On The Docket 05/26/2023

“As long as the court thought it was a good time to breathe life into the major questions doctrine or the independent state legislature theory, we have considered the questions of that theory seriously, despite its manifest unseriousness,” Dahlia Lithwick wrote in a recent piece about the failures of U.S. Supreme Court coverage. “But if the Supreme Court is no longer functioning as a real ‘court,’ why are we mostly still treating its output as if it were simply the ‘law’?" [link removed]

At Democracy Docket, we talk about the issues before these courts but try to dig deeper — highlighting the human impact of cases, calling out illegitimate legal moves and more.

We work hard to keep you informed on voting, election and redistricting cases across the country. In fact, this week, we hit an important milestone as we now have more than 600 cases in our litigation database. Find them all here. [link removed]

Ron DeSantis Signs Restrictive Law, Gets Sued and Runs for President

In rapid succession on Wednesday, Florida Gov. Ron DeSantis (R) signed a major election law, got sued and announced his run for president. First, DeSantis quietly approved Senate Bill 7050, a law passed by the Florida Legislature in April that targets third-party voter registration, restricts mail-in voting and amends the state’s repeal-to-run law to permit DeSantis to run for president without having to resign from his governorship. [link removed]

Within the hour, two lawsuits — one by the Florida Conference of the NAACP and other groups and one by the League of Women Voters of Florida — were filed challenging the law’s restrictions on third-party voter registration organizations and more. On Thursday, a third lawsuit was filed against the new law, this time on behalf of two Latino civic engagement groups and several Florida voters.
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Then, DeSantis launched his long-awaited presidential bid — not with a bang, but with a whimper. DeSantis joined Elon Musk on a delayed, glitchy Twitter Spaces filled with silence and static. Despite the anticlimactic and embarrassing launch, DeSantis remains a direct threat to our democracy. From dismantling a Black-opportunity congressional district for partisan gain to enacting voter suppression laws and stoking misinformation, DeSantis has shown time and again who he really is. [link removed]

DeSantis wasn’t alone in sharing his 2024 plans this week: U.S. Sen. Tim Scott (R-S.C.) officially announced his run for president. While Scott may differ from former President Donald Trump and DeSantis in his messaging and tone, he has repeatedly advocated for restrictive voting laws, refuses to condemn Trump for Jan. 6 and more. Here’s Scott’s record on voting. [link removed]

Judge Issues Final Blow to Kari Lake’s Election Contest

After a three-day trial last week, an Arizona judge rejected Kari Lake's sole remaining claim that Maricopa County failed to properly signature match mail-in ballots, ruling that no "clear and convincing evidence" was presented. This is just the latest in a series of blows to the Republican election denier’s six-month election contest that challenged her loss to Gov. Katie Hobbs (D) in the 2022 Arizona gubernatorial race. [link removed]

As a reminder, Lake lost her election for Arizona governor by over 17,000 votes. She then consistently failed at three separate court levels in the months since Election Day. In December 2022, the trial court dismissed eight of Lake’s 10 claims and then, after trial, dismissed the remaining claims, thereby ending the contest. The Arizona Court of Appeals affirmed the trial court’s dismissal and the Arizona Supreme Court denied review of six of the seven claims in Lake’s appeal.

The state Supreme Court sent one claim back to the trial court for further review, which was the subject of last week’s trial. To prevail at her second trial, Lake had to prove that signature verification did not occur in Maricopa County, home to Phoenix, during the 2022 election.

At her second trial, Lake’s arguments were as deeply flawed and unserious as during her first trial. Her star witnesses — or as Lake calls them, “whistleblowers” — included members of a fringe political action group partially funded by conspiracy theorist Mike Lindell and a person who conducted signature verification during the 2022 midterm elections, the very process Lake had to prove did not occur.

Lake's entire election contest has now been dismissed — again. She has nonetheless said she will keep fighting her court case. Meanwhile, Maricopa County, Hobbs and Secretary of State Adrian Fontes (D) are seeking sanctions, arguing that "Lake and her counsel engaged in a program of intentional and repeated fallacious misstatements of fact to mislead" the court. She has already been sanctioned during this contest as well as one other time in a separate lawsuit.

Arizona’s Election Deniers Versus Statewide Democrats

As exhibited by Lake, election denialism is alive and well in Arizona. But, she’s not alone. The bills passed this session by the Arizona Legislature show an intense commitment to election conspiracy theories and tightening voting access. Hobbs’ veto pen is the only thing that stopped them from becoming law.

Just over the past week, Hobbs vetoed four more election-related bills that dealt with partisan election observers, recusals of election officials, voting machines and more. Republicans lack a supermajority in the Legislature to override her vetoes. [link removed]

In fact, a handful of Democratic statewide officials — Hobbs, alongside Fontes and Attorney General Kris Mayes (D) — are working hard to quell the anti-democratic forces in the Grand Canyon State.

Last week, Mayes released an opinion making it exceedingly clear that Arizona law does not permit counties to use discretion to hand count ballots (one Arizona county tried to hand count in 2022, sparking litigation, another county is considering it now), writing: “Simply put, a full hand count is only expected to occur if there are discrepancies with the electronic tabulation—not as a matter of course.” In doing so, Mayes reversed an opinion written by her Republican predecessor. [link removed]

Just a few days after the opinion, Arizona Senate Majority Leader Sonny Borrelli (R) sent a letter to all 15 Arizona counties stating that electronic voting machines may not be used unless they comply with the standards in Senate Concurrent Resolution 1037, a recently-passed resolution that declares the Legislature’s opinion. This bold statement from Borrelli is unenforceable; it basically means nothing.

As Fontes wrote in response: “Senate Concurrent Resolution 1037, which expresses a desire to restrict the use of certain electronic voting machines, is non-binding and does not have the force of law."

In fact, earlier this spring, Hobbs vetoed a bill that would have effectively banned electronic ballot tabulators in a way that mirrors S.C.R. 1037. “The election equipment required by the bill, as well as the problem it purports to solve, does not exist,” she wrote in her veto message.

Nonetheless, Borrelli’s letter invokes the radical independent state legislature theory to support the unfounded claim that the Legislature has “plenary authority” to enforce a rhetorical declaration that is not law.

OPINION: An Arizona Sheriff, His Helicopter and a U.S. Senate Run

By Jessica Pishko, a Democracy Docket contributor who writes about how law enforcement intersects with political power. Read more ➡️ [link removed]

Racial Gerrymandering: A Decision in Florida, A New Lawsuit in Arkansas

Last week, the U.S. Supreme Court took up a racial gerrymandering case out of South Carolina and this week, we saw updates in two cases over racial gerrymandering in other contexts. [link removed]

First, to review: Racial gerrymandering occurs when race is used as the predominant factor in placing voters in or out of districts unless the map drawers have a compelling reason to do so. For example, using race to comply with the Voting Rights Act has historically been deemed a compelling reason, thus not a racial gerrymander. [link removed]

Racial gerrymandering claims are rooted in the Equal Protection Clause of the 14th Amendment, which mandates that a state must treat individuals the same under its laws.

This week, in a win for voters, a federal court blocked Miami, Florida's city commission map from being used in the November 2023 elections. The judge found that the districts were racially gerrymandered and ordered the parties to “discuss a potential timeline to create and implement a constitutionally conforming remedial map.” [link removed]

Then, a group of Arkansas voters filed a new lawsuit arguing that Arkansas' congressional map is racially gerrymandered and intentionally discriminates against Black voters in violation of the 14th and 15th Amendments. The map splits Little Rock’s Pulaski County into three separate districts. [link removed]

More Moves To Discredit ERIC

Since the United States doesn’t have a database of registered voters or a national ID system, states must rely on other data sources to identify voters that have moved, died or are otherwise ineligible. In 2012, the Electronic Registration Information Center (ERIC), an information-sharing database, emerged as a solution to that problem. [link removed]

During its first decade of operation, ERIC was an uncontroversial, nonprofit organization that helped states maintain accurate voter rolls. But, within the past few months of 2023, seven Republican-led states have withdrawn from the opt-in system, invoking election conspiracies and threatening the future of a system that relies on data sharing.

This week, even more states took action to discredit ERIC. Two states that aren’t even members of the organization passed legislation to signal their commitment to the latest GOP messaging tool:

Oklahoma Gov. Kevin Stitt (R) signed a law making it substantially harder for the state to ever join ERIC. Under the new law, Oklahoma is unable to join any multistate organizations that, among other not-so-subtle descriptions of ERIC, require outreach to eligible but unregistered voters. They are not hiding it: Republicans don’t want more people to participate in our democracy. [link removed]

Meanwhile, the North Carolina Senate passed its 2023 budget, which includes a provision that would similarly prohibit the state from joining ERIC. [link removed]

Additionally, Texas — the most populous state in ERIC right now — passed a bill that would pave the way for the Lone Star State to leave ERIC. The bill goes back to the Texas Senate for concurrence or conference before it heads to Gov. Greg Abbott (R).

Texas Legislature Targets Houston’s Harris County

This week, the Texas House advanced two anti-democratic bills targeting Houston’s Harris County:

Senate Bill 1750, which would eliminate the county election administrator position in Harris County. This bill now goes to Abbott for signing. [link removed]

Senate Bill 1933, which would empower the secretary of state to take over election administration in counties with over four million residents. Only Harris County fits that criterion. The bill returns to the Texas Senate for concurrence or conference on amendments. [link removed]

More News

Remember the “voter fraud vigilantes” who staked out drop boxes in Arizona ahead of the 2022 midterm elections? On Sunday, the League of Women Voters of Arizona announced a settlement agreement in a lawsuit challenging those drop box monitoring practices. [link removed]

On Tuesday, a group of Ohio voters filed a second lawsuit over a resolution that would increase the threshold to pass constitutional amendments from 50% to 60% of the vote. This time, the lawsuit challenges the language for the proposed amendment that would go before voters, alleging that it is inaccurate and misleading. [link removed]

Some good news: Last week, Washington Gov. Jay Inslee (D) signed a law improving the state’s automatic voter registration. The enactment comes on the heels of another measure that will make it easier for more Washingtonians to register to vote online. [link removed]

On Wednesday, Minnesota Gov. Tim Walz (D) signed a package of pro-voting reforms in the state's budget. Minnesota now prohibits mass voter challenges, joins the National Popular Vote Interstate Compact, expands the early in-person voting period, improves employees' rights to take off work to vote early and more. [link removed]

Last week, U.S. Sen. Ben Cardin (D-Md.) reintroduced a bill to restore voting rights for federal elections to all individuals released from incarceration. The bill aims to standardize a patchwork of state laws about rights restoration post felony conviction. [link removed]

OPINION: Youth Voter Suppression Is a Policy Problem. We Need Policy Solutions.

By Charlotte Hill, a Democracy Docket contributor who writes about how structural reforms impact American democracy. Read more ➡️ [link removed]

What We’re Doing

“It’s no secret that this is one of the gun lobby’s strategies to implement their ‘guns everywhere’ agenda — keeping young people and voters across the state who support gun safety unaware, unengaged and disenfranchised,” writes college student Kyle Lumsden in an op-ed for Democracy Docket that ties the failure to stop gun violence to an unrepresentative democracy. [link removed]

As we pass one year since the horrific shooting at Robb Elementary School in Uvalde, Texas, lawmakers continue to ignore the American public. Take action with Everytown for Gun Safety to demand change in your community. [link removed]

There’s no new episode of our podcast, Defending Democracy, this week. It’s the perfect time to catch up on our previous episodes. Listen here. [link removed]


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