On The Docket 01/13/2023

All eyes were on the U.S. House of Representatives last week as Republicans struggled to elect a speaker. It likely won’t be the last time we see similar dysfunction in such a closely divided legislative chamber. Even though the House GOP is beholden to the extremists of its party, don’t forget that the entire party, even so-called “moderates,” oppose voting rights legislation.

This means that most of the voting and election legislative activity in this upcoming year will take place at the state level. We’re already seeing a surge of new bills introduced across the country and we’ll keep you updated on what advances.

NEW REPORT: How Republicans Lost and Voters Won in Court

How many voting and election lawsuits were filed in 2022? Who filed them? What were the outcomes? How did court orders impact the midterm elections? In our latest report, we take a deep dive into our comprehensive lawsuit database to break down the most interesting litigation trends of 2022. Read and share! Here’s a teaser of two interesting graphs: [link removed]

There was a steady rise in the number of new lawsuits filed each month in the run up to Election Day. The graph below shows how there was a dramatic surge of new lawsuits right before and after the midterm elections — the number of lawsuits filed in November (47) was nearly double the figure from October (24).

[Bar Graph titled "Lawsuits Filed in 2022 by Month." The months of the year are on the x axis; the bars show a steady increase in June through October until a big surge in November.]

Distinct from lawsuits filed, consequential orders — either interim or final decisions that impacted voters — came along the way. Interim orders are issued during an ongoing lawsuit (such as a preliminary injunction) and final orders signal the end of a lawsuit (such as an opinion on the merits of a lawsuit or a settlement agreement). Of the 175 consequential orders issued in 2022, 116 were victories for voters, 35 were losses for voters and 24 were neutral decisions. This is huge news: In 2022, democracy won in the courtroom.

[Pie chart titled "Consequential Orders Issued in 2022 by Impact." The chart shows Victories (116 orders), Losses (35 orders) and Neutral (24 orders).]

Read the full report here. Find Marc’s reaction to the data here.
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Losing Houston Republicans Take a Page From Kari Lake’s Playbook

Within the past week or so, more than a dozen defeated Republican candidates in Harris County, Texas contested their November losses. All of the candidates are blaming election administration issues in the Democratic-leaning (and trending) Harris County and asking for new elections, even when they lost by significant margins. [link removed]

Home to Houston, Harris County has 2.5 million registered voters spanning a Delaware-sized area. On Election Day, some polling locations opened late or ran out of paper; other process issues plagued the large jurisdiction.

We finally got the filing from the losing candidate for county judge, a nonjudicial position that functions as the county’s chief executive: Republican candidate Alexandra Mealer filed a lawsuit against her Democratic opponent Lina Hidalgo, who won the election by over 15,000 votes. Mealer alleges that Harris County voters, especially those in high Republican turn-out locations, were “suppressed” due to allegedly “illegal” irregularities on Election Day. Mealer asks the court to declare the election results “void” and to order a new election. Notably, Mealer already conceded the day after Election Day. [link removed]

Democratic State Lawmakers Prioritize Voting Rights in New Legislative Sessions

In 2022, Democrats did not lose control of a single state legislative chamber, a huge feat in a midterm year for the party occupying the White House. In fact, Democrats flipped legislative chambers in Michigan, Minnesota and Pennsylvania (the Pennsylvania House remains in limbo right now with a lawsuit challenging who has the power to set special elections for vacant seats).

In Minnesota, early signs show that the Democratic-Farmer-Labor (DFL) Party is ready to use its new trifecta control to improve voting access in the North Star State. On the two year anniversary of the Jan. 6, 2021 attack on the U.S. Capitol, DFL lawmakers announced the formation of a legislative caucus focused on “defending democracy.” The new caucus has already introduced a major package of pro-voting reforms, the “Democracy for the People Act.” The omnibus bill would:
allow 16- and 17-year-olds to pre-register to vote;
permit voters to opt-in to a permanent absentee voter list;
require voting materials in multiple languages;
strengthen voter intimidation and deception penalties;
create a public fund for campaign contributions where each registered voter would be allotted two “Democracy Dollars coupons” with a $25 dollar value donatable to a political party or campaign committee;
establish automatic voter registration and more.
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One notable policy change advanced by the Democracy for the People Act would restore the right to vote for individuals who are no longer incarcerated for a felony conviction. Currently, Minnesota restores voting rights to those convicted of felonies after the completion of their entire sentence, which almost always includes probation and/or parole. This bill would move Minnesota’s policy in line with 22 other states, where people convicted of felonies only lose voting rights while physically in prison.

