A Civil Rights Act provision is at the heart of legal battles in key swing states.

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2/23/2024

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Wisconsin Republicans have held a stranglehold on the state legislature for more than a decade due to egregious partisan gerrymandering. A newly signed bill will soon bring that power imbalance to a screeching halt, delivering competitive and fair legislative maps to the battleground state.

The U.S. Supreme Court also made news surrounding legislative redistricting when it handed down orders in two cases challenging Washington’s state House and Senate districts. Looking ahead to November, a Civil Rights Act provision may prove decisive in a multitude of battleground states.

New Maps In Wisconsin Mark Historic Victory for Voters

Following the general election this November, it is likely that the partisan makeup of the Wisconsin Legislature will change more dramatically than any other state in the country. That's thanks to new, fair maps signed by Gov. Tony Evers (D) on Monday that end more than a decade of egregious Republican gerrymandering.

The new maps mark a complete sea change for the political landscape of the Badger State. In 2020, President Joe Biden ** won ([link removed])
18 of the state’s 33 new Senate seats, while former President Donald Trump won 50 of the state’s 99 Assembly districts — a partisan makeup closely resembling the state’s hyper-competitive nature. Republicans have held overwhelming ** majorities ([link removed])
in both chambers for years despite Democrats frequently winning statewide elections.

The maps are a result of a December court order by the state’s newly-liberal Supreme Court that ** struck down ([link removed].)
the state’s legislative maps for being noncontiguous and blocked them from being used in future elections, which prompted the Legislature to create new districts.

Whether Evers would ultimately sign the maps was a topic of significant consternation. The maps were identical to the governor’s proposal and he had vowed to sign his maps if they made it to his desk. Democrats, however, revolted late last week for what they saw as multiple deficiencies within the process and proposal. Just two Democrats in the entire Wisconsin Legislature voted to advance the maps.

Among the ** concerns ([link removed])
were worries about a potential Republican lawsuit, a rushed process with no committee vote or public hearing and a provision within the bill that delays the implementation of the fair maps until November. Reporting subsequently revealed, contrary to Democrat’s original concerns, that the timing change was implemented by the state’s Legislative Reference Bureau as standard practice and not by legislative Republicans.

Ultimately, Evers signed the maps, jubilantly ** exclaiming ([link removed])
at a signing ceremony that “[i]t is a new day in Wisconsin, and today is a beautiful day for democracy.” Common Cause Wisconsin, the Wisconsin Democratic Party, the National Democratic Redistricting Committee and top state Democrats all celebrated the signing of the new districts.

Evers ** acknowledged ([link removed])
on Monday that some in his party disagreed with his decision to sign the maps, but argued it was important for him to keep his promise. Rep. LaKeshia Myers (D) explained that she was “disappointed” in the redistricting process and argued that “[t]he map signed today is still not truly ‘fair.’” The governor added that he thinks the risk of a legal challenge is small, and one that he would win if needed.

Republicans viewed the Evers’ maps as the best of bad options for the GOP — other proposals in front of the court were more Democratic. Wisconsin Assembly Leader Robin Vos (R) baselessly ** called ([link removed])
the maps a Democratic-gerrymander, despite the fact that the enacted districts are slightly skewed in favor of Republicans.

Shortly after signing the legislative maps, Evers ** urged ([link removed])
the Wisconsin Supreme Court to review the state’s congressional maps, which are also gerrymandered in favor of Republicans.

SCOTUS Weighs In On Duo of Lawsuits Challenging Washington’s Legislative Map

Two separate federal lawsuits are challenging Washington’s legislative districts, and the U.S. Supreme Court issued orders in both of them on Tuesday. The Court denied a ** request ([link removed])
from Republican litigants seeking review of an ** August 2023 decision ([link removed])
that struck down the state’s legislative map for unlawfully diluting Latino voting power in the Yakima Valley Region under Section 2 of the Voting Rights Act.

The decision paves the way for a redraw of the legislative map to continue in the district court, which is set to review various map proposals on March 8.

In the other ** case ([link removed])
, the nation’s high court voided a three-judge panel’s decision to dismiss a Republican lawsuit alleging that Washington’s legislative map is racially gerrymandered in violation of the U.S. Constitution.

By vacating the September 2023 decision, the Court also ordered the three-judge panel to issue a “fresh judgment,” which could then be appealed to the 9th U.S. Circuit Court of Appeals, according to the order.

Practically speaking, the Court agreed with Republicans to send the case back to the three-judge panel, instructing it to enter a new order of dismissal which could then be appealed to the 9th Circuit for further litigation.

Though the two cases are related, they differ in the details. The ** first ([link removed])
involves Section 2 of the Voting Rights Act, in which Latino voters alleged that Washington’s 15th Legislative District unlawfully prevented Latino voters from electing their preferred candidate in contravention of the Voting Rights Act.

