This week, two important voting cases — where pro-voting outcomes prevailed in court just a few months ago — were back before the North Carolina Supreme Court. We summarized what went down in the unprecedented rehearings of Harper v. Hall and Holmes v. Moore.
Plus, New Mexico’s omnibus bill expanding voting access heads to the governor for her signature. In Connecticut, lawmakers proposed a state-level Voting Rights Act (VRA) this week, the third state VRA to be introduced over the past year (Michigan hopes to join that list soon). But what does it mean to have a state VRA? We explore what state-level legal protections look like in an era defined by an increasingly weakened federal VRA.
|
|
|
Two Unprecedented North Carolina Rehearings on Display in Court |
“The legislative defendants play a cynical game, hoping that this newly constituted court will reverse course and abdicate its fundamental duty of judicial review,” a lawyer for pro-voting groups said in front of the North Carolina Supreme Court on Tuesday.
The state’s highest court was rehearing Harper v. Hall, a previously decided redistricting lawsuit challenging North Carolina’s congressional and legislative maps drawn with 2020 census data. (The case is also the precursor to the pending U.S. Supreme Court case, Moore v. Harper, that raises the radical independent state legislature theory.) In the state case, the North Carolina Supreme Court struck down the Legislature-drawn congressional and legislative maps for being partisan gerrymanders in February 2022 and later, in December 2022, struck down the remedial state Senate map.
Just how procedurally messy are Harper v. Hall and Moore v. Harper? The overlapping timelines bounce between two levels of state court and the U.S. Supreme Court and involve three different redistricting maps. The North Carolina Supreme Court’s decision to rehear Harper further complicated matters.
|
Just months after the most recent decision, the same court is reconsidering its opinion. Nothing has changed in the facts of the case nor the case law surrounding partisan gerrymandering in North Carolina. The only fact that has changed is that Republicans have flipped the court from a 4-3 Democratic majority to a 5-2 Republican majority following the 2022 midterms. -
At the onset of Tuesday’s argument, Justice Michael Morgan (D) asked the Republican legislators: “What has happened over the course of the past 88 days since we issued our opinion that would mandate and compel a different result?” Now, that’s a great question, but I think we all know the answer: Partisan actors are disregarding judicial norms to seek their preferred policy outcome.
|
Justice Anita Earls (D) had a line of questioning confirming that the Republican legislators were not disputing the facts of the case that the challenged maps were among the “most extreme gerrymanders possible.” Instead, Earls gleaned that lawmakers were asking the court to “say in spite of those facts, the North Carolina Constitution offers no protection to voters.” The response to Earls was affirmative: “Yes, Your Honor. The North Carolina Constitution does not speak to partisanship in redistricting.”
|
Earls pressed on with a hypothetical that the Legislature imposed redistricting criteria to explicitly draw a congressional map with 11 Republicans and three Democrats (remember, North Carolina’s electorate has a fairly even partisan divide): “Would it be beyond the power of this court to prohibit that?” The attorney responded: “Some things, Your Honor, are beyond the power of this court.” Read a full courtroom summary here.
While Harper’s rehearing has gained significant attention for its direct impact on the Tar Heel State’s redistricting maps and less clear-cut impact on a landmark U.S. Supreme Court case, the North Carolina Supreme Court granted rehearing in one more voting case: Holmes v. Moore. In Holmes, a trial court struck down a 2018 law that severely limited the list of acceptable photo IDs for voting, ruling that it was enacted with the intent to discriminate against Black voters in violation of the North Carolina Constitution. The court found that Black voters are 39% more likely to lack qualifying ID than white voters. The North Carolina Supreme Court, with its then-Democratic majority, agreed.
-
Morgan asked about the evidence at the trial court level that showed that Black North Carolinians disproportionately hold public assistance IDs yet these were not included in the original law. Morgan read from the trial court’s decision: “The lack of the Legislature’s allowance of public assistance IDs was telling” and “it was also ‘particularly suspect because legislators could have reasonably surmised that those forms of ID would be hailed disproportionately by African American voters.’”
|
Justice Trey Allen (R) asked if “direct evidence” of racially discriminatory intent existed in this case. The lawyer for the pro-voting groups responded that while direct evidence was not presented, that “does nothing to undermine the correctness of the trial court’s judgment,” particularly given that we “are fortunately well past the time where we expect to find blatant statements of racially discriminatory motive in the legislative record.” Read a full courtroom summary here.
|
New Mexico Legislature Approves Major Pro-Voting Reforms |
This week, the New Mexico Legislature sent the New Mexico Voting Rights Act to the desk of Gov. Michelle Lujan Grisham (D) for her signature. The omnibus, pro-voting bill makes a handful crucial reforms. Notably, upwards of 11,000 New Mexicans on parole or probation will regain voting rights upon enactment, building upon the rights restoration success in Minnesota. Once signed by Lujan Grisham, the bill will:
- Establish automatic voter registration, where voters are automatically registered to vote when they interact with a department of motor vehicles, except if they opt out later on.
|
Restore the right to vote for individuals who are no longer incarcerated for a felony conviction. Currently, New Mexico restores voting rights to those convicted of felonies after the completion of an entire sentence, which almost always includes probation, parole or post-release supervision.
|
Enact the Native American Voting Rights Act, a subsection that will permit the use of governmental and official buildings as mailing addresses for voter registration purposes, ensure that pre-existing political lines are respected when adjusting precinct boundaries, allow Indian nations or tribes to request additional early voting locations, polling places and drop boxes and more.
|
New Mexico’s legislative session adjourns tomorrow, but the state made important strides in protecting and expanding voting rights access. |
Several States Look To Pass Their Own Voting Rights Acts |
While New Mexico calls its pro-voting bill a Voting Rights Act (VRA), there is a distinction between omnibus bills that expand voting access and state-level VRAs. A state VRA is characterized by the way it empowers voters through the legal system. These bills often include preclearance processes that mirror the now-defunct Section 5 of the federal VRA, strengthen the legal bases for challenging unfair election laws and more.
In fact, five states — California, New York, Oregon, Virginia and Washington — have VRAs. At least four more states are looking to enact one this session: Connecticut, Maryland, Michigan and New Jersey.
Since its enactment in 1965, the federal VRA has been a landmark achievement for American democracy. Over the past 10 years, however, this has changed. In 2013, the U.S. Supreme Court gutted Section 5, which required states or counties with histories of discriminatory voting practices to receive approval from the U.S. Department of Justice before enacting new changes. In 2021, the Court weakened Section 2 of the VRA, another crucial protection against denying or diluting the voting rights of minority voters. Section 2 might be further eroded by the end of this Supreme Court term in Merrill v. Milligan, a redistricting case out of Alabama.
In light of this unfortunate reality, states are increasingly looking to enact their own state-level protections. “With a lot of voting rights organizations, there's a huge focus on state-level democracy and elections,” Lucas Rodriguez, a student in the Election Law Clinic at Harvard Law School, told Democracy Docket. “There’s not as much effort on the sub-state level, even though local governments play a huge role in our lives.” State VRAs increase the attention on smaller jurisdictions and the myriad of ways that day-to-day policy is shaped by local officials. For example, the Maryland VRA arose from frustration with Baltimore County’s redistricting in 2021.
Learn more about state VRAs here. |
New Lawsuit Challenges Florida’s “Wet Signature” Rule |
Yesterday, Vote.org, a nonpartisan registration and get-out-the-vote nonprofit, filed its third lawsuit against a technical element of voter registration or mail-in voting requests known as a “wet signature” requirement.
In Florida, a rule has been on the books since 2005 that requires individuals registering to vote to submit their voter registration application with an “original signature.” The plaintiffs in a new lawsuit filed yesterday — Vote.org, the Florida Alliance for Retired Americans and the Florida State Conference of the NAACP — argue that Florida election officials have interpreted “original signature” to mean signed with pen on paper and have rejected valid applications received via email or fax with an electronic signature.
Vote.org is also currently challenging Georgia’s “wet signature” requirement for mail-in voting applications and Texas’ “wet signature” requirement for voter registration. In all three lawsuits, the plaintiffs argue that this rule — which may disenfranchise otherwise eligible voters who lack access to a printer — violates the Materiality Provision of the Civil Rights Act, which prohibits denying “the right of any individual to vote in any election because of an error or omission…if such error or omission is not material in determining whether such individual is qualified.”
It’s not always the flashiest law or the most well-known or understandable provision that deters voters. The mundane, technical details can have equally devastating impacts on access to the ballot box — groups like Vote.org recognize the importance of dismantling all barriers, big and small.
|
Where We’re Watching: Arkansas, Georgia, Mississippi and South Dakota |
We’re keeping a close eye on Arkansas, Georgia, Mississippi and South Dakota, the next four Republican-controlled states to end their legislative sessions. This means legislation should be moving quickly and onto governors in the next two weeks.
In Arkansas, bills that have passed both chambers include:
-
Senate Bill 255, which would ban state or county officials from accepting private donations to fund election administration, even though private grants can be a lifeline for chronically underfunded election offices.
|
In Georgia, Senate Bill 222 passed the first chamber. The bill would create a new felony offense for election officials who accept private grants for funding election administration.
In Mississippi, bills that have passed both chambers include: -
Senate Bill 2358, which would prohibit, punishable by a fine and jail time, collecting a ballot for anyone other than a family member or caregiver.
|
In South Dakota, bills that have passed one or both chambers include: -
Senate Bill 116, which would give the Legislature the right to participate in all election litigation.
|
On Wednesday, U.S. Rep. Raúl Grijalva (D-Ariz.) sent a letter to the U.S. Department of Justice (DOJ) asking the DOJ to investigate the recent transfer of election authority in Cochise County, Arizona. On Feb. 28, the Cochise County Board of Supervisors voted to transfer election authority from the Cochise County Elections Department to County Recorder David Stevens (R). “David Stevens has a history of endorsing election denialism and has close connections with election denying candidates in Arizona,” Grijalva wrote in his letter, citing his concern. Arizona Attorney General Kris Mayes (D) recently filed a lawsuit over the transfer agreement.
|
Also on Monday, Arizona Gov. Katie Hobbs (D), Secretary of State Adrian Fontes (D) and Maricopa County submitted briefs arguing that the Arizona Supreme Court should not take on failed gubernatorial candidate Kari Lake’s (R) election contest. Hobbs, who was sworn into office in January, wrote: “For the past five months, Kari Lake has attempted unsuccessfully to use Arizona’s judiciary to undermine the results of that election. Enough is enough.” Hobbs and Fontes also seek sanctions against Lake.
|
Last Friday, the Texas Department of State announced plans to “develop and manage an interstate voter registration crosscheck program.” The development of a new program could allow the state to stop participating in the Electronic Registration Information Center (ERIC), a bipartisan nonprofit that has become the target of right-wing election conspiracy theories. Several states have recently withdrawn from ERIC. In Marc’s latest, he compares this panic to a bank run and outlines its negative consequences for democracy.
|
|
|
OPINION: Saving Our Courts Means Questioning All U.S. Supreme Court Norms |
By Rakim Brooks, president of Alliance for Justice. Read more ➡️ |
We’re reading The New York Times on the ongoing fight over redistricting maps that will define the next decade. ICYMI, our redistricting litigation report from January chronicled the high volume of map-related lawsuits, exemplifying the extent that district lines could change before 2030.
The April 4 general election for a seat on the Wisconsin Supreme Court is just around the corner. With abortion rights and gerrymandering hanging in the balance, this race is too important to sit out. Here’s what we need to do: |
|
|
We depend on the support of our readers to keep bringing you the latest on the fight for democracy. You can support our work here to keep our content free and available for all. You can update your email preferences here. Email is the best way to keep in touch, but you may unsubscribe.
|
Democracy Docket
250 Massachusetts Ave NW
Washington, DC, DC 20001
United States
|
|
|
|
