05/31/2022

Welcome to Democracy Docket’s newest newsletter, The Brief! 

We’re seeing an attack on voting rights unlike ever before and much of the fight is happening in courtrooms across the country. While these legal fights will directly affect voting rights, voters and elections for years to come, what is happening isn’t always accessible or understandable. And that’s what Democracy Docket set out to correct when we started our platform over two years ago, and why we launched this newsletter today.

At the end of each month, you’ll receive an exclusive in-depth review and analysis of the latest voting rights and redistricting developments, breakdowns of major cases and highlights of important facts and stats that are flying under the radar.

We are so excited to deliver this important information straight to your inbox. The battle for democracy is more crucial than ever, and we’re so glad you’re with us.

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In May, maps were finalized for the 2022 elections in four states, while courts reinstated voter suppression laws in Florida and Montana for upcoming elections. Outcomes were mixed, with both positive and disappointing decisions coming from state and federal courts. Let's get into it.

A Win for Mail-In Voting Came Out of Pennsylvania

A federal appellate court ruled that undated ballots — absentee ballots that are missing handwritten dates on the outer ballot envelopes, but are otherwise correctly filled out — in a Lehigh County, Pennsylvania judicial election must be counted. The ballots were previously rejected for missing these handwritten dates, but the court found that the ballots should be counted because forgetting to write a date on an envelope is a minor omission unrelated to a voter’s eligibility. Unfortunately, a Republican candidate in the judicial election has already asked the U.S. Supreme Court to pause the appellate court’s ruling. What the Supreme Court says may play a role in the ongoing recount of ballots in Pennsylvania’s Republican Senate primary election, as U.S. Senate candidate David McCormick has filed a lawsuit to ensure undated ballots are counted.

• The verdict: This is a victory for the 257 Lehigh County voters whose ballots were previously rejected for immaterial reasons. But, this fight may not be over yet; keep an eye on this case page for updates as the lawsuit progresses in the Supreme Court.

Maps in Four States Met Their Fates (At Least Temporarily)

Over the course of May, Florida’s unfair congressional map has been blocked and unblocked multiple times — and the fight is not over yet. On May 11, a trial court judge temporarily blocked the state’s congressional map for diminishing Black Floridians’ ability to elect the candidates of their choice in northern Florida, which is not a huge surprise considering that Gov. Ron DeSantis (R) drew the map after the Legislature’s versions didn’t meet his goal of eliminating Black voting power. However, after a series of ping-ponging between Florida’s state courts, DeSantis’ map is now back in place while an appeal is litigated.

• The verdict: Even though the trial court found that DeSantis’ map targeted Black voters, it remains in place for the time being. But, we haven’t reached the end of this battle yet. Once the fight over whether or not to temporarily block the map for upcoming elections is resolved, the fight over the constitutionality of the map will begin.

Back in April, a trial court struck down Kansas’ new congressional map after finding that it is an extreme partisan gerrymander that favors Republicans and dilutes minority voting strength in violation of the Kansas Constitution. The state appealed this ruling to the Kansas Supreme Court, which then reversed the decision of the trial court. At this time, we don’t have a full opinion explaining the court’s rationale, but we know a majority found that the new map did not violate the Kansas Constitution.

• The verdict: Kansas’ Republican-drawn congressional map — previously blocked for diluting minority voting strength and being a partisan gerrymander that likely eliminates the state’s only Democratic district — is back in place for future elections. 

New York’s maps and elections have been a hot topic in courtrooms and newsrooms over the past month. On May 21, a state trial court adopted new congressional and state Senate maps drawn by a court-appointed special master after previous versions were overturned for violating the New York Constitution. Because of this lawsuit and subsequent map redrawing, primary elections for congressional and state Senate races have been delayed from June 28 to Aug. 23.

• The verdict: New York has new congressional and state Senate districts. While the maps have been deemed more competitive than previous versions, the congressional map has already caused a dramatic and chaotic shakeup among the state’s Democratic delegation.

