The Brief
08/29/2022

Welcome back to The Brief — our monthly newsletter that delivers an exclusive, in-depth review and analysis of the latest voting rights, redistricting and democracy developments straight to your inbox. You can’t fight for the future of our democracy unless you know what’s happening. Forward this to a friend, family member or colleague! If you received this email from someone else, you can subscribe here. [link removed]

The voting rights world did not take a vacation this summer. In August alone, multiple state laws were blocked for impeding the right to vote, a part of the Mississippi Constitution that severely limits access to the ballot box was upheld by a federal appellate court and nine new lawsuits were filed.

In today’s newsletter, we go over the biggest litigation updates from August and preview what’s coming up in the courts this fall. And, don’t forget about the U.S. Supreme Court while it’s on break: Briefing on Alabama’s congressional map and the Voting Rights Act has wrapped up ahead of oral argument on Oct. 4; briefing on the radical independent state legislature (ISL) theory in Moore v. Harper will kick off today. [link removed]

Election Subversion Is the New Normal

Two years after the “Big Lie” began spreading like wildfire among conservatives, this viewpoint has become fully mainstream. It’s now acceptable for election officials to simply reject election results they don’t like and for candidates to baselessly challenge the validity of results they disagree with.

You may remember that, back in July, a standoff between three Pennsylvania counties and the commonwealth’s election officials came to light. Why? Two months after the state’s primary elections were held, Berks, Fayette and Lancaster counties refused to include undated mail-in ballots (mail-in ballots that were received on time but were missing a handwritten date on their outside envelopes) in their vote totals. The counties failed to tally these mail-in ballots despite the fact that both a state and federal court, not to mention election officials, all concluded that these ballots should be counted. Instead, these three counties refused to cooperate, even sending their election administrators to testify to a judge that her prior opinion that directed the counting of undated mail-in ballots was “wrong.” You can read all the background details in this piece, but to skip to the ending: the rule of law prevailed. On Aug. 19, a state court ordered the counties to count these ballots, concluding that “the lack of a handwritten date on the declaration on the return envelope of a timely received absentee or mail-ballot does not support excluding those ballots” from certified results under state and federal law. The counties finally followed directions and certified election results with undated mail-in ballots. [link removed]
The verdict: This is a victory for voters whose ballots would have been discarded for a technical, immaterial mistake that was completely unrelated to their eligibility to vote or the validity of their ballots. Three counties that tried to submit incomplete results and ignore court orders were held accountable for their actions and weren’t allowed to devise their own preferred, extrajudicial scheme to determine which ballots are “valid” and which are not. But, this incident presented a blueprint for what election subversion could look like in future elections — it most likely will not be an absolute refusal to submit or certify results, but rather, and more insidiously, a submission of incomplete results that exclude lawful votes. [link removed]

Meanwhile, an election denier in Nevada, Joey Gilbert — who lost the Republican primary for governor by 11% — filed a lawsuit challenging the results. In his suit, he claimed that the “votes as counted and as announced produce a mathematical and geometrically impossible result” because an “illegal geometric formula” was used to “alter the election results.” Gilbert based his argument on calculations done by “experts” — one of whom didn’t actually qualify as an expert under Nevada law. If you think this sounds like a bunch of nonsense, you’re not alone: The court denied Gilbert’s requests after finding that he presented “no competent evidence” in support of his claims. Some other fun facts about Gilbert: He was outside the U.S. Capitol during the Jan. 6 insurrection and campaigned on false claims that the 2020 election was stolen. [link removed]
The verdict: This baseless lawsuit won’t go anywhere, rightfully leaving Gilbert out of the running for the state’s next governor. However, this action serves as a reminder that election deniers will continue to try and use the legal system to sow doubt about the validity of election results and the security of election procedures.

Mississippi’s Racist Felony Disenfranchisement Policy
The 5th U.S. Circuit Court of Appeals waded into a dark period of Mississippi’s history with a decision this month.

Last Wednesday, the 5th Circuit upheld Mississippi’s felony disenfranchisement provision (Section 241) 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. Even though the nearly all-white delegation that designed Section 241 of the Mississippi Constitution in 1890 was open about its intent to exclude Black voters from the franchise, a majority of the 5th Circuit concluded that Section 241 didn’t violate 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.” The principal dissent, however, points out the majority’s flawed reasoning: 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. [link removed]
The verdict: The profound and tangible impacts of this decision are staggering. 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. [link removed]

A Barrage of Conservative Attacks on In-person Voting

Going to vote in person — and receiving your special “I Voted” sticker — is often seen as the ultimate display of civic engagement. Precisely because of this reason, Republicans have targeted in-person voting with the goal of making it both harder and less pleasant to go to the polls.

