“The court didn’t make it any easier to win voting rights cases,” redistricting expert Justin Levitt told Bolts at the time. “It just declined to make it much, much, much, much, much, much harder.”

But the reprieve may have been temporary, and winning voting rights cases may still get much harder this year. A series of cases are working their way through federal courts that represent grave threats to Section 2 of the VRA, which prohibits denying the right to vote “on account or race or color,” language that extends into protection against racial gerrymandering. 

In these cases, conservatives are trying out a suite of new legal arguments, each of which would dramatically narrow the scope of the VRA. The cases are still making their way through district and appellate courts, with some early rulings favoring conservatives, at times authored by judges nominated by Donald Trump. Many are expected to end up at the Supreme Court, where members of the conservative majority have already expressed skepticism at various aspects of the VRA. 

Judges will decide if critical protections afforded by Section 2 of the VRA remain applicable to the present, whether the law applies to statewide races and coalition districts, and even whether voting rights groups can ever bring a lawsuit under Section 2—a sleeper case that already detonated in an appeals court last fall. The most acute stakes concern the rules of redistricting, with officials in GOP-run states including Alabama, Arkansas, Louisiana, North Dakota, and Texas proposing new interpretations that would fuel gerrymandering and undercut the voting power of communities of color. 

Here is your roadmap to four major legal threats that may further unravel the VRA in 2024, and what cases you should be watching.

1. What if private plaintiffs can no longer sue?

What is the threat to the VRA?

For decades, ordinary citizens and voting-rights organizations have brought lawsuits alleging VRA violations. These lawsuits, and the mountain of legal work and research that goes into them, have been critical to getting courts to strike down discriminatory legislation and create districts that allow communities of color to be represented by candidates of their choice.

In what’s undoubtedly the biggest threat facing the VRA, federal courts might invalidate that entire approach. Conservatives have made the case that only the U.S. Attorney General has the power to sue over violations of Section 2 of the VRA, and they landed a startling ruling by a district court judge last year. If the ruling stands, it would ban private parties from bringing these lawsuits, massively shrinking enforcement; when the Department of Justice is controlled by politicians hostile to civil rights, it may eliminate these VRA lawsuits altogether. 

What are the cases to watch?

Keep an eye on Arkansas State Conference NAACP v. Arkansas Board of Apportionment, the challenge to Arkansas’s state legislative districts. 

After Arkansas Republicans drew new legislative maps in 2021, the state NAACP sued in federal court, arguing that Black Arkansans were underrepresented, and that this violated Section 2 of the VRA. But the district court judge who heard the case, Trump-appointee Lee Rudofsky, questioned whether the NAACP was even allowed to bring suit at all. 

It’s been a long-established practice for private parties to sue over Section 2 allegations. But Justices Neil Gorsuch and Clarence Thomas encouraged that question to be revisited in a 2021 concurrence, stating that courts have “assumed” that this is appropriate without ever deciding it. Walking into that breach, with an explicit appeal to Gorsuch, Rudofsky ended up dismissing the suit with a bombshell finding: “Only the Attorney General of the United States can bring a case like this one.” 

In November, a three-judge panel on the Eighth Circuit, one of the most conservative appellate courts in the country, affirmed that ruling in a decision authored by Eighth Circuit Judge David Stras.

If the ruling holds—the NAACP has asked the full Eighth Circuit to reconsider the decision, and an appeal to the U.S. Supreme Court is likely regardless—it would be sure to sideline a great many VRA cases. Besides the Arkansas litigation, high-profile cases last year that led to new maps in Alabama and Louisiana were brought by private plaintiffs, and would have been dismissed outright under Stras’ ruling.

The GOP has rushed to defend the holding and use it in other contexts. In December, the Republican attorneys general of twelve states (including Idaho’s Raul Labrador, Kansas’ Kris Kobach, and Texas’ Ken Paxton, all prominent far-right figures) signed on to an amicus brief asking the Fifth Circuit to take on the Eighth Circuit’s interpretation and rule against voting rights groups in the ongoing litigation around Alabama’s congressional map.

