On The Docket 09/02/2022

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Happy September! The dog days of summer are over, and now we’re turning to the fast-approaching midterm elections. In today’s newsletter, we review what went down this week (think ballot measure updates and new lawsuits) and preview a busy upcoming month in the courts.

Two Pro-Voting Ballot Measures Kicked off the Ballot

The Arizona Supreme Court has ruled in favor of a conservative organization and disqualified a pro-voting ballot initiative. The ballot measure aimed to safeguard mail-in voting, expand early voting, improve voter registration, prevent the state Legislature from overturning presidential election results and more. Although nearly half a million Arizonians signed the petition to get the measure on the ballot this fall, the plaintiffs alleged that there were legal deficiencies associated with a large number of signatures that should disqualify the ballot initiative altogether. The measure will unfortunately not appear on the November ballot. [link removed]

In Michigan, a pro-voting measure was also rejected this week, but with a more problematic backstory. Organizers for Promote the Vote had gathered enough signatures to qualify for the ballot, but the Michigan Board of State Canvassers did not advance the measure to the November ballot. The group pushing a rival ballot measure — which aimed to enact a strict voter ID requirement but failed to gather sufficient signatures — challenged the way Promote the Vote organizers circulated petition forms. In light of this challenge, the two Republican members on the board voted against advancing the pro-voting measure to the ballot while the two Democratic members voted for advancing it. The deadlock typically means Michigan voters will not see the measure come November, but Promote the Vote has already challenged the decision in the Michigan Supreme Court, arguing that the canvassing board violated the group’s right to due process. [link removed]
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There’s a distinction between the legitimate removal of a ballot measure (often for issues like insufficient or fraudulent signatures, misleading descriptions or unauthorized spending requirements if passed) and what the Michigan Board of State Canvassers did here. In Michigan, the board approved the Promote the Vote initiative before petitioners began circulating the language and no legal challenges were raised then. The state’s election bureau also declined to make a legal recommendation regarding the last-minute challenge, but the Republican board members still took matters into their own hands.

In the same fell swoop, the GOP members of the board prevented a ballot measure to codify the right to abortion from making the ballot. The reproductive freedom group behind the measure had collected a record number of signatures, but the board members disqualified the measure for issues with “word spacing,” a made-up problem. Direct democracy belongs to the people, not to the whims of GOP officials. [link removed]

Heads up: This two-two partisan board will ultimately take a central role in certifying statewide post-election results. We narrowly avoided disaster in 2020 when one of the Republicans refused to certify Biden’s win in the state. (The Michigan GOP has since replaced both GOP members with canvassers of their choice.)

Wisconsin’s Win for Voter Assistance

In July, the Wisconsin Elections Commission (WEC) released guidance that absentee ballots must be physically returned by the voter who filled them out “without the use of a third party or agent.” Almost immediately, it became clear how that blanket ban on voter assistance violates Section 208 of the Voting Rights Act (VRA), which prevents the denial of assistance to voters with disabilities or limited English proficiency. A lawsuit was filed on behalf of Wisconsin voters with disabilities challenging the guidance for violating Section 208 as well as other federal laws.

On Wednesday, a federal court delivered a win for voters. Finding that the WEC’s ban on assistance clearly conflicts with the VRA, the judge concluded that “disabled voters who need assistance in returning an absentee ballot are entitled to ask a person of their choosing for that assistance” and state-level rules cannot conflict with this right. [link removed]

The Counting of Ballots Matters

As the election nears, the focus shifts to certifying results. Ensuring a fair democratic process is not just about the rules that govern voting access; it’s how the ballots are counted. A lawsuit filed this week in Nevada exemplifies the importance of a uniform system of counting ballots. Last Friday, Aug. 26, Nevada Secretary of State Barbara Cegavske (R) issued a temporary regulation that permits county recorders to hand count ballots (as opposed to using an electronic counter) if they so choose. [link removed]

On Wednesday, the Progressive Leadership Alliance of Nevada (PLAN) challenged this temporary regulation, arguing that it will create chaos in tabulation processes across the state. PLAN states that this regulation violates both state and federal law by violating “voters’ rights to a ‘uniform, statewide standard’ for counting votes accurately.” We saw recently in Pennsylvania how a more insidious (and consequently, harder to spot) form of election subversion takes place when election officials pick and choose which ballots to count. [link removed]

A Conservative Legal Group’s Faux Concern for Black Voters

On Monday, the Public Interest Legal Foundation (PILF) — a conservative legal organization — filed a lawsuit challenging New York City’s noncitizen voting law. The law allows legal permanent residents who have lived in New York City for at least 30 consecutive days to vote in municipal elections (not state or federal). The plaintiffs allege, in extraordinarily bad faith, that the law violates the 15th Amendment by discriminating on the basis of race and Section 2 of the VRA by diluting the voting strength of Black voters and favoring “foreign citizens.” [link removed]

Another lawsuit, Fossella v. Adams, is challenging the noncitizen voting law in state court. In June, a trial court struck down the law for violating the New York Constitution, New York election law and the state’s Municipal Home Rule law. That decision is now on appeal. [link removed]

In support of the new lawsuit’s assertions, the PILF lawyers behind Monday’s suit cite the right-wing organization Breitbart. They also imply that comments from Council Member Ydanis Rodriguez (D) celebrating the diversity of today’s electorate are evidence of “impermissible racial intent.” Rodriguez’ allegedly problematic statement? “Allowing people to vote benefit[s] us all. It is our duty to return the right to vote to a noncitizen immigrant living in New York City at a time where the city today look different than what it looked in the 1900’s.” Ironically, the plaintiffs also cite New York City’s history of racial discrimination in voting as a reason to prevent this city-wide rule.

