On The Docket 04/28/2023

This week, President Joe Biden announced his campaign for reelection. In his launch video, democracy and voting rights were front and center. “The question we’re facing is whether in the years ahead, [will] we have more freedom or less freedom?” Biden asked. [link removed]

In today’s newsletter, we explore the expansion of those democratic freedoms in Alaska and Minnesota and the concerning new restrictions in Florida. Additionally, a major ruling came down in a case over Florida’s voter suppression law passed in 2021.

11th Circuit Upholds Most of Florida’s Major 2021 Voter Suppression Law

Yesterday, the 11th U.S. Circuit Court of Appeals largely reversed a district court’s decision that previously struck down three provisions of Florida’s 2021 omnibus voter suppression law, Senate Bill 90.

In the ruling, the 11th Circuit held that S.B. 90’s line-warming ban, drop box limitations and third-party voter registration restrictions do not violate the 14th and 15th Amendments nor the Voting Rights Act (VRA), as a lower federal court previously held in March 2022. In addition, the 11th Circuit reversed a part of the lower court’s ruling that placed the state under preclearance requirements for the next 10 years under Section 3(c) of the VRA. The 11th Circuit did affirm a portion of the district court’s ruling regarding the line-warming ban — striking down a provision that makes it a crime to engage in “any activity with the…effect of influencing a voter” within 150 feet of a polling location — ruling that part of the provision is unconstitutionally vague.

This is a disappointing ruling as the decision means that many of the provisions of S.B. 90 remain permanently in place across Florida. Get the full breakdown of the opinion here. [link removed]

One Anti-Voting Law Isn’t Enough for Florida; Another Advances with Resign-To-Run Provision

On Wednesday, the Florida Senate passed a new omnibus elections bill by a party-line vote of 28-12. The bill involves revisions to many disparate parts of Florida election law, and as amended by the state Senate would also change Florida’s resign-to-run law, clearing the path for Gov. Ron DeSantis' (R) expected presidential bid. [link removed]

In a letter, the ACLU of Florida, Common Cause Florida, the NAACP Florida State Conference and other voting groups criticized the bill’s provisions:

“[T]he requirements, deadlines, and fines for voter registration organizations these bills would establish are so harsh that the impact would be a gutting of community-based voter registration in Florida,” the organizations write.

In regards to the additional language that would be added to Voter Information Cards, the groups note that this disclaimer “sends mixed signals to voters, and in some cases may dissuade eligible citizens from voting altogether…This will particularly dissuade Floridians with past felony convictions whose rights have in fact been restored from voting.”

The bill would give voters less time to request mail-in ballots. “This legislation introduces unnecessary administrative vote-by-mail burdens on both voters and Supervisor of Elections offices,” the letter concludes.

Additionally, Florida law requires public officials running for another office that overlaps with their current term to submit a resignation from their current office before running. An amendment to this omnibus bill would instead exempt candidates running for president from this requirement to aid a potential DeSantis presidential campaign.

The bill now heads to the Florida House, where Republicans outnumber Democrats 84 to 35. Meanwhile, Florida’s legislative session is scheduled to end on May 5.

The 11th Circuit Was Busy Issuing Anti-Voting Rulings This Week

On Wednesday, the 11th Circuit dismissed a challenge to Alabama’s felony disenfranchisement policy. The court held that although Alabama’s 1901 constitution was enacted with an undeniable racially discriminatory intent, a 1996 constitutional amendment clarifying — though maintaining the language of the felony disenfranchisement law — “successfully dissipated the racially discriminatory taint” from the 1901 amendment. (A similar argument over Mississippi’s felony disenfranchisement law prevailed in the 5th Circuit last summer.) [link removed]

The court then rejected the plaintiffs’ arguments that a certain voter registration form violates the National Voter Registration Act (NVRA) because the form does not explicitly list all the disqualifying felonies.

