Democracy and voting rights suffered a string of defeats in the courtroom and elsewhere this week. None were as crushing as one from the 8th U.S. Circuit Court of Appeals, which declined to reconsider a panel decision that severely weakened a key section of the Voting Rights Act. 

Elsewhere, Republicans in Arizona and Georgia chose foes of democracy for major positions, and two lawsuits, with very different intentions, are challenging newly enacted maps.

Republicans Elevate Election Deniers and Vote Suppressors To Key Positions

On Monday, the Arizona Republican Party elected Gina Swoboda to be the party’s next chairperson following the abrupt resignation of Jeff DeWit, who found himself ensnared in a bribery scandal involving U.S. Senate candidate and prolific election-denier Kari Lake. Swoboda’s candidacy had been endorsed both by Lake and Trump, with the former describing the new chairperson as “a national leader in election law.” Swoboda previously served on Lake’s 2022 campaign for governor and was Trump’s 2020 Election Day director of operations.

DeWit’s scandal came to light last week after a secret recording, seemingly leaked by Lake, caught DeWit inquiring about an effort to bribe Lake to stay out of the upcoming Senate race. DeWit had told Lake that “very powerful people” wanted to keep her out of the race and that they were wondering if there were “any companies out there or something that could just put her on the payroll to keep her out?”

The call took place nearly a year ago, but was only leaked just last week. Beyond having also worked in the Arizona secretary of state’s office and serving as an election advisor to the Arizona Senate, Swoboda also runs the Voter Reference Foundation (VoteRef). The conservative group publishes voter information online, is funded by a billionaire Trump donor and has consistently spread conspiracies about election fraud.

Since her election, Swoboda has already defended lawsuits filed by Republicans in the state challenging the use of drop boxes and advocating for stringent signature matching. She also had previewed lawsuits that would soon be filed by Republican legislators and the state party challenging portions of the state’s election procedure manual — one of which came to fruition on Wednesday. Republican legislative leaders in the state filed a lawsuit challenging multiple provisions of the manual including those related to voter registration cancellation, certifying elections, the state’s active early voting list and more.

Meanwhile, the Georgia Senate confirmed an election denier to the board that oversees the state’s elections. Rick Jeffares, who once served as a Republican state senator, was appointed in a 32-17 vote last Friday to serve on a five-member panel in charge of enforcing election rules and regulations, along with investigating complaints about election procedures.

Jeffares has a history of election denialism, suggesting on social media in the aftermath of the 2020 presidential election that dead people had voted and that Democrats had cheated in order to win. The board Jeffares now sits on has its own history of problematic conduct surrounding elections. Around the same time as Jeffares’ social media posts, the board was investigating similar unfounded claims of election fraud pushed by far-right politicians and conspiracy theorists. 

In a speech opposing Jeffares’ nomination, Jason Esteves, a Democratic state senator from Atlanta, said that the move “will only serve to further” conspiracy theories “and undermine the people’s confidence in Georgia’s elections.” The confirmation of Jeffares gives Republicans a 4-1 majority on the State Election Board.

Friend and Foe Lawsuits Filed Challenging Recently Enacted Maps

On Wednesday, 12 “non-African American'' voters filed a lawsuit challenging Louisiana’s newly-enacted congressional map that created two majority-Black districts. Two weeks ago, the state enacted a new congressional map after multiple courts found that the previous map likely violated Section 2 of the Voting Rights Act. 

The new map drastically increases the Black makeup of the 6th Congressional District, giving Black voters the ability to elect a candidate of their choice to the seat currently held by a white Republican. 

Yet the group of voters involved in Wednesday’s suit  — who describe themselves as “non-African American” — took exception to the newly adequate Black representation in the state, claiming that the new map is an unconstitutional racial gerrymander that involves “the intentional discrimination against voters based on race.” The plaintiffs allege that the map, which was implemented expressly in order to remedy a Voting Rights Act violation, violates the 14th and 15th Amendments and should be blocked from use in all future elections.

The same day, with a much different intention, North Carolina voters launched a new state-level lawsuit challenging the state’s recently enacted congressional and legislative maps, which were redrawn by the Republican-dominated Legislature in October.  

