09/26/2022
There are less than 45 days before the midterm elections! With The Brief — our monthly newsletter that delivers an exclusive, in-depth review and analysis of the latest voting rights and democracy developments — we’ll keep you updated on what’s happening in courtrooms across the country and how these actions might affect your right to vote. |
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Fall is officially here, which means the U.S. Supreme Court’s 2022 term is about to begin (on Oct. 3), multiple laws limiting the right to vote will make it to the courtroom and election season is upon us.
In today’s newsletter, we go over the biggest litigation updates from September and preview what’s coming up in the courts this October and beyond. All of the activity going on in courts around the country reminds us that the legal system plays no small role in shaping the future trajectory of our voting rights and democracy. |
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The “Big Lie” Is Alive and Well in 2022 |
From Arizona to Michigan to New Mexico, the “Big Lie” that the 2020 presidential election was stolen has expanded into full-fledged efforts to question the legitimacy of future elections before they even happen.
It’s September 2022, right? Someone should tell the right-wing activists behind recent lawsuits in Arizona and Michigan that challenge the results of the 2020 presidential election — almost two full years after it happened. In the Arizona lawsuit, the plaintiffs argued that Arizona “conducted an unlawful presidential election on November 3, 2020” due to the alleged use of “uncertified” voting machines. Thankfully, the Arizona Supreme Court rejected the plaintiffs’ request to decertify the 2020 presidential election results and rerun the entire election (they legitimately asked for that), noting that the complaint was not timely and the “petitioners have cited no authority for the proposition that they or anyone else may overturn the Arizona statutes that govern both the conduct of elections and the challenges to the results of such elections.” Given that the Michigan lawsuit is nearly identical to the Arizona one, hopefully it won’t be too long until that one’s thrown out too.
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The verdict: The rule of law prevailed over a frankly ridiculous lawsuit. While we may laugh at the idea that this lawsuit was even filed in the first place, it’s an important reminder that the legal system can be used by those who have no business meddling with elections in order to further anti-democratic goals. With the 2022 midterm elections nearing, we’re likely going to see a rise of far-fetched lawsuits filed; hopefully the rule of law will similarly prevail.
In Arizona’s next door neighbor, the “Big Lie” is also alive and well. A New Mexico county commissioner and election denier was removed from office at the beginning of September due to his involvement in the Jan. 6 insurrection. The commissioner, Couy Griffin, already made headlines back in June when he — along with his fellow Otero County commissioners — refused to certify their county’s election results on the basis of unfounded claims about voting machines, causing the New Mexico Supreme Court to get involved and order the county to certify. On Sept. 6, a New Mexico judge ruled that Griffin is constitutionally disqualified from holding office under Section 3 of the 14th Amendment, which states that a person holding public office may not engage in insurrection, and removed him from office. Griffin is fighting this ruling, but for now he does not hold his former position.
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The verdict: This is huge news: According to Citizens For Ethics, this “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.”
Former President Donald Trump’s “Big Lie” advocates targeted much of their election-denying ire towards electronic voting machines, but the attacks have only grown since 2020. Now, voting machines are the new hot thing to sue over in the 2022 election cycle. There are currently pending lawsuits challenging the reliability of electronic voting machines in Arizona, Kansas, Michigan, New Hampshire and Oregon. Another case in Alabama filed by a group of Republicans that argued that the state’s electronic voting machines “subject[ed] voters to cast votes on an illegal and unreliable system” has already been tossed.
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The verdict: A court dismissed Alabama’s speculative lawsuit raising conspiracy theories behind voting equipment. But, we’re certain to hear more and more about voting machines and their legitimacy this election cycle and it’s important to pay attention to the facts and be aware of unfounded conspiracy theories.
An obscure government body in Michigan made the news recently for refusing to place two measures on the ballot for November, hinting at the possibility that routine administrative election procedures will fall victim to the “Big Lie” this election cycle. You can read all of the details in this piece, but long story short: In August, the Michigan Board of State Canvassers was tasked with approving two ballot initiatives — a package of pro-voting reforms and an initiative creating a constitutional right to reproductive freedom — that had been recommended by the state Bureau of Elections for the November ballot. Instead of performing their ministerial duty by approving the two initiatives, the board’s two Republican members voted against adding them to the ballot. They didn’t dispute that supporters had submitted enough signatures; instead, they argued that the voting rights measure didn’t adequately specify how it would change the state constitution and the reproductive freedom measure had some errors with spacing. Thankfully, the Michigan Supreme Court stepped in and ordered both ballot measures to be added to the November ballot after dismissing the Republican members’ arguments. Notably, this wasn’t the first time that the board made the news. Back in 2020, one of the board’s Republican members cited debunked conspiracy theories about voting in Detroit and refused to vote in favor of certifying the presidential results. Ultimately, the other Republican and two Democrats on the board certified the results and Michigan’s 16 electoral votes went to President Joe Biden.
