On The Docket 06/23/2023

It's been two weeks since the U.S. Supreme Court’s decision in Allen v. Milligan, a year since Dobbs v. Jackson Women’s Health Organization and ten years since Shelby County v. Holder. These three landmark cases have altered the country — with Allen holding together the defanged Voting Rights Act (VRA), while Dobbs and Shelby County have threatened the voices and rights of millions of Americans.

In the newsletter, we review the effects of Shelby County and Allen, while paying attention to the recently greenlit special election in Ohio that directly impacts efforts to codify abortion rights.

A Decade After Shelby County, When SCOTUS Gutted Preclearance

It has been almost exactly ten years since the U.S. Supreme Court’s ruling in Shelby County v. Holder, which decimated the Voting Rights Act’s (VRA) most powerful tool — preclearance.
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Preclearance meant that certain jurisdictions, including states, counties and cities with histories of discriminatory voting practices had to receive preapproval from the U.S. Department of Justice or a federal district court before changing voting laws.

In his opinion released on June 25, 2013, Chief Justice John Roberts wrote that preclearance was no longer necessary, reasoning that “voter registration and turnout numbers in the covered states have risen dramatically in the years since. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.” He erroneously concluded: “Nearly 50 years later, things have changed dramatically.”

However, in the days and months that followed the decision, states rushed to pass restrictive and discriminatory legislation, indicating that preclearance had been doing its job. Without the key provision, racial disparity has returned with the gap in turnout growing between nonwhite and white voters in states previously subjected to preclearance, such as Alabama, Florida, South Carolina and Texas.

This week, we explored what has happened in North Carolina in the decade since Shelby County. Notably, Republicans have spent ten years pushing for photo ID requirements to vote, and finally succeeded this past April. After the state Supreme Court flipped from Democrat to Republican control, Republican justices made the unprecedented decision to rehear a challenge to the state’s strict photo ID law and ultimately upheld the discriminatory law. Like the states mentioned above, the racial turnout gap in the Tar Heel state has also widened. North Carolina’s maps have been repeatedly struck down as unfair, making the accountable Legislature less representative and less responsive to voters. [link removed]

In contrast to North Carolina, six states, like Oregon and New York and most recently, Connecticut, have sought to enact their own VRAs to protect voters with revamped preclearance processes often included. It should be noted, however, that the states that have done so were not subjected to Section 5’s preclearance, with the exception of Virginia. [link removed]

Two Weeks Later, Allen v. Milligan Has Impacted Several States

In 2021, states redrew congressional and legislative maps in the first redistricting cycle since the VRA’s preclearance requirements were gutted in Shelby County. However, and crucially, Section 2 of the VRA, a portion of the landmark law that bans voting rules or electoral schemes that dilute the voting strength of minority voters, remained in place.

Unlike Section 5, which focused on states or local governments with histories of voting discrimination, Section 2 applies nationwide. Under Section 2, harmed voters can file lawsuits challenging laws or maps that dilute the voting strength of minority voters, but because lawsuits happen after new rules are already implemented, they are also more time consuming, and not always successful. After the release of 2020 census data, as states enacted new maps, a deluge of new Section 2 lawsuits followed.

Just two weeks ago yesterday, the Supreme Court dropped a major voting rights win in Allen v. Milligan that affirmed the current application of Section 2. In doing so, the Court struck down Alabama’s congressional map. [link removed]

Alabama officials then filed paperwork indicating their intention to enact a new congressional map by July 21. The lower court agreed upon the timeline, giving the Legislature until that date to pass a new map that incorporates a second majority-Black district.

The impact of the Allen decision will reverberate outside of Alabama: Within hours and days, previously stalled cases across the country started moving again. Read more for what else has happened in the two weeks since the decision. [link removed]

Houston Elections Targeted by Texas Republicans

Last weekend, Texas Gov. Greg Abbott (R) signed two bills that target Houston’s Harris County. The first law permits the state to take over election administration in Harris County, a Democratic stronghold and the state’s most populous county. A little more veiled, the second law abolishes the nonpartisan election administrator position in counties with a population of 3.5 million people or more — Harris County is the only county in Texas with this many people. [link removed]

These bills come after Texas Republicans have complained that Election Day problems in Harris County during the 2022 midterms targeted Republicans, a contention not supported by data.

