On The Docket 06/02/2023

Welcome to June! For those (like us) who follow the U.S. Supreme Court closely, June is a nerve wracking and busy month. The Supreme Court must issue all its rulings before the Court recesses for the summer, usually by the end of June or into the first few days of July. That means that we will get a wave of consequential opinions dropped within the next few weeks.

This includes two major election cases — the Alabama redistricting case, Allen v. Milligan, which may upend the longstanding application of Section 2 of the Voting Rights Act (VRA) and the North Carolina redistricting case, Moore v. Harper, which gives serious attention to a frivolous, far-right constitutional theory.
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For immediate SCOTUS updates throughout the month, make sure to follow us on Twitter. [link removed]

Texas Republicans Want To Take Houston’s Power Away

On Monday, Texas’ regular legislative session came to an end. During its five-month session, the Legislature passed seven anti-voting bills to Gov. Greg Abbott’s (R) desk and five very narrow, pro-voting measures. [link removed]

Republicans passed bills facilitating the state’s exit from the Electronic Registration Information Center (ERIC), raising the penalty for illegal voting to a felony, requiring a “wet signature” (meaning pen on paper) on mail-in ballot envelopes and changing how Texas’ electoral votes are awarded. [link removed]
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A few narrow, but positive, measures made it through both chambers, including bills that ease voting for individuals with disabilities, add uniform early voting hours in all counties and allow voters to correct some mistakes on mail-in ballots through an online portal. [link removed]

The most egregious legislation specifically targets Houston’s Harris County, the state’s most populous county and a Democratic stronghold. The efforts to change how Harris County runs its elections stem from the 2022 midterm elections, when some polling locations in the county experienced voting problems on Election Day. In response, Republican lawmakers began introducing bills, purportedly in response to Harris County’s issues. The two bills that passed this session and await Abbott’s signature include:

Senate Bill 1750, which would abolish the position of election administrator in the county, reverting election duties to the elected county clerk and county tax assessor — positions held by Republicans as recently as 2018 and 2016, respectively. This provision appears purely punitive. [link removed]

Senate Bill 1933, which would allow the secretary of state to essentially take over all aspects of elections in Harris County (and only Harris County) if someone such as a candidate or election official lodges a complaint against the county. If the secretary has “good cause” to believe a problem exists, they can exercise unlimited oversight of election procedures. [link removed]

Across the country, red states have targeted their own Democratic strongholds, often major cities. Tennessee targeted Nashville’s Davidson County, Florida meddled with the prosecutorial discretion of elected Democratic district attorneys and Mississippi created an unelected court system in Jackson, the state capital.

It's clear that attacks on who can participate in our elections isn’t enough for the GOP. It wants to change who gets to run them, too. Read the full analysis by Mac Brower, one of Democracy Docket’s staff writers, here. [link removed]

North Carolina Lawmakers Introduce Restrictive Election Bill Influenced by GOP Operatives

Yesterday, North Carolina Republicans introduced an election bill reportedly influenced by an organization led by Cleta Mitchell, who ran former President Donald Trump’s legal effort to overturn the 2020 election results. The bill would shorten the deadline to return mail-in ballots, ban private funding for election administration and more. Read the full breakdown.
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The Republican-controlled North Carolina Legislature has a narrow veto-proof majority after formerly Democratic state Rep. Tricia Cotham (R) switched parties in April. Now, the North Carolina GOP has the votes to override prospective vetoes from Gov. Roy Cooper (D).

“And here they go with advice from election deniers and fraud perpetrators. Don’t be fooled. This isn’t about protecting elections. It’s about rigging them to help Republicans,” Cooper tweeted this morning.

More State Legislatures Adjourn for the Year

We’re less than half way through the calendar year, but over 25 states have adjourned their regular legislative sessions. Here are some important legislation updates from the past week:

Arizona Gov. Katie Hobbs (D) vetoed a bill that would have forced the state to leave ERIC, an organization that helps states maintain accurate voter rolls. A wave of GOP-led states have withdrawn from the group this year due to election conspiracies. [link removed]

The Connecticut Legislature passed two pro-voting bills. One would establish 14 days of in-person early voting and heads to Gov. Ned Lamont (D) for his signature. The other would allow no-excuse mail-in voting and will go before voters in November 2024. [link removed]

Meanwhile, the Connecticut Voting Rights Act advanced past the first chamber of the Legislature. With the federal VRA weakened, a state VRA empowers voters to challenge discriminatory electoral practices. Five states — California, New York, Oregon, Virginia and Washington — have state-level VRAs. [link removed]

Nevada Gov. Joe Lombardo (R) signed a law designed to protect election workers from intimidation, election interference and the dissemination of their personal information. The law comes as harassment and threats against election workers are on the rise. [link removed]

Within the next week, legislatures in Alabama, Connecticut, Louisiana, Nevada and New York are set to adjourn for the year.

