On The Docket 01/20/2023

“The hallmark of the modern Republican Party is its shamelessness. You can be many things and still be a Republican — in favor of free trade or opposed; pro-Ukraine or pro-Putin; even in favor of climate change legislation or against. However, you must not feel shame. You cannot admit mistakes. Hypocrisy is a virtue, not a vice. Most of all, never admit defeat.

This explains the GOP’s continued embrace of Rep. George Santos (R-N.Y.). He is not a party outcast; he is its perfect embodiment.

You might ask why I am writing about Republican politics when I typically limit my essays to matters of voting, elections and democracy. The answer is because democracy only works if we share certain core values in common — Democrats and Republicans, liberals and conservatives, young and old.”

Read Marc’s latest, “Santos, McCarthy and the Shameless Republican Party,” where he describes the core values required by all politicians for a functioning democracy — and how the modern Republican Party lacks them.
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Arizona GOP Failed in Court to End Mail-in Voting…but Efforts Remain in the Legislature

Arizonans love to vote by mail and to vote early. In fact, nearly 90% of voters took advantage of early voting, the majority by mail, in 2020. Three-quarters of voters are on a permanent list to automatically receive a mail-in ballot every election. Yet, Arizona Republicans — beholden to the most extreme election conspiracies in the nation — are seeking to revoke this method of voting, one that has a 30+ year legacy of bipartisan support in the Grand Canyon State. And, it’s not just fringe, lone-wolf characters seeking to undo vote by mail — it’s the state’s Republican establishment. [link removed]

In February 2022, the Arizona Republican Party filed a lawsuit directly in the state Supreme Court arguing — to emphasize again, 30 years after its enactment — that Arizona’s no-excuse mail-in voting policy violates the state constitution. The Arizona Supreme Court declined to hear the case, after which the GOP plaintiffs filed a new lawsuit in state trial court raising the same claims. In June 2022, a trial court judge once again rejected the lawsuit: “There is nothing in the Arizona Constitution which expressly prohibits the legislature from authoring new voting laws, including ‘no-excuse’ mail-in ballots,” the judge wrote.
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This week, the Arizona Court of Appeals unanimously affirmed the trial court’s decision to dismiss the Arizona Republican Party’s second lawsuit. In a victory for voters, Arizona’s popular mail-in voting system remains. [link removed]

Arizona Republicans aren’t done just yet with their offensive against mail-in voting. As of Jan. 18, there are at least four recently-introduced bills aiming to seriously curtail or fully repeal early and mail-in voting: [link removed]

House Bill 2096 would shorten the time available for voters to return mail-in ballots. Currently, all ballots must be received by 7 p.m. on Election Day. Under this bill, that deadline would remain the same for ballots returned through the U.S. Postal Service, but all ballots returned to vote centers, election offices or drop boxes would need to be dropped off by 5 p.m. on the Friday before Election Day. For context, around 290,000 ballots were returned on Election Day alone in the state’s largest county in 2022.

House Bill 2229 would end mail-in voting except for military and overseas voters or voters temporarily living outside of the state. The bill text is straightforward: “Voting by mail is banned in this state.”

House Bill 2231 would re-institute a narrow list of excuses to vote by mail. The only voters qualified to vote by mail would be those physically unable to go to the polls due to illness, age or absence from their precinct on Election Day.

House Bill 2232 would require all voting to occur on Election Day with paper ballots. The bill would ban the use of electronic tabulator machines; all ballots would need to be hand counted, an unfeasible venture in a jurisdiction as populous as the state of Arizona.


The DOJ Jumps Into Multi-Year Legal Battle Over Voter Intimidation

In November 2020, Georgia chose President Joe Biden. Two months later, with control of Congress on the line, Georgia voters once again showed up to the polls in record numbers. They propelled the two Democratic candidates to the U.S. Senate and Black voters were the deciding force.

In the months between the general and runoff elections, a nefarious story was unfolding behind the scenes: True the Vote (TTV), a right-wing, Texas-based organization, challenged the voting eligibility of over 364,000 Georgians. (Georgia permits any voter to challenge the right to vote of any other voter in their county or municipality.) On Dec. 22, 2020, Stacey Abrams’ voting rights group Fair Fight filed a lawsuit against TTV. [link removed]

The lawsuit argues that TTV’s actions — the mass challenges to voter eligibility, combined with recruiting partisan poll watchers and offering a money award to anyone who finds evidence of “illegal voting” — violate Section 11(b) of the Voting Rights Act (VRA), which protects against voter intimidation.

