08/26/2022
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Welcome back! ICYMI: Read Marc’s latest piece about the importance of electing Democratic governors throughout the country. Remember, just because a Republican candidate is not an outward election denier doesn’t mean they aren’t a vote suppressor.
In our latest candidate Q&A series, we spoke with U.S. Sen. Catherine Cortez Masto (D-Nev.). “It’s clear Adam [Laxalt] recognizes that his lies are causing voters to distrust our electoral process, and arguing that there is only voter fraud in urban areas with Democratic voters is an especially cynical, dishonest way to try to earn Nevadans’ votes,” Cortez Masto said of her election denier opponent. Read the full interview here.
Throughout this election season, keep a close eye on our website — we have interviews with some very exciting candidates coming up soon. 👀 |
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What DeSantis’ “Illegal Voting” Prosecutions Got Wrong |
Last Thursday, Aug. 18, Florida Gov. Ron DeSantis (R) made a show of announcing 20 charges for illegal voting in the state. With a line of law enforcement officers behind him — and a receptive crowd that was handed “MY VOTE COUNTS” posters before the press conference — DeSantis touted the arrests as a victory for “election integrity.” The 20 charged individuals were all formerly incarcerated and ineligible to vote based on their past felony convictions. Reports have emerged in the days since that show that many of them, if not all, were unaware of their eligibility status.
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Let’s rewind: In 2018, Florida voters overwhelmingly passed Amendment 4, a constitutional ballot measure that restored voting rights for most people with felony convictions after the completion of their sentence, including probation and parole — this would have enfranchised over one million Floridians. Notably, the amendment did not automatically restore voting rights for those convicted of murder or a sexual offense. The 20 charged individuals fall into this latter category.
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Because of confusing (and changing) felony disenfranchisement laws across the country, some of the most life-altering charges of “voter fraud” are against people with past felony convictions who are confused or unaware of their eligibility status. We saw this play out in high profile cases this year with Crystal Mason and Hervis Rogers in Texas and Pamela Moses in Tennessee.
While DeSantis was thrilled to show off his newly created Office of Election Crimes and Security, all this body has accomplished is trapping people in a cycle of criminalization. One of the Florida GOP legislators who authored the legal fines bill wrote on Twitter following the press conference that “it was our intent that those ineligible would be granted some grace by the state if they registered without intent to commit voter fraud.” He concluded with the hashtag #intentmatters.
DeSantis can posture himself as a strongman who cracks down on a nonexistent problem, but we see through it. He is perpetuating myths about elections and inflicting utter destruction on returning citizens who are trying to regain their lives after incarceration. |
The 5th Circuit’s Historical Blunder |
The 5th U.S. Circuit Court of Appeals waded into a dark period of Mississippi’s history with a decision this week. During Mississippi’s 1890 constitutional convention, an all-white delegation designed Section 241, a provision that strips the right to vote (for life) from anyone convicted of bribery, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy. The convention’s president made the intention of the constitutional rewrite clear: “We came here to exclude the Negro,” he said. “Nothing short of this will answer.”
Yet, this week, in an unsigned majority opinion from the full 5th Circuit, the court concluded that Section 241 did not violate the Equal Protection Clause of the U.S. Constitution because the plaintiffs failed to demonstrate that Section 241 was “motivated by discriminatory intent” or “racism.” This holding relied on 1950 and 1968 updates to Section 241, which removed burglary and added rape and murder as disenfranchising crimes. According to the majority, the amended version of Section 241 was, in contrast to the original convention, ratified “without racial motivation.”
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The decision originated from a 2017 case, Harness v. Watson. The plaintiffs are two Black men who remain barred from voting for life because of past felony convictions for embezzlement and forgery, respectively. The lawsuit argues that because Section 241 was constructed with the intent to prevent Black voters from exercising their right to vote, it violates the 14th and 15th Amendments of the U.S. Constitution. A lower court and the 5th Circuit disagreed with this argument, choosing instead to interpret the 20th century reforms as overriding the original discriminatory intent.
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The principal dissent, however, points out the majority’s flawed reasoning in focusing on the 1950 and 1968 updates to the provision. The dissenting judges note that the “1968 vote [to amend Section 241] reflects the voters’ views only on the addition or subtraction of three crimes in the original list. Those votes did not touch, in any way, the eight original crimes from 1890 that remain in [Section 241] to this day.” The dissent also points to the fact that Mississippi society in the 1950s and 1960s was still very much steeped in white supremacy, segregation and discrimination.
The decision is not without tangible consequences. Almost 11% of the state’s voting age population is barred from participating in elections because of the disenfranchising measure. Mississippi, home to the highest percentage of Black Americans in the whole country, has not elected a Black person to statewide office since 1890.
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Arkansas Voter Assistance Laws Violate the Voting Rights Act |
Last Friday, a federal court in Arkansas struck down several state laws for violating Section 208 of the Voting Rights Act (VRA), which ensures that voters with disabilities or voters who need help reading and writing English can access the ballot box. The judge found that statutes that made it a crime for an individual to help more than six voters in one election violated Section 208, noting the practical implications: “Take, for example, a family where a teenage child is fluent in English, but her parents, older siblings, and grandparents are not. Those family members may all wish to have the English-speaking child translate their voting materials for them. But some of the family members would be thwarted by the six-voter limit.”
