On The Docket 06/09/2023

The future of the Voting Rights Act (VRA) was on the docket in Allen v. Milligan, a redistricting case out of Alabama. Despite the case’s straightforward nature and direct application of past case law, the VRA appeared to be at risk before the U.S. Supreme Court.

But yesterday, the Supreme Court released a 5-4 opinion in the case, ruling in favor of the pro-voting groups. A landmark federal law, fairer districts for Black Alabamians and voting rights efforts across the country emerged unscathed. Today, we break down that opinion and outline its impact on fair maps across the country.

Plus, we explore the 2024 GOP presidential candidates, new voter protections in Connecticut and congressional Republicans' latest and problematic fixation on Washington, D.C.

The Reverberating Impact of the Supreme Court’s Ruling in Allen v. Milligan

Almost exactly 10 years ago, Chief Justice John Roberts wrote a majority opinion gutting Sections 4 and 5 of the landmark VRA. “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2,” he wrote at the time.

Despite that, a case directly challenging Section 2 wound up before the U.S. Supreme Court this term. But yesterday, June 8, 2023, Roberts made good on his promise. In a 5-4 opinion, the Supreme Court affirmed a lower court’s decision that Alabama’s congressional map diluted the voting strength of Black voters, thereby blocking the map. [link removed]

Remember, the case Allen v. Milligan centered 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. In January 2022, a three-judge panel found that Alabama’s congressional map likely violated Section 2. [link removed]

The majority opinion is written by Roberts and joined by Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson and joined in part by Justice Brett Kavanaugh. The Court resoundingly endorsed the Gingles test, a criteria to determine racial vote dilution in redistricting maps, rejected Alabama’s attempt to rewrite the law and explicitly recognized that Section 2 of the VRA applies to redistricting and is constitutional. Get the full opinion breakdown here.
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This landmark decision will have a reverberating and largely positive impact on active litigation involving Section 2 claims across 10 different states. According to Democracy Docket’s database of active redistricting cases, 31 cases allege Section 2 claims and are currently pending in federal court.

The vast majority of ongoing Section 2 cases mount challenges to maps in southern states which share invidious histories of racially discriminatory maps and were previously subjected to preclearance requirements under the now-defunct Section 5 of the VRA.

Most directly, litigation over Louisiana’s congressional map — which was paused pending the decision in Allen — will resume, creating an opportunity for fairer representation for the state’s Black voters. Yesterday’s decision will also likely impact Arkansas, Georgia, Kansas, Michigan, Mississippi, North Dakota, Texas and Washington. Get a comprehensive review of Section 2 cases moving forward here. [link removed]

Allen is already impacting other cases: Yesterday afternoon, a federal judge asked parties in a lawsuit challenging Georgia's congressional and legislative maps to submit briefing on how the Supreme Court's decision affects the Georgia case.

Mike Pence Joins 2024 Field Full of Anti-Democracy Candidates

Former Vice President Mike Pence (R) officially announced his run for president. You might think that a person whose life was endangered by former President Donald Trump’s false election lies would think twice about continuing to indulge them. But when it comes to Mike Pence, you’d be mistaken. Rather than renounce the conspiratorial thinking and falsehoods that led to Jan. 6, Pence has spent the last two years affirming Republican fears about voter fraud. Read more ➡️ [link removed]

A few other Republicans threw their hats into the presidential ring this week. When former elected officials with extensive records on voting rights (more often, voter suppression) jump into the Republican primary, Democracy Docket brings you all the information you need to know. Beyond Trump's obvious anti-democratic background, learn about these candidate’s records on voting rights:

Former Vice President Mike Pence [link removed]

Florida Gov. Ron DeSantis (R)
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U.S. Sen. Tim Scott (R-S.C.)
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Former South Carolina Gov. Nikki Haley (R)
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Former Arkansas Gov. Asa Hutchinson (R)
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Connecticut Close to Enacting Its Own Voting Rights Act

On the final day of Connecticut’s 2023 legislative session, the Legislature approved a budget that included one crucial piece of legislation: a state-level VRA. The bill initially advanced as a separate piece of legislation but late Monday evening, lawmakers added the language from the VRA bill into a large budget bill. The amendment aimed to ensure the VRA’s passage before adjournment. [link removed]

With the U.S. Supreme Court weakening the federal VRA over the past decade, Connecticut’s new legislation hopes to fill a crucial gap. Once signed by Connecticut Gov. Ned Lamont (D), the bill would mirror the now-defunct Section 5 of the federal VRA, requiring local jurisdictions with histories of voting discrimination to receive approval from the secretary of state or a specific state court before enacting any election laws or maps.

Additionally, the Connecticut VRA would establish a statewide election database, expand access to non-English voting materials and assistance, create legal protections against “intimidation, deception or obstruction that interfere with any elector’s right to vote” and more.

Connecticut will soon join five other states — California, New York, Oregon, Virginia and Washington — with state VRAs. This legislative session, a state VRA failed to advance in Maryland and Democrats are still considering proposals in Michigan and New Jersey.

In the Courts: New York and Washington Maps

This week, redistricting maps are back in court. New York’s congressional and legislative maps have been the point of contention since the redraw with 2020 census data. The state’s 26 congressional districts also have a big impact on which party controls the U.S. House.

