On the Docket 11/18/2022

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The 2022 midterm elections may be over, but litigation to protect voting rights is not. In a few weeks, Georgia will hold a crucial Senate runoff election and the U.S. Supreme Court will hear a case that has high stakes for the future of democracy.

It’s more important than ever to know what’s happening. Forward our weekly newsletter to a friend, family member or colleague to help everyone stay engaged. If you received this email from someone else, you can subscribe here. [link removed]

Republicans’ Voter Suppression Reckoning

Continually telling your supporters that elections are rigged and popular voting methods are fraudulent can’t possibly have any unintended consequences, right? Now, some high profile Republicans are reckoning with the party’s voter suppression strategy. Since 2020, Republican lawmakers across the country have introduced and enacted restrictive voting laws, often targeting mail-in voting and early voting. Additionally, former President Donald Trump has spent the past few years attacking mail-in voting, an attitude that has impacted the views and voting choices of GOP voters. [link removed]

Yet, this week, Jenna Ellis, former legal advisor to former President Donald Trump, shared and agreed with a Washington Examiner article titled: “Democrats have mastered mail balloting. Republicans will pay if they fail to step up.” Charlie Kirk, the founder and president of the youth right-wing group Turning Point USA, made a similar turn of face, noting the “power of early voting.” Kirk adds that overemphasizing in-person voting on Election Day — the go-to strategy of some GOP candidates — “opens you to traffic jams and machine malfunctions.”

After months of undermining trust in elections, Arizona GOP gubernatorial candidate Kari Lake confronted this reality for the first time after Election Day: Lake repeatedly reminded voters that they can fix mistakes on their mail-in ballots, a process known as curing. In a show of continued hypocrisy, this encouragement comes after Republican lawmakers and lawsuits have worked to undermine curing opportunities in recent months. David Becker, the executive director of the Center for Election Innovation and Research, told the New York Times: “If you tell people that voting is hard, or voter fraud is rampant, or elections are rigged, it doesn’t make people more likely to participate.” [link removed]

Will the Republican Party change course? The Republican National Committee’s latest intervention into a Georgia case to ensure Peach State voters get less time to cast their ballots suggests otherwise. [link removed]

The Fight Over an Important Early Voting Day in Georgia

Soon after the runoff election between U.S. Sen. Raphael Warnock (D-Ga.) and his Republican challenger Herschel Walker was announced, the Georgia secretary of state’s office issued guidance stating that counties are prohibited from holding early voting on Saturday, Nov. 26 (which is the weekend following Thanksgiving) due to a 2016 state law. [link removed]

Confusingly, the secretary’s office was publicly giving conflicting messages just days prior to issuing this guidance. During a news conference on Nov. 9, Georgia Secretary of State Brad Raffensperger (R) stated that “some counties may likely have Saturday voting following Thanksgiving.” Similarly, on that same day, the secretary of state’s chief operating officer reiterated on CNN that “there’s a very good possibility we will probably have voting on Saturday Nov. 26 in many of the counties if they so choose.” The secretary’s office later said it was just confused about how the statute was written. However, it is notable that in 2020, early voting was held on Saturday, Dec. 26, the day after Christmas, but now there is an objection to similar Saturday voting this November. [link removed]

How did we get into this mess? Remember, Georgia has a runoff election system. Historically — and as you may remember following the 2020 election — this runoff took place in early January following a November general election. However, in 2021, the Republican-controlled Legislature passed omnibus election law, Senate Bill 202. Hidden among new voting restrictions that garnered significant national attention was a provision that changed the runoff election timeframe: S.B. 202 moved the runoff date from early January (on the Tuesday of the ninth week following the general election) to early December (on the 28th day after the general election). Since neither Warnock nor Walker earned over 50% of the vote total on Nov. 8, the two candidates will face off in a runoff election on Dec. 6, 2022. For some, it’s a relief that there is one month less of bitter campaigning and suspense over Senate control, but this date change triggers a cascade of negative consequences for Georgia voters. [link removed]

First, Georgians must register to vote 30 days before an election. Given that the runoff takes 28 days after the general election, no new voters can be registered in the intervening month. In contrast, nearly 70,000 voters registered between the 2020 general election and runoff.

