Election Day ‘23: More Than a Threshold Crossed en Route to ‘24

Across the board, Tuesday ended up being an incredible day for democracy. Despite Republicans throwing every possible hurdle at direct democracy, Ohio voters overwhelmingly approved a measure to enshrine abortion rights in the state constitution despite Republicans enacting a new sweeping photo ID law, attempting to raise the threshold for the measure to pass and more. Read Democracy Docket contributor Katy Shanahan’s recap on Ohio Republicans’ efforts to obstruct the measure here. 

Next door in Pennsylvania, Democratic candidate Judge Daniel McCaffrey won the race for state Supreme Court. Democrats now have a 5-2 majority on the court and a reinforced pro-democratic bench heading into what is sure to be a highly litigious year for the battleground state — in 2022, Pennsylvania saw the second most democracy-related lawsuits. Learn more about the race’s impact and other critical Keystone State victories here.

In Virginia, Democrats won control of the state legislature after keeping a majority in the Senate and taking the House. This is a massive victory for voting rights, abortion rights and more as the legislature can limit Gov. Glenn Youngkin's (R) anti-democratic agenda.

Meanwhile, Shasta County, California abandoned its plans to hand count ballots, citing high turnout. The Republican county complied with state law and electronically tabulated ballots following warnings from the secretary of state. 

The U.S. Department of Justice (DOJ) monitored elections in several counties in New Jersey, Rhode Island, Mississippi and Virginia to ensure compliance with the Voting Rights Act (VRA) and other federal voting laws.

• Specifically, the DOJ monitored an election in Union County, New Jersey as a result of an agreement reached earlier this year in a lawsuit over the state’s failure to provide adequate assistance, information and election materials to Spanish-speaking voters.

• The DOJ also asked four Texas counties to alter their election websites to comply with the Americans with Disabilities Act after determining that their current sites are not accessible for people with vision and manual disabilities.

Will Hindsight Be 20/24 in Hinds County, Mississippi?

Down in Mississippi, however, at least nine polling locations in the state’s most populous county — Hinds County — ran out of ballots multiple times throughout the day on Tuesday. The fight to extend polling hours became a jumble of legal filings and contradicting orders all as voters waited in line — or left entirely due to the lack of ballots.

The Mississippi Democratic Party (MDP) as well as voting rights groups Mississippi Votes and Mississippi Center for Justice requested poll hour extensions at the affected locations, though conflicting court orders and an appeal of one order by the state’s Republican Party created confusion for voters and officials alike.   

• Mississippi has no early voting opportunities and a narrow set of qualifications for those seeking to vote absentee, meaning that the vast majority of ballots are cast on Election Day. This inaccessibility contributes to the state’s notoriously dismal voter turnout: In this year’s primary election, only 30% of those registered to vote turned out, the lowest rate since 2007. 

• On Tuesday, amid a competitive gubernatorial race between Gov. Tate Reeves (R) and Democratic nominee Brandon Presley, turnout across the state was higher than anticipated — at least 41% of active voters cast a ballot in the governor’s race. 

Regardless of yesterday’s root cause, Mississippi has an egregious voting rights record and boasts the highest level of felony disenfranchisement in the country. A Jim Crow-era constitutional provision enables Mississippi to disenfranchise more than 10% of its total voting-age population and its disenfranchisement of Black voters exceeds 15%. 

• In Hinds County, specifically, the Republican-led Legislature has taken aim at Jackson — and its over 80% Black population — by creating a new court system with an unelected judge in a portion of Jackson and expanding the Capitol Police force’s jurisdiction, which is run by the state, to cover the entire city rather than just a handful of government buildings. Although litigation over one of the laws is now resolved in state court, a separate lawsuit in federal court challenging multiple aspects of both laws — including the new court within Jackson — is ongoing.  

Simply, as Paloma Wu, a Mississippi Center for Justice attorney explained, “If you can’t vote, that’s a problem for democracy” and if this week’s turnout was an issue for election officials, serious solutions will be necessary for 2024.

Like a Good Soup, News Lawsuits Are Utilizing Every Bit (of the VRA) 

Almost 60 years ago, President Lyndon B. Johnson signed one of the most important pieces of civil rights legislation, the Voting Rights Act of 1965 (VRA), into law. 

Over the past few months, pro-voting forces have brought a series of lawsuits under lesser-known and rarely litigated provisions of the VRA that seek to combat some of the more “subtle” — but nevertheless pernicious — voting laws that disenfranchise citizens across the country.

In Wisconsin, a new lawsuit challenges the state’s absentee ballot witness requirement under Section 201 of the VRA, which prohibits denying the right to vote on the basis of a citizen’s failure to comply with a “test or device.” Section 201 defines an unlawful “test or device” as any requirement that a voter must satisfy as a prerequisite for voting.

• These illegal prerequisites include: passing a literacy test, demonstrating educational achievement in a particular subject, possessing “good moral character” or proving one’s qualifications by “the voucher of registered voters or members of any other class.”

• Relying on the last category, the plaintiffs contend that Wisconsin’s witness requirement is tantamount to a voucher requirement that Section 201 forbids since it conditions one’s ability to cast an absentee ballot — and have it counted — on the presence of a witness who must vouch for a voter’s qualifications. 

Lawsuits in North Carolina and Washington challenge residency requirements for voting by relying on Section 202(c) of the VRA, which is aimed at protecting the right to vote in presidential elections and ensuring that voters could enjoy “free movement” across state lines.

• The Section 202(c) lawsuits also bring claims under the First and 14th Amendments, alleging that the durational residency requirements unconstitutionally burden the fundamental right to vote without a compelling justification.

A Georgia lawsuit seeks to extend the time period in which voters can request an absentee ballot using Section 202(d) of the VRA, which stipulates that states are required to allow all qualified voters who will be outside of their election district on Election Day to cast an absentee ballot in a presidential election so long as they applied at least seven days before the election.

• Georgia previously comported with this federally mandated deadline up until 2021 when it enacted an omnibus voter suppression law, Senate Bill 202, in response to record high turnout in the 2020 general election.

With all of these new lawsuits still in their infancy, it remains to be seen whether courts will embrace pro-voting efforts to utilize the full breadth of the VRA’s protections. Given that many other states impose absentee ballot witness rules, durational residency requirements and premature absentee ballot application deadlines, favorable rulings in these lawsuits could have reverberating implications for large swaths of voters across the country.

Trials and Tribulations

This week, trial began in a federal lawsuit challenging two Arizona laws with strict proof of citizenship requirements for voter registration, House Bills 2492 and 2243. These laws put thousands of eligible voters’ registrations at risk. Read more about the impact of the critical 12-day trial here.

As one voting rights trial begins, another ends. On Tuesday, trial ended in a lawsuit brought by the voting rights group Fair Fight arguing that the Texas-based right-wing group True the Vote illegally intimidated Georgia voters just before the 2021 U.S. Senate runoffs. 

• In November 2020, Georgia handed Joe Biden the presidency and paved the way for two Democratic candidates to become the next U.S. senators from the Peach State and give Democrats control of the U.S. Senate. The only thing that stood in the way was a runoff election. With all eyes on Georgia, True The Vote launched the largest voter challenge effort in the state’s history targeting the eligibility of more than 364,000 Georgians — many of whom were Black, brown or first-time voters.

• A decision is now pending in this case.

Subdistricts Needed to Not Subvert Native American Representation

In North Dakota, a federal court rejected a lawsuit brought by local Republican Party officials alleging that some of the state’s legislative districts were unconstitutionally drawn using race as the predominant factor. The Mandan, Hidatsa and Arikara (MHA) Nations and other individuals had intervened in the lawsuit to defend the subdistricts.

With the rejection, the court upheld four new subdistricts that were created to give Native American voters an equal opportunity to elect their candidates of choice.

In last Thursday’s court order, the three-judge panel — consisting of one George W. Bush appointee and two Trump appointees — ruled in favor of the state and the tribal intervenors and against the Republican plaintiffs: “We agree with the State and the MHA Tribe” that “there was much evidence before the Legislative Assembly that the subdistricts were needed to satisfy the [Voting Rights Act] and avoid voter dilution claims.” 

• A separate ongoing federal lawsuit brought by Turtle Mountain Band of Chippewa Indians, Spirit Lake Tribe and individual Native American voters alleges that some of the state House districts violate the VRA by diluting Native voting power. A trial was held earlier this year and a decision is pending in this case. 

More News

• The U.S. Department of Justice joined a lawsuit over Georgia's redistricting maps to protect Section 2 of the Voting Rights Act (VRA). State Republicans are arguing that the critical provision — which prohibits racial discrimination in voting — is unconstitutional.

• A judge dismissed lawsuits challenging a New Hampshire law that added new ID requirements for voters who register for the first time on Election Day. Voting rights groups argued the law burdens the right to vote and violates the state constitution.

• In Oregon, Republican lawmakers filed a federal lawsuit challenging a voter-approved constitutional amendment that makes them ineligible to run for reelection due to unexcused absences from the state legislature. The absences came from walkouts Republicans staged to protest Democratic bills.

• In the wake of a multimedia pressure campaign launched by an election denier-run group, Speaker of the Wisconsin Assembly Robin Vos (R) advanced an impeachment resolution for the state’s top elections official, Meagan Wolfe. 

• Ohio Attorney General Dave Yost (R) accepted new language for a ballot initiative to establish an independent redistricting commission in the state. The group behind the proposal had to resubmit language due to a single typo.

• Senate Democrats confirmed President Joe Biden’s 150th federal judge, 100 of whom are women and people of color. 

OPINION: A Quarter of Federal Courts Have Only Ever Had White Judges

By Rakim Brooks, a public interest appellate lawyer and the president of Alliance for Justice. As a contributor to Democracy Docket, Brooks writes about issues relating to our state and federal courts as well as reforms to our judicial systems. Read more ➡️

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