It’s fascinating how PILF presents itself in this case as an advocate of racial justice and so concerned about diluting the voting power of Black voters — let’s take a look at where else they show up in the voting world:

PILF has initiated voter purge lawsuits in Michigan and New Jersey and challenged Delaware’s enactment of same-day voter registration and no-excuse mail-in voting.

PILF submitted an amicus (friend of the court) brief for the upcoming U.S. Supreme Court case Merrill v. Milligan in support of the Alabama state officials who want to draw a congressional map that limits the voting strength of Black Alabamians.

PILF’s amicus brief in favor of Florida’s voter suppression law argues that the state’s suppressive measures are warranted by a valid interest in preventing voter fraud and that the U.S. Department of Justice (DOJ) has a history of “abusing” its preclearance authority.

Litigation Look Ahead: September

Make sure to read our latest “Litigation Look Ahead: September” for full details of courtroom activities to look out for. Here’s a preview of some key dates in the sphere of democracy: [link removed]

On Sept. 7, a hearing is scheduled in Wisconsin state court. Republican plaintiffs are seeking a preliminary injunction in a lawsuit challenging the WEC’s guidance instructing election officials to fill in missing or insufficient information on absentee ballot certificate envelopes.

On Sept. 15, the 11th U.S. Circuit Court of Appeals will hear an oral argument over Florida’s voter suppression law, Senate Bill 90. The state’s Republican election officials along with the Republican National Committee and National Republican Senatorial Committee will argue that the previously blocked provisions of S.B. 90 aren’t “intentionally discriminatory” against Black Floridians.

On Sept. 20, an oral argument will take place before a state court of appeals in Kansas regarding the fate of two provisions — ballot collection restrictions and signature match requirements.

Now, onto redistricting news. Briefing kicked off in Moore v. Harper, the case focused on the radical independent state legislature (ISL) theory that the U.S. Supreme Court is hearing in its term starting this fall. The ISL theory posits that state legislatures have exclusive authority to set federal election rules, free from interference or review from other parts of the state government. Sept. 5 is the deadline for amicus briefs to be filed in support of this position. [link removed]

In one of two Spotlights this week, election law professor Nicholas Stephanopoulos wrote about the surprising, potential ramifications of the ISL theory if it were to be adopted. He explains how, in the congressional redistricting context, it should not be assumed that the theory will only benefit Republicans. In fact, he shows how Democrats could have tallied more seats than Republicans after the 2020 census from free rein redistricting. Read “The Partisan Implications of the ISL Theory” on Democracy Docket now. [link removed]

More News

The third time is NOT the charm for a Republican-led ballot initiative in Nevada. Republicans have tried, and failed, to get a measure on the ballot to establish strict photo ID rules in Nevada. The measure was previously blocked twice in court for being “legally deficient.” The latest, third attempt was withdrawn following a lawsuit filed last week challenging the measure. [link removed]

A federal court dismissed a lawsuit filed by election deniers Kari Lake and Mark Finchem — the Arizona GOP governor and secretary of state nominees, respectively — challenging electronic voting machines. Lake and Finchem asserted that electronic voting machines were “inherently vulnerable” to cyberattacks and voter fraud. The judge ruled their claims were “vague,” “speculative” and ultimately amounted to “conjectural allegations.” [link removed]

The Chicago Board of Elections Commissioners plan to remove 779 voting precincts and 121 polling locations before the November election, and are now being sued over it. The plaintiffs behind a lawsuit filed this week claim that these mid-election cycle changes will lead to confusion and violate Section 2 of the VRA and the First and 14th Amendments. The lawsuit argues that the board did not consider “that a significant decrease in the number of precincts in largely African-American wards in Chicago would limit voter access, and thereby create inequity.” [link removed]

We are always watching the DOJ’s latest moves when it comes to voting rights. On Wednesday, the civil rights division submitted a statement of interest outlining the United States’ position in an Illinois lawsuit. The Republican case is challenging Illinois’ mail-in ballot receipt deadline, which permits mail-in ballots to be received and counted for up to two weeks after Election Day. Read the statement here. [link removed]

Yesterday evening, President Joe Biden delivered a speech on the “Soul of the Nation” in Philadelphia, Pennsylvania. “Democracy cannot survive when one side believes there are only two outcomes to an election: either they win, or they were cheated,” said Biden. Find our live thread of what Biden discussed and be on the lookout for an upcoming response from Marc. [link removed]
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SPOTLIGHT: To Save Democracy, We Must Expand the Court

By Christopher Kang, co-founder and chief counsel of Demand Justice. Read more ➡️ [link removed]

What We’re Doing

We took a week off from primary elections, but the final few of this election season are coming up. Next Tuesday, Sept. 6, Massachusetts will hold its primary election. September is also National Voter Registration Month — what a perfect time to register to vote or check that your voter registration is up to date at [link removed]. And tell two friends to do the same.

Struggling to keep track of all the election denying candidates across the country? Check out our swipe through Instagram posts on the most egregious candidates running for attorney general and governor. Share with your followers and keep an eye out for future graphics! [link removed]

We’re watching former President Barack Obama’s video celebrating the work of former Attorney General Eric Holder and the National Democratic Redistricting Committee in the fight for fair maps. [link removed]

“It’s all invented in right wing groups that were funded specifically to invent and give a veneer of credibility to these reverse-engineered doctrines,” Sen. Sheldon Whitehouse (D-R.I.) declared on the latest Strict Scrutiny podcast episode. We’re listening to the Judiciary Committee member detail how well-funded, right-wing groups influence the courts, often through amicus briefs. Read Marc’s piece from last week on the constellation of anti-voting groups that threaten democracy and stay tuned for our upcoming analysis on amicus briefs in ongoing SCOTUS cases. [link removed]
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