And in North Dakota, a state that falls within the Eighth Circuit, the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe successfully challenged legislative districts in 2023 for diminishing the voting power of Native voters. State officials have agreed to use a replacement map for the 2024 election but have appealed the use of the map beyond that point. And in pushing back against the ruling last month, North Dakota’s Republican Secretary of State, Michael Howe, has already invoked the same argument that private parties cannot bring suits under Section 2 of the VRA, an argument that would outright silence the legal power of the two tribes that challenged the state.

2. The conservative case that times have changed

What is the threat to the VRA?

When the Supreme Court in 2013 struck down Section 5 of the VRA, which required certain jurisdictions to seek D.O.J. approval before changing their voting procedures, Chief Justice John Roberts wrote that “things have changed dramatically” in the South since 1965.

Some conservatives want federal courts to go even further, and dramatically re-interpret Section 2 on that same basis. And Justice Brett Kavanaugh last year gave them a reason to keep trying, doing so in the very same Alabama case in which he sided with the liberal justices to otherwise save the VRA. He noted that Justice Clarence Thomas’s dissenting opinion in the case argued that “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” But Kavanaugh wrote that “Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.” The time may now be coming that’ll test Kavanaugh: Despite the massive barriers that people of color continue to face in exercising the franchise, multiple cases are working their way through the legal system in which defendants are renewing the argument that “things have changed” too much to keep enforcing Section 2.

What are the cases to watch?

Keep an eye on Milligan v. Allen, the continued litigation over Alabama’s congressional map, and Robinson v. Landry, the challenge to Louisiana’s congressional map 

Alabama this year will vote under a new congressional map that a federal court drew in late 2023 to create an additional district likely to elect a Black candidate. State officials have objected to the new map, and in so doing they’ve picked up on Kavanaugh’s argument: Alabama is asking courts to decide whether “the authority to conduct race-based redistricting extends to the present day,” regardless of its original justification. 

Louisiana officials have made a similar claim in their effort to fight court rulings that have struck down the state’s congressional maps as violating the VRA. (Louisiana adopted a new map creating a new majority-Black district this month due to a court-ordered deadline, but the litigation over that order continues.) 

Alabama has called the litigation against its original map “affirmative action in redistricting.” In 2023, the U.S. Supreme Court in 2023 struck down affirmative action in university admissions, and even though that case did not touch on voting rights, GOP officials in several states have weaponized the case to argue that the VRA is no longer applicable to the present.

In July, Louisiana officials filed a brief arguing that the affirmative action decision shows that “statutes requiring race-based classification” will “necessarily become obsolete.” They ask courts to settle “whether the facts on the ground here similarly warrant a rejection of Section 2 of the VRA, as applied, because it is no longer necessary.”

If the Fifth Circuit and the Supreme Court take the bait and say the established interpretation of Section 2 as no longer permissible, it would greatly narrow the legal space for racial discrimination claims.

It would amount to a judicial carte blanche for states to double down on discriminatory practices, except now shielded by the argument that the country is too enlightened to allow such practices.

3. Courts may shut the door to sue over statewide elections

What is the threat to the VRA?

Legal challenges often focus on how politicians have drawn districts: Have they respected the VRA in how they’ve separated or combined a state’s communities? But civil rights litigants have also contested the use of “at-large” elections, which are elections that elect the members of a body (say, a city council) throughout the jurisdiction, without the use of districts. Using this “at-large” structure for local races can prevent minority groups from electing a candidate of their choice; in some contexts, lawsuits have successfully forced counties and cities to convert their electoral system to use districts, allowing different communities to be better represented.

A case that’s percolating through the federal court system may decide whether similar lawsuits can ever be brought in the context of statewide elections. If that door is shut, it would put many government bodies whose members are elected at-large—most commonly, public utility commissions, boards of university regents, or boards of education—beyond the reach of VRA litigation.

What is the case to watch?

Keep an eye on Rose v. Raffensperger, the challenge to Georgia’s public service commission elections. 

