07/01/2022
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Yesterday, the U.S. Supreme Court concluded a devastating term, with the Court’s radical majority attacking abortion rights, gun control, the separation between church and state, environmental regulations, tribal sovereignty and so much more. The harm inflicted by this Court cannot be overstated.
You may remember that on the last day of its term one year ago today, on July 1, 2021, the Court released its opinion in Brnovich v. Democratic National Committee, a case that further weakened the Voting Rights Act (VRA). Refresh your memory on the case here and read some additional analysis from a constitutional law scholar. Brnovich wasn’t the end of the Court’s focus on the VRA — in today’s newsletter, we explore two cases the Court will review next term that could have long-lasting implications on democracy.
In a glimmer of positive news, Ketanji Brown Jackson was officially sworn in as the next Supreme Court justice after Justice Stephen Breyer’s retirement took effect yesterday. Congrats on this historic day, Justice Jackson! |
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Two SCOTUS Cases Next Term Will Be Consequential for Democracy |
Yesterday, the Supreme Court granted a Republican petition to hear a case out of North Carolina, opening up review of the radical independent state legislature (ISL) theory. The case comes from North Carolina Republicans after state courts enacted a remedial congressional map when the previous map was struck down for being a partisan gerrymander.
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Unlike other appellate courts, the Supreme Court is not required to hear cases (the Court hears around 80 cases per year, selected from over 7,000 cases that it is asked to review). As such, the seemingly simple decision of what cases the Court decides to hear is consequential, and often can tune us into the majority’s priorities for the upcoming term. In granting the North Carolina GOP petition yesterday, at least four justices agreed that the ISL theory poses an important, unresolved issue that requires the attention of the Court.
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So, what is the ISL theory? It’s a fringe constitutional theory that, until now, has been dismissed by courts as such. It argues that state legislatures have almost absolute power to set federal election rules and congressional maps, free from interference from other parts of the state government such as state courts and governors. Learn more about the theory here.
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In 2020, the Trump campaign’s lawyers advanced this theory in multiple cases challenging the outcome of the 2020 election. If the once-ridiculed theory is given actual legal weight, it could create a path to future election subversion with state legislatures choosing to send an “alternate slate of electors” without oversight.
How the Court rules on this issue could shape legislatures’ power in regulating federal elections — and the checks and balances on this power — for years to come. This case, along with Merrill v. Milligan, a VRA redistricting case from Alabama, means that next term will be consequential for democracy. -
Remember: In February, the Supreme Court got involved in an Alabama redistricting case via its shadow docket, where orders are typically unsigned and give no rationale or reasoning. A lower court had ruled that Alabama’s congressional map likely violated Section 2 of the VRA for diluting the voting strength of Black Alabamians, but the Supreme Court reinstated that map.
A parallel phenomenon happened this week, this time with Louisiana’s congressional map. After a lower court similarly ruled that Louisiana’s congressional map likely violated the VRA, Louisiana Republicans filed an emergency application in the Supreme Court instead of redrawing a fair map as ordered. On Tuesday, the Supreme Court granted the emergency application and reinstated the previously blocked congressional map for the 2022 election cycle.
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The order also came from the Court’s shadow docket and the court’s three Democratic-appointed justices indicated they would have denied the application. The Supreme Court agreed to review this case, but paused it until the Court decides the similar Alabama case this fall.
To understand how the Alabama, Louisiana and North Carolina redistricting cases all have the chance to change American elections as we know it, listen to yesterday’s Twitter Spaces where Marc and Paige from Democracy Docket explain what’s at stake.
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The Impact of Louisiana’s “Likely Violates the VRA” Congressional Map |
Thanks to the SCOTUS order we just mentioned, Louisiana’s 2022 elections will take place under a map that a lower court ruled likely violated the VRA. Louisiana joins three other Southern states holding elections this year under maps that a court, when examining the facts, ruled likely violated the VRA or a state constitution: Alabama, Florida and Georgia.