Over two years later, the legal battle is ongoing. In October 2022, the federal district court judge presiding over this multi-year case asked the U.S. Department of Justice (DOJ) about its “position as to intervention” in this lawsuit after the defendants questioned the constitutionality of Section 11(b). The DOJ accepted this request to join the case and submitted a brief on behalf of Fair Fight on Tuesday that emphatically rejected TTV’s attempts to undermine Section 11(b). [link removed]

The DOJ began its brief by rejecting the TTV defendants’ attempt to limit the scope of 11(b), instead arguing that the plain language of the VRA provides no limitations or exceptions to the “core prohibition on intimidation, threats, and coercion” and does not require proof that the voter intimidation was intentional or successful to find an 11(b) violation. The brief further noted that 49 states, Washington, D.C. and the federal government “all proscribe voter intimidation,” reflecting a universal understanding that the government can limit First Amendment rights to protect voters.

Both the plaintiffs and defendants in this case have filed motions for summary judgment — meaning they’re asking the judge to rule on a portion or all of a case without a full trial by arguing and presenting evidence that their side is right. The hearing on these motions is scheduled for Feb. 1, 2023.

Cases Pending Before SCOTUS Reveal the Damaging Implications of the ISL Theory

The U.S. Supreme Court has not yet released a decision in Moore v. Harper, the case that opens up review of the theory that state legislatures are not beholden to their state constitutions or state courts in the sphere of federal elections. Yet, more cases are trying to get before SCOTUS invoking this radical idea, called the independent state legislature (ISL) theory. These subsequent cases reveal the scope and damage of the ISL theory if it’s embraced by the Court. [link removed]

In October 2022, Ohio Republican lawmakers — famous for dodging court orders and repeatedly enacting gerrymandered maps — filed a petition in the U.S. Supreme Court asking it to review the Ohio Supreme Court’s decision to strike down the state’s congressional map. The Ohio troublemakers invoked the ISL theory in another extreme attempt to get away with partisan gerrymandering. Yet, the U.S. Supreme Court is unique in that it is not required to hear all cases — in fact, it may “grant cert” or choose to hear oral argument in only about 80 out of over 7,000 petitions filed each year.

Today, the justices are scheduled to consider the Ohio case at a conference, a private meeting where the justices decide whether they plan to grant the petition. Their decision will typically be released on the following Monday morning. [link removed]

A few weeks ago, Dan Cox, a far-right candidate who resoundingly lost the race for Maryland governor last year, asked the U.S. Supreme Court to review a decision made by the Maryland Supreme Court in advance of the 2022 midterm elections. Maryland election law “[f]orbids the opening of any mail-in ballot envelope” before 8 a.m. on the Wednesday following Election Day, the only state with such a restriction. In the face of this unhelpful statute, the Maryland State Board of Elections sought special permission to suspend the law so local boards of canvassers were allowed to begin canvassing mail-in ballots much earlier on. A lower court granted this relief for the 2022 midterms and Maryland’s highest court affirmed this decision. [link removed]

Wielding the ISL theory, Cox claims that the Maryland Supreme Court usurped the state Legislature’s power and violated the U.S. Constitution's Elections Clause by allowing mail-in ballots to be counted earlier than state law permits.

This is an illustrative example of the havoc that the ISL theory could wreck on the administering of elections. While true that state law forbids such a practice in Maryland, elections sometimes demand flexibility that the legislative process is too slow moving to provide. Maryland election officials — experts in their field — had noted that the influx of mail-in ballots and the limitation on when they could be counted “caused cascading issues through the local and statewide canvassing and certification process” during the 2022 primary election.

In Moore, numerous briefs highlighted the practical implications of the ISL theory and the potential to paralyze elections. One group of election administrators wrote an amicus brief that warned that the ISL theory would severely curtail discretionary orders made by governors, secretaries of state or expert local administrators in case of unforeseen circumstances, such as natural disasters. [link removed]

Ohio Lawmaker Gives the Game Away

Last week, Ohio state Rep. Brian Stewart (R) introduced a resolution that would raise the threshold for voters to approve constitutional amendments from 50% to 60%. A similar proposal was introduced in December 2022; the resolution failed to advance before the session ended as lawmakers prioritized another package of anti-voter policies. The 2023 version is even worse though: In addition to changing the threshold for enactment, the resolution would eliminate a “cure period” after gathering signatures and would require signatures from all 88 Ohio counties instead of only 44 counties.

In the press, Stewart and 35 of his colleagues have purported that this proposal will protect “against outside influence and special interests.” Yet, privately, it is a very different story. When urging his colleagues to support the measure in December, Stewart explicitly said that the resolution was an effort to counter future attempts to codify abortion rights and end partisan gerrymandering. In a letter obtained by a cleveland.com reporter, Stewart further boasted that “Republicans won a 67 seat majority in the House,” implying that citizen-led constitutional amendments would threaten that control. [link removed]

While Stewart critiques the fact that consequential constitutional amendments can pass during low-turnout elections, he wants his resolution to move quickly enough so it can be on that very same “sleepy May primary” ballot.

