On The Docket 12/10/2021

John,

In 2006, the U.S. Senate reauthorized the Voting Rights Act (VRA) 98-0. By 2021, every Republican in the U.S. House and 49 of 50 Republicans in the Senate oppose it.

The VRA was once a bipartisan litmus test for supporting democracy. No longer.

In its place is a new test: support for the Jan. 6 insurrection at the U.S. Capitol. Only those politicians who directly support the attempted coup are now considered extreme enough to be considered anti-democratic.

In my latest piece, I explain how Republicans have normalized antidemocratic behavior and how those of us who care about democracy must focus on our own expectations and what we accept as normal or acceptable.

Read “Defining Democracy Down” on Democracy Docket now. [link removed]

Let’s keep up the fight,
Marc

IN THE NATION’S CAPITAL

The Department of Justice Takes Action

On Monday, the U.S. Department of Justice (DOJ) filed a lawsuit against Texas over its new state House and congressional maps that passed following the release of 2020 census data. The lawsuit was announced during a televised press conference, during which Attorney General Merrick Garland noted that this is the first round of redistricting without Section 5 of the VRA after the U.S. Supreme Court gutted it in 2013. Section 5 required Texas, which has a long history of enacting redistricting plans that violate the VRA, to obtain federal approval before any new maps went into effect. With Section 5 no longer in place, the DOJ is filing this suit under Section 2 of the VRA, arguing that Texas “has again diluted the voting strength of minority Texans and continued its refusal to comply with the Voting Rights Act, absent intervention by the Attorney General or the federal courts.” [link removed]

This year, the DOJ has also filed lawsuits against the omnibus voter suppression bills in Texas [[link removed]]and Georgia [[link removed]]. Additionally, the DOJ recently filed two statements of interest in a case challenging two Arizona voter suppression laws [[link removed]] and in a consolidated redistricting case in Texas [​​[link removed]].

Yesterday, the U.S. House of Representatives passed the Protecting Our Democracy Act, which focuses on ethics and anti-corruption in the executive branch. The bill now awaits action in the Senate. Congress’ 2021 session was set to conclude this week, but the House (and likely the Senate) will meet next week to tackle the legislative priorities Democrats hope to pass before the New Year. House Majority Leader Steny Hoyer (D-Md.) advised his colleagues that “pending Senate action on legislation relating to the federal debt limit, the House is expected to meet early next week. Additional legislative items are possible.” [link removed]

IN THE STATES

Non-Citizen Voting and the Impact of State Legislator Salaries

On Thursday, the New York City Council approved a bill that allows legal residents who are not citizens to vote in municipal elections. When news stories began circulating about the legislation, the reaction was swift and spurred outrage from right-wing critics. Even Democrats, including New York City Mayor Bill de Blasio (D), showed skepticism over a change that would add upwards of 800,000 new voters to the rolls in a city of 5.6 million registered voters. This week, we cut through all the noise — in “Understanding Voting Rights for Non-citizens,” we explain what the New York City law actually does, outline the status of non-citizen voting laws in other parts of the country and dive into the implications for democracy and representation. [link removed]

However, if there’s one thing Americans can agree on, it’s rejecting pay increases for politicians. But as it turns out, paying legislators more isn’t such a bad idea after all. In our latest Data Dive, we look at a report by the nonprofit group New American Leaders on the impact of state legislator salaries on representation. State legislatures vary widely in legislative pay, time commitment and staffing. Read “Analysis: Pay Legislators More for Better Representation” to learn about how pay impacts economic and professional diversity, and recommendations for states to have more representative and responsive legislatures. [link removed]

REDISTRICTING ROUNDUP

December Special Sessions Underway

This week, Maryland and New Mexico began redistricting special sessions. On Wednesday, the Maryland House of Delegates and state Senate approved a new congressional map, which Gov. Larry Hogan (R) vetoed on Thursday. However, Democrats in the Legislature voted to override his veto shortly after, and given Hogan’s previous statements, lawsuits are expected. The approved map was drafted by the legislative redistricting advisory commission and maintains the current split of seven Democratic-leaning seats and one Republican-leaning seat. [link removed]

Although not finalized, draft congressional maps in California, Florida, Pennsylvania and Virginia — four states with 109 congressional seats between them — are being closely scrutinized. In the most populous state in the country, California, new maps are drawn by an independent commission. The initial maps suggest that the Golden State may have upwards of eight competitive districts in 2022, which the commission has until Dec. 27 to finalize. [link removed]

On Wednesday, drafts of new congressional and General Assembly maps for Virginia were released by the court-appointed special masters. The proposed congressional map is expected to be split between five Democratic-leaning seats, five Republican-leaning seats and one competitive district. Of note is that the proposed map appears to put the three female incumbents in precarious positions: Rep. Abigail Spanberger’s (D-Va.) current district has been eliminated, and Reps. Elaine Luria (D-Va.) and Jennifer Wexton (D-Va.) face competitive races in their newly drawn districts. [link removed]

AND MORE:
The South Carolina Legislature is focused on completing redistricting in its special session, which began on Dec. 1. On Thursday, the Legislature passed new state House and Senate maps, sending them to the desk of Gov. Henry McMaster (R) for signature. The Senate has proposed a congressional map, which the Legislature likely won’t take up until after the New Year. [link removed]
Remember — redistricting doesn’t just take place at the state level as municipalities across the country are also reconfiguring the boundaries for local government. On Tuesday, the Washington, D.C. Council voted on a new ward boundaries; a second and final vote will take place in the following weeks. The same day, the Los Angeles City Council also adopted its new district map.

