Tomorrow, March 25, marks two years since Georgia Gov. Brian Kemp (R) signed Senate Bill 202 into law. The enactment of the 98-page voter suppression bill sparked initial outrage, from Major League Baseball to companies like Delta Airlines and Patagonia. The response from businesses has fizzled out, but eight lawsuits challenging the law continue on. Today, we dive into the progress of lawsuits challenging the multiple voter suppression bills passed in 2021 — and how does the 2023 legislative session compare? |
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Voter Suppression Law Updates: Two Years of Georgia Senate Bill 202 |
On March 25, 2021, Kemp signed S.B. 202, a massive anti-voting bill that exemplified post-2020 election legislative priorities in Republican-controlled states. To recognize this anniversary, we break down the provisions in S.B. 202 here.
By the end of 2021, 19 states enacted restrictive voting laws but seven states enacted the worst of the worst: Iowa, Georgia, Arkansas, Montana, Kansas, Florida and Texas. Even though we’re pushing two years since most of the major restrictions were passed, lawsuits can move slowly. Here’s the status of the litigation challenging 2021 voter suppression laws:
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There is one lawsuit in Iowa. A trial that was scheduled to begin in March 2022 has been postponed while Republican legislators appeal a trial court decision over legislative privilege and discovery.
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There were nine lawsuits filed against Georgia’s S.B. 202. One lawsuit was dismissed, two lawsuits have litigation ongoing separately and the other six cases, including one filed by the U.S. Department of Justice (DOJ), were consolidated. In August 2022, a federal judge denied the request to temporarily block S.B. 202’s line-warming ban in advance of the 2022 midterms. A trial has yet to be scheduled.
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There is one lawsuit in Arkansas challenging four laws. A trial was held in March 2022; on the last day of trial, the judge ruled from the bench that all four laws violate the Arkansas Constitution and would be permanently enjoined. A written order followed on March 24. The defendants appealed this decision to the Arkansas Supreme Court, which paused the trial court’s decision. Litigation is ongoing before the Arkansas Supreme Court.
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There were several different lawsuits in Montana challenging different combinations of Montana’s election laws. A consolidated lawsuit that challenged four laws went to trial in August 2022. The court permanently blocked one law before the trial and in September, permanently blocked the remaining three laws. The state’s Republican secretary of state has since appealed this decision.
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There are two lawsuits in Kansas. The first, which was filed in state court, challenged two laws. The plaintiffs voluntarily dismissed their claims against one law and then sought, but were denied, a preliminary injunction against provisions of another law. In April 2022, the district court dismissed most of the claims in the case but just last week, a three-judge panel of the Kansas Court of Appeals reversed that decision and allowed certain claims to move forward. The second lawsuit was brought in federal court. In February 2022, the court entered a permanent injunction against multiple provisions of one voter suppression law though litigation is ongoing regarding a prohibition on sending personalized mail-in ballot applications to registered voters.
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There were four cases in Florida, all consolidated. After a two-week trial that began in January 2022, a Florida judge struck down three out of the five challenged provisions. The judge concluded that the provisions were “intentionally discriminatory” against Black Floridians and placed Florida under preclearance requirements for the next 10 years. The defendants appealed this decision to the 11th U.S. Circuit Court of Appeals, which paused the decision while the appeal is litigated. Oral argument was held on Sept. 15, 2022.
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There were eight lawsuits in Texas. Six of these lawsuits, including one filed by the DOJ, were consolidated. A trial in the consolidated case was postponed as the parties are fighting over the release of legislative communications and other documents. In August 2022, the district court granted in part and denied in part multiple sets of defendants’ motions to dismiss, thereby allowing claims brought by four sets of plaintiffs to move forward. In the two other two lawsuits, the Texas NAACP filed in state court (litigation ongoing) and the Harris County elections administrator challenged one narrow provision (claims dismissed).
There has been no shortage of suppressive legislation introduced across the country in 2023 (see below), but only Ohio has pushed through an omnibus bill that mirrors what we saw in 2021. Passed by the Legislature in December 2022, House Bill 458 was signed into law on Jan. 6, 2023. Is Ohio simply catching up with its Republican counterparts in other states? Or, after a successful midterm election, do these anti-voter bills hint at what’s to come from Republican legislators? There is still plenty of time left in most states’ legislative sessions, so time will tell.
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New Election Laws Enacted This Week |
On Monday, Utah Gov. Spencer Cox (R) signed a bill that makes tweaks to the laws governing voter registration data, specifically in what anonymized manner a political party or candidate can gain access to the voter information of a protected individual (such as a domestic violence victim).
On Tuesday, South Dakota Gov. Kristi Noem (R) signed 12 election bills into law. These bills include bills that impose a strict residency requirement to vote, ban drop boxes in the state and curtail the ballot initiative process. Noem has not ruled out running for president in 2024.
On Wednesday, Mississippi Gov. Tate Reeves (R) signed a ballot collection ban into law, making it a crime to collect and submit mail-in ballots on behalf of others. The law allows narrow exceptions for family members, household members and caregivers, the exact policy that led to prosecutions and voter confusion in Arizona.
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Two Lawsuits Filed Against Idaho’s Law Targeting Student Voters |
Last week, Idaho Gov. Brad Little (R) signed into law House Bill 124, a law that removes student ID cards from the list of acceptable identification to vote. Idaho law requires photo identification at the polls before voting in-person but H.B. 124 strikes student photo ID cards issued by high schools or higher education institutions from the list of acceptable forms of identification, while continuing to accept concealed carry permits and more.