In New York, one lawsuit — of several — focused on procedural issues. The New York State Independent Redistricting Commission (IRC) did not submit a second set of congressional and legislative maps to the New York Legislature after its first set of maps were rejected. The Legislature then took over the map-drawing process. The New York voters behind this lawsuit argue that the IRC’s failure violated the state constitution, thus the maps should be redrawn. [link removed]

Last fall, the court dismissed the case. This week, an appellate court in New York heard oral argument from petitioners that argued that the case was improperly dismissed. We’ll keep you updated on any progress in New York’s redistricting lawsuits.

On the other side of the country, a two-week trial is ongoing in two cases challenging Washington state’s legislative map drawn with 2020 census data. One lawsuit argues that the map is a racial gerrymander in violation of the 14th Amendment and the other lawsuit argues that the map “cracks,” or splits, Latino voters across several districts to dilute their voting strength in violation of Section 2 of the VRA. The Section 2 lawsuit might be implicated by the U.S. Supreme Court’s recent decision in Allen.
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“Desperately Seeking Some Justification for Their Unpopular Policies:” Congressional Republicans Take on D.C. Elections

On Wednesday, the House Committee on Administration and Oversight held a hearing on Washington, D.C.'s election practices. The hearing was an effort by a group of Republican lawmakers to blast the nation’s capital for being “the poster child on how not to run elections.” [link removed]

Democrats on the panel disagreed: They noted that Washington, D.C. has expansive, pro-voter policies. A recently-enacted city council law that permits noncitizen residents to vote in local elections was a particularly contentious policy for GOP lawmakers. While only U.S. citizens can vote in federal elections, a handful of cities and towns have proactively allowed certain noncitizens to vote in local elections, sparking right-wing backlash.

The hearing came as a way to promote a GOP draft bill known as the American Confidence in Elections Act. The bill would overhaul elections in Washington, D.C. by requiring photo ID to vote, both in-person and by mail, ending same-day voter registration and universal mail-in voting, prohibiting community ballot collection, restricting drop boxes and more.

Congress has unique authority over the nation’s capital and overturned a district law earlier this year. Consequently, the sweeping changes in the American Confidence in Elections Act would act as recommendations for other states to adopt, presenting a vision for American elections that restrict voting access and undo common sense reforms.

“Our elections are secure. The majority has taken us deeper down a rabbit hole, desperately seeking some justification for their unpopular policies that would restrict access to the ballot. Today, they have really gone off the deep end,” said Rep. Joe Morelle (D-N.Y.), according to reporting by DCist’s Martin Austermuhle. “Today’s hearing is even more cynical than past because it has the voters of Washington, D.C., who already lack full voting representation in Congress, in its crosshairs.”

Conspiracy-Driven Policy Choices Continue Into 2023

Experts agree that hand counting is less accurate, more expensive and more time consuming than electronic tabulation. Yet, misinformation and conspiracies around voting machines could create major issues and spark legal battles as a splattering of counties look to implement rogue election procedures.

Ahead of the 2022 midterm elections, several counties, predominately in Arizona and Nevada looked to hand counting. Cochise County, Arizona became a hotspot for litigation amidst these problematic changes. (And the appeal of one case is still ongoing.) [link removed]

Now, another Arizona county is creating a stir: Reporting in Votebeat Arizona revealed how supervisors in Mohave County, Arizona are exploring plans to hand-count ballots in 2024 — despite warnings from the secretary of state and election officials that hand-counting ballots would be costly, inaccurate and likely illegal. [link removed]

Meanwhile in California, state lawmakers are looking to reel in Shasta County, a red county in a blue state, which has allowed conspiracy theories to drive policy making. The California Senate is considering a bill that would require counties to have a new voting system contract and transition plan in place before canceling a pre-existing voting system contract. This legislation appears to directly respond to Shasta County’s decision to cancel a contract with Dominion Voting Systems earlier this year. [link removed]

More News

Yesterday, a federal court in Pennsylvania denied GOP requests to dismiss lawsuits challenging ballot rules in Pennsylvania. Voting groups argue that the state's failure to count undated and wrongly dated mail-in ballots violates federal law. These cases will move forward. [link removed]

Last Friday, the Nevada Republican Party filed a lawsuit challenging a 2021 Nevada law that switched the state from a caucus system to a primary system for nominating presidential candidates. [link removed]

The legislatures in Alabama, Connecticut, Louisiana, Nevada and New York are adjourning this week. We’re keeping an eye on bills that made it through and those that failed. For example, Lamont just signed into law a bill establishing 14 days of early in-person voting for general elections starting in 2024 in Connecticut. [link removed]

OPINION: The Surprising Way Texas Republicans Should Inspire Us

By Rakim Brooks, the president of Alliance for Justice and a Democracy Docket contributor who writes court issues and judicial reforms. Read more ➡️ [link removed]

What We’re Doing

We’re reading an NPR deep dive into the cascading impact of Republican states leaving the Electronic Registration Information Center (ERIC) — and how it was sparked by a single article on a right-wing news site and grown to new proportions by former Trump lawyer Cleta Mitchell. Read our exposé of Mitchell’s continuing efforts to undermine democracy. [link removed]
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As fires from Canada affect the air in large swaths of the East Coast, let’s use that as a reminder about the interconnectedness of nature and climate. Unfortunately, last week, the Supreme Court severely undermined the Clean Water Act, which aims to keep our water’s pollution free. Learn about that opinion here. [link removed]

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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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