07/15/2022
I was struck that a recent article in the Washington Post referred to me and others focused on the right to vote as “democracy advocates” without any trace of concern or irony. It is true that I am an advocate for democracy. But I am left asking, when did it become acceptable to oppose democracy?
The Jan. 6 committee is undoubtedly exposing the truth about how we almost lost democracy in January 2021. But, as I write in my latest piece, accountability for past conduct is not enough. We must focus on the actions taking place today that will weaken our democracy in the future. With the midterm elections fast approaching, now is the time to stand up in every town square, spread this message and support the candidates who are fighting to protect free and fair elections in the future.
Read “When Did It Become Acceptable To Oppose Democracy?” on Democracy Docket now. Let’s keep up the fight, Marc
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Let’s get into the news from the week! The U.S. Supreme Court will decide two big election law cases next term, so we launched a new resource page about the fringe theory in one of the cases heading to SCOTUS. We’ll continue adding new content to the page, so everything you’ll need to know will be in one place. Also, keep scrolling for the first article in our candidate Q&A series, where we feature candidates running for office in 2022 and highlight their platforms on voting rights and democracy.
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SCOTUS’ 2021 Recap: Voting and Redistricting Cases |
This past term, the Supreme Court heard and decided 66 cases. These cases underwent a lengthy briefing process and an hour-long oral argument before justices released a formal opinion outlining the decision of the majority, often accompanied by concurrences or dissents. The entire process, sometimes referred to as the Court’s “merits docket,” can take up to a year from start to finish.
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Of the 66, the single voting-related case was a lawsuit focused on whether Republican lawmakers could intervene to defend a North Carolina photo voter ID law (this means the question was procedural and not about the voter ID law itself). The Court ruled 8-1 that Republican state legislators in North Carolina had the right to intervene in the lawsuit. An intervention happens when a group or individual asks to join an already existing lawsuit as either a plaintiff or defendant. The GOP leaders in the North Carolina Legislature believed that North Carolina’s Democratic attorney general was not adequately defending the state’s voter suppression law, and now they'll get the chance to defend the law themselves.
In contrast to the lengthy merits docket process, emergency requests go through what’s been nicknamed as the Court’s “shadow docket.” These cases are typically decided in just a few days by unsigned and unexplained orders. On the shadow docket this past term:
The Court DENIED an application from Texas legislators who were trying to block subpoenas in a redistricting lawsuit. (But, litigation in lower courts is still ongoing about whether the lawmakers will have to participate in depositions and answer questions about the maps they drew.) Find the case here.
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The Court DENIED an application from defendants in a Pennsylvania case about counting undated mail-in ballots. The 3rd U.S. Circuit Court of Appeals had previously held that the undated ballots in a local judicial election should not be rejected for an “immaterial technical defect” and should be counted. The Supreme Court allowed this decision to stand. Find the case here.
In this busy redistricting year, five states sent their newly enacted maps to SCOTUS’ shadow docket: -
The Court GRANTED an application from the state of Alabama to pause a lower court ruling that ordered the Legislature to adopt a new congressional map with two majority-Black districts to ensure that Black voters were properly represented. The Court’s shadow docket order reinstated Alabama’s map with only one majority-Black district for the 2022 election cycle. Find the case here.
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The Court DENIED North Carolina’s application to reinstate a map that the North Carolina Supreme Court determined was a partisan gerrymander in violation of the state constitution. A court-drawn map, much fairer than the original, will be in place for the 2022 elections. Find the case here.
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The Court DENIED an application from Pennsylvania GOP lawmakers to block a court-drawn map. The Pennsylvania state court system had taken over the redistricting process after the Republican Legislature and Democratic governor reached an impasse. Find the case here.
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The Court DENIED a Wisconsin application to restart the congressional map-drawing process but GRANTED an application that argued that the Wisconsin Supreme Court improperly used race when adopting new state legislative maps. The state Supreme Court had adopted new congressional and legislative maps after political deadlock, but was required to review its decision on legislative maps after SCOTUS granted the request (it was apparently too late for a new map to be selected in Alabama, but not in Wisconsin). The Wisconsin Supreme Court then replaced the previously adopted legislative maps with ones drawn by the Republican-controlled Legislature, decreasing representation for Black voters. Learn more about the case here.
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Wisconsin Supreme Court Bans Drop Boxes |
Faced with a public health crisis in 2020, the Wisconsin Elections Commission (WEC) issued guidance encouraging the use of secure ballot drop boxes. Over 500 drop boxes were set up in nearly every county across the state — Wisconsin saw an increase in mail-in voting and high turnout overall. Drop boxes are secure, convenient and a commonsense tool that somehow have become a casualty of the “Big Lie” and the GOP’s attack on voting. Over a year after the initial WEC guidance was issued, conservative activists filed a lawsuit challenging the legality of the WEC’s memos and the use of drop boxes.
Last Friday, the Wisconsin Supreme Court issued its ruling, deeming ballot drop boxes as unauthorized under current Wisconsin election laws. In an illogical opinion, wrapped in rhetoric that casts doubt on election results, a 4-3 majority of the Wisconsin Supreme Court found that the guidance issued by the WEC in 2020 was in conflict with Wisconsin law since “drop boxes” are not expressly authorized.
