07/22/2022
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Welcome back! This week we dissect the newest piece of federal legislation that purports to safeguard against election subversion. There are also important updates from Republicans’ anti-democratic efforts in Ohio and Pennsylvania. Marc wrote two articles this week: read them here and here.
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The Long Awaited Electoral Count Act Reform Is Here, but Will It Help? |
When Republican senators blocked important voting rights legislation in January, the very same lawmakers who refused to protect the vote signaled an openness to reform the Electoral Count Act (ECA) instead. The ECA is an 1877 law that outlines Congress’ role in election certification. It is no secret that the ECA is outdated, vague and open to vulnerabilities.
This Wednesday, U.S. Sens. Susan Collins (R-Maine) and Joe Manchin (D-W.Va.) led a group of nine Republicans and seven Democrats to introduce the Electoral Count Reform and Presidential Transition Act (“ECA Reform Act”). Here are some long-overdue updates in the new bill:
- The proposed legislation clarifies that the vice president’s role in the Jan. 6 counting of the presidential college electoral vote is purely ceremonial.
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The bill makes it harder for members of Congress to initiate objections to results. Currently, only one senator and one representative are necessary to suspend the joint session and take a vote on an objection to a state’s electoral results. By raising the threshold to one-fifth of the members of each chamber, the goal is to reduce frivolous objections, like we saw on Jan. 6, 2021.
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The ECA Reform Act strikes a “failed election” provision from an 1845 law that could be exploited by state legislatures. The provision currently permits state legislatures to disregard the popular vote if they declare the election has “failed,” an undefined term. Under the new bill, after Election Day state legislatures cannot change the rules for appointing electors.
In Marc’s latest piece, he highlights several points of concern, including that he is not convinced that the current draft of the ECA Reform Act will improve the prospects of free and fair elections: -
First, the bill requires a state’s governor to submit a “certificate of ascertainment” identifying their state’s presidential electors at least six days before the Electoral College meets. What happens if a future governor like Kari Lake (R-Ariz.) or Doug Mastriano (R-Pa.) are elected this November?
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Second, while most post-election lawsuits take place in state courts, the ECA Reform Act gives disproportionate authority to the federal judiciary to review legal challenges. The proposed bill requires a three-judge panel consisting of two circuit court judges and one district court judge to hear certification cases, with automatic review to the U.S. Supreme Court. (The chances of Republican-appointees on these panels are high given the way that Donald Trump and the right have reshaped the federal judiciary.)
Read “Reforms to the Electoral Count Act Miss the Mark” on Democracy Docket now.
Nine Republicans have signed onto the ECA Reform Act, notably one vote short of overcoming the filibuster if all 50 Senate Democrats also support it. That’s not given though — Jan. 6 committee leaders Reps. Zoe Lofgren (D-Calif.) and Liz Cheney (R-Wyo.) released a statement soon after the draft dropped suggesting that the Jan. 6 committee and other House leaders may not be onboard.
While portions of the ECA Reform Act are absolutely needed — and other parts possibly less so — the new bill does not replace meaningful voting rights legislation nor does it address the decentralized flashpoints for election subversion in a country gripped by the “Big Lie.”
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Ohioans Will Vote Under Unconstitutional Maps in 2022 |
Remember the Ohio redistricting saga? It’s not over yet. This week, the Ohio Supreme Court struck down the state’s current congressional map for being a partisan gerrymander that favored Republicans in violation of the Ohio Constitution. This map was enacted by the Ohio Redistricting Commission in March after the state’s previously enacted map was similarly blocked.
Although the court ordered a new map to be drawn in this week’s opinion, the redrawn map will not take effect until 2024. That means Ohio held its May 3 congressional primary elections under a map that a court now ruled is unconstitutional. Despite this, the unconstitutional map will also be used in the upcoming general election on Nov. 8, 2022. -
As a reminder, Ohio’s legislative maps (for state House and Senate, not U.S. House) are also currently being challenged and have been struck down a total of six times for violating the Ohio Constitution. Unconstitutional legislative maps are also in place for 2022 (though they will be redrawn for 2024).
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Ohio joins Alabama, Florida, Georgia and Louisiana in holding elections this year under maps that a court, when examining the facts, ruled likely violated federal law, the U.S. Constitution or a state constitution.
