On The Docket 09/09/2022

Are you enjoying our coverage of voting, democracy and the courts? Make sure to forward our weekly newsletter to a friend, family member or colleague! If you received this email from someone else, you can subscribe here. [link removed]

Welcome back! In the wake of President Joe Biden’s speech sounding the alarm over GOP election subversion, make sure to read Marc’s response. In Philadelphia last week, the president described Americans’ shared optimism that our democracy will continue to thrive — but both Biden and Marc describe how that’s not guaranteed. Read more here. [link removed]

Mass voter challenges — when an individual mounts legal challenges against numerous other voters at once, putting their registrations at risk — are on the rise. We are seeing this concerning new trend make an impact in Georgia and Iowa. Also this week, there are new GOP lawsuits to stifle voting in Pennsylvania and a fascinating legal update out of New Mexico.

Vigilantes Put Voter Registrations at Risk

With only two months left before the November midterm elections, a conservative group is challenging the eligibility of thousands of Georgia voters. On Monday, Aug. 29, VoterGA challenged the registrations of 37,500 voters in Gwinnett County, a formerly Republican stronghold that has trended Democratic since 2016. [link removed]

What does it mean to challenge a voter’s eligibility? In a legal, though outdated, process in most states, an individual can challenge a voter’s eligibility if that individual has a suspicion that a registered voter is actually not qualified to vote. The laws vary from state to state, but frivolous challenges can target certain communities, disenfranchise voters and overwhelm election officials during an already busy time. [link removed]

Georgia is the hotbed for mass challenges. In December 2020, the conservative group True the Vote challenged 364,000 voters in the lead up to the U.S. Senate runoffs in Georgia that decided control of the chamber. (Stacey Abrams’ Fair Fight sued True the Vote; a year and a half later, we are awaiting a ruling in the case any day now.) Instead of curbing this problematic practice, the Georgia Legislature and Gov. Brian Kemp (R) further empowered it with the state’s omnibus voter suppression law, Senate Bill 202. Earlier this year, a single man challenged 13,000 registrations in Forsyth County. VoterGA’s announcement brings the number of challenges this election cycle in Georgia to 65,000. [link removed]

Also last week, it was reported that hundreds of registered voters were challenged in two of Iowa’s most populous counties. Iowa law permits individuals to challenge registrations if they believe the information is incorrect or fraudulent. Election officials in Iowa speculate the increase in challenges is inspired by continued falsehoods about the 2020 election. [link removed]

National Republican Groups Go After Vote by Mail in Pennsylvania

Republicans don’t want Pennsylvania voters to be able to fix common mistakes on mail-in ballots. Last week, multiple GOP organizations — including the Republican National Committee, National Republican Congressional Committee, National Republican Senatorial Committee and Republican Party of Pennsylvania — filed a lawsuit challenging the ability of Pennsylvania county boards of elections to develop and implement ballot curing procedures. Ballot curing allows voters to fill in missing or incorrect information, such as dates or signatures, that would otherwise disqualify the ballots. But, the Republican groups argue that voters are only allowed to fix their proof of identification. [link removed]

In their complaint, the national GOP organizations also invoke the radical independent state legislature (ISL) theory. They contend that county boards have “usurped the exclusive legislative authority of the General Assembly” by implementing cure procedures. The U.S. Supreme Court has not even heard the ISL case yet, but Republicans across the country are embracing this unprecedented interpretation of the U.S. Constitution and creating novel adaptations of it. The latest rendition? County boards can’t develop election processes. [link removed]

The GOP war against ballot drop boxes and mail-in voting continues with a new lawsuit in Lehigh County, Pennsylvania. Led by Mark Meadows and Stephen Miller’s legal group, the lawsuit argues that a lack of guidance regarding the use of drop boxes violates Pennsylvania Election Code. The plaintiffs ask for unnecessary regulations, such as placing drop boxes inside a building that’s open only during business hours or requiring drop boxes to be physically monitored by an election worker. The benefit of drop boxes is that they are secure, convenient and available for 24/7 use, a smart alternative to mailing through the U.S. Postal Service. [link removed]

How else have Republicans hindered the right to vote in Pennsylvania? GOP counties in Pennsylvania are also notorious for rejecting “naked” ballots, or even refusing to certify ballots with missing dates. The same Republican lawmakers who approved expansions to mail-in voting in 2019 are fighting tooth and nail in court to repeal the law.

