On The Docket 02/17/2023

Republicans are red, Democrats are blue
Ban partisan gerrymandering and restore the VRA, too.

We hope you enjoyed our Valentine’s Day poem. If Congress really wanted to show our country some love, it would pass nationwide legislation addressing two of the most pressing issues of our time. That looks unlikely with the current partisan composition and Republicans’ consistent resistance to voting rights.

Unfortunately, the Voting Rights Act (VRA) and its impact on fair representation in redistricting is also at risk before the U.S. Supreme Court. In today’s newsletter, we preview the under-the-radar cases pending action from SCOTUS: Not Merrill, not Moore, but a handful of other democracy cases that could appear on its docket in the future.

A case might end once the Court hands down a decision, but the implications stretch much longer. For example, this week we explored the real-world consequences of the 2021 decision in Brnovich v. Democratic National Committee.

Good Work, President Biden

As we celebrate Presidents’ Day 2023, let’s assess how President Joe Biden has impacted pro-democracy priorities. Most fundamentally, Biden’s return to normalcy has been a welcome change and in a stark contrast to his predecessor. Biden believes in facts, trusts election results and respects the democratic process.

But he’s done even more: This week, the U.S. Senate confirmed Biden’s 100th judicial nominee. In the past two years, Senate Democrats have confirmed 69 district court judges, 30 appellate court judges and one U.S. Supreme Court justice, building a more racially and professionally diverse federal judiciary. [link removed]

According to Senate Democrats, 68% of the federal bench nominees confirmed by the Senate have been people of color and 76% have been women. In terms of professional experience, NBC News reports that “Biden has picked unusually high numbers of public defenders, civil rights lawyers and labor lawyers compared to his predecessors from both parties.”

Conservatives have packed the courts for years. While 86 vacancies for federal district and appellate courts remain, Biden has made important progress in filling the bench with competent judges who believe in democratic norms and the rule of law.

Biden’s judicial project is made easier by Democrats’ new 51-member majority since the 2022 midterms. Last session, committee deadlock in the 50-50 Senate slowed down the process. In January 2022, we also saw Republican Senate opposition derail Biden’s support for voting rights legislation.

At a time when it was most needed, there was an opening for momentous change: passing the Freedom to Vote Act and John Lewis Voting Rights Advancement Act. This legislation would have combated voter suppression efforts across the country, created a federal floor of election rules and more.

“I’ve been having these quiet conversations with the members of Congress for the last two months,” Biden said in a voting rights speech in Georgia in early January 2022, explaining his position on the issue. “I’m tired of being quiet!”

Even as a self-proclaimed institutionalist who spent decades in the Senate, Biden explicitly endorsed changing the filibuster rules to ensure legislation was passed: “To protect our democracy, I support changing the Senate rules, whichever way they need to be changed, to prevent a minority of senators from blocking action on voting rights.”

Despite the momentum Biden helped build, the legislation could not overcome Senate obstruction — all 50 Republicans opposed the voting rights bills. They were joined by two Democrats who placed their loyalty to arcane Senate rules above our democracy, extinguishing any hope for federal legislation at this time. [link removed]

Short of legislative success, Biden has also used executive power to expand voter access and consider judicial reforms.

In March 2021, Biden issued Executive Order 14019, which directs federal government agencies to increase access to and information about voter registration and elections. Among other measures, the order calls on certain agencies to maximize participation under Section 7 of the National Voter Registration Act and to design recommendations to maximize participation for voters with disabilities, active duty military and overseas citizens, eligible voters incarcerated in federal custody and Native American voters. [link removed]

One month later, in April 2021, Biden issued an executive order creating a Presidential Commission on the Supreme Court of the United States, a bipartisan group of legal experts who were tasked with investigating the contemporary debates around court reform. After six public meetings, numerous expert testimonies and more than 7,000 public comments, the commission published a 288-page report (we break down its findings here).
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Without a doubt, the biggest legislative achievements throughout history were the results of years of activism and movement building, rather than the accomplishment of a single leader in the White House. However, if the president throws their weight behind a movement — or shirks responsibility — it makes a difference. Biden has proved he is a pro-democracy president. Let’s keep up the energy for the rest of this term!

The Seven Overlooked Cases Awaiting SCOTUS Action

We have extensively covered the two voting-related cases on the U.S. Supreme Court’s docket this term: Merrill v. Milligan and Moore v. Harper. Both cases had oral arguments last fall and decisions are expected later this spring. But, did you know that there are actually seven other voting and redistricting cases awaiting some sort of action before the Supreme Court?

Today, the nine Supreme Court justices have a private meeting where they will decide whether to grant cert (meaning, accepting an appeal and hearing oral argument) for various cases that have these petition requests before the Court. There are four democracy-related cases distributed in the justices’ conference today:

Mississippi Congressional Redistricting (Buck v. Reeves): Seven Mississippi voters argue that a three-judge panel erred in allowing a racially gerrymandered congressional map drawn with 2020 census data to stay in effect. [link removed]

Mississippi Felony Disenfranchisement (Harness v. Watson): Last summer, the 5th U.S. Circuit Court of Appeals upheld Mississippi’s felony disenfranchisement law, originally designed during an 1890 constitutional convention. The decision that SCOTUS is asked to review recognizes that the 1890 provision has an undeniably racist origin, but concludes that two amendments cleansed the provision of any “discriminatory taint.” [link removed]

Maryland Mail-in Ballot Counting (Cox v. Maryland State Board of Elections): A defeated far-right candidate wields the independent state legislature (ISL) theory to argue that the Maryland Supreme Court erred last fall when it permitted election officials to open and canvass mail-in ballots before state statute authorized. [link removed]

Texas Signature Matching (Richardson v. Flores): This 2019 lawsuit challenges the Lone Star State’s policy of matching signatures before accepting mail-in ballots. The petition before the Supreme Court does not deal with the merits of signature matching, but whether the Texas secretary of state is insulated from being sued in this lawsuit. [link removed]

Orders to grant or deny cert are typically released on the following Monday morning (in this instance, next Tuesday because of the long holiday weekend). This coming week, we may see an update in a case that was distributed for conference last month:

Ohio Congressional Redistricting (Neiman v. LaRose): In October 2022, Ohio Republican lawmakers — famous for dodging court orders and repeatedly enacting gerrymandered maps — filed a petition asking the Supreme Court to review the Ohio Supreme Court’s decision to strike down the state’s congressional map for partisan gerrymandering. The Ohio troublemakers invoke the ISL theory that’s currently before the U.S. Supreme Court in Moore. [link removed]

Here are the final two voting cases before the Supreme Court:

Kansas Congressional Redistricting (Rivera v. Schwab): Pro-voting groups ask for the Supreme Court to review intentional racial discrimination findings made by the Kansas Supreme Court, which allegedly made an error in applying case law. This case has not yet been fully briefed nor scheduled for conference. [link removed]

South Carolina Redistricting (South Carolina NAACP v. Alexander): South Carolina Republicans want the U.S. Supreme Court to overturn a ruling that found the Republicans racially gerrymandered the congressional map drawn with 2020 census data. In contrast to most cases, the Supreme Court is required to issue a ruling in this case, but can do so without oral argument. [link removed]

Get a full rundown on these cases in last week’s episode of Defending Democracy. [link removed]

How the Supreme Court Turned a Community Leader into a Criminal

In 2016, Arizona passed a law that targeted Latino voters. The new law made it a felony to collect and return another person’s completed mail-in ballot unless they were their relative, household member or caregiver.

In 2020, after years of litigation, the 9th U.S. Circuit Court of Appeals found that the law violated Section 2 of the VRA. The court held that “racial discrimination was a motivating factor” in the law’s enactment.

