On The Docket 04/14/2023

“We are deeply concerned that without immediate action by the U.S. Department of Justice, antidemocratic actors will only be emboldened, and we will see more troubling and more frequent incidents meant to unravel our democratic fabric,” a handful of Senate Democrats concluded in a recent letter. [link removed]

The senators are referring to the shameless actions we recently witnessed in Tennessee. In today’s newsletter, we explore how the expulsion of two young lawmakers simply exposes the extent of the state’s anti-democratic streak. Meanwhile, a very different expulsion took place in the Arizona House. The Grand Canyon State remains the hotbed for election denialism as exemplified by three ongoing election contests (over five months after the 2022 election).

The Depth of the Tennessee GOP’s Disdain for Democracy

“It is a party and it is a super majority that is drunk with power and the world saw yesterday: There’s no democracy in Tennessee. Our Legislature is the opposite, it is autocracy and it should scare us all.”

These are the words of state Rep. Justin Jones (D), a young, Black lawmaker in Tennessee who was expelled from the Legislature by his Republican colleagues for disrupting decorum while protesting in favor of gun safety legislation after a deadly school shooting in Nashville. On April 6, Tennessee lawmakers ousted Jones, along with Rep. Justin Pearson (D) — two young, Black lawmakers. The Assembly did not expel a third Democrat, a white woman, even though she protested alongside Jones and Pearson. [link removed]

In rapid succession this week, the local councils in Nashville and Memphis sent Jones and Pearson back to the Tennessee Legislature. Even though the two lawmakers returned to their seats and residents regained representation, the high-profile incident brought Tennessee politics to the nation’s attention. The Legislature’s actions did not take place in a vacuum, but rather were indicative of a systemic disdain for representative democracy:

Tennessee’s Democratic cities have come under a coordinated attack from lawmakers. In March, Gov. Bill Lee (R) signed a law that forces the Nashville Metro Council to reduce its membership by half. Two lawsuits were filed challenging the law and on April 10, a Tennessee court temporarily blocked portions of the law while litigation continues. After the expulsion of Pearson, GOP legislators threatened to withdraw funding from important projects in Memphis’ Shelby County if Pearson was reappointed. [link removed]

In the latest round of redistricting, the Legislature divided Davidson County, home to Nashville, into three separate districts, dismantling the city’s Democratic-held seat. The lawmakers also approved state legislative districts that entrenched Republican supermajorities in both chambers of the Legislature. (Notably, the recent expulsions were only possible because of GOP supermajority control.)

Tennessee denies voting rights to over 470,000 citizens with one of the strictest (and most complicated) felony disenfranchisement laws in the United States. The state disenfranchises 21% of its Black voting-age population, the highest percentage in the country.

Tennessee has restrictive voting laws, leading to a low democracy tally by the Movement Advancement Project. Instead of improving voting access, the Legislature’s priorities have included laws requiring state and local officials to consult with the legislative leadership before changing certain state election laws and prohibiting election offices from accepting any private grant for election administration.

Sherrilyn Ifill, the former president of the NAACP Legal Defense Fund, emphasized an unexpected and important takeaway from the recent incident: “In this rush to remove these two young men, I think the speaker did not anticipate that the whole nation would see it.”

The whole nation did, and on Wednesday, U.S. Senate Majority Leader Chuck Schumer (D-N.Y.) and Sen. Raphael Warnock (D-Ga.) sent a letter to the U.S. Department of Justice calling on the department to “use all available legal authorities” to investigate whether the Tennessee House members violated federal civil rights laws or the U.S. Constitution. [link removed]

GOP-Controlled Arizona House Expels Republican Member

On Thursday, the Republican-controlled Arizona House voted 46 to 13 to expel state Rep. Liz Harris (R) over ethics violations relating to election misinformation. The move to kick out the lawmaker stood in serious contrast to the efforts in Tennessee. Unlike Tennessee, a report from the Arizona House Ethics Committee emerged after a formal complaint was filed and the committee held an evidentiary hearing. The resolution to expel Harris received overwhelming bipartisan support. [link removed]

What did Harris do to get ousted? In February, Harris invited a constituent to share false claims about elections and other conspiracies at a committee hearing. According to the report, the constituent’s presentation was titled “Preliminary Findings of Activities Impacting Arizona’s Election Integrity” and it “alleged the existence of numerous schemes that encompass money laundering, drug trafficking and sales, public corruption, bribing of public officials, and election fraud.” The presentation named various public officials and asserted that they committed improprieties. [link removed]

The Ethics Committee unanimously concluded that Harris violated Rule 1 of the Rules of the Arizona House of Representatives, which prohibits members from engaging in disorderly behavior. The committee determined that Harris had prior knowledge that the constituent she invited would include criminal allegations in her presentation and that Harris took steps to avoid submitting the presentation in advance.

