On The Docket 03/03/2023

Happy March and happy birthday to us — Democracy Docket turns three this Sunday!

As we move deeper and deeper into 2023, new legislation in many states is inching closer and closer to the finishing line. We expect there to be much more legislative movement this month as the end of sessions draws near — just this week, Georgia Republicans advanced a last-minute omnibus voter suppression bill. Other states begin their sessions this month, including Florida — we’ll be sure to keep an eye on how Gov. Ron DeSantis (R) wants to restrict voting this year.

Meanwhile, a conservative legal argument that could undermine an essential tool to protect voting rights will have its day in court on Monday, March 6. We’ll break down everything you need to know.


The Conservative Legal Movement’s Latest Target

When an individual or entity is accused of violating federal laws like the Civil Rights Act or Voting Rights Act (VRA), the U.S. Department of Justice (DOJ) often files a lawsuit against them in court.

For example, the DOJ filed a lawsuit against Texas’ voter suppression law enacted in 2021. [link removed]

But many civil rights protections are privately enforceable, meaning that individual voters and organizations have the ability to bring lawsuits against violations of these protections, too.

Many of the plaintiffs in the lawsuit against Georgia’s voter suppression law are private organizations or individuals. [link removed]

This legal concept is known as a private right of action. Without it, only the DOJ can bring lawsuits, making it harder to enforce statutes. The vast majority of cases safeguarding the right to vote today come from individuals, political parties and their affiliated groups or civil rights organizations. According to Daniel Tokaji, dean of the University of Wisconsin Law School, without a private right of action, “civil and voting rights laws could become a dead letter under an administration that is unfriendly to their aims.” [link removed]

Just look at the numbers:

Under current U.S. Attorney Merrick Garland, the DOJ has filed two redistricting lawsuits under the VRA following the release of 2020 census data.

In contrast, there have been 31 VRA redistricting lawsuits brought by private plaintiffs in the same time frame.

But a growing number of conservatives are arguing that important civil rights laws don’t have a private right of action. One target is the Materiality Provision, a section of the Civil Rights Act that ensures that voters aren’t disenfranchised for making trivial mistakes. In a case in Texas brought by the voter registration nonprofit Vote.org, Texas Attorney General Ken Paxton (R) is arguing that there is no right to private action under the Materiality Provision and as a result Vote.org has no ability to bring the lawsuit in the first place. [link removed]

The U.S. Supreme Court has never ruled on this question. While the 3rd and 11th U.S. Circuit Courts of Appeal agree there is a right to private action under this provision, the 6th U.S. Circuit Court of Appeals does not.

Republicans made similar arguments as Paxton in a series of interconnected lawsuits in Pennsylvania last year on whether election officials could count mail-in ballots that are missing a date on the outside envelope. [link removed]

Alarmingly, the Materiality Provision isn’t the only civil rights law in Republican crosshairs. Some conservatives want to extend this no-private-right-of-action argument to the VRA. In February 2022, a federal judge appointed by former President Donald Trump rejected decades of precedent to rule there is no private right of action under Section 2 of the VRA. And he may have at least two supporters on the nation’s highest court. Should the Court ever adopt this judge’s theory, most voting rights litigation under Section 2 would be endangered. [link removed]

Instead of winning cases on the merits, right-wing election lawyers are trying to ensure that pro-voting organizations and voters themselves can’t bring lawsuits in the first place. It’s unclear whether a majority of the current Supreme Court justices would be receptive to such an argument — nonetheless, the conservative legal movement seems to be counting on it.

The Private Right of Action Will Appear in Court on Monday

The Vote.org case where Paxton is making his dangerous argument heads to the 5th U.S. Circuit Court of Appeals on March 6. The case involves Texas’ “wet signature” law, which requires individuals who submit their voter registration applications electronically or through fax to also provide a copy with their original signature — meaning pen on paper. Vote.org is arguing that this places an arbitrary barrier on voting.