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The verdict: Thanks to the state Supreme Court, this fall Michiganders will have the opportunity to enshrine the right to choose in their state constitution and enact important voting reforms that the Republican Legislature has refused to consider. But, even though the Republican members didn’t succeed in subverting the will of Michigan voters this time, the fact that they were so emboldened is a dark omen for future elections.
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Rounding up Registration Rulings |
September saw positive rulings out of Arizona, Montana and South Dakota that protect and expand voter registration.
On Sept. 8, a federal court temporarily blocked the implementation of Arizona House Bill 2243, which requires county recorders to cancel a voter’s registration if they receive information that a voter is not qualified to vote or if the county officials have a “reason to believe” that a voter is not a U.S. citizen. This victory comes after the court approved an agreement between the Arizona Asian American Native Hawaiian and Pacific Islander for Equity Coalition and Arizona Secretary of State Katie Hobbs (D) following a lawsuit brought by the coalition. Litigation in this case will continue, but H.B. 2243 will remain blocked during the 2022 election cycle.
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The verdict: During the 2022 election season, Arizona voters will not have to worry that their registrations could be canceled simply because a county recorder suspects that an individual is not a U.S. citizen.
On Sept. 21, in a victory for Montana voters, the Montana Supreme Court affirmed a trial court decision temporarily blocking the implementation of two voter suppression laws — House Bill 176, which eliminates Election Day voter registration, and Senate Bill 169, which implements strict ID requirements to vote — as litigation continues. This is a temporary decision while the case’s merits are decided at the trial court level. H.B. 176 and S.B. 169, along with one other challenged law limiting ballot collection, went to trial a few weeks ago. We are awaiting a final decision from a Montana trial court on whether these laws violate the state constitution and will be permanently blocked.
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The verdict: As of Wednesday’s ruling, H.B. 176 and S.B. 169 will not be in place for this November’s midterm elections. (The challenged law limiting ballot collection has been blocked since April, so it also won’t be in place this fall.) We’ll keep you posted on the trial court’s ruling on all three laws.
In South Dakota, a federal judge approved a settlement agreement between the parties in a lawsuit alleging that South Dakota violated the National Voter Registration Act (NVRA) due to its failure to provide voter registration opportunities at state agencies. The plaintiffs who filed the September 2020 lawsuit — two Native American tribes, a voting rights organization and individuals — had already secured a favorable ruling on many of their claims back in May 2022 when the judge found that South Dakota previously failed to offer adequate voter registration services at motor vehicle agencies and state-run public assistance offices. The settlement adopted on Sept. 6 addressed the remaining claims in the lawsuit and stipulated that the South Dakota secretary of state will take proactive measures to ensure that state agencies comply with the NVRA’s requirements.
- The verdict: It will now be easier for South Dakotans, particularly Native Americans, to register to vote and update their voter registration information.
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The Who, What and Where of Mail-in Voting |
In Delaware, Hawaii and Wisconsin, recent litigation involved the more niche aspects of who can vote by mail and how these ballots are processed.
Unfortunately, the First State (Delaware, for those of us who forget what we learned way back in U.S. history class) is not the first state to see challenges to mail-in voting. On Sept. 14, a Delaware trial court struck down Senate Bill 320 — a law that allowed any voter to request a mail-in ballot without an excuse — following two conservative lawsuits. The judge, noting prior rulings in the state court system, found that the state constitution’s list of reasons a voter may request an absentee ballot is exhaustive and that no-excuse mail-in voting therefore violates Delaware law. Five days after this ruling, the court paused its order pending appeal, which means that no-excuse mail-in voting will be in place while litigation continues. On a more positive note, in the same opinion released on Sept. 14, the trial court judge upheld the state’s new law creating same-day voter registration, highlighting the lack of evidence presented to show the law violated the Delaware Constitution.
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The verdict: While no-excuse mail-in voting is currently in place in Delaware, the state Supreme Court will decide its long-term fate on Oct. 5. However, voters will still be able to register on Election Day; they just need to show up at the polls to register and cast their ballot all at once.
On Sept. 6, a federal judge ruled that U.S. citizens who formerly lived in Hawaii are not allowed to vote absentee in federal elections if they moved to certain U.S. territories. Two federal laws — the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) and Hawaii Uniform Military and Overseas Voters Act (Hawaii UMOVA) — preclude former U.S. residents from voting absentee for president in their former state if they are currently living in Guam, the U.S. Virgin Islands, American Samoa or Puerto Rico. Curiously, if these former Hawaii residents happen to move to the Northern Mariana Islands, certain other U.S. territories or abroad, then they’re in the clear to vote absentee in federal elections. Noting the obvious inconsistencies in these rules, former Hawaii residents — who are also U.S. citizens — who moved to Guam or the U.S. Virgin Islands sued over their territory-based disenfranchisement. A Trump-appointed judge held that the laws do not violate the right to vote and rejected the voters’ claims that the statutes relegate them to “a status as second-class citizens in ways they would not have been had they moved to anywhere else on Earth.”