In 2021, a divided U.S. Supreme Court reversed the 9th Circuit’s ruling and upheld Arizona’s criminal ban on ballot collection in Brnovich v. Democratic National Committee. Justice Samuel Alito, writing for the majority, reasoned that “[l]imiting the classes of persons who may handle early ballots to those less likely to have ulterior motives deters potential fraud and improves voter confidence.” [link removed]

In 2022, Guillermina Fuentes, a 66-year-old grandmother, school board member and former mayor of San Luis, Arizona, became the first person convicted under this law. Her crime was helping four eligible voters return their lawfully cast ballots to election officials to be counted in San Luis, a 98% Latino town with no home mail delivery.

Contrary to Alito’s suggestion, the prosecution of Fuentes did nothing to prevent fraud or promote voter confidence. In fact, it has had the opposite effect. Marc chronicles the history of Arizona’s ballot collection law and the real-world consequences of the Supreme Court’s ruling in his latest: “How the Supreme Court Turned a Community Leader into a Criminal.” [link removed]

Montana Legislative Maps End Prison Gerrymandering

Last weekend, the Montana Districting and Apportionment Commission approved new state House and Senate maps, the final of all 50 states to enact new legislative maps following the release of 2020 census data.

Notably, the new maps count incarcerated people at their homes instead of in prison cells, effectively ending prison gerrymandering in the state. This was accomplished without legislation, though a proposal to do the same through statute is moving through the Legislature after passing the Montana Senate earlier this month. [link removed]

What is prison gerrymandering? The U.S. Census Bureau typically counts incarcerated individuals as residents in the location where they are incarcerated on Census Day instead of their home community. This is despite the fact that, in comparison to individuals who voluntarily choose where they live, most incarcerated individuals have no ties to the community in which they are incarcerated and many have no intention to remain in the area upon their release.

Since prisons are typically located in rural areas, prison gerrymandering often shifts political power to rural, racially homogenous districts. Additionally, this practice shifts political power away from the areas where incarcerated people lived previously, which are often already under-resourced. [link removed]

Legal Updates: Big Minnesota Ruling and Two Dismissals

On Wednesday, the Minnesota Supreme Court, in a 6-1 decision, upheld a state law that bans people with felony convictions from voting until the completion of their entire sentence, including parole or probation, which can stretch years after being released from incarceration. This decision stems from a lawsuit arguing that the law disenfranchises over 50,000 Minnesota citizens in violation of the Minnesota Constitution. In her dissent, Justice Natalie Hudson, the court’s only Black justice, wrote: “Upholding the constitutionality of [the law], as the court does here, rationalizes and sanctions the racial discrimination inexorably woven into the statute.” [link removed]

Here’s the upside: The Minnesota Legislature is advancing a bill that would make up for this bad ruling, restoring voting rights immediately after incarceration for a felony conviction.

Last week, on Feb. 6, a federal judge dismissed right-wing lawsuits challenging Oregon’s use of electronic voting machines in the 2020 election. Among many conspiratorial claims, the cases cited a “trained Cryptolinguist” to argue that a “trapdoor” mechanism altered votes. Similar far-flung lawsuits have been filed to prevent the use of certain election equipment in Alabama, Arizona, Arkansas and New Hampshire, as well as a handful of counties. [link removed]

On Monday, an Arizona judge dismissed a lawsuit brought by the Republican National Committee and Arizona Republican Party against the Maricopa County recorder and other election officials. The lawsuit alleged that the county, home to Phoenix, violated Arizona law by imposing “onerous” regulations on election workers and making it harder for Republicans to participate in election administration. [link removed]

More News

Yesterday, a Georgia special grand jury investigating efforts by former President Donald Trump and his allies to overturn the 2020 election released some of its findings. (In Georgia, a special grand jury is composed of jurors who assemble for an unlimited amount of time to investigate potential violations of state law. While special grand juries do not issue indictments, they provide the district attorney with recommended actions.) We learned from the three released sections that a majority of the special grand jury believed that one or more of the 75 witnesses who testified before it may have committed perjury by lying under oath and that the jury concluded “by a unanimous vote that no widespread fraud took place in the Georgia 2020 presidential election that could result in overturning that election.” [link removed]