The fight over Ohio’s legislative maps has spanned seven months, and it looks like it may finally be over (knock on wood). Back in April, the Ohio Redistricting Commission was ordered to draw a fifth set of legislative maps after its four previous iterations were all found to violate the Ohio Constitution. Instead of following the court’s orders, the Commission resubmitted the third version of legislative maps that were already blocked for being unconstitutional. Surprise, surprise: the state Supreme Court also tossed out these maps (again) last week. Because a federal court said it would give the state until May 28 before imposing the third set of maps to allow legislative primary elections to proceed, the Commission clearly gave up on trying to pass legal districts and just waited for the federal court to enact the maps the commissioners wanted. As promised, over the weekend the federal court imposed the third set of maps for 2022 elections and ordered legislative primary elections for Aug. 2. Despite a constitutional amendment enacted by voters specifically to avoid this type of partisan gamesmanship, the Commission’s blatant disregard of the amendment caused whiplash for voters and election administrators as maps were drawn and tossed out again and again.

• The verdict: The good news is that Ohio finally has legislative districts in place for the 2022 election cycle, but the bad news is that these maps were already found to violate the Ohio Constitution. This means that Ohio voters will go to the polls and vote for candidates running in districts that have explicitly been deemed unconstitutional — a disappointing outcome after a hard-fought battle for fair maps.

Voter Suppression Laws Temporarily Reinstated for Upcoming Elections in Florida and Montana

There was cause for celebration in March when a federal district court judge blocked harmful provisions of Florida’s new voter suppression law, Senate Bill 90. This celebration quickly ended when the 11th U.S. Circuit Court of Appeals paused this ruling in early May and reinstated two blocked provisions: a line-warming ban that prohibits “any activity with the intent to influence or effect of influencing a voter” within 150 feet of polling locations and drop box restrictions severely limiting access to this popular method of voting. Despite the mountains of evidence presented during a multi-week trial supporting the conclusion that these provisions intentionally discriminate against Black Floridians, the 11th Circuit applied the Purcell principle and decided it was too close to Florida’s primary elections — scheduled for late August — to change any election rules.

• The verdict: Unfortunately, a line-warming ban and drop box restrictions are currently in place in the Sunshine State. But, this isn’t the end of S.B. 90 litigation: The 11th Circuit will now review the merits of the appeal to determine whether or not the district court’s rulings on the legality of S.B. 90 were correct and, in turn, whether or not S.B. 90 will live to see another election.

The Montana Supreme Court reinstated two previously-blocked voter suppression laws while an appeal challenging the laws moves forward. Back in April, a state trial court judge temporarily halted the enforcement of four challenged voter suppression laws. However, the state immediately appealed this decision to the Montana Supreme Court and asked it to reinstate two laws ending Election Day registration and creating new voter ID restrictions — which the court did. Some good news, though, is the two other previously-blocked laws, which banned ballot collection and prohibited election officials from mailing ballots to new voters who will be eligible to vote on Election Day but are not yet 18, remain suspended for upcoming elections. And, in another lawsuit the state agreed not to appeal a decision that struck down a law that banned voter registration activities on public college campuses.

• The verdict: We have a mixed bag of rulings in Montana. It’s a disappointment for voters that Election Day registration is no longer an option and new voter ID restrictions are in place for the state’s June primary elections while the state’s highest court decides the appeal. But, three other voter suppression laws remain blocked as a result of litigation.

New Lawsuits We’re Watching

Democracy Docket is currently tracking 133 active lawsuits, eight of which were filed in May. Below we highlight a few new cases you may have missed and break down the key details.

Arizona Mail-in Voting Challenge II

Who: The Arizona Republican Party and its chairwoman sued the Arizona Secretary of State Katie Hobbs (D), other election officials and the state of Arizona.

What: The Arizona Republican Party is challenging the state’s no-excuse mail-in voting system adopted in 1991 that allows any voter to cast a mail-in ballot.

Why: The lawsuit argues that the Arizona Constitution requires in-person voting on specific days and, because mail-in voting does not follow these rules, it is unconstitutional and must be disbanded. Notably, this is the state Republicans’ second attempt to disband mail-in voting in Arizona after their first attempt was rejected by the Arizona Supreme Court.

Learn more Arizona Republican Party v. Hobbs here.

Georgia Wet Signature Challenge

Who: Vote.org, the Georgia Alliance for Retired Americans and Priorities USA sued the Georgia State Election Board and its members.

What: The plaintiffs are challenging Senate Bill 202’s wet signature requirement for absentee ballot applications, which requires applications to be signed with pen and ink in order to be valid. This means that digital or electronic signatures are not accepted.

