On The Docket 01/27/2023

Even in the midst of winter, courtroom activity is starting to heat up as we head into February. Today, we preview what’s to come in the next busy week and discuss blatantly partisan moves from North Carolina Republican lawmakers. What we don’t know yet: Will the North Carolina Supreme Court — with its new Republican majority — play along with the gambit?

No Subtlety Here: North Carolina Republicans Ask For Re-do of Partisan Gerrymandering and Photo ID Cases

Last Friday, North Carolina Republicans asked the North Carolina Supreme Court to rehear two cases — one challenging a restrictive photo ID to vote law and one over the state’s congressional and legislative maps — after the court shifted from blue to red in the 2022 midterm elections. There was no subtlety to the lawmakers’ partisan move. [link removed]
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For years, moderate judges were elected to the state’s highest court in nonpartisan elections. And in 2022, we saw the North Carolina Supreme Court routinely rule in favor of voters:

Early last year, the court ruled 4-3 to strike down the state’s newly enacted congressional and legislative maps for being GOP partisan gerrymanders in violation of the state constitution. Following the order, a trial court adopted fairer remedial maps. (Important note: The case involving the congressional map was accelerated to the U.S. Supreme Court and pending a decision in Moore v. Harper.)

All three maps continued to be challenged by various plaintiffs in North Carolina state court. On Dec. 16, 2022, the North Carolina Supreme Court once again issued a 4-3 ruling, blocking the remedial state Senate map for not properly accounting for its partisan breakdown, another confirmation that the Tar Heel State’s courts have a mechanism under state law for rejecting partisan gerrymanders.

Also in December 2022, the North Carolina Supreme Court permanently blocked a 2018 law that provides a narrow list of qualifying photo IDs acceptable for voting. The court found that the law was enacted to intentionally disenfranchise Black voters, noting that the law “has a disparate impact and that this impact ‘bears more heavily on one race than another,’ namely on African-American voters.”

This would typically be the end of the story. But, not in North Carolina. In 2017, the Republican-controlled Legislature enacted a new law requiring judicial candidates to run in partisan primaries and for political affiliations to be front and center in the judicial general election. The impact of that law reverberated in the 2022 midterm elections where two Democratic incumbents were replaced with two new Republicans. This meant that the court flipped from a 4-3 Democratic majority to a 5-2 Republican majority.

In light of this change in composition, Republicans in the state Legislature — the defendants in the redistricting case — asked the court last Friday to rehear the lawsuit regarding all three maps and reverse its decision. On the same day, the lawmakers filed a separate petition for rehearing of the case they lost over the state’s photo ID law.

“Rehearing appellate decisions is exceedingly rare,” Marc writes in his latest. “To function, the judicial system requires finality — for better or worse. Judicial rules allow a party to seek rehearing only under extraordinary circumstances. The idea is to allow courts to correct themselves only when an obvious error in law or fact has been called to their attention by one of the parties in the lawsuit.” [link removed]

There is no reason why the North Carolina Supreme Court mistook its legal analysis just one month ago. The GOP lawmakers simply want to redraw their gerrymanders and pass discriminatory voting laws free from judicial accountability; Friday’s petitions reveal that they believe they have a chance to make that happen after the court flipped control.

Read Marc’s latest, “The Latest Gambit From North Carolina Republicans,” for more. [link removed]

Vermont Supreme Court Upholds Local Noncitizen Voting Law, Ugly Backlash Continues

Last week, the Vermont Supreme Court upheld a statute allowing noncitizens who are legal U.S. residents in Montpelier, Vermont to vote in local elections. This historic ruling comes as a handful of municipalities across the country are enacting laws to allow certain noncitizen residents to vote in local elections, sparking swift backlash from right-wing groups, often fueled by an anti-immigrant sentiment. [link removed]

Vermont’s small capital city with a population of around 8,000 residents approved a charter amendment in 2018 allowing legal residents to vote in Montpelier city elections. A legal resident is defined as someone “who resides in the United States on a permanent or indefinite basis in compliance with federal immigration laws.” The Vermont General Assembly approved the charter for implementation in 2021, overriding the governor’s veto to do so.

Friday’s decision stems from a lawsuit filed by the Republican National Committee and Vermont Republican Party challenging the statute for violating the Vermont Constitution. In April 2022, a trial court rejected the Republicans’ argument, which the Vermont Supreme Court affirmed in an unanimous decision. The opinion noted that the provision of the Vermont Constitution that the plaintiffs rely on for their argument does not apply to local elections.