As we’ve seen time and again, the redistricting fight continues — reapportionment might happen once a decade, but redistricting and its subsequent litigation occur throughout the decade. |
Pennsylvania’s Constitutional Crisis |
Two months after Pennsylvania held its primary elections on May 17, three counties — with a combined population of over one million people — are still refusing to include certain ballots in their certification totals. Last week, the Pennsylvania Department of State and acting secretary of the commonwealth sued the three county boards of elections.
The three counties are adamantly fighting the certification of undated, but otherwise valid, mail-in ballots. This comes on the heels of rulings in both state and federal courts that these ballots must be counted. A hearing is scheduled for next Thursday, July 28 — we’ll be watching closely. Learn more about what’s at stake in this case here.
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On Wednesday, Pennsylvania Republicans filed a lawsuit against Act 77, a 2019 law (passed by Republicans) that expanded mail-in voting. The same individuals are trying to eliminate mail-in voting with a pending case that is already before the Pennsylvania Supreme Court. This new lawsuit, however, hinges on the 3rd U.S. Circuit Court of Appeals’ decision in the previously-mentioned federal case about undated mail-in ballots.
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The push to exclude valid mail-in ballots that have small, technical mistakes unrelated to a voter’s eligibility and the push to eliminate mail-in voting are deeply interrelated within the Pennsylvania GOP’s strategy.
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Texas Tried to Resurrect a Previous Law, But Was Struck Down |
Over a month ago, on June 6, a federal court struck down multiple provisions of Texas’ omnibus voter suppression law, Senate Bill 1. It’s the first permanent injunction against any portion of S.B. 1. The struck-down S.B. 1 sections limited voter assistance to only “marking or reading the ballot” (even though assistance is often required with all related activities at a polling place) and required those assisting voters to take a specific oath.
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Where did this come from? Let’s rewind to a 2015 lawsuit brought by the Organization of Chinese Americans (OCA)-Greater Houston, which argued that portions of the Texas Election Code violated Section 208 of the Voting Rights Act (VRA). Section 208 ensures that voters with disabilities or limited English proficiency receive the proper voting assistance they need.
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In 2018, a federal court permanently blocked (in legal words, granted a permanent injunction against) the restrictive portions of Texas’ election code. In January 2022, the OCA-Greater Houston plaintiffs resurrected their 2015 lawsuit, asking the court to modify the 2018 permanent injunction to include several provisions of S.B. 1 and pointing out that S.B. 1 utilized the same language that the court previously blocked.
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On June 6, 2022, the court granted the modified permanent injunction, blocking provisions in S.B. 1 that were similar to those blocked in the 2018 case. As of July 6, the defendants can no longer appeal this modified order, meaning that two of the problematic provisions of S.B. 1 that curtailed voters’ ability to seek assistance are no longer in effect and can no longer be challenged in court.
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Last week, the North Carolina State Board of Elections (NCSBE) rejected a request from the North Carolina Republican Party to allow county boards of elections to accept or reject mail-in ballots based on whether a voter’s signature on their ballot matches the signature on their voter registration. NCSBE Chair Damon Circosta (D) noted that North Carolina already has “an extraordinarily secure absentee ballot process” and signature matching could lead to some voters having their ballots wrongly rejected.
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Pennsylvania Gov. Tom Wolf (D) recently signed into law the state budget, which includes $45 million in grants for election administrators (and strict rules on how counties can qualify for funding), but also bans private funding of election administration. Private funding is often a lifeline for under-resourced elections offices and has needlessly become a target of Republican lawmakers over the past year.
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On Tuesday, election denier Dan Cox won the Maryland GOP primary to succeed outgoing moderate Gov. Larry Hogan (R-Md.). Despite the state’s current Republican governor, deep-blue Maryland will be a challenging state for a far-right, Trump-endorsed candidate to win in November. But, there are plenty of other “Big Lie” gubernatorial candidates running around the country whose chances may not be as bleak.
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Reforms to the Electoral Count Act Miss the Mark |
Marc’s take on the ECA Reform Bill introduced in the Senate. Read more ➡️ |
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Have a question? Join Marc and Democracy Docket 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.) |
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