Curiously, on the same day as the 11th Circuit ruling, the League of Women Voters of Florida and the Florida State Conference of the NAACP filed a lawsuit in the Sunshine State over a very similar issue. The plaintiffs argue that the lack of information regarding voter eligibility on the state’s voter registration form, especially as it pertains to returning citizens (those with past felony convictions), violates the NVRA. [link removed]

Alaska Supreme Court Rules Against Partisan Gerrymandering

On Friday, April 21, the Alaska Supreme Court issued a landmark ruling: Partisan gerrymandering is unconstitutional under the Alaska Constitution. The decision, which emerged out of a consolidated lawsuit challenging the Last Frontier’s legislative maps drawn with 2020 census data, makes Alaska the latest state to offer constitutional protections against unfair maps. [link removed]

Nearly four years ago, the U.S. Supreme Court ruled in Rucho v. Common Cause (2019) that federal courts don’t have the authority nor the ability to resolve questions of partisan gerrymandering, the outcome when redistricting maps are drawn to favor one political party over another. “Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void,” Chief Justice John Roberts wrote in the Rucho majority opinion. “Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.” [link removed]

In the aftermath of Rucho, state courts and state constitutions have been put to the test: Can they protect voters from politicians who warp lines to their partisan advantage? Now, after the 2020 redistricting cycle, there are more maps, more lawsuits and slowly but surely, more rulings.

In at least six states, state Supreme Courts have ruled that partisan gerrymandering is not only within their scope to decide on, but also violates their state constitutions. In Alaska, North Carolina and Pennsylvania, the highest state courts have ruled that partisan gerrymandering is justiciable (meaning within the scope of a court to decide) and violates broad protections within state constitution, typically Free and Equal Election or Equal Protection clauses. Three other state Supreme Courts have ruled on specific anti-gerrymandering constitutional provisions: Florida, New York and Ohio.

In contrast, in May 2022, the Kansas Supreme Court ruled that partisan gerrymandering is nonjusticiable under its state constitution. Trial courts in Kentucky, Maryland and New Hampshire have also weighed in on this issue with pending appeals before the Kentucky and New Hampshire Supreme Courts. Notably, New Mexico and Utah are two states awaiting decisions where no court has yet touched upon the justiciability of the issue under their state constitutions.

Read our full analysis of partisan gerrymandering protections in state courts here. [link removed]

Mississippi Sued Over Law Targeting Jackson

Last Friday, Mississippi Gov. Tate Reeves (R) signed into law a controversial plan to create a separate, unelected court over parts of Jackson, Mississippi, the state capital. House Bill 1020 gives white, statewide officials the authority to appoint judges and prosecuting attorneys for the Capitol Complex Improvement District (CCID), a special district in Jackson centered around the state capitol building, even though Black Mississippians make up more than 80% of Jackson’s population. [link removed]

On the same day, the national, state of Mississippi and city of Jackson branches of the NAACP filed a lawsuit against H.B. 1020 as well as another bill that expands state-run policing in Jackson. The lawsuit argues that both laws discriminate against Jackson’s majority-Black residents on the basis of race in violation of the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. [link removed]

The complaint states how H.B. 1020 “strip[s] Jackson residents of the right enjoyed by all other Mississippi residents to Circuit Court judges who live in the community and are locally elected” and “singles out the predominantly Black population of Jackson for prosecution in a second-class criminal justice system in which the vast power and the immense discretion to enforce the law is placed in the hands of politically unaccountable prosecutors.”

A few days later, another lawsuit was filed against H.B. 1020, this time in state court. The plaintiffs contend that the “Mississippi Constitution does not authorize the Chief Justice of the Mississippi Supreme Court to appoint any judge to any court for any reason.”
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Voting Cases Head to SCOTUS’ Internal Discussions

Today, a lawsuit challenging a Texas voter suppression law was distributed for conference in the U.S. Supreme Court. That just means that the nine Supreme Court justices have a private meeting where they will decide whether to grant cert (accept an appeal) for various cases that have these petition requests before the Court.

Texas Residency Restriction Law (Texas State LULAC v. Elfant): Petitioners are asking the Supreme Court to reverse a decision by the 5th U.S. Circuit Court of Appeals dismissing the lawsuit. Previously, a district court found that a 2021 Texas law implementing strict residency requirements for voter registration violated the U.S. Constitution. [link removed]

Another voting case headed to conference today:

South Carolina Redistricting (South Carolina NAACP v. Alexander): South Carolina Republicans want the U.S. Supreme Court to overturn a ruling that found that the Republicans racially gerrymandered the congressional map drawn with 2020 census data. Unlike the Texas case and most petitions before the Supreme Court, the Court is required to issue a ruling in this case, but can do so without oral argument. [link removed]

Next Monday, May 1 is an order day; we could see a ruling released in the South Carolina case or an order to grant or deny cert in the Texas voter suppression law case. Additionally, an Ohio redistricting case invoking the fringe independent state legislature theory was distributed for conference in January and we are still awaiting an update. [link removed]

