On The Docket
12/03/2021

John,

I recently participated in a panel discussion about voting rights. At the outset, the event sponsor cautioned the speakers not to be partisan in our remarks. For the hour that followed, we struggled to abide by this request.

Avoiding discussing partisanship leaves out the who, the what and the why of what is happening to American democracy. States are not enacting voter suppression laws in a vacuum — these laws are being enacted by Republican politicians over the objections of Democrats.

In my latest piece, I explain why we cannot divorce partisanship from the fight for our democracy. Failing to acknowledge the stark partisan divide over voting rights and democracy obscures the breadth of the anti-democratic wave sweeping America. In the fight for democracy, words matter.

Read “It Is Time To Admit That Democracy Is a Partisan Issue” for more on why it is so crucial to speak, report and advocate with accurate framing. [link removed]

Let’s keep up the fight,
Marc

IN THE NATION’S CAPITAL

The Supreme Court Hears Critical Abortion Case

On Wednesday, the U.S. Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, the most direct challenge to Roe v. Wade (1973) in years. In Roe, the Court decided that it was unconstitutional for states to ban abortions before the point where the fetus could survive outside of the womb, or around 24 weeks. In contrast, Mississippi’s law bans most abortions after 15 weeks. The case is a culmination of years of unrelenting attacks on reproductive health access by southern states, who hope that a conservative-leaning bench will now overturn the long-standing precedent. [link removed]

Questioning during oral arguments indicated that the Court will likely side with Mississippi, with conservative justices signaling support for the law and comfort with the option of overturning Roe. Throughout history, the Court has rarely overturned precedent and ignored the principle of stare decisis. The few exceptions that have been made include the expansion of rights - for example, striking down racial segregation laws. [link removed]

Next year, the Court could abandon this principle for the restriction of rights, instead, and several justices highlighted their concerns for how the decision will impact the court’s public image. Justice Sonia Sotomayor asked: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

IN THE STATES

State Supreme Courts and the Basics of Election Certification

While the U.S. Supreme Court decides high-profile constitutional issues, like the one we heard on Wednesday, state Supreme Courts are equally important, but often overlooked. 95% of cases filed in the United States are heard in state courts with state Supreme Courts having the final word. In this week’s Data Dive, we’re taking a look at a Brennan Center report that highlights the demographic and professional characteristics of state Supreme Court justices. “There are more justices named John (13) than there are with civil legal service experience (seven),” we write. Explore the important world of state judges in “State Supreme Courts Don’t Match America’s Diversity.” [link removed]

In the aftermath of the 2020 election, state courts garnered some attention by consistently rejecting or overturning the baseless claims of election fraud pushed by then-President Donald Trump. Those legal challenges were just one aspect that threatened the post-election process to certify results. In our latest Explainer, “After Election Day: The Basics of Election Certification,” we outline how election results are certified — starting with local and state election officials and in the case of presidential races, going all the way to Congress — and highlight the points throughout this process that are most vulnerable to bad actors seeking to subvert elections. [link removed]

REDISTRICTING ROUNDUP

Georgia (Redistricting) On Our Minds

Georgia — On Nov. 22, the Georgia General Assembly approved the state’s new congressional map after finalizing legislative redistricting the week prior. All three maps, which await the signature of Gov. Brian Kemp (R), attempt to mitigate the rapidly changing demographic and political landscape in Georgia after President Joe Biden won the state in 2020 and Democrats won both Senate seats earlier this year. The approved congressional plan targets Rep. Lucy McBath (D) by adding heavily Republican counties to her suburban district while also lowering the Black voting population of Rep. Sanford Bishop’s (D) district from 51% to 49%. “Georgia grew by 1 million people in the last decade, and 100% of that growth came from communities of color,” Sen. Elena Parent (D) said. “We would expect to see maps that more properly and appropriately reflect the increase in the populations of communities of color.” [link removed]
In “Redistricting Rundown: Georgia,” we cover the state’s rapidly changing political and demographic landscape and how Republican lawmakers bolstered their advantage in the short term, but nonetheless face an uphill battle against the broader trends changing the state. [link removed]