On Wednesday, the New York Senate rejected Gov. Kathy Hochul’s (D) nominee for chief judge of the New York Court of Appeals (the state’s highest court), with progressives citing concerns about the nominee’s record on reproductive rights, labor and civil rights issues. Two integral cases are currently before the state’s intermediate appellate court and could potentially be before the state’s highest court in the future: one challenging the actions of New York’s Independent Redistricting Commission and another challenging New York City’s noncitizen voting law. A case against New York’s assembly map was also appealed to the state’s highest court this week. Following the failed vote, Hochul announced that she will “work toward making a new nomination.” [link removed]

Texas Republicans introduced a bill that would ban counties from opening polling locations on college and university campuses. This new bill is just the latest in a long line of attacks on young Americans’ right to vote in Texas. [link removed]

Over the past few weeks, we’ve seen how Republicans in the North Carolina Legislature succeeded in getting the state’s highest court to play along with their partisan power grab. But they are also staying busy in the statehouse chambers: Lawmakers introduced a bill that would require all mail-in ballots to arrive by 7:30 p.m. on Election Day. Currently, ballots that are postmarked by Election Day and arrive by 5 p.m. three days after are counted. Another proposal would raise the retirement age for state judges from 72 to 76 years old. If passed, the bill would prevent the state’s next governor from replacing the state Supreme Court’s chief justice and a judge on the court of appeals, the state’s mid-level court. [link removed]

Last week, on Feb. 7, Ohio Republicans introduced a bill that would create an election integrity division within the secretary of state’s office. The new division would be responsible for investigating allegations of election fraud and voter suppression, both on its own initiative and based on complaints from the public. Be on the lookout for an article published by us next week on the growing trend of criminalizing elections, specifically through state-designated units. [link removed]

The Board of Supervisors in Cochise County, Arizona — a red, rural county with too much election drama to retell here — is planning to transfer election oversight from the elections director to the county recorder. The elections director position is currently vacant after a longtime official who pushed back against “Big Lie” efforts resigned. In contrast, County Recorder David Stevens pushed for an illegal hand count last fall, called defeated secretary of state candidate Mark Finchem (R) “one of his best friends” and is deeply embedded in far-right communities that push election conspiracies about electronic ballot tabulators. [link removed]

On Monday, the NewDEAL Forum released its “Democracy Playbook” with over 40 policy recommendations for how to best run elections. Michigan Secretary of State Jocelyn Benson (D) and Arizona Secretary of State Adrian Fontes (D) were among the co-chairs leading the initiative. The publication aligns with the National Association of Secretaries of State meeting this week in Washington, D.C. [link removed]

HOW WE WON: It’s Time for Our Parents To Take Young Voters Seriously

By Linh Nguyen, executive director of RUN AAPI. Read more ➡️ [link removed]

What We’re Doing

Wisconsinites! Have you voted yet in the state Supreme Court primary? It’s next Tuesday, Feb. 21. Democracy Docket spoke to the two liberal candidates; learn more about them here. [link removed]

Multitasking is great, but even better with a good podcast. We’re listening to Marc’s recent segment on Fast Politics with Molly Jong-Fast. [link removed]

We’re also listening to the latest Defending Democracy episode, which just dropped this morning! In this podcast episode, Marc and Paige discuss the 17 states where Democrats control the governorship and both chambers of the state legislature and how these so-called “trifectas” should use their power to pass robust voting rights legislation. [link removed]

Do you live in one of those 17 states? If so, after you listen, make sure to contact your state House and state Senate representatives to remind them how important it is to not be complacent — blue states all have policy areas where they can improve voter access and prevent future election subversion. [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 “Blue States Can Do Better” wherever you get your podcasts. [link removed]


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