On The Docket 06/17/2022

Welcome back!

This week, the Jan. 6 hearings resumed, revealing more damning details on elected Republicans’ complicity in the attacks. Across the street from the U.S. Capitol, the U.S. Supreme Court set its October oral argument schedule, docketing a high stakes Voting Rights Act (VRA) case over Alabama’s congressional map.

If you missed our Wednesday email, make sure to read Marc’s latest, “Calling B.S. On Trump’s ‘Team Normal.’” [link removed]

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Louisiana Lawmakers Tasked With Redrawing a Fair Map

The legal future of Louisiana’s congressional map remains up in the air. Last week, a district court found that the map likely violates Section 2 of the VRA by diluting the voting strength of Black Louisianans. The judge ordered the Louisiana Legislature to redraw the congressional map with a second majority-Black district. The defendants, including the Louisiana secretary of state, immediately appealed.

In a turn of surprisingly good news, the 5th U.S. Circuit Court of Appeals declined to reinstate the map while the appeal is being litigated. [link removed]

The 5th Circuit found that the Republican Legislature did not prove that it was likely to succeed on the merits of its appeal, so pausing the lower court decision was unwarranted. The court also rejected the Legislature’s claim that the Purcell principle — the idea that courts should not change voting or election rules too close to an election in order to avoid confusion for voters and election officials alike — prohibits the district court from ordering changes to Louisiana’s congressional map. Because of Louisiana’s unique election system, primary elections for Congress won’t take place until November. [link removed]

Louisiana Gov. John Bel Edwards (D) convened a special session for the redraw that began this past Wednesday. The remedial map is due on June 20, though legislative leaders requested an extension of this deadline, which the judge denied. Republican lawmakers are clearly dragging their feet in fulfilling the court order; several other state House members have already indicated they have no interest in voting for a map that creates a second majority-Black district.

Meanwhile, the 5th Circuit has set an expedited schedule for the appeal with an oral argument scheduled for July 8.

Vote.org’s Big Win Against Texas

Yesterday evening, a favorable ruling came down in a case over Texas’s “wet signature” voter registration law, which required voters who submitted voter registration forms via a smartphone or fax machine to also submit signed paper copies. It was a technical, little known rule that makes it harder to register to vote, especially for prospective voters without a printer. Vote.org sued the state of Texas for violating the U.S. Constitution and Civil Rights Act of 1964 and won a permanent injunction blocking the law from remaining in effect. Learn more about “wet signature” requirements here. [link removed]

What’s at Stake in the 2022 Election Cycle

Primary season is well underway. Every Tuesday in June and less frequently throughout the summer, there are new election results to consider. This week, Maine, Nevada, North Dakota and South Carolina held their primaries.

Election denier and former state Rep. Jim Marchant won Nevada's Republican primary for secretary of state. He said he wouldn't have certified the 2020 election in Nevada and would consider sending "alternate electors" in 2024. He has no business becoming Nevada’s chief election officer. Learn more about Marchant and other “Big Lie” candidates running for secretary of state here. [link removed]

Elsewhere in Nevada, Trump-endorsed candidate Adam Laxalt secured the GOP nomination to face incumbent U.S. Sen. Catherine Cortez Masto (D-Nev.) in November. Laxalt led the effort, including in the courts, to undermine the results of the 2020 election in the Silver State.

What’s at stake this November? If there’s a year to equip yourself with knowledge of your ballot, this is it. From your redrawn congressional district (which could change before 2024) to the local official who administers elections in your town or county, democracy hangs in the balance in every race in every state. Read more on what you can expect here. [link removed]

Heads Up: Alabama Goes to SCOTUS

This week, the U.S. Supreme Court released its October oral argument schedule. On Tuesday, Oct. 4, the Supreme Court will hear arguments in Milligan v. Merrill and Caster v. Merrill over whether Alabama’s congressional map violates the VRA and U.S. Constitution. [link removed]

