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It’s only mid-October, but this week, we surpassed the number of total voting and election lawsuits filed in all of 2020. According to our case tracking, 150 voting and election cases were filed in 2020. This total includes the many cases around COVID-19 pandemic-related voting changes and the 60+ failed lawsuits filed by former President Donald Trump and his allies to overturn the election results.
Even if 2020 felt anomalous in the surge of litigation, 2022 has already exceeded those numbers. As of Oct. 20, Democracy Docket has tracked 152 new lawsuits filed this year. By comparison, at this point in 2020, only 61 lawsuits had been filed. “For decades, Congress and state legislatures were the prime battleground for fights over voting rights and election laws,” writes Marc in his latest piece. “Since 2020, however, we have witnessed a profound transition. Stymied at the ballot box, Republicans are now turning to courts directly to undo voter protections and enable election subversion.” Read about this crucial shift here.
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SCOTUS Schedules Crucial Democracy Case, Moore v. Harper, for Dec. 7 |
How can a case end up before the U.S. Supreme Court? Here’s a quick run-through: After decisions are made at the appellate court level, parties who disagree with those decisions can petition the Supreme Court to take the case. These cases often come from federal appellate courts and, less frequently, state supreme courts. The Supreme Court is not required to hear cases and instead parties ask the court to grant a writ of certiorari. If “cert is granted,” then the case will typically have full briefing and a scheduled, one-hour oral argument before the justices release a final opinion months later.
This week, several updates happened in the independent state legislature (ISL) theory ongoings before the U.S. Supreme Court. On Tuesday, Oct. 18, the Supreme Court announced that oral argument in Moore v. Harper, the case over North Carolina’s court-adopted congressional map that gives the Court the opportunity to review the ISL theory, will be held on Wednesday, Dec. 7, 2022.
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As a reminder, the ISL theory argues that state legislatures have special authority to set federal election rules, free from oversight from other parts of the state government, specifically state courts. How the Court rules in the case could shape legislatures’ power in regulating federal elections — and the checks and balances on this power — for years to come.
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Earlier this year, the North Carolina Supreme Court struck down the state’s congressional map drawn by the Republican-controlled Legislature and court-appointed redistricting experts drew a remedial map that will be in place for the 2022 elections. In June, the U.S. Supreme Court granted the request of GOP lawmakers to review the North Carolina Supreme Court’s decision. Now, we know that on Dec. 7, the U.S. Supreme Court will hear arguments both in favor and against adopting the ISL theory.
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- The briefs from the Harper and state parties fighting any application of the ISL theory were submitted on Wednesday, Oct. 19 — which you can learn about here — and amicus briefs supporting this side are due on Oct. 26.
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Ohio Republicans Want To Get Involved With the ISL Theory Before SCOTUS |
Another interesting turn in this ISL theory and 2021 redistricting saga is that last Friday, Oct. 14, Ohio Republican leaders filed a petition in the U.S. Supreme Court asking it to review the Ohio Supreme Court’s decision to strike down the state’s congressional map. The petition embraces a radical reading of the U.S. Constitution’s Elections Clause.
Before this latest redistricting cycle, Ohioans overwhelmingly voted via ballot initiative to amend the state constitution to ban partisan gerrymandering and create new map-drawing processes. Consequently, once the politicians began drawing skewed maps after the release of 2020 census data, the courts held them accountable. In January 2022, the state Supreme Court struck down the newly enacted congressional map for unduly favoring Republicans, noting that the kind of map passed by the Legislature “is not what Ohio voters wanted or expected” when they approved the amendments.
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The court ordered the Legislature to draw a new map within 30 days, but the Republican-controlled Legislature didn’t even bother trying. The responsibility fell back to the Ohio Redistricting Commission — a body dominated by Republican statewide and legislative leaders — that passed a map that was barely changed from the first one. (This map, already deemed unconstitutional, is unfortunately in place for the 2022 elections while litigation continues.)
By invoking the ISL theory, Ohio Republicans are seeking to constrain state court power related to the state Legislature and congressional redistricting. In effect, this would undo the power of constitutional amendments passed by the voters. To reveal the level of hypocrisy: Ohio Senate President Matt Huffman (R) is involved in this latest effort, but originally sponsored the anti-partisan gerrymandering amendment in the Legislature just a few years ago.
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The Ohio lawmakers want the U.S. Supreme Court to grant the petition and place the case on the Court’s docket; if the Court declines to grant their petition, the lawmakers ask it to hold the case pending the resolution of Moore v. Harper.
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This Ohio request is even more extreme than Moore. In North Carolina, the basis for striking down the congressional map was the North Carolina Constitution’s “free elections” clause. In Ohio, the constitutional basis for courts to strike down the congressional map is an explicit, anti-gerrymandering measure. “Further, the Ohio Supreme Court did not go so far as to physically draw its own map, as the North Carolina courts did. But it still dictated the map’s result and made up instructions for how the legislature was to do its job,” the petition reads. (GOP lawmakers in Pennsylvania — where the state Supreme Court similarly got involved in map drawing this year — also tried to petition the U.S. Supreme Court, but their request was denied a few weeks ago.)
