The Brief
06/27/2022

Welcome back to The Brief — our monthly newsletter that delivers an exclusive, in-depth review and analysis of the latest voting rights, redistricting and democracy developments straight to your inbox. The battle for democracy is more crucial than ever, and we’re so glad you’re with us. Forward this to a friend, family member or colleague! If you received this email from someone else, you can subscribe here. [link removed]

School may be out for the summer, but courts certainly are not. We have a lot of legal updates to cover in this month’s newsletter. As you read, you may start to pick up on a pattern: multiple states were breeding grounds for far-fetched and unsubstantiated Republican lawsuits seeking to limit voting access, but courts weren’t having it. Over the course of June, we saw many pro-voting court rulings that rejected baseless Republican claims and preserved the sacred right to vote.

We are constantly reminded of the immense impact court decisions can have on our rights. No decision underscored this more recently than Friday’s devastating ruling released by the U.S. Supreme Court that eliminated the constitutional right to an abortion. States now have the unilateral authority to determine who can access this vital form of health care — you can donate to support abortion funds here and find resources here. [link removed]
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Let’s get right into it.

Redistricting winds down for 2022, but the fight continues.

Redistricting has wrapped up for the 2022 elections in all but one state: Louisiana. (But, not to worry, fights over districts will continue long past this fall.) As map drawing played out over the last few months, a troubling pattern emerged among Republican-controlled legislatures in key states. Legislators flagrantly disregarded the will of voters and court orders — not to mention failed to simply do their job. We saw this happen in Florida, more than once in Ohio and most recently in Louisiana. [link removed]

The spotlight is on Louisiana as the state's congressional map takes center stage in three — yes, three — different federal courts. In early June, a federal district court judge temporarily blocked the map after finding it likely violates the Voting Rights Act (VRA) by diluting the voting strength of Black Louisianans and ordered the Legislature to draw a new map, a win for the state’s Black voters. This victory was then preserved when the 5th U.S. Circuit Court of Appeals declined to reinstate the map while it decides the appeal. The litigation got more complicated when the state, instead of complying with the district court’s order to draw a new map, went to the U.S. Supreme Court asking it to reinstate the map for the 2022 elections. This means that voting rights organizations and voters are fighting to preserve the district court win in three different court levels: they are advocating for a new fair map before the district court during its remedial map-drawing process, defending the block on the map in the 5th Circuit and opposing the state’s request asking the Supreme Court to reinstate the map for this year’s elections. [link removed]
The verdict: The district court’s ruling was a huge win for Louisiana’s Black voters, who were only adequately represented in one out of six congressional districts under the blocked map, despite making up one-third of the state’s population. While it’s unsurprising that the state is trying to undo this win, this victory shows how the VRA remains a crucial tool for protecting minority voters. [link removed]

Attempts to curb mail-in voting fail on multiple fronts.

Republicans’ attempts to curb mail-in voting during the 2020 election didn’t exactly pan out in their favor, but that hasn’t stopped them from trying again (and failing again).

You may remember an update in last month’s newsletter about undated mail-in ballots in Pennsylvania. In May, a federal appellate court ruled that undated mail-in 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. Litigation on this issue spilled into June, however, after the Republican candidate in the judicial election asked the U.S. Supreme Court to pause the appellate court’s ruling. The Court declined to do so, meaning that the undated mail-in ballots from the Lehigh County election were counted. [link removed]

Undated mail-in ballots were also a focal point in the state’s recent Republican primary election for U.S. Senate. While Republicans have been hyper focused in recent years on attacking mail-in voting, one of the primary candidates, David McCormick, changed course and filed a lawsuit to ensure undated mail-in ballots were counted. His opponent, Dr. Mehmet Oz, and the GOP actively fought this, staying true to their colors. In the end, a state court ordered counties to count undated mail-in ballots. (McCormick ultimately conceded the race to Oz.) [link removed]

The verdict: This is a victory for voters whose ballots would have been discarded for a technical, immaterial mistake that was completely unrelated to their eligibility.
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Meanwhile, in Arizona, Republicans remained united and resolute in their attack on mail-in voting, but to equally unsuccessful ends. After the state party failed to disband Arizona’s extremely popular no-excuse mail-in system, which was adopted in 1991 and allows any voter to cast a mail-in ballot, they went for a second try. Unsurprisingly, this second attempt was just as unsuccessful. After hearing the Republicans’ arguments and Democrats’ opposition to this absurd lawsuit, a state court judge rejected the Arizona Republican Party’s claim that the mail-in voting system violates the Arizona Constitution, keeping mail-in voting unchanged in the state. Republicans have since appealed this decision, apparently determined to continue their rampage against a safe, secure and reliable method of casting ballots. We’ll keep you updated on any developments that come out of this appeal. [link removed]
The verdict: Mail-in voting remains in place in Arizona, preserving a method of voting used by a vast majority of Arizonans during the 2020 election cycle. [link removed]

Right-wing election theories make an appearance for the 2022 primary elections, but come up short.