In contrast, Pennsylvania’s Democratic governor signed an executive order on Wednesday expanding voter registration opportunities. Gov. Tom Wolf’s (D) order requires seven state agencies and programs to provide voter registration materials to state residents ahead of the voter registration deadline on Oct. 24. [link removed]

The First Insurrectionist Removed From Office

Cowboys for Trump founder Couy Griffin is no longer an elected official in New Mexico. The Otero County commissioner was removed from office this week under Section 3 of the 14th Amendment, which prohibits an individual from holding state or federal office if they “engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof.” In Tuesday’s ruling, a judge stated that Griffin “assumed a leadership role in the mob by using a bullhorn to gain the crowd’s attention,” crossed barricades to approach the Capitol and “incited, encouraged, and helped normalize the violence on January 6.” [link removed]

Several other pro-democracy groups have filed lawsuits against officials who played an outsized role in the Jan. 6 insurrection on the U.S. Capitol, including U.S. Reps. Madison Cawthorn (R-N.C.), Marjorie Taylor Greene (R-Ga.), Paul Gosar (R-Ariz.) and Andy Biggs (R-Ariz.). While the lawsuits against House members were not fruitful this election cycle, the recent New Mexico ruling is a significant development in the potential for modern applications of Section 3. [link removed]

According to Citizens For Ethics, Tuesday’s “decision marks the first time since 1869 that a court has disqualified a public official under Section 3,” along with “the first time that any court has ruled the events of January 6, 2021 an insurrection.” [link removed]

This ruling follows Griffin’s involvement in an election subversion spat. After New Mexico’s June primary election, the Otero County Commission refused to certify election results in the deep red county, pointing to voting machines conspiracies. The New Mexico Supreme Court ordered the commission to comply, and the commission ultimately certified results 2-1. Griffin was the lone dissenter. [link removed]

Michigan Supreme Court Ensures Pro-Voting Amendment Will Be on the Ballot

In last week’s newsletter we discussed how the Michigan Board of State Canvassers refused to advance a pro-voting constitutional amendment to the November ballot. The group supporting the initiative, Promote the Vote, quickly challenged the decision and yesterday, the Michigan Supreme Court ordered the board to place the amendment on the ballot. [link removed]

In a concurring statement, Chief Justice Bridget McCormack wrote to clarify her position that “the Board’s role in certifying petitions is very limited” and that the board’s failure to certify the petition when it had sufficient signature “seems to be disappointing evidence of the weakened state of our polity.”

On the same day, the Michigan Supreme Court also reinstated a ballot initiative that will allow Michigan voters to add explicit protections for abortion to the state constitution. The board had previously rejected the petition for word spacing issues, even though the petition had received a record-breaking number of signatures.

An evergreen reminder about the importance of state courts: Two Michigan Supreme Court justices are up for re-election this year and Michigan is one of a handful of states where partisan control of the court could flip.

Who Wants SCOTUS To Embrace the ISL Theory?

From John Eastman to Bill Barr to Citizen United to a slew of attorneys general, GOP groups and officials have now submitted their amicus curiae briefs in the upcoming U.S. Supreme Court case Moore v. Harper, all in support of adopting the ISL theory. Amicus curiae translates to “friend of the court” and these are briefs from individuals or organizations who are not parties in a case but have an interest in the outcome. They often outline new data, potential ramifications and legal arguments. [link removed]

Check out our Twitter thread for the full list of who submitted amicus briefs in support of the radical ISL theory. [link removed]