Under the newly reinstated congressional map, Black voters in Louisiana can only elect candidates of their choice in one out of six congressional districts, despite making up one-third of the state’s population. In our latest Voter Testimony piece, we rewind to the hearing held in the district court mid-May that led to the blocking of the map. We parse through the lawsuit to understand the very real harm that inadequate representation inflicts on Black communities in Louisiana. Read more here.
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One of June’s Busiest Primary Days |
This past Tuesday, five states held primary elections (and two more held runoffs), the last eventful primary day until Aug. 2. In Colorado, Democratic incumbent Jena Griswold will face elections official Pam Anderson in the contest for secretary of state this November. Notably, Tina Peters, a county clerk who has been indicted on 10 charges of election misconduct and embraced conspiracy theories about the 2020 election, was readily defeated in the GOP primary.
Primary elections also took place in Illinois, New York, Oklahoma and Utah. Mississippi and South Carolina held runoffs. -
Remember, there will be another New York primary. Because of redistricting litigation and delays, congressional and state Senate primaries will take place in the Empire State on Aug. 23.
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Some primary news you may have missed from last week: In Washington, D.C.'s June 21 election, residents voted from prison after the District became the third place in the country to restore voting rights to all incarcerated individuals.
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Challenging Missouri’s Voter Assistance Restrictions
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Missouri voters and two organizations filed a lawsuit last week challenging the state’s voter assistance restrictions. Missouri laws dictate that individuals, excluding election judges, can only assist one voter outside of their immediate families with completing ballots. The lawsuit argues that these laws directly contradict Section 208 of the VRA, which states that “[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice.”
The Missouri lawsuit mirrors a case that successfully struck down Minnesota’s voter assistance restrictions in October 2020.
This Missouri case is just at the beginning of its journey, but other lawsuits have court action coming up soon. Read our latest, “Litigation Look Ahead: July,” for a highlight of what to expect in the upcoming month. |
In other Missouri news, Gov. Mike Parson (R) signed a new law that touches upon nearly every GOP election-related conspiracy theory. The law resurrects previously struck down photo ID requirements, restricts third-party voter registration organizations and bans drop boxes, electronic voting machines and outside funding in elections and much more.
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Last week, the U.S. Department of Justice announced an agreement with the state of Alaska over alleged violations of the National Voter Registration Act. Under the terms of the agreement, Alaska will ensure all applications for driver’s licenses and other IDs will include the opportunity to register to vote.
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There were nine lawsuits filed against Georgia’s voter suppression law, one of which focused on several provisions relating to the ability of third-party organizations to distribute absentee ballot applications. Yesterday, a court declined to block the provisions for the upcoming elections, in what is known as denying a preliminary injunction. This unfortunately means that these three provisions of Georgia’s law will be in effect during this November’s general election, but will continue to be litigated afterwards.
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SPOTLIGHT: Focus on State Legislatures, Not Just Congress |
By Andrea Stewart-Cousins, New York Senate majority leader and chair of the Democratic Legislative Campaign Committee. Read more ➡️ |
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Last Friday, SCOTUS overturned Roe v. Wade. In the wake of this devastating news, you can donate to abortion funds near you; abortion funds are locally based networks that directly connect and help people pay for the care they need. Amplify I Need An A for those seeking abortion care.
The Appeal created a helpful list of Dos and Don’ts in a moment where passion and mobilization need to be harnessed in productive ways.
In Justice Samuel Alito’s majority opinion, he concludes that “women are not without electoral or political power.” We’re reading this Washington Post op-ed on how that claim rings hollow given how the Court has undermined democratic processes in the states.
The Jan. 6 committee held a last-minute hearing this week; listen to The Daily’s podcast coverage of the explosive testimony from former White House aide Cassidy Hutchinson on how much former President Donald Trump knew in advance of his supporters storming the U.S. Capitol.
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