The 5th Circuit’s bad (and even worse) decisions.

[link removed]
11/17/2023

In New York, oral argument was heard in the state’s redistricting lawsuit that may determine which party controls Congress. The U.S. 5th Circuit Court of Appeals issued two redistricting rulings — one much worse than the other — and Republicans in Washington appealed two redistricting lawsuits to the Supreme Court.

As courts work to clear their dockets as the year draws to a close, we can expect to see even more movement in the weeks to come.

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Final Arguments in New York’s Long Redistricting Journey
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For the past two years, all eyes have been on New York’s redistricting process after a newly created independent redistricting commission deadlocked, leading to a long and winding path that ended with a court-drawn congressional map for 2022. After Republicans won a slim majority — and flipped more seats than expected in the Empire State — the ongoing ** lawsuit ([link removed])
over New York’s congressional map has taken center stage with ** control of Congress ([link removed])
on the line. And this week, voters made their final case before the highest court, ** arguing ([link removed])
that the Independent Redistricting Commission (IRC) must reconvene and draw a new map for 2024.

The case is before the highest court after an appellate court over the summer ** ordered ([link removed])
the IRC to reconvene, finding that the map-drawing process — as laid out in the constitutional amendment approved by voters in 2014 — was not properly followed. In that same order, the court also acknowledged that the Legislature-drawn congressional map was a partisan gerrymander.

The Republican intervenors then ** appealed ([link removed])
the decision to the New York Court of Appeals, the state’s highest court.

During oral argument, Republicans were primarily concerned with the idea of redrawing the map mid-decade, pointing out that legislators drawing the map “know where the incumbents are, know where the close districts are and know how to take them out.”

The attorney representing the New York voters clarified the lawsuit’s primary goal: for the IRC to follow the constitutionally mandated process. Specifically, the congressional map is supposed to be drawn according to the “IRC legislative process set forth in the Constitution.” The attorney ** concluded ([link removed])
that “the goal is to have fair maps that are drawn through a transparent process” and New York voters were denied that opportunity.

Read our Twitter play-by-play of the oral argument ** here ([link removed])
.

Dante’s 5th Circuit

Last Friday, in a highly concerning and unprecedented move, a three-judge panel on the 5th U.S. Circuit Court of Appeals ** affirmed ([link removed])
that Galveston County, Texas violated the Voting Rights Act (VRA) when it redrew commissioner districts, while simultaneously calling for the entire 5th Circuit to ** reconsider ([link removed])
its prior precedent concerning ** Section 2 ([link removed])
.

The three judges on the panel — appointed by George W. Bush, George H.W. Bush and Ronald Reagan — held that the entire 5th Circuit should reconsider and overturn established precedent that allows distinct minority communities — such as Black and Latino voters — to be combined for the purposes of Section 2 vote dilution claims.
* Concurrently, the 5th U.S. Circuit Court of Appeals ** extended ([link removed])
the pause of an order requiring Galveston County, Texas to draw new commissioner districts that comply with the Voting Rights Act (VRA) while the entire 5th Circuit decides whether or not to rehear the case. Galveston will not need to implement new, fair districts for the time being.

Last Friday was an incredibly busy day for the 5th Circuit as it also ** vacated ([link removed])
(meaning, voided) a 2022 decision that blocked Louisiana’s congressional map but created a timeline for a new, fair map to be implemented before the 2024 elections. Although the 5th Circuit found that the lower court did not err, it voided the order blocking the map because “the reasons for urgency” are now gone.

The court ** set ([link removed])
a Jan. 15 deadline for the Louisiana Legislature to enact a new congressional map or determine that they will not adopt a new plan, in which case a trial will be held in the district court. Similarly, if the plaintiffs object to a plan approved by the Legislature, the district court will determine if that map is VRA-compliant.
* Gov.-elect Jeff Landry (R) ** stated ([link removed])
he would call for a special legislative session to focus on the state’s maps. Landry is set to be inaugurated on Jan. 8, 2024. However, outgoing Gov. John Bel Edwards (D) is ** arguing ([link removed])
that it’s not possible for Landry to call the special session and he is preparing for a session if the court does not extend its deadline.
* Louisiana lawmakers are ** arguing ([link removed])
they are unlikely to meet and redraw the state's congressional map by a court's deadline, citing renovations to the state capitol and the holiday season.

The Galveston ruling is the latest in a series of unprecedented moves by the 5th Circuit — the most conservative appellate court in the country — in the realm of voting rights. In September, the 5th Circuit ** delayed ([link removed])
Louisiana’s path to implementing a VRA-compliant congressional map after granting a request to cancel a lower court hearing to decide how the state would remedy its Section 2 violation. And in August, the 5th Circuit ** voided ([link removed])
a historic ** decision ([link removed])
striking down Mississippi’s Jim Crow-era felony disenfranchisement provision and agreed to rehear the case en banc.

Washington Republicans Take Redistricting Fight to SCOTUS

In other redistricting news, it remains to be seen if voters in Washington will have fair maps for 2024. As of Nov. 3, Republican litigants in two federal redistricting lawsuits challenging the state’s legislative districts have ** appealed ([link removed])
to the U.S. Supreme Court.
* ** Soto Palmer v. Hobbs ([link removed])
brings claims under Section 2 of the VRA, which protects against racially discriminatory redistricting plans.
* ** Garcia v. Hobbs ([link removed])
alleges racial gerrymandering claims under the Equal Protection Clause of the U.S. Constitution, which prohibits using race as the predominant factor in redistricting.

In an increasingly familiar tactic, the Republican litigants are arguing that the Section 2 claims conflict with racial gerrymandering claims brought under the U.S. Constitution. This past June, the U.S. Supreme Court upheld Section 2 of the VRA in ** Allen v. Milligan ([link removed])
, a congressional redistricting case out of Alabama. In doing so, the 5-4 majority rejected the state of Alabama’s ** argument ([link removed])
suggesting that Section 2 of the VRA violates the U.S. Constitution’s 14th and 15th Amendments by allowing for “race-based redistricting” over “race-neutral” districts. Read more about the circuitous journey to fair representation ** here ([link removed])
.

No Photo ID? No Vote.

Later today, trial will begin in a state-level ** lawsuit ([link removed])
challenging Missouri’s recently enacted strict photo ID requirement for voting.

In June 2022, Missouri Republicans ** passed ([link removed])
an omnibus voter suppression ** law ([link removed])
that ripped away progress Missouri had made on voting rights. The legislation attacked voting machines, election administration and civic engagement organizations, banned drop boxes and — at issue in today’s trial — created a strict photo ID requirement.

Since the law’s enactment, voters in Missouri have been limited to only an unexpired government-issued photo ID. If a voter lacks the proper ID, they must cast a provisional ballot that will only be counted if they are able to return the same day with proper identification, or if the ballot signature is matched with a signature already on file — a highly error-prone and discriminatory process that often ** leads ([link removed])
to high rejection rates, especially for already vulnerable communities like voters of color, elderly voters and voters with disabilities. Read more about the lawsuit ** here ([link removed])
.
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** How ID Requirements Harm Marginalized Communities and Their Right to Vote ([link removed])

By Devon Hesano

Trumpdates! Trumpdates! Read All About It!

There was movement in three states with 14th Amendment legal challenges targeting former President Donald Trump’s eligibility to appear on ballots next year. Using the word “insurrection” to label the Jan. 6, 2021 attack on the U.S. Capitol isn’t just a matter of language. It carries with it serious constitutional ramifications. Just last week, the Minnesota Supreme Court ** ruled ([link removed])
that his involvement was not disqualifying.
* Adopted after the Civil War, ** Section 3 of the 14th Amendment ([link removed])
prohibits the election or appointment of an individual to state or federal office if they previously held such an office, took an oath of office and then had “engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof.” Read more about how the 14th Amendment could threaten Trump ** here ([link removed])
.

In Nevada, a federal court ** held ([link removed])
a hearing in a lawsuit challenging Trump’s eligibility to be on the state’s ballot for the 2024 presidential election.

In Michigan, a judge ** allowed ([link removed])
Trump to remain on the state's presidential primary ballot, rejecting a lawsuit arguing that the 14th Amendment prevents Trump from running again due to his involvement in the Jan 6. insurrection.
* The judge also ruled in a separate lawsuit brought by Trump that Michigan’s secretary of state does not have the authority to determine whether Trump can appear on the primary ballot.
* Michigan voters have already ** appealed ([link removed])
this decision and also ask the state Supreme Court to immediately review the case, citing the need for a quick resolution.

Across the country in Arizona, a hearing was ** held ([link removed])
in yet another 14th Amendment lawsuit seeking to disqualify Trump from the state’s ballot for the 2024 presidential election.

In other Trump news, videos from the Georgia indictment proffer sessions were leaked to the media. It turns out former Trump attorney Jenna Ellis admitted she ** believed ([link removed])
that Trump was out of options to challenge the results of the 2020 election after the Supreme Court ** rejected ([link removed])
a lawsuit that sought to invalidate 20 million votes mid-December 2020. Read more about the pivotal Texas lawsuit ** here ([link removed])
.
** ([link removed])

** The “Big One” Missing From Trump’s Indictments ([link removed])

By Marc Elias

More News
* Louisiana Republicans ** notified ([link removed])
a federal court that they are challenging the constitutionality of Section 2 of the VRA — which prohibits racially discriminatory voting laws and maps — in a lawsuit against the state's legislative districts.
* Following a full trial, a Texas judge ** rejected ([link removed])
a lawsuit from a Republican candidate seeking to overturn her loss in the November 2022 election for Harris County's 189th Judicial District Court.
* The U.S. Supreme Court ** issued ([link removed])
a nonbinding code of ethics earlier today following ** months ([link removed])
of financial scandals tied to Justices Samuel Alito and Clarence Thomas.
* Kari Lake ** filed ([link removed])
a new brief in her election contest, asking an Arizona appeals court to decertify the 2022 gubernatorial election and order a new election. Lake lost the governor's race over a year ago. She is also a current U.S. Senate candidate.

OPINION: The Future of Partisan Gerrymandering in North Carolina
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By Asher D. Hildebrand, an associate professor at Duke University’s Sanford School of Public Policy. ** Read more ([link removed])
➡️
What We're Doing

If you’re a Louisiana voter, make sure you ** vote ([link removed])
tomorrow if you haven’t already. Learn more about the two secretary of state candidates ** here ([link removed])
and what voting rights and redistricting litigation is ongoing in Louisiana.

Stay tuned for next week's piece debunking common voting rights myths… Just in time for Thanksgiving dinner!

On this week’s episode of Defending Democracy, Marc and Paige speak about last week’s elections that saw some incredible ** wins ([link removed])
for democracy! Listen on ** Apple ([link removed])
, ** Spotify ([link removed])
or ** wherever you get your podcasts ([link removed])
or enjoy it in newly available video form on ** YouTube ([link removed])
.
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