This decision means that completed absentee ballots must be returned via one of two ways: voters can deliver their own ballots in person to a municipal clerk or place their ballots in the mail. - If the distinction between a mailbox and an even-more-secure yet unacceptable ballot drop box is lost on you, you’re not alone. This decision simply makes it harder for people to vote.
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The majority dangerously labels votes cast via drop boxes “unlawful” and writes that they “pollute” lawful votes and the overall results. In response, the dissent called out the majority for faulty statutory interpretation, but also for fanning “the flames of electoral doubt that threaten our democracy.”
The crusade of Wisconsin Republicans to undermine election systems in the state is not over yet. A related lawsuit was filed on Tuesday, this time challenging the legality of the WEC’s guidance instructing election officials to fill in missing or insufficient information on absentee ballot certificate envelopes. Leveraging a similar line of reasoning as the drop box case, the Republican plaintiffs claim that the WEC guidance violates Wisconsin law, voters are “harmed” by this protocol and the WEC “does not have the power to set aside the policy decisions of the Wisconsin Legislature.”
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Massachusetts’ New Voting Law Survives GOP Lawsuit |
In June, Massachusetts enacted an expansive voting law, the VOTES Act, which makes no-excuse mail-in voting permanent, expands early voting options and more. Massachusetts GOP Chair Jim Lyons and a GOP candidate filed a lawsuit challenging this new law on the basis that it’s incompatible with the Massachusetts Constitution, which states that voters may only vote by mail if they are out of town, physically disabled or have religious-based conflicts.
Despite Republicans’ efforts, the Massachusetts Supreme Court ruled on Monday that the VOTES Act is constitutional. A full order explaining the court’s opinion is forthcoming, but the decision has allowed the Massachusetts secretary of the commonwealth to begin sending mail-in ballot applications in advance of the Bay State’s September primary.
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Legal Wins for Voters in North Carolina and New York |
Law can be a force for good. This week, decisions came down in two cases where lawsuits were filed against practices that disadvantaged voters.
On Monday, a federal judge permanently blocked North Carolina state laws that limited who could assist voters with disabilities after finding the laws violated Section 208 of the VRA. In light of this ruling, North Carolina voters with disabilities can now receive assistance from anyone they choose, not just a close relative or legal guardian, in future elections.
On Wednesday, a federal court issued a decision expanding absentee voting notice and cure procedures in New York. As the court notes in the opinion, “[i]n Brooklyn, about 4% of ballots in the primary election of June 2020 were not postmarked,” but “whether an absentee ballot has a postmark is entirely outside a voter’s control.” With this ruling, voters whose ballots were timely mailed but are missing a postmark will have an opportunity to remedy any technical issues that could have otherwise resulted in their ballots being rejected.
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Despite Congressional Inaction, Democrats Keep Pushing Pro-Democracy Legislation |
On Monday, U.S. Sen. Elizabeth Warren (D-Mass.) and Rep. Nikema Williams (D-Ga.) introduced the Youth Voting Rights Act. The bill aims to enforce the 26th Amendment, which was ratified in 1971 and prohibits the denial of the right to vote on account of age for everyone over 18. The bill would expand voter registration opportunities at public colleges and universities, require higher education institutions to have on-campus polling places, allow individuals to pre-register to vote before turning 18, mandate that states with voter ID requirements accept student IDs and more.
The Senate failed to pass landmark voting rights legislation in January; Williams, Warren and others, like Sen. Amy Klobuchar (D-Minn.), have introduced narrower packages in the months since, potentially with the hopes of better prospects for passage.
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On Monday, the acting secretary of the commonwealth of Pennsylvania and the Pennsylvania Department of State sued three county boards of elections. Aside from Berks, Fayette and Lancaster counties, the other 64 counties in the state certified their election results with tallies including undated mail-in ballots (ballots that were missing a handwritten date on their outer return envelope but were otherwise valid). This lawsuit comes after previous cases in state and federal courts in Pennsylvania established that undated mail-in ballots must be counted.
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On Monday, the New York Court of Appeals Chief Judge Janet DiFiore announced her resignation, which will take effect next month. (The Court of Appeals is New York’s highest court, the equivalent of a state Supreme Court.) DiFiore wrote the majority 4-3 opinion when striking down New York’s congressional and state Senate maps in April; the court is full of former Gov. Andrew Cuomo appointees with overwhelmingly prosecutorial backgrounds and a conservative tilt. Gov. Kathy Hochul (D) will have the opportunity to nominate a replacement — learn how judges become judges here.
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Candidate Q&A: Cisco Aguilar on His Run for Nevada Secretary of State |
Democracy Docket’s first candidate Q&A of the 2022 cycle with Nevada secretary of state candidate Cisco Aguilar. Read more ➡️ |
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“There’s very little standing between democracy and tyranny,” Marc explained on CNN recently, referencing what may happen if the U.S. Supreme Court removes important legal protections. For a broader picture of the Court’s rightward shift over the past two decades, we’re listening to The Ezra Klein Show with legal scholar Kate Shaw. Find the episode here or wherever you listen to your podcasts.
Missed the Jan. 6 hearings? For very detailed summaries and analysis, check out Lawfare’s “January 6 Project.” For a quick, high-level overview, here are NPR’s Four Takeaways from Tuesday’s latest hearing.
Yesterday, former U.S. Attorney General and current chairman of the National Democratic Redistricting Committee Eric Holder joined Marc on Twitter Spaces to discuss redistricting, the Supreme Court and the state of our democracy. Listen to the recording here. |
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