On The Docket 03/10/2023

Next week, the new Republican majority of the North Carolina Supreme Court will rehear two recently decided cases on the state’s photo ID law and redistricting maps. The reopening of the latter case directly implicates Moore v. Harper, a major election law case before the U.S. Supreme Court. Today, we outline the many ways Moore could end, including with no opinion at all.

This week, a case challenging Texas’ voter registration policy was before the 5th U.S. Circuit Court of Appeals and two new election-related lawsuits were filed in Arizona.


Moore v. Harper: How Procedural Developments Might Mean SCOTUS Won’t Issue a Decision

In December 2022, the U.S. Supreme Court heard oral argument in Moore v. Harper, the landmark redistricting case out of North Carolina that raises the fringe independent state legislature theory. With argument complete, normally all that’s left would be for the Court to issue its decision, but two related developments have thrown a wrench in the Court’s usual process: [link removed]

In February 2023, the North Carolina Supreme Court, with its newly elected Republican majority, agreed to rehear its decision to overturn partisan gerrymanders that led to Moore reaching the U.S. Supreme Court in the first place. (This is an extremely unprecedented and blatantly partisan move after the composition of the court changed from Democratic to Republican control.) [link removed]

Then just last week, the U.S. Supreme Court asked for the parties to submit supplemental briefs on whether the Court even has jurisdiction to review Moore in light of the North Carolina Supreme Court’s decision to rehear the case. Both of these developments make it increasingly likely that the U.S. Supreme Court won’t issue a decision in Moore at all. [link removed]

Last week’s order asked the parties in the case to address whether the Court still has jurisdiction to decide Moore under 28 U.S.C. §1257(a), which states that the U.S. Supreme Court only has the power to review final decisions issued by a state Supreme Court. But with North Carolina’s highest court reopening its case, it’s possible that there is no longer a final decision for the U.S. Supreme Court to review, resulting in the Court dismissing the case.

Additionally, the developments in the Tar Heel State, for example, could lead the justices to conclude that the case is simply too messy or complicated and the Court could dismiss the case as “improvidently granted.” (If you hear the term “DIG,” that’s what it means.) Essentially, the Court would revoke its decision to review the case and the lower rulings would stand.

Needless to say, there’s a plethora of ways Moore could end. This week, Democracy Docket Staff Writer Mac Brower outlined the possibilities we can expect — both if the Court declines to issue a decision and if it does reach a ruling. Read more here. [link removed]

Meanwhile, the aforementioned rehearing before the North Carolina Supreme Court will take place on Tuesday, March 14. The rehearing in another crucial case over North Carolina’s strict photo ID law will take place on Wednesday, March 15.

Pro-voting groups submitted briefs in both cases stressing the unprecedented nature of the state court’s decision to rehear cases that were decided just months ago. Need a refresher on what happened? Read legal experts’ reactions to the move or listen to our podcast episode about the power grab. [link removed]

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DOJ Will “Stand With You” but Doesn’t Want To Be the Only Voting Rights Litigator

Last Sunday, civil rights leaders from across the country gathered in Selma, Alabama to honor those who marched for voting rights 58 years ago this week. Kristen Clarke, who leads the Civil Rights Division in the U.S. Department of Justice (DOJ), vowed to protect voting rights: “I promise you, under my watch, the Civil Rights Division of the Department of Justice will stand with you," Clark said. "We will stand for you. We will fight for you."

But, it’s not that simple. The DOJ has limited time and resources, and sometimes, limited political will. In the long history of advancing civil and voting rights, lawsuits by private parties have been essential.

Yet, conservative litigators are increasingly asserting that certain voting rights protections are not privately enforceable, meaning that individuals and organizations cannot sue. This legal concept is known as a private right of action or a private cause of action. Without it, only the DOJ can file a lawsuit under a given statute. [link removed]

On Monday, Clarke’s DOJ lawyers were in the courtroom pushing back against this legal argument. The DOJ had requested to participate in oral argument before the 5th U.S. Circuit Court of Appeals in Vote.org v. Callanen, a lawsuit challenging Texas’ “wet signature” law, which requires individuals who submit their voter registration applications electronically or through fax to also submit a physical copy containing a signature signed with pen on paper. Vote.org argues that this requirement is irrelevant to a voter’s eligibility and thus violates the Materiality Provision of the Civil Rights Act and the U.S. Constitution. [link removed]

In front of the 5th Circuit judges on Monday, the lawyer for Texas Attorney General Ken Paxton (R) argued that Vote.org cannot bring this lawsuit because there is no private right of action under the Materiality Provision. The DOJ’s attorney refuted this argument, underscoring that a private right of action indeed exists under this statute.

Paxton’s attorney also concluded that Texas offers “so many avenues” to register to vote even though Texas remains one of only eight states that does not offer online voter registration.

The attorney for two county officials on the same side as Paxton argued that the wet signature requirement is relevant to determining voter eligibility in the state of Texas. To this, Judge Stephen Higginson responded: “Young people sign almost everything on the internet. They don’t have printers. Especially in big states like…Texas, where people just can’t drive to Kinkos easily…this is a very big impediment for a lot of people that might want to sign up and be a voter.”

