07/25/2022

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A lot has happened in the voting rights world since we sent last month’s newsletter. Louisiana’s previously blocked congressional map was reinstated by the U.S. Supreme Court, voter suppression bills were signed into law in multiple states and new legislation focused on select parts of the electoral process was introduced in Congress. The Supreme Court also wrapped up its term on June 30, delivering the final blows in a series of harmful and consequential decisions. 

In today’s newsletter, we go over the biggest litigation updates from July, recap the Supreme Court’s involvement in voting rights lawsuits during its last term and highlight a few new lawsuits to pay attention to in the coming months. And, don’t forget there is still another week left in July that we expect to be busy (especially in Pennsylvania).

Mail-in Voting Was Back in the Courtroom

Across multiple states, courts delivered decisions both curtailing and upholding aspects of mail-in voting — and litigation on this topic will continue for the foreseeable future.

On July 8, the Wisconsin Supreme Court banned drop boxes in the state after ruling that the Wisconsin Elections Commission (WEC) overreached its authority in encouraging the use of the secure containers during the 2020 election cycle. In a 4-3 decision, the court’s conservative justices held that “only the legislature may permit absentee voting via ballot drop boxes” and the “WEC cannot.” This decision means that completed absentee ballots must be returned via one of two ways in Wisconsin: voters can deliver their own ballots in person to a municipal clerk or place their ballots in the mail (the court did not rule on whether an individual can place an absentee ballot in the mail on another voter’s behalf). 

• The verdict: Not only did this decision eliminate a safe, accessible and convenient method of voting in Wisconsin, making it unnecessarily harder for people to vote, the ruling also fanned the flames of the “Big Lie” and signaled doubt about the legitimacy of the 2020 election. When justices on the state’s highest court write that the “illegality of these drop boxes weakens the people’s faith that the election produced an outcome reflective of their will” — even though the accuracy of Wisconsin’s 2020 election results have been repeatedly confirmed — this only opens up the floodgates for similarly baseless lawsuits in the future.

Better news came out of Massachusetts a few days later when the state’s highest court upheld a new law expanding voting access. Enacted in late June, the VOTES Act establishes no-excuse mail-in voting, expands early in-person voting and more — so of course, since the law sought to expand access to the ballot box, Republicans sued over it. On July 11, the Massachusetts Supreme Court ruled that the new law does not violate the Massachusetts Constitution, leaving it in place for future election

• The verdict: A full opinion explaining the court’s decision hasn’t been released yet, but we know that a majority of the state court rejected the Republicans’ claims that mail-in voting violates the state constitution because the document does not expressly mention this method of voting. The ruling has allowed the Massachusetts secretary of the commonwealth to begin sending mail-in ballot applications in advance of the Bay State’s September primary.

New York also had a win in the absentee voting arena this month. On July 13, a federal court ordered New York to expand absentee voting notice and cure procedures related to non-postmarked mail-in ballots. The Democratic Congressional Campaign Committee sued the state in February over its high rejection rate of mail-in ballots for reasons unrelated to a voter’s eligibility — in the 2020 election, New York had the third highest rejection rate of mail-in ballots in the country. Now, local election boards must provide a notice and opportunity to cure, or fix, technical defects (such as a missing or misplaced signature) on mail-in ballots that are missing postmarks but received between two and seven days after Election Day. 

• The verdict: Before this, mail-in ballots that were sent on time but received late due to postal service delays and that happened to be missing a postmark — both out of the voters’ control — did not go through the normal cure process. Now, New York voters whose mail-in ballots fall into this category will be given a chance to cure technical, immaterial errors with their ballots that otherwise might have led to their rejection.

Courts Delivered Wins for Individuals Who Need Assistance to Vote

We saw some good news out of Texas and North Carolina this month when courts struck down laws that restricted the type of assistance voters could receive during the voting process. Federal law — specifically Section 208 of the Voting Rights Act (VRA), which states that individuals with disabilities may enlist a “person of the voter's choice” to assist them with voting — protects against these types of restrictions and reminds us of the ongoing necessity for the VRA and country-wide safeguards against voter suppression.

On June 6, a federal court struck down multiple provisions of Senate Bill 1, Texas’ omnibus voter suppression law, that limited voter assistance. The court’s order modified a 2018 permanent injunction arising out of a 2015 lawsuit that blocked two Texas Election Code provisions that had nearly identical language to that revived by S.B. 1. The June 6 order modified the 2018 permanent injunction to block multiple provisions of S.B. 1 that failed to comply with the 2018 injunction and, since the state declined to appeal this order by the July 6 deadline, these provisions of S.B. 1 are officially dead.

• The verdict: Before this ruling, S.B. 1 confined the assistance that voters could receive to reading and marking a ballot in the physical voting booth only and required those providing assistance to take an oath promising to restrict their help to this limitation. In line with the modified permanent injunction, Texas voters with limited English proficiency or who have a disability can receive assistance during the voting process from any person they want under federal law.

Similarly, on July 11, a federal judge permanently blocked North Carolina state laws that significantly restricted voters with disabilities’ options for receiving assistance when obtaining and completing mail-in ballots. Last fall, Disability Rights North Carolina sued state election officials over laws that limited voters with disabilities’ choice of an assistant to aid with requesting and filling out mail-in ballots to only their close relatives or legal guardians. The court agreed that these laws violated Section 208 of the VRA.

• The verdict: After this ruling, North Carolina voters with disabilities can now receive assistance from anyone they choose, not just a close relative or legal guardian. This is particularly a victory for individuals who are patients in facilities such as hospitals, clinics, nursing homes or rest homes since these voters were previously prohibited from relying on facility staff for assistance. 

Ohio’s Back, Tell a Friend

If you thought you were done hearing about Ohio redistricting in 2022, think again.

On July 19, the Ohio Supreme Court struck down the state’s congressional map. You may be thinking, didn’t the court already strike down an Ohio congressional map this year? They sure did. In January, the state Supreme Court overturned the first congressional map drawn with 2020 census data for being a partisan gerrymander that violated the Ohio Constitution. A second map — which was nearly identical to the first ones Republicans drew — was enacted in March. This second map is what the court overturned on July 19 for being a partisan gerrymander. While the court agreed this map is unconstitutional, since primary elections were already held under these districts, the Nov. 8 election will also take place using this unconstitutional map. The court ordered new congressional districts to be drawn for the 2024 cycle, so we’ll stay tuned to see how this unfolds. 

• The verdict: This election cycle, Ohio voters will vote in congressional districts that have been tossed out by the Ohio Supreme Court for violating the state constitution. And, as a reminder, the state’s legislative maps in place for this election cycle have also been deemed unconstitutional by the Ohio Supreme Court. Ohioans explicitly tried to avoid this partisan mess by enacting constitutional amendments addressing the redistricting process, but Republicans steamrolled right over them and ran out the clock until courts were out of time to deliver relief for this cycle. 

SCOTUS’ 2021 Recap: Voting and Redistricting Cases

Now that we’ve gone through what’s happened so far in July, we want to recap the U.S. Supreme Court’s term that wrapped up on June 30. While we could write (and people likely will write) entire books about the Court’s slew of harmful decisions, we’ll stick to what we know and highlight major voting rights and redistricting lawsuits the high court weighed in on throughout its last term.

Of the Court’s 66 merits decisions (meaning the lawsuits underwent a lengthy briefing process and an hour-long oral argument before justices released a formal opinion outlining the majority’s ruling) issued this term, the single one that touched voting rights litigation 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, sending the case back down to lower courts for litigation.

• The verdict: 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 these state lawmakers will have the chance to defend the law themselves.

In contrast to its merits docket, the Court weighed in on numerous emergency requests from redistricting and voting rights lawsuits on its “shadow docket,” where cases are typically decided in just a few days by unsigned and unexplained orders. We saw two orders related to voting rights litigation and six related to redistricting.

The Court denied an application from Texas GOP legislators who were trying to block subpoenas in a redistricting lawsuit to avoid testifying about their actions during the map-drawing process.

• The verdict: The Texas legislators didn’t immediately get their way, 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.

The Court denied an application from the 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 must be counted. The Supreme Court allowed this decision to stand. 

• The verdict: The undated mail-in ballots at issue here were counted, ensuring that voters who participated in a Lehigh County judicial election had their votes counted.

The Court granted an application from Alabama and paused a lower court decision ordering 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.

• The verdict: It’s bad news all around: Alabama voters will go to the polls this year and vote in districts that a lower court found likely violated Section 2 of the VRA. Black voters are only represented in one out of seven of the state’s congressional districts. And, after the shadow docket order, the Court put the case on its full merits docket for its next term starting this fall, putting the future scope of Section 2 in limbo.

The Court denied an application from North Carolina Republicans asking it to reinstate a map that the North Carolina Supreme Court determined was a partisan gerrymander in violation of the state constitution. This means a court-drawn map will be in place for the 2022 elections. 

• The verdict: The map in place for 2022 is much fairer than the original — a huge win for North Carolina voters this cycle. We want to flag, though, that following this victory on the shadow docket, North Carolina Republicans asked the court to hear the merits of this lawsuit. The Court agreed to hear the case in its term starting this fall, placing the dangerous independent state legislature theory up for review.

The Court denied an application from Pennsylvania GOP lawmakers asking to block a court-drawn congressional map. The Pennsylvania state court system had taken over the redistricting process after the Republican Legislature and Democratic governor reached an impasse.

• The verdict: A fair and representative congressional map based on 2020 census data is in place in Pennsylvania as a result of this impasse litigation and the Court’s denial of the GOP’s application.

The Court denied a Wisconsin application seeking 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 Wisconsin Supreme Court then replaced the previously adopted legislative maps with ones drawn by the Republican-controlled Legislature, decreasing representation for Black voters. 

• The verdict: The congressional map that was adopted following impasse litigation remains in place despite Republican attempts to replace it. But, the new legislative maps that were adopted following the Court’s shadow docket ruling nullified the additional majority-Black districts initially added during the map-drawing process. It was apparently too late for a new map to be selected in Alabama, but it wasn’t too late in Wisconsin.

Like it did with Alabama’s map, the Court granted an application from Louisiana and reinstated a congressional map that a lower court previously blocked for likely violating Section 2 of the VRA. 

• The verdict: The Court’s order means that Louisiana’s map with only one majority-Black district out of six total congressional districts is in place for the 2022 election cycle, even though Black voters make up about one-third of the state’s population according to 2020 census data. The case has been paused pending the outcome of Alabama’s case, which will be heard this fall, so the fate of Louisiana’s congressional map is likely tied to the outcome of the Alabama lawsuit.

New Lawsuits We’re Watching

Democracy Docket is currently tracking 150 active lawsuits across 37 states, seven of which were filed in July. Below we highlight a few new cases you may have missed and break down the key details.

Arizona Citizenship Requirement Challenge (DOJ)

Who: The U.S. Department of Justice (DOJ) sued the state of Arizona and Arizona Secretary of State Katie Hobbs (D).

What: The DOJ is challenging Arizona’s new proof of citizenship law, House Bill 2492, which requires Arizonans using federal forms to register to vote to provide documents proving their citizenship in order to vote in future presidential elections or by mail. This applies to future registrants as well as retroactively to voters who registered when there was not a proof of citizenship requirement. Voters using state registration forms are also now required to provide their birthplace in order for their registration to be processed.

Why: The lawsuit argues this proof of citizenship requirement is burdensome in violation of the National Voter Registration Act (NVRA) and the birthplace requirement could result in voter registration forms being rejected for reasons unrelated to voters’ eligibility in violation of the Materiality Provision of the Civil Rights Act. This suit joins three others already challenging H.B. 2492.

Learn more about United States v. Arizona here.

Missouri Voter Assistance Limitations Challenge

Who: Two Missouri organizations, Missouri Protection & Advocacy Services and VozKC, and voters sued Missouri Secretary of State John Ashcroft (R) and three county boards of elections.

