOJ, called HB 2492 “a law that turns the clock back, by imposing unlawful and unnecessary requirements that would block eligible voters from the registration rolls for certain federal elections.” Clarke added that the DOJ “will continue to use all of the tools provided by federal law . . . to . . . protect every qualified American seeking to participate in our democracy.”

There have also been a number of other suits filed by various interest groups. If any of these suits reach the Supreme Court, the bill may be upheld, as it faces a very different Court than in 2013. Arizona Republican legislators have called the bill “a fight worth having,” and Governor Ducey invited potential challengers on the left to “have at it.”

HB 2492 is currently slated to go into effect on January 1, 2023.

The Issue of Issue 2

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By Anna Rhoads

In 2019, the village of Yellow Springs, Ohio, voted to make a small change. That year, Yellow Springs’ 3,800 residents voted on a referendum to allow the tiny minority of the village’s 170 foreign-born residents who were still noncitizens to vote for local offices. The referendum passed with fifty-nine percent of the vote, setting off a chain reaction resulting in a new initiative to amend the state constitution that Ohioans will see on the ballot this November.           

Largely in response to the Yellow Springs referendum and its success, Republican Representatives Jay Edwards and Bill Seitz sponsored H.J.R. 4, a joint resolution to amend Section 1 of Article V, Section III of Article X, and Section III of Article XVIII of Ohio’s constitution. Sponsors introduced the joint resolution on May 17th, and by the end of the month, it passed in the House and came to the Ohio Senate as S.J.R. 6. By June, the joint resolution passed in the Senate, too, becoming ballot initiative Issue 2. Issue 2’s certified ballot language describes the measure as amending the state constitution “to prohibit local government from allowing non-electors to vote.” In practical terms, these amendments would prevent local governments from allowing noncitizens who are legal permanent residents in Ohio to vote in local elections. 

Issue 2’s proponents include Republican lawmakers. The initiative’s supporters argue that the proposed amendments would proactively ensure the clarity of election law in Ohio. Supporters see the initiative as a preventative measure that would avoid policies that have passed in cities in Left-leaning states, like in New York where recent measures allowed noncitizen legal permanent residents to vote locally. They contend that although Ohio and federal law prevent noncitizens from voting, there is a risk that localities will be able to allow noncitizens to vote locally, using the state constitution’s “home rule,” which gives localities ultimate control over local affairs. Supporters, including Ohio Secretary of State Frank LaRose, note that letting noncitizens vote locally could increase administrative burdens. More fundamentally, the initiative’s proponents view American elections as solely for American citizens and believe that allowing noncitizen residents to participate even locally would undermine fundamental American values.

However, Issue 2’s opponents, including the Ohio ACLU, Yellow Springs officials, Ohio’s Democratic lawmakers, and the Ohio Environmental Council Action Fund, take issue with the initiative for several reasons. Issue 2’s opponents note that federal and Ohio law already make citizenship a prerequisite to being eligible to vote and that home rule does not give localities carte blanche to draft laws in conflict with federal and Ohio law. In fact, although Yellow Springs voted to allow noncitizens to vote in local elections, citing home rule as allowing them to make this change, no noncitizens have voted in Yellow Springs (or any other Ohio locality, for that matter) because Secretary LaRose “ordered officials to table the measure.” Secretary LaRose has sent criminal referrals to noncitizens who have allegedly registered to vote, and noncitizens who fail to cancel their registration after a second notice can face felony charges. As such, opponents argue that the initiative is unnecessary and does not serve the prophylactic purposes Republican lawmakers claim. Opponents argue that instead, Republican lawmakers are using the initiative to signal to “Replacement Theory” and “Big Lie” adherents that their violently xenophobic views have merit. As such, opponents view the initiative as a purely political move that “can only add fuel to the wave of fanatical xenophobia.” Opponents argue that this political move is also designed to gin up a wave of Republican voter turnout in November when a United States Senate seat, all five statewide offices, the General Assembly, and control of the Ohio Supreme Court will be up for grabs. Additionally, Issue 2’s opponents say that the initiative’s amendments will change the state constitution’s provisions from a grant of voting rights to a restriction on voting rights. Thus, the initiative stealthily threatens the General Assembly’s power to liberalize voter registration requirements by permitting those who have registered less than thirty days before an election to vote as well as current laws allowing seventeen-year-olds to vote in primaries if they will be eighteen by the general election.