During the 2020 election, Republicans across the country tried (and failed) to insert themselves in ballot counting and processing on the basis that their (untrained and unqualified) observation was necessary to ensure “election integrity.” [link removed]

In April, Republicans made sure that the “Big Lie” and its related election conspiracy theories were alive and thriving in Nevada by filing identical lawsuits in Washoe and Clark Counties demanding unprecedented access to the voting process. Specifically, they sought to have partisan observers present at “every step of the election” and to allow these observers to inspect ballots to ensure that elections are “handled with transparency, integrity, and … done lawfully.” These requests were fiercely opposed by local election officials and the Progressive Leadership Alliance of Nevada, which intervened in the cases in order to stop potentially disruptive observation tactics. The state trial courts handling these cases rejected the plaintiffs’ requests, finding that they failed to prove any legitimate reason behind their claims. [link removed]
The verdict: Fortunately for Nevada voters, the plaintiffs’ requests for increased observation were unsuccessful and there is no change from the status quo. These outcomes ensure that Nevada voters in these counties will not be subjected to unnecessary observation and interference when they vote. [link removed]

In New Mexico, another election-related conspiracy theory found solid footing among right-wing activists. After primary elections for multiple offices were held on Tuesday, June 7, the commission for Otero County simply refused to certify the entire slate of results. The reason? Already debunked concerns about the security of Dominion voting machines — a hot topic on the right during the 2020 election. New Mexico Secretary of State Maggie Oliver Toulouse (D) asked the New Mexico Supreme Court to get involved and order the commission to do its job by certifying the results. Following a court order, on Friday, June 17 the commission voted to certify the election results by a 2-1 vote. The lone no vote, ​​Couy Griffin, “acknowledged that he had no basis for questioning the results of the election” but still refused to certify them. (Fun fact: Griffin had to call into the commission’s Friday meeting from Washington, D.C. where he was being sentenced for his involvement in the Jan. 6 insurrection.) [link removed]
The verdict: The rogue actors of the Otero County Commission didn’t get away with their ultimate goal: discarding lawful votes simply because they didn’t like the results. The voters of Otero County had their ballots counted due to protections and procedures in place specifically to stop this kind of behavior. [link removed]

Republicans tried to get away with changing election administration rules, but failed.

You would be forgiven for missing recent updates out of Texas and Arizona that centered on seemingly obscure election administration issues. However, it is exactly these seemingly obscure administrative rules that we need to pay close attention to and not let fly under the radar unchecked. In Texas and Arizona, Republicans attempted to modify election rules to benefit them and hoped no one was watching.

In Texas, a federal district court judge issued a permanent injunction blocking the state’s “wet signature” law. The law, enacted in 2021, required individuals who submitted their registration applications through certain online options to provide a copy of their application with their original signature signed with pen on paper. The judge found that this requirement imposes an unnecessary burden on voters that “is not material to determin[ing] whether a registrant is qualified to vote.” The state has appealed this decision, but the law is currently blocked. [link removed]
The verdict: This ruling solidifies the idea that access to the ballot box should not be determined by something as archaic as requiring a wet signature. And, registering to vote hopefully just became easier in Texas, a state with an abysmal track record of voter turnout thanks to decades of suppressive laws and practices. [link removed]

In Arizona, Attorney General Mark Brnovich (R) was up to no good again. This time, he focused his attention on a mundane (but vitally important) election administration issue: the state’s election procedures manual. Brnovich refused to approve the 2022 election cycle manual drafted by Arizona Secretary of State Katie Hobbs (D), claiming that her manual was not “legally compliant” (read: it didn’t restrict voting in all the ways he wanted). Brnovich filed a lawsuit trying to get his manual adopted for the 2022 elections, but the court ruled against him and ordered the use of the 2019 manual for this year’s elections since it was previously approved following proper state procedure. [link removed]
The verdict: Brnovich’s preferred election procedures manual had the potential to upend Arizona’s current rules around voter registration, precinct voting, signature verification for absentee ballots, drop boxes and more, but he didn’t get his way. Arizona election procedures remain unchanged. [link removed]

New Lawsuits We’re Watching

Democracy Docket is currently tracking 140 active lawsuits in 36 states, four of which were filed in June. Below we highlight a few new cases you may have missed and break down the key details. [link removed]

Nevada Voter ID Ballot Initiative Challenge II

Who: A Nevada voter sued Nevada Secretary of State Barbara Cegavske (R).

What: The plaintiff is challenging a new Republican-led ballot initiative seeking to create strict ID rules for future elections, such as enacting a new photo ID requirement for in-person voting and limiting acceptable IDs that voters can present to cure mismatched signatures on mail-in ballots.