What: The plaintiffs are challenging Missouri laws that dictate that individuals (excluding election judges) can only assist one voter outside of their immediate families with completing ballots.

Why: The lawsuit argues that these laws directly contradict Section 208 of the VRA by limiting assistance available to voters with disabilities or who have limited English proficiency.

Learn more about Missouri Protection & Advocacy Services v. Ashcroft here.

New York Voter Purge

Who: A right-wing organization, Judicial Watch, sued the New York State Board of Elections, the Board of Elections in the City of New York and other state election officials.

What: The plaintiff is alleging that New York’s election officials have failed to adequately remove ineligible voters from the state’s voter rolls and thousands of voters are illegally on its lists.

Why: The lawsuit argues that the state is failing to comply with its list maintenance obligations under the NVRA and New York state laws that require “inactive” voters to be removed from voter rolls if they change residences, fail to respond to an address confirmation notice and subsequently fail to vote in the next two general federal elections. 

Learn more about Judicial Watch v. Valentine here.

Facts, Stats and Testimony

With all eyes on the Alabama case currently in the U.S. Supreme Court, a lot of attention is rightly focused on the future of Section 2 of the VRA. But, we shouldn’t lose sight of the fact that, at their core, these lawsuits sought to defend individual voters from harm. In Alabama, Black voters can currently elect the candidate of their choice in only one out of seven congressional districts — even though they make up 27% of the state’s population and tend to vote as a bloc differently than their white counterparts.

One witness, Marcus Caster, testified in a hearing held in January that Black Alabamians are still experiencing inadequate voting power in Alabama a generation after the civil rights movement of the 1950s and 1960s.

• “I continue to vote, but I do not feel … that my voice is being heard because we're not getting someone that’s representing the black community.”

Trying to get others to participate in a process that they know does not serve them is also an uphill battle, in Caster’s experience. 

• “[W]hen I'm going out trying to talk to people about registering to vote and being prepared to vote, they kind of feel as though it's falling on deaf ears because they don't feel like their vote [counts] when they have someone in office that doesn’t represent them at all.”

Black communities in Alabama aren’t receiving adequate advocacy at the federal level, especially in the areas of employment, education, health care and housing access. Rep. Jerry Carl (R), who currently represents Caster, voted against a robust infrastructure bill and the Build Back Better Act, which could have addressed some of the problems facing Black communities — including pollution from plants located in predominantly Black areas. As Caster put it:

• “[J]ust about everyone that I know stays around these plants, and they're predominantly black that stays in these areas right around these plants, and they get sick easy from cancer, easy from lung disease and different ailments that they might have, and we definitely need health care because, you know, they can't afford to move out from these places.”

When representatives refuse to advocate for their constituents’ interests and are largely unaccountable to large swaths of their constituencies due to the way districts are drawn, this can and often does work against progress and equality.

What To Look Out For

July isn’t quite over yet, and August will be just as busy. Here’s what we’re watching over the next few weeks:

• Next Thursday, there will be a hearing (which you can watch on the case page and tune into our live tweets!) covering the fight over undated mail-in ballots in Pennsylvania. On July 11, the state sued three counties that refused to include undated but otherwise valid mail-in ballots in their election certification totals for the 2022 primary election. The other 64 counties in the state counted these ballots, but these three counties have repeatedly refused to do so. Republicans, apparently impatient as ever, also filed a new lawsuit to overturn the state’s mail-in voting law…even though the law is already the focus of their pending lawsuit in the Pennsylvania Supreme Court.

• Briefing on Alabama’s congressional map will wrap up in the U.S. Supreme Court on Aug. 10, a few months ahead of the Oct. 4 oral argument. By Aug. 10, you’ll be able to review all the parties’ arguments — along with dozens of “friend of the court” briefs from interested outside parties — for and against the current application of Section 2 in redistricting lawsuits. The stakes are high and understanding what Alabama wants to achieve is important to prepare for an eventual ruling.

Democracy remains on the docket, and court activity will only ramp up between now and the end of the year. For a more comprehensive preview of what to expect in the coming month, look for our August Litigation Look Ahead coming out on Monday, Aug. 1.

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