On Aug. 18, a federal judge denied a request to temporarily block the line-warming ban in Georgia’s Senate Bill 202 for elections this November. Multiple sets of plaintiffs challenging the voter suppression law sought to block the prohibition on handing out food and water to voters waiting in line, noting that voters in Georgia, specifically Black voters and voters of color, face some of the longest lines to vote in the country and line-relief efforts can alleviate some of that burden. Even though the judge found that the line-warming ban outside of the immediate polling vicinity is likely unconstitutional and the plaintiffs met all the standard requirements for a preliminary injunction, he declined to block the ban under the Purcell principle and concluded that changing any voting-related rules this close to the fall elections would cause confusion for voters and election officials. [link removed]
The verdict: One of S.B. 202’s most contentious provisions will remain in effect for this fall’s elections — even though a federal judge has acknowledged it’s likely unconstitutional when applied to voters waiting in line outside of the polling place. Because of a vague and undefined principle that lets courts decide when it’s “too close” to an election, this fall, volunteers will not be able to hand out food and water to voters waiting in long lines that historically have a disproportionate impact on Black voters and voters of color in Georgia. [link removed]

Better news came out of Arkansas the day following this Georgia decision when a federal court struck down multiple Arkansas laws that made it a crime for someone to help more than six voters in one election. A lawsuit challenging these statutes argued that they disproportionately harmed voters with limited English proficiency who rely on assistance to cast their ballots in violation of Section 208 of the Voting Rights Act (VRA), which ensures that voters with disabilities or voters who have limited English proficiency and need help reading and writing English can access the ballot box. The judge agreed with the plaintiffs and struck down the challenged laws that limited voter assistance, preventing the criminal prosecution of people who assist more than six voters in an election. (The judge did, however, allow the state’s voter tracking requirement, which requires election officials to compile lists of volunteers who assist voters at polling locations, to remain in place.) [link removed]
The verdict: This is a win for voters with limited English proficiency who benefit from the help of a translator at the polls and for any voters who otherwise need assistance to complete the voting process. Organizations that devote time and resources to helping their communities participate in the voting process will also now be able to assist individuals without the threat of criminal penalties in future elections. [link removed]

Registration Round-up

The first step in voting is usually registering to vote, but this routine and often technical process can be targeted by bad actors seeking to restrict access to the ballot box. Luckily, courts can be a backstop to these efforts.

On Aug. 2, a federal court struck down strict residency requirements for voter registration in Texas’ Senate Bill 1111, one of the voter suppression laws Republican legislators passed in 2021. After the Texas State League of Latin American Citizens and Voto Latino sued multiple Texas counties over the law, the court blocked the provisions that prohibited voters from registering to vote using a prior address after they moved and prevented voters from registering to vote where they did not live full time. The court also held that the state cannot impose strict ID requirements for registration for voters who use a P.O. box to register to vote but do not claim to live at the address. [link removed]
The verdict: This ruling means that voters are currently not subject to the strict residency requirements in S.B. 1111 (outside of proving their residence when registering using a P.O. box address). These blocked provisions would place unique burdens for voters who move around a lot, students who may have temporarily moved away from home to attend school and those without a permanent residence. The decision has already been appealed to the 5th U.S. Circuit Court of Appeals, which has temporarily paused the lower court's order while the appeal is ongoing, so keep an eye on this case page for any further updates. [link removed]

The same day that S.B. 1111’s arbitrary registration barriers were blocked, a court issued another victory for Texas voters. On Aug. 2, a federal judge ordered Texas Secretary of State John Scott (R) to produce documents pertaining to the state’s voter purge program, which flags registered voters as potential noncitizens and puts their registration statuses in jeopardy. A group of organizations filed a lawsuit against Scott after he failed to produce documents related to over 11,000 registered voters who were flagged as potential non-U.S. citizens based on data from the state’s Department of Public Safety, which the groups assert is often outdated and therefore do not reflect a person’s current citizenship status. The court agreed with the plaintiffs that Scott was required to produce the documents under the public disclosure provision of the National Voter Registration Act. [link removed]
The verdict: After this initial win, the secretary of state went to the 5th U.S. Circuit Court of Appeals and received a temporary pause of the lower court’s order while an appeal is litigated, so he hasn’t yet had to hand over documents. However, this lawsuit highlights the importance of paying attention to actions around voter registration. While it’s necessary for states to keep up-to-date information on voter registrations, legitimate list maintenance efforts can be weaponized and become voter purges where eligible voters are being improperly removed en masse. [link removed]