The ** second ([link removed])
involves racial gerrymandering — a former Republican U.S. House candidate argued that race was impermissibly used as the predominant factor in drawing the 15th Legislative District without a compelling reason, thereby constituting a violation of the 14th Amendment’s Equal Protection Clause.
** ([link removed])

** Republicans Launch a Legal Assault on Democracy ([link removed])

By Marc Elias

A Civil Rights Act Provision Could Make the Difference in Battleground Races

A key provision of the Civil Rights Act protects voters nationwide from being disenfranchised over innocent and minor accidental ballot mistakes. Republicans seem bothered by this reality, ** litigating ([link removed])
against parties seeking to enforce the provision in a multitude of court cases throughout the country.

Dating back 60 years to the passage of the 1964 Civil Rights Act, the ** Materiality Provision ([link removed])
states that “[n]o person acting under color of law shall…deny the right of any individual to vote in any election because of an error or omission…if such error or omission is not material in determining whether such individual is qualified.”

In practice, the provision seeks to ensure that well-intended voters aren’t disenfranchised over small issues that are irrelevant to a voter’s eligibility. The most common areas of concern involve signatures, incorrect or missing dates, other omissions on mail-in ballots and ballots missing an outer return envelope.

What exactly is immaterial versus material has never been definitively settled, leading to legal battles and incongruent decisions nationwide. These battles include arguments that only the U.S. attorney general can bring claims under the provision, meaning citizens burdened by immaterial laws could not seek legal remedies.

Lawsuits over the provision can mean a big difference for voters — and elections. At least six active cases involve the Materiality Provision according to our tracker, and four come from battle ground states where the cases could be determinative: Arizona, Georgia, Pennsylvania and Wisconsin.

A case out of Pennsylvania has shown just how impactful the lawsuits can be. In the state, voters are required to date the return envelope of their ballot with the day in which they signed the declaration, despite the fact that county boards of elections stamp when a ballot is received, and this stamp is what is used to determine eligibility under state law. In the lead up to the 2022 midterm elections, Republicans were able to obtain an ** order ([link removed])
barring the counting of any such ballots during the 2022 midterms — a decision that ultimately silenced the voices of more than ** 7,600 ([link removed])
voters.

The Pennsylvania NAACP filed a ** lawsuit ([link removed])
prior to the midterms arguing the provision was immaterial and should be struck down. Though the provision remained in place for the 2022 midterms, a year later a federal court agreed with the plaintiffs, holding that the law was an immaterial roadblock to voting.

The court ** rejected ([link removed])
a key argument being made as of late by Republicans attacking the Materiality Provision, asserting that private litigants, like voters or groups, cannot bring lawsuits under this provision.

The effect of immaterial laws restricting voting has been felt in Wisconsin as well. In the Badger State, a voter’s mail-in ballot must be overseen by a witness, who must produce a witness certificate that bears the witness’s address. If the address is missing, the ballot can’t count, per Wisconsin law.

The League of Women Voters has filed a ** lawsuit ([link removed])
arguing the meaning of “missing” was unclear, and additionally claims that partial witness addresses do not qualify as a “missing” address. The risk to voters is not trivial. A post-2020 election audit ** found ([link removed])
that nearly 7% of all mail-in ballots contained some form of witness address certification defect and more than 5% were simply missing a zip code.

In a significant win for voters last month, a court ** ruled ([link removed])
that the rejection of mail-in ballots due to certain witness address errors violates the Materiality Provision.

Read more about the provision and how it is also being applied in cases in Arizona and Georgia ** here ([link removed])
.

OPINION: Redefining “Politicians” in 2024
** ([link removed])

Attacks on fair representation in GOP-majority state legislatures like in ** Alabama ([link removed])
, ** Georgia ([link removed])
and ** Louisiana ([link removed])
may be facing a reckoning for their gerrymandered maps that violate the Voting Rights Act. By Sara Hadad, chief campaigns officer of Run for Something. ** Read more ([link removed])
.

What We’re Doing

As we prepare for the 2024 election, we are working hard to bring new ways to keep you informed on the biggest threats to our democracy. Stay tuned for more information next week!

We are also ** listening ([link removed])
to Alliance for Justice President Rakim Brooks’ new ** podcast ([link removed])
with Newsweek. Focusing on law and democracy, it will build on Rakim’s contributions to Democracy Docket.

A new episode of our podcast Defending Democracy dropped this morning! In today’s episode, Marc and Paige are joined by Michigan Sen. Jeremy Moss (D) to discuss how Michigan Republicans are not okay. Listen on ** Apple ([link removed])
, ** Spotify ([link removed])
or ** wherever you get your podcasts ([link removed])
, or watch it on ** YouTube ([link removed])
.
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