Why: Since absentee ballot applications may be rejected for reasons that are unrelated to voters’ eligibility, potentially disenfranchising them, the plaintiffs allege that the wet signature requirement violates the Civil Rights Act and should be blocked by the court.

Learn more about Vote.org v. Georgia State Election Board here.

New Hampshire Legislative Redistricting Challenge

Who: New Hampshire voters sued New Hampshire Secretary of State David Scanlan (R).

What: The plaintiffs are challenging New Hampshire’s new state Senate and Executive Council districts drawn with 2020 census data.

Why: The lawsuit argues that the challenged districts are partisan gerrymanders that impermissibly favor Republicans in violation of the New Hampshire Constitution. The plaintiffs are asking the court to block the maps before the 2022 elections.

Learn more about Brown v. Scanlan here.

Facts, Stats and Testimony

Amidst the chaos of the 2020 general election, Georgia was on everyone’s minds, especially when it became apparent that the fate of the U.S. Senate hinged on the outcome of two runoff elections. While voting rights advocates and election administrators did everything they possibly could to ensure that voters could safely cast their ballots, some people took extreme steps to do the exact opposite. 

You may or may not have heard of True the Vote (TTV) before, but this organization was behind massive efforts to overturn the 2020 presidential election results so that Trump could remain in office. When the group failed to deliver, its members turned their attention to the Georgia Senate runoff races to try to secure Republican victories by conducting the largest mass challenge of voters in Georgia history. 

Based on change of address data and faulty matching methods, approximately 360,000 Georgians (who were disproportionately Black, brown and young voters) were identified for allegedly being ineligible to vote. Despite the fact that TTV knew its methodology for identifying voters was riddled with errors and many identified people were still eligible to vote in the Peach State, TTV moved forward. Many challenged voters only learned that their eligibility was being questioned when they saw their name posted online or when they tried to vote and were told they had to cast a provisional ballot. Unsurprisingly, these tactics led many voters to feel threatened and intimidated, with some even expressing hesitancy to vote again. If you want to learn more about TTV’s actions, dive into the 979 pages of evidence in this filing — it’s alarming, to say the least. Here’s what two voters said about their experience of being challenged:

• “I feared that I could—or my family could—become the next target of harassment from True the Vote and their supporters for having voted, especially because my name and address had been published online and I had been publicly identified as a challenged voter.”

• “I am a Black voter and a veteran, and I grew up in an era of segregation when it was common for public officials and certain members of our communities to make it difficult for us to vote. Having to deal with these kinds of obstacles still today is both discouraging and aggravating, and makes it seem like we should just give up.… I wonder if it is even worth trying to vote again given the trouble that the voter challenge has caused me.”

TTV’s mass challenge efforts are the focal point of a lawsuit, Fair Fight v. True the Vote. Hopefully this litigation will put an end to TTV’s intimidation tactics, though mass voter challenges in Georgia unfortunately don’t seem to be going away any time soon.

What To Look Out for Next Month

While we wait for key decisions to drop in Louisiana, New Hampshire, Pennsylvania and Wisconsin, we’re also keeping an eye on two interesting developments (and you should too): 

• Three Republican legislators in Texas are trying to get out of explaining their motives behind Texas’ new redistricting maps by claiming they are protected by legislative privilege. When they didn’t get their way in the lower courts, they went to the U.S. Supreme Court asking it to weigh in. While the depositions have since been postponed (meaning the Court won’t rule quickly on this issue), it’ll be interesting to see what the nation’s highest court says, if anything, on the idea that legislators are protected from answering questions about their direct actions and motives behind potentially illegal maps.

• In Nevada, Republicans are trying to drastically expand election observation activities in two Nevada counties, asking state courts to allow election observers to be present at “every step of the election,” including at drop boxes and voting machines, and allow the inspection of ballots — things that neither the Nevada secretary of state nor local election officials want. While judges have so far been skeptical of the Republicans’ claims and denied their requests for immediate relief for upcoming elections, it’s absurd that these demands are even being asked in the first place.

Democracy remains on the docket, and court activity will only ramp up between now and the end of the year. For a more comprehensive preview of what to expect in the coming month, look for our June Litigation Look Ahead coming out tomorrow.

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