IN THE COURTS

Burst of Activity in North Carolina Redistricting Lawsuits

North Carolina — Last Friday, a three-judge panel in a trial court declined to grant a preliminary injunction in North Carolina League of Conservation Voters (NCLCV) v. Hall and Harper v. Hall, meaning that the challenged state and congressional maps could be used in elections as litigation continues. Both sets of plaintiffs immediately appealed, with the NCLCV plaintiffs asking the North Carolina Court of Appeals to “temporarily stay the candidate-filing period for all offices until the Court rules on this petition.” On Monday, the court of appeals granted the NCLCV plaintiffs’ motion for a temporary stay, but the full North Carolina Court of Appeals reversed the decision later that day, allowing candidate filings to begin. On Wednesday, the North Carolina Supreme Court reinstated the pause of the state’s candidate filing period for all races while multiple legal challenges against the newly-enacted House, Senate and congressional maps are litigated. In its order, the court held that, because “of the great public interest in the subject matter of these cases, the importance of the issues to the constitutional jurisprudence of this State, and the need for urgency in reaching a final resolution on the merits at the earliest possible opportunity,” it is necessary to halt the candidate filing period and delay primary elections from March to May 2022 so that the challenged maps can be fully litigated. The state Supreme Court directed the trial court to “hold proceedings” and rule on the cases by Jan. 11. [link removed]

Virginia — On Tuesday, the Democratic Party of Virginia (DPVA) and the Democratic Congressional Campaign Committee (DCCC) filed a lawsuit in federal court challenging two of Virginia’s election laws. The lawsuit first challenges the state’s requirement that voters provide their full Social Security number (SSN) in order to register to vote. The plaintiffs argue that their efforts to register voters are hindered by this requirement — which only three states in the country have — as voters may be hesitant to hand out their full SSN. According to the complaint, this burden on the right to free speech and association violates the Democratic organizations’ First and 14th Amendment rights and voters face an unconstitutional barrier on the right to vote in violation of the 14th Amendment. The plaintiffs also argue the SSN requirement violates the Civil Rights Act and Privacy Act. Second, the lawsuit challenges the state’s cure procedures, specifically the arbitrary deadline by which voters will receive notice that their absentee ballots contain a technical defect that needs to be cured. The plaintiffs argue that the arbitrary deadline denies procedural due process by failing to provide the same safeguards to all Virginians voting absentee in violation of the 14th Amendment and unduly burdens the right to vote in violation of the First and 14th Amendments. [link removed]

Arizona — In June 2020, a lawsuit was filed by various Democratic organizations against Arizona’s arbitrary deadline to cure an otherwise-valid mail-in ballot, arguing that it violates the First and 14th Amendments. Many Arizonians cast their ballot by mail, which requires an affidavit “attesting that the voter personally has cast the ballot.” If the voter omits a signature on the affidavit, the state allows voters to provide the missing signature or cast a provisional ballot. However, the deadline to cure a missing signature is Election Day, despite the fact that perceived mismatched signatures can be cured up to five days following an election. The U.S. District Court for the District of Arizona agreed with the plaintiffs and ordered the state to extend the deadline to cure a missing affidavit signature. Upon appeal to the 9th U.S. Circuit Court of Appeals, the district court’s decision was reversed this Wednesday. The majority of the 9th Circuit panel held that Arizona “has an important regulatory interest in reducing the administrative burden on poll workers, especially during the busy days immediately following an election. In light of the minimal burden on the voter to sign the affidavit or to correct a missing signature by election day, the State’s interest sufficiently justifies the election-day deadline.” In a dissent, one judge wrote that “the State’s refusal to provide a post-election cure period for ballots with missing signatures, consistent with the cure period it provides for other deficient ballots, disenfranchises voters after they cast their ballot as surely as laws that restrict voters from casting their ballots in the first place.” [link removed]

