On The Docket 06/16/2023

As legislatures adjourn for 2023, eyes are turning to 2024. This week, democracy has seen a mix of wins, losses and a couple of déjà vu moments. Last week’s U.S. Supreme Court decision in the Alabama redistricting case is giving a number of Section 2 lawsuits a chance to proceed.

In today’s newsletter, we cover the positive rippling effect of last week’s SCOTUS decision and Trump’s second indictment. Additionally, North Carolina Republicans are revisiting an unconstitutional bill in a potential power grab, while New York attempts to catch up with other blue states by expanding mail-in voting. To round out the good news, voting rights lawyer Dale Ho was finally confirmed to the federal bench and Ohio lawmakers were chastised by the state’s Supreme Court.
SCOTUS’ Decision to Uphold the Voting Rights Act Reverberates Across the Country

Just one week out from the surprising Allen v. Milligan decision, its impact is already being felt.
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The U.S. Supreme Court’s decision to strike down Alabama’s congressional map is an overwhelming win for Alabamians, specifically Black voters, whose voting power was found to be diluted under the current congressional map. With this ruling, the Supreme Court unpaused the district court’s decision that required the state’s legislators to draw a new congressional map. As a result, the parties in the case will hold a conference later today to discuss next steps.

While it is important to note that the conservative Supreme Court did not make the drastic decision to strike down Section 2 of the Voting Rights Act (VRA), and ultimately left an important tool in voting rights litigation in place, it is also good to remember the Court did not strengthen the VRA.

Listen to last week’s podcast where Abha Khanna, one of the attorneys who argued Allen v. Milligan before the Supreme Court, joined Marc and Paige to break down what the decision means for voters and how it’ll impact future redistricting cases. Listen on Apple, Spotify or wherever you get your podcasts. [link removed]

Voters in Louisiana are also more hopeful following the decision. But not everyone in Louisiana is happy with the outcome of Allen: Just hours after the decision was issued, the state of Louisiana sent a letter to the U.S. Supreme Court requesting that the Court schedule oral argument and merits briefing in its congressional redistricting case, Ardoin v. Robinson.

Due to parallel facts in Louisiana — like in the Alabama case, Black voters argued that drawing one as opposed to two majority-Black districts violated the VRA — the Court paused the Louisiana case pending a decision in Allen. The Louisiana Republicans’ latest request is an attempt to evade accountability and to keep the state’s discriminatory congressional map in place. In a bait-and-switch, Republicans are scrambling to erase the similarities they once pointed to between the Alabama and Louisiana cases. [link removed]

Democracy Docket guest author Peter Robins-Brown, the executive director of Louisiana Progress, hypothesizes that the ruling will require the creation of another majority-minority congressional district in the Pelican State. [link removed]

If that wasn’t enough, there are other congressional maps impacted by the recent decision outside of Alabama and Louisiana.

In Arkansas, Black voters have asked the Supreme Court to review a previously dismissed lawsuit challenging the state's congressional map. The voters argue that the map violates the U.S. and Arkansas Constitutions as well as Section 2 of the VRA. This is the first lawsuit with Section 2 claims to be appealed to the Supreme Court since the Court issued its landmark ruling. [link removed]

Meanwhile, a federal court in Georgia requested that the parties in a challenge to Georgia’s legislative and congressional maps submit additional briefing regarding the Allen decision. Ahead of the 2022 midterms, a judge in Georgia noted that the Peach State’s congressional and legislative maps likely violated Section 2 of the VRA. However, the judge allowed Georgians to vote under those maps, citing the Supreme Court’s action with the Alabama map, which suggested that it was too close to an election to alter the map. [link removed]

Allen’s impact on state legislative maps has been immediate. These ripples will also touch smaller jurisdictions covered by Section 2 of the VRA, from the local city councils to state Supreme Courts.

In a lawsuit alleging that Arkansas' state House map violates Section 2 of the VRA, the U.S. Department of Justice (DOJ) submitted a brief arguing that the decision in Allen "supports the conclusion that Section 2...contains an implied private right of action." According to the DOJ, this means that private plaintiffs, like those in the Arkansas case, can bring Section 2 lawsuits. [link removed]

A federal court unpaused a lawsuit challenging Alabama's state House and state Senate districts for discriminating against Black voters. The case was paused pending a decision in Allen. [link removed]

In a lawsuit alleging that Georgia's election system for public service commissioners violates Section 2 of the VRA, plaintiffs filed a notice that the Court’s decision in Allen boosts their argument that Georgia's elections are unfair. [link removed]