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A different lawsuit is challenging Wisconsin’s election guidelines for violating Section 208 and several other statutes. Last week, the U.S. Department of Justice (DOJ) submitted a statement of interest on the side of the plaintiffs, which outlines the United States’ position regarding an ongoing lawsuit in which the DOJ isn’t a party. Read the statement here.
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New Challenges to Missouri’s Omnibus Voter Suppression Law |
In 2021, 19 states enacted restrictive voting laws. The laws that captured the most attention came out of Florida, Georgia and Texas — all omnibus laws that created numerous new restrictions at once. Omnibus bills refer to those that cover a range of topics in a single, large bill. In 2022, GOP-controlled legislatures have continued passing laws restricting voting access, though the priorities have shifted to other forms of election control. But, Missouri caught up this year, passing an omnibus voter suppression law, House Bill 1878, at the end of June.
On Monday, the League of Women Voters of Missouri and the Missouri NAACP filed a lawsuit against multiple provisions of H.B. 1878 for violating the Missouri Constitution. The lawsuit focuses on four provisions in particular that all have to do with voter registration activities and outreach efforts involving absentee ballot applications. Violations of these provisions can result in severe punishments. The plaintiffs note that the threats of criminal prosecution will “harshly chill and restrict…commonplace community-based voter engagement.”
Just two days later, a second lawsuit was filed against H.B. 1878’s voter identification requirements. For in-person voting, H.B. 1878 enacts a strict photo ID rule and repeals previously accepted options such as voter registration cards, student IDs or copies of a utility bill or bank statement. If a voter lacks proper ID, they instead must cast a provisional ballot that will only count if they return within the same day with a valid ID or if an election official matches the ballot signature with a signature on file. The plaintiffs argue that the new restrictions violate several provisions of the Missouri Constitution, including the guarantee of free and open elections, right to vote and equal protection. Notably, a strict voter ID law was struck down in Missouri in 2020.
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Last Friday’s Load of Litigation Updates |
The world of democracy can be really busy. That’s why we sometimes email early in the week to catch you up on updates you may have missed from the weekend. In case you didn’t see our email this Monday, we highlighted several pieces of courtroom news. (Make sure to check spam and email filters to receive all of our content! You can update your email preferences here.)
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There was an unconventional decision out of the North Carolina Supreme Court. The ruling stems from a 2018 lawsuit challenging two amendments to the state constitution, including a photo ID requirement to vote. The North Carolina Supreme Court ruled that state legislators elected under racially gerrymandered districts do not have unlimited authority to amend the state constitution (the case now goes back to the trial court level).
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Last month, the North Carolina State Board of Elections rejected a request from the North Carolina Republican Party that sought to allow county boards of election to accept or reject mail-in ballots based on whether a voter’s signature on their mail-in ballot matches the signature on their voter registration. On Monday, the North Carolina GOP sought judicial review of the board’s decision — invoking the fringe independent state legislature (ISL) theory in suggesting that the state board “cannot make law” regarding elections.
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A county in central Pennsylvania almost took the drastic step of severely restricting drop boxes. On Tuesday, the Luzerne County Council ultimately rejected the proposal in a 6-5 vote after dozens of county residents spoke against it. Others expressed concern that the council was overstepping its powers or making the county vulnerable to legal challenges.
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There’s a new lawsuit in Alaska over the state’s refusal to fix ballot curing (or fixing) issues that disenfranchised thousands of voters in the special primary election — the state’s first all-mail election — held in June. The lawsuit alleges that the Division of Elections rejected over 5,000 ballots due to ballot envelope deficiencies that could have been cured had the voters been informed of these errors.
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A Utah court denied the Utah Legislature's motion to delay ruling on a case challenging its congressional map. The Legislature wanted the court to wait until after the U.S. Supreme Court rules on the ISL theory in Moore v. Harper.
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SPOTLIGHT: With the “Big Lie,” Sheriffs Are Criminalizing Our Elections |
By Jessica Pishko, a lawyer and writer who focuses on sheriffs and the political power of law enforcement. Read more➡️ |
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We’re reading the Tampa Bay Times’ reporting on the impact for individuals caught up as collateral damage of DeSantis’ latest crusade. Join The Sentencing Project and the National Association of Criminal Defense Lawyers for a panel discussion about the complexities of felony rights restoration and the cycle of criminalization it creates. Register for the webinar on Wednesday, Aug. 31 at 1:00 p.m. EDT.
In light of the 5th Circuit’s decision in Mississippi, learn more about Campaign Legal Center’s campaign for felony rights restoration (and share their useful tool).
This week, one of the first members of Generation Z to run for Congress — 25 year old Maxwell Frost — won his Democratic primary election in Florida. It’s exciting to see youth engagement and mobilization across the country; volunteer with NextGen America to organize for a better future and read a Spotlight written by NextGen’s president.
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Have a question? Join Marc and Democracy Docket today on Twitter Spaces at 2 p.m. EDT 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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