07/29/2022
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Welcome back! This week, in a win for voters, one of the four Montana laws challenged in court was struck down. We’re also covering several interconnected lawsuits in Pennsylvania, a U.S. House hearing on the independent state legislature theory and new cases in Delaware, Indiana and Wisconsin. |
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Explaining the Pennsylvania Mess |
Five lawsuits. Four in state court. Three counties failing to certify election results. Two contested races. One major piece of voting legislation. There’s a series of interconnected lawsuits playing out right now in the Keystone State that could have serious repercussions for the whole country. Here’s what’s happening:
The first category of lawsuits centers around whether elections officials should count mail-in ballots that are missing a date on the outside envelope but are otherwise valid, often referred to as “undated mail-in ballots.” Some candidates and voters say these ballots must be counted under the Civil Rights Act’s Materiality Provision, which protects votes from being discarded for “immaterial” mistakes.
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The first case, in federal court, centers around undated mail-in ballots in a judicial election in Lehigh County. In that case, the 3rd U.S. Circuit Court of Appeals said officials must COUNT these ballots. The Republican candidate in this race tried to get the U.S. Supreme Court to halt the 3rd Circuit’s decision, but the Court declined to do so.
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You may have heard of the second case: After the May 2022 primary elections, trailing GOP Senate candidate David McCormick (R) sued to have undated mail-in ballots counted. A state court granted McCormick’s request and ordered officials to COUNT these ballots. Nonetheless, McCormick conceded soon after to his opponent Dr. Mehmet Oz (R).
Okay, so both a federal and state court have agreed that mail-in ballots missing an outer date must be counted. That should be settled, right? Not quite. Even though the Pennsylvania primary election took place over two months ago, three county boards of elections — Berks, Fayette and Lancaster — have refused to include undated mail-in ballots in their election certification totals. The state’s other 64 counties have all certified their results with valid, undated ballots included.
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On July 11, the Pennsylvania secretary of the commonwealth and the Pennsylvania Department of State sued the three obstinate boards of elections. Two of the GOP-controlled boards base their argument on their belief that the 3rd Circuit’s earlier decision was “wrongly decided” and quote three dissenting U.S. Supreme Court justices as justification to ignore the courts’ orders.
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- A hearing took place in this case yesterday. You can find some highlights on our Twitter feed and expect more content coming soon.
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Marc recently wrote how this ongoing situation in Pennsylvania shows exactly how bad actors plan to steal future elections: “By refusing to count lawful votes and then certifying incomplete and inaccurate results, Republicans hope to create a veneer of legitimacy around an illegitimate outcome. Our system is ill equipped to address this looming crisis.”
Happening at the same time: There are two lawsuits challenging Pennsylvania’s Act 77, a 2019 law that expanded mail-in voting opportunities. The very Republican lawmakers who passed and supported the 2019 law are attempting to strike it down just a few years later.
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In a lawsuit filed in 2021, a Pennsylvania trial court struck down Act 77 earlier this year. That decision was paused and is now pending before the state Supreme Court.
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Even though the 2021 lawsuit is ongoing, the same plaintiffs filed a new lawsuit on July 20, 2022 arguing that the entirety of Act 77 should be struck down based on a section of the law stipulating that “if any provision of this act or its application…is held invalid, the remaining provisions or applications of this act are void” (in legal terms this is known as a “non-severability provision”). The lawsuit claims that, because of the 3rd Circuit’s decision regarding the undated mail-in ballots described above, the entire law should be void.
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A Win for Montana’s Young Voters |
On Wednesday, a Montana state court judge struck down a law that prohibited mailing ballots to new voters who are not yet 18, but will be of age by Election Day. The law was one of four voter suppression laws passed in 2021 that were challenged in court. The other three laws — which eliminate Election Day voter registration, narrow eligible voter IDs and ban certain types of ballot assistance — will head to a full trial on Aug. 15.
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U.S. House Holds Hearing on Independent State Legislature Theory |
Yesterday, the Committee on House Administration in the U.S. House of Representatives held a hearing on the independent state legislature (ISL) theory and its potential to disrupt our democracy. You can find the highlights and watch a recording of the hearing here.
- “The overwhelming weight of historical practice illustrates that state constitutions throughout American history have imposed substantive constraints on state legislation for national elections,” said law professor Richard Pildes in his opening statement.
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- Rep. Jaime Raskin (D-Md.) noted that the theory would “announce that more than two centuries of state election laws are somehow unconstitutional.”
As one of the witnesses testified, there is “no question that Congress has the power to address congressional elections under Article I,” but the real question is, does it have the will? We explain how Congress is perfectly positioned to remedy the worst potential effects of the theory. -
The other ISL news of the week: In March, a group of Utah voters filed a lawsuit arguing that the Utah Legislature violated the state constitution by gerrymandering the congressional map to benefit Republicans and repealing voter-approved redistricting reforms. Now, Utah is asking its state Supreme Court to delay ruling on this case until after the U.S. Supreme Court issues a decision regarding the ISL theory, which will be reviewed next term in the case, Moore v. Harper.