A district court agreed, blocking the law in June 2022 for violating the First and 14th Amendments and the Civil Rights Act. Paxton and two election officials appealed the decision to the 5th Circuit, which reinstated the law while the appeal is being litigated. [link removed]

The DOJ got involved in the proceedings, first by filing an amicus brief and then by obtaining permission to participate in oral argument. The DOJ, among other arguments, is defending the private right of action against Paxton’s assertion. [link removed]

But that’s not all that will be going on in courtrooms this month!

North Carolina: On March 14 and 15, the North Carolina Supreme Court will hold oral arguments in its unprecedented rehearings of two cases: a case that struck down a photo ID law and a redistricting case that tossed out the state’s maps for being partisan gerrymanders. [link removed]

Pennsylvania: On March 10, a state trial court will hold a hearing about dismissing a lawsuit in Lycoming County brought by a right-wing group challenging the results of the November 2020 general election (that year is not a typo). [link removed]

Wisconsin: Three lawsuits attacking mail-in and absentee voting will have some movement in March.

On March 15, a lawsuit challenging mobile voting sites in Racine will head to court. Racine argues that the lawsuit should be dismissed. [link removed]

On March 21, a hearing will be held in a conservative group’s lawsuit arguing that the National Mail Voter Registration Form should not be approved for use in the Badger State. [link removed]

On March 23, a state court will hold a hearing in a lawsuit filed right before the 2022 elections that raised allegations of fraudulent ballots completed by military voters. The Wisconsin Elections Commission has asked the court to dismiss the case. [link removed]

Come On Our Midnight Train to Georgia

The Peach State made headlines in 2021 for enacting an omnibus voter suppression law. The law includes numerous onerous restrictions, such as a line-warming ban, limits on drop boxes and provisions making mass challenges of voter registrations easier. [link removed]

And this law has already had a tangible negative impact. A report in NBC News found that 92,000 voters had their registrations challenged last year. [link removed]

But it turns out that 92,000 challenges aren’t enough for Georgia Republicans. Late in the evening on Feb. 28, a new omnibus voter suppression bill advanced out of committee to head to the state Senate floor. The bill would make mass challenges easier by letting voter fraud vigilantes use the U.S. Postal Service’s change of address database as sufficient evidence to initiate a challenge. [link removed]

But it’s impossible to know from this database if someone has moved permanently or if they’re still an eligible voter who asked for their mail to be forwarded for a myriad of other reasons. Georgia’s election director even testified that this section of the bill could violate the National Voter Registration Act. [link removed]

It gets worse. As originally introduced, the bill added stringent requirements to monitor drop boxes. But a last minute amendment in committee instead would ban drop boxes entirely. The bill would also:

Ban noncitizens from being hired as local election employees;

Require homeless voters to use a local courthouse as their address for voting purposes while restricting other options for voters without a stable address and

Allow some elections to be conducted on hand-marked paper ballots instead of ballot-marking devices.

Meanwhile, Georgia Secretary of State Brad Raffensperger (R) has some thoughts about the kind of national election laws that Republicans should move through Congress. In a letter to Speaker Kevin McCarthy (R-Calif.) and the so-called Election Integrity Caucus, Raffensperger decried a “federal takeover of elections” and then immediately proposed laws that would interfere with state election laws, such as a national photo ID requirement modeled after Georgia’s. Currently, only nine states have a strict photo ID requirement to vote, which means that a national ID requirement could override existing laws in 41 states and Washington, D.C. [link removed]

Why do Democratic proposals to expand voting count as a federal takeover of elections but proposals to bring voter suppression nationwide do not? Raffensperger doesn’t explain. Meanwhile, Raffensperger’s COO Gabriel Sterling was in the District this week and met with the Election Integrity Caucus to promote Raffensperger’s ideas. [link removed]

As Some Legislative Sessions End, Others Begin

As the days go by, more and more legislative sessions are winding down, while others are just getting started. Last weekend, Virginia’s regular session came to an end. Given that Virginia has one of the only two divided state legislatures in the country, with a Republican House and Democratic Senate, the bills that passed one chamber but failed in the other offer a stark contrast in priorities when it comes to election and voting policy. [link removed]

Democratic bills that failed in the Republican House include proposals restoring voting rights, enacting protections for election workers from harassment and easing private funding for election offices.

