04/08/2022

John,

There are no perfect elections, only fair ones.

In any election there will be some citizens prevented from voting and legal votes not counted. It is a tragedy that is built into a system that relies on machines and people to do the best they can. A free and fair election assumes that those errors are rare and unintentional.

But what if they are not?

We cannot rule out the possibility that voting rights can be suppressed and the counting and certification process corrupted to such an extent that the resulting election will not meet the minimum standards to be called fair and free.

And the fact that Trump falsely claimed that the election in 2020 was not legitimate should not paralyze us from preparing for the possibility that a future election could fail that test.

Read “We Can’t Ignore Republican Attempts to Undermine Free and Fair Elections” on Democracy Docket now.

Let’s keep up the fight,
Marc

It’s Official — Supreme Court Justice Ketanji Brown Jackson

“As I’ve said over and over again, there are three words that I think best fit Judge Jackson: brilliant, beloved, belongs,” declared Senate Majority Leader Chuck Schumer (D-N.Y.) on the Senate floor, right before the final vote to confirm Judge Ketanji Brown Jackson to the U.S. Supreme Court.

Jackson was confirmed yesterday afternoon on a 53-47 vote. Republican Sens. Susan Collins (R-Maine), Lisa Murkowski (R-Alaska) and Mitt Romney (R-Utah) joined Democrats in supporting the nominee.

Jackson is the first Black woman to serve on the Supreme Court and only the eighth justice who is not a white man in the Court’s 233-year history. Beyond the frames of race and gender, Jackson’s legal background is also unique. There has never been a public defender on the Court, nor a single criminal defense lawyer for several decades.

In upcoming years, the U.S. Supreme Court will come face to face with defining moments for our democracy. Get to know the newest, history-making Supreme Court justice here.

Arizona’s New Law Could Strip Away Voting Rights From Thousands

In 2022, Arizona has had no shortage of legislation seeking to restrict the right to vote. Last Wednesday, Gov. Doug Ducey (R) signed House Bill 2492, the first of these bills to pass the Legislature, into law, reestablishing a proof of citizenship requirement for all voters. In his signing statement, Ducey argued the law furthers Arizona’s position as a leader in election integrity by ensuring noncitizens aren’t voting — even though there’s no evidence noncitizens vote in any significant number.

What’s more, H.B. 2492 likely runs afoul of a U.S. Supreme Court ruling and could endanger the voting rights of thousands of otherwise eligible Arizonans. Read “Arizona’s New Voter Suppression Law” for the full story.

After going back and forth between chambers, the Georgia General Assembly passed a bill that empowers the Georgia Bureau of Investigations to investigate election crimes. The bill, which awaits action from Gov. Brian Kemp (R), “would undermine our democracy by giving new sweeping powers for the Georgia Bureau of Investigations that effectively green light the intimidation of both voters and election officials,” according to Fair Fight. We wrote last week about this concerning trend of criminalizing elections, which started with Florida’s proposed Office of Election Crimes and Security.

AND MORE:

• Yesterday, Kentucky Gov. Andy Beshear (D) signed a new election bill into law. The law makes several changes to protect election workers and expand voting and passed both chambers of the Kentucky General Assembly with bipartisan support.

Redistricting Madness: The Final Three

Just three states have yet to enact new congressional maps for this year’s midterms. The three laggards have one thing in common: despite Republicans having full control of redistricting, the process has stalled due to Republican infighting.

• Florida
  • The Opponents: Gov. Ron DeSantis (R) and Republicans in the Florida Legislature
  • The Conflict: Northern Florida’s 5th District — and DeSantis unexpectedly stepping into the redistricting process
• Missouri
  • The Opponents: Missouri House of Representatives and Missouri Senate
  • The Conflict: Dismantling a Democratic Kansas City-based seat, appeasing conservative hardliners in the state Senate and other changes to the eight districts
• New Hampshire
  • The Opponents: Gov. Chris Sununu (R) and Republicans in the New Hampshire General Court (the state Legislature)
  • The Conflict: To radically change the state’s two districts for the first time in over a hundred years or not

Read the full story and what’s to come next in “Redistricting Madness: The Final Three.”

More Maps Head to Trial

As infighting continues in Missouri, three Republican voters filed a lawsuit asking the court to order the creation of a new congressional map and reopen candidate filing. This is the third impasse lawsuit to be filed in Missouri this cycle, but only one of two active cases. The first lawsuit, filed by a Republican House candidate, was voluntarily dismissed by the plaintiff.

Tennessee’s state Senate map is temporarily blocked as litigation continues. Democratic voters are challenging both the state House and Senate maps for unnecessarily splitting counties, alleging that the GOP-controlled Legislature drew districts “to ensure maximum partisan advantage for the incumbent Republican supermajority.” Yesterday, a state three-judge panel temporarily blocked the state Senate map, but declined to block the state House map.