Typically, early voting — called “advance voting” in Georgia — is hugely important for the Peach State’s electorate, especially Black voters. By law, several weeks of early voting must be offered. However, because voting cannot begin until the results of the Nov. 8 election are certified — which will not happen until Monday, Nov. 21 — the early voting period for the runoff is cut short.

Finally, this most recent legal battle arose because the shifted runoff date clashes with a 2016 law barring Georgia from holding early voting on the second Saturday before an election if that Saturday “follows a public and legal holiday occurring on the Thursday or Friday immediately preceding” that Saturday.

Raffensperger claims that this law precludes voting on Saturday, Nov. 26, which follows holidays on Thursday (Thanksgiving) and Friday (a “State Holiday” which formerly celebrated Confederate General Robert E. Lee).

Democratic groups disagreed with the secretary’s interpretation of the law and raised alarms over the swift cancellation of a key date of early voting. On Monday, the Democratic Party of Georgia, the Democratic Senatorial Campaign Committee and Warnock’s campaign for U.S. Senate filed a lawsuit against the state over its prohibition of early voting on Nov. 26. The Democratic groups argue that the 2016 law that dictates whether or not certain Saturday early voting days are permissible makes no mention of runoff elections, so it does not apply in this context. (The Georgia Republican Party and other national Republican organizations filed a motion to intervene in this lawsuit trying to ensure no early voting takes place on Nov. 26.) [link removed]

Why does this Saturday matter so much? With the early voting period already cut so short by the new timeline, each and every day of early voting — especially a weekend opportunity — is crucial for voters. Warnock emphasized this during a press conference: “This is not a theoretical argument, these decisions have practical implications for ordinary, hard working Georgia families.” Additionally, for out-of-state college students, this lone Saturday might be the only opportunity to cast an early ballot if they’re visiting family for Thanksgiving. [link removed]

Will Defeated Republicans Use the Courts To Fight Back in Arizona?

Whether or not they learned from Trump’s failed legal debacle in 2020, the Republican Party has not pursued an aggressive post-election legal strategy so far. However, two Arizona statewide candidates — GOP gubernatorial candidate Kari Lake and secretary of state candidate Mark Finchem — whose races have been called in favor of their opponents have yet to concede. They also continue to share conspiracy-laden complaints on social media about the issues with Election Day tabulating machines in Maricopa County and the slow counting and release of election results. Lake posted a video yesterday morning stating that she has “assembled the best and brightest legal team and we are exploring every avenue to correct the many wrongs that have been done this past week.” To bolster her position, Lake is sharing testimonies from voters who were confused, or in some cases, disenfranchised in this year’s election. While it is disheartening when anyone is unable to exercise their right to vote, the testimony shared by Lake is not evidence for a wide-spread conspiracy. In fact, it exemplifies the unfortunate consequences of the Arizona GOP’s very own voter suppression efforts. [link removed]

As of 6 p.m. on Thursday, Democrat Kris Mayes led her Republican opponent Abe Hamadeh by only 55 votes in the attorney general race. There are still outstanding ballots to count, but it is likely that this race will fall within the threshold to automatically trigger a recount under state law.