Read a full courtroom summary here. [link removed]

ERIC, Now Known as Extreme Right-Wing Internet Conspiracies

This week, three Republican secretaries of state withdrew their states — Florida, Missouri and West Virginia — from the Electronic Registration Information Center (ERIC), a nonprofit organization that allows states to share information to help maintain accurate voter rolls. [link removed]

ERIC started in 2012 as an opt-in coalition of both red and blue states alike. With the recent withdrawals (as well as Alabama and Louisiana within the past year or so), 28 states and Washington, D.C. remain members.

It’s not illegal to be registered in more than one state (in fact, former President Donald Trump’s chief of staff Mark Meadows was simultaneously registered in three), as long as a voter only casts a single ballot in one place. ERIC helps states compare such data, remove voters and more.

Ironically, the same right-wing actors withdrawing from ERIC are those who complain about voter fraud and error-riddled voter rolls. ERIC makes voter purges easier, a Republican “election integrity” policy goal, yet the system has been swept into the ecosystem of right-wing election conspiracies. In his letter, Missouri Secretary of State Jay Ashcroft (R) cites ERIC’s refusal to “require member states to participate in addressing multi-state voter fraud” and for allowing a “hyper-partisan individual” to be a non-voting member of its governance board, among other concerns.

Court Rules That Right-Wing Activists Illegally Intimidated Voters

In summer 2020, two right-wing conspiracy theorists, Jacob Wohl and Jack Burkman, created a robocall scheme to discourage voters from voting by mail in the upcoming election. The thousands of calls allegedly targeted neighborhoods in Illinois, Ohio, Michigan, New York and Pennsylvania with high percentages of Black voters.

The robocaller claimed to be representing a non-existent civil rights organization called Project 1599: “Did you know that if you vote by mail your personal information will be part of a public database that will be used by police departments to track down old warrants and be used for credit card companies to collect outstanding debts,” the robocall said, before continuing that the Center for Disease Control “is even pushing to use records for mail-in voting to track people for mandatory vaccines.”

Wohl and Burkman already pled guilty to telecommunications fraud in Ohio. This Wednesday, a federal court in New York ruled that the extremists’ robocall operation violated Section 11(b) of the Voting Rights Act, the Ku Klux Klan Act of 1870, the Civil Rights Act and New York civil rights laws. [link removed]

Meanwhile, a federal judge issued an order in another Section 11(b) case this week: a lawsuit brought by Fair Fight against the right-wing organization True the Vote. The order largely focuses on procedural questions around the parties’ motions for summary judgment, which is when a party asks the judge to rule on a portion or all of a case without a full trial by presenting evidence that their side should win. The judge ruled that the case’s facts were disputed by the different sides and summary judgment could not be issued on all of the claims, including Section 11(b) voter intimidation claims, so the case will proceed to trial. [link removed]

The Latest Arizona Lawsuits: Signature Matching and Cochise County (Again)

On Monday, two conservative legal groups, including one founded by Bill Barr, filed a lawsuit challenging Arizona’s signature matching processes. In Arizona, voters who cast an early mail-in ballot must sign an affidavit attesting to their identity; this signature is then compared to prior signatures in the voter’s record to confirm a match. [link removed]

The plaintiffs claim that the secretary of state’s interpretation of Arizona’s 2019 Election Procedures Manual permits county recorders to compare signatures on early mail-in ballot envelopes from prior elections with the voter’s signature on their current mail-in ballot envelopes. The conservative groups argue that this practice violates Arizona law, which allegedly requires comparing signatures with a voter’s registration.

More than half of states rely on some type of signature match procedure to verify the identities of mail-in voters. Though technical, signature matching procedures matter because they can be prone to human error and lead to an over-rejection of valid ballots.

The latest case in Arizona is representative of several compounding themes: Well-funded legal groups proactively pursuing anti-voting results via litigation and the ongoing trend of the GOP attacking Arizona’s mail-in voting.

Meanwhile, Arizona Attorney General Kris Mayes (D) filed a lawsuit this week against the Cochise County Board of Supervisors and Cochise County Recorder David Stevens (R) over an agreement to transfer election oversight from the supervisors to the recorder. The agreement, adopted on Feb. 28 with the support of two out of three supervisors, gives the county recorder “almost all of the elections powers and duties conferred by statute upon the Cochise County Board of Supervisors,” according to the complaint. [link removed]

The attorney general argues that the recorder “has unlawfully aggrandized his power, and the Board has unlawfully and almost completely offloaded its statutory duties over elections” in violation of the Arizona Constitution and Arizona law.

The rural county’s move to transfer election authority comes after the resignation of long-time elections director Lisa Marra, who cited the “outrageous and physically and emotionally threatening” working atmosphere. During the 2022 election cycle, Marra continually urged the board of supervisors to follow state law and was personally sued for not executing the Republicans’ potentially illegal plan. (Marra has now been hired by the secretary of state’s office.)