We’re also watching: The Court has rescheduled conference for a case over Mississippi's Jim Crow-era felony disenfranchisement law nine times. [link removed]

Slowly but Surely: Moving Towards a National Popular Vote

Minnesota’s new Democratic trifecta has advanced several pro-voting priorities this session. In March, Gov. Tim Walz (D) signed a bill to restore voting rights to 56,000 Minnesotans with past felony convictions. On Wednesday, the Minnesota Legislature sent the Democracy for the People Act to Walz, an omnibus bill that would allow 16- and 17-year-olds to pre-register to vote, establish automatic voter registration at many state agencies and more. [link removed]

In addition, the North Star State passed a government funding bill which includes even more election reforms. The bill would ban mass voter challenges, extend early voting availability, expand employee rights to take time off work to vote and more. [link removed]

There’s an interesting provision buried within the 182-page bill: Minnesota will join the National Popular Vote Interstate Compact, an alternative to the Electoral College that would ensure that the winner of the national popular vote becomes president. Remember, twice in the past 25 years, a U.S. president has lost the popular vote, but won the presidency.

Currently, 15 states and Washington D.C., accounting for 195 electoral votes, have signed onto the interstate agreement; it will take effect once states with 75 more electoral votes join. Will we make it there before 2024? Probably not, but Democratic-led states are inching our country closer to a national popular vote.

This month, a resolution passed the Nevada Assembly (currently pending in the Nevada Senate), that would add the Silver State to the compact. The resolution would go before voters for approval but is not subject to veto by Nevada’s Republican governor. Michigan and Maine are the only other Democratic trifecta states with proposals to join the National Popular Vote Interstate Compact in the 2023 legislative session. (There are parallel proposals unlikely to move forward through the legislatures in Alaska, Arizona, Florida, Mississippi, Missouri, North Carolina, South Carolina, Texas and Wisconsin.)

Maine, Michigan, Minnesota and Nevada have a combined 35 electoral votes. Hypothetically, if all four of these Democratic-controlled states enact their proposals, the compact would require only 40 more electoral votes to take effect.

More News

Maryland Gov. Wes Moore (D) signed a law that creates a process for voters to fix technical mistakes on their mail-in ballots and requires election officials to preprocess mail-in ballots before Election Day. Previously, Maryland prohibited the processing of mail-in ballots until the Wednesday after Election Day, which became the subject of litigation in 2022. [link removed]

Over the course of last week, the Texas Senate passed at least nine bills that interfere with election administration or make it harder to vote or register to vote. All of the bills now head to the Republican-controlled Texas House. Get the breakdown here. [link removed]

Out with the experts, in with the conspiracy theorists. Last week, the elections director for Tarrant County, Texas — someone who is praised by statewide leaders as one of the best in the field — resigned, citing differences with another county official who touts right-wing election talking points. Meanwhile, in the Grand Canyon State, the supervisors of Cochise County, Arizona, who refused to certify election results in 2022, hired a new elections director who repeatedly spread false claims about election fraud. The county's previous election director resigned due to harassment. [link removed]
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On Wednesday, Montana Republicans censured state Rep. Zooey Zephyr (D), the state’s first openly transgender lawmaker, after her comments during a debate on legislation to ban gender-affirming care for minors. The decision to silence a lawmaker standing up for her constituents is eerily reminiscent of recent expulsions in the Tennessee Legislature; Zephyr called the action a "disturbing affront to democracy." [link removed]

OPINION: Crystal Mason’s Prosecutors Want an Election Crime Task Force

By Jessica Pishko, a Democracy Docket contributor who writes about the criminalization of elections and how sheriffs in particular have become a growing threat to democracy. Read more ➡️ [link removed]

What We’re Doing

This week, the Brennan Center for Justice released its latest survey of local election officials. Here’s just one disheartening statistic: 30% of those surveyed indicated that they have personally been harassed or threatened because of their job. [link removed]

We’re reading The Guardian on the constant stream of intimidating messages sent to officials in Maricopa County, Arizona, NBC News on an entire county's election staff quitting in Virginia and the Texas Tribune on the resignation of Tarrant County’s lead administrator.
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To help recruit and retain pro-democracy election administration officials, we’re supporting Clerk Work, an initiative from Run for Something.
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A new episode of Defending Democracy drops every Friday at 6 a.m. EST. Listen to today’s new episode, “Republicans Don’t Want Students to Vote,” wherever you get your podcasts. [link removed]


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