On Tuesday, in an incredible win for democracy, the U.S. Supreme Court rejected the radical independent state legislature (ISL) theory. With this decision, state courts will still be able to hold legislatures accountable. In a 6-3 decision, the Court held that the “Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections.”
This week, we break down the opinion in Moore, celebrate voting wins out of Iowa and Pennsylvania and discuss how voters in Alabama and Louisiana will get fairer maps.
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In Moore v. Harper, the U.S. Supreme Court Rejects the Radical ISL Theory |
The pro-democracy ruling in Moore originates from what began as a standard redistricting lawsuit challenging North Carolina’s new congressional and legislative maps drawn by the Legislature using 2020 census data.
In February 2022, the North Carolina Supreme Court struck down the challenged congressional map for being a partisan gerrymander that violated the state constitution. After being ordered to draw a fairer map for the 2022 election cycle, North Carolina Republicans petitioned the U.S. Supreme Court and invoked the ISL theory to argue that the Elections Clause of the U.S. Constitution grants state legislatures the sole authority to draw new congressional districts. They argued that, consequently, state courts cannot not review legislatively drawn congressional maps to determine whether they comply with a state’s constitution.
However, on Tuesday, the U.S. Supreme Court ruled that state legislatures cannot act in an unconstrained manner via the Elections Clause. In the majority opinion, which was largely rooted in history and precedent, Chief Justice John Roberts stated: “When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review.” The opinion goes on to cite the U.S. Supreme Court’s decision in Marbury v. Madison (1803) that denoted judicial review as “one of the fundamental principles of our society.”
Just as with Allen v. Milligan, the ruling in Moore will have a sweeping, multi-faceted impact. - Democracy Docket is tracking seven cases in state courts challenging congressional maps and 21 cases in state courts challenging voting laws or procedures under state constitutions or state law. With the Supreme Court’s rejection of the ISL theory, these cases will be able to move forward unimpeded by the now-rejected theory.
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This ruling also preserves vital pro-democracy tools. These include the ability of voters to pass election laws via ballot measures, as voters in Michigan did last year, as well as the use of independent commissions in redistricting, which nine states currently have.
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As we look ahead to the 2024 presidential election cycle, the Court’s ruling in Moore allows pro-democracy advocates some breathing room. In 2020, Republicans revived the ISL theory in support of their anti-democratic efforts. Ahead of the election, they attempted to overturn pro-voting state court rulings in Pennsylvania and North Carolina. Lawyers for former President Donald Trump utilized the theory in an attempt to invalidate the presidential election results in Georgia, Michigan, Pennsylvania and Wisconsin. Tuesday’s victory for democracy will hinder, if not thwart entirely, similar moves next year.
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Pennsylvania Court Blocks a GOP-Led Attempt to End Mail-in Voting |
Tuesday brought a second big victory for democracy when a Pennsylvania court blocked yet another Republican-sponsored attempt to limit mail-in voting access in the Keystone State.
This decision stemmed from a lawsuit brought by Republican members of the Pennsylvania House of Representatives challenging Act 77, a 2019 law that established no-excuse mail-in voting and was originally supported by the majority of the Republicans who filed the lawsuit.
This is not the first time the Republican plaintiffs have sued over Act 77. The exact same group of plaintiffs already sued over the law in 2021 and lost their case on Aug. 2, 2022, when the Pennsylvania Supreme Court upheld the law.
The ruling is a critical victory for Pennsylvanians as Act 77’s increased opportunities for mail-in voting will remain in place. |
Iowa Court Rules That Counties Can Provide Election Materials in Languages Other Than English |
Yesterday, in a major win for voters, an Iowa court ruled that the state’s English-only law does not apply to voting materials and repealed a prohibition on the Iowa secretary of state from providing non-English voter registration forms. As a result of this ruling, counties will now be permitted to provide voting materials — including voter registration forms, absentee ballot applications and ballots — in languages other than English.
The lawsuit from which this victory stemmed challenged Iowa’s “English-only Law,” which mandated that all political documents from the state “shall be in the English language” unless translated materials are “necessary to secure the rights guaranteed by the Constitution and the laws of the United States of America or the Constitution of the State of Iowa.”
The pro-voting ruling emphasizes the importance of offering voting materials in languages other than English. “The right to vote is not merely the ability to check boxes on a piece of paper. It is about being able to register, understanding what is on the ballot, and knowing when and where voting takes place. All of these facets are furthered by allowing counties to provide and accept voting materials in non-English languages,” the judge wrote.
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Alabama and Louisiana Republicans Must Draw New, Fairer Maps |
In Alabama, pro-voting parties in Allen submitted a proposed remedial congressional map to the state Legislature, following the U.S. Supreme Court's ruling that requires the state to draw a new map that includes a second majority-Black district.
Meanwhile in Louisiana, the U.S. Supreme Court reinstated an order blocking the state’s congressional map for diluting the voting strength of Black voters, paving the way for Louisiana to redraw its congressional map with a second majority-Black district. Now, litigation will go back to the 5th U.S. Circuit Court of Appeals.
As a reminder, on June 8, the Court issued its opinion in Allen v. Milligan — a landmark ruling upholding Section 2 of the VRA. For Louisiana, this meant that once the case challenging the state’s congressional map was unpaused, litigation over the map would continue. This week, the Court took a final administrative step to allow litigation in the Louisiana case to continue and most importantly, to reinstate the order blocking Louisiana’s congressional map.
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For Better or Worse, State Courts Have Been Busy Weighing In on Voting Rights |
With the U.S. Supreme Court reaffirming in Moore the ability of state courts to review laws regulating federal election, state courts will continue to play a pivotal role in defining the contours of American elections. |
The Pennsylvania Supreme Court has taken many steps to protect democracy, but also deadlocked ahead of the 2022 election, which resulted in undated and wrongly dated mail-in ballots not being counted.
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The battle for voting rights will largely be fought in state courts. All of these state court decisions, spanning multiple different issues from drop boxes to partisan gerrymandering, are just a sampling of the many state courts ruling on issues that are important to democracy. |
In Virginia, a lawsuit was filed challenging the state’s felony disenfranchisement provision, which denies the right to vote to all people convicted of any felony. The plaintiffs ask a federal court to block the provision’s enforcement.
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Pro-voting groups filed a brief in support of their petition asking the U.S. Supreme Court to review a lawsuit challenging Texas voter suppression law, Senate Bill 1111. The groups are asking the Court to review the 5th U.S. Circuit Court of Appeal's dismissal of the lawsuit after a lower court initially blocked the law. Now, the Supreme Court will decide whether to take up the case next term.
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Meanwhile, former Trump attorney John Eastman, who joined Powell’s efforts to overturn rightful election results, is in a Los Angeles courtroom this week fighting to keep his law license. As part of his grand plan to overturn the results, Eastman invoked the now-rejected ISL theory.
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OPINION: Out With the Electoral College, In With the National Popular Vote |
By Charlotte Hill, the interim director of the Democracy Policy Initiative at UC Berkeley's Goldman School of Public Policy and Democracy Docket contributor who writes about how structural reforms impact American democracy. Read more ➡️ |
In addition to some much needed time outside, we are also revisiting two powerful pieces on patriotism and the American flag this weekend. At Democracy Docket, we believe in the strength of democracy and the patriotism that comes from fighting for a better future for all Americans.
Tomorrow is the anniversary of the 26th Amendment, which lowered the voting age to 18. It was borne of youth activism — a powerful force that Republicans are targeting across the country. Read this piece from Texan student and activist Isabella Fuentes. Her message? Stifle the voices of the youth and you will find out they fight back.
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