On The Docket 05/12/2023

It’s been a busy week in court for the Washington Voting Rights Act, city council redistricting, New Hampshire’s legislative maps, Mississippi’s power grab over Jackson and Kari Lake’s election contest in Arizona. Additionally, the U.S. Supreme Court is musing over whether they should even issue a decision in Moore v. Harper. Read on for the full rundown.

On Wednesday evening during a disastrous town hall with CNN, former President Donald Trump repeated debunked election lies about a “rigged election” — an unsurprising, but nonetheless concerning, preview of what’s to come throughout Trump’s 2024 presidential run.

Ohio Resolution Restricting Ballot Measures Will Head to Voters

On Wednesday, the Ohio Legislature approved a proposed amendment to the Ohio Constitution that would increase the threshold to pass constitutional amendments from 50% to 60% of the vote. If approved by Ohio voters, it would make it more difficult to amend the state constitution.
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It is unclear when voters will vote on the proposal. Ohio Republicans intend to place the proposal before voters during a special election on Aug. 8, 2023. However, their own omnibus voter suppression law enacted in January specifically banned August elections for most purposes, so some speculate that it may be illegal to hold a vote on that date. Just a few months ago, Ohio Secretary of State Frank LaRose (R), who supports the latest push, said that August elections are "wasteful" and "bad news for the civic health" of Ohio.

When first proposing the resolution last year, Republican sponsors directly linked the proposal to ongoing efforts to protect abortion access and limit partisan gerrymandering. A recent poll showed that 59% of Ohioans would support a measure enshrining the right to abortion in the state constitution. “How shameful that Republican state lawmakers are so easily able to ignore the constituents they are sworn to represent,” Democracy Docket contributor Katy Shanahan wrote in her latest about the broad opposition to this move. [link removed]

It’s not just Ohio. Missouri Republicans are on the verge of passing a resolution to raise their constitutional amendment threshold from 50% to 57% of the vote. These efforts emerge against an important backdrop: Missouri voters legalized marijuana during the 2022 midterms via constitutional amendment with 53% approval. Like Ohio, the state is also a prime target for a ballot measure to protect abortion access.

The text of the Missouri resolution is even more insidious. The version of the measure that will likely be before voters reads:

“Shall the Missouri Constitution be amended to:
Allow only U.S. citizens to vote on ballot measures;
Restrict the legislature's power to propose constitutional amendments and undo laws approved by voters;
Ensure disabled individuals have access to ballot measures; and
Require that constitutional amendments pass by fifty-seven percent majority statewide?"

The wording and ordering of the measure may make some voters believe that a vote against the measure would authorize noncitizens voting in their elections, a potential move to trick voters to approve it. However, noncitizens are not allowed to vote in any federal elections and the state of Missouri only permits “all citizens” to vote.

The only good news this week comes from the unlikeliest of places: Florida. The Sunshine State already has one of the highest requirements for citizen-led constitutional amendments, requiring 60% of vote since 2006. A resolution that passed the Florida House would have raised that threshold to an unprecedented two-thirds or 66.67% of the vote. Fortunately, the Florida Legislature adjourned its 2023 legislative session last Friday without passing that resolution. [link removed]

A Head-On Challenge to Washington State’s Voting Rights Act

Yesterday, the Washington Supreme Court was confronted with a novel question: Does its state-level Voting Rights Act (VRA) violate the state and federal constitution?

Back in May 2022, voting rights advocates rejoiced after Latino voters reached a historic settlement agreement with Franklin County, Washington. The settlement would pave the way for long overdue Latino representation in the county’s local government, emerging from the second ever lawsuit brought under the Washington Voting Rights Act (WVRA): a 2018 state law modeled after certain aspects of the federal VRA of 1965. [link removed]

Now, nearly one year after the Franklin County settlement, the Washington Supreme Court heard a direct constitutional challenge to the WVRA stemming from the very same lawsuit. Curiously, neither of the original parties to the lawsuit is behind this head-on challenge to the WVRA; rather, it comes from an outside Republican official who became involved in the lawsuit nearly six months after it was filed.

In our latest, Democracy Docket’s Rachel Selzer explores how a previously resolved case morphed into the vehicle to strike down the WVRA in its entirety. Read here. [link removed]

In addition to Washington, California, New York, Oregon and Virginia have adopted state-level VRAs. During this legislative session, Connecticut, Maryland and New Jersey considered passing their own. “[State-level VRAs] are one of our best hopes, short of federal legislation, to fight back against the U.S. Supreme Court’s hostility to federal voting rights’ claims,” explained Ruth Greenwood, the director of Harvard Law School’s Election Law Clinic. Learn more about state VRAs here. [link removed]

Local Redistricting Matters, Too

The chatter around redistricting too often focuses on the partisan breakdown of the U.S. House or on hyper-gerrymandered state legislatures across the county. However, almost every jurisdiction — no matter how big or small, from school boards to water districts — goes through a line drawing process after the decennial census.

