Reports of the death of the “Big Lie” seem premature. After most, but not all, statewide candidates who denied the outcome of the 2020 election were defeated in 2022, many people celebrated that election denialism was on the wane. But, then counties in Arizona and Pennsylvania said: Not so fast.
In both states, a single county — Cochise County, Arizona and Luzerne County, Pennsylvania — willfully refused to meet the states’ deadlines to certify election results. In both cases, local Republican election officials voted against accepting election results that they had a clear, unambiguous duty to certify. Read my latest, “Message to Counties: Certifying Elections Is Not Optional,” now.
Let’s keep up the fight, Marc |
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Consequential Case Before the U.S. Supreme Court Next Wednesday |
A crucial democracy case gets its day in court next Wednesday, Dec. 7 at 10 a.m. EST. The U.S. Supreme Court will hold oral argument in Moore v. Harper, a case over North Carolina’s congressional redistricting that gives the Court the opportunity to review a constitutional theory that, if adopted, could upend our elections.
The independent state legislature (ISL) theory is based on the Elections Clause in the U.S. Constitution, which states that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof” unless Congress issues its own rules. The ISL theory interprets the word “legislature” in these clauses to mean legislature, and legislature alone. The current understanding is that “legislature” represents the state’s holistic lawmaking process, including the governor’s veto and state court review. If the ISL theory is validated, state lawmakers would have remarkable power to set federal election rules without oversight from state courts or being beholden to their state constitutions.
Why North Carolina? Why redistricting? A quick explanation of how Moore v. Harper ended up before the U.S. Supreme Court: In late 2021, the North Carolina Legislature drew new congressional, state House and state Senate maps based on 2020 census data that were eventually struck down by the North Carolina Supreme Court for being partisan gerrymanders in violation of the state constitution. A court-appointed redistricting expert then redrew a fair congressional map that was in effect for only the 2022 elections. The GOP leaders in the North Carolina Legislature tried to get the U.S. Supreme Court to step in through the Court’s “shadow docket,” arguing that North Carolina courts overstepped their authority in striking down and adopting a congressional map. The Supreme Court denied this shadow docket request, but later chose to put the case on the Court’s merits docket.
Not only is the ISL theory in contradiction with precedent as recent as 2015, there appears to be little to no historical basis for the argument. Yet, in choosing to hear the case, at least four justices agreed that the ISL theory poses an important, unresolved issue that requires the attention of the Court. Next Wednesday, the Supreme Court will hear from advocates on both sides of the lawsuit. Follow along for live updates during oral argument.
To prepare, catch up on all of our Moore v. Harper content, starting with the case page with all of the court documents and our latest Case Watch for the full rundown of what each side is arguing before the Court.
- Despite running contrary to precedent and history, the Supreme Court appears alarmingly close to adopting the ISL theory — with potentially disastrous ramifications for democracy. What is the ISL theory? Read more here.
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The fact that this radical theory has migrated from footnotes and far-flung lawsuits to the center of our political universe is highly concerning. We do not know how the justices will accept or apply the theory, but the stakes couldn’t be higher. |
Georgia Senate Runoff Set for Next Tuesday, With Strong Early Voting Start |
Next Tuesday, Dec. 6, U.S. Sen. Raphael Warnock (D-Ga.) faces off against Republican challenger Herschel Walker in the runoff election for U.S. Senate in Georgia. If you remember the high-profile contest also involving Warnock from just two years ago, something is different now: Since the 2020 runoff election, the Georgia Legislature passed a law moving the runoff from early January to early December. The early voting period is cut short by the new runoff timeline, making each and every day of early voting crucial for Georgians.
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After the Georgia secretary of state’s office interpreted a law to prohibit early voting on Nov. 26, the Saturday after Thanksgiving, Warnock’s campaign and the Democratic Party sued. A trial court agreed with the Democrats’ interpretation of the law (an appellate court and the conservative-leaning Georgia Supreme Court declined to pause the ruling) so counties were allowed, but not required, to hold early voting on Saturday, Nov. 26.
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In the end, 27 counties held early voting this past Saturday in both Democratic- and Republican-leaning areas of the state. In total, 70,050 Georgians cast ballots on Saturday, Nov. 26 and it was reported that long lines wrapped around polling locations across the state. An additional 87,000 voted the following day.
Early voting for the Senate runoff election is mandated in all counties starting this past Monday, when nearly 240,000 Georgians showed up to cast a ballot, breaking the state’s record for the number of people early voting in a single day. That record was then smashed the following day. Democracy wins when more people vote. And don’t miss Marc’s latest on why the closely averted voter suppression in Georgia this past weekend should be a national outrage.
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Two Counties Subvert Election by Failing To Certify Results |
Election administration is highly decentralized in the United States, which means that the functioning of democracy depends on the actions of individual election administrators. This week, two counties — one in Arizona and one in Pennsylvania — temporarily threatened the certification of election results. Facing lawsuits, both counties have since complied with their statutory duty to canvass county-level results.
On Nov. 28, the board of supervisors in Cochise County — a red, rural county in Arizona — voted to delay canvassing the 2022 election results, missing the state’s legally mandated deadline to do so. Canvassing is the process where local election officials finalize election results and transmit them to the state. It is a necessary step for counties to complete before states can certify election results. -
Does Cochise County sound familiar? The not-that-populous county has already been the focus this election cycle over its attempts to conduct expanded hand counting procedures in violation of Arizona law. The supervisors ultimately gave up on the plan after internal disagreements with a county attorney and concerns over legal fees.
Shortly after Cochise County’s intransigence on Monday, the Arizona Alliance for Retired Americans filed a lawsuit against the board of supervisors, alleging that the failure to perform the “ministerial and mandatory, not discretionary,” task of canvassing the county’s election results violates “the plain statutory text” of Arizona election law. The lawsuit continues to explain that this action threatens to disenfranchise Cochise County voters “whose votes may be excluded from the statewide returns if the Board does not canvass the County’s election results.”
Arizona Secretary of State Katie Hobbs (D) sued the board soon after. Hobbs echoed many of the same arguments in the Alliance’s lawsuit and requested a court order compelling the board to canvass no later than Dec. 1 so that she can certify Arizona’s statewide election results on Monday, Dec. 5, the state’s certification deadline, without being forced to exclude votes from Cochise County. Additionally, a Cochise County voter filed a notice of claim against the county, noting the intention of pursuing a class action lawsuit against the county if necessary.
A court hearing took place yesterday afternoon; the Cochise County supervisors spoke on their own behalf after failing to secure legal representation. (The county’s attorney told the board on multiple occasions that refusing to certify would be illegal and he would not represent the county in any legal challenges. Consequently, the board struggled to find legal representation for its antics. An attorney previously representing the now-defunct Cyber Ninjas reportedly turned down an offer to be hired by the county.) At the conclusion of Thursday’s hearing, the judge ordered Cochise County to canvass the election results by 5 p.m. MT, finally putting an end to the clash. The judge reiterated that the board’s duty to canvass election results was non-discretionary and mandatory.
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In other Arizona news, a court rejected a lawsuit from a voter who sought to delay the certification of election results from Maricopa County, Arizona’s largest county and home to Phoenix. The voter alleged, without evidence, that there was rampant voter fraud and illegal votes cast.
Another certification skirmish took place on the other side of the country, in Luzerne County, Pennsylvania. On Nov. 28 — also the statutory deadline for Pennsylvania counties to certify their midterm election results — the Luzerne County Board of Elections didn’t certify the county’s results as two members voted to certify, two members voted against certification and one member abstained, leaving the board deadlocked. The following day, U.S. Rep. Matt Cartwright (D-Pa.) filed a lawsuit challenging the board’s failure to certify. On Wednesday, the abstaining member voted in favor of certification, so the crisis was averted.
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Last-Ditch Legal Efforts by Arizona’s Defeated, Far-Right Candidates |
Arizona’s slate of extreme, statewide GOP candidates isn’t going down without a fight. But, it doesn’t look like their far-fetched legal efforts will make any difference. Last Wednesday, Kari Lake’s gubernatorial campaign filed a lawsuit against election administrators in Maricopa County, Arizona, seeking the release of records related to Election Day issues. This comes after Lake, a notable election denier, lost her race for governor by over 17,000 votes.
Meanwhile, the GOP attorney general candidate Abraham Hamadeh — also a known election denier — and the Republican National Committee (RNC) challenged the results of the 2022 election for Arizona attorney general. The race is already headed to a mandatory recount after Hamadeh lost to Democrat Kris Mayes by 510 votes. While the Republicans stated in their complaint that they were not “alleging any fraud, manipulation or other intentional wrongdoing that would impugn the outcomes of the November 8, 2022 general election,” they alleged that the election was “afflicted with certain errors and inaccuracies” and that the “cumulative effect of these mistakes” cost Hamadeh the attorney general race.
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On Tuesday, an Arizona state court dismissed Hamadeh’s election contest because it was filed too early. However, the judge left open the possibility that Hamadeh can file a new “election contest after the canvass and declaration of election results have occurred,” so we may see another identical lawsuit next week.
The wildcard lawsuit of the week was filed by Josh Barnett, a defeated Republican candidate who came in third in a primary election in August for Arizona’s 1st Congressional District. Barnett’s illogical lawsuit requests that the 2022 midterm election results be “annulled.” In the complaint, he argues that in Maricopa County, voters were checked in at the polling place “to engage their sacred votes with very sick voting machines” and that this situation “trapped voters into a desperate situation.” Barnett also requests that Hobbs be prevented from certifying the statewide election results for governor, secretary of state, attorney general and U.S. Senate. A hearing is scheduled for later today.
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Update in Case Over Trump’s Efforts To Overturn the 2020 Election |
This week, the NAACP Legal Defense Fund earned an important court victory: A federal judge rejected former President Donald Trump's claim that he has presidential immunity from the group’s lawsuit against him. In November 2020, the NAACP, Michigan Welfare Rights Organization and three Black residents of Detroit, Michigan filed a lawsuit against Trump, the Trump campaign and the RNC arguing that these groups violated the Voting Rights Act (VRA) and Ku Klux Klan Act by intimidating and attempting to disenfranchise Black voters in the 2020 presidential election.
In rejecting Trump’s presidential immunity claims, District Judge Emmet Sullivan noted that it “has long been recognized that political activity necessarily falls outside the scope of the President’s official duties.” The federal judge also granted the NAACP LDF’s request to file a new complaint, so the civil rights organization will be able to improve its VRA claims and include new evidence against Trump that has come to light over the course of litigation.
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This ongoing case is an important effort to hold Trump and his allies accountable for attempts to disenfranchise voters in the coordinated campaign to overturn the 2020 election results. The lawsuit highlights the Trump camp’s particular efforts to discard votes in predominantly Black areas such as Atlanta, Detroit, Milwaukee and Philadelphia.
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Earlier this year, several voting rights groups challenged Kansas’ newly enacted congressional map for violating the state constitution. The Kansas Supreme Court denied that request, finding that the map — drawn by the Republican-controlled Legislature to split up the majority-minority counties around Kansas City — did not violate the Kansas Constitution. Now, the groups that challenged the map are asking the U.S. Supreme Court to review the Kansas Supreme Court’s decision, arguing that the state court messed up its use of legal precedent and conflated precedent and legal tests under the 14th Amendment with precedent and legal tests under Section 2 of the VRA, improperly relying on the latter. As a reminder, U.S. Supreme Court justices select which cases they hear, so we do not know yet if this request will be granted.
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Ohio Republicans have introduced a proposal that would make it more difficult for voters to amend the Ohio Constitution. Currently, proposed amendments only need to earn 50% of the vote to go into effect. Under the new proposal, supported by Ohio Secretary of State Frank LaRose (R), amendments would need to earn 60% of the vote to be enacted. Both houses of the Ohio Legislature need to approve the change with a three-fifths majority after which the proposal would go before the voters.
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From Marc: What Georgia Teaches Us About Voter Suppression |
If the secretary’s restrictive interpretation of the Saturday voting law isn’t voter suppression, then what is? Read more ➡️ |
T-minus four days before the Georgia runoff election. Read our conversation with Warnock about his pro-democracy plan for Georgia and the U.S. Senate and make phone calls to help get out the vote!
This Saturday is the International Day of Persons With Disabilities. Learn more about Section 208 of the VRA, a key provision of the VRA which states that all individuals who need assistance when voting can receive that assistance from a person of their choice. This provision ensures that all people regardless of disability status are able to take part in the democratic process. Read about a recent example of Section 208’s use in court by Disability Rights North Carolina.
We’re also reading this New York Times opinion piece on SCOTUS increasingly vacating important lower court decisions and Votebeat’s dive into the rejection rate of improperly dated mail-in ballots in Pennsylvania.
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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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