On The Docket
04/01/2022

IN THE NATION’S CAPITAL

The Constitutional Law Theory That Could Upend American Elections

Remember the emergency applications filed in the U.S. Supreme Court over redistricting? The Court denied the applications from Pennsylvania and North Carolina Republicans, guaranteeing fair maps in both states. While it was a big win for voters, the theories advanced by Republicans in those applications, if ever embraced by the Court, could radically change our electoral process.

The applications invoked a fringe constitutional theory known as the independent state legislature doctrine. The doctrine argues that state legislatures have special authority to set federal election rules, free from interference from other parts of the state government. Despite running contrary to precedent and history, the Supreme Court appears dangerously close to adopting it — with potentially disastrous ramifications for democracy. Learn more in “The Constitutional Law Theory That Could Upend American Elections.” [link removed]

Even if Congress has moved on from voting rights, the executive branch remains focused. This week, President Joe Biden released his 2023 budget proposal, which includes $10 billion for state and local elections administration. Additionally, the proposal contains funding to expand U.S. Postal Service delivery and "support for vote-by-mail, including making ballots postage-free and reducing the cost of other election-related mail." [link removed]

Last week, the administration released an in-depth report on Native American voting. ICYMI, we covered the common barriers to the ballot box for Native communities in a Data Dive last fall. [link removed]

IN THE STATES

Criminalizing the Voting Process

In January, Florida Gov. Ron DeSantis (R) asked the state Legislature to create a new Office of Election Crimes and Security, a special police force to investigate election crimes. Republican lawmakers dutifully complied, passing Senate Bill 524 in mid-March.

Georgia was quick to follow suit. The Georgia House passed House Bill 1464, a bill that would have similarly empowered the Georgia Bureau of Investigation (GBI) to investigate election crimes. Luckily, H.B. 1464 was gutted this Tuesday by a Senate committee, removing the GBI provision and other harmful requirements.

Yet, the overwhelming concern is that partisan agencies will be used to intimidate election officials, civic engagement organizations and voters, especially in historically marginalized communities.

In red states across the country, new laws have made it a civil or criminal offense to conduct much of the benign, but often important, work surrounding voting. These laws target election officials and third-party voter registration organizations that want to encourage more people to vote. Read our latest, “Criminalizing the Voting Process,” for more on how GOP lawmakers are penalizing well-meaning efforts to increase turnout. [link removed]

REDISTRICTING ROUNDUP

Special Sessions and Missouri Mishaps

Two Gulf Coast states held special sessions after gubernatorial vetoes. In Louisiana, during Wednesday’s special session, the Republican-controlled Legislature successfully overrode Gov. John Bel Edwards’ (D) veto of the congressional map. Edwards wanted the Legislature to draw a second majority-Black district. [link removed]

Florida Gov. DeSantis made good on his promise to veto the new congressional map. The Legislature's map preserved a majority-Black district in northern Florida that DeSantis opposes. Without the numbers to override the veto, the Legislature will hold a special session to draw new districts beginning on April 19. [link removed]

Understand the full scope of the Sunshine State’s Republican infighting in “Redistricting Rundown: Florida.” [link removed]

While lawmakers hammer out remaining disagreements, impasse litigation has already been filed.

It took the Missouri Senate two months to pass a congressional map. In January, the Missouri House approved a map with six Republican and two Democratic districts, similar to the current map. Conservative hardliners in the Senate filibustered in favor of an aggressive 7-1 map that would dismantle Rep. Emanuel Cleaver’s (D) Kansas City seat. The Senate finally reached an agreement last week, sending the House a 6-2 map that has other significant changes. House members want to head to a conference committee to reconcile differences, but the Senate has rejected this request. The candidate filing deadline was this past Tuesday, with no clear resolution in sight.

DISTRICTS ON THE DOCKET

Louisiana Legislature Overrides Veto, Faces New Lawsuits

Just hours after Edwards’ veto was overridden, two lawsuits were filed against the new Louisiana congressional map. Even though Black residents make up one-third of Louisiana’s population, they can only elect their candidate of choice in one out of the six congressional districts. Both complaints highlight the state’s long history of discrimination and argue that the map dilutes the voting strength of Black Louisianans in violation of Section 2 of the Voting Rights Act (VRA). Learn more about the lawsuit filed by a group of voters and civil rights groups [[link removed]] and the one filed on behalf of a group of Black voters. [link removed]

The newest impasse litigation lawsuit was filed in New Hampshire. With Gov. Chris Sununu (R) stating that he would veto the map passed by the Republican-controlled Legislature, and with Sununu’s own map proposal failing to move forward, the redistricting process stands at a stalemate. The lawsuit asks the court to block the current map and ensure a map based on 2020 census data is enacted before the 2022 election cycle. [link removed]

The Ohio Redistricting Commission continues to deprive voters of fair maps. The Commission passed a fourth set of legislative maps on Monday night, selecting plans that are only slightly edited versions of maps already struck down. The Commission hired independent map makers but ignored their recommendations. State auditor Keith Faber was the only Republican to vote against the maps and said he thinks "there's a decent chance that this map won't make the court's test." [link removed]
The Commission members are once again directed by the state Supreme Court to show cause for why they should not be held in contempt of court.