This past weekend, Abbott also vetoed a bill that would have improved voting access for voters with disabilities and signed a law that requires election workers to allow voters with mobility problems to skip the line when voting in person. [link removed]

Texas is not alone in targeting counties, with red states across the country targeting their blue cities for an unwillingness to fall in line.

In Tennessee, Republicans passed a law in retaliation to the Davidson County Metro Council’s refusal to host the 2024 Republican National Convention that forced the council to reduce its size in half. The county is home to the state’s most populous city, Nashville, and currently has 40 members. Despite lawmakers’ efforts to diminish Nashville’s power, a Tennessee court has temporarily blocked the law from taking effect. [link removed]

In Florida, Gov. Ron DeSantis (R) signed a law that empowered the state’s attorney general to prosecute all election-related crimes after local prosecutors were not charging formerly incarcerated citizens who voted without knowing they were ineligible. [link removed]

In Mississippi, a new law — that is currently being challenged in court — targets Jackson residents, 80% of whom are Black, through the creation of a new court with unelected judges. Republicans are seeking to create a court that is not accountable to Jackson’s Black voters. All of the other courts in Hinds County have judges and prosecutors that are elected rather than appointed. [link removed]

The Anti-Voting Bills Republicans Enacted This Legislative Season

Nearly 400 anti-voting bills have been introduced across the country so far this year. From catch-all voter suppression bills to hostile local government takeovers, these Republican-sponsored bills are emblematic of the party’s increasingly antagonistic stance toward voting. [link removed]

Read our roundup of the worst voting and election bills enacted so far this year:

Attacks on mail-in voting have continued. South Dakota and Arkansas have followed in Wisconsin’s footsteps and banned the use of drop boxes entirely. Mississippi has halted the collection of most mail-in ballots. Ohio, Indiana and Wyoming have all added new hoops for voters seeking to mail in their ballots to jump through like shorter return windows and photo ID requirements.

Restrictions on IDs and residency requirements have tightened. Idaho decided students can no longer use their IDs to vote. Nebraska, Wyoming and Ohio all also added new ID requirements. South Dakota passed a strict residency requirement, effectively barring anyone who moves to the state within 45 days of an election from voting there.

Bans on outside funding for election administration grew. Arkansas, Idaho, Montana and Oklahoma all outlawed private grants and donations for the first time. Georgia tightened its ban on outside funding and went so far as to criminalize such grants.

Power grabs swept blue cities in red states. Tennessee cut the size of Nashville’s city council in half. Mississippi created a separate, unelected court system in Jackson. Texas targeted election administration in Houston’s Harris County.

Elections have been criminalized. Florida gave the state the power to prosecute election crimes and criminalized certain activities of third-party voter registration organizations. Arkansas established an “election integrity unit” and made it a crime for an election official to send out a mail-in ballot application unsolicited. Texas raised the penalty for illegal voting from a misdemeanor to a felony.

Listen to this week’s Defending Democracy podcast where Marc and Paige discuss the highs and lows of election legislation from the past year. Listen on Apple, Spotify or wherever you get your podcasts.
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Virginia Governor Prevents Thousands From Voting on Tuesday

It was primary day on Tuesday in Virginia and the first election since Gov. Glenn Youngkin (R) revived a lifetime ban on voting for people with past felony convictions. It's an early 1900s-era policy and one of the strictest felony disenfranchisement schemes in the country. Youngkin can still grant the right to vote on a case-by-case basis; in contrast, his predecessors had all taken gubernatorial action to restore voting rights in a uniform, non-discretionary manner upon release from incarceration. [link removed]

As of October 2022, approximately 211,344 Virginians — constituting over 5% of the commonwealth’s voting age population — remain disenfranchised “even after completing their full sentences including parole and probation.” The reversal has also created an atmosphere of fear for citizens who had their right to vote reinstated under previous governors, according to new reporting from Bolts. [link removed]

This reversal comes as other states move towards restoring voting rights for people with felony convictions.