AND MORE:
On Nov. 22, Oklahoma Gov. Kevin Stitt (R) and Massachusetts Gov. Charlie Baker (R) signed their respective congressional maps into law. Illinois Gov. J.B. Pritzer (D) finalized his state’s map the next day. Find all the updates that you may have missed over the holiday week on our Alerts page. [link removed]
This Monday, the Arkansas Board of Apportionment — made up of the Republican governor, secretary of state and attorney general of Arkansas — approved new state legislative maps. Earlier this fall, Arkansas Gov. Asa Hutchinson (R) neither vetoed nor signed the Legislature-approved congressional map, which will nonetheless go into effect next year — although at least one activist group is collecting signatures for a petition to overturn the map through a veto referendum. [link removed]
Tuesday was the deadline for the Connecticut Reapportionment Commission to approve a congressional map. The commission has not released any draft maps so far and asked the state Supreme Court for a three-week extension. The South Carolina House began its redistricting special session this week, with New Mexico set to meet next week. [link removed]

IN THE COURTS

Ohio’s Congressional Map Face Legal Challenges

Ohio — On Nov. 18, the Ohio Legislature approved a new congressional map that Gov. Mike DeWine (R) signed into law a few days later. On Nov. 22, a lawsuit filed on behalf of a group of Ohio voters challenged the new congressional map for being a partisan gerrymander that favors Republicans and violates multiple provisions of the Ohio Constitution. The suit alleges that the map violates a state constitutional amendment adopted by voters in 2018 that bans partisan gerrymandering in congressional redistricting and establishes redistricting criteria. The complaint points out that the map is predicted to hand Republicans at least 12 out of 15 congressional districts — 80% of seats — despite the fact that “considering statewide elections from 2016 to 2020, Republicans receive around 53% of the votes on average.” An additional lawsuit was filed this Tuesday, similarly asking for the courts to declare the new congressional map invalid, prevent any election from being held under this map and order the creation of new fair congressional districts. [link removed]

AND MORE:
On Nov. 17, two Republicans filed a lawsuit in a Nevada state court challenging the Silver State’s newly passed legislative and congressional maps. The suit alleges that the new maps are partisan gerrymanders that favor Democrats and have “the effect of denying voters an equal opportunity to participate in the political process of electing candidates of their choice in violation of federal and state law.” [link removed]
Earlier this month, Wisconsin Gov. Tony Evers (D) vetoed the Republican-approved congressional and legislative maps, handing redistricting responsibility to the courts. This week, the state Supreme Court announced in a 4-3 decision that it would not consider partisan gerrymander claims, citing the U.S. Supreme Court case Rucho v. Common Cause. Instead, the court aims to minimize changes from the 2011 maps, which were drawn by a GOP-controlled government a decade ago. "In effect, a least-change approach that starts with the 2011 maps nullifies voters' electoral decisions since then," wrote Justice Rebecca Dallet. [link removed]

WHAT WE’RE DOING

Four things to do today to stay engaged in the fight!

We’re taking action: Join Run For Something next Monday for a webinar on running for an election administrator position in 2022. Run For Something recruits and supports young, diverse Democrats running for the first or second time in local and state races. Now’s the time to stand up for democracy in your community — hear directly from Run For Something-endorsed election administrators and learn about campaign resources and support. Register for the webinar on Monday, Dec. 6 at 8 p.m. ET here. [link removed]

We’re reading: Jackson Women’s Health Organization, the defendant in the high profile Supreme Court case this week, is the last abortion clinic in Mississippi. Even with Roe still standing, relentless anti-abortion efforts have bullied clinics into shutting their doors and forced those seeking care to navigate harassment and threats. Take a glimpse into the heartbreaking reality of everyday work at the Jackson Women’s Health Organization here. [link removed]