- The verdict: In this ruling, the judge upheld the plaintiffs’ second-class citizenship status by ruling that they are not permitted to vote absentee for president from Guam or the U.S. Virgin Islands.
Obscure procedures around the processing of ballots may not seem super interesting on the surface, but Republicans’ recent attacks on this aspect of running elections clues us into their targets for the 2022 election cycle: which ballots are counted. In Wisconsin, Republican voters and the Republican Party of Waukesha County filed a lawsuit challenging the legality of the Wisconsin Elections Commission’s (WEC) guidance directing clerks to fill in missing information (using red ink) on absentee ballot witness certificate envelopes. This guidance, often referred to as “red ink” guidance, was withdrawn by the WEC following a recent court order. Now, clerks cannot fill in missing information on absentee ballot certificate envelopes for the upcoming November elections. Clerks may, but are not required to, notify voters that their witnesses can correct address deficiencies on absentee ballot envelopes.
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The verdict: This is only going to make mail-in voting harder for Wisconsinites. Wisconsin clerks are left without clear guidance on how to address incomplete addresses on witness certificates, especially if the clerk can still figure out where the witness lives, and clerks might reject these mail-in ballots, unnecessarily disenfranchising voters for a technical mistake.
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Voter Assistance: Two Vastly Different Verdicts Out of the Midwest |
Certain forms of assistance in completing the steps of the voting process are protected by federal law. Two recent decisions out of Indiana and Michigan muddy the water around what types of assistance are and aren't allowed.
On Sept. 6, a federal court granted a preliminary injunction in a lawsuit challenging Indiana’s law requiring voters with print disabilities (a disability that impairs a person’s ability to read or write) who seek to vote with at-home absentee ballots to make an appointment with a “traveling board” — election officials who visit voters’ homes to assist them with filling out their ballots. This decision means that voters with print disabilities will have the option to use the “traveling board” if they need assistance, but they will not be required to do so in the November midterm elections and may instead opt to seek assistance from an individual of their choice. This ruling follows a slate of orders issued this year protecting the right to voter assistance in Arkansas, North Carolina, Texas and Wisconsin.
- The verdict: This is a victory for Indiana voters with print disabilities as it grants them more options for voting during the November 2022 elections as litigation continues.
On Sept. 15, a federal judge ruled that two Michigan voting restrictions violate federal law or the U.S. Constitution. The first challenged law, a voter transportation ban, makes it a misdemeanor to “hire a motor vehicle” to transport voters to the polls unless they are “physically unable to walk.” The second challenged law, a ban on absentee ballot assistance and organizing, criminalizes efforts to help voters return their absentee ballot applications. Even though the plaintiffs asserted that there is “undisputed evidence establish[ing] that widespread voter fraud or coercion has never existed in Michigan,” the judge found that the state’s “fraud prevention” interest advanced by the challenged laws is greater than any burdens placed on the plaintiffs and justifies keeping the laws in place.
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The verdict: The bans on transporting voters and absentee ballot organizing and assistance will remain on the books in Michigan. This maintains Michigan’s status as the only state in the country with a strict law that criminalizes third-party transportation of voters and keeps open the possibility that individuals are criminally prosecuted for assisting individuals exercising their right to vote.
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New Lawsuits We’re Watching |
Democracy Docket is currently tracking 177 active lawsuits across 38 states, 12 of which were filed in September. Below we highlight a few new cases you may have missed and break down the key details. Notably, all three cases listed below were brought by Republicans, keeping in line with a marked increase in GOP lawsuits in the voting and elections sphere since January of this year. You can see a full breakdown of this trend here.
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North Carolina Election Observers and Absentee Ballot Return Deadline Challenge |
Who: The Republican National Committee, the North Carolina Republican Party and the chairwoman of the Clay County Republican Party sued the North Carolina State Board of Elections (NCSBE). |
What: The plaintiffs challenge the NCSBE’s three-day extension of the absentee ballot return deadline to account for Veterans Day and the NCSBE’s enforcement of a regulation that imposes a four-hour limitation on the amount of time that at-large partisan election observers — party-designated observers who are permitted to attend any polling place on Election Day — may spend at a given polling site on Election Day. |
Why: The complaint invokes a version of the radical independent state legislature (ISL) theory by arguing that the authority to set federal election rules lies solely with the North Carolina General Assembly, so the NCSBE cannot extend the absentee ballot receipt deadline or regulate the conduct of partisan election observers.