Idaho has seen a 66% increase in registration for voters aged 18 and 19 between November 2018 and September 2022, the highest in the country. In light of this blatant attempt to disenfranchise a growing voting bloc, two lawsuits were filed, one in state court and one in federal court: -
In state court, a youth voter engagement organization and the League of Women Voters of Idaho filed a lawsuit last Thursday that argued that H.B. 124 violates the right to equal protection and the right to vote under the Idaho Constitution.
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In federal court, March For Our Lives Idaho and a young resident filed a lawsuit last Friday that argued that H.B. 124 “singles out high school and college students and threatens their political participation” in violation of the 26th Amendment of the U.S. Constitution, which prohibits denying voting rights “on account of age.”
Need a refresher on the difference between state and federal court? We have you covered with our Explainer series: The U.S. Court System Explained, The Federal Judge Confirmation Process and Blue Slips Explained and How State Supreme Court Justices Are Selected.
It’s not just Idaho. Rather than celebrate the civic achievement of high youth turnout, GOP politicians target young voters for their heavily liberal policy preferences. You can find a list of laws enacted in recent years that make it harder for young Americans to vote here.
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The Parties Weigh In: Does SCOTUS Have Jurisdiction to Decide Moore v. Harper? |
Moore v. Harper is one of two major voting cases before the U.S. Supreme Court this term. However, the procedural issues are becoming increasingly messy.
Earlier this month, the Court requested the parties in Moore, along with the U.S. solicitor general (who participated in oral argument), to address the following question: Does the Court still have the legal authority (“jurisdiction”) to decide the case?” The Court specifically asked the parties to weigh in on how and whether the North Carolina Supreme Court’s rehearing of Harper v. Hall — the state-level redistricting case underlying Moore — affects the U.S. Supreme Court’s jurisdiction to decide the merits of the independent state legislature theory in Moore.
On Monday, the parties submitted their briefing. The responses were split, with the United States and some of the pro-voting parties arguing the Court no longer has jurisdiction (or that the Court always lacked jurisdiction). One of the pro-voting parties and the Republican legislators in the case argued the Court does have jurisdiction and should rule on the merits of the case. Get a breakdown of the arguments here.
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Arizona Supreme Court Rejects Majority of Kari Lake’s Election Contest Claims |
On Wednesday, the Arizona Supreme Court declined to review six of the seven claims in failed gubernatorial candidate Kari Lake’s appeal of her previously dismissed election contest.
The Arizona Supreme Court has what is known as discretionary jurisdiction; this means that the court must agree to review lower court decisions (as opposed to automatically taking the appeal). The court rejected review of six of Lake’s seven claims and sent the remaining claim regarding signature matching back to the trial court for review.
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Additional States Withdraw From ERIC |
Last week, the sixth and seventh GOP-controlled states — Iowa and Ohio — announced their intention to withdraw from the Electronic Registration Information Center (ERIC), a nonprofit organization that allows states to share information to help maintain accurate voter rolls. Iowa Secretary of State Paul Pate (R) called ERIC “a godsend” just last month.
This week, North Carolina Republicans showed the first indication that they may join the growing list of states leaving ERIC. Lawmakers introduced a bill which would repeal the state’s authorization to participate in ERIC and ban the state board of elections from entering into a new agreement with ERIC unless given permission by the Legislature. (Republicans control both chambers of the state Legislature, but Gov. Roy Cooper (D) could veto. Republicans have sufficient numbers in the state Senate to override the veto and are just one vote short in the state House.)
There are similar proposals to remove or prevent states from entering into ERIC in Arizona, Oklahoma and Texas.
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Good news for Pennsylvania voters: Yesterday, a court dismissed a lawsuit filed by the Republican National Committee that sought to prohibit counties from implementing mail-in ballot cure procedures. (Curing allows election officials to notify voters of a technical error on their mail-in ballots and enables voters to rectify any mistakes.)
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As of Wednesday, over 30 restrictive voting bills have passed one chamber in the Arizona Legislature. To move forward, the bills must pass the other chamber in the Republican-controlled Legislature and are subject to Gov. Katie Hobbs’ (D) veto. Learn more here.
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Among a host of bad laws passed this session in Arkansas, the state enacted a law that makes it harder for citizen-initiated measures to get on the ballot. Now, a Republican state lawmaker who opposed the bill teamed up with the League of Women Voters of Arkansas to challenge the law for violating the state constitution.
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An interesting power struggle is playing out in Nashville, Tennessee, where the red state Legislature is trying to usurp power from the blue city government. The Metropolitan Government of Nashville and Davidson County filed a lawsuit alleging that a newly-enacted law that reduces the size of Nashville’s Metro Council violates multiple provisions of the Tennessee Constitution, including the Home Rule Amendment.
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ANALYSIS: What’s at Stake in the Wisconsin Supreme Court Election? |
By Ellis Champion, case manager at Democracy Docket. Read more ➡️ |
Happy Spring! For those of us in the nation’s capital, cherry blossoms are in peak bloom this week. Treat yourself this season and save with our Democracy Docket water bottle and sticker bundle. Shop all of our merch and support our work. |
Daylight savings means more sunlight in our evenings, but how about more sunshine in courtrooms? Call your U.S. senators today to support the bipartisan bill S. 858, the Cameras in the Courtroom Act, to televise U.S. Supreme Court proceedings in real time.
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