By Zack Damron
If you think that Election Day is just for the candidates, you are mistaken. This November, a number of States will be taking on partisan gerrymandering, voting disenfranchisement, campaign finance reforms, and much more. In this post, I will provide just a little taste of how voters can change the landscape of Election Law on Nov. 6th. Election Day isn’t just for the candidates any more.
First, Michigan voters will consider a proposition creating an Independent Commission that will be in charge of redistricting in state and federal elections. The Commission will be made up of 13 randomly selected applicants chosen by the Secretary of State. Of these 13, 4 must self-identify with the major political parties (i.e., Democrat or Republican) while another 5 must self-identify as any other party (i.e., Independent, Green Party, etc.). The criteria for the new districts must be in conformity with the one-person, one-vote line of cases: geographically compact districts, contiguous districts of equal population, and reflect the diverse population of the state and communities of interest. If approved, Michigan will become the 14th state to allow an Independent Commission to control redistricting. Michigan isn’t the only state that is considering redistricting reform. Redistricting will find itself on the ballot of Colorado, Utah, and Missouri.
Independent Redistricting Commissions have come under fire. In a recent Supreme Court case Ariz. State Legislature v. Ariz. Independent Redistricting Comm’n, Justice Ruth Bader Ginsburg, for the Court, held that a Redistricting Commission does not run afoul to the Elections Clause of the Constitution. 135 S. Ct. 2652 (2015). The Elections Clause states “The Time, Places, and Manner of holding Elections . . . shall be prescribed in each State by the Legislature thereof . . . .” U.S. Const. art. I, sec. 4. Although the Constitution states that elections will be dictated by the Legislatures of the State, because Arizona allowed direct referenda to make policy, doing so in this case was not unconstitutional.
Voters in Florida will be able to reverse the unfortunate title of “The Disenfranchisement Capital of America” by voting to end felon disenfranchisement for good. The initiative will add an amendment to the Florida Constitution, called the Voter Registration Amendment, that will “restore the voting rights of Floridians with felony convictions” as long as they complete their sentences, including probation and parole. The restoration does not extend, however, to the felonies of murder or sexual offenses. In Florida, the amendment must pass with 60% of the vote. If passed, Florida will join 19 other states that have the majority of other states that have granted felons the right to vote after completing their sentence.
There has been a lot of discussion over voter I.D. laws that have gone into effect over the past few weeks in North Carolina. Arkansas voters will also be able to have an immediate impact in this realm when a constitutional amendment is placed on the ballot this November. Arkansas Issue 2 would require individuals to present a photo I.D. when voting in person or absentee. If the voter does not present an I.D. they will be able to cast a provisional ballot that will be counted “only if the voter certifies the provisional ballot in a manner provided by law.” In order for a provisional ballot to be counted, the voter must sign a sworn statement at the polling place stating that they are registered to vote, and this statement is then sent to the county board of election commissioners. The amendment does not specify what constitutes as a valid photo I.D., though a previous amendment to the Arkansas Constitution states that driver’s license, photo I.D. card, concealed carry card, U.S. passport, Employee/Postsecondary Education badge (although the college must be in Arkansas), Military I.D., public assistance card, or a voter I.D. card are all sufficient. The State will also provide free photo I.D.’s to those who do not have an I.D. The Arkansas Supreme Court struck down a very similar bill on the basis that the bill went beyond what the Arkansas constitution allowed. With the introduction of a constitutional amendment, the legislature seeks to circumvent the unfavorable ruling.
For other issues that are on the ballots this November, I recommend checking out Professor Joshua Douglas, Don’t Worry, all is not lost. State and local activists are fixing our elections, Los Angeles Times (Oct. 11, 2018), Michael Tanner, Midterm Ballot Initiatives Matter, too, National Review (Oct. 24, 2018), and Sam Levine, The 2018 Midterms Will Have Huge Consequences For Voting Rights, Huffington Post (Oct. 30, 2018) . Whatever the initiative, there is no doubt that voters this year will be able to change the landscape of Election Law for the foreseeable future. Candidates aren’t the only relevant things about the Midterms this year.