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The GOP Pennsylvania Priority: Tossing Mail-in Ballots With Small Mistakes |
After the U.S. Supreme Court voided a federal court decision last week, it was only a matter of time before Republicans jumped at the opportunity to exploit that action to disenfranchise voters. On Oct. 11, the highest court vacated (meaning voided) a decision by the 3rd U.S. Circuit Court of Appeals that had required Pennsylvania counties to include mail-in ballots that were timely and valid but missing handwritten dates on the outer envelopes in election totals. This Supreme Court action didn’t have any tangible effect on changing the status quo in Pennsylvania — both state court decisions and state guidance have reiterated that undated mail-in ballots must be counted.
Nonetheless, just days after SCOTUS’ surprise update, Republicans sued to ask that mail-in ballots with mistakes as small as missing or incorrect dates not be counted. The Republican National Committee (RNC), National Republican Congressional Committee, Republican Party of Pennsylvania and Republican voters filed a King’s Bench petition (a petition filed in the Pennsylvania Supreme Court when petitioners seek immediate relief from the state’s highest court) putting forth this request.
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In their petition, the Republicans allege that counting mail-in ballots with incorrect or missing dates poses a “threat” of “an irreparable dilution of their votes.” The petitioners allege that the acting secretary’s guidance violates Pennsylvania law. Additionally, the petitioners invoke the radical ISL theory, alleging that only the Pennsylvania Legislature and “not any other organ of state government” has the “‘authority to regulate election[s]’” to argue that the secretary’s guidance is unlawful.
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According to the Associated Press, as of Friday, Oct. 14, “nearly 1.2 million voters had applied for a mai[l]-in ballot, with applications from registered Democrats outnumbering Republicans by an almost 4-to-1 ratio. Throwing out undated ballots would theoretically ensure that more Democratic ballots are tossed out, helping Republican candidates.”
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On Wednesday, national Democratic groups and the Pennsylvania Democratic Party filed a motion to intervene in the lawsuit — meaning they want to get involved in this case to ensure undated and incorrectly dated mail-in ballots are counted. The Democratic organizations note that this Republican challenge to disenfranchise voters for a small and technical error — launched after voters have already begun voting by mail in Pennsylvania — “is just the latest chapter in the relentless attack on mail voting.” They also suggest that this lawsuit is a “last-minute attempt to disrupt and inject chaos into an active electoral process.” Several nonpartisan voter engagement organizations also filed a motion to intervene in the lawsuit.
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Another court victory for Pennsylvania voters: On Oct. 24, Lehigh County will deploy five drop boxes as planned for the midterm elections, despite a conservative attempt to restrict their use. On Tuesday, a Pennsylvania judge denied the Republican request for “in-person monitoring” of drop boxes and to place all drop boxes inside buildings. The judge held that “the integrity of mail-in voting via drop boxes in Lehigh County remains safe and secure.”
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On Wednesday, a judge denied a far-fetched lawsuit that sought to ban the use of electronic voting machines and drop boxes throughout Kansas. This lawsuit also asked for a “re-run” of the 2020 election. A similar lawsuit was shot down in Michigan last month — two examples in a concerning, growing trend of lawsuits challenging the use of electronic voting machines that we’ve also seen in Arizona, Colorado, New Hampshire, Oregon and Pennsylvania. The latest instance is in Morgan County, Georgia, where last week, residents filed a lawsuit against state and county election officials asking to put the use of electronic machines to a vote in a citizen referendum.
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As early voting begins, the potential for voter intimidation becomes clear. In Arizona, the secretary of state’s office has referred a report of voter intimidation to the Arizona attorney general and U.S. Department of Justice after a voter was followed at a drop box location. (Extreme Arizona elected officials and GOP candidates have called on vigilantes to monitor drop boxes.) In Georgia, upwards of 65,000 voter challenges have attempted to disqualify voters. Right-wing activists are ramping up these challenges across the country ahead of the midterms. Learn more here.
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On Thursday, a Michigan judge issued a decision regarding a Republican request to nullify a set of 2022 rules for partisan elections challengers and poll watchers. The judge concluded that the Michigan secretary of state and director of elections “exceeded their authority with respect to certain provisions in [the] election manual” and ordered them to issue an updated version.
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SPOTLIGHT: I Was Unconstitutionally Disenfranchised in Jail |
By Corey “Al-Ameen” Patterson, chair of the African American Coalition Committee, a group based in a Massachusetts correctional facility that is focused on dismantling systemic racial inequities within the criminal legal system. Read more ➡️ |
Candidate Q&A: Charlie Crist on His Run for Governor of Florida |
In Democracy Docket’s latest candidate Q&A, hear from Charlie Crist, a long-time elected official in the state of Florida who previously served as a Republican governor of the state. Now, he’s vying for that position again, this time as a Democrat. Hear what Crist has to say about the most concerning provisions in Senate Bill 90 and Gov. Ron DeSantis’ (R) job with redistricting this cycle. Read more ➡️
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Early in-person voting is well underway in many states! Next Monday, Oct. 24, early voting starts in Alaska, Arkansas, Colorado, Idaho, South Carolina and Texas. Even more states will begin next Tuesday or Wednesday.
💻Check your registration and find your polling location at http://iwillvote.com.
☎️ If you run into any issues, harassment or intimidation at the polls, contact the Election Protection Hotline for help! Call or text 866-OUR-VOTE (866-687-8683).
More than eight million young people have turned 18 since the 2020 election. Alliance for Youth Action is imagining a world where every single one of them casts their ballot in the 2022 midterm elections. First-time voters — share your Democracy Debut here.
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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.) |
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