03/04/2022
Tomorrow marks two years since the launch of Democracy Docket. Here’s a little retrospective on year two:
In the past year we’ve published 140 articles. Out of all of our pieces, readers visited these pages the most:
In the past year, our database of court cases has grown by 150+ new cases, bringing us to a total of over 319 cases, all of which we are actively tracking and updating everyday.
And with a little help from our allies, we’ve published 63 Spotlight op-eds.
We’re also grateful for our growing community of more than 341,000 followers across Twitter and Instagram. We’ve also brought you all over 540 Democracy Alerts. To our loyal subscribers, we’ve delivered over 55 newsletters, like this one, to your inboxes.
We’ve launched weekly Twitter Spaces, now live for 10+ months. These live conversations with Marc cover the latest news in voting rights, redistricting and democracy and you can listen to recent recordings here.
All of this is thanks to our growing team, now eight people strong. And to all of YOU, who keep us inspired and ready to keep defending democracy!
Team Democracy Docket
All Eyes on the U.S. Supreme Court
Last Friday, President Joe Biden made his highly-anticipated Supreme Court pick: he nominated Judge Ketanji Brown Jackson to the nation’s highest court.
With her educational background, clerkship experience and current position on the U.S. Court of Appeals for the D.C. Circuit, Jackson is a conventional choice in some ways. But, as the first Black woman on the highest court, she would also bring the perspective of a public defender, another first for the Supreme Court. Need the rundown on Jackson’s background and track record on democracy? We got you covered.
Before Jackson is confirmed, the Supreme Court has plenty of important business on its plate. This week, Republicans in North Carolina and Pennsylvania have filed two emergency applications in the Court over their respective congressional redistricting plans.
- North Carolina Republicans filed an emergency request asking the Court to block the state’s new congressional map. The map was drawn by court-appointed special masters and adopted by a state trial court after the first map was struck down as a partisan gerrymander.
- Similarly, Republicans in Pennsylvania — led by the architect of Texas’ draconian abortion law — filed an emergency application over the congressional map recently adopted by the Pennsylvania Supreme Court.
Both lawsuits advocate a fringe theory that state courts can play no role in federal redistricting, as the authority lies only with state legislatures. Both groups of Republicans want the Court to strike down the congressional maps adopted by their state courts. Responses to the application have already been submitted, so we expect a decision any day now — one that could impact ongoing redistricting in several other states and state courts’ ability to interpret their own constitutions. For more on SCOTUS’ role in redistricting read "Why Does the U.S. Supreme Court Get Involved in Redistricting?”
How Long Lines Affect Turnout
It’s as American as apple pie — long lines on Election Day, that is. Every year it seems we get story after story about Americans waiting in long lines to vote, a problem that may grow worse as officials in some states seek to close polling places. But what effect do long lines have on voters and their behavior in future elections? In our latest Data Dive, we explore a recent political science paper that seeks to answer this exact question. You can find the key takeaways here.
This week, voters headed to the polls in a state known for notoriously long lines. Ahead of Texas’ primary on Tuesday, about 30% of mail-in ballots were rejected in the state’s most populous counties. For comparison, the statewide rejection rate was less than 1% in 2020. This jump in rejections is attributed to new, strict requirements in the voter suppression law the Texas Legislature passed last fall.
SCOTUS’ Alabama Decision Impacts Georgia
A federal court won’t temporarily block Georgia’s new congressional and legislative maps for the 2022 elections. Three lawsuits had sought preliminary injunctions against the maps, which plaintiffs argue dilute the voting strength of Black voters in violation of Section 2 of the Voting Rights Act (VRA). Although the judge found that the maps likely violate the VRA, he cited the Supreme Court’s recent Alabama order and said it's too late to make changes for this election cycle. The cases will still go to trial; the judge explicitly "cautions that this is an interim, non-final ruling that should not be viewed as an indication of how the Court will ultimately rule on the merits at trial.” However, this is revealing for how SCOTUS’ shadow docket order regarding Alabama’s maps, and Justice Brett Kavanaugh’s non-binding concurrence, are already influencing the actions of lower courts.
New maps alert: In a 4-3 decision on Thursday evening, the Wisconsin Supreme Court adopted the congressional and legislative maps proposed by Gov. Tony Evers (D). Evers vetoed the maps passed by the Republican-controlled Legislature last fall, prompting impasse litigation to move forward. The state Supreme Court asked parties to submit map proposals that took a “least-change” approach, meaning that the new maps had to be as similar as possible to the maps enacted in 2011, and found that Evers’ proposals best satisfied this criteria.
New maps for Ohio’s legislative and congressional districts still hang in limbo. After the first and second set of legislative plans were struck down by the Ohio Supreme Court, the Ohio Redistricting Commission passed a third set of maps — a week after the court-ordered deadline. Opponents argue that the third set of legislative districts still favor Republicans and should not be used. Meanwhile, on Wednesday, Republican commissioners also adopted a new congressional map that barely differs from the original map that was struck down for partisan gerrymandering. Both maps are now with the state Supreme Court for review. Given how close upcoming elections loom on the horizon — and how little Republicans care about passing legal maps — it’s unclear right now which maps will be in place for 2022.
AND MORE:
- In the Pacific, Hawaii joins North Carolina and Ohio in having a court block the use of a newly adopted map. In February, voters in Hawaii challenged the state’s legislative districts, arguing that the new plans were “drawn almost exclusively behind closed doors and ignored the district within district requirements, seemingly to favor certain incumbent legislators in direct violation.” The Hawaii Supreme Court agreed, granting a preliminary injunction.
- A third lawsuit was filed against Kansas’ newly adopted congressional map. There are two other lawsuits challenging the district lines (as well as a lawsuit about the state court system’s ability to hear those challenges) and litigation is expected to move quickly.
Republicans Challenge Popular, Long-Standing Voting Laws
Beware in Delaware — even blue states aren’t immune from the GOP’s attack on voting rights. Last week, a lawsuit was filed challenging the state’s early and absentee voting laws. The plaintiff, who is represented by the chair of the Delaware Republican Party and the conservative Public Interest Legal Foundation, argues that Delaware’s laws creating 10 days of early voting and establishing a permanent absentee voter list violate the Delaware Constitution.
The Arizona Republican Party filed a lawsuit last Friday, challenging Arizona’s extremely popular no-excuse mail-in voting system, which has been in place since 1991. The petition alleges that the Arizona Constitution does not allow for any system of early voting, including absentee or mail-in voting. Because of this, the petitioners argue that Arizona’s early voting statutes should be struck down, in a state where an estimated 89% of voters voted early with a mail-in ballot in 2020. The lawsuit also focuses on two other issues related to mail-in voting: signature verification and drop boxes.
Pennsylvania Republicans passed no-excuse mail in voting in 2019 and now they want to repeal it. The state Supreme Court said not so fast. A lawsuit filed in July 2021 alleges that the Pennsylvania Constitution does not allow for no-excuse mail-in voting because it requires voters to cast a ballot in person at a polling place unless they fall into a specific category of absentee voters. A month ago, a lower court struck down the challenged law, Act 77, in its entirety, ruling that it was unconstitutional. The Pennsylvania Supreme Court blocked the lower court’s decision while the case is appealed, so Act 77 will remain in place for now.
AND MORE:
- As we head into March, we highlighted voting rights and redistricting cases across the country to keep an eye on over the month. Of course, new lawsuits will be filed, and pending cases are subject to scheduling conflicts, delays or case developments. But in the meantime, get up to speed with our first Litigation Look Ahead.
Mississippi’s Ballot Initiative Process is Broken. But It Needs to Be Restored Correctly.
By Arekia Bennett-Scott, executive director of Mississippi Votes. Read more ➡️
North Carolina's remedial congressional map is only in place for 2022, right? After that, will it be redrawn by the Legislature or the courts?
The remedial map is in place for 2022 and after that it will either have to be re-adopted or redrawn. The Legislature always gets the first shot in North Carolina. I expect that if Republicans in 2023 or 2024 come back with another partisan gerrymandered map, it will similarly head to the courts. And that's why I say democracy is on the docket — when the political branches fail, it is ultimately the job of the courts to protect the fundamental right to vote.
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Are you worried about how conservative the Supreme Court has become? Are states waiting to bring lawsuits to the Supreme Court so they can be overturned?
I’m always worried about the Supreme Court — the Court has a 6-3 conservative lean with a mixed record towards voting rights. However, it’s important to keep in mind that not every case goes to the Supreme Court, as some are in state courts and only a small fraction of federal cases are heard by the Supreme Court. And, while we have seen some victories in the Supreme Court, we increasingly see significant victories in state courts both in the redistricting and voting rights arena.
Thanks to Christina and Diane for asking questions this week – feel free to ask your own here or join today’s Twitter Spaces at 2 p.m. to ask Marc directly.
These days, everyone is fixated on SCOTUS. First, learn about the new nominee from a different perspective — through the eyes of Judge Jackson’s closest, longtime friends.
Meanwhile, the Supreme Court will hear several crucial cases; last week, the justices announced that they will take up a case that could erode laws protecting LGBTQ people. Learn more on how the justices may be prepared to go even further and dismantle the foundation of all non-discrimination laws (just as Texas launches an all-out attack on trans youth and their families).
ICYMI, the Strict Scrutiny podcast dived into the decision on Alabama’s congressional map from earlier this month.
