On The Docket 06/10/2022

Happy Friday!

Welcome back! This week, we dive into how Pennsylvania’s ongoing tussle over mail-in ballots made it all the way to the U.S. Supreme Court. And, let’s see what SCOTUS did yesterday in its latest shadow docket order.

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SCOTUS Wades Into Pennsylvania’s Ballot Issues

A tussle over undated mail-in ballots in Pennsylvania reached the U.S. Supreme Court. A lawsuit focused on a county judicial race in Lehigh County, Pennsylvania held last fall centered on whether to count otherwise valid mail-in ballots that had undated return envelopes. The U.S. Supreme Court just issued a shadow docket decision yesterday weighing in on the debate. First, here’s how it got to the nation’s highest court: [link removed]

The plaintiffs sued in federal district court, arguing that not counting undated mail-in ballots violates the materiality provision of the Civil Rights Act of 1964 because ballots are rejected for an “immaterial technical defect.” In ruling in favor of the defendants, the district court decided that the materiality provision does not create a private right of action — meaning the plaintiffs cannot sue under this provision. [link removed]

The 3rd U.S. Circuit Court of Appeals rejected the reasoning of the district court, holding that the materiality provision does create a private right of action (and that the undated mail-in ballots should not be rejected for an “immaterial technical defect”). [link removed]

The Republican candidate in this race filed an emergency application in the U.S. Supreme Court asking it to pause the 3rd Circuit’s ruling. The Court granted that pause last week in an administrative order, but then they reversed course yesterday, denying the application asking to pause the lower court’s decision. [link removed]

Where this leaves us: the U.S. Supreme Court, in contrast to its trend of the past few years, sided with the voters in Lehigh County. While there is no majority opinion accompanying this unsigned order, by allowing the 3rd Circuit’s decision to remain in effect, these ballots can be counted. This is a win for voters whose ballots were previously rejected for a minor omission.

In other undated-Pennsylvania-mail-in-ballot news, U.S. Senate candidate David McCormick conceded to Dr. Mehmet Oz in the race for the Pennsylvania Republican nomination last Friday, five days before the full results of an ongoing recount were set to be released. “We spent the last 17 days making sure every Republican vote was counted,” McCormick told supporters on Friday evening, a day after a state court granted his request to count valid, but undated, mail-in ballots. Oz was leading by less than 1,000 votes, but it appeared that McCormick decided he could not make up that lead with the around 850 outstanding undated mail-in ballots. [link removed]

Concession or not, the recount results were released on Wednesday: Oz won the primary election by 951 votes (a count that supposedly does not include the contested undated mail-in ballots).[link removed]

Louisiana Map in Legal Limbo; Special Session Called

On Monday, Louisiana’s congressional map was struck down for the 2022 election cycle after a judge found that the map likely violates Section 2 of the Voting Rights Act. While we wait for updates on the appeal, Gov. John Bel Edwards (D) called a special legislative session to redraw the map. The session is set to begin on June 15 and lawmakers will be tasked with drawing a map where Black voters constitute a majority in two out of the state’s six districts. [link removed]

Jan. 6 Details Emerge in Public Hearings

Yesterday evening, the U.S. House’s Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol held its first public hearing. There will be several more over the next two weeks as the House exercises its oversight powers to ensure fact-finding and accountability. [link removed]

“The events of Jan. 6 were neither the end of the Trump era nor a precursor to 2024. Instead, they were the continuation of a multi-year plan for Republicans to maintain majority power with a shrinking share of popular support,” wrote Marc this past January. [link removed]

“Keeping Jan. 6 participants out of office does not just mean making sure Trump can’t run again in 2024. We must ensure that any participants in the insurrection cannot win seats on our school boards, town and city councils or state assemblies,” wrote Christina Baal-Owens, executive director of Public Wise. [link removed]

“Using the word ‘insurrection’ to label the Jan. 6, 2021 attack on the U.S. Capitol isn’t just a matter of language. It carries with it serious constitutional ramifications.” Read more about the 14th Amendment’s disqualification clause here. [link removed]

Nevada GOP Hopes To Implement Voter ID Law via Ballot Initiative

Earlier this spring, a lawsuit successfully stopped a Republican-led initiative from being placed on the ballot. Now, another group is seeking to use the petition process to create a new photo ID requirement for in-person voting, limit acceptable IDs that voters can present to cure a mismatched signature and require the state to provide free photo IDs in certain circumstances. [link removed]

In Nevada, Republicans are trying to circumvent the Democratic-controlled Legislature and governor by placing the question in front of the general population instead. Here’s the problem — these restrictive voting laws would have widespread impacts on voters, but the groups circulating the signature petitions are concealing the negative repercussions.

A new lawsuit is challenging this latest attempt to place the strict voter ID proposal on Nevada voters’ ballots in November. The lawsuit asks the court to declare the initiative invalid because the description is “confusing, deceptive, and misleading, and does not sufficiently explain the major ramifications” and asks for an unfunded expenditure. [link removed]

Nevada is one of the more competitive states in the country, but there has been slim Democratic control of the state government for the past few years. [link removed]

We’ll be closely watching its primary election next Tuesday, where election deniers are competing for the GOP’s nominations, including for secretary of state. The term-limited incumbent is a Republican who was censured by her own party for announcing that there was no evidence of fraud and defending the results of the 2020 election in the Silver State. [link removed]

More News
Primary elections took place this past Tuesday in California, Iowa, Mississippi, Montana, New Jersey, New Mexico and South Dakota. As we move further into this election cycle, don’t take your eyes off of state Supreme Courts. While these judicial elections are typically under the radar, the importance of these races cannot be overstated. Read more here. [link removed]

The New York City Council passed a law last December that allows legal residents who are not citizens to vote in municipal elections. This past Tuesday, a hearing took place in a lawsuit challenging that law. Learn what New York City’s law actually means. [link removed]

Rep. Nikema Williams (D-Ga.) led the introduction of the Sustaining Our Democracy Act, the House companion to what Sens. Elizabeth Warren (D-Mass.) and Amy Klobuchar (D-Minn.) introduced in the Senate two weeks ago. The bill would provide $20 billion in federal funding over the next decade for state and local election administration. [link removed]

SPOTLIGHT: Voter Suppression Is Youth Suppression

By Cristina Tzintzún Ramirez, president and executive director of NextGen America. Read more ➡️ [link removed]

What We’re Doing

The U.S. Department of Justice recently released its guide on voting after a criminal conviction. Nearly 18 million Americans with past convictions can vote right now, they just may not know it. In this election year, help amplify Campaign Legal Center’s Restore Your Vote tool, which clarifies state-by-state voting rules for those with felony convictions. [link removed]
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South Dakota Republicans are working hard to undermine the ballot initiative process because they simply don’t like what citizens are voting in favor of. Luckily, on Tuesday, South Dakotans resoundingly rejected a GOP amendment trying to raise the threshold to pass ballot initiatives, but it’s happening elsewhere. The Ballot Initiative Strategy Center wrote about this exact phenomenon for our Spotlight series. [link removed]

When We All Vote is hosting its inaugural Culture of Democracy Summit from June 10 to 13. Sign up here to watch today’s live events (P.S. The 9 a.m. PST panel features Marc and Sherrilyn Ifill, president and director-counsel emeritus of the NAACP Legal Defense Fund). [link removed]

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Have a question? Join Marc and and Democracy Docket today on Twitter Spaces at 2 p.m. EST for a discussion and Q&A on the latest democracy news. (Twitter Spaces is like a podcast, but live. You can listen to it without having a Twitter account.) [link removed]

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