While only U.S. citizens can vote in federal elections, some cities or towns like Montpelier have proactively allowed permanent, noncitizen residents to vote in local elections. This includes elections for mayor, city council, school board and more. Notably, last year New York City passed such a law, which is currently in litigation. In Washington, D.C., a similar bill approved by the city council has recently become the target of Republican members of Congress, including Sens. Tom Cotton (R-Ark.), Ted Cruz (R-Texas), J. D. Vance (R-Ohio) and Rick Scott (R-Fla.).

It was clear in Cotton’s press release about his resolution to overturn the District of Columbia’s bill that he had no qualms about lying about the policy: “Allowing illegal immigrants to vote is an insult to every voter in America. Every single Democrat should be on the record about whether they support this insane policy,” Cotton wrote. Laws that expand voting rights to certain noncitizens are often inaccurately characterized by opponents, either in defining which noncitizens can vote or in what type of elections.

Proponents of such laws argue that noncitizen legal residents should have a say in local policy decisions given that they have jobs, pay taxes, own homes and send children to schools. Nonetheless, noncitizen voting policies — and the backlash that has already begun — is a growing trend in 2023. Learn more about noncitizen voting rights here. [link removed]

Connecticut Looks To Pass Long-Overdue Reform

The option to show up to a polling location or election office the week or two before Election Day in order to cast a ballot is the norm almost everywhere in the United States. The ease and availability of this early in-person voting period may vary greatly by state, but only four states do not offer this option at all: Alabama, Connecticut, Mississippi and New Hampshire.

Now, Connecticut is looking to change that. As of last Friday, lawmakers in the Constitution State have introduced at least six bills outlining an early voting process. These bills come on the heels of Connecticut voters overwhelmingly approving an amendment to allow the state to enact early voting. (The amendment itself did not add the law to the books, but permitted the Connecticut Legislature to do so.) [link removed]

Not all policies are created equal and there are several competing proposals to implement the new procedure before the Legislature:

Connecticut Secretary of State Stephanie Thomas (D) recommended 10 days of early voting, starting with the 2023 municipal elections. One bill would create a scheme that does just that.

Other proposals from Democratic lawmakers include two weeks of early voting and two full weekends of early voting.

In contrast, two bills filed by Republican legislators also add an early voting period, but with numerous restrictions. One proposal would only permit two days of early voting, but it wouldn’t include the Sunday or Monday before Election Day. Another would only permit a narrow list of qualified absentee voters to take advantage of early voting, with none offered the four days prior to Election Day.

Given Connecticut’s Democratic trifecta, one of the more generous proposals for early voting will likely advance this session.

Here Comes February…and Lots of Court Activity

Next week is a busy one. Here’s the rundown of the voting cases heading into the courtrooms.

On Monday, Jan. 30, a New Hampshire court will hold a motion to dismiss hearing in a lawsuit challenging a voter suppression law enacted last spring. Most notably, the law renders the state’s Election Day registration option useless by creating a photo ID requirement. [link removed]

On Wednesday, Feb. 1, there will be updates in three big cases:

A Georgia court will hold a hearing on motions for summary judgment; both sides in a voter intimidation lawsuit (Stacey Abrams’ Fair Fight versus the right-wing group True the Vote accused of intimidation) have asked the judge to rule on the case without a full trial. Both parties will present evidence that their side is clearly right. Even the U.S. Department of Justice (DOJ) has gotten involved in this two-year long case. [link removed]

The Kansas Supreme Court will hold oral argument in a lawsuit challenging two laws that criminalize voter assistance, limit ballot collection, restrict advocacy organizations from helping voters, impose a signature verification requirement and more. Most of the claims have been dismissed (a decision that’s being litigated in a separate appeal), so the oral argument on Wednesday will only involve a provision that criminalizes the action of “knowingly misrepresenting” oneself as an elections official or engaging in election-related activity that “gives the appearance” of being an election official. [link removed]

The Kari Lake saga continues. After her failed bid for Arizona governor (and failed lawsuit challenging that loss), Lake is now before the Arizona Court of Appeals. During a status conference on Wednesday, there won’t be any news about the merits of the appeal but we may have a sense of the schedule and proceedings for the case moving forward. [link removed]

On Thursday, Feb. 2, a crucial case about North Carolina’s felony disenfranchisement law will be before the newly elected Republican North Carolina Supreme Court. After a trial in summer 2021, a trial court held in a 2-1 decision that the state’s law that disenfranchises individuals on felony probation, parole or post-release supervision violates the North Carolina Constitution because it discriminates against Black voters and denies people the fundamental right to vote. Before the appellate court decided the appeal, the North Carolina Supreme Court took over the case. Next Thursday, the state’s highest court will hear oral argument — the outcome of which will determine if over 56,000 people are enfranchised. [link removed]

