On The Docket 10/07/2022

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The Future of the VRA Goes Before the U.S. Supreme Court

On Tuesday, the nine U.S. Supreme Court justices heard oral arguments in Merrill v. Milligan. The case centers on whether Alabama violated Section 2 of the Voting Rights Act (VRA) when it enacted a congressional map that created one rather than two majority-Black districts. The state of Alabama wants the Court to adopt a race-netural approach that would undercut the very purpose of Section 2, which is to remedy race-based discrimination. The Court will likely release an opinion next spring. [link removed]

Though scheduled for one hour, the oral arguments took close to two hours on Tuesday morning. We heard a history lesson from the newest justice, Justice Ketanji Brown Jackson, about the intention behind the Reconstruction Amendments. Justice Brett Kavanaugh zoned in on the redistricting principles of compactness and reasonable configuration, while Justice Samuel Alito fixated on computer simulations that, to him, seemed to show an impermissible use of race by the plaintiffs seeking Section 2 liability. Justice Elena Kagan pointed out the ways that the VRA has been chipped away in recent years: “You’re asking us, essentially, to cut back substantially on our 40 years of precedent and to make Section 2 extremely difficult to prevail on. So what’s left?”

Find a play-by-play of the arguments here. [link removed]

Read our analysis of key takeaways here. [link removed]

Listen to a post-oral arguments debrief with Marc and Paige, with special guests Abha Khanna (a lawyer who advocated before the Court on Tuesday) and Marina Jenkins, Director of Litigation and Policy at the National Redistricting Foundation. [link removed]

Three Montana Voter Suppression Laws Struck Down

In a big win for voters, a Montana trial court struck down three voter suppression laws last Friday. (A fourth law, House Bill 506, was struck down in July.) In last week’s order, the judge walked through extensive evidence presented over the course of a multi-week trial that highlighted the burdens these laws placed on Montana voters: [link removed]

House Bill 176 eliminated Election Day registration, which the judge held posed unnecessary burdens on the right to vote that’s guaranteed under the state constitution. The evidence presented throughout the trial highlighted that the burden disproportionately falls upon Native American voters, students, older voters and voters with disabilities “who already face greater barriers to participation and are less likely to be able to overcome those increased costs.”

House Bill 530 banned paid ballot collection and curtailed other forms of ballot return assistance. The judge ruled that restricting ballot collection efforts (especially without properly defining what qualifies as restricted activity) will disproportionately affect those who rely on civic and political organizations to return their absentee ballots. [link removed]

Senate Bill 169 changed voter identification laws. The judge concluded that the Republican-controlled Legislature intentionally targeted young voters by eliminating the use of student IDs as acceptable standalone IDs, which placed “heightened and unequal burdens on Montana’s youngest voters.” The judge pointed out that it “is no accident that the Legislature passed SB 169 just months after Montana’s youngest voters turned out to vote at record rates.”

In total, the judge rejected the state’s defense of the three laws, pointing out that there “is no evidence of any voter fraud in Montana associated with [Election Day registration], student IDs, or third-party ballot assistance, and not even the Secretary’s own witnesses believe voter fraud is a problem in Montana.” This decision is a major victory for Montana voters.

The End to a Four Year Lawsuit in Georgia

Fair Fight Action v. Raffensperger, a 2018 lawsuit led by Stacey Abrams’ Fair Fight, ended last week. After the case went through years of litigation before the district court, a trial was held in April on three remaining claims. Last Friday, the judge ruled in favor of the state and upheld all of the challenged laws, concluding that “[a]lthough Georgia’s election system is not perfect, the challenged practices violate neither” the U.S. Constitution nor the VRA. You can read about the challenged laws, and the district judge’s reasoning, here. [link removed]

The four year lawsuit was not in vain, however. “By advocating on behalf of voters, Fair Fight Action and co-plaintiffs have forced accountability among elected and appointed government officials,” wrote Fair Fight in a press release after the ruling. “Even without judicial relief, through this litigation Plaintiffs have successfully advocated for commonsense, pro-voter improvements to Georgia’s elections system.” These improvements included: [link removed]

Ending Secretary of State Brad Raffensperger’s (R) practice of keeping eligible voters off the active voter list if their application does not exactly match records, character for character;

Improving the process of voiding an absentee ballot, to then vote in person and

Exposing the disparate rate that Georgians of color are 10 times more likely than whiter voters to be flagged by the secretary’s “Exact Match” registration policy.