In more positive registration news, on Aug. 12, the Wisconsin Elections Commission (WEC) confirmed that it reinstated the registrations of 30,554 Wisconsin voters. This voter victory stems from a 2021 lawsuit brought by the League of Women Voters of Wisconsin challenging the deactivation of 31,854 voter registrations. The organization alleged these registrations were canceled by the WEC without giving proper notice or an opportunity for voters to respond in violation of federal law. In response, the WEC agreed to reactivate the registrations at issue in the lawsuit (excluding any voters who already re-registered or were deactivated for other valid reasons). [link removed]
The verdict: Wisconsin voters whose registrations were previously canceled without proper notice or an opportunity to respond are now reinstated. If you’re a Wisconsin voter, you can check your registration status here. [link removed]

Republican Laws Met Their Fates in Court

In Pennsylvania, Republicans fought one of their own laws. In North Carolina, voting advocates challenged the authority of Republican legislators elected under illegal maps.

On Aug. 2, the Pennsylvania Supreme Court upheld the state’s no-excuse mail-in voting law, Act 77, which passed in 2019 with bipartisan support to expand mail-in voting access. Nearly two years after the law was enacted, two lawsuits were filed challenging it — one by 11 Republican legislators who had initially voted in support of the law’s passage. The lawsuits argued that the Pennsylvania Constitution requires voters to cast ballots in person unless they fall into a specific category of absentee voters and, after a lower court agreed with the Republicans, the action wound up before the state’s highest court. A majority of the state Supreme Court reversed the lower court’s decision and upheld the law, ruling that it did not violate the Pennsylvania Constitution and the Legislature was not restricted from creating no-excuse mail-in voting. [link removed]
The verdict: No-excuse mail-in voting remains available to all eligible Pennsylvania voters. This victory for voters is particularly noteworthy given that the same Republicans who pushed for this safe and accessible voting option turned around and sued over the law in the months after the 2020 election. Unfortunately, their hypocrisy still remains on full display in yet another case filed by the same Republican legislators who are now trying to get Act 77 struck down using another angle. Stay tuned for future updates on mail-in voting out of Pennsylvania. [link removed]

On Aug. 18, the North Carolina Supreme Court ruled that North Carolina state legislators who were elected under racially gerrymandered districts do not possess unlimited authority to amend the North Carolina Constitution. The decision arises out of a 2018 lawsuit filed on behalf of the North Carolina NAACP challenging two amendments to the North Carolina Constitution, one of which ​​imposed a photo ID requirement in order to vote. The plaintiff alleged that these amendments should be struck down because they were originally placed on the ballot by a racially gerrymandered General Assembly. Notably, the proposed amendments were rushed through the Legislature after the districts were found to be unconstitutional but before remedial elections were set to occur under a new set of constitutional maps. A majority of the state Supreme Court held that multiple provisions of the North Carolina Constitution “limit the legislators’ authority to initiate the process of amending the constitution under these circumstances” and sent the case back down to the trial court for further proceedings with instructions for assessing whether the two amendments should be “retroactively invalidated.” [link removed]
The verdict: The takeaway is that, at least in North Carolina, legislators elected under racially gerrymandered districts don’t have unfettered authority to amend the state constitution. The background to this case is a bit complicated, and for good reason given that this is the first case of its kind. We’ll keep you posted about what happens in this case now that it’s before the trial court again. [link removed]

New Lawsuits We’re Watching

Democracy Docket is currently tracking 163 active lawsuits across 38 states, nine of which were filed in August. Below we highlight a few new cases you may have missed and break down the key details.

Arizona S.B. 1260 Challenge

Who: The Arizona Alliance for Retired Americans, Voto Latino and Priorities USA sued Arizona Secretary of State Katie Hobbs (D), Arizona Attorney General Mark Brnovich (R) and other elections officials.

What: The organizations are challenging Senate Bill 1260, a new Arizona law that requires county recorders to cancel a voter’s registration if they receive confirmation that the voter is registered to vote in another Arizona county, creates a process to remove voters from the state’s permanent vote-by-mail list if the voter is registered in another county and makes it a felony to forward a mail-in ballot to a voter who may be registered in another state. [link removed]

Why: The lawsuit argues that S.B. 1260’s provisions violate the First Amendment’s rights to free speech and association and the First and 14th Amendments’ protections against undue burdens on the right to vote.

Learn more about Arizona Alliance for Retired Americans v. Hobbs here. [link removed]

Missouri Voter Registration and Absentee Voting Limitations Challenge

Who: The League of Women Voters of Missouri and the Missouri NAACP filed a lawsuit against the state of Missouri, Missouri Secretary of State John Ashcroft (R) and the Cole County prosecuting attorney.

