The Brief
12/23/2022

We made it to the end of 2022! It’s been a whirlwind year for voting rights and redistricting litigation. And, let’s not forget the midterm elections were already over six weeks ago and democracy won at the polls across the country.

As we transition into 2023 and our focus at Democracy Docket shifts towards covering new legislation affecting the democratic process, we are shaking up our newsletter offerings in response. This will be the last edition of The Brief that you’ll get in your inboxes, but starting in the new year we’re bringing back our Daily Docket emails so you can stay up to date on what’s happening in the voting rights world at the end of each day. You can check out all of our newsletters and subscribe here. [link removed]

December kept us busy over at Democracy Docket, staying on par with a record year of voting rights litigation. The month started with the U.S. Supreme Court holding oral argument in Moore v. Harper and Arizona Republicans returned to court yet again in an attempt to get rid of mail-in voting in the state. A few straggling post-election lawsuits occupied the rest of the month, with the most action coming out of Arizona. [link removed]

Where does litigation stand as we head into 2023?

What Happened During the U.S. Supreme Court Argument in Moore v. Harper

On Dec. 7, the U.S. Supreme Court held 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. [link removed]

Here’s what the ISL theory is in a nutshell: 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 include a state’s entire 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 argued before the Court that “Legislature” in the Constitution means solely the legislature, so it is impermissible for state courts to act as a check when legislatures adopt rules regulating federal elections (including congressional maps). Under this theory, only state legislatures can draw new congressional districts and any map adopted by a state judicial system (which is what happened in North Carolina) is unconstitutional. In the words of Justice Sonia Sotomayor, this argument can be made only “if you rewrite history.”
The verdict: Without being too optimistic, the justices’ lines of questioning during oral argument indicated that they weren’t fully on board with this radical theory; you can read our takeaways of the three-hour oral argument here. How the Court rules will shape state legislatures’ power in regulating federal elections — and the checks and balances on this power — for years to come. [link removed]

‘Twas Six Weeks After Election Day and Arizona Election Deniers Were Stirring
In Arizona this month, the failed Republican candidates for governor, attorney general and secretary of state each filed their own election contests. They were aided by some concerned Arizonans and a failed Republican congressional candidate who filed their own lawsuits raising doubt about the midterm election results. [link removed]

On Dec. 9, Kari Lake — the failed Republican candidate for Arizona governor and known election denier — filed a lawsuit contesting the election results of the governor’s race. Lake lost the race to current Arizona Secretary of State Katie Hobbs (D) by over 17,000 votes. Among other far-fetched claims, Lake initially alleged that illegal votes were cast in Arizona’s midterm elections and that the “tabulators’ rejection of thousands of ballots set off a domino chain of electoral improprieties.” Ten days later, an Arizona judge dismissed eight out of 10 claims raised in Lake’s contest after holding a hearing in which Lake’s lawyer was largely concerned about the color ink used to fill out ballots (Sharpie Gate 2.0, anyone?). The remaining two claims alleging intentional interference with ballot printers and chain of custody issues in Maricopa County went to trial on Dec. 21 and 22 and we’re waiting on a ruling from the court. A lawsuit challenging the gubernatorial results was also filed by state Sen. Sonny Borrelli (R) in Mohave County, Arizona. Though Borrelli’s election contest claims have since been dismissed, it will proceed as a normal civil lawsuit challenging election procedures. [link removed]
The verdict: While it’s promising that Lake’s most far-fetched claims were dismissed, we’ll have to wait and see what happens next after the conclusion of the trial. [link removed]

On Dec. 9, Abraham Hamadeh (the failed Republican attorney general candidate in Arizona and known election denier), two Arizona voters and the Republican National Committee also filed a lawsuit contesting the results of the 2022 Arizona attorney general’s race. Hamadeh lost the race to Democrat Kris Mayes by 511 votes, which triggered an automatic recount under state law. While Hamadeh doesn’t allege any fraudulent ballots were cast during the midterms, he does suggest that there were “systematic” errors in Arizona’s election administration that cast doubt on the validity of the results. While Mayes and the other defendants asked the state court to dismiss the election contest, the judge allowed four out of five claims to move forward to trial. Today, Dec. 23, the parties will appear in court and Hamadeh will have to prove the validity of his remaining claims of alleged misconduct: erroneously counted ballots and election board misconduct, wrongful exclusion of provisional ballots, inaccurate ballot duplications and improper electronic ballot adjudication. [link removed]
The verdict: Hopefully we’ll know the outcome of this election contest before the new year, but Hamadeh’s Republican-sponsored lawsuit serves as a reminder that election denialism is alive and well and will still be a threat in 2023. [link removed]

The final election contest filed in Arizona came from Mark Finchem, the GOP candidate for Arizona secretary of state who lost to Secretary of State-elect Adrian Fontes (D) by over five points. (Jeff Zink, the GOP candidate for Arizona’s 3rd Congressional District who lost in a landslide to Rep. Ruben Gallego (D-Ariz), was initially in the lawsuit as well, but later dropped out.) Finchem’s lawsuit alleged that issues with tabulator machines in Maricopa County and the “weak and unsatisfying” solutions offered to voters resulted in “60,000 Maricopa County and 20,000 Pima county missing votes reported on the Secretary of State website.” Following a frankly absurd hearing, a state court flat out rejected Finchem’s baseless allegations, calling them “frivolous,” “wholly unsupported by the record” and “fatally flawed.” The lawsuit was dismissed on Dec. 16. [link removed]
The verdict: This ruling finally put to rest a last-ditch effort by Finchem — who, it’s worth repeating, lost to Fontes by 120,000 votes — to overturn valid election results. [link removed]

Everyone’s Favorite Arizona County Is Back
This is legitimately the last update we have for you about Cochise County, Arizona (for this year, at least).

You probably remember reading about this county — home to 125,000 residents — after it was repeatedly in court over its rogue attempts to circumvent state law. Long story short, on Dec. 1, the Cochise County Board of Supervisors voted to canvass the results of the 2022 midterm elections after a judge ordered the county to do so. The county was sued a total of three times in 2022 for attempting to hand count votes and refusing to certify election results, plus the two Republican board members filed their own lawsuit against the county’s elections director because she “refused to comply” with the Republicans’ hand counting plan. The Arizona secretary of state’s office has since asked Arizona Attorney General Mark Brnovich (R) and the Cochise County attorney to consider criminal penalties for the two Republican board members who flouted Arizona law by refusing to canvass election results, so maybe we will hear more about this rural Arizona county in 2023. [link removed]
The verdict: Following all of this litigation, Cochise County had no choice but to fold and comply with its legal duties to properly process and certify the midterm election results. State laws dictating election procedures aren’t optional for election officials — and courts reminded the county’s Republican commissioners of this fact. [link removed]

The North Carolina Supreme Court’s Democrats Aren’t Done Yet
In the midterms, Republicans won a 5-2 majority on the North Carolina Supreme Court, flipping the court from blue to red. This past year, the court’s Democratic majority issued crucial rulings — and they weren’t quite done protecting the right to vote before handing the bench over to Republicans on Jan. 1, 2023. [link removed]

Earlier this year, the North Carolina Supreme Court overturned the state’s initial congressional and legislative maps for being Republican gerrymanders, finding that partisan gerrymandering violates the state constitution. The congressional map was drawn by court-appointed experts and was only in place for the 2022 elections. (Side note: The landmark U.S. Supreme Court case Moore v. Harper arose from the congressional map being challenged in this lawsuit.) The legislative maps were redrawn by the Republican-controlled Legislature and adopted by a trial court, which was opposed by the parties who filed the initial legal challenges. On Dec. 16, the North Carolina Supreme Court ruled 4-3 to block the remedial North Carolina Senate map and uphold the remedial North Carolina House map. The majority concluded that “the evidence strongly indicates that the [remedial state Senate plan] creates stark partisan asymmetry in violation of the fundamental right to vote on equal terms” and sent the case back down to the trial court, which will now oversee the adoption of a new state Senate map. [link removed]
The verdict: The North Carolina Supreme Court had a strong record this year of knocking down partisan gerrymanders and ended on a high note by sending a clearly rigged state Senate map back to the trial court for review.

Also on Dec. 16, the North Carolina Supreme Court permanently blocked a law that outlined a narrow list of acceptable photo IDs to vote. The 2018 law, which was passed by a lame-duck Republican Legislature over the governor’s veto, was previously blocked by a trial court that found it was passed with the intent to discriminate against Black voters. In support of this conclusion, the trial court noted that Black voters are 39% more likely to lack qualifying ID than registered white voters and that “the burdens of obtaining a qualifying ID are also likely to fall more heavily on African American voters than on white voters.” Last week, the state Supreme Court agreed with the trial court’s conclusion, holding that the “law was enacted with discriminatory intent to disproportionately disenfranchise and burden African-American voters in North Carolina.” [link removed]
The verdict: This ruling is a win for North Carolina voters, particularly Black North Carolinians who were disproportionately affected by this strict law.

New Lawsuits We’re Watching

Democracy Docket is currently tracking 129 active lawsuits across 42 states, 13 of which were filed in December. Below we highlight a few new cases you may have missed and break down the key details. [link removed]

Colorado Signature Matching Challenge

Who: Vet Voice Foundation and two Colorado voters sued Colorado Secretary of State Jena Griswold (D).

What: The lawsuit challenges Colorado’s use of signature matching (the process by which election officials compare a voter’s signature on a mail-in ballot envelope to that on file in a voter’s registration record).

Why: The plaintiffs allege that the state’s “deeply flawed,” “error-prone,” and “arbitrary” signature matching process results in the disenfranchisement of tens of thousands of qualified Colorado voters — who are disproportionately young voters and voters of color — in violation of the Colorado Constitution. A similar lawsuit was filed last month by Vet Voice Foundation over Washington state’s signature matching process. [link removed]

Learn more about Vet Voice Foundation v. Griswold here. [link removed]

Pennsylvania Legislative Special Elections Challenge

Who: Pennsylvania state Rep. Bryan Cutler (R) sued Acting Pennsylvania Secretary of State Leigh Chapman (D) and the Board of Elections of Allegheny County, Pennsylvania.

What: The lawsuit challenges state Rep. Joanna McClinton’s (D) ability to be speaker and majority leader of the Pennsylvania House of Representatives, which Democrats narrowly won in the 2022 midterm elections.

Why: Cutler alleges that, because three Democratic-won seats are now vacant in the state House, Democrats no longer have a majority in the chamber and McClinton cannot legitimately be the speaker.

Learn more about Cutler v. Chapman here. [link removed]

Facts, Stats and Testimony

After the overwhelming majority of her claims were dismissed, Lake and her lawyers made sure that their remaining two claims — that a Maricopa County employee interfered with ballot printers and this affected her vote share and that an employee intentionally mishandled ballots and this affected the accuracy of county’s canvass — didn’t go down without a fight. With only two days in court for Lake to prove these claims, her legal team brought in the big guns. [link removed]

Clay Parikh, an information security officer with connections to MyPillow CEO Mike Lindell, was one of Lake’s witnesses. Parikh spent the majority of his time on the stand talking about his belief that Maricopa County printed 19-inch ballots on 20-inch paper, suggesting that ballots were intentionally misprinted and potentially not counted. [link removed]
On cross examination, Parikh begrudgingly admitted that if any ballots were, in fact, misprinted, they would have been fixed through the state’s duplication process and ultimately counted, so his entire hypothetical about misprinted ballots didn’t amount to much.

Mark Sonnenklar, another one of Lake’s witnesses, served as “a roving attorney in the Republican National Committee's election integrity program for the primary and the general election.” On Election Day, he traveled around to various vote centers in Maricopa County, where he reported seeing long lines due to tabulator issues. [link removed]
Sonnenklar — based on his own inference — testified that Lake would have won the governor’s race “had there not been tabulator issues.” He then went on to say that he believed Maricopa County officials engaged in a cover up. The evidence Sonnenklar — a lawyer — gave for this “cover up”? It’s just “common sense.”

And, we can’t forget about Betty, a mystery figure who apparently left someone a voicemail that revealed incriminating evidence about…something? You can read more about Betty — and the rest of Lake’s presentation during day one of the trial — here. We’ll keep you posted on any developments in Lake’s election contest following the conclusion of the trial last night. [link removed]

What To Look Out For

The 2022 midterm elections may be behind us, but voting rights litigation will march forward in 2023.

This year, the U.S. Supreme Court held oral arguments in two landmark cases: Merrill v. Milligan, a case out of Alabama about Section 2 of the Voting Rights Act, and Moore v. Harper, the case out of North Carolina that gives the Court the opportunity to review the ISL theory. We can expect the Court to issue its rulings in these cases — which have the potential to reshape voting rights litigation as we know it — next year, and likely not until next summer.
Redistricting litigation may have taken a back seat in the second half of 2022 as districts were finalized for the midterms, but multiple lawsuits challenging legislative and congressional districts remain active and will continue into 2023. [link removed]
Ongoing legal challenges to GOP-sponsored voter suppression laws and practices — both new and old — will carry into another year. And, with states slated to begin legislative sessions in the new year, we can expect another round of lawsuits over any voter suppression laws that are passed.

For a more comprehensive preview of what to expect in the coming month, look for our January Litigation Look Ahead coming out on Wednesday, Jan. 4. [link removed]

As always, democracy remains on the docket. To get ready for the new year, the Democracy Docket office will be closed from Friday, Dec. 23, 2022 to Monday, Jan. 2, 2023. We’ll return on Tuesday, Jan. 3, 2023.

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