This lawsuit is unrelated to the ongoing litigation over Georgia’s voter suppression law enacted in 2021. Also, Fair Fight is still awaiting a decision in a different lawsuit against True the Vote, a right-wing organization that challenged the eligibility of over 364,000 Georgians in the few weeks between the 2020 general election and the January 2021 Georgia runoffs for U.S. Senate. [link removed]

New York Republicans Go After Absentee Voting

Last Thursday, Sept. 29, eleven conservative plaintiffs — including the New York State Republican Party — filed a lawsuit against two state laws that govern who is eligible to vote absentee and how absentee ballots are processed. The first challenged law permits the canvassing and counting of absentee ballots on an expedited basis (every four days leading up to Election Day). The plaintiffs assert that the statute “impermissibly opens the election process to the counting of invalid and improper votes, including fraudulent votes.” Wasn’t it Republican groups that were so pressed when election results had to be tallied past Election Day? [link removed]

The second challenged law allows people to vote absentee if they are concerned about contracting an illness, such as COVID-19. The Republican plaintiffs request that the court declare both of the challenged laws unconstitutional. In addition, the group asks the court to prohibit the State Board of Elections from accepting partially pre-filled absentee ballot applications.

On Wednesday, the Democratic Congressional Campaign Committee and others filed a motion to intervene in this case. The Democratic groups point out that absentee voting for the 2022 general elections started on Sept. 23 but the conservative groups waited until Sept. 27 to file this lawsuit. With the election fast approaching — and states sending out absentee ballots even sooner — these types of election lawsuits will move through the courts quickly. We’ll keep you updated. [link removed]

Courtroom Recaps of the Week

On Monday, the North Carolina Supreme Court heard an appeal of a decision by a trial court to permanently block a law that creates a narrow list of qualifying photo IDs acceptable for voting. The trial court found that the law was enacted with the intent, at least in part, to discriminate against African American voters in violation of the state constitution. Find a courtroom recap here. [link removed]

On Tuesday, the same seven justices of the North Carolina Supreme Court heard more oral arguments, this time in a redistricting lawsuit. In February, a North Carolina trial court adopted new state House, state Senate and congressional districts after the first round of maps were struck down by the North Carolina Supreme Court for violating the state constitution. Following the trial court’s adoption of corrective maps, Republican legislators asked the U.S. Supreme Court to step in. This is where the case Moore v. Harper, which invokes the radical independent state legislature (ISL) theory, comes into play.

TLDR: The U.S. Supreme Court will hear and decide this case and weigh in on ISL, but appeals were already filed in the North Carolina Supreme Court over the state’s congressional and legislative maps, so proceedings will continue there, too. Find a courtroom recap here. [link removed]

On Thursday, the Delaware Supreme Court heard oral arguments in a case challenging two newly-enacted, pro-voting measures. Earlier this summer, Republicans challenged both same-day registration and no-excuse mail-in voting. On Sept. 14, a lower court upheld the former, while ruling that the latter violated the Delaware Constitution. The Delaware Department of Elections appealed the no-excuse mail-in voting decision and the Republicans appealed the same-day registration decision. Find a courtroom recap here. [link removed]

Also on Thursday, a three-judge panel of the 5th U.S. Circuit Court of Appeals heard oral arguments in a lawsuit challenging multiple provisions of a Texas law, which imposes strict residency requirements on voters. Yesterday’s arguments concerned an appeal of a district court decision striking down multiple provisions of the law for violating the First and 14th Amendments. Find a courtroom recap here. [link removed]

RNC’s Fixation on Poll Workers and Poll Watchers Continues
The Republican National Committee (RNC) is suing blue cities in purple states for information about the partisan affiliation of election staff. On Tuesday, the RNC and the Republican Party of Arizona filed a lawsuit against Maricopa County officials, requesting information related to the partisan breakdown of staff who work at election boards and polling places. The Republican groups allege that during the August 2022 primary, eleven voting centers in Maricopa County “lacked even a single Republican poll worker” and ask the court to compel Maricopa County to produce the information they demand. (On Wednesday, the RNC filed another suit against Maricopa County over the regulations imposed on election workers.) In September, the RNC filed a similar lawsuit in Nevada in which it demanded that Clark County “immediately produce public records containing verifiable information about poll workers’ party identification/affiliation.” (An agreement was reached this week — Clark County will now provide a list of poll workers’ duties and political party affiliations for each polling place, but won't release poll workers' names.) [link removed]

Poll workers are one half of the story. Last Friday, the RNC, Michigan Republican Party and a voter challenged a set of 2022 rules pertaining to the appointment, rights and duties of partisan elections challengers (Michigan’s name for partisan poll watchers). The Republican plaintiffs allege that the new instructions violate Michigan law, specifically requirements around written authority to serve as a challenger; party appointments before, but not on, Election Day; communication limited to a designated “challenger liaison;” prohibitions of certain electronic devices and the ability for election clerks to not record “impermissible challenges.” This lawsuit represents yet another attempt by the RNC to weaponize poll watchers into agents of intimidation. [link removed]

Trump-Linked Group Announces Plan For Pre-Election Audits

An organization founded by members of former President Donald Trump’s campaign, announced a pre-election audit of voting lists in nine states that feature some of the most competitive elections this year: Arizona, Florida, Georgia, North Carolina, Nevada, Ohio, Pennsylvania, Virginia and Wisconsin. The right-wing group called Look Ahead America plans to identify voters that are ineligible to vote and forward that information to each state’s election officials for removal. The group also plans to share the information with local activists so these individuals can challenge voters themselves. [link removed]