Let’s rewind: In January, a lower court ordered Alabama to adopt a new congressional map with two majority-Black districts. Black voters, who compose one-third of the state’s population, can currently only elect the candidate of their choice in one of the state’s seven districts. Instead of redrawing a fair map, the state of Alabama accelerated the case to the nation’s highest court. [link removed]

Remember, SCOTUS typically has broad authority to choose the cases it hears, selecting the smallest sliver of all the cases that request review. There are some exceptions though, including most redistricting cases. Federal law mandates that any lawsuit that challenges the constitutionality of a congressional or state legislative map is required to be heard by a three-judge panel rather than a single district court judge. Then, any decision from this panel can be brought directly to the Supreme Court. [link removed]

In February, the Supreme Court paused the lower court’s decision and reinstated Alabama’s previous congressional map containing only one majority-Black district for the 2022 elections. This decision, delivered in an unsigned order, took place on SCOTUS’ shadow docket. However, two justices wrote a concurrence that clued us into their reasoning: It was too close to Alabama’s election cycle to alter district lines (Alabama’s primary elections were four months away and the general election was nine months away when the order dropped). It was a generous (or simply bad-faith) use of the Purcell principle. [link removed]

The implications could be big: The previously-mentioned law that takes redistricting cases straight to SCOTUS has another caveat: The Court must decide the merits of the appeal but it does not have to hold an oral argument to do so. The fact that the Court chose to proceed with a full hearing in the Merrill cases indicates that the justices may be prepared to make a decision with broader implications. The question the Court will answer: “Whether the State of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated section 2 of the Voting Rights Act.”

Even more: Read this Washington Post article to understand the human costs of gerrymandering and Alabama’s long history of denying Black political power. [link removed]

More News

The New Hampshire Legislature passed a problematic bill that would require Election Day registrants without proper photo IDs to submit a special “affidavit ballot” which will only be counted if voters mail a copy of their ID within seven days. Currently, voters lacking photo IDs can sign a legally binding statement to verify their identity that permits their vote to be counted. The bill now awaits a signature or veto from Gov. Chris Sununu (R). [link removed]

Last week, Rhode Island Gov. Dan McKee (D) signed the “Let RI Vote Act” into law, making permanent the temporary voting expansion enacted for the 2020 election. The law makes Rhode Island the 34th state to allow any voter to vote by mail for any reason. Learn more about the pro-voting legislation here. [link removed]

“The sad truth is that, in what should have been the first test of Ohio redistricting reforms this year, Ohioans lost, and partisanship won — at least as far the 2022 pitched battle over General Assembly and congressional redistricting is concerned,” writes the Editorial Board of cleveland.com and The Plain Dealer. [link removed] If you need to catch up on what went down in Ohio, and where the maps stand as elections near, read our recap here. [link removed]

A warning sign for election chaos to come: In Otero County, New Mexico, the Republican commission, which includes the Cowboys for Trump co-founder, refused to certify primary election results based on unfounded conspiracy theories. On Wednesday evening, the New Mexico Supreme Court ordered the commission to certify the results by today. [link removed]

SPOTLIGHT: How We Broke Voting Records in Harris County

By Chris Hollins, clerk of Harris County, Texas during the 2020 election. Read more ➡️ [link removed]

What We’re Doing

We’re halfway through the month of June; listen to the Strict Scrutiny podcast’s special Pride episode to learn about ongoing litigation around LGBTQ rights. [link removed]

Yesterday, the U.S. Supreme Court held a cert conference, considering whether or not to hear a North Carolina redistricting case. If SCOTUS chooses to hear the case, they will contend with a far-fetched legal theory, the independent state legislature (ISL) doctrine, that could upend our elections.

What exactly is the ISL doctrine? Join us on Twitter Spaces today to find out from special guest Daniel Squadron, co-founder and executive director of The States Project. Here’s what we recommend reading in advance: [link removed]

Our Explainer on the ISL doctrine. [link removed]

Daniel’s Spotlight on how the future of our democracy will come down to state legislatures. [link removed]

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Have a question? Join Marc and Daniel Squadron 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]

Can't join the conversation? Listen to recent recordings here. [link removed]


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