In Minnesota, over 50,000 people regained their right to vote this month after the state enacted a new law earlier this spring. The bill’s sponsor noted: “Restoring voting rights to those convicted of a felony crime but no longer incarcerated is one of the ways to help facilitate reintegration into our communities by giving these individuals their voices back to participate in the electoral process.” [link removed]

In New Mexico, the passage of the state’s omnibus pro-voting bill immediately restored the right to vote to over 11,000 people. [link removed]

Voting rights groups in Louisiana are fighting to simplify the state’s Jim Crow-era restoration process for people with prior felony convictions. [link removed]

Along with a few notable wins for progressives during Tuesday’s election in Virginia, like the ousting of anti-abortion incumbent state Sen. Joe Morrissey (D), all three of the Jan. 6 participants on the ballot did not win their primaries.

More News

On Wednesday, two election bills passed the North Carolina Senate, along party lines, after being introduced last week. The bills now head to the House, where they are expected to pass, before meeting Gov. Roy Cooper’s (D) veto pen. In one bill, Republicans are seeking to reform the structure of the state and county boards of elections and the other bill, which former Trump attorney Cleta Mitchell was reportedly involved in, tackles a variety of restrictive measures.
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On Thursday, the U.S. House Financial Services and General Government Committee released a budget proposal that would eliminate federal funding for election departments. Reports have shown that Congress has woefully underfunded our elections, with funding shortfalls being a persistent problem nationwide.
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Last Friday, the Ohio Supreme Court ruled that an August special election set up by the Legislature can happen as scheduled. The election is for a measure that would make it harder for voters to amend the state constitution.
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On Wednesday, the U.S. Senate voted 50-49 to confirm President Joe Biden’s 100th federal district court judge nominee, Natasha Merle, to the U.S. District Court for the Eastern District of New York. This milestone is critically important as Democrats work to reshape the federal judiciary to be more professionally and racially diverse.
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In Arizona this week, Gov. Katie Hobbs (D) vetoed seven election bills passed by the Republican-controlled Legislature. The bills would have shortened the deadline to return a mail-in ballot, made more voter information publicly available and more. Crucially, Hobbs also recently vetoed a bill that would have allowed any county in the state to replace the electronic count of ballots with a hand count, a less accurate and often unreliable process.
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Nevada Gov. Joe Lombardo (R) signed two election bills into law and vetoed three others. The two new laws require the secretary of state to produce an election manual submitted for legislative approval and streamline the establishment of polling places and drop boxes on Native American reservations.
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The vetoed bills would have expanded ballot access to voters with disabilities and non-English speakers, permitted additional types of IDs to be used for same-day voter registration and more.

This week, the 6th U.S. Circuit Court of Appeals heard oral argument in a lawsuit challenging Kentucky's process that arbitrarily dictates which individuals with a previous felony conviction will regain the right to vote. A lower court dismissed the case for lack of standing.
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In Rhode Island, Gov. Dan McKee (D) signed into law a bill permitting 17-year-olds to vote in primary elections if they will be 18 before the corresponding general election.
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OPINION: Red States Wage War on Blue Cities

By Jessica Pishko, an independent journalist and Democracy Docket contributor who writes about the criminalization of elections and how sheriffs have become a growing threat to democracy. Read more ➡️[link removed]

What We’re Doing

It has been a year since Dobbs overturned decades of precedent and millions of people lost their right to abortion. In the months that have followed, Republican-led states, like Ohio, have sought to restrict ballot measures in response to public outcry and successful pro-choice ballot initiatives, like last year’s vote in Kansas.

To commemorate the anniversary and help those who are in immediate need of health care, consider supporting the National Network of Abortion Funds. [link removed]

If you are a voter in Ohio, learn more about the Aug. 8 special election and what it will take to defeat the ballot measure that aims to raise the threshold for enacting constitutional amendments. [link removed]

Finally, we are diving into the ProPublica piece on Justice Samuel Alito’s unreported lavish vacation with Paul Singer, a billionaire who has repeatedly asked the U.S. Supreme Court to rule in his favor. [link removed]

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A new episode of Defending Democracy drops every Friday at 6 a.m. EDT. In today’s new episode, Marc and Paige discuss the good and bad voting legislation passed this year. Listen on Apple, Spotify or wherever you get your podcasts.
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