In 2020, several Georgia voters sued over the use of statewide (“at-large”) elections for the five members of the state’s Public Service Commission, the body that regulates public utilities. They argued that a compact, Black-majority district could be created to elect a member of the Commission; a district court agreed after a trial, and ordered the state legislature to draw districts to that effect. But the state’s decision to appeal dragged out the process, leading to canceled elections. And in November, in a ruling authored by Judge Elizabeth Branch, another Trump appointee, a three-judge panel on the Eleventh Circuit reversed that decision. The panel held that the plaintiffs had not made out a sufficient claim under the VRA because their proposed remedy would “upset Georgia’s policy interests,” specifically, its “interest in maintaining its form of government.” In other words, because the Georgia legislature decided to make the Public Service Commission elected statewide, the court was obligated to respect that decision.

The ultimate resolution of this case will shape the viability of a lot of prospective litigation. This is believed to be the first case challenging the use of a statewide electoral system, so the district court’s decision had opened the door to similar challenges popping up elsewhere. If lawsuits like this can be brought against the use of statewide elections to pick members of state boards, voters may be able to target other elected state institutions whose “at large” membership is largely or all-white—Alabama’s Public Service Commission and Texas’s Railroad Commission come to mind—with the demand that they replace statewide elections with a system that providing communities of color a better opportunity to elect a member. 

If these challenges can’t be brought, however, communities of color may keep being systematically shut out with impunity.

4. The use of “coalition districts” is under threat

What is the threat to the VRA?

The VRA may compel states or localities to create districts that give voters in a racial group the opportunity to elect a candidate of their choice. In deciding whether such a district is required, federal courts assess whether a specific group’s size and voting behavior warrant such an opportunity district. But what happens when no single racial group is large enough to reach that threshold, but several do so when combined? 

In that context, some federal courts have required the creation of “coalition” districts, a practice that has boosted representation for people of color. For instance, they may consider Black and Latinx residents together to force the creation of a district in which voters would have a better shot at electing a nonwhite candidate. A case out of Texas is now threatening this practice, however. 

What are the cases to watch?

Keep an eye on Petteway v. Galveston County, the challenge to county commission districts in Galveston County, Texas. 

Following the 2020 census, Galveston County commissioners drew a new set of districts for their county commission; their map eliminated the county’s only “majority-minority” district—a coalition district in which Black and Latino voters make up a majority. Backed by conservative legal groups, the county argued during a trial last year that the VRA should not be used to protect multiracial coalitions; but a federal court sided with plaintiffs in restoring the district. Judge Jeffrey Brown, who was nominated by Trump, even wrote that the “circumstances and effect of the enacted plan were mean-spirited and egregious.”

But the conservative Fifth Circuit chose to suspend the decision until it could decide the county’s appeal, and the U.S. Supreme Court blessed that move in December over the objections of liberal justices. The appeals court made clear that it wanted to revisit its past decisions that have endorsed the use of coalition districts.

The case may hand conservative justices another shot at upending the redistricting norms, if they choose to weigh in for the first time on the permissibility of coalition districts. If coalition districts are no longer used as a remedy to racial discrimination, it may further cut the number of districts drawn to elect people of color; in racially diverse regions like Texas, it would make it harder to challenge maps that are resulting in a disproportionate number of white officials.

Some of these questions are playing out in Georgia. A federal court last year struck down the state’s congressional map, ordering an additional Black opportunity district. The legislature responded by carving up an existing coalition district and turning it into a Black majority district. The challengers have argued, unsuccessfully so far, that this is impermissible: that fixing a VRA violation cannot involve eliminating an existing coalition district.

The post Your Guide to Four Emerging Threats to the Voting Rights Act appeared first on Bolts.

This fall, Maine voters will again decide whether to scrub that exclusion from their state’s constitution, echoing the court ruling. Question 8, one of several constitutional amendments on the state’s Nov. 7 ballot, asks voters if they want to “remove a provision prohibiting a person under guardianship for reasons of mental illness from voting.”  

Maine is already closer to universal suffrage than most states. It’s one of two states, plus Washington D.C., that is approaching universal suffrage. Maine allows people to vote from prison and state law affirms the voting rights of people with intellectual disabilities, autism, and brain injuries. That makes this clause stand out—it treats mentally ill people under guardianship as second-class citizens, which is precisely why the court ruled it unconstitutional. 

“We are creating a subset of mentally ill people under guardians who can’t vote,” Democratic State Senