11/23/2022

Surprise! The Brief is in your inbox a few days early this month. We wanted to make sure you had plenty of time to review the latest voting rights, redistricting and democracy developments from November before December kicks off with even more litigation. 

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We made it through the 2022 midterm elections. As results are finalized and certified across the country, the biggest takeaways are that election deniers lost in swing states and Americans repeatedly chose reproductive rights and voting rights via ballot measures.

Most of the past month’s activity came in the week before Election Day as courts raced to issue decisions in important lawsuits that directly affected voters. The overwhelming majority of these rulings protected and expanded voting access across the country, ensuring that individuals were able to cast their votes and have them counted. In today’s edition of The Brief, we roundup all of the November litigation that impacted voting rights during this election cycle.

Major Midterm Victories for Mail-in Voting

In the week before the 2022 midterm elections, a flood of rulings came down regarding mail-in/absentee voting, and all but one were resounding victories for voters.

First, let’s get the one piece of bad news out of the way. After multiple Republican groups filed a lawsuit in October, the Pennsylvania Supreme Court ruled on Nov. 1 that counties could not count undated mail-in ballots, which are ballots that are timely cast and valid but missing a date on their outer return envelopes. The court also held that counties couldn’t count mail-in ballots that were dated outside of Sept. 19 to Nov. 8, 2022 or absentee ballots that were dated outside of Aug. 30 to Nov. 8, 2022 (in Pennsylvania, there is a slight distinction between mail-in and absentee ballots). The court found that counting these ballots would violate state law and thus directed counties not to count them. Notably, the justices were evenly divided as to whether not counting undated or wrongly dated mail-in ballots would violate federal law, specifically the Materiality Provision of the Civil Rights Act. 

• The verdict: This ruling meant that wrongly dated and undated mail-in ballots were not counted this November (unless counties gave voters an opportunity to cure this mistake on their mail-in ballot, an option that was available to counties after yet another Republican lawsuit failed to prohibit the practice). We don’t have official statewide figures yet for the number of mail-in ballots that were rejected because of this ruling, but this is certainly not the last time we’ll hear about undated and wrongly dated mail-in ballots.
  

On Nov. 1, a federal judge in Arizona issued a temporary restraining order that prevented Clean Elections USA (a right-wing group behind vigilante drop box monitoring in Arizona) and its supporters from engaging in certain drop box monitoring activities before the midterm elections. Among other requirements imposed for the midterm elections, the defendants weren’t allowed to: go within 75 feet of drop boxes or the entrance where a drop box is located; follow individuals delivering ballots; speak or yell to a voter, unless the voter talks to them first or openly carry firearms or wear body armor within 250 feet of a drop box.

• The verdict: These vigilante monitoring efforts — which multiple Arizonans described as intimidating and a deterrent from voting via a drop box — were rightfully blocked.

On Nov. 1, a New York state court rejected two Republican lawsuits challenging two absentee voting laws. This means that the two laws — one that permits people to vote absentee if they are concerned about contracting an illness such as COVID-19 and another that allows for the counting and canvassing of absentee ballots on an expedited basis and prevents legal challenges to already counted ballots — remain in effect in New York. The intermediate appellate court found that the Republicans had waited too long to challenge the laws, which have been in effect since 2021.

• The verdict: The dismissal of these two lawsuits means that both laws regulating absentee voting in New York remain in place, a win for voters who rely on absentee voting and for election officials who can process absentee ballots in an expedient manner.

On Nov. 7, Cobb County, Georgia agreed to provide emergency relief to absentee voters after an administrative error led to the county’s failure to send 1,036 absentee ballots to voters even though the voters had followed all procedures and met deadlines to request ballots. Following a lawsuit, Cobb County overnighted absentee ballots and extended the absentee ballot receipt deadline for the affected voters to Nov. 14.

• The verdict: The agreement ensured that affected voters in Cobb County were not arbitrarily disenfranchised due to the county’s error.

On Nov. 7, a Pennsylvania court denied a Republican request to temporarily block Monroe County, Pennsylvania from being able to pre-canvass mail-in ballots during the midterm elections. Such a request would have effectively made it impossible for Monroe County voters to cure — the process by which voters may fix small and technical errors — their mail-in ballots. Notably, this lawsuit was filed after the Pennsylvania Supreme Court affirmed that counties could implement cure procedures.

• The verdict: By denying the Republicans’ request to block pre-canvassing in Monroe County, the county was able to offer cure procedures to its voters and ensure that they weren’t needlessly disenfranchised.

On Nov. 7, a Wisconsin judge rejected a Republican request seeking to segregate and halt the counting of absentee ballots cast by voters in the military. The lawsuit, which was filed just four days before the midterm elections, alleged that there is “vulnerability” with the state’s system for distributing military absentee ballots and, as a result, such ballots needed to be sequestered. In rejecting this request, the judge stated that the plaintiffs’ request to sequester military absentee ballots would amount to a “drastic remedy” that would “temporarily disenfranchise” military voters.

• The verdict: This decision was a major victory for Wisconsin military voters whose validly cast ballots were rightly counted in the midterm elections.

On Nov. 7, a Michigan judge denied a Republican request to impose strict limits on how absentee ballots are administered, returned and counted in Detroit, Michigan. Kristina Karamo, the failed election-denying Republican candidate for Michigan secretary of state, and other aligned parties sought to upend the city’s absentee ballot procedures by filing this lawsuit claiming that Detroit’s procedures were insufficient. The lawsuit also wanted to halt the counting of thousands of absentee ballots that had already been cast. The judge flatly denied the plaintiffs’ outlandish requests and dismissed their unsubstantiated claims altogether, concluding that “[d]espite Plaintiffs’ arguments to ‘shed light in a dark place,’ they have failed dramatically.”

• The verdict: This decision was not only a major victory for Detroit voters, but also a wholesale repudiation of efforts by Republicans and election deniers alike to subvert free and fair elections by undermining and sowing doubt around lawful, secure election procedures.

On Nov. 8, the Nevada Supreme Court denied a request by the Republican National Committee (RNC) to add more Republican members to Clark County, Nevada’s “signature verification board,” (a group of “temporary staff” hired by the county to assist with the signature verification process in response to an anticipated influx of mail-in ballots). Even though a district court already rejected this request and ruled that “it is a big stretch to classify temporary employees as board members on a board that the County Registrar never created,” the RNC alleged that the “signature verification board disproportionately excludes Republicans” in violation of Nevada law and asked the state Supreme Court to step in, which it declined to do.

• The verdict: In denying the RNC’s requested relief, the Nevada Supreme Court put an end to Republican attempts to further politicize ministerial roles in election administration.

Down to the Wire Wins for In-person Voting

In the first week of the month, we also saw a number of rulings regarding in-person voting and Election Day procedures.

On Nov. 3, an agreement was entered between York County, Pennsylvania and CASA (a nonprofit civil rights organization) that expanded the county’s Spanish-language materials for the 2022 midterm elections. This agreement came after CASA filed a lawsuit arguing that the county previously failed to provide sufficient Spanish-language ballots or “Spanish-language election materials or assistance” despite the county’s substantial Puerto Rican population. Among many provisions, the agreement stipulated that Spanish-language sample ballots will be available to Spanish-speaking voters at every precinct in York County and on the board’s website, election workers will post signs regarding York County’s Spanish-language assistance line, the county will provide materials and training for Spanish-speaking poll workers and the board will post specific notices in Spanish on its website.

• The verdict: This was a victory for York County voters who benefitted from expanded access to the voting process as a result of additional Spanish-language materials and resources. One resident — who was voting for the first time after recently becoming a U.S. citizen — said “she was nervous to vote because she didn’t know what to expect,” but she received a Spanish-language ballot and was offered the assistance of a Spanish translator and concluded that “the process went smoothly” and it “was very exciting.”

On Nov. 3, the Michigan Supreme Court reinstated common sense rules for partisan election challengers after a lower court modified the regulations following a Republican lawsuit. This decision meant that the rules, which limit disruptive actions by partisan actors, were in effect for the midterm elections.

• The verdict: In reinstating these guidelines and rejecting yet another Republican attempt to weaponize poll watchers into agents of intimidation and voter suppression, the Michigan Supreme Court ensured that the state’s midterm elections were safe and orderly.

On Nov. 7, a court confirmed that election officials in Dutchess County, New York must install an on-campus polling place at Vassar College for the midterm elections after the county’s Republican commissioner refused to open one. This was in direct violation of New York law, which requires all college campuses with over 300 registered voters to have a polling location. The county was sued over the lack of a polling place on or near Vassar and two courts confirmed that the county is required under New York law to open an on-campus polling location, which it did in time for the Nov. 8 elections.

• The verdict: As of the midterm elections, Vassar College had over 1,000 registered voters residing on its campus. This ruling ensured that Vassar students, faculty, staff and families had access to a convenient polling location.

On Nov. 7, a federal judge issued an emergency order prohibiting election officials at a polling site in Beaumont, Texas from engaging in behavior that the county’s Black voters found to be intimidating and discriminatory. A lawsuit was filed earlier in the day alleging that election officials at a voting location in Beaumont, which serves a predominantly Black community, were unjustly intimidating Black voters. The emergency order blocked the location’s officials from engaging in certain behaviors, such as refusing to assist Black voters or following Black voters around the voting site, during the midterm elections.

• The verdict: Voters should be able to cast their ballots without facing intimidation. This order affirmed this right and put an end to discriminatory behaviors at a voting location in southeast Texas. The president of the Beaumont Chapter of the NAACP, Rev. Michael Cooper, called the decision a win for Beaumont voters.

The Hand Counting Saga Continues

As predicted, election conspiracies about voting machines that are currently gripping rural, red counties created issues this election cycle. 

Cochise County, Arizona was in the spotlight in November. The southeastern Arizona county with a population of 125,000 went through a saga of repeated attempts and failures to implement a hand count of midterm elections results. First, Cochise County planned to conduct a hand count audit of all early ballots (all ballots cast before Election Day); the county’s Republican election officials insisted that a hand count audit was necessary because “many voters lack confidence in the voting system.” The county was sued and on Nov. 7, an Arizona judge ruled that it couldn’t proceed with a plan to conduct a full hand count audit. Then, on Nov. 14, the two Republican members of the Cochise County Board of Supervisors filed a new lawsuit asking a court to force the elections director to conduct a hand count of Election Day ballots cast at 16 out of the 17 vote centers in the county (this would avoid conducting a full hand count of all Election Day ballots, which would violate the court’s previous order). Fortunately, one day after filing this lawsuit, the Republican supervisors withdrew their petition. Nonetheless, as of Nov. 19, the Republican supervisors delayed certifying the county’s midterm election results, citing conspiracies about voting machines. The county has until Nov. 28 to certify its results and litigation around this issue might pop up. The Arizona secretary of state’s office has already sent a letter to the county warning the board that the office “will take all available legal action” if the county fails to certify the canvass of the 2022 midterm elections. The Arizona Alliance for Retired Americans has also threatened to sue if the deadline isn’t met. 

• The verdict: All of Cochise County’s schemes were put to an end (for now, at least), though we’ll see if the county delays certification. Even if everything goes to plan, it may be too soon to tell what kind of damage the county’s Republican supervisors caused regarding the public’s trust in election administration.

On Nov. 14, the Nevada Supreme Court unanimously rejected a request from the American Civil Liberties Union of Nevada (ACLU of Nevada) to halt Nye County’s “parallel hand-count process,” which entails hand counting all ballots that have already been tabulated with a machine. The ACLU of Nevada alleged that Nye County’s parallel hand counting process violated Nevada law, but the state Supreme Court rejected that argument because the county used voting machines as its primary method of counting.

• The verdict: Even though Nye County was legally allowed to continue with its parallel hand counting process, it didn’t complete that process before a statutory certification deadline. But, the good news is that this didn't prevent the commissioners from completing certification in a timely manner. 

A Hairy Situation in Harris County, Texas

Ballots cast on Election Day in Harris County, Texas — the most populous county in the state and third most populous county in the nation — are the center of a legal battle following the midterms.

On Election Day, after several polling locations opened late due to various issues, a Harris County district court judge extended voting in the entire county by one hour until 8 p.m. CST. Texas Attorney General Ken Paxton (R) then asked the state Supreme Court to pause the decision, which the court granted along with ordering the county to segregate the late ballots from vote totals. The state Supreme Court issued its order after polling locations had already extended their closing times and after polls had closed throughout the county. But, the action continued a few weeks later when Paxton went back to the Texas Supreme Court on Nov. 21 seeking emergency relief to prohibit the counting of the segregated ballots cast during this extended polling hour. On Nov. 22, the Texas Supreme Court issued a temporary order directing Harris County to count ballots as required by Texas law and to “separately identify in the vote tabulations the number of ‘later cast votes’ for each candidate in each race…[so] this Court may ascertain whether the ‘later cast votes’ would be outcome-determinative and so that the parties can assess the extent to which further litigation is warranted.” While the order isn’t final, it means that these late cast ballots were not immediately tossed, as Paxton wanted.

• The verdict: According to the Texas Tribune, if Paxton’s request was granted in full, approximately 2,000 provisional ballots cast during the extended polling hours would have been automatically discarded, an outcome which could be consequential for close races that have not yet been called. We’ll keep you updated on this lawsuit and next steps.

Early Voting Is off to the Races in Georgia Senate Runoff

During the Nov. 8 midterm elections, neither Sen. Raphael Warnock (D-Ga.) nor his Republican challenger Herschel Walker garnered over 50% of the vote total as required under Georgia law, thereby sending the two candidates to a runoff election on Dec. 6, 2022. Litigation began soon after a runoff was announced.

On Nov. 18, a Georgia judge ruled that counties may hold early voting on Saturday, Nov. 26 (the weekend after Thanksgiving) for the Senate runoff. The decision comes after a lawsuit was brought by the Georgia Democratic Party, Democratic Senatorial Campaign Committee (DSCC) and Warnock’s campaign over state guidance prohibiting early voting on Saturday, Nov. 26. The judge found that the state law cited by Georgia Secretary of State Brad Raffensperger (R) to block early voting on that Saturday applies only to primary and general elections, but not to runoff elections. On Nov. 21, the Georgia Court of Appeals denied the state of Georgia and Republicans’ requests to pause the lower court’s decision. The state of Georgia said it would not pursue a further appeal, but the Republican groups that intervened in the lawsuit went to the Georgia Supreme Court on Nov. 22 asking for emergency relief. We’ll hear from the state Supreme Court soon on the Republicans’ request; keep an eye on this case page for updates. As of Nov. 22, though, the lower court’s order allowing early voting on Saturday, Nov. 26 remains in effect. So far, more than 10 counties — both Democrat and Republican-leaning — have scheduled early voting for this day.

• The verdict: This victory means that students who are visiting home for the Thanksgiving holiday, families who want to vote together during the holiday weekend and Georgians whose schedules don’t allow them to vote during the work week will have an opportunity to cast their ballots on Saturday, Nov. 26 if their county permits early voting on that day.

New Lawsuits We’re Watching

Democracy Docket is currently tracking 114 active lawsuits across 36 states. Below we highlight a few new cases you may have missed and break down the key details.

Connecticut Early Voting Ballot Measure Challenge

Who: A Connecticut resident sued the state over its proposed early voting ballot measure that would codify in-person early voting in the state constitution.

What: The plaintiff is challenging Connecticut’s proposed early voting ballot measure that would codify in-person early voting in the state constitution.

Why: Filed one day before Election Day, the lawsuit alleges that the early voting ballot measure was “unlawfully approved to be on the ballot” for the midterm elections and, if it’s approved, this resident would be “in danger of losing substantial rights, power and privilege over ballot security and election integrity.” Notably, one day after the suit was filed, over 60% of Connecticut voters approved the ballot measure.

Learn more about Soto v. Connecticut here.

Pennsylvania Undated and Wrongly Dated Mail-in Ballots Challenges

Who: Nonpartisan organizations sued Pennsylvania Acting Secretary of the Commonwealth Leigh Chapman (D) and all 67 county boards of elections. Soon after, another lawsuit was filed by three Pennsylvania voters, John Fetterman’s (D) U.S. Senate campaign, the DSCC and the Democratic Congressional Campaign Committee against the state’s 67 county boards of elections.

What: Both lawsuits are challenging the state’s rejection of undated and wrongly dated mail-in ballots following the Pennsylvania Supreme Court’s ruling that ordered counties to reject these ballots under state law.

Why: The plaintiffs in both suits allege that not counting undated and wrongly dated mail-in ballots, which are time stamped upon receipt by counties, violates the Materiality Provision of the Civil Rights Act by denying an individual the right to vote for a reason that is not material to determining that individual’s eligibility. The Democratic plaintiffs in the second lawsuit also allege that not counting these mail-in ballots violates the First and 14th Amendments by placing an undue burden on the right to vote.

Learn more about Pennsylvania State Conference of the NAACP v. Chapman here.

Learn more about Eakin v. Adams County Board of Elections here.

Facts, Stats and Testimony

With the 2022 midterm elections behind us, Democracy Docket recently highlighted five major voting rights wins from this election cycle. Below we spotlight a few stories to show the tangible impacts that lawsuits, particularly those that are decided at the lowest level of the court system, can have on voters and voting access.

Before they were blocked in July 2022, North Carolina state laws restricted who could help voters with disabilities request and complete an absentee ballot; the state imposed that only the voters’ close relatives or legal guardians could assist. These restrictions limited and sometimes disenfranchised voters, especially those who lived at in-patient facilities during the COVID-19 pandemic. The challenged provisions were struck down for violating Section 208 of the Voting Rights Act, which mandates that individuals with disabilities “be given assistance by a person of the voter’s choice.” 

• Since these laws were no longer in place for the 2022 election cycle, Disability Rights North Carolina was able to reach “more people than ever this year. We have monitored poll sites in more locations than ever and we have shared information with voters in more counties than ever.”

In September, three laws were struck down in Montana: one law eliminated Election Day registration; another banned paid ballot collection and curtailed other forms of ballot return assistance and the third law changed identification requirements to vote, making it more difficult to vote with a student ID. Western Native Voice, a Montana-based organization that challenged two of the three laws that disproportionately impacted Native American communities, was able to resume its community ballot collection strategy and encourage voters to take advantage of Election Day registration following the court’s ruling.

• Keaton Sunchild, the political director for Western Native Voice, said that Montanans were “coming in to register to vote on Election Day. I know that it was important. [Election Day registration] was well used, which was always the case for Native communities…It was good to see that we fought so hard and really stood up for this and it was utilized and it was something that turned out to be necessary.”

You can read “Five Court Wins That Impacted Voters This Election” to hear directly from more voters and organizations who were impacted by positive court rulings that protected and expanded the right to vote.

What To Look Out For

While post-election litigation has been relatively (and surprisingly) quiet, we aren’t quite out of the woods yet. 

• State certification deadlines are the last step in this election process, and there is a very real possibility that certain counties will go rogue and refuse to certify their election results based on whatever conspiracy they concoct; after all, this happened in New Mexico and Pennsylvania following this year’s primary elections. We’ll be closely watching for any rumblings of counties that refuse to certify their results.

In December, voting rights are back before the U.S. Supreme Court. 

• On Dec. 7, the Court will hold oral argument in Moore v. Harper, a redistricting lawsuit out of North Carolina. The case gives the Supreme Court the opportunity to review the fringe independent state legislature theory, which argues that state legislatures have special authority to set federal election rules free from interference from other parts of the state government, specifically state courts. We’ll be covering the oral argument in detail and breaking down the arguments made by each side.

After a year of nonstop voting and election-related litigation, we’re expecting the year to close out with yet another busy month in the courts. For a more comprehensive preview of what to expect in the coming month, look for our December Litigation Look Ahead coming out on Thursday, Dec. 1.

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