AND MORE:

• Lawsuits challenging Kansas' congressional map headed to trial on Monday. The plaintiffs are arguing that the map is a Republican gerrymander and dilutes minority voting strength in violation of the Kansas Constitution. The trial is set to wrap up this upcoming Monday. Find all of the case documents here.


• A trial also began this week over Kentucky’s congressional and state House map. The plaintiffs argue both maps are GOP partisan gerrymanders and unnecessarily split counties.

Judge Blocks Four Montana Voter Suppression Laws

A big court win in Big Sky Country. A state trial court judge in Montana temporarily blocked four voter suppression laws from being enforced as litigation continues. The ruling comes after a preliminary injunction hearing was held in three lawsuits. The plaintiffs in the consolidated case collectively sought to block four laws that:

• End Election Day registration, an option that had been in place in Montana for 15 years;
• Narrow the list of eligible voter IDs, excluding student IDs (meanwhile, concealed carry permits count);
• Prohibit ballot collection efforts completed in exchange for a “pecuniary benefit” (financial compensation); and
• Block election officials from mailing ballots to new voters who will be eligible to vote on Election Day but are not yet 18.

Read more about the order here. A full trial is expected to take place in June, but blocking the four laws while the lawsuit moves forward is good news for voters — the judge concluded that the plaintiffs are likely to succeed on the merits and prove the laws impose undue burdens on the right to vote.

The Arizona Supreme Court declined to hear a GOP lawsuit challenging Arizona’s extremely popular no-excuse mail-in voting system. However, the issue was over jurisdiction — the court held that two claims could not be decided without a factual record developed in a lower trial court and that one of the claims was brought against the wrong defendant. Arizona Republicans may re-file in a different venue. We’re keeping a close eye on any new lawsuits that may argue that the Arizona Constitution does not allow for any system of early voting — especially in a state where an estimated 89% of voters voted early (including with mail-in ballots) in 2020.

AND MORE:

• More back and forth on North Carolina’s felony disenfranchisement law: After a trial court order allowed individuals with felony convictions (who were finished with incarceration and on community supervision) to register to vote last week, a court of appeals granted a temporary pause of that ruling pending resolution of the appeal.


• Voting in New York will become easier for residents with disabilities after the New York State Board of Elections agreed to settle a lawsuit originally filed in 2020 on behalf of several disability rights groups. Read more about the agreement here.


• After a judge denied a preliminary injunction for a Kansas voter suppression law last fall, oral arguments were held this Thursday for the appeal of that decision. Learn about the case here.


• On Thursday afternoon, Florida appealed to reinstate three provisions of the voter suppression law a lower court judge struck down last week.


• As it appears, April showers bring…even more court action! In “Litigation Look Ahead: April,” we highlight cases with likely court action over the next month. Read through for what to expect in both redistricting and voting rights cases.

How Secretaries of State Can Lead the Fight to Strengthen Democracy

By Tanisha M. Sullivan, president of the Boston branch of the NAACP and candidate for secretary of the commonwealth in Massachusetts. Read more ➡️

Why are some decisions automatically stayed when appealed, but others aren't?

You are probably thinking of the recent decision in New York, where a judge blocked redistricting maps and as soon as the state appealed, the decision was automatically stayed, or paused. An automatic stay is quite common in many state courts when the state is the defendant. If a trial judge rules against the state, the law remains in effect until the highest state court has a chance to consider it. We saw this happen recently in Pennsylvania as well.

How do we address the issue of long lines at the polls? I think voting at the polls should be quick, not an hours-long affair.

You are right that long polling lines are rampant in the United States. The first test is to stop celebrating long lines as a show of voter enthusiasm and start confronting them as a sign that the system has failed. Several years ago, there was a national bipartisan commission that said no one should wait more than 30 minutes in line to vote. They were right. That is why, last year, I proposed a system to ensure that is the case.

Thanks to Liam and TJ 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.

The North Carolina and Ohio Supreme Courts made crucial decisions stopping Republican gerrymandering this cycle. We’re reading Bolts’ reporting on the five seats up for grabs this election year in these two states. 

According to Ballotpedia, 87 state Supreme Court seats in 32 states are up for election in 2022. Learn what races are happening in your state here.

For a quick explainer video of the gerrymandering we’ve seen across the country, watch FiveThirtyEight’s coverage about Alabama’s congressional map. “This is a really unique chance for us to really think about Black communities, race, the law and the purpose of democracy in our country,” Evan Milligan, the plaintiff in one of the Alabama cases, told the Washington Post.