Why: The plaintiff alleges that this new ballot initiative is misleading and does not adequately explain how the proposed ID rules will impact voters. Notably, this is the second attempt by Nevada Republicans to adopt voter ID laws through ballot initiatives after their first attempt to enact similar ID laws was rejected in April.

Learn more about Persaud-Zamora v. Cegavske here. [link removed]

New Hampshire Election Day Registration Law Challenge

Who: 603 Forward, Open Democracy and a New Hampshire voter sued New Hampshire Acting Secretary of State David Scanlan (R).

What: The plaintiffs are challenging Senate Bill 418, a new law that requires first-time Election Day registrants who lack a valid photo ID to vote on a separate affidavit ballot. After the election, these voters have seven days to mail documentation establishing their identity to the secretary of state in order for their votes to be counted.

Why: The plaintiffs argue that this law violates multiple provisions of the New Hampshire Constitution by unduly burdening the right to vote and creating multiple classes of voters and it should be blocked by the state court.

Learn more about 603 Forward v. Scanlan here. [link removed]

Facts, Stats and Testimony

It happens over and over: Republicans make outlandish, unfounded legal arguments about voting laws and practices, but when they show up in court they have no facts to back up their claims. While these assertions have crumbled in court due to lack of evidence, they have still gained traction in the court of public opinion among the right. Let’s walk through some of the latest examples of baselessly crying fraud.

The groundwork was laid during the 2020 election when former President Donald Trump and his allies lodged complaints across state and federal courts alleging fraud and challenging “illegal” voting practices. [link removed]
While testifying during one of the U.S. House’s hearings on the Jan. 6 insurrection, Republican election law expert Ben Ginsberg put it simply: “In no instance did a court find that the charges of fraud [presented by Trump] were real.” [link removed]

In the Nevada election observation cases we mentioned above, the Republican plaintiffs failed to provide any evidence justifying why they were entitled to intrusive poll watching. [link removed]
The judge presiding over one lawsuit admonished the plaintiffs for their requests, noting during an oral argument that “I have in front of me, in fact, no competent evidence, which supports the claims” that the plaintiffs should be allowed to insert themselves into voting processes. [link removed]

Circling back to the attempt in Otero County, New Mexico to block the certification of primary election results, we see the exact same thing: a complete absence of evidence to back up right-wing conspiracy theories. [link removed]
Griffin, the lone dissenting vote we mentioned earlier, explained his rationale for refusing to certify the results, even under a court order: “My vote to remain a ‘no’ isn’t based on any evidence. It’s not based on any facts… It’s only based on my gut feeling and my own intuition.” [link removed]

Republicans work hard to maintain a facade around their lawsuits in order to validate their agenda and rally support for their causes. But their lawsuits are just that: a facade. What lies beneath is clearly a scramble to grasp for straws to see if anything can make it through.

Even if these claims are debunked and tossed out in courts by both Republican and Democratic judges, we still see the long-term damage of these lawsuits. If the recent past is any indication, Republicans will continue to make baseless claims throughout the next election cycle and hope that their supporters believe their arguments — even if those making the claims don’t believe them themselves.

What To Look Out for Next Month

Republicans seem determined to whittle away the last remaining protections provided by the VRA that ensure that discriminatory maps and voting laws can be adequately challenged in court. Section 2, the provision that prohibits any law that denies or abridges the right to vote “on account of race or color,” is facing two lawsuits that are important to monitor. Here’s what to look out for: [link removed]

In a case before the U.S. Supreme Court, the key question is whether or not Alabama’s congressional map violates the VRA by only creating one majority-Black district when a second one could also be drawn. An oral argument is scheduled for Oct. 4 and, in the meantime, merits briefing is ongoing. The state of Alabama, along with claiming its map doesn’t violate Section 2, argues that the provision itself should be examined for potentially conflicting with the U.S. Constitution. According to the state, “race cannot predominate in redistricting, no matter what the reason,” even if that reason is to comply with the VRA. [link removed]

Over in Arkansas, the VRA faces an entirely different question: whether or not the law allows individuals and organizations to sue over a suppressive voting law (in legal lingo, this is called a “private right of action”). Back in February, a Trump-appointed judge ruled that there’s no private right of action under Section 2 and, in his reading, only the U.S. attorney general can bring lawsuits under this provision. The parties immediately appealed this ruling to the 8th U.S. Circuit Court of Appeals, where litigation is ongoing. If upheld on appeal, this interpretation of the VRA would drastically diminish the ability of voters and pro-voting organizations to challenge suppressive laws that directly impact their access to the ballot box. [link removed]

Look for our July Litigation Look Ahead coming out Friday, July 1 for a comprehensive review of what’s to come next month, including a potential new Supreme Court redistricting case out of North Carolina. [link removed]


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