On The Docket
02/03/2023

Punxsutawney Phil may have predicted six more weeks of winter, but it won’t be a quiet or calm season. This week, courtroom activity picked up across the country. In addition to two major cases on the U.S. Supreme Court’s docket this term, did you know that four other congressional redistricting cases have requests pending before the Court?

Plus, the Idaho Legislature takes a not-so-subtle aim at student voters.


NEW REPORT: How Redistricting Maps Were Challenged in Court

In our latest report, we dive into our dataset of 111 lawsuits related to 2020 redistricting. Our new analysis reveals the importance of redrawing political district lines and explores the ways that maps can be challenged and changed via courts. Read and share! Here’s a teaser of two interesting graphs: [link removed]

Two-thirds of all states saw litigation over their maps drawn with 2020 census data. There were 87 total lawsuits that challenged congressional and/or state legislative maps drawn with 2020 census data, 46 of which included challenges to congressional maps and 55 of which included challenges to legislative maps (state House and/or Senate).

[Graphic titled: "2020 Redistricting Cycle Lawsuits by Maps Challenged." Venn diagram contains three circles labelled State Senate (42 total), State House (51 total) and Congressional (46 total). The overlapping areas show 8 lawsuits that challenged State House, State Senate and Congressional, 4 State House and Congressional, 2 State Senate and Congressional, and 30 State House and State Senate.]

Another major change that took place since the last redistricting cycle in 2010: Shelby County v. Holder, the 2013 U.S. Supreme Court ruling that invalidated the formula used to determine which states qualified for preclearance under Section 5 of the Voting Rights Act of 1965. Prior to Shelby County, states and counties with a history of racial discrimination were subjected to a preclearance process where any new redistricting plan had to be approved by either a federal court or the U.S. Department of Justice before taking effect.

[Stacked bar graph titled "Former VRA Preclearance States With Race-Related Litigation in 2020 Redistricting Cycle." The lower section of the stacked bar, in bright pink, represents "Maps Challenged for Racial Reasons." The section is labelled 10 and there is a bubble attached that lists AL, AK, FL, GA, LA, MI, MS, NC, SC, TX. The top section of the stacked bar, in bright blue, represents "Maps Not Challenged." This section is labelled 5 and there is a bubble attached that lists AZ, CA, NY, SD, VA.]

As a result, this redistricting cycle was the first time in decades that no state was required to get federal approval before enacting new maps. The impact is striking: Of the 15 states that previously required federal approval to implement new maps, 10 of these states — Alabama, Alaska, Florida, Louisiana, Georgia, Michigan, Mississippi, North Carolina, South Carolina and Texas — all saw lawsuits that challenged maps on the kind of racial claims that Section 5 preclearance was intended to safeguard against.

In fact, of the 45 lawsuits that challenged maps on racial grounds, over two-thirds (31) were in states that used to be subject to preclearance. While not all of these lawsuits did or will successfully find a racial violation and not all of these lawsuits would have been prevented by preclearance, the sheer volume of cases from previously precleared states indicates the ramifications of the 2013 decision in Shelby County.

All evidence suggests that many of these states haven’t changed their behaviors when it comes to redistricting and they continue to draw electoral districts in a discriminatory manner.

Read the full report here. Find Marc’s reaction to the data here.
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South Carolina’s Racial Gerrymander Brought to SCOTUS

Our redistricting report illustrates that the redistricting process is far from over. For example, there are two high-profile redistricting cases, Merrill v. Milligan and Moore v. Harper, on the U.S. Supreme Court’s docket, both of which will receive decisions by the summer. But there are also four other congressional redistricting cases (from Kansas, Mississippi, Ohio and South Carolina) that currently have pending requests before the Supreme Court.

Most recently, South Carolina Republican lawmakers brought their case before SCOTUS. On Jan. 6, 2023, a federal three-judge panel held that South Carolina’s 1st Congressional District was a racial gerrymander and struck down the map. [link removed]

The court found that creating South Carolina’s 1st Congressional District would have been “effectively impossible without the gerrymandering of the African American population of Charleston County” and the “movement of over 30,000 African Americans in a single county.” The court ordered lawmakers to draw a new congressional map by March 31, 2023.

Yet, instead of redrawing a fair map as ordered, South Carolina legislators appealed the decision to the Supreme Court, also asking the Court to pause the order to redraw districts while their appeal is heard.

Unlike the vast majority of cases that wind up before the Supreme Court, in this instance, it’s not a question of if the Court will respond to the Republican lawmakers’ appeal of the congressional map, but when. Federal law requires certain redistricting claims to go before a three-judge panel instead of a single district court judge. Then, any decision from the panel is appealable directly to the Supreme Court — and the Supreme Court has to accept the appeal and issue a ruling. However, the court does not have to hold oral argument. [link removed]

Voter Intimidation Group Heads to Court in Georgia, Reveals Ties to Arizona Drop Box Vigilantes

On Wednesday, a federal court considered a lawsuit brought by Stacey Abrams’ Fair Fight against a right-wing “election integrity” group, True the Vote. The case alleges that True the Vote engaged in voter intimidation in violation of Section 11(b) of the Voting Rights Act. In December 2022, the U.S. Department of Justice joined the lawsuit and submitted a brief in the case refuting True the Vote’s argument that Section 11(b) is unconstitutional. [link removed]

Here’s what you need to know about True the Vote’s efforts:

In the time between the 2020 general election and Georgia’s 2021 Senate runoffs, Texas-based True the Vote challenged the eligibility of over 364,000 Georgia voters. This was the largest mass challenge effort in Georgia history.

Voter challenges occur when an individual questions the voter eligibility of another individual, which can result in canceled voter registrations or rejected ballots. Though voter challenges have a (recent) history of targeting voters of color, it’s easier than you’d expect to challenge another person’s eligibility.

True the Vote challenged individuals for being unlawfully registered if they had filed a request to forward their mail to a different address in the U.S. Postal Service’s National Change of Address database. (By using this database alone, it’s impossible to know if someone has moved from Georgia permanently or if they’re still an eligible voter who asked their mail to be forwarded for a myriad of other reasons.)

In addition to its voter challenge efforts, True the Vote recruited “citizen watchdogs” to monitor voters, encouraged the “watchdogs” to report any suspected instances of illegal voting to their 24/7 “voter integrity” hotline and created a fund to incentive finding evidence of voter fraud.

Voters testified how they felt intimidated by True the Vote, especially when their names and home addresses were published online after their voter eligibility was challenged. One voter said that they "wonder if it is even worth trying to vote again."

The voter intimidation network is strong: This week, it was revealed that True the Vote has ties to the group Clean Elections USA, which you may remember for its armed, vigilante drop box monitoring in Arizona. A federal judge issued a temporary restraining order limiting its efforts during the midterm election cycle. [link removed]

In an email to supporters titled “Melody, Maricopa, and You,” Catherine Engelbrecht, the leader of True the Vote who was jailed a few months ago for contempt of court, wrote: “‘We’ means Melody [the leader of Clean Elections USA] and True the Vote, as we have backed Melody’s fight since it first began. Our team is fully engaged in this case.”

North Carolina Supreme Court To Decide Who Can and Cannot Vote

On Thursday, the North Carolina Supreme Court heard oral argument in a case, Community Success Initiative v. Moore, that has direct implications on who can and cannot vote in the Tar Heel State. North Carolina currently disenfranchises individuals on felony probation, parole or post-release supervision, barring them from voting until they complete their full sentences. [link removed]

The legacy of the racist 1877 policy reverberates in North Carolina today. In the post-Reconstruction South, felony disenfranchisement laws were adopted shortly before poll taxes, literacy tests and grandfather clauses, all tools designed to prevent Black voters from accessing the ballot. “The idea was to accomplish indirectly what the Fifteenth Amendment prohibited North Carolina from doing directly,” the trial court wrote about the provision’s history in a decision in this case. “North Carolina’s decision in 1877 to disenfranchise people with felony convictions even after they are released from incarceration and are living in the community has remained unchanged to this day.”

In the age of mass incarceration, felony disenfranchisement remains a racial justice issue nationwide. In North Carolina, the trial court confirmed the jarring statistics: Although Black people comprise 21% of North Carolina’s voting-age population, they represent over 42% of those stripped of the right to vote under current statute. For Black men specifically, they constitute only 9.2% of the voting age population, but 36.6% of those disenfranchised.

Additionally, at the time the lawsuit was filed, the only way a North Carolinian could be released from probation was to pay various legal and court fees, adding a financial barrier to re-enfranchisement. This fees and fines requirement, also seen in Florida, is often thought of as a modern-day poll tax.

“When people work, pay taxes, go to church and send their children to public schools in the same community where they cannot vote, they are left with no recourse to hold their elected officials accountable in ensuring the basic needs of their communities are met,” explained Daryl Atkinson and Caitlin Swain, co-directors of Forward Justice, a nonpartisan law center that brought this lawsuit. “This lack of civic voice breeds cycles of poverty, overcriminalization and voicelessness, all while entrenching unaccountable power that doesn’t reflect the will of the people.” Read directly from Atkinson and Swain here. [link removed]

Last March, a trial court held in a 2-1 decision that the law violates the North Carolina Constitution because it discriminates against Black voters and denies people the fundamental right to vote.

Now, the state’s highest court with its new 5-2 Republican majority will decide the appeal of that decision — the outcome of which will determine the voting rights of nearly 60,000 North Carolinians. Learn more about this case’s winding, three-year journey through North Carolina state courts here. [link removed]

Find our live coverage of the oral argument here. Read a courtroom summary here.
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Clear as Day: Idaho Lawmakers Target Student Voters

Idaho Republicans can’t conceal their intention to suppress student voters. On Monday, several GOP members on the Idaho House State Affairs Committee introduced a bill to remove student ID cards from the list of acceptable identification to vote. Idaho law requires photo identification at the polls before voting in person, but the list of accepted IDs presently includes student identification cards with a photo issued by a high school or an accredited institution of higher education. [link removed]

Notably, a license to carry concealed weapons remains an acceptable form of ID. Additionally, the proposed bill would remove the option to sign a personal identification affidavit swearing one’s identity for voters who lack an acceptable ID.

“My constituents are concerned that students, maybe from a state like Washington or Oregon where they vote by mail, may come over here with their student ID and vote in person and then fill out their ballot in another state, thereby voting twice,” said state Rep. Tina Lambert (R), the bill’s sponsor. Neither Lambert nor other supporters cited any instance of double voting or voter fraud by students, which is already a violation of federal election law.

This is not the first time Republican lawmakers have singled out student voters. Laws passed in recent years in Missouri and Montana have similarly excluded student IDs from proof of identification laws. This session, New Hampshire legislators have introduced a bill that would create an in-state tuition requirement for college students to be eligible for voter registration. To be clear: Students who move for school can vote at their school address or permanent home address. The choice is up to the students. [link removed]

More News

Yesterday, the Florida Department of State recommended that lawmakers do NOT require voters to submit ID numbers on mail-in ballots, following pushback from local election officials and the state's own study into the proposal. Earlier in January, a bipartisan group of 14 county election supervisors in Florida submitted a report objecting to a state proposal to enact identification requirements for mail-in voting. The supervisors describe the proposal as “unnecessary and lacking adequate feasibility for implementation” and recommend the state “cease any further implementation” of ID requirements for mail-in voting. [link removed]

The Virginia General Assembly is one of the few divided state legislatures in the country and it exemplifies the competing priorities of Democrats and Republicans: Last week, the Republican-controlled Virginia House of Delegates passed two bills that would ban drop boxes in the state and cut the early in-person voting period by 31 days. Both bills are unlikely to pass the Democratic-controlled state Senate. [link removed]

Last Friday, New Mexico Democrats introduced the New Mexico Voting Rights Act, an omnibus pro-voting bill that failed to advance last year. The bill would establish automatic voter registration, restore the right to vote for individuals on probation or parole after a felony conviction, create a permanent absentee voter list, allow the state to offer more drop boxes, add voting protections for Native Americans and designate Election Day as a school holiday. In light of this steady undermining of the federal Voting Rights Act by the U.S. Supreme Court over the past decade, several states have attempted to pass state-level voting rights acts. [link removed]

Yesterday, the GOP-controlled Missouri House passed a bill to raise the threshold for constitutional amendments from 50% to 60%, making it harder for Missouri voters to enact changes. Recent voter-approved amendments in Missouri have legalized marijuana, expanded Medicaid and more. [link removed]

On Monday, U.S. Rep. Earl Blumenauer (D-Ore.) introduced a bill that would expand the number of members of the U.S. House of Representatives to 585 following the 2030 census. The House used to expand as the population grew, but was capped at its current size of 435 members in 1929 when the country’s population was only 122 million people. Since then, the United States has grown to 328 million people. Blumenauer argued that this imbalance “makes it more difficult for members to be responsive to the will of the people.” Increasing the number of representatives “will help our government better reflect our districts and constituent needs.” [link removed]

On Wednesday, the Kansas Supreme Court held oral argument in a lawsuit challenging a voter suppression law. At issue is the law’s false representation provisions, which the plaintiffs allege could criminalize the work of civic and voter engagement groups. A lower court dismissed the plaintiffs’ claims against these provisions and the plaintiffs appealed that decision to the state Supreme Court. Read our courtroom summary here. [link removed]

The Arizona Republican Party just won’t give up. After lower courts dismissed the GOP’s lawsuit seeking to strike down the state’s 1991 no-excuse mail-in voting law, the party appealed to the Arizona Supreme Court. [link removed]

OPINION: Congress’ Present to Election Officials Last Year? A Lump of Coal

By Sam Oliker-Friedland, the executive director of the Institute for Responsive Government. Read more ➡️ [link removed]

What We’re Doing

February marks the start of Black History Month at a time when reactionary politicians want to erase that history. Listen to the 1A’s latest segment featuring the president of the NAACP Legal Defense Fund, president of the Florida Education Association and others for the full story of Florida Gov. Ron DeSantis’ (R) attack on school curriculum. [link removed]

This year, the theme for Black History Month is “Black Resistance;” you can learn more about the Smithsonian’s initiatives here. [link removed]

Wisconsin voters! The nonpartisan primary for the open seat on the Wisconsin Supreme Court takes place on Feb. 21. (The top two vote getters will advance to the nonpartisan general election April 4, so this February primary is hugely important.) The deadline to register to vote by mail or online has passed, but you can register in person through Feb. 17. Take part in get-out-the-vote efforts with WisDems here. [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 “Intimidating Voters Is Not Peachy” wherever you get your podcasts. [link removed]


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