Happy New Year! We closed out 2022 with contentious (and sometimes bizarre) courtroom activity in Arizona before judges shut down the election contests brought by defeated far-right candidates, one after another. And after a year of disheartening legislative promises and failures, President Joe Biden signed a federal election bill that updates an old law and addresses some election subversion vulnerabilities.
ICYMI at the top of your inbox, Daily Docket is back! We will send (almost) daily emails at 6 p.m. EST with the day’s voting rights news and courtroom updates that you need to know. Inboxes can get crowded, so don't worry — we'll keep these short and to the point.
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Reflecting on Electoral Count Act Reform Two Years After the Jan. 6 Attack |
Two years ago today, democracy was, quite literally, under attack. In an attempt to halt the peaceful transfer of power, former President Donald Trump and his allies urged supporters to storm the U.S. Capitol. Before and after the violent assault, Republican lawmakers fed into the false narrative of a stolen election by objecting to and voting against the certification of election results from several states. The date Jan. 6 may always be tied to 2021, but it was not the first nor last Jan. 6 we will hear about.
In 1876, the future of Reconstruction hinged on the outcome of a disputed presidential election between Rutherford B. Hayes and Samuel Tilden. Hayes prevailed, but the constitutional crisis prompted lawmakers to spend the next decade devising a law, the Electoral Count Act (ECA) of 1887, that outlined Congress’ procedures for election certification. The ECA authorizes Congress to meet in a joint session to count the electoral votes “on the sixth day of January.”
After 135 years, the ECA is getting a well-deserved update. On Dec. 29, President Joe Biden signed into law the Electoral Count Reform and Presidential Transition Improvement Act as part of the omnibus spending package to fund the federal government. The new federal law addresses vulnerabilities and vagueness in the 1887 law in the hopes that the counting of electoral votes before Congress will not be exploited by a disgruntled former president ever again. Among other provisions, the new law:
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Clarifies that the role of the vice president is purely ceremonial, Raises the threshold for members of Congress to initiate objections to electoral results to one-fifth of each chamber, - Ensures there is one conclusive slate of electors from each state and
- Outlines a process for expedited court review of election results.
ECA reform is a positive step, but it is far from enough to address the biggest threats to American democracy. In early 2022, Senate Republicans (and two Democrats who rebuked filibuster reform) blocked meaningful voting rights legislation. In 2023, we need the Senate to move forward with the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. Even with dysfunction in the Republican-controlled House, the Senate should make a strong statement by starting the year with crucial voter protections.
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How Democracy Will Head to the Courts in 2023 |
New year, not-so-new lawsuits. Litigation can move slowly, so challenges to voter suppression laws and gerrymandered maps from last year and beyond will hopefully have major updates this year. As we begin 2023, here’s what to expect in courtrooms across the country.
By early summer, expect two major democracy rulings from the U.S. Supreme Court. -
The Court’s term begins on the first Monday in October, with oral arguments heard from October through April of the following year. All rulings are issued before the Court recesses for the summer, usually around late June. Around that time this year — late spring or early summer 2023 — we should expect two consequential rulings from the Supreme Court in Merrill v. Milligan and Moore v. Harper.
The census may take place once a decade, but the reconfiguration of political districts will continue into 2023 and beyond. -
In an election law case, timing matters. Delays in the release of 2020 census data and the rush to finalize new districts before the 2022 midterms resulted in five states — Alabama, Florida, Georgia, Louisiana and Ohio — holding congressional elections this year under maps that courts found likely to violate federal law or state constitutions. In 2023, expect even more redistricting updates, as there is ongoing litigation against congressional maps in 15 states.
Legal challenges to some 2021 voter suppression laws will be resolved in 2023. -
The story of 2021 was voter suppression. Yet, it is 2023 when a large portion of those laws will likely meet their ultimate fates in court. Similar to the challenged redistricting maps, some temporary relief was granted before the midterm elections. Additionally, there have been full trials over voter suppression laws passed in Arkansas, Florida and Montana, but all three cases are now on appeal. In Texas and Iowa, trials have been previously postponed and will hopefully take place this summer.
State legislatures will pass more election and voting bills in 2023; no doubt, some will face legal challenges. -
Across the country, many states are set to convene for the next legislative session in early January. In Texas, for example, legislators have already prefiled over 70 election and voting bills ahead of the state’s legislative session beginning on Jan. 10 — this figure includes 48 pro-voting and 21 anti-voting measures. Based on lawmakers’ priorities from December, it also seems like the Ohio Legislature has voter suppression on its mind as we enter 2023.