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Pennsylvania Cure Procedures Challenge |
Who: The Republican National Committee, National Republican Congressional Committee, National Republican Senatorial Committee, Republican Party of Pennsylvania and voters sued Acting Secretary of the Commonwealth Leigh Chapman.
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What: The plaintiffs are challenging the authority of the county boards of elections to develop and implement cure procedures (the process by which a voter may be notified of a technical mistake with their mail-in ballot and attempt to rectify that mistake). |
Why: The lawsuit alleges that county boards aren’t allowed to implement any cure procedures given that the Pennsylvania Election Code does not outline cure procedures nor has the Legislature enacted “any law allowing for a cure procedure.” The plaintiffs ask that county boards are blocked from implementing or developing cure procedures. |
Wisconsin Voter Registration Form Challenge |
Who: A Wisconsin voter represented by a conservative legal organization, the Wisconsin Institute for Law & Liberty (WILL), sued the Wisconsin Elections Commission (WEC). |
What: The plaintiff is challenging the WEC’s approval of a voter registration form — which is known as the National Mail Voter Registration Form and is provided to states by the U.S. Election Assistance Commission — for failing to comply with state law. |
Why: The lawsuit alleges that the challenged form is missing certain components that are required under Wisconsin law while also containing other elements that are not allowed under state law. For example, WILL claims that the form requests items that are “not required by statute,” including information about a voter’s race and political party affiliation (but if you look at the form yourself, you’ll see that in Wisconsin, voters are “not required” to list their race or ethnic group or their party affiliation).
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Facts, Stats and Testimony |
The future application of Section 2 of the Voting Rights Act (VRA) depends on the outcome of Alabama’s lawsuit, Merrill v. Milligan, currently pending before the U.S. Supreme Court (look out for oral arguments next week on Oct. 4). While all eyes are focused on Alabama, it’s important to remember that any change to Section 2’s protections will have ripple effects across other states that currently have majority-minority districts, such as Georgia and Louisiana.
Louisiana will hold its 2022 elections under a congressional map that a lower court ruled likely violates the VRA for failing to include a second majority-Black district. The Supreme Court paused litigation on the Bayou State’s map until it decides the case out of Alabama.
Inadequate representation in Louisiana inflicts very real harm on the state’s Black communities. Earlier this year, we dove into testimony delivered by Louisianans in support of creating a congressional map with two majority-Black districts. Given the high stakes surrounding the Supreme Court’s decision on Section 2, we wanted to highlight some of this testimony again.
A lifelong resident of St. Landry Parish testified about the educational, economic and social ties between St. Landry Parish and Baton Rouge, and how his home county is systemically overlooked. - “When you are cut off from all three [more densely populated areas — Lake Charles, Lafayette and Baton Rouge], you are effectively disenfranchised as far as congressional politics go because nobody cares about you.”
A business owner and community organizer testified about how the current political lines make it more difficult to advocate for much-needed change. -
“I’m very active…in my community and also participating widely on Zoom or for policy conferences; and I haven’t seen [my congressman] at any events.”
Peter Robins-Brown, the executive director of Louisiana Progress, wrote an op-ed for Democracy Docket where he summarized the high stakes of the Supreme Court’s future decision in Merrill. -
The VRA “might be the most consequential piece of legislation passed in the United States in the past 100 years…Yet, next term, the six conservative justices on the U.S. Supreme Court could gut what remains of it when deciding a case out of Alabama, in a ruling that will almost certainly impact my home state of Louisiana and the future of the VRA itself.”
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We’re paying close attention to state-level activity as the countdown to the midterm elections is on. Along with that, the U.S. Supreme Court will also re-enter the voting rights chat in October.
The Supreme Court term starts on the first Monday in October; this year, that’s Oct. 3. On Oct. 4, the Supreme Court will hear oral arguments in Merrill v. Milligan, the case focused on Alabama’s congressional map and Section 2 of the VRA. The state of Alabama wants the Court to adopt a “race-neutral” approach to redistricting that would effectively eliminate the power behind Section 2, which currently prohibits any law that has the intent or effect of denying or abridging the right to vote “on account of race or color.” You can read all of the briefing on the issue here and take a peek at the amicus (“friend of the court”) briefs filed in support of or against Alabama’s position.
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Don’t forget about another consequential case that will be decided by the nation’s highest court in its upcoming term: Moore v. Harper. This case focuses on the ISL theory, a fringe constitutional theory that suggests that the U.S. Constitution only allows state legislatures to create rules for federal elections. The brief in support of adopting the ISL theory (and amicus briefs in support of this position) have already been filed. The side opposing any application of the ISL theory will file its merits brief on Oct. 16 and any amicus briefs in support of this side are due Oct. 26.
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