We’re watching: “The through-line, I think, throughout my career has been a commitment of equality to all people,” said Dale Ho in his nomination hearing to serve on the U.S. District Court for the Southern District of New York. Ho has worked with the NAACP Legal Defense and Educational Fund and is currently the director of the ACLU’s Voting Rights Project; he represents Biden’s push to nominate more lawyers with advocacy and civil rights backgrounds. Watch Ho speak about how his background will inform the perspective he brings to the federal bench. [link removed]

We’re buying: Don’t procrastinate on this year’s holiday shopping — order your Democracy Docket merch by Friday, Dec. 10 to guarantee delivery before Christmas! Find the perfect stocking stuffers for all the democracy defenders in your life — tote bags, coffee mugs, sweatshirts and much more! [link removed]

SPOTLIGHT

The Fight for Accountability After January 6

In this week’s Spotlight, executive director of Public Wise Christina Baal-Owens warns how the ideology that fueled the Jan. 6 siege on the U.S. Capitol is rapidly spreaded across the nation. At least 13 individuals who took part in the attack on democracy last January ran for office this year. Ten insurrectionists won, joining the Virginia House of Delegates, city councils, school boards and county and town boards. Baal-Owens outlines Public Wise’s campaign to hold the “Big Lie” conspiracist accountable, in advance of the 2022 and 2024 election where there will be more insurrectionists, including incumbents, on the ballot. “We must ensure that any participants in the insurrection cannot win seats on our school boards, town and city councils or state assemblies,” writes Baal-Owens in “The Fight for Accountability After January 6.” “Elected officials participating in an ongoing structural attempt to undermine democracy are the most serious threat our country faces.” [link removed]

ASK MARC

Each week, we pick a few reader questions about all things elections and share Marc’s answers. Got a question? Submit it here! [link removed]

Chris asks: With the 2022 elections in November, primaries in the summer and candidates filing in the spring, how soon does redistricting have to be resolved?

Marc: Because of the late receipt of census data, we are behind schedule in the redistricting process. However, we are not too late. First, the courts know that redistricting cases have to move quickly, so we’re seeing the courts expedite these cases to the top of their docket and set deadlines for resolution on a fairly aggressive timetable. Second, if necessary, states will move primary dates and candidate filing deadlines. Every election cycle with new maps, some states push back these dates.

Ryan asks: Where’s the end of the line for maps that go to court? Is it a state Supreme Court? What happens after that?

Marc: Redistricting lawsuits either go through state or federal courts, and sometimes both. If a map is challenged in state court, it goes up through the state courts to the state Supreme Court, and typically, that's the end of the line (although the U.S. Supreme Court can consider cases that come out of state Supreme Courts if there are federal questions at issue). A redistricting case that goes through federal court has two possible routes. First, it can go to a single federal District Court judge, then court of appeals and potentially the U.S. Supreme Court. The other option is a mechanism unique to redistricting cases — the case goes directly to a three judge panel, then automatically to the U.S. Supreme Court for review.

WHAT BODE’S BARKING ABOUT

“The US has been added to an annual list of ‘backsliding’ democracies for the first time… The report says: ‘A historic turning point came in 2020-21 when former president Donald Trump questioned the legitimacy of the 2020 election results in the United States.’ In addition, Hudson pointed to a ‘decline in the quality of freedom of association and assembly during the summer of protests in 2020” after the police killing of George Floyd.’” The Guardian [link removed]

“The polarization argument too often treats both sides as equally worthy of blame... This blurs the distinction between a Democratic Party that is marginally more progressive in policy positions than it was a decade ago, and a Republican Party that routinely lies, courts violence and seeks to define America as a White Christian nation.” The Washington Post [link removed]

"’Defenders of democracy in America still have a slim window of opportunity to act. But time is ticking away, and midnight is approaching,’ according to more than 150 top scholars of U.S. democracy in a new push to temporarily suspend the Senate filibuster and pass voting rights protections on a simple majority vote.” Axios [link removed]



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