Changing Ohio’s voting laws has been a project of Ohio’s Republican lawmakers since 2020, and Issue 2 continues this trend. However, with measures to allow noncitizen residents to vote locally proving popular in other statesand some of Ohio’s cities, Republicans may need more than a Red wave in November to pass this initiative.

Opinion: Wyoming Secretary of State Nominee Chuck Gray Wants Residents to Cowboy Up and Vote in Person

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By Hunter Hoffler

Wyoming Republican Chuck Gray, the recent nominee for Wyoming Secretary of State, claims he intends to make significant changes when he arrives in the State’s capital of Cheyenne. Like many Trump-backed candidates, Gray believes the 2020 presidential election was a fraud and fears his State is rife with voter fraud as well.

Gray ran on the promise that he would curtail voter fraud despite only three convicted cases of voter fraud in Wyoming since the year 2000. To combat this issue, Gray has openly stated that he wants to ban ballot drop boxes in his State, instead opting for the traditional practice of collecting “all paper ballots.” The presumed Secretary-elect would prefer in-person, paper-ballot voting. In Gray’s words, “The fact that a few counties have moved off of paper ballots . . . is really wrong.”

Despite a heavily Republican constituency in Wyoming, Gray asserts that local elections can still become compromised through nefarious ballot collection practices. As a result, Gray’s campaign for Wyoming Secretary of State fixated on improving election integrity and demonstrating the likely impacts of voter fraud. Hoping to impact his constituency, Gray repeatedly aired the controversial and critically ridiculed documentary “2000 Mules” by Dinesh D’Souza at his campaign stops.

The question remains: what authority will Gray have to implement his election integrity agenda? While in the state legislature, Gray also campaigned on, and promulgated bills to, improve election integrity. In 2021, Gray and his colleagues passed Wyoming’s Voter ID Law, which required residents to possess a valid state or federal form of identification to vote in person. Fortunately for those who oppose Gray’s agenda as Secretary of State, he alone will not be able to implement radical change to Wyoming’s voting procedures. In fact, within the scope of voting and voter registration, the Wyoming Secretary of State’s duties are relegated mainly to the administration and oversight of elections. In other words, to implement sweeping changes to the way Wyoming residents can vote, Gray will need to go through the State’s legislature and adhere to federal voting regulations.

The more immediate concern (should Gray be sworn in as Wyoming’s Secretary of State) is staff turnover in the Secretary of State’s office, particularly amongst those experienced in administering elections. Reducing the collective experience of the group administering elections could lead to trouble in upcoming state and federal election cycles should a hitch in the process occur. To date, one official has vacated her position based on concerns over Gray’s views.

The nation’s voters are broadly divided along party lines regarding the ratification of election security legislation – which is generally a priority of registered Republicans – or election openness legislation – which is usually a priority of registered Democrats. However, Wyoming legislators on both sides of the aisle are concerned enough with Gray’s positions on the 2020 Presidential election and Wyoming election security to propose legislation that would strip his soon-to-be office of its duties to oversee elections.

Opponents of Gray’s proposals fear that the growing number of local and federal candidates running on platforms of election insecurity may spread fear that the election process is flawed. Mistrust in the election system may, in turn, lead to uncertainty, harassment, and lack of participation at the polls.

What is clear is that there should be a bipartisan coalition that works to ensure elections are safe for the people of Wyoming. What remains to be seen is whether Chuck Gray and his principles will be part of that conversation.

Accessibility vs. Security: Online Voting in Puerto Rico

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By Shannon Schmidt

While the United States’ partisan battle between election accessibility and election security continues to rage, one US territory has quietly set in motion a plan that places the latter at risk to the benefit of the former.