AND MORE:
Last Friday, the Washington Supreme Court issued an order adopting the Washington State Redistricting Commission’s legislative and congressional maps, declining to take over the map-drawing process. Last month, the Commission passed new maps by its midnight deadline on Nov. 15, but confusion arose around if the Commission had actually sent the maps to lawmakers on time. The order acknowledged that the Commission was not faultless, but ruled that the Commission “met the constitutional deadline and substantially complied with the statutory deadline to transmit the matter to the legislature.” [link removed]
Lawsuits challenging Texas’ new maps will go forward after a court rejected Gov. Greg Abbott's (R) and Deputy Secretary of State Jose Esparza's (R) request to dismiss the cases. The legal fight for fair maps in Texas continues. [link removed]
On Wednesday, the Supreme Court of Ohio heard oral arguments in three redistricting lawsuits. In our latest Case Watch, “Fighting Partisan Gerrymandering in Ohio,” we break down the lawsuits that challenge the state’s new legislative districts and provide updates from the oral arguments. [link removed]
Yesterday, the U.S. District Court for the Northern District of Georgia rejected various attempts to dismiss eight lawsuits challenging Georgia’s new voter suppression law, Senate Bill 202. While each case raises its own arguments, all focus on the voter suppression provisions of S.B. 202. Georgia state and county officials, along with Republican committees that intervened in the cases, sought to dismiss the lawsuits, raising various arguments challenging the standing and merits of the cases’ claims. Today, the court rejected every single motion to dismiss and all eight lawsuits will move forward. [link removed]


WHAT WE’RE DOING

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

We’re taking action: This week, there’s been lots of buzz around the 2022 gubernatorial race in Georgia, but let’s be clear — for fair elections and maps, we need to help Georgia elect Stacey Abrams. Trump endorsed former Sen. David Perdue, who has said he would not have certified Georgia’s 2020 election results, but incumbent Gov. Brian Kemp (R) isn’t any better. Kemp signed voter suppression bills and is set to approve new gerrymandered maps. It’s time to mobilize for Abrams! [link removed]

We’re reading: “The Original Meaning of the 14th Amendment: Its Letter and Spirit.” The 14th Amendment, adopted in 1868, gave the federal judiciary new powers to protect the rights of individuals from violation by states. Published last month, two constitutional scholars analyze the origins and original meaning of the amendment, explaining how it has long been misunderstood or ignored by the U.S. Supreme Court. [link removed]

We’re wearing: Make sure to order your Democracy Docket merch today, Dec. 10, to guarantee the gifts arrive before Christmas. We also have two special holiday gift bundles for the democracy defender in your life, a mug and sticker pack or a tee and sticker pack. Get ahead on your holiday shopping and order today! [link removed]

We’re watching: “We have to be a lot more aggressive in realizing that democracy is not a given state of affairs, it is not a natural state of affairs, and we could as easily lose our democracy as we could keep it,” explained Marc last week on Deadline White House with Nicolle Wallace. Watch the full clip and read Marc’s article about acknowledging partisanship in the fight for voting rights. [link removed]
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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]

Abbi asks: What can be done in Wisconsin after the recent 4-3 state Supreme Court ruling?

Marc: Wisconsin is what we refer to as an impasse litigation state — a state where the governor and legislature are controlled by two different parties, so they're unlikely to compromise on a map. When that happens, the courts draw maps. Last week, the Wisconsin Supreme Court issued an order that said when it draws the maps, they will start with the existing maps (drawn in 2011) as their foundation. Of course, the problem is that the existing maps are extreme gerrymanders. This puts a real constraint on what can be drawn, because the baseline is rooted in politics.

Emily asks: Why can lawsuits in North Carolina and Ohio argue about partisan gerrymandering but other places, such as the Wisconsin Supreme Court, won't consider partisan gerrymandering?

Marc: The U.S. Supreme Court closed the door to federal claims of partisan gerrymandering in Rucho v. Common Cause. However, state courts can still determine whether their own state constitutions ban partisan gerrymandering. That won’t be the case in some states, such as Wisconsin. There are other state courts, like Pennsylvania and North Carolina, that find claims for partisan gerrymandering in their constitutions. I think we're entering an age where we're going to see state courts under more pressure to protect fundamental rights, which people previously looked to the federal constitution for.

WHAT BODE’S BARKING ABOUT

“Voting rights advocates as far north as Wisconsin, and in Southern states like Georgia, Texas and Florida, are sounding the alarm: Without immediate federal action to restore the VRA, even our smallest towns aren’t safe from anti-democratic, racist redistricting that could have devastating impacts on people who simply want their voices heard.” Truthout [link removed]

“The mainstream media’s fixation with false equivalency between the two political parties and fear of criticism from the right has led to distorted coverage and misleading characterizations of the assault on democracy. Voter suppression is called ‘tighter voting requirements.’ The Republican’s descent into authoritarianism and its dalliance with violence is explained away as ‘polarization.’” The Washington Post [link removed]

“Trump’s demand—that statehouses fire their voters and hand him the votes—was so far beyond the bounds of normal politics that politicians found it difficult to conceive. With the passage of a year, it is no longer so hard. There is precedent now for the conversation, the next time it happens, and there are competent lawyers to smooth the path. Most of all, there is the roaring tide of revanchist anger among Trump supporters, rising up against anyone who would thwart his will. Scarcely an elected Republican dares resist them, and many surf exultantly in their wake.” The Atlantic [link removed]



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