On The Docket 02/10/2023

“Two years ago, our democracy faced its greatest threat since the Civil War. Today, though bruised, our democracy remains unbowed and unbroken,” President Joe Biden noted in a well-received State of the Union address on Tuesday night.

If we are facing our “greatest threat since the Civil War,” we all must do more. Thank you for paying attention and reading our newsletter each week — you can’t fight for the future of our democracy unless you know what’s happening.

Forward our weekly newsletter to a friend, family member or colleague to help everyone stay engaged. If you received this email from someone else, you can subscribe here. [link removed]


“Display of Raw Partisanship:” The North Carolina Supreme Court’s Unprecedented Move

In December 2022, the North Carolina Supreme Court issued decisions in two important cases; both times, the 4-3 Democratic majority landed on the pro-democracy side. In Harper v. Hall — a precursor to the case, Moore v. Harper, currently before the U.S. Supreme Court — the state court ruled on the constitutionality of North Carolina’s redistricting maps. In Holmes v. Moore, the court found that a 2017 photo ID law violated the state constitution.

Yet, during the 2022 midterm elections, North Carolina’s court composition flipped: Republicans secured a new 5-2 majority. On Jan. 9, 2023, the new Republican justices were sworn into office and just 11 days later, North Carolina Republican legislators filed motions for the court to rehear the gerrymandering and photo ID cases. [link removed]

Rehearing is rare. It happens on the few occasions when a court has overlooked a crucial aspect of fact or law. To be clear: There has been no change in the facts or law in the month or so between the decisions and the GOP’s requests for rehearing. Consequently, any respected court would not do anything but dismiss the motion for rehearing with a chuckle.

That’s not what happened in the Tar Heel State. Last Friday evening, the five Republican members of the court agreed to rehear both cases in two 5-2 orders. Now, the future of North Carolina’s maps and its photo ID law are subject to the whims of the newly elected Republican-controlled court. [link removed]

In one dissent, Justice Anita Earls, one of the two remaining Democratic justices on the court, wrote: “Not only does today’s display of raw partisanship call into question the impartiality of the courts, but it erodes the notion that the judicial branch has the institutional capacity to be a principled check on legislation that violates constitutional and human rights.”

To further complicate matters, the decision to rehear the redistricting case could have major repercussions for the appeal that is currently pending before the U.S. Supreme Court in Moore v. Harper, the major case opening up review of the independent state legislature theory. [link removed]

To better understand this debacle, take a look at:

The December 2022 decision weighing the constitutionality of revised maps, [link removed]

The December 2022 decision striking down the strict photo ID law for discriminating against Black voters, [link removed]

Marc’s analysis on the North Carolina Legislature’s gambit, [link removed]

Our latest on how experts are reacting to the Tar Heel State’s flip-flop and [link removed]

The Defending Democracy podcast (recorded before rehearing was granted) where Marc and Paige break down how unusual it is for a court to rehear a case and what the GOP lawmakers’ requests mean for democracy. [link removed]

White Legislators Usurp Power From Blackest City in America

This week, a white supermajority of the Mississippi House voted to create a white-appointed court system and police force for portions of Jackson, Mississippi, the Blackest city in America. According to Mississippi Today, the bill would create a system where the white chief justice of the Mississippi Supreme Court would appoint the judges to oversee a new district in the city while the white state attorney general would appoint prosecutors, court clerks and public defenders. Additionally, the white public safety commissioner would oversee an expanded police force. [link removed]

These appointments would replace the traditional way judges and prosecutors gain office in Mississippi by winning the votes of local residents in elections. Jackson’s population is 80% Black. This latest move by the Republican supermajority in the Legislature exemplifies the numerous ways the state’s white majority has historically, and continually, maintained outsized political power — through electoral rules, runoff election systems, redistricting, felony disenfranchisement and more.

Every Year Is an Election Year: Crucial 2023 Races Kick Off

On Tuesday, Democratic candidates in Pennsylvania won three special elections for state House in Allegheny County, home to Pittsburgh. With these victories, Democrats now have a razor thin, one-vote majority in the Pennsylvania state House for the first time in 12 years. [link removed]

Tuesday’s special elections cap several months of confusion over who controlled the lower chamber of the Pennsylvania Legislature and attempts by Republicans to delay the elections. While Republicans still control the Pennsylvania state Senate, Democrats’ victory in the state House means further attempts by Republicans to restrict access to abortion or make voting more difficult are likely doomed. Senate Republicans passed an amendment to require proof of ID to vote in January, but this proposal is now unlikely to succeed in the state House.