More News

A settlement agreement was approved this week in a lawsuit alleging that South Dakota violated the National Voter Registration Act (NVRA) by failing to provide voter registration opportunities at state agencies. “The agreement requires the state to monitor what happens at state agencies, and I hope this will reduce the numerous lost registrations and declining number of voter registrations at state agencies,” said a plaintiff who was unable to vote in the 2020 election because the voter registration form she submitted to a state employee “fell through the cracks.” [link removed]

A Wisconsin state judge issued an order prohibiting elections clerks from filling in missing information (such as an incomplete address) on absentee ballot witness certificates. Clerks may alert voters of the ballot error so it can be corrected, but they are not required to. This is an unfortunate result that won’t allow clerks to make simple fixes with information they have available to them. [link removed]

In better news, Indiana voters with print disabilities (meaning, those for whom it is difficult or impossible to access standard printed text) won’t be restricted by a burdensome law this November. A lawsuit challenged Indiana’s requirement that voters with print disabilities who wanted to vote absentee to make an appointment with a “traveling board” — election officials who visit voters’ homes to assist them with filling out their ballots. A preliminary injunction was granted this week so in the upcoming election, these voters will have the option to use the “traveling board” or receive assistance from an individual of their choosing. [link removed]

The North Carolina’s Rules Review Commission (a 10-member body appointed by the GOP-controlled Legislature) rejected rules adopted a few weeks ago by the North Carolina State Board of Elections. The rejected rules clarified the role of partisan election observers following harassment of voters and poll workers in the May primary. [link removed]

The most outlandish lawsuit of the week goes to…the Republican Party of Macomb County, Michigan. Along with a handful of other plaintiffs, the group filed a federal lawsuit asking the state to “rerun the Michigan 2020 presidential election as soon as possible.” Seriously. Among other outlandish claims, the plaintiffs argue that electronic voting machines were not certified and thus the 2020 election was “unlawful and illegal.” The group even outlines the way they’d like to see the “rerun” conducted — “with paper ballots only, on a single election day, with the votes being counted by hand, with members of all political parties present to observe, with a public livestream of all vote counting.” [link removed]

Yesterday, a federal court blocked the implementation of an Arizona law during the 2022 election cycle. The law, House Bill 2243, would have allowed county recorders to cancel a voter’s registration if they receive information that a voter is not qualified or if they have a “reason to believe” that a voter is not a U.S. citizen. The plaintiffs allege this Arizona law violates a host of federal laws and federal constitutional protections. [link removed]

SPOTLIGHT: Louisiana at the Forefront of the Fight To Save the Voting Rights Act

By Peter Robins-Brown, executive director of Louisiana Progress.

We are less than a month away from the oral argument before the Supreme Court in Merrill v. Milligan, a case over Alabama’s congressional map and Section 2 of the Voting Rights Act. The future of Louisiana’s districts and representation for Black voters will be directly implicated in the SCOTUS decision. Robins-Brown explains what’s at stake. Read more ➡️ [link removed]

What We’re Doing

The last primaries are around the corner. Next Tuesday, Sept. 13, we’re watching the primary elections in Delaware, New Hampshire and Rhode Island.

This past Tuesday, Trump-endorsed, election denier candidates clinched the GOP nominations for governor and secretary of state in Massachusetts. In fact, more than half of Americans will have an election denier on the ballot this fall. We’re reading FiveThirtyEight’s data visualization of all the candidates who have embraced Trump’s false claims of the 2020 election being stolen. [link removed]

In Washington, D.C.? Register for an in-person panel discussion on voter access in the 2022 midterms with former Atlanta mayor and now-Senior Advisor to the President for Public Engagement Keisha Lance Bottoms, former director of NAACP Legal Defense Fund Sherrilyn Ifill and All Voting is Local Executive Director Hannah Fried. Or stream live to hear the panel discussion next Tuesday at 8:00 a.m. EDT. [link removed]

…

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.) [link removed]

Can’t join the conversation? Listen to recent recordings here. [link removed]


Democracy Docket
PO Box 733
Great Falls, VA 22066
United States
If you believe you received this message in error or wish to no longer receive email from us, please unsubscribe: [link removed] .