Democrats Overrule Washington, D.C. Bill

This week, President Joe Biden and a majority of Senate Democrats sided with congressional Republicans to weaken Washington, D.C. autonomy.

A few weeks ago, the U.S. House (with the help of dozens of Democrats) passed Republican-led resolutions to overturn two Washington, D.C. city council bills, one that permitted noncitizen residents to vote in local elections and another that revised the city’s criminal code. But why can Congress do this? [link removed]

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 while maintaining some limitations on the types of laws the council could enact. It also granted Congress a 30-day review period for all legislation.

Ironically, despite this oversight, Washington, D.C. has no representation in the U.S. Senate and no voting representation in the House. With upwards of 670,000 residents, the district has a larger population than both Vermont and Wyoming and if admitted as a state, the district would be the state with the highest proportion of Black residents.

Biden and a slew of other Democrats noted their support for overturning the city council’s crime bill. In contrast, some Senate Democrats pushed back: “This resolution is an attack on the democratic rights of the people of the District of Columbia which has its own duly elected democratic representatives…Its residents, its citizens, are fully capable of deciding their own law and deciding their own future,” Sen. Chris Van Hollen (D-Md.) said on the Senate floor, before voting against the proposal. “We all have governors of our state, we all have state legislatures. We have cities with mayors and elected councils. No one here would appreciate the United States Senate and House of Representatives interfering and overturning decisions made by their state representatives or their local representatives, even if we might disagree with some of those decisions.”

The resolution to overturn the bill passed 81 to 14 in the Senate on Wednesday, with 33 Democrats joining all Republicans. The resolution now heads to Biden’s desk for his signature; if signed, it will be the first time Congress has overruled local law since 1991.

More News

On Wednesday, Sen. Ron Wyden (D-Ore.) and Rep. Earl Blumenauer (D-Ore.) introduced the Vote at Home Act, a bill that would ensure that all Americans have the ability to vote at home via mail-in ballots. Wyden and Blumenauer previously introduced similar legislation in 2021 and both represent a state that has run universal mail-in voting for decades. Unfortunately, it’s unlikely this bill will achieve the bipartisan support necessary to pass a divided Congress. [link removed]

Last Friday, Minnesota Gov. Tim Walz (D) signed a law that will restore voting rights to over 50,000 Minnesotans on parole, probation or community release due to a felony conviction once the law goes into effect in July. Previously, Minnesota law permitted voting rights restoration after the completion of an entire sentence, which often included years- or decades-long periods of probation. Now, under the new law, voting rights will be restored immediately after release from incarceration. [link removed]

New Mexico will soon follow in Minnesota’s footsteps and restore voting rights to around 11,000 individuals on felony parole or probation. On Wednesday evening, the New Mexico Senate passed the New Mexico Voting Rights Act, which has already advanced in the House. In addition to rights restoration post-incarceration, the bill would establish automatic voter registration, expand drop boxes, enact a Native American Voting Rights Act and more. The bill goes back to the New Mexico House for concurrence on amendments before heading to the governor’s desk. [link removed]

At least 30 election bills have passed one chamber in the Arizona Legislature. This includes a handful of bills passed within the past week that would ban drop boxes, ​​require a live stream of the signature matching process, empower bad actors to investigate elections and election officials, move the deadline to drop off mail-in ballots to the Friday before Election Day and more. Any legislation approved by both chambers faces the potential veto of Gov. Katie Hobbs (D).

President Joe Biden released his proposed budget for the 2024 fiscal year, which includes major investments in state and local election departments as well as increased funding for the U.S. Department of Justice to enforce federal voting laws. [link removed]

Burlington, Vermont, the state’s largest city, approved an amendment to its city charter that would allow permanent noncitizen residents to vote in local elections. Voters approved the proposal with 7,143 voting in favor and 3,366 voting against, though the amendment will have to be approved by the Vermont Legislature before going into effect. Burlington will be the third municipality in Vermont to extend voting to noncitizens. The previous two proposals were challenged in court and the Vermont Supreme Court ruled in January that extending voting to noncitizens does not violate the state constitution. [link removed]

FROM MARC: Brad Raffensperger Is Just Another Republican Vote Suppressor

“If there was any doubt where Brad Raffensperger stands on voting rights, he has put it to rest…Raffensperger’s approach may be more polite than the vulgar tactics Trump employed in 2020, but his goal is the same: limiting voting rights so that Republicans can win.” Read more ➡️ [link removed]

What We’re Doing

In advance of next week’s out-of-the-ordinary rehearings of two voting cases before the North Carolina Supreme Court, catch up on how we got here with our podcast, “North Carolina Republicans Want a Redo.” [link removed]

This week, we celebrated International Women’s Day! To encourage and train more women to run for elected office and hold leadership positions, support She Should Run, Emerge and Emily’s List. [link removed]
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We’re watching late night host John Oliver’s segment on Florida Gov. Ron DeSantis (R) where he humorously highlights DeSantis’ authoritarian tendencies, including pushing for arrests for illegal voting. [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, “The Right Wing’s Latest Legal Theory” wherever you get your podcasts. [link removed]


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