It’s not just Ohio. In the face of citizens rejecting the policies and priorities of the Republican Party, lawmakers in at least three states have proposed resolutions to restrict the ballot initiative process. [link removed]

More News

Did you know that Congress reviews all legislation passed by the Washington, D.C. Council before it can go into effect? Republicans are well aware of that power and plan to yield it to their anti-democratic ends. Last week, Sen. Tom Cotton (R-Ark.) and Rep. James Comer (R-Ky.) introduced legislation to overturn a Washington, D.C. Council law to allow certain noncitizen residents to vote in local elections. Cotton blatantly lied in his press release, repeatedly using the term “illegal immigrants” while the district’s new law would only extend this narrow right to legal permanent residents, such as green card holders. Cotton is also a strong opponent of statehood for the District of Columbia. Just a few years ago, he called Wyoming — a state with a smaller population than the district — a “well-rounded working-class state” while implying that its residents are much more deserving of statehood than residents of the nation’s capital. Cotton’s comments, as well as the wider resistance to D.C. statehood, are notable given the racial composition of the potential 51st state: Black residents compose nearly 46% of the population in the District of Columbia, compared to 1.2% in Wyoming. [link removed]

How close is control of the Pennsylvania state House? Earlier this month, a Republican lawmaker filed a lawsuit alleging that because of three vacancies (due to a death and two representatives’ elections to other positions), Democrats did not have a majority in the Pennsylvania House and the authority to set special elections. Last Friday, a court denied the request to stop the special elections from going forward; the special elections — where Democrats are predicted to win all three seats — are scheduled for Feb. 7. Once filled, Democrats are expected to hold a slim majority in the state House, 102 to 101. [link removed]

Real vs. fake electors go head to head: Last week, three Democratic presidential electors from Michigan filed a lawsuit against 16 “fake electors” who attempted to submit election results claiming that former President Donald Trump won Michigan’s 16 electoral college votes in the 2020 election. The plaintiffs claim that the fake electors scheme violated multiple state and federal criminal laws (including those prohibiting civil conspiracy and forgery). A similar lawsuit was filed in Wisconsin in 2022. [link removed]

One day after being sworn in as the secretary of state of Alabama, Wes Allen took his first act in office: withdrawing Alabama from the Electronic Registration Information Center (ERIC), an opt-in nonprofit organization that allows for information sharing between states to help maintain accurate voter rolls. “Providing the private information of Alabama citizens, including underage minors, to an out of state organization is troubling to me,” Allen said in a press release. More than thirty red and blue states have taken part in ERIC for years but the nonprofit has recently been pulled into the ecosystem of right-wing election conspiracies. Louisiana withdrew from ERIC last January; GOP lawmakers in Missouri and Oklahoma have introduced legislation to withdraw and/or prohibit their states from entering into ERIC. [link removed]

On Jan. 9, a Florida state representative introduced a proposed amendment that would allow Florida voters to recall all elected county officials, including supervisors of elections. Supervisors of elections all across the state could become subject to frivolous recalls for merely doing their jobs, adding even more pressure to elections officials in a climate of increased threats, harassment and conspiracy theories. [link removed]

HOW WE WON: How Year-round, Youth Organizing Pays off on Election Day

By Carmel Pryor, senior director of communications at the Alliance for Youth Action. Read more ➡️ [link removed]

What We’re Doing

We have a very special guest joining Marc and Paige on our latest episode of Defending Democracy: Sen. Sheldon Whitehouse (D-R.I.). While you’re learning all about the U.S. Supreme Court, court reform and special interests influencing the judiciary, make sure to give the podcast a rating on your platform of choice. Listen now on Apple Podcasts, Spotify or wherever you get your podcasts! [link removed]
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Dive into more reading on court reform from our contributors:
Christopher Kang, cofounder and chief counsel of Demand Justice, writes about the pressing need to expand the Supreme Court. (Take action with Demand Justice here.)
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Rakim Brooks, president of Alliance for Justice, discusses the urgency of fulfilling judicial nominations with forward-thinking advocates. (Tell your senators to confirm President Joe Biden’s judicial nominees.) [link removed]

Redistricting isn’t over yet. In fact, on Jan. 25, the Texas state Senate will restart regional hearings in another round of map drawing. Find ways to make your voice heard in the process with Common Cause Texas. [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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