So far, the GOP’s only major post-election lawsuit challenging voting in the 2022 midterms is in Houston, Texas. On Monday, the Harris County Republican Party and its chairwoman filed a lawsuit against the county’s election administrator challenging “multiple instances of ill-advised and illegal alterations of election procedures which must be stopped immediately.” This lawsuit was filed on the same day that Texas Gov. Greg Abbott (R) called for an investigation into the 2022 midterm elections in Harris County, the largest Democratic-leaning county in the state. The Republican plaintiffs allege that the Harris County election administrator “allowed the [Nov. 8] election to be run in such a manner that it illegally disenfranchised tens of thousands of registered voters from casting their votes for the candidates of their choice.” [link removed]

The Curious Case of Election Denier Concessions

As we await to see what Lake and Finchem will do in Arizona, there’s been a pleasantly surprising trend of extreme “Big Lie” advocates conceding after defeat. Of course, we aren’t going to applaud someone for doing the bare minimum in a democracy after months of sowing distrust, but this outcome is nonetheless better than the alternative. Here’s a rundown of a few key races:

Adam Laxalt (R) lost to Sen. Catherine Cortez Masto (D-Nev.) in his bid to represent Nevada in the U.S. Senate. Laxalt led the effort to overturn the 2020 presidential election in Nevada. He conceded this week. [link removed]

Blake Masters (R) lost to Sen. Mark Kelly (D-Ariz.) in his race for U.S. Senate in Arizona and conceded this week. Masters has stated that “I think Trump won in 2020.” He is the first of Arizona's radical GOP slate of candidates to concede a loss.

Dan Cox (R) conceded to Wes Moore (D) in his bid for governor of Maryland. He lost by 27%. Cox bused individuals to the Jan. 6, 2021 insurrection.

Doug Mastriano (R) lost his bid for governor of Pennsylvania to current Pennsylvania Attorney General Josh Shapiro (D) by over 14%, but waited nearly a week to concede. Mastriano spent campaign funds to bus protesters to the U.S. Capitol on Jan. 6, 2021.

Derek Schmidt (R) conceded to Gov. Laura Kelly (D) after losing his race for governor of Kansas. As Kansas' attorney general, Schmidt joined a lawsuit asking the U.S. Supreme Court to overturn the results of the 2020 election in four key states.

Lee Zeldin (R) lost his bid for governor of New York to incumbent Kathy Hochul (D). As a U.S. Rep. for New York’s 1st District, Zeldin voted against certifying the election results on Jan. 6, 2021. He has conceded to Hochul. [link removed]

Tudor Dixon (R) lost her election for governor of Michigan to incumbent Gov. Gretchen Whitmer (D) by about 10%. While Dixon did not commit to honoring the results of this election during her campaign, she did concede to Whitmer.

Tim Michels (R) lost to Gov. Tony Evers (D) in the race for governor of Wisconsin by about 3%. Michels claimed that if he won, no Democrat would win an election in Wisconsin again. He conceded to Evers. [link removed]

Matthew DePerno (R) conceded to Michigan Attorney General Dana Nessel (D) after losing by about 8%. DePerno is currently under investigation for allegedly tampering with Michigan voting machines. [link removed]

In contrast, Kristina Karamo (R) lost Michigan’s secretary of state seat to incumbent Jocelyn Benson (D) by nearly 14% and has not conceded. Jim Marchant (R), vying for Nevada’s chief election officer, has not done so either to the Democratic winner, Cisco Aguilar (D). In Minnesota, secretary of state candidate Kim Crockett (R) acknowledged she did not win her race, but it was unclear if it was a concession. [link removed]

State Legislatures Not Yet Settled

Democrats did not lose control of a single state legislative chamber this year. This is the first time since 1934 that the party of the president can claim such a victory in the midterms. On top of that, Democrats flipped legislative chambers in Michigan, Minnesota and Pennsylvania. [link removed]

Before Election Day, there were 113 Republicans and 89 Democrats in the Pennsylvania state House. Currently, Democrats lead 102 to 100 in called races, with one remaining too close to call: Bucks County’s 142nd state House District. [link removed]

In New Hampshire, there were nearly two dozen recounts that took place this week and are scheduled to continue throughout the weekend, with Democrats closing in on the historically Republican-controlled state House. [link removed]

In addition to these handful of recounts, several lawsuits have been filed by candidates in state legislative races who are hoping to swing the results in their favor. There are many legitimate reasons for post-election lawsuits, especially in close elections, but others can be frivolous:

In Illinois’ 45th state House district, GOP candidate Deanne Mazzochi sued DuPage County alleging that the county clerk is not properly verifying signatures on mail-in ballots. Mazzochi is currently losing by just under 200 votes. [link removed]

In New York’s 50th state Senate District, GOP candidate Rebecca Shiroff filed a lawsuit asking a court to preserve all ballots from the election, alleging (without evidence) that voting machines are inaccurately counting ballots. [link removed]

Also in New York’s 50th state Senate District, the incumbent Democratic and Working Families Party candidate John Mannion filed a lawsuit seeking a recount. Ballot counting isn’t finished in this district yet, but the results will likely be close enough to trigger an automatic recount under New York law. [link removed]

In New York’s 42nd state Senate District, GOP candidate Dorey Houle filed a lawsuit alleging that the Orange County Board of Elections hasn’t counted all the ballots that it needs to and that the county used defective voting machines that affected the results. [link removed]

More News

After legal back and forth, what’s happening with the rogue counties pursuing expanded hand counts? The county commissioners in rural Nye County, Nevada moved forward with their parallel hand counting of election results, despite numerous concerns raised about its security and efficacy. The latest attempt by the American Civil Liberties Union of Nevada to halt this effort was denied, but the county did not expect to complete this hand count by yesterday’s county certification deadline. [link removed]

The two Republican members of the Cochise County Board of Supervisors tried, and failed, to work around a court order stating that they cannot conduct a 100% hand count nor a hand count of early ballots. Instead, the officials tried to conduct a hand count with a lower percentage of Election Day ballots; they rejected the advice of their county attorney, struggled over how to pay for growing legal fees and tried to compel their elections director to execute their potentially illegal plan. On Wednesday, it appears that the rogue commissioners gave up on this effort. [link removed]

The Wisconsin Elections Commission allowed the city of Racine to continue using a mobile election van as an early in-person absentee voting site, rejecting a conservative group’s complaint that alleged that the van violated state law. [link removed]

Last week, the Tohono O’odham Nation and Gila River Indian Community filed a lawsuit alleging that the strict proof of residency requirement for voter registration under Arizona’s House Bill 2492 unfairly burdens Native voters and violates federal law. This is the seventh lawsuit filed against the law, including one by the U.S. Department of Justice. [link removed]

On Thursday, the Ohio House of Representatives Government Oversight Committee adopted a substitute to House Bill 294, a voter suppression bill originally introduced in 2021. The substitute version would make the bill substantially worse for voters by removing an automatic voter registration system provision, several ways that allow voters to keep their voter registration active and a section that would codify curbside voting to ensure it remains limited in future Ohio elections. It would also prohibit the Ohio secretary of state from sending absentee ballot applications to all voters and shorten the time to accept absentee ballots. As originally introduced, H.B. 294 already placed limits on drop boxes and more. [link removed]

Election Deniers Lost, but Will the GOP Change?

By Marc Elias. Read more ➡️ [link removed]

What We’re Doing

As right-wing misinformation swirls about Maricopa County, home to Phoenix, it’s important to amplify serious reporting on the issues. Votebeat’s Jen Fifield has covered important topics and dispelled myths, from “Why Arizona’s ballot count takes longer than Florida’s” to “What we know and don’t know about Maricopa County’s Election Day ballot debacle.” [link removed] [link removed]

All hands are on deck to help Warnock get re-elected to the Senate on Dec. 6. In Georgia? Join the Georgia Democratic Party for in-person and virtual events. No matter where you are located, you can mobilize voters by writing postcards or phone banking. (After you sign up to phone bank, you can expect a brief training from the event organizers before you are set up on a dialer. A script is always given to you, so you don’t have to worry about what to say.) [link removed]

Next Friday, Nov. 25 celebrate Black Friday with some new Democracy Docket merch. Use the code DD15 to get 15% off through the following Monday. See what’s in stock now. [link removed]

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Have a question? Join Marc and Paige today on Twitter Spaces at 2 p.m. EST 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]

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