This week, two big cities saw major updates in redistricting lawsuits challenging their local city councils:

On Tuesday, a federal judge temporarily blocked Boston’s city council map and ordered new districts to be drawn. Voters and local groups alleged in a lawsuit that the council "deliberately diluted" the voting strength of white and Black voters in two districts, violating federal law. [link removed]

On Wednesday, civil rights groups and the city of Jacksonville, Florida reached a settlement on districts for the Jacksonville City Council and Duval County School Board. Civil rights groups alleged in court that the city's original maps were racial gerrymanders. [link removed]

After the North Carolina Supreme Court Overturned Its Decision, Can SCOTUS Still Decide Moore v. Harper?

Yesterday, the parties in Moore v. Harper submitted additional briefing at the invitation of the U.S. Supreme Court. The central question of Moore will determine the future of a bizarre, ahistorical reading of the U.S. Constitution’s Elections Clause, however, the case emerged from a redistricting lawsuit in North Carolina. [link removed]

The additional briefing comes after the North Carolina Supreme Court overturned its prior decision in the case underlying Moore last Friday. This means that the decision that SCOTUS is supposed to “affirm” or “reverse” no longer exists. Nevertheless, the question of whether the nation’s highest court will rule on the merits of the radical independent state legislature (ISL) theory in Moore remains unanswered.

To still decide such a case would fly in the face of the most basic legal principles. Consequently, the U.S. Supreme Court asked the parties to answer the following question: “What is the effect on this Court’s jurisdiction of the April 28, 2023 order of the North Carolina Supreme Court?” Jurisdiction means the legal authority to hear and decide a case.

Here’s what the different parties said in their additional briefings. Two of the three pro-voting groups, the state of North Carolina and the U.S. Department of Justice urged the Court to dismiss the case:
The North Carolina League of Conservation Voters: SCOTUS has never had jurisdiction, the case is moot
North Carolina voters: SCOTUS has never had jurisdiction, the case is moot
Common Cause: SCOTUS does have jurisdiction, should rule on the merits of the ISL theory

State of North Carolina and North Carolina Board of Elections: SCOTUS has no jurisdiction, should dismiss the case

The United States: SCOTUS has no jurisdiction, should dismiss the case

Republican lawmakers: SCOTUS does have jurisdiction, should rule to endorse the ISL theory

More News

Today, a judge will decide whether or not to hold a trial on the one outstanding claim in Kari Lake’s lawsuit contesting her loss in the 2022 Arizona governor’s race. The Arizona Supreme Court previously dismissed six of seven of Lake's claims and sent one claim regarding signature matching back to the trial court. [link removed]

Within the past week, two Democratic-controlled, East Coast states took steps to make voting easier. The Connecticut House and Delaware Senate both approved constitutional amendments to allow no-excuse mail-in voting. If these resolutions pass the other legislative chamber and then are approved by voters, Delaware and Connecticut will join 27 states and Washington, D.C. that currently offer no-excuse mail-in voting. Additionally, the Connecticut House passed a bill that would add 14 days of in-person early voting. (Connecticut is one of only four states without early voting.)
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Last Friday, Minnesota Gov. Tim Walz (D) signed the “Democracy for the People Act” into law. The omnibus, pro-voting bill will allow 16- and 17-year-olds to pre-register to vote, establish automatic voter registration, create an absentee voter list, design a public campaign finance system and more. Read a full breakdown here. [link removed]

Senate Democrats reintroduced the Protecting Election Administration from Interference Act, which would expand the pre-existing criminal penalties for interfering with the voting process to explicitly cover the counting and canvassing of ballots and the certification of election results. It includes other protections for election records as well. [link removed]

OPINION: The Real Reason Why Texas Republicans Are Criminalizing the Vote

By Delilah Agho-Otoghile, Democracy Docket contributor and executive director of the Texas Future Project. Read more ➡️ [link removed]

What We’re Doing

Election season is back and next Tuesday, May 16, is a busy day across the country. From statewide primaries in Kentucky and Pennsylvania to city runoffs in Colorado Springs and Jacksonville, check whether there’s a race in your area. [link removed]

We’re reading Votebeat and Spotlight PA’s in-depth examination of more than 400 county commissioner and county council candidates in the Keystone State, mapping where election deniers are on the ballot to run local elections. [link removed]

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A new episode of Defending Democracy drops every Friday at 6 a.m. EST. In today’s new episode, Marc Elias sits down with Andrea Hailey of Vote.org to discuss voter registration, outdated voter tech in America and legislation targeting young voters. Listen wherever you get your podcasts. [link removed]


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