On The Docket 01/14/2022

IN THE NATION’S CAPITAL

Voting Rights Showdown in the Senate

On Wednesday afternoon, U.S. Senate Majority Leader Chuck Schumer (D-N.Y.) announced his plan to force a Senate debate on crucial voting rights legislation, using a strategy called “messages between the Houses.” Here’s what went down: First, the U.S. House of Representatives replaced the language of H.R. 5746 — an unrelated bill regarding NASA that had already moved several times between the House and Senate for revisions — with the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. On Thursday morning, the House passed H.R. 5746, which is now called the Freedom to Vote: John R. Lewis Act. No House Republicans supported the measure.

The new bill does more than just combine these two landmark pieces of voting rights legislation. Read Marc’s latest, “The New Voting Rights Bill Is the Law We Need Right Now,” for an explanation of the important additions that both prevent voter suppression and combat the increased threat of election subversion. [link removed]

Next, H.R. 5746 was sent to the Senate, where the bill can bypass the typical procedural motions to open debate. While previous voting rights bills were blocked by Republicans during procedural steps, this bill, which in its previous form has already ping-ponged between the chambers, will be considered and debated. The Senate originally planned to tee up a final vote by Monday, Jan. 17, Martin Luther King Jr. Day but instead will recess and reconvene next Tuesday. The next week will be busy in the Senate. Catch the latest updates on our live alerts page here. [link removed]

While the final vote to adopt the legislation will still be subject to the 60-vote filibuster threshold and Sens. Kyrsten Sinema (D-Ariz.) and Joe Manchin (D-W.Va.) appear to be holding out on changes, pressure has been building. President Joe Biden underlined the urgency of this moment in a speech in Georgia on Tuesday and explicitly endorsed changing the Senate rules: “To protect our democracy, I support changing the Senate rules whichever way they need to be changed to prevent a minority of senators from blocking action on voting rights.” Former President Barack Obama wrote his first op-ed since leaving office, echoing Biden’s call to change Senate rules for the sake of our democracy: “Now is the time for all of us to follow John Lewis' example. Now is the time for the U.S. Senate to do the right thing. America’s long-standing grand experiment in democracy is being sorely tested. Future generations are counting on us to meet that test.” [link removed]

Follow this space for updates surrounding the voting rights battle in the Senate. [link removed]


IN THE STATES

States Signal Their New Year Legislative Intentions

In recognition of the first anniversary of the Jan. 6 insurrection, Democrats in two states announced new pro-voting reforms. In Pennsylvania, Democrats introduced the K. Leroy Irvis Voting Rights Protection Act in honor of the first Black speaker of the Pennsylvania House. The bill builds upon bipartisan reforms enacted in 2019 by expanding the early voting period, enacting same-day registration, requiring more drop boxes in populated areas and more. However, moving the legislation through the Republican Legislature will be an uphill battle. In New Mexico, Gov. Michelle Lujan Grisham (D) and Secretary of State Maggie Toulouse Oliver (D) announced a proposal that would expand early voting and online registration, create a permanent mail-in ballot list, restore voting rights to those convicted of a felony and improve voting access for Native Americans. The New Mexico Legislature is set to reconvene on Jan. 18. [link removed]
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On the other hand, Republicans are continuing to attack the right to vote in the new year. In Arizona, Republicans introduced a bill to prohibit drive-thru voting and ballot drop boxes. Only voters with disabilities will be allowed to use drive-thru voting and drop boxes will only be allowed inside a polling location, voting center or elections office. Meanwhile, Republicans in Wisconsin introduced legislation that would bar people with felony convictions from voting until all fines and fees are paid, similar to a Florida law that has prevented over 700,000 individuals from voting because of court fees. [link removed]
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REDISTRICTING ROUNDUP

The 2022 Redistricting Rush Picks Up

Kentucky — On Saturday, Jan. 8, the Republican-controlled Kentucky Legislature approved new congressional, state House and state Senate maps, just days after Senate leaders unveiled their proposals. The congressional map does not carve up the 3rd District — the state’s lone blue district, represented by retiring Rep. John Yarmuth (D-Ky.) — as much as some Democrats feared. The League of Women Voters of Kentucky has previously criticized the state House map for dividing communities for the sake of protecting incumbents while simultaneously targeting female House members. The redistricting legislation still awaits the signature of Gov. Andy Beshear (D), who has not yet indicated whether he will sign or veto. Either way, Republicans hold veto-proof supermajorities in the Legislature. [link removed]

AND MORE:
This week, the New York Legislature voted down a series of redistricting maps sent to them by the New York State Independent Redistricting Commission. The commission now has 15 days to submit new maps for consideration by the Legislature. If the Legislature rejects this second set of maps, the Legislature can submit its own plan, subject to approval by Gov. Kathy Hochul (D). This is the first year the new maps were drawn by a commission after voters approved a ballot measure in 2014 with the aim of removing politics from the map-drawing process. [link removed]
Tennessee Republicans — who control the redistricting process in their state — finally unveiled a new congressional plan. Democrats released their proposal, a compact map that maintains the current partisan split, back in November. In contrast, House Speaker Cameron Sexton (R) confirmed that the Republican proposal will divide the city of Nashville among several neighboring Republican districts, potentially removing the Democratic-controlled seat there. “Gerrymandering Nashville is an insult to all Nashvillians and likely to backfire on the Republican Party,” responded Rep. Jim Cooper (D-Tenn.) who currently represents the Nashville-based seat. “It’s not conservative to split a county that’s been whole for 240 years.” [link removed]
Mississippi’s new congressional map, which maintains the current 3-1 Republican split, passed both the state House and Senate, heading to the desk of Gov. Tate Reeves (R). Meanwhile, in Pennsylvania, the House passed a Republican-drawn congressional map, which now heads to the Senate. Given that the state has a Democratic governor, intervention by the courts is likely; several impasse cases have already been filed. [link removed]
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Stay focused on the Sunshine State! After minimal public input, the Florida Senate redistricting subcommittee is advancing map proposals quickly. Florida Republicans are constrained in their ability to gerrymander because of a 2009 fair districts ballot initiative, which courts used in 2014 to overturn the maps produced last redistricting cycle. [link removed]

IN THE COURTS

Big Win for Fair Maps in Ohio

Ohio — On Wednesday, the Supreme Court of Ohio struck down the state’s new General Assembly maps for being partisan gerrymanders that violate the Ohio Constitution. The plaintiffs in three cases filed against the maps argued that the new General Assembly maps violate Section 6 of Article XI, which requires that maps are not drawn to favor one political party and that the statewide proportion of districts closely corresponds to the statewide preferences of Ohio voters over the last decade. The court agreed with the plaintiffs and held that “the expert evidence supports the conclusion that the adopted plan’s partisan skew cannot be explained solely by nondiscriminatory factors” and more proportional maps reflective of statewide voter preferences should have been drawn. The court rejected the Republican defendants’ argument that Section 6 is only “aspirational,” finding that the Republicans did not even attempt to comply with the provisions of Section 6 — part of a constitutional amendment passed in 2015 by 71% of Ohio voters specifically to ban partisan gerrymandering. The court similarly rejected the Republican defendants’ arguments that the court does not have jurisdiction to hear the cases or order the drawing of new maps because Article XI does not allow legal challenges for “a stand-alone violation of Section 6.” The court ordered the commission to adopt new plans that comply with the state constitution within 10 days, which the court will then review. [link removed]

New York — On Monday, Jan. 11, a group of Republican voters and officials, along with the New York Republican State Committee and Republican National Committee, filed a lawsuit challenging New York City’s new noncitizen voting law. The measure, passed by the New York City Council in December, became law on Sunday after newly sworn-in Mayor Eric Adams (D) declined to veto it. In the lawsuit, Republicans argue that this law violates both the New York Constitution and state election laws. The plaintiffs argue that allowing over 800,000 eligible noncitizens to vote in elections in New York City — which has approximately 5 million registered voters — will dilute the votes of U.S. citizens by “dramatically increasing the pool of eligible voters.” The lawsuit asks the New York Supreme Court to block the law and prohibit noncitizens from registering and voting. [link removed]
The new law allows legal residents, including those with green cards and Dreamers, who have lived in New York City for at least 30 consecutive days to vote in municipal elections (the law does not extend to state or federal elections) starting in 2023. Similar laws are already on the books in Vermont and Maryland. For more on what this means for New York City, read “Understanding Voting Rights for Noncitizens.” [link removed]

North Carolina — On Tuesday, a North Carolina state court upheld the state’s new legislative and congressional maps after a four-day trial was held last week. The plaintiffs argued during trial that the new maps are gerrymandered to benefit Republicans in violation of multiple provisions of the North Carolina Constitution. While the three-judge panel concluded the new maps “are a result of intentional, pro-Republican partisan redistricting” and they expressed their sympathy that the new maps may “potentially lead to results incompatible with democratic principles and subject our State to ridicule,” they rejected the plaintiffs’ legal claims. Absent any state or federal law banning partisan gerrymandering, the judges deferred to Rucho v. Common Cause where the conservative majority of the U.S. Supreme Court held that partisan gerrymandering is a political issue that is outside the scope of the judicial system’s purview. The court also rejected claims that the new maps intentionally discriminate against Black voters and dilute their voting strength in violation of the North Carolina Constitution. Appeals to the North Carolina Supreme Court have been filed. [link removed]