In a Dodge City, Kansas lawsuit challenging the at-large system used for electing members to a city commission, the plaintiffs already submitted a notice to the court arguing that last Thursday’s ruling is further proof that private litigants are entitled to bring challenges under Section 2 of the VRA. [link removed]

What Trump’s Second Indictment Means for 2024

Former President Donald Trump was indicted for the second time last Thursday with experts suggesting the former president should be worried. As Marc Elias, voting rights lawyer and Democracy Docket founder, wrote, “Even in the best case, administering free and fair elections in 2024 was going to be difficult. Election deniers are more powerful and more plentiful than they were in 2020.” [link removed]

Free and fair elections in 2024 will depend on Democrats, progressives and community organizers being ready to run big, creative programs that meet the challenges head on. And no matter what happens to Trump, democracy will continue to face threats from the empowered extreme GOP.

North Carolina GOP Revisits an Unconstitutional Reform

At the beginning of the week, North Carolina Republicans introduced a bill to restructure the state and county boards of elections, giving lawmakers more power in the process. [link removed]

This bill would take away the constitutionally held power of the Tar Heel State’s governor to “faithfully execute” election law and hand it to the Legislature. This isn’t the first time lawmakers have tried this.

Following the election of current Gov. Roy Cooper (D) in 2016, the GOP-led Legislature enacted two bills in an attempt to take away the incoming governor’s power to oversee elections in the state. Cooper sued Republican legislators and after two years of litigation, the North Carolina Supreme Court found the laws violated the separation of powers provisions in the state constitution.

​​In 2018, voters rejected an amendment by 62% that would have similarly granted the Legislature more control over the state board of elections.

So, why are Republicans revisiting a restructure that was determined to be unconstitutional just a few years ago? Chances are it has to do with the new conservative majority on the North Carolina Supreme Court, which has already pursued a highly unprecedented spring with the reversal of two decisions from last year. [link removed]

As a reminder, the reintroduction of this legislation comes from the same group of Republicans that eagerly awaits what the U.S. Supreme Court thinks about the independent state legislature theory in Moore v. Harper. [link removed]

Blue States, Including New York, Play Catch-Up With Mail-in Voting

No-excuse mail-in voting, sometimes called no-excuse absentee voting, is a policy where any voter — and not just someone with a delineated excuse such as sickness, disability or absence on Election Day — can cast a mail-in ballot. It has been popular for years, with red and blue states alike adopting the reform.

The 2020 election was a watershed moment for the previously noncontroversial policy: In light of the COVID-19 pandemic during the 2020 election, 23 states temporarily altered their mail-in voting laws to allow any voter to cast a ballot by mail.

In the intervening years, there has been a sharp divide between red and blue states. While Trump has led an attack on mail-in voting and Republicans across the country have tried to curtail the option, Massachusetts and Rhode Island made those 2020 reforms permanent in 2022.

Now, New York is looking to join them. Before concluding its legislative session last Friday, lawmakers in the Empire State advanced the “New York Early Mail Voter Act,” which awaits the signature of Gov. Kathy Hochul (D). [link removed]

Currently, the New York Constitution only allows voters to vote by mail if they qualify with a few specific excuses. Consequently, the new bill is considered a workaround that would not require constitutional change: Instead of implementing a true absentee voting system, the legislation would allow voters to cast a mail-in ballot without an excuse during the pre-existing, nine-day early voting period only.

Two other Democratic states in the Northeast are looking to adopt the overdue reform:

This year, Connecticut advanced a measure to change its state constitution to authorize all votes to cast a ballot by mail. The resolution will go before voters in November 2024. [link removed]

The Delaware Senate has passed a similar resolution that awaits action in the House. Then, the amendment will have to be approved again by two-thirds of both chambers after the next election. [link removed]

U.S. Senate Confirms Voting Rights Lawyer Dale Ho to Federal Bench

In a major win for democracy, the U.S. Senate confirmed three civil rights lawyers to the federal bench in less than 24 hours. This included Dale Ho, a voting rights attorney, who was confirmed Wednesday to a federal court in New York. [link removed]

Ho worked on voting and civil rights litigation with the NAACP Legal Defense Fund before serving as the director of the ACLU’s Voting Rights Project since 2013. “As voting rights come under assault across the country, it is only fitting that we elevate one of the country’s top voting rights experts to sit on the bench, to safeguard our democracy and preserve our most fundamental right as US Citizens,” Majority Leader Chuck Schumer (D-N.Y.) said at the committee hearing on Ho’s nomination.