In addition to Minnesota, there are proposals in Kentucky, Missouri, Nebraska, New York, Texas and Virginia that aim to improve voting access for individuals with felony convictions, a major priority of voting rights activists in recent years. [link removed]

Given that blue states have bad voting laws too, will lawmakers actively improve them?
For example, Minnesota is one of a few states that permits any voter to vote by mail but requires a witness signature to do so. The witness can be a notary or any other registered Minnesota voter. Such requirements can be a major barrier to voting yet the latest pro-voting bill does not address that restriction. The witness requirement, along with Minnesota’s Election Day ballot receipt deadline, were the subject of litigation in 2020.

In contrast, the New York Senate has already passed legislation to effectively rescind an out-of-date ban on giving food and water to voters waiting at the polls, also known as a line-warming ban. (The current law is also the subject of ongoing litigation.) The line-warming ban removal is one of several positive election reforms that New York Democrats are quickly advancing. [link removed]

Missouri Republicans Don’t Want Voters To Make Their Voices Heard

How do we know that the Republican Party is increasingly out of step with the majority of Americans? Look no further than the attempts to curtail the ballot initiative process, where citizens can directly affect policy change. In recent years, progressive policies — including Medicaid expansion, minimum-wage increases, marijuana legalization and establishment of independent redistricting commissions — have excelled on the ballot. In 2022, when the question of abortion access was placed on the ballot in states that range from California and Vermont to Kansas and Kentucky, voters routinely chose to reject the Republican Party’s draconian policies.

In 2021, the Ballot Initiative Strategy Center monitored 146 bills aimed at restricting or abolishing the ballot measure process, a 500% increase from just a few years prior in 2017. In Missouri, this trend of curtailing citizens’ political power is starting strong in 2023. Missouri is a prime target for a ballot measure campaign to protect reproductive rights — and Republicans lawmakers know that.

Currently, Missourians can initiate statutory or constitutional changes via a petition process; approved petitions will be placed on the ballot before voters. But, as of Tuesday, Jan. 10, Missouri Republicans have introduced a dozen bills to make it harder for voters to approve constitutional amendments. The bills would raise the threshold to approve amendments, increase the number of voter signatures required to get on the ballot and more. Three proposals want to raise the threshold to an unprecedented 2/3 or nearly 67% of the votes cast (as opposed to a simple majority over 50%). [link removed]

The First Voter Suppression Law of 2023 Challenged in Court

Last Friday, Ohio Gov. Mike DeWine (R) signed the first voter suppression law of 2023. Within a few hours, a handful of Ohio organizations sued, arguing that the new law imposes “unjustified and discriminatory burdens on the fundamental right to vote” in violation of the First and 14th Amendments of the U.S. Constitution. [link removed]

What does this law do? Despite state leaders praising Ohio's election apparatus as secure, the legislation that Ohio lawmakers rushed through in the final weeks of the year targets every aspect of the voting process.

First, the new ID provision requires one of four forms of photo ID in order to vote. Notably, Ohio already requires proof of identification to vote; this law simply eliminates previously accepted IDs such as bank statements or university transcripts.

The law crunches the time to request and return a mail-in ballot. It advances the deadline for voters to request mail-in ballots and shrinks the deadline for voters to return their mail-in ballots after Election Day. Voters will also have fewer days to fix minor mistakes on their ballots.