Republican bills that failed in the Democratic Senate include proposals adding strict photo ID to vote requirements, banning drop boxes, limiting in-person early voting and more.

One piece of legislation did make it through both chambers: a bill repealing the witness requirement to vote by mail. As of yesterday, Virginia Gov. Glenn Youngkin (R), however, has yet to sign it into law.

Legislative sessions in Utah and Wyoming end today. Several election bills have passed the Legislature in Wyoming, including a bill that would mandate that voters show ID when requesting a mail-in ballot in person and another that would add concealed carry permits to the list of acceptable IDs to vote. In Utah, we’re keeping an eye on a bill that would raise the threshold needed for certain ballot measures to be approved. [link removed]

While legislative action in Utah and Wyoming is ending, some states have yet to get started. Alabama and Florida’s regular sessions start on March 7 (although Florida already passed a new law to make election crime prosecutions easier during a special session).

Also coming up in March:

Arkansas’ session ends on March 10.

West Virginia’s session ends on March 11.

New Mexico’s session ends on March 18.

South Dakota’s session ends on March 27 (and it just passed a bill to ban drop boxes). [link removed]

Georgia’s session ends on March 30.

The ends of sessions tend to be very busy as legislators rush to finish passing bills before the deadline — don’t be surprised if lots of election-related bills start moving in these states as the end dates draw nearer.

More News

The U.S. Supreme Court asked parties in the pending case Moore v. Harper, which deals with the fringe independent state legislature theory, to submit additional briefing. The briefs will address how the Court’s case might be affected by the North Carolina Supreme Court’s decision to rehear the redistricting lawsuit from which Moore originates. Briefs are due by March 20. [link removed]

Failed gubernatorial candidate Kari Lake (R) filed her appeal of her election contest to the Arizona Supreme Court on March 1. On Feb. 16, the Arizona Court of Appeals affirmed a trial court’s decision that dismissed Lake’s election contest. Lake appealed this decision to Arizona’s highest court, arguing that the appellate court’s opinion must be reversed because the lower court didn’t appropriately review her claims and instead “ruled that Arizona election laws don’t matter.” The court will decide whether to hear her appeal or not at a conference on March 21. [link removed]

Speaking of Arizona, the Board of Supervisors in Cochise County voted to transfer election authority from the Cochise County Elections Department to County Recorder David Stevens, with two of the three members supporting the unprecedented move. Stevens pushed for the hand count last fall, has called election denier and 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]

In Washington, D.C., U.S. Rep. Dan Goldman (D-N.Y.) introduced the Early Voting Act, a bill that would require every state to offer at least 14 consecutive days of early voting, allow early processing of mail-in ballots and more. Goldman noted that the pre-processing provision was included “in order to eliminate misinformation and efforts to undermine our elections.” The bill is unlikely to advance through the House chamber that’s narrowly controlled by Republicans. [link removed]


ANALYSIS: Republicans Hint at Why They Are Restricting Ballot Measures in These States

By Mac Brower, Democracy Docket staff writer. Read more ➡️ [link removed]

What We’re Doing

March is Women’s History Month! To celebrate, we’re learning about the Great Suffrage Parade, one of the first large-scale civil rights protests in our nation’s capital. Its 100-year anniversary is today. Plus, the Senate Judiciary committee held a hearing on what Congress can do to revive the Equal Rights Amendment — find a recap here. [link removed]
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President Joe Biden will head to Selma, Alabama, on Sunday to commemorate the anniversary of Bloody Sunday, a major moment in the voting rights movement. This will be Biden’s first visit to Selma as president. We’ll be tuned in to Biden’s speech to see what he has to say about the fight to protect voting rights in the new year. [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, “56,000 Voters’ Rights Are at Stake in North Carolina Feat. Daryl Atkinson,” wherever you get your podcasts. [link removed]




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