Meanwhile, Tuesday also marked the first day of early voting for the Wisconsin Supreme Court primary. Primary elections for the Wisconsin Supreme Court are especially important because the two candidates with the highest number of votes will proceed to the general election. This means that the balance of the court could effectively be decided in the primaries.

There is currently a 4-3 conservative majority on the Wisconsin Supreme Court. One of the conservative justices is retiring at the end of this term, so future control of the court will be decided in this election. Last summer, the court released a shocking decision to ban drop boxes in the state. But, this election will determine much more than just election laws — it will impact gerrymandering and abortion access, too.

U.S. House Overturns Two Washington, D.C. Bills — How?

Yesterday, the U.S. House of Representatives voted to overturn two bills passed by the Washington, D.C. city council. You read that correctly: Congress has the power to review all legislation passed by a council elected by D.C. residents who have no voting representation in Congress. [link removed]

The first council bill at hand allows noncitizen residents to vote in local elections. (Washington, D.C.’s noncitizen voting bill goes further than proposals in other municipalities, sparking particularly strong backlash.) The second bill revises the city’s criminal code, which has not been updated since the early 1900s. It is unlikely that the Democratic-controlled Senate will support the resolutions. [link removed]

But why can the U.S. House do this? In 1973, Congress enacted the District of Columbia Home Rule Act, which allowed the region’s residents to elect a mayor and city council for the first time. Previously, the district tried out a range of different schemes, while residents continually pushed for self-governance. The Home Rule Act maintained some limitations on the types of laws the council could enact and it granted Congress a 30-day review period for all legislation.

“Local D.C. laws are matters for the duly-elected D.C. Council and mayor, not members of Congress representing far-away districts like Rep. Comer’s in Kentucky and Sen. Cotton’s state of Arkansas,” Rep. Eleanor Holmes Norton (D-D.C.) said in response to the latest proposals. Norton is a non-voting member of the U.S. House representing the district, though residents have no equivalent in the U.S. Senate.

Washington, D.C. residents only gained the right to vote for president and vice president in 1963 after the ratification of the 23rd Amendment — even though the president appoints the city’s local judges from a pool of nominees selected by a commission. The office of the U.S. attorney for the District of Columbia, another appointed position subject to Senate approval, oversees a large portion of the day-to-day prosecutions in the district. This stands in stark contrast to other cities, where most local prosecutors are elected by the people they impact.

“The disenfranchisement of Washingtonians is one of the most glaring civil rights and voting rights issues of our time,” Washington, D.C. Mayor Muriel Bowser (D) wrote for Democracy Docket in April 2021, also noting the irony of taxation without representation. “Of course, like many civil and voting rights issues, D.C. statehood is also a racial justice issue.” [link removed]

With upwards of 670,000 residents, Washington, D.C. has a larger population than both Vermont and Wyoming. If admitted as a state, the district would have the highest proportion of Black residents, making the region’s continued disenfranchisement even more insidious.

What’s the Deal With Photo ID Laws?

Ohio was the first state to enact a photo ID law this year, but it might not be the last. Photo ID bills have been introduced in Nebraska and West Virginia so far. Proposals in Arizona and Idaho would make existing ID requirements more restrictive. Photo ID laws are a relatively recent phenomenon, only appearing within the last 20 years or so, yet they have become a Republican legislative priority.

But what’s really the problem with laws that require ID to vote? The catch is that not all ID laws are made equal. Some states allow voters to prove their identity using a non-photo ID, like a bank statement, with their name and address or other document. Others allow voters to sign an affidavit of identity and vote with a regular ballot if they lack an acceptable ID.

Yet, once Ohio’s law takes effect later this year, nine states will have a strict photo ID law: Arkansas, Georgia, Indiana, Kansas, Mississippi, Missouri, Ohio, Tennessee and Wisconsin. Ten other states have a non-strict photo ID law that provides some method for voters without acceptable ID to still vote and have their ballots counted. Not all voters have access to photo IDs and they can be disenfranchised by these laws.

“The stated purpose of such laws is to prevent fraud by ensuring that voters are who they say they are. But rather than take the least restrictive path to achieve this goal, these laws impose additional unnecessary burdens,” writes Mac Brower, Democracy Docket staff writer. “If the goal is just to prove identity, why do voters have to present a specific government ID? Why are out-of-state IDs unacceptable if the goal is to just prove someone is who they say they are?…[W]hy are passports, which don’t contain any information about where a voter lives, accepted? Why are concealed carry permits allowed, but student IDs, even those from state institutions, rejected?”

Read more about what makes an ID to vote measure too restrictive here. [link removed]

Democratic States Need to Prioritize Voting Rights

This week, the New Mexico Voting Rights Act passed out of committee, the first step in the legislative process before the whole House chamber votes. The omnibus pro-voting 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 and more.