“I’m not alone in believing that it was irresponsible and bad judgment for Ms. Harris to invite a person to present unsubstantiated and defamatory allegations in a legislative forum,” House Speaker Ben Toma (R) said in a statement on Monday. There are now 29 Democrats and 30 Republicans in the Arizona House’s narrowly divided chamber. To fill the vacancy, local GOP officials will put forward three possible replacements and the Maricopa County governing board will make the final decision.

Harris crossed a line when she invited someone to give a conspiracy-laden presentation at a hearing and accuse officials of crimes. However, lawmakers in Arizona and elsewhere continue to spread false claims about elections without repercussions.

Five Months Since Election Day…but Kari Lake and Company Are Still Contesting Their Losses in Court

It’s been 157 days since the 2022 midterm elections, but a trio of Republican election deniers in Arizona is still fighting in court. Here’s where they stand:

Gubernatorial candidate Kari Lake: The former news anchor lost the 2022 gubernatorial election to Democrat Katie Hobbs by 17,000 votes. Prior to the election, Lake repeatedly claimed that there would be fraud, so it didn’t come as a surprise that she filed a lawsuit contesting her own results. [link removed]

After Lake’s contest was rejected by both the trial court and the appellate court (and Hobbs was sworn in as governor), the Arizona Supreme Court rejected six of Lake’s seven claims. Further review of the seventh, narrow claim is ongoing at the trial court.

Attorney general candidate Abe Hamadeh: In the closest statewide election of 2022, Kris Mayes (D) defeated Hamadeh by just 280 votes following a mandatory recount. Hamadeh filed two lawsuits challenging the results, although the first was dismissed since it was filed before results were certified. [link removed]

In December 2022, a judge rejected Hamadeh’s contest. Mayes was sworn into office on Jan. 2, 2023, and on Jan. 3, 2023, Hamadeh requested a new trial, alleging that there is “new and compelling information” that all votes weren’t counted in the race. This week, the Arizona trial court scheduled oral argument on May 16 to consider the request for a new trial.

Secretary of state candidate Mark Finchem: Election denier Finchem lost to Adrian Fontes (D) by over 120,000 votes in the race for secretary of state. [link removed]

A court dismissed the lawsuit in December 2022 and the Arizona Supreme Court denied Finchem’s appeal. Litigation is ongoing at the Arizona Court of Appeals. Meanwhile, the trial court imposed sanctions on Finchem for filing a frivolous lawsuit.

In 2022, Arizona saw the highest number of voting and election lawsuits filed. Currently, there are 20 ongoing lawsuits in the Grand Canyon State. We dive into all of them here. [link removed]

Legislation Round Up: Awaiting Gubernatorial Action

The governor’s signature is the final step for a piece of legislation before enactment. Here’s a handful of bills we’re watching that are awaiting action from the governor:

Arizona House Bill 2305, which would empower partisan election observers and challenges; House Bill 2308, which would require the secretary of state to recuse themselves from overseeing elections in which they are a candidate and House Bill 2319, which would instruct courts on how to interpret election law. All three laws are heading to Gov. Katie Hobbs (D), who has already shown she’s willing to veto bad voting bills.

Georgia Senate Bill 222, which would tighten and criminalize the state’s pre-existing ban on private funding in election administration, heads to Gov. Brian Kemp (R).

Indiana House Bill 1334, which would add ID requirements to mail-in ballot applications, heads to Gov. Eric Holcomb (R).

Maryland House Bill 535/Senate Bill 379, which would create a cure process for mail-in ballots and require election officials to pre-process mail-in ballots prior to Election Day, heads to Gov. Wes Moore (D). (This is a smart move by the Maryland Legislature in light of litigation over this issue in 2022.)