What: The plaintiffs are challenging four provisions of the state’s new voter suppression law, House Bill 1878, that prohibit individuals who solicit voter registration applications from being paid, require uncompensated individuals who solicit more than 10 voter registration applications to register with the secretary of state, mandate that all voter registration solicitors be registered to vote in Missouri and ban individuals or groups from asking voters if they want to fill out an absentee ballot application. [link removed]

Why: The lawsuit alleges that the challenged provisions will have a chilling effect on organizations that engage in voter registration, advocacy and outreach efforts in violation of the rights to free speech, free association and due process under the Missouri Constitution. This lawsuit was followed by another lawsuit against H.B. 1878 challenging its voter ID requirements. [link removed]

Learn more about League of Women Voters of Missouri v. Missouri here. [link removed]

North Carolina Signature Matching Guidance Challenge

Who: The North Carolina Republican Party and two Republicans filed a lawsuit in state trial court.

What: The Republicans are challenging the North Carolina State Board of Elections’ (NCSBE) decision to reject the NC GOP’s request to give county boards of election the discretion 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. [link removed]

Why: The lawsuit argues that the NCSBE’s ruling contravenes “election safeguards put in place by the General Assembly” and compromises “election security” by depriving county boards of further tools to verify that ballot envelopes were “personally signed by the voter.” The plaintiffs also invoke the radical ISL theory to argue that the NCSBE does not have the authority to make any election-related rules, only the General Assembly does. [link removed]

Learn more about In re Appeal of Declaratory Ruling from the State Board of Elections here. [link removed]

Facts, Stats and Testimony

Last Thursday, a trial wrapped up in Montana over three of the state’s voter suppression laws enacted in 2021. During the first week, the judge overseeing the trial heard from the plaintiffs and their experts and witnesses about how the laws — which eliminate Election Day registration, impose restrictions on acceptable voter IDs and ban ballot assistance efforts — impact Montana voters. You can read a summary of each day on the case page, but below we highlighted some powerful statements from Montanans about how these laws harm their communities. [link removed]

These laws eliminate processes such as Election Day registration and ballot collection that Native Americans heavily rely on.

Dawn Gray, a member of the Blackfeet tribe, testified that “poverty; lack of housing, transportation, and internet; limited mail service; and poorly maintained roads paired with dangerous weather conditions” make it more difficult for those living on the Blackfeet reservation to vote. [link removed]

Young voters also face more hurdles to access the voting process now. The removal of student IDs as an acceptable form of standalone ID (student IDs must now be accompanied by a secondary form of ID, but concealed carry permits are fine on their own) and the end of Election Day registration are likely to exacerbate issues among an electorate that already has historically low voter turnout. But, the cruelty may be the point.

State Rep. Geraldine Custer, a Republican who has been in the Montana Legislature since 2015, voted against these changes. But, for her Republican colleagues who voted in favor of restrictive election rules, she stated that the “general feeling in the caucus is that college students tend to be liberal, and so that’s the concern with them voting.” [link removed]

During the second week, the judge heard from those on the side of the defendant, Montana Secretary of State Christi Jacobsen (R). One state representative, Rep. Greg Hertz (R), who voted in favor of the three challenged bills, discussed why he supported the bills.

Hertz testified that he believes that Montana has a “long history of secure and transparent” elections and does not believe that there is widespread voter fraud in Montana. Even though he acknowledged that some of the new provisions “might hinder Montanans from voting,” he stated that he voted in favor of the laws for “preventative” purposes. What exactly he was trying to prevent with these laws — beyond making voting more difficult, of course — remains unclear. [link removed]

What To Look Out For

Court activity is only going to increase as we near the November election (which is 71 days away, for those keeping track). Here’s what we’re keeping an eye out for:

Today, the first brief will be filed in Moore v. Harper, the hugely consequential case that raises the radical ISL theory that the U.S. Supreme Court will hear this fall. We’ll hear from the petitioners who are pushing the ISL theory to argue that state legislatures have exclusive authority to set federal election rules, including drawing congressional maps, free from interference or review from other parts of the state government. Next week, a slew of amicus (friend of the court) briefs in support of this position will also be filed. [link removed]

After a favorable ruling from a federal district court that blocked the most harmful provisions of Florida’s Senate Bill 90, the law will be put to the test again, this time before the 11th U.S. Circuit Court of Appeals. An oral argument is scheduled before the appellate court on Sept. 15 where the state’s Republicans will try to argue that the previously blocked provisions of S.B. 90 aren’t “intentionally discriminatory” against Black Floridians in violation of the VRA and 14th and 15th Amendments. We’ll keep you posted with any updates on the fate of S.B. 90. [link removed]

As always, democracy is on the docket. For a more comprehensive preview of what to expect in the coming month, look for our September Litigation Look Ahead coming out this Thursday, Sept. 1. [link removed]

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