Republicans have the most perplexing grievances against secure metal boxes. In Ohio, the new law restricts each county to one drop box or drop-off location. Think about that: Vinton County with its population of 12,800 will only have one drop box. But, Franklin County, home to Columbus and 1.3 million people, is similarly limited to a single location to drop off ballots. One size does not fit all.

Finally, the law eliminates in-person early voting on the Monday before Election Day. At least Ohio Republicans are straightforward — the clearest way to prove your anti-voting accolades is to take away a popular day of voting!

Get the full explanation of Ohio’s law and the lawsuit challenging it in a bonus episode of our new podcast, Defending Democracy. [link removed]

A Trump Judicial Appointee Trying To Wreak Havoc on Voting Rights

The 8th U.S. Circuit Court of Appeals held oral argument on Wednesday in a lawsuit challenging Arkansas’ state House map for diluting the voting strength of Black voters. Specifically, the 8th Circuit heard an appeal over whether a lower federal judge should have dismissed the case. [link removed]

Let’s rewind back to February 2022. Judge Lee Rudofsky — who was appointed by former President Donald Trump — rejected decades of case precedent to rule that there is no private right of action under Section 2 of the Voting Rights Act (VRA), the law under which the Arkansas NAACP and Arkansas Public Policy Panel sought relief. “Section 2 can and should be enforced by the Attorney General of the United States,” Rudofsky continued in his startling order. A private right to action means that individuals and organizations can bring lawsuits; without a private right to action under Section 2, only the U.S. Department of Justice (DOJ) could do so. [link removed]

In response to this ruling and an invitation to join the case, the U.S. Attorney of the Eastern District of Arkansas Jonathan Ross and U.S. Assistant Attorney General Kristen Clarke stated that “the United States continues to take the position that private parties, like the Plaintiffs here, have the ability to enforce Section 2 of the Voting Rights Act…through a private right of action.”

If the 8th Circuit were to embrace the theory advanced by Rudofsky — one completely unmoored from history and precedent — then the power of Section 2 would be greatly diminished. The DOJ has limited time and resources; lawsuits by private parties have long been essential in advancing civil and voting rights.

More News

The Associated Press reported that over 16,000 mail-in ballots in Pennsylvania were disqualified during the 2022 midterm elections, a majority of which were from Democrats. We outline all the related litigation on the topic that led to this result. [link removed]

Also in the Keystone State, Pennsylvania Senate Republicans passed an amendment to the Pennsylvania Constitution that would require all voters to prove their identity before voting. An identical proposal passed the Pennsylvania Legislature during the 2021-2022 session. If approved by the Pennsylvania House this year, the amendment will go to voters for approval in the following state election (the governor cannot veto proposed amendments). But, the composition of the Pennsylvania House has changed since the last legislative session, with Democrats with narrow (and slightly up in the air) control. [link removed]

On Tuesday, Ryan Heath, a self-proclaimed “civil rights” lawyer for the Gavel Project (an organization that “directly challenges the proponents of ‘woke’ culture”) requested that the Arizona Supreme Court remove Katie Hobbs from the governorship, giving the court four options for how to satisfy his outlandish demand. [link removed]

HOW WE WON: The Wisconsin Win: Investing in Long-term Infrastructure

By Ben Wikler, chair of the Democratic Party of Wisconsin. Read more ➡️ [link removed]

ICYMI, co-founder and co-executive director of Run for Something, Ross Morales Rocketto, wrote last weekend on how the Democratic Party’s future is found down the ballot. Read more ➡️ [link removed]

What We’re Doing

Next Monday, we celebrate the life and legacy of Martin Luther King Jr. Find actions near you to make our communities more equitable with Americorps’ MLK Day of Service. The King Center also collated a list of books written by and about King to dive into this holiday. [link removed]
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As we look for reforms in the new year, find your state in the Institute for Responsive Government’s report cards, a 50-state review of how each state has fared at making its election laws more responsive and user-friendly since 2020. [link removed]

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A new episode of Defending Democracy drops every Friday. Find old episodes here and listen wherever you get your podcasts. [link removed]


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