Mississippi House Bill 1310, which would establish new list maintenance procedures that make it easier to flag voters as inactive and remove them from the voter rolls, heads to Gov. Tate Reeves (R).

Montana Senate Bill 117, which would ban state, county or local officials from accepting private funding for election administration, heads to Gov. Greg Gianforte (R).

Washington House Bill 1048, which would further enhance and enforce the state’s 2018 Voting Rights Act, heads to Gov. Jay Inslee (D).

Another SCOTUS Opinion Day

It’s opinion day! This morning at 10 a.m. EDT, the U.S. Supreme Court will release decisions in any of the cases that have already been argued before the court. This could potentially include two major election cases, Merrill v. Milligan and Moore v. Harper.
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Throughout the spring — and until the Court releases these opinions — we will keep reminding you about these two incredibly important cases. A decision from the nation’s highest court in both of these cases will impact voting laws, redistricting and fundamental questions of democracy and representation.

In the redistricting case Merrill v. Milligan, the U.S. Supreme Court will determine the future of the Voting Rights Act with major implications for a number of ongoing lawsuits challenging unfair maps. Here’s what could happen. [link removed]

In Moore v. Harper, the Court's independent state legislature theory case, there are several ways a decision could go — including an option to dismiss the case completely. Here’s what could happen. [link removed]

More News

Last Thursday, nonprofit organizations and a rights restoration applicant sued Virginia Gov. Glenn Yougkin (R) over his new policy that effectively reinstates a 1902 lifetime ban on voting for all people convicted of felonies. [link removed]

Last Friday, civil rights organizations filed a lawsuit arguing that the county commission districts of Jefferson County, Alabama are racially gerrymandered in order to “crack” and “pack” Black voters in violation of the 14th Amendment of the U.S. Constitution. [link removed]

On Monday, the North Dakota Legislature approved a proposed amendment that would restrict the ballot measure process in the state. The resolution will go before the state’s voters for approval during the November 2024 election. [link removed]

A trial is scheduled for Oct. 30, 2023, in Fair Fight v. True the Vote, a voter intimidation case about right-wing efforts to challenge the voter eligibility of hundreds of thousands of Georgia voters ahead of the 2021 U.S. Senate runoff elections. [link removed]

Last week, the Texas Senate advanced numerous anti-voting bills. The bills would give the secretary of state the power to order a rerun of an election in Houston’s Harris County, create a system to investigate election crimes and more. Given Republican control of the legislative process in Texas, all of these bills have a good chance at being enacted into law. Find a summary of the legislation here. [link removed]

Pinal County, Arizona Sheriff Mark Lamb filed to run for U.S. Senate. Pushing the “Big Lie,” Lamb and his far-right sheriffs group, Protect America Now, “created a posse of vigilantes who are eager to spy and report on their neighbors” about allegations of voter fraud, Democracy Docket contributor Jessica Pishko wrote last August. [link removed]

OPINION: Voter Registration Should be Simple. Red States Are Making It Harder.

By Charlotte Hill, the interim director of the Democracy Policy Initiative at UC Berkeley’s Goldman School of Public Policy. As a contributor to Democracy Docket, Hill writes about how structural reforms impact American democracy. Read more ➡️ [link removed]

What We’re Doing

We’re reading The Guardian’s Sam Levine’s deep dive into how Florida Gov. Ron DeSantis (R) has intentionally dismantled Black political power, from gerrymandering to rolling back rights restoration. [link removed]

For more on the Tennessee Three, we’re listening to Sherrilyn Ifill, former president of the NAACP Legal Defense Fund, on Slate’s Amicus podcast. [link removed]

Last Friday, a rogue district court judge in Texas tried to ban mifepristone, a safe and effective abortion pill that was approved by the Food and Drug Administration in 2000. We’re reading from Balls and Strikes about the inflammatory language used by the judge in his ruling. Also, read this Vox Explainer on the most recent, confusing ruling from the 5th U.S. Circuit Court of Appeals. [link removed]
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Our podcast, Defending Democracy, is on spring break until next Friday, April 21. It’s the perfect time to catch up on our previous episodes. From Sen. Sheldon Whitehouse (D-R.I.) on SCOTUS reform to the right wing’s latest legal theory, we’ve covered a lot of topics. Listen here. [link removed]


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