Happy December! This week, we’re celebrating the re-election of Sen. Raphael Warnock (D-Ga.) and reviewing a crucial U.S. Supreme Court case. And, as always, we’re checking in with the ongoing shenanigans in Arizona. |
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What Happened During the U.S. Supreme Court Argument in Moore v. Harper |
On Wednesday, the U.S. Supreme Court heard oral argument in Moore v. Harper, the second major democracy case of the Court’s current term. Moore, which centers on North Carolina congressional redistricting, gives the justices the opportunity to review a constitutional theory unmoored from precedent and history: the independent state legislature (ISL) theory.
If you haven’t heard us describe it already, here’s the quickest explanation of the ISL theory: The U.S. Constitution’s Elections Clause gives authority to set the “Times, Places and Manner” of holding federal elections to “the Legislature” of each state. We have long understood that authority to mean a state’s lawmaking process, so acts by a state legislature are beholden to a state constitution and subject to review by state courts. All of a sudden, after 233 years and several Supreme Court cases confirming otherwise, right-wing groups are before the Court arguing that “Legislature” in the Constitution means solely the legislature, so it is impermissible for state courts to act as a check. In the words of Justice Sonia Sotomayor, this argument can be made only “if you rewrite history.”
Without being too optimistic, the justices’ lines of questioning during oral argument indicated that they weren’t fully on board with this radical theory. Marc wrote his analysis of the three-hour oral argument and we have a few more key takeaways for you:
- The justices expressed little appetite for the strongest form of ISL theory.
- The Moore lawyer attempted to circumvent the Court’s past precedent by drawing flimsy distinctions.
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The justices seemed to agree that a state court could violate the federal Elections Clause.
- The case will reverberate far beyond North Carolina.
Read our complete post-oral argument analysis here. |
Warnock Wins Georgia’s Runoff…but Why Is There a Runoff? |
On Tuesday, Georgia voters re-elected Sen. Raphael Warnock (D-Ga.) to the U.S. Senate, propelling a pro-voting champion back to Washington, D.C. Last month, neither Warnock nor his Republican challenger Herschel Walker garnered more than 50% of the vote, sending them to a runoff election just four weeks later. Two years ago, this runoff took place nine weeks after the general election. Georgia’s well-known voter suppression law passed in early 2021, Senate Bill 202, changed the runoff timeline; as a consequence, Peach State voters had only five days of mandatory early voting, compared to three weeks in 2020.
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Absentee voters also felt the time crunch. Cobb County, a populous county in the Atlanta metropolitan area, was sued last week for failing to send approximately 3,400 absentee ballots to voters. A similar issue took place in Cobb County before the Nov. 8 midterm elections as well; this second debacle over undelivered absentee ballots is not shocking in light of S.B. 202’s shortened time frame for county officials to send out requested absentee ballots. The day after the lawsuit was filed, a state court approved an agreement between the plaintiffs and the Board of Elections of Cobb County, which included extending the absentee ballot receipt deadline for affected voters.
While all eyes were on Georgia this week, the Peach State’s electoral system is part of a broader trend of runoff elections used throughout the South, often with darker origins. Alabama, Arkansas, Georgia, Mississippi, Oklahoma, South Carolina and Texas all require candidates to win over 50% of the vote in a primary election, though Georgia is the only one that also holds runoffs for general elections. In North Carolina, candidates only need 30% of the vote to avoid a runoff. Louisiana altered its process to combine its primary with the November general Election Day, but still expects voters to head to the polls a second time weeks later. By requiring a candidate to win a majority, rather than a plurality, of the vote, these systems were designed to allow white voters to coalesce around the candidate of their choice to defeat candidates supported by Black voters.
As we wrote earlier this year, runoff elections themselves are not inherently racist. “It’s the context of the South at the time — a region dominated by a single political party and characterized by racially polarized voting — that made primary runoffs a tool of white supremacy. Any seemingly neutral election practice can become problematic depending on the real-world circumstances in which it’s used.”
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With Democratic wins in 2020 and 2022, Georgia’s Black voters made their voices heard. If this election method is no longer serving the interest of the hegemonic power in the state, will Georgia lawmakers look to get rid of it? We’ll closely follow any proposals in the state’s legislative session starting in January.
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Lots of Noise, but No Lawsuits From Defeated Arizona GOP Candidates |
On Monday, Arizona officials canvassed and certified the state’s election results. Lawsuits formally challenging the election results can now be filed and must be submitted within five days after certification. That gives us only a limited number of days to hear from Arizona’s slate of far-right — and now defeated — candidates: Kari Lake, Mark Finchem, Abe Hamadeh and Blake Masters. Despite protesting on social media over the last few weeks, there have not been any election contests filed in this window so far (Hamadeh filed a premature lawsuit that was dismissed).
Secretary of state candidate Finchem even lamented on Twitter: “NO RNC LAWYER IS CALLING ME TO HELP.” We shall see if the election-denying candidates find others to join a last-ditch legal effort.
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RNC Chair Shifts Tone on Mail-in Voting, Will the Rest of the Party Follow? |
If a law is popular (close to 90% of the state takes advantage of it), passed with bipartisan support and has been in effect for over 30 years, why challenge it? The Arizona GOP’s war on voting access would not have accepted anything less. This week, three judges of the Arizona Court of Appeals heard oral argument in a case brought by the Arizona Republican Party and its chairwoman challenging the state’s no-excuse mail-in voting law that’s been in place since 1991. (Get a rundown of what happened in the courtroom here.) Ironically, just one day before the Arizona Republican Party was working hard in court to disband Arizona’s widely used mail-in voting law, Republican National Committee (RNC) Chair Ronna McDaniel publicly endorsed mail-in voting.
In comments made to Fox News, McDaniel critiqued the strategy that started in 2020 where high-level Republicans, led by former President Donald Trump, discouraged their supporters from taking advantage of vote by mail or early voting. As of mid-September, more than half of GOP-affiliated lawsuits sought to limit mail-in voting, and even more have been filed since then. Now, after significantly underperforming in the November elections, the shifting messaging on mail-in voting is part of a growing trend of Republican leaders questioning their party's voter suppression strategy.
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One — potentially two — congressional races are heading to recounts. In Colorado’s 3rd Congressional District, Rep. Lauren Boebert (R-Colo.) is currently leading Adam Frisch (D) by 550 votes, well within the 0.5% margin that triggers a mandatory recount under Colorado state law. (The recount is unlikely to change the outcome and Frisch has already conceded.) The trailing Republican candidate for Washington’s 3rd Congressional District has indicated his plans to request a recount. The current margin is 2,629 votes, or 0.83%.
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Byeeee. On Monday, Texas Secretary of State John Scott (R) announced that he would resign at the end of the year. Scott was appointed by Gov. Greg Abbott (R) in October 2021 and would have faced confirmation by the Texas Senate next year to continue as secretary. Prior to this role, Scott assisted Trump’s efforts to overturn the results of the 2020 election. During his tenure, Scott oversaw implementation of Texas’ voter suppression law and a baseless audit of the 2020 election. Abbott will nominate retiring state Sen. Jane Nelson (R) as Scott’s replacement.
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Will South Carolina be first in the nation? Last week, the Democratic National Committee moved one step closer to changing the 2024 Democratic primary calendar to elevate the southern state powered by its Democratic Black voters. President Joe Biden recommended the schedule as Democrats were looking to move away from Iowa and New Hampshire, two states with electorates much more white than the Democratic Party’s electorate writ large. Leaders in Iowa and New Hampshire, as well as other states that wanted the coveted spot, like Nevada, aren’t going down without a fight.
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Green eggs and voting: The conservative Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit last week challenging the use of mobile voting facilities throughout Racine, Wisconsin. The state’s election commission already dismissed WILL’s administrative complaint against the same procedures, specifically a mobile van which has become the target of baseless claims. The city of Racine is attempting to increase voter access by allowing individuals to cast a ballot where convenient; WILL wants to hamper that effort, calling it a “‘Green Eggs and Ham’ approach to voting.”
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SPOTLIGHT: An Elite Power Grab Dressed in Academic Robes |
By Sam Oliker Friedland, executive director of the Institute for Responsive Government and a former voting rights litigator at the U.S. Department of Justice. Read more ➡️ |
SPOTLIGHT: How Social Media Mobilized Gen-Z to the Polls This Year |
By Sam Shlafstein and Sam Schmir, who both work at Gen-Z for Change. Read more ➡️
After an historic midterm election cycle, Democracy Docket is launching a How We Won series, which features op-eds from candidates and organizations that answer the question: How did you win in the 2022 midterm elections and what does this victory mean for democracy? This is the first piece in that series. |
Thanks to Warnock’s win, Senate Democrats have a 51-member majority. This breaks the deadlock in crucial committees, such as the Senate Judiciary Committee, making it easier to confirm Biden’s historic nominees. Hear from Rakim Brooks, president of Alliance for Justice, on the importance of filling the judiciary with competent, forward-thinking lawyers and call your senators today to ensure they keep confirmations rolling.
As we approach the holidays, we’re thinking about ways to give back. This winter season, we encourage you to consider local abortion funds and community-based mutual aid efforts. The more direct the giving, the better!
Today is the LAST day to order and guarantee that your Democracy Docket gifts will arrive before the holidays. You can find the perfect stocking stuffer for the democracy defender in your life in our merch store.
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