New Mexico is an example of a Democratic trifecta state — where Democrats control the governorship and both chambers of the state legislature — that is using its political power to improve voting rights. After an impressive showing in the 2022 midterms, Democrats have this full control in 17 states.

Maryland, Massachusetts, Michigan and Minnesota are the four newest blue trifectas after the midterms. Early signs indicate that Minnesota’s Democratic-Farmer-Labor Party is particularly energized and ready to use its new control to improve voting access in the North Star State. [link removed]

In Marc’s latest, he implores Democratic leaders to expand voting rights and outlines the five new election laws every Democratic state should adopt this legislative session. Read here. [link removed]

More News

When the U.S. Department of Justice (DOJ) does something, we pay attention. Last Friday, the DOJ filed a statement of interest (a document outlining the United States’ position) in a federal lawsuit in Pennsylvania. The non-partisan organizations behind this lawsuit argue that Pennsylvania’s policy of rejecting mail-in ballots based upon a missing or incorrect date on the ballot envelope violates the Materiality Provision of the Civil Rights Act. The DOJ sides with the plaintiffs: “Errors or omissions regarding a date do not pertain to a voter’s qualifications” and therefore disqualifying voters for such errors violates the Materiality Provision. Meanwhile, the Pennsylvania Supreme Court issued an opinion explaining its prior ruling that blocked the mail-in ballots at issue from being counted during the 2022 midterm elections, while leaving the question open for federal courts to decide. [link removed]
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The South Dakota House of Representatives passed a bill that would ban drop boxes in the state. It now heads to the state Senate for approval, where it is also likely to pass due to Republicans’ overwhelming majority. The same bill would make other changes, including the prohibition of sending mail-in ballot applications with any pre-filled information and increasing penalties for mistakes related to mail-in voting. The GOP-controlled Virginia House also passed a bill banning drop boxes, though it is unlikely to advance through the Democratic-controlled state Senate. This legislative session, proposals to ban or severely restrict drop boxes have been introduced in Arizona, Kansas and North Dakota. [link removed]

Let’s rewind to mid-November — after Democrats secured a 50-member caucus in the U.S. Senate but before the Georgia runoff took place — when some commentators implied that the Georgia race didn’t matter anymore. This week, we saw what a difference it makes to have 51 Democrats as opposed to 50 in the Senate. With a 50-50 Senate, committees are evenly split between both parties; this meant that some of Biden’s most talented judicial nominees were unable to advance out of the Judiciary Committee to the Senate floor during the last Congress. On Thursday, we saw 24 nominees — some of whom were stuck in committee for over a year since their nomination — advance out of the Senate Judiciary Committee, including voting rights lawyer Dale Ho. [link removed]

It’s February 2023, yet Republican candidates who lost their races for Arizona governor, attorney general and secretary of state are still challenging the results of the November 2022 elections. Here's where those cases stand. (Hint: Secretary of state candidate Mark Finchem has revived his appeal despite a judge dismissing his lawsuit back in December as "frivolous" and "fatally flawed.") [link removed]

HOW WE WON: We Win by Seeing the Person Behind the Vote

By Kat Calvin, founder of Spread The Vote + Project ID. Read more ➡️ [link removed]

What We’re Doing

Earlier this week, a catastrophic earthquake struck Turkey and Syria. Here’s a list of reputable organizations where you can donate to help the recovery effort. [link removed]

This is what we’ve been reading:

The federal judiciary is hugely important, but it’s not opaque enough for non-lawyers. One thing we do know is that Biden has done a great job so far with nominating qualified individuals to the bench. The 19th News explores data on how Biden’s appointees have differed in race and gender from past appointees. We’re also reading law professor Steve Vladeck’s op-ed for the New York Times on “judge-shopping,” a procedural loophole exploited by Texas Attorney General Ken Paxton (R) to advance his far-right agenda. [link removed]
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The Guardian’s Kira Lerner wrote for Type Investigations about a 66-year-old grandmother, former farmworker and involved community member who was jailed for collecting and returning four completed mail-in ballots on behalf of others. She and her neighbor — both from a 95% Latino population city without home mail delivery — were the first two individuals charged under a 2016 Arizona law that criminalized community ballot collection. [link removed]

For the next few weeks, we will continually remind Wisconsin voters about the importance of the primary (Feb. 21) and general (April 4) elections for a seat on the Wisconsin Supreme Court. Outside of the Badger State? Find ways to support the 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 “What’s Next on SCOTUS’ Docket?” wherever you get your podcasts. [link removed]


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