In May, Nancy Abudu was confirmed as the first Black woman to ever serve on the 11th U.S. Circuit Court of Appeals. As a civil rights litigator, she challenged Florida’s felony disenfranchisement law and omnibus voter suppression law, Georgia’s omnibus voter suppression law and more. [link removed]

Confusing Language That Favors Restrictive Ballot Measure Struck Down

On Monday, the Ohio Supreme Court ordered Secretary of State Frank LaRose (R) and the Ohio Ballot Board to rewrite parts of a ballot measure that would make it harder for voters to amend the state constitution. A lawsuit argued that the language used was “inaccurate, incomplete ballot language that improperly favor the Amendment.” The petitioners also argued that the amendment’s title “is not impartial and will create prejudice in favor of the Amendment.” [link removed]

The state Supreme Court agreed with portions of that argument so certain aspects of the ballot language and title will have to be rewritten. Another lawsuit regarding the same ballot measure is currently pending in the Ohio Supreme Court. That lawsuit asks the court to prohibit LaRose from holding a special election for the measure on Aug. 8, 2023, alleging that it is against state law to hold a statewide election in August. [link removed]

More News

Yesterday, the Washington Supreme Court unanimously upheld the state's Voting Rights Act. The court rejected a constitutional challenge to the law brought by a local Republican official. Also this week, Connecticut Gov. Ned Lamont (D) signed the newest state Voting Rights Act into law, making Connecticut the sixth state with such legal protections.
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U.S. Sen. Elizabeth Warren (D-Mass.) and Rep. Pramila Jayapal (D-Wash.) reintroduced a bill to overhaul the nation's judicial ethics laws. The bill would impose a code of conduct on the U.S. Supreme Court, the only federal court not bound by an ethics code.
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On Tuesday, Texas Gov. Greg Abbott (R) signed a bill that will once again make illegal voting a felony. Civil and voting rights advocates warn that the bill would do nothing to deter illegal voting and cause unnecessary incarcerations.
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Recently, Illinois Gov. JB Pritzker (D) signed a law to bring Illinois closer to ending the state’s prison gerrymandering, the redistricting practice of counting individuals where they are incarcerated, rather than where they call home.
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On Wednesday, the Michigan House and Senate both passed a package of eight election bills implementing large parts of Proposition 2, a ballot measure passed with wide support by voters in November 2022. Proposition 2 is a constitutional amendment that called for numerous pro-voting changes within the Michigan Constitution.
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This week, the Arizona Legislature passed a bill that would allow counties to replace electronic tabulation of ballots with hand counts. Despite hand counting being less accurate and often unreliable, counties across the country have been pushing for hand counting in response to unfounded election conspiracies about electronic voting machines. The bill now goes to Gov. Katie Hobbs (D) to sign or, more likely, veto. Learn more about Hobbs’ numerous election law vetoes.
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Last Thursday, the Louisiana Legislature adjourned its regular 2023 session. Among the bills passed are a proposed amendment to the state constitution that would ban the use of private grants to fund election administration and a bill that would require all election-related rulemaking to be funneled through the Legislature. The constitutional amendment will go before Louisiana voters on Oct. 14, 2023 and the power grab bill heads to Gov. John Bel Edwards (D) for his signature or veto.
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Yesterday was Election Day in Tennessee! Special primaries were held in two state house districts following the expulsion of Rep. Justin Jones (D) of Nashville and Rep. Justin Pearson (D) of Memphis in April. Read more about the expulsions, which were just the latest in a long string of anti-democratic acts by Tennessee Republicans. [link removed]
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OPINION: Ohio’s Wobbly and Ongoing Path to Fair Maps

By Katy Shanahan, a Democracy Docket contributor who writes about the state of voting rights in Ohio. Read more ➡️ [link removed]

What We’re Doing

This week, the Rhode Island Legislature passed a bill permitting 17-year-olds to vote in primary elections if they'll be 18 before the corresponding general election. The legislation now goes to Gov. Dan McKee (D) for signing. Washington State passed a similar reform earlier this year, and New Jersey is aiming to do the same. To celebrate these achievements, we’re reading Democracy Docket op-eds:

Mary-Pat Hector, CEO of a national youth organization, wrote this week about the importance of expanding young voters’ access to the ballot. [link removed]

Learn more about the policy solutions to youth voting from Democracy Docket contributor Charlotte Hill. [link removed]

Monday is Juneteenth, a celebration of emancipation and acknowledgement that no one is free until everyone is free. If you are in the Washington, D.C. area, you can celebrate and take action here. Better yet, sign up to host a voter registration drive in your community with When We All Vote.
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It’s the perfect time to catch up on our latest podcast episode, where Abha Khanna, one of the attorneys who argued Allen v. Milligan before the Supreme Court, joins Marc and Paige to break down what the decision means for voters and how it’ll impact future redistricting cases. Listen on Apple, Spotify or wherever you get your podcasts.
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