Meanwhile, an impasse lawsuit that was filed in federal court (the other happenings are taking place in state court) had a preliminary injunction hearing on Wednesday. The GOP-led lawsuit wants the federal courts to step in and adopt the third plan submitted by the Commission (which the Ohio Supreme Court previously struck down as unconstitutional). Find a summary of the day in court here. [link removed]

Yesterday, a state court judge blocked New York’s congressional and legislative districts. The judge agreed with GOP plaintiffs that, procedurally, the New York Legislature violated the state constitution’s redistricting process by bypassing the Independent Redistricting Commission to pass new congressional and state Senate maps (reasoning which the judge extended to the Assembly map, even though it was not challenged). The judge also held that the congressional map was unconstitutionally drawn with political bias. Notably, the decision to block the maps for elections this year will be automatically paused if an appeal is filed. [link removed]

AND MORE:
Where’s the newest DOJ lawsuit? South of Houston. The U.S. Department of Justice argues that Galveston County, Texas violated the VRA by intentionally choosing a new commissioners court plan that creates four districts that are predominantly white, denying Black and Hispanic voters the ability to elect their candidates of choice in any district in that county. [link removed]

After a trial court ruled last week that Maryland’s enacted congressional map unfairly benefited Democrats, the Legislature passed new congressional districts on Wednesday, sending the map to Gov. Larry Hogan (R) for signing. Meanwhile, the trial court's decision has been appealed. [link removed]

Republicans challenging Pennsylvania state courts' authority to draw a congressional map voluntarily dismissed their lawsuit on Monday. A three-judge federal panel had already dismissed two claims; the plaintiffs dismissed their last outstanding claim. [link removed]

On Monday, a motion to dismiss hearing was held in Kansas over its new congressional map. A full trial is set to start next week. [link removed]

IN THE COURTS

VICTORY: Florida’s Voter Suppression Law Struck Down

Florida’s notorious voter suppression law, Senate Bill 90, was passed in May 2021. Yesterday, the judge released a 288-page opinion following a two-week bench trial in February. The judge struck down three out of five challenged provisions — which you can read more about in our Case Watch — after concluding that they are “intentionally discriminatory” against Black Floridians in violation of the VRA and 14th and 15th Amendments. [link removed]

In an extraordinary move, the judge also placed Florida under preclearance requirements for the next 10 years — a power granted to federal courts under Section 3(c) of the VRA if they find that jurisdictions have engaged in intentional discrimination in voting practices.

Democracy Docket, Marc and a member of the trial team discussed this victory on Twitter Spaces yesterday. Listen to the recording here. [link removed]

Reminder: In 2021, seven states passed omnibus voter suppression bills. The first two of these laws have completed full trials and both were struck down: first Arkansas and now Florida. Five more states — Georgia, Iowa, Kansas, Montana and Texas — will face legal challenges in the coming months.

Arizona Gov. Doug Ducey (R) signed into law a restrictive proof of citizenship voting requirement. The law endangers the voter registration status of large numbers of Arizonans who registered using forms that don’t meet the law's citizenship verification standards (federal forms or pre-2005 state forms). [link removed]

Yesterday, a lawsuit was filed by Mi Familia Vota challenging this law. The lawsuit argues that this law violates the First and 14th Amendments by severely burdening the right to vote and potentially disenfranchising Arizona voters. The plaintiffs highlight how hundreds of thousands of voters could be impacted by this law, especially since it does not specify if or how voters will be notified that their registration has become invalid. ​​

AND MORE:
After striking down four voter suppression laws for violating the Arkansas Constitution, the same judge denied the defendants’ motion for a stay while the case is appealed:
“Having heard four days of trial testimony from lay and expert witnesses, reviewed the documentary evidence, and analyzed the pertinent law, it would be absurd for the Court to conclude that Defendants are likely to succeed on the merits of their appeal in the face of the proof adduced at trial and the legal standard the Court was required to apply to it.” [link removed]

On Monday, North Carolina’s felony disenfranchisement law (which denies the right to vote for individuals with past felony convictions who remain on probation, parole or a suspended sentence) was struck down as unconstitutional. Republican legislative leaders have appealed the decision. [link removed]

SPOTLIGHT

Why Some States Are Moving To Restrict Ballot Initiatives

By Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center. Read more ➡️ [link removed]

ASK MARC

Since the Arkansas ruling has been appealed, is there a possibility for the voter suppression laws to go back into effect?

The decision in Arkansas came after a full trial, after which the judge wrote detailed findings of facts and conclusions of law. On review, the Arkansas Supreme Court can review the law for legal mistakes, but it is essentially bound by those facts. When they read that decision, I hope the state Supreme Court justices will affirm it and those four laws will stay permanently enjoined.
…

What is the shadow docket, and what does it mean for SCOTUS to make a decision with it?

The shadow docket refers to the process by which the U.S. Supreme Court considers emergency petitions. These petitions ask the Court to deal with truly urgent matters. While the normal Supreme Court process (briefing, oral argument, full decision) covers many months, the shadow docket process can take place over the span of a few days. The cause for concern is that the Court is making more and more decisions in cases that have big consequences on such an expedited schedule with incomplete records.

Thanks to Amelia and Laura for asking questions this week – feel free to ask your own here [[link removed]] or join today’s Twitter Spaces at 2 p.m. ET to ask Marc directly. [link removed]

WHAT WE’RE DOING

Hydration to save the nation! Check out the latest in the Democracy Docket store — our new water bottle is available now! Order yours today and support our work (or check out the new water bottle and sticker bundle). [link removed]

We’re watching Forward Justice’s two-minute explainer video [[link removed]] that walks through how felony disenfranchisement impacts the ability of individuals to shape their own lives. Forward Justice won big in court this week — enfranchising over 56,000 North Carolinians who have completed their incarceration and are currently living in their communities on supervision. [link removed]

As we head into the month of April, we’re taking action:
Get involved with the Democratic Association of Secretaries of State, the absolutely crucial chief elections officers protecting democracy. [link removed]

Join Swing Left for a 30-minute volunteer orientation to find the most effective volunteer opportunities in the most competitive race near you. [link removed]



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Democracy Docket
PO Box 733
Great Falls, VA 22066
United States