In the spring of 2020, the Senate of Puerto Rico passed Senate Project 1314, a bill that would reform the territory’s electoral code. The bill contained an online voting plan which would call for the Puerto Rico State Commission on Elections to create an internet voting program accessible to all Puerto Rican voters by the 2024 gubernatorial election. Under the plan, Puerto Rico’s election commission would later be called to consider implementing exclusively-online voting in 2028. In response to this plan, groups like the ACLU, the Brennan Center, and Verified Voting urged then-governor of Puerto Rico Wanda Vázquez Garced to veto the bill.

According to these groups, internet voting cannot be accomplished securely. In a letter to the governor, members of Verified Voting–a nonpartisan collective of computer scientists and cybersecurity experts–described internet voting as the most vulnerable method of voting. The letter listed the types of attacks that would pose credible threats to internet voting, such as voter authentication attacks, malware on voters’ devices, server penetration attacks, and spoofing attacks. It also highlighted that the prevalence of these attacks could not be reliably detected. Even an online voting system that seemed to be working as intended could be subject to interference from undetected cyber-attacks.

Nevertheless, in June of 2020 Governor Wanda Vázquez Garced signed the new version of the electoral code into law, thus setting in motion the election commission’s task to create an internet voting plan. If the plan is successful, the Puerto Rican vote will be 100% online-cast by 2028.

Puerto Rico was not the first jurisdiction in the United States to adopt an online voting system, but its plan may be the most ambitious. In an article from 2020, Politico’s Eric Geller lays out three basic ‘flavors’ of internet voting that have permeated United States elections: electronic delivery, where voters receive a digital copy of a blank ballot by either email or download; electronic ballot marking, where voters can fill out their ballot over their personal electronic device, but must still mail it in or cast it in person; and electronic ballot return, where voters return their completed ballot online. As of 2020, three states–West Virginia, New Jersey, and Delaware–had adopted fully-electronic ballot completion and return for certain voters, including voters with disabilities. In their report “Email and Internet Voting: The Overlooked Threat to Election Security,” watchdog group Common Cause and several other advocacy organizations highlighted military voters as a demographic that has become routinely subject to fully-online voting. Even so, voters within this demographic are only subjected to online voting for as long as they are deployed overseas.

By 2028, Puerto Ricans could be the only constituency in the United States for whom voting online is the only option. And this reality may only implicate the election of Puerto Rico’s territory-wide leadership in the short-term; if Puerto Rico gains statehood by 2028, at least about 4,083,332 voters would receive and cast their votes in the 2028 U.S. presidential election fully electronically.

Proponents of online voting, like West Virginia Secretary of State Mac Warner, believe that online voting is a useful tool for specialty groups–such as service members and people with disabilities–who have been disenfranchised by alternative systems. Similarly, could Puerto Rican voters benefit from these systems in light of their unique obstacles to voting?

In 2017, Puerto Rico’s electorate was reduced after thousands of Puerto Ricans moved to the mainland (especially south and central Florida) following the devastation of Hurricane Maria. In the 2020 primaries, Puerto Ricans faced such long lines at the polls that polling locations were forced to remain open past their official closing times. Even worse, some voters who did reach the polls in 2020 were unable to cast their vote after paper ballots failed to reach voting precincts, further damaging Puerto Ricans’ faith in their electoral system.

Online voting would likely make voting easier and more accessible to many Puerto Ricans. However, voters’ access to online voting raises several logistical concerns specific to the Puerto Rican landscape. For example, approximately 35.7% of households in Puerto Rico do not have computers with access to broadband internet. Ongoing problems with Puerto Rico’s electricity grid, paired with the island’s vulnerability to natural disaster, could prevent Puerto Ricans from casting their vote in the aftermath of utility-disruptive events like hurricanes and tropical storms. Still, online voting would likely extend the window within which Puerto Ricans could cast their votes, and its implementation would not preclude the continued installation of polling locations for voters without home-access to the internet.

But heightened accessibility alone may not justify the security threats to online voting. By 2028, Puerto Rico could demonstrate the success of online voting in several ways; for example, general voter turnout and turnout among historically-disenfranchised groups may have significantly increased. But while the successes of online voting may be clear and demonstrable, its failures could still lurk beneath the surface, undetected.