More News

Lisa Marra, the elections director of Cochise County, Arizona, announced her resignation, citing an “outrageous and physically and emotionally threatening” work atmosphere. Cochise County was the center of controversy last year when its Republican supervisors tried to push an illegal hand count of ballots. During this chaos, Marra urged the board to follow state law, but was personally sued by the GOP supervisors when she refused to execute their plan. Over the past few years, there has been a rise in intimidation and harassment of election workers, leading to resignations of key officials across the country. [link removed]

The DOJ will join a 5th U.S. Circuit Court of Appeals oral argument on March 6 about a Texas law that requires people who register to vote electronically to also submit a pen-on-paper version of their signature. A lower court found that the law violates federal law. Learn more about this little known provision that makes it harder to register to vote. [link removed]

Last Friday, several Massachusetts lawmakers introduced proposals to end felony disenfranchisement through a constitutional amendment. Currently, Massachusetts revokes the right to vote from individuals convicted of felonies for the duration of their incarceration. This constitutional amendment would align the Bay State with only a handful of other jurisdictions: Maine, Vermont and Washington, D.C. Notably, all incarcerated individuals maintained the right to vote in Massachusetts until 2000 when then-acting Gov. Paul Cellucci (R) proposed a successful petition initiative to revoke this right, largely in retaliation to civic engagement and voter registration work by incarcerated voters. [link removed]

Good news for Arizona voters: A majority of county recorders agreed that they will not purge voters under Arizona voter suppression laws House Bill 2492 and House Bill 2243, which are the focus of ongoing litigation. Previously, an agreement had temporarily blocked H.B. 2243 for the 2022 election cycle. Now that the 2022 elections are over, H.B. 2243 is in effect while litigation continues (the other law has remained in effect since it was enacted). Yet, as of Jan. 24, almost all of Arizona’s counties — 13 out of 15 — have submitted assurances that they have not and will not purge voters under H.B. 2492 and H.B. 2243 until further guidance from the state. [link removed]

Remember that weird lawsuit over which party controls the Pennsylvania state House (and consequently who has the authority to set special elections)? Well, this week, the Commonwealth Court of Pennsylvania issued its opinion, voiding part of its Jan. 13 order that had said that certain claims were nonjusticiable. This means that litigation on the merits of the issues presented will continue, though the three special elections scheduled for Feb. 7 will be held as planned. The state House is currently adjourned until Feb. 27. [link removed]

For the second time, Lake asked the Arizona Supreme Court to take over review of her lawsuit contesting her loss in the Arizona governor's race — this request was denied a few hours after it was made. Her first petition to transfer to the state's highest court was also denied earlier this month. (Lake’s case is currently ongoing before the Arizona Court of Appeals, the state’s mid-level court.) In another fringe lawsuit, a far-right, self-proclaimed “civil rights” lawyer has made a similar request to expedite his case —which demands Lake be confirmed as governor — to the Arizona Supreme Court.
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SPOTLIGHT: State Courts Stepped up in 2022 To Protect Our Freedoms

By Manuel Madrid, senior communications associate on the Inclusive Democracy team at ReThink Media. Read more ➡️ [link removed]

What We’re Doing

We’re listening to the latest episode of The Weeds, Vox’s politics and policy podcast where the hosts jump back in time to explore the legislative and judicial history of the Voting Rights Act and how it ended up back before the U.S. Supreme Court in Merrill v. Milligan. [link removed]

Last Sunday could have been a momentous day. We surpassed the 50-year anniversary of Roe v. Wade, a landmark case that protected reproductive rights and bodily autonomy. Yet, the Supreme Court robbed us of that potential celebration when the justices repealed a half century of precedent last June, unleashing an attack on abortion rights. To recognize the 50-year anniversary, you can donate to abortion funds, critical networks of trusted organizations that help individuals with logistical and financial support to arrange an abortion. You can find a list of local, state and multi-state funds here. [link removed]

Next week, the North Carolina Supreme Court will hold oral argument in a case over the Tar Heel State’s felony disenfranchisement law. In advance, we’re reading an article from the co-directors of Forward Justice who explain the history of the case and its very real impact on voting access. Also take a moment to hear from two Democracy Docket guest authors who have been impacted by incarceration: [link removed]

Corey “Al-Ameen” Patterson on being unconstitutionally disenfranchised in jail during the 2008 presidential election and the journey to expand voting access for other eligible incarcerated voters in Massachusetts since. [link removed]

Neil Volz on the state of Florida arresting dozens of returning citizens for voting, all because the state has a broken system. [link removed]

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A new episode of Defending Democracy drops every Friday at 6 a.m EST. Listen to today's new episode “North Carolina Republicans Want a Redo” wherever you get your podcasts. [link removed]


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