AND MORE:
Georgia is now being sued in five separate lawsuits over its new state and federal district maps. Last Friday, a lawsuit was filed against the congressional map specifically challenging the 6th, 13th and 14th Districts for being racially gerrymandered. On Tuesday, another lawsuit was filed that argues that the new state House and Senate maps violate Section 2 of the Voting Rights Act (VRA) because they dilute the voting strength of Black Georgians, continuing the state’s long pattern of racial discrimination. [link removed]
This week, John Wallace Jr., a former justice of the New Jersey Supreme Court who chaired the New Jersey Congressional Redistricting Commission, expanded upon his rationale for his tie-breaking vote cast in December. The New Jersey Supreme Court ordered Wallace to “amplify the grounds for his decision” following a Republican lawsuit challenging the commission’s final decision. In his response, Wallace states that he believes both the Republican and Democratic proposals were constitutional and comply with the VRA, but his decision hinged on specific criteria: "No district may be formed to favor or disfavor any political party or the election of any person." In assessing two metrics for partisan fairness, Wallace’s team found that the Democratic plan performed better. For more on Wallace’s reasoning, read his response here. [link removed]
Today, the Idaho Supreme Court will hear oral arguments in four consolidated cases challenging the state’s newly passed state House and Senate maps. [link removed] Alabama’s preliminary injunction hearing on its congressional map finished on Wednesday after more than a week of testimony; a decision can be expected soon. The new congressional map was challenged in three lawsuits on racial gerrymandering and racial vote dilution claims. [link removed]

WHAT WE’RE DOING

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

We’re taking action: This year, the family of Martin Luther King Jr. declared for “no celebration without legislation” and instead, “invite you to host actions in your community on January 17th and demand our elected officials pass the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act.” Learn how you can honor MLK’s legacy through a day of action here. [link removed]

We’re advocating: Ahead of the Senate vote on the rules changes needed to pass the Freedom to Vote: John R. Lewis Act, we’re making a final push to support its passage. Call or email your senators, tweet or amplify the message — find all the tools to make your voice heard here. [link removed]

We’re reading: Washington Post columnist Jennifer Rubin dived into the legal implications of Section 3 of the 14th Amendment of the U.S. Constitution in “Can insurrectionist enablers be disqualified from office? It’s complicated.” [[link removed] ]As we see the people who stormed the U.S. Capitol run for positions across the country, and their powerful enablers in Congress seek re-election, there will be a new ecosystem of legal experts and pundits weighing in on the topic. Marc kicked off this discussion earlier this week in “Naming the Insurrection.” [link removed]


SPOTLIGHT

The Future of Our Democracy Will Come Down To State Legislatures

In this week’s Spotlight, Daniel Squadron, a former New York state senator and executive director of The States Project, outlines how Donald Trump’s attempted coup relied squarely on the actions of state legislatures. Squadron walks through the dangerous constitutional theory that state legislatures can choose presidential electors any way they want and how that could decide the 2024 election. “Let me be clear: we got lucky in 2020. The idea of nullifying votes was too novel, too shocking and too poorly pitched by the president’s clownish legal team for legislative leaders to take it up,” writes Squadron. “But the right wing won’t make the same mistakes again.” Consequently, progressive need to match the conservative movement’s consistent investments in state legislatures. Read “The Future of Our Democracy Will Come Down To State Legislatures” for how Trumpists plan to undermine democracy, with state legislatures at the center of their magic trick. [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]

Tony asks: If this procedure for the Freedom to Vote: John R. Lewis Act exists in the Senate, why can’t this be done for every bill?

Marc: In order for the bill to go to the Senate without being subject to a filibuster on the procedural motion, it needs to have made several trips back and forth between the House and the Senate. There are not many bills that meet that criteria. So, while it's possible, it's not something that is regularly available.

Amy asks: I'm concerned about the harassment targeting election officials and volunteers in various states. Are there any federal or state laws that criminalize harassing election officials and obstructing processes?

Marc: Right now, the laws in place are just patchwork. While some states have laws that specifically prohibit harassing election officials, other states do not. And, while there are some existing federal laws, they are not sufficient for the challenges we face today. In the Freedom to Vote: John R. Lewis Act, there are specific criminal statutes that would make it a federal crime to harass or threaten election officials.

WHAT BODE’S BARKING ABOUT

“The Mississippi officials met in the heat of summer with a singular goal in mind: stopping Black people from voting. ‘We came here to exclude the Negro,’ said the convention’s president. ‘Nothing short of this will answer.’ This conclave took place in 1890. But remarkably, approximately 130 years later, the laws they came up with are still blocking nearly 16% of Mississippi’s Black voting-age population from casting a ballot.” The Guardian [link removed]

“Voting rights experts say Democrats, after failing to act in 2021, have a very narrow window to pass legislation that would roll back the GOP’s anti-democratic efforts before voters go to the polls in 2022… ‘As the election calendar accelerates, the remedies that a court can consider or the time to put in place alternative maps shrinks,’ says Weiser.” Mother Jones [link removed]

“‘If you want to fight for the future of American democracy, you shouldn’t spend all day talking about the future of American democracy,’ Wikler said. ‘These local races that determine the mechanics of American democracy are the ventilation shaft in the Republican death star. These races get zero national attention. They hardly get local attention. Turnout is often lower than 20 percent. That means people who actually engage have a superpower. You, as a single dedicated volunteer, might be able to call and knock on the doors of enough voters to win a local election.’” New York Times [link removed]



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