Read our full analysis of what to expect in the courts in 2023 here. |
Recap: Late December Legal Updates in Arizona |
Earlier this week, Katie Hobbs, Kris Mayes and Adrian Fontes were sworn in as the governor, attorney general and secretary of state of Arizona, respectively. The ceremony comes on the heels of several weeks of litigation challenging election results, with two early Christmas gifts sent in the form of rejected election contests.
First, on Dec. 23, a judge rejected the election contest brought by Abe Hamadeh and the Republican National Committee over the attorney general race. A few days later, the results of the state’s mandatory recount were released, confirming Hamadeh’s narrow loss to Mayes. However, on Tuesday, Hamadeh filed a motion for a new trial over alleged misconduct in Pinal County, a Republican-leaning area in central Arizona.
Then, on Dec. 24, a judge dismissed the election contest filed by defeated gubernatorial candidate Kari Lake. The ruling comes after a tumultuous two-day trial where the judge granted Lake’s lawyers and witnesses as much grace and good will as possible. Even so, after narrowing Lake’s claims to two very high legal bars — that there was intentional misconduct determinative to the outcome, meaning it would make up for the 17,000 vote difference between Lake and Hobbs — the judge found that the plaintiffs did “not show…clear and convincing evidence.”
“Every single witness before the Court disclaimed any personal knowledge of such misconduct,” the judge continued. “The Court cannot accept speculation or conjecture in place of clear and convincing evidence.”
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What’s next? We’re waiting for a response to Hamadeh’s motion for a new trial. Lake has also appealed the decision in her case, though her petition to transfer it directly to the Arizona Supreme Court was denied. Failed secretary of state candidate Mark Finchem’s lawsuit is completely dead.
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The U.S. House of Representatives is in disarray. To be more precise, House Republicans are in disarray. After a week of votes, Rep. Kevin McCarthy (R-Calif.) has still failed to secure the position of speaker. As the GOP holds the U.S. House at a standstill, remember that gerrymandering in states like Florida, Ohio, Georgia, Texas and elsewhere unjustly gave the GOP congressional seats. And, if you're wondering who Byron Donalds — the other GOP speaker option — is, he’s a representative from southwest Florida who voted to reject Arizona and Pennsylvania’s electoral votes in the 2020 presidential election. He also supports Florida’s voter suppression law and the state's election police force.
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Pennsylvania Gov.-elect Josh Shapiro (D) announced his plan to nominate Al Schmidt, a Republican election official who formerly served as one of Philadelphia’s three city commissioners, to be the secretary of state. Schmidt is known for facing intense threats after overseeing the 2020 presidential election. Pennsylvania is one of nine states where the governor selects the chief election official and the nominee must be confirmed by the Pennsylvania Senate after Shapiro is sworn into office on Jan. 17.
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We’re waiting to see if Ohio Gov. Mike DeWine (R) signs Ohio’s photo ID bill into law. The bill passed the Ohio Legislature in December. If he doesn’t sign or veto the bill soon, it will become law without his signature, becoming the first voter suppression law enacted after the 2022 midterm elections.
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In an odd decision, Massachusetts House Speaker Ron Mariano (D) paused the inauguration of two Democratic representatives-elect who narrowly won their races. In both instances, recounts confirmed the Democrats’ wins, which have been certified by the state. Now, defeated state Rep. Lenny Mirra (R) remains in office even though an automatic recount revealed that he lost by one vote. Mirra’s lawsuit has also already been tossed by a court.
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HOW WE WON: Taking “Every County, Every Vote” to the U.S. Senate |
The most exciting news of 2023 is…Democracy Docket launched a podcast! After hosting Twitter Spaces for over a year, Marc Elias and Paige Moskowitz have finally moved their weekly conversations to a more stable, shareable platform. (Don’t worry, listeners can still ask questions by sending in voice messages.) Listen wherever you get your podcasts.
“[B]y treating Jan. 6 as a singular event, we miss the throughline that connects this unique day to the broader set of attacks on democracy that we have seen for more than a decade and continue to witness today,” Marc wrote this time last year. Read “Jan. 6 Was Not the Beginning or the End” to get the full picture of how a dark day in American history was deeply intertwined with our past and still relevant to our future.
Across the country, legislators are ready to head back to work. As state legislatures convene for the next legislative session, reach out to your state House and Senate members and ask them to support pro-voting reforms in 2023.
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