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Delaware: New Law, New Lawsuit |
On July 22, Delaware Gov. John Carney (D) signed two pro-voting bills into law that establish same-day voter registration and allow any voter to request a mail-in ballot without an excuse. This makes Delaware the 22nd state to enact same-day voter registration and the 28th state to allow no-excuse mail-in voting.
Like clockwork, when Democrats try to expand voting opportunities, Republicans are right there to counter those efforts. Soon after the Delaware laws were enacted, the Public Interest Legal Foundation, a conservative legal organization, filed a lawsuit on behalf of a Republican candidate and election official arguing that the new laws conflict with the Delaware Constitution. The plaintiffs claim that the laws allow voters to cast ballots outside of the constitutionally designated Election Day and authorize absentee voting for reasons “beyond those permitted by the state’s constitution.” Notably, they add that the pro-voting laws “dilute their votes and those of their supporters.”
It’s déjà vu: In June, Massachusetts enacted a law that permitted no-excuse mail-in voting, a long-overdue update to the state’s election laws. The Massachusetts GOP similarly sued, arguing that the new voting law violated the state constitution; the state Supreme Court rejected the Republicans’ argument. |
Voter Information Online…and Ready To Be Weaponized |
Last Friday, a federal judge allowed a conservative group, the Voter Reference Foundation, to publish New Mexico voters’ information — including names, addresses and elections in which they participated — on a public online database. Back in March, New Mexico Secretary of State Maggie Toulouse Oliver (D) referred the organization to the state attorney general for possible prosecution for violating laws that govern how voter data can be used. The group has not been charged and now won in court.
The conservative group has already published voter registration information from at least 28 states online. The New Mexico secretary of state’s office, as well as other critics, have noted the potential for harassment and manipulation with this information so readily available.
Another concern is that these records can encourage voter challenges, a legal, though deeply flawed, practice in many states that allows private citizens to challenge the voter eligibility of other voters. Voter challenges are often based on suspicions that a voter has moved or is ineligible for another reason; the Voter Reference Foundation is a potential source for nefarious challenges. In Georgia, this year so far, over 25,500 have had their voter registration challenged and over 1,800 have been removed from the voter rolls. Learn more in this must-read article from The Atlanta-Journal Constitution.
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Following the Wisconsin Supreme Court’s decision banning ballot drop boxes, the Wisconsin Elections Commission (WEC) issued guidance clarifying the rules regarding whether another individual can return a ballot on behalf of another voter. A new lawsuit now argues that the drop box decision, in combination with the WEC guidance, effectively bans ballot-return assistance under all circumstances and imposes an unfair and unequal burden on voters with disabilities who rely on assistance.
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Last week, two voting groups filed an administrative complaint with the Indiana Elections Division arguing that the elections board in Tippecanoe County is requiring first-time voters to provide additional proof of residency if someone else returns their voter registration forms in person on their behalf. The groups claim that the policy particularly hinders the work of third-party voter registration organizations engaging students, and ask the board to retroactively approve all applications since 2018 that were wrongly flagged by Tippecanoe County for needing additional proof of residency.
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Texas lawmakers are fighting HARD to keep details about the redistricting process from coming out in court proceedings. The legislators already accelerated the issue all the way to the U.S. Supreme Court trying to block depositions. Now, they are focused on redistricting-related documents after a federal court decided to enforce subpoenas from the U.S. Department of Justice in ongoing litigation over Texas' new congressional and state House maps.
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Traditionally, members of Congress spend most of the month of August in their districts in what’s known as “district work periods.” This means we likely won’t see much movement on the newly revealed Electoral Count Act (ECA) reform bill before the fall, although the Senate Rules Committee is holding a hearing on Wednesday, Aug. 3 at 10:30 a.m EST. Before then, read our latest bill breakdown and learn why this bill is even needed in the first place: the Electoral College.
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SPOTLIGHT: The Real Battlegrounds |
By former U.S. Rep. Joe Kennedy III (D-Mass.), founder of the Groundwork Project. Read more ➡️ |
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Primary season is back in full force: Next Tuesday, Aug. 2, primaries will take place in Arizona, Kansas, Michigan, Missouri, Ohio and Washington. We’re closely watching the U.S. Senate race in Missouri, the governor and secretary of state races in Arizona, legislative races in Michigan and a citizen referendum determining abortion access in Kansas. Additionally, even though a primary election took place in May, Ohio voters are heading back to the polls on Tuesday to vote in state House and Senate races. The reason for these two distinct primaries: the Buckeye State’s redistricting mess.
We’re reading ProPublica’s reporting on a handful of Floridians who were charged with voter fraud after a government official helped them register from prison. The criminal-legal system intersects with voting rights in more ways than one; the New York Times wrote about how a number of sheriffs are deeply intertwined with the “Big Lie” movement, with a growing desire to investigate “election crimes.”
“Can we ever reform our way out of this?” Marc asks Nicolle Wallace on MSNBC’s Deadline White House. Watch the clip here.
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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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