Look Ahead America claims that illegal ballots were cast in the 2020 election and that a pre-election audit will prevent that from happening this year. In actuality, its efforts will likely endanger the rights of eligible voters in the affected states, as voter list maintenance is notoriously prone to errors. Encouraging voter challenges also threatens to overwhelm elections offices during an already busy time, as challenges have surged in several states this year. [link removed]

More News

On Monday, a North Carolina judge ruled from the bench (a spoken ruling in the courtroom at the end of a hearing), rejecting a request from Republicans to invalidate a ruling from the North Carolina State Board of Elections (NCSBE). The NCSBE’s ruling, which will stand, prohibits county boards from enacting signature matching procedures for mail-in ballots. More information to come once a written order is released. Learn about the case here. [link removed]

A New Hampshire judge dismissed a lawsuit that argued that New Hampshire’s state Senate and Executive Council districts are partisan gerrymanders that favor Republicans in violation of the New Hampshire Constitution. In the short order, the judge determined that the “claims of excessive political gerrymandering…present non-justiciable political questions” that the court cannot address. State constitutions vary greatly — and often confer explicit rights beyond that in the U.S. Constitution — consequently, state courts have reached different conclusions on their ability to adjudicate partisan gerrymandering claims. [link removed]

In Bexar County, Texas — home to San Antonio — county officials decided to close numerous polling locations for the upcoming 2022 midterm elections. A new lawsuit alleges that the reduction from 302 polling locations in 2020 to 267 for 2022 violates Texas Election Code and will disproportionately impact minority voters who will have to travel further distances. (Ahead of the 2020 election, a Bexar County judge ordered the county elections department to add more polling locations.) [link removed]

The American Civil Liberties Union of Nevada is challenging how election clerks in Nye County, Nevada plan to conduct the upcoming elections. The lawsuit is challenging Nye County’s plan to hand count election results, along with guidance that limits the use of Americans with Disabilities Act-compliant touch screens, imposes strict signature matching requirements and permits a premature announcement of election results. (Last month, another lawsuit challenged statewide guidance that permitted county recorders to hand count ballots, which a state court declined to block and is now on appeal.) [link removed]

On Wednesday evening, a Wisconsin judge ruled in favor of a conservative group to block guidance from the Wisconsin Elections Commission that permitted voters to spoil their absentee ballots and cast a new one. ("Spoiling" is when an absentee ballot is discarded and disqualified from being counted. The guidance allowed voters to ask election officials to spoil their returned absentee ballots and get a new one if a voter made a mistake, received a damaged ballot or opted to vote in person instead.) [link removed]

Last Thursday, the 5th U.S. Circuit Court of Appeals reversed a lower court’s decision that had ordered Texas Secretary of State John Scott (R) to produce documents over the state’s voter purge program. Civil rights groups had filed a lawsuit against Scott, alleging that his failure to provide records regarding the state’s recently implemented program violates the Public Disclosure provision of the National Voter Registration Act. Scott’s voter purge program uses Department of Public Safety records — which are often outdated and therefore do not always reflect a person’s current citizenship status — to determine a voter’s citizenship status. [link removed]

Ohio Secretary of State Frank LaRose (R) announced a new, dedicated division to investigate fraud and other violations of election law. Even though he acknowledges that fraud is extremely rare in Ohio elections, LaRose argues the move is justified given declining confidence in elections — without acknowledging the falsehoods spread by his own political party. This move mirrors similar actions in Florida, Georgia, and Virginia. [link removed]

Candidate Q&A: John Fetterman on His Run for U.S. Senate

In Democracy Docket’s latest candidate Q&A, Pennsylvania Lt. Gov. and U.S. Senate candidate John Fetterman lays out his three “must-have” provisions in a federal voting rights bill and explains why Pennsylvania has become a focal point in the fight for democracy. Read more ➡️ [link removed]

What We’re Doing

Door-knocking isn’t just for trick-or-treating on Halloween. It’s actually one of the most impactful, tried and tested campaign methods out there. Look up your zip code on SwingLeft to find the highest impact races near you, or reach out to local candidates — they often need all the help they can get. [link removed] Alternatively, join the DNC’s Call Crew for a Zoom-based phone bank from the comfort of your own home. [link removed]

We’re listening to Women Saving Democracy: On the Front Lines of the Election, a podcast collaboration between professor Michele Goodwin and Ms. Magazine on the female election administrators battling for democracy. Relatedly, legal journalist Dahlia Lithwick recently published an exploration of the women at the forefront of the legal battles during the administration of former President Donald Trump in “Lady Justice: Women, the Law, and the Battle to Save America.” [link removed] en-saving-democracy-on-the-front-lines-of-the-election/id1519477544?i=1000581080529

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The rumors are true: There's new swag in the Democracy Docket store and there are even more new items coming soon. Check it out here. [link removed]

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Have a question? Join Marc and Paige 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]


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