The North Carolina Legislature’s redrawing of the state’s congressional and legislative maps ensued nearly five months after the North Carolina Supreme Court’s newly constituted Republican majority overturned its prior decisions prohibiting partisan gerrymandering in an April 2023 decision. That ruling prohibited any future partisan gerrymandering challenges to any North Carolina map under the state constitution’s Free Elections Clause.  

The lawsuit, the first of its kind to be filed in state court and the fourth legal challenge to the new maps, hinges on a novel legal argument that asserts the districts violate the state constitution. Plaintiffs contend that the North Carolina General Assembly drew the maps in a way that created an unfair partisan advantage for GOP candidates, in turn violating the right to “fair” elections. Notably, a right to “fair” elections is not stated in the North Carolina Constitution, but a right to “frequent” and “free” elections is, which plaintiffs allege must “surely” guarantee that right to “fair” elections as well. The novel lawsuit differs from those filed in federal court, which made federal arguments under the Voting Rights Act and U.S. Constitution.

The lawsuit points to the 6th, 13th and 14th Congressional Districts — which encompass Davidson, Franklin and Burke Counties respectively — as those that unduly favor Republicans in violation of “fair elections.” The complaint also challenges the 7th state Senate District and the 105th state House district. Plaintiffs ask that the state court prohibit the use of the challenged maps for future elections.

8th Circuit Maintains Devastating Decision That Guts the Voting Rights Act

A backbreaking November decision for the Voting Rights Act grew all the more worrying Tuesday after the entire 8th Circuit denied a request to rehear it. An 8th Circuit panel had previously ruled that private parties can not sue under Section 2 of the Voting Rights Act — a decades-old federal civil rights provision that prohibits racially discriminatory voting laws and maps. 

The catastrophic ruling meant that all voters and groups covered by the 8th Circuit — Arkansas, Iowa, Minnesota, Missouri, Nebraska, North and South Dakota — could not bring Section 2 claims, leaving the power solely to the U.S. attorney general.

Plaintiffs had subsequently asked the full 8th Circuit to rehear the panel’s 2023 decision, a request that was denied over the objections of three judges on the court, two of whom were Republican appointees. The dissenters called Tuesday’s decision “ambitious and unprecedented,” rife with “illogical thinking.” The Chief Judge of the Circuit, Lavenski Smith, reiterated a devastating finding by a voting rights expert that only 15 of the 182 successful Section 2 cases in the last four decades have been brought by the U.S. attorney general.

The decision by the 8th Circuit not to rehear the panel’s decision means that the ruling can now only be remedied by the U.S. Supreme Court, if plaintiffs choose to appeal. If the Court were to take the case, it could settle the question entirely — returning the right to private parties in all 50 states or stripping it from the entire nation.

In response to the decision, Janai Nelson, president of the NAACP Legal Defense Fund, wrote that “[t]his is a dismal day for voting rights in this country at a time when we can hardly afford to leave our democracy any weaker. We must fully restore the Voting Rights Act and elect a Congress who will take up this critical charge.”

Section 2 has had an implied private right of action dating all the way back to its 1965 enactment. There is an established precedent for the right in the 5th, 6th and 11th U.S. Circuit Courts of Appeals, and just last month the entire 5th Circuit rejected a Louisiana effort to overturn a decision explicitly holding that a private right of action exists under Section 2.

FROM MARC: Disqualifying Trump Is on the Docket

While we should take solace in the fact that no prior president has acted as recklessly as Trump, that is not a reason to ignore Section 3 of the 14th Amendment now. By Marc Elias. Read more  ➡️

What We’re Doing

The race to the Republican nomination continues full-steam ahead next week, when Nevada Republicans participate in a confusing and controversial duo of primary and caucus all within two days. On Monday, look out for an explainer detailing everything you need to know about the elections, as well as a separate piece on how election officials on the ground are preparing for them.

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A new episode of our podcast Defending Democracy dropped this morning! In today’s episode, Marc and Paige discuss how little mistakes on ballots can silence the voices of voters. Listen on Apple, Spotify or wherever you get your podcasts, or watch it on YouTube.