On The Docket 07/08/2022

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This week, we catch you up on Moore v. Harper, the redistricting case the U.S. Supreme Court will hear next term that has far-reaching implications for fair maps, voting rules and possibly election subversion. And, the U.S. Department of Justice filed its latest lawsuit on Tuesday; we explain why Arizona’s new proof of citizenship law is so problematic.

How SCOTUS Could Upend Our Democracy

As you may have seen in recent news headlines, the U.S. Supreme Court’s decision last week to take up a case peddling a radical theory sets up a consequential next term for democracy.

The vehicle for this potentially nation-altering theory? What should have been a relatively straightforward redistricting case out of North Carolina. After updated census data was released, the North Carolina Legislature was tasked with drawing new political districts. The congressional and legislative maps drawn by the Republican-controlled Legislature were challenged and struck down by the North Carolina Supreme Court for being partisan gerrymanders that violated the state constitution. Court-appointed special masters then redrew a fair congressional map that will be in place only for the 2022 election cycle. [link removed]

Sounds simple right? The state Legislature adopted maps that advanced their political interests and violated the state constitution in doing so. The state courts then held them accountable. But the case wasn’t over yet. North Carolina Republicans requested the U.S. Supreme Court block the remedial congressional map via its shadow docket on the basis that the state court system was exercising authority outside its limits in imposing a map for federal elections. The theory invoked is called the independent state legislature (ISL) theory.

The Supreme Court denied the request (the good news: North Carolina will hold its 2022 elections under a fair map) but Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, dissented from the order. Justice Brett Kavanaugh concurred in the denial, writing separately to indicate his interest in taking up the case on the Court’s merits docket — which is exactly what the Court did last week. [link removed]
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Now, the Supreme Court will consider this North Carolina case with full briefing and an oral argument, but it should ring every alarm bell that at least four justices thought that a fringe constitutional theory — one repeatedly advanced by former President Donald Trump’s hodgepodge legal team in 2020 — warranted serious review by the Court. The ISL theory interprets the word “legislature” in the U.S. Constitution’s Elections Clause to literally mean legislature, and legislature only. This is crucial because right now, the prevailing understanding is that “legislature” indicates the state’s lawmaking process — including state court review, gubernatorial vetoes, independent redistricting commission and citizen-led ballot initiatives.

We don’t know how the Court will rule, but our democracy relies on the judiciary. Trump and his allies lost 28 lawsuits in state court after the 2020 presidential election. In 2021, at least 39 voting rights and redistricting lawsuits were decided at the state court level. Learn more about how these vital courts are threatened by this Supreme Court case. [link removed]

If embraced, ISL would give state lawmakers free rein, without state legal oversight, to set federal election laws, draw illegal gerrymanders and, at its extreme, take steps to interfere with presidential election results.

Be on the lookout for more content from us on the implications of this case on the Supreme Court’s docket next term. In the meantime, read and amplify:
The Moore v. Harper case page with complete case materials and filings. [link removed]

Our full explanation of the ISL theory. [link removed]

Marc’s latest on what’s at stake in this case. [link removed]

DOJ Files New Lawsuit Against Arizona’s Proof of Citizenship Law

A few months ago, we asked the question: Is the U.S. Department of Justice (DOJ) doing enough to protect voting rights? Since then, the DOJ recently reached an agreement with the state of Alaska over alleged violations of the National Voter Registration Act of 1993 (NVRA). The latest DOJ lawsuit was filed on Tuesday, arguing that a new Arizona law violates the NVRA and the Civil Rights Act of 1964. [link removed]

The DOJ has the authority to enforce federal statutes; for voting rights that includes the NVRA, the Civil Rights Acts, the Voting Rights Act of 1965 (VRA), the Help America Vote Act (HAVA), the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) and more. Notably, the DOJ has diminished power to enforce the VRA after the U.S. Supreme Court removed its most powerful oversight tools in 2013.

What’s in those other federal statutes? Read our latest articles about UOCAVA and the Materiality Provision of the Civil Rights Act of 1964.
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Now, back to the latest lawsuit: Arizona House Bill 2492, signed into law in March, creates a proof of citizenship requirement for voter registration. Currently, voters in Arizona who register using state registration forms have to prove citizenship. However, voters who register using federal registration forms do not. That’s because the NVRA requires states to “accept and use” a uniform federal form for federal elections — a form where voters simply have to check a box attesting they are citizens, with no further documentary proof. Now, H.B. 2492 requires election officials to verify the citizenship of these “federal only” voters. [link removed]

Estimates suggest that up to 200,000 Arizonans could have their voting rights immediately stripped away by this new law — approximately 190,000 voters who have not reregistered since the 2004 enactment of the proof of citizenship requirement on state forms and 31,000 voters who registered using federal forms.

It also can be quite difficult to prove citizenship — millions of Americans across the country, especially elderly and naturalized voters, lack the kind of documentary proof the law requires.

In addition to three other lawsuits filed against H.B. 2492, the DOJ’s lawsuit alleges that Arizona’s new law violates the NVRA and the Materiality Provision of the Civil Rights Act. While there’s no evidence of noncitizens illegally voting in any significant number, the GOP has increased its legislation and rhetoric around this nonexistent issue. (Remember, voting when not qualified is distinct from municipalities that proactively permit long-term residents who are noncitizens to vote in local elections.)
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More News
Sen. Amy Klobuchar (D-Minn.) introduced the Election Mail Act, which would categorize all election mail as First-Class Service, provide pre-paid postage for all federal ballots and streamline the processing and delivery of election-related mail. After the U.S. Senate’s failure to pass large-scale election reform, Sen. Klobuchar and other democracy allies have introduced several narrower bills. [link removed]

The 5th U.S. Circuit Court of Appeals temporarily reinstated Texas' "wet signature" voter registration law while an appeal continues. A lower court previously blocked the statute for imposing "a burden on the fundamental right to vote.” What is a “wet signature” requirement? Learn more here. [link removed]
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A grand jury in Georgia is looking into if any criminal laws were violated in Trump’s attempt to overturn President Joe Biden’s victory in the Peach State. This week, the grand jury issued seven subpoenas, including for Trump lawyers Rudy Giuliani and John Eastman and Sen. Lindsey Graham (R-S.C.). [link removed]

We are awaiting a big decision from Wisconsin. The state Supreme Court is expected to issue its opinion today in a lawsuit that is attempting to ban ballot drop boxes in Wisconsin. Learn more about the case here. [link removed]

How Voter List Maintenance Becomes Voter Purging

When legitimate voter roll maintenance becomes more nefarious. Read more ➡️ [link removed]

What We’re Doing

We’re reading this Slate article arguing for a more aggressive approach by Democrats to filling crucial judicial vacancies. After years of Republicans making inroads into the federal judiciary, Biden has stepped up with a historic number of nominations so far into his term (including record numbers of public defenders and civil rights lawyers). [link removed]

But it’s not enough: call your senators and urge them to pressure Biden to continue nominations. Democratic senators must accelerate the confirmation process to get more pro-democracy judges on the bench. [link removed]

As families and friends came together for the holiday weekend, there was — once again — heinous gun violence and mass shootings across the country. We’re taking action with Everytown for Gun Safety because enough is enough. We must mobilize our communities to pressure or oust the elected officials who continuously fail, with deadly consequences, to take any meaningful action. [link removed]

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