Baking the Fringe ISL Theory Into Legislation

With questionable legality but a clear attempt to accumulate power within legislative bodies, Arkansas, Indiana and soon Louisiana have enacted bills that require all election-related rulemaking to be funneled through the Legislature. The bills implicitly lean into a fringe and unfounded legal theory known as the independent state legislature (ISL) theory. [link removed]

The ISL theory reads the use of the term “legislature” in the U.S. Constitution’s Elections Clause to mean that a state legislature — and legislature alone — can set federal election rules. This interpretation is counter to history and legal precedent, and if validated in a case currently before the U.S. Supreme Court, would give state lawmakers remarkable power to set federal election rules without oversight from state courts or constraints imposed by state constitutions. [link removed]

Arkansas enacted a law in March that requires all state and county election officials to submit federal guidance to the secretary of state for legislative review. Indiana enacted a law in early April with bipartisan support that limits the authority of local officials to “adopt an ordinance, a resolution, or an order concerning an election” except if expressly granted by statute.
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Louisiana House Bill 260, which is expected to pass the state Senate soon, would prohibit election officials from implementing federal election directives or using federal election funds without “explicit state or federal legal requirement to do so or prior approval” from the Legislature. “Such a measure might have hampered efforts to hold elections during the pandemic, plus it doesn’t necessarily account for the fact that Louisiana must follow federal election law,” wrote Greg LaRose, a contributor for the local news organization, Louisiana Illuminator. [link removed]
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Proposed bills in Oklahoma and Missouri that failed to advance before these states’ legislative sessions adjourned would have similarly prevented election officials from implementing federal guidance without approval from the state legislatures. The Oklahoma Legislature also adjourned last Friday without advancing a bill that would have bifurcated the election administration of state and federal elections if Oklahoma officials disliked federal election law.

These types of bills would make state legislatures the supreme authority in a state, the same unaccountable power that undergirds the ISL theory. In addition to federal election law superseding state law, governors, secretaries of state and local administrators — who often have the most expertise about running elections — make discretionary orders in unforeseen circumstances, such as natural disasters, and can be creative in expanding voting access.

Welcome to June, the Month of SCOTUS Opinions


The nation’s highest court follows a unique schedule: The Court’s term begins on the first Monday in October, with oral arguments heard from October through April of the following year. All rulings are issued before the Court recesses for the summer, usually around late June.

That means that by the end of this month or into the first few days of July, we can expect the release of remaining U.S. Supreme Court opinions. This includes consequential rulings from the Supreme Court in Allen v. Milligan and Moore v. Harper.

Allen centers on whether the state of Alabama violated Section 2 of the VRA when it enacted a congressional map that created one rather than two majority-Black districts. No matter where the nine justices land on the specifics, the ruling will likely alter the future application of the VRA. Last February, when the Court first stepped into this case, Chief Justice John Roberts agreed that a lower court had “properly applied existing law in an extensive opinion with no apparent errors for our correction.” [link removed]

In Moore, the Court is weighing the right-wing ISL theory. In the words of U.S. Solicitor General Elizabeth Prelogar during oral argument in December, this theory is an “atextual, ahistorical and destabilizing interpretation of the Elections Clause.” However, messy procedural issues in the state-level case underlying Moore may push the justices to not release a decision in the case. [link removed]

More News

On Wednesday, the League of Women Voters of Mississippi, Disability Rights Mississippi and individual voters sued over a new Mississippi law that limits who can help voters with disabilities return their mail-in ballots. The groups argue that the law violates Section 208 of the VRA, which guarantees that "any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice." [link removed]

The U.S. Department of Justice and other voting rights groups asked a federal court to block certain parts of Georgia's 2021 omnibus voter suppression law, including provisions that prohibit passing food and water to voters in line, limit drop boxes, restrict mail-in voting and more. This new request is part of a consolidated case consisting of six lawsuits challenging the law. Get a full breakdown of the law here. [link removed] [link removed]

In other local redistricting news, a federal judge in Florida approved a redistricting settlement reached a few weeks ago between civil rights groups and the city of Jacksonville, Florida. The settlement creates fairer districts for Jacksonville’s city council. Meanwhile, the city of Miami appealed a recent decision, which blocked its city council districts, to the 11th U.S. Circuit Court of Appeals. [link removed]

An Arizona court sanctioned failed secretary of state candidate Mark Finchem (R) for his baseless lawsuit contesting his loss to now-Secretary of State Adrian Fontes (D). The court ordered Finchem to pay over $47,000 in fees related to the litigation. [link removed]

Arizona election deniers have failed over and over in court, but they still won’t give up. On Wednesday, gubernatorial candidate Kari Lake (R) appealed her loss in her second trial contesting the results of the 2022 Arizona governor’s race. [link removed]

FROM OUR DESK: These States Made Voting Easier This Year

By Caroline Sullivan, Democracy Docket staff writer. Read more ➡️ [link removed]

What We’re Doing

We’re reading ProPublica’s interactive guide on the rights that the U.S. Supreme Court has established — and which justices have hinted at a desire to revoke those rights. [link removed]

Happy Pride Month 2023! As we celebrate and amplify the voices of LGBTQ+ community, we’re pushing back against the targeting of transgender people, especially transgender youth, across the country. Tell Congress to fight against anti-LGBTQ state laws and support political impact funds in states where the attacks are most intense.
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A new episode of Defending Democracy drops every Friday at 6 a.m. EDT. In today’s new episode, we discuss Ohio Republicans’ latest anti-democratic act: a proposal to make it more difficult for voters to amend the state constitution. To make matters worse — they’re pushing an allegedly illegal August election to ram through the proposal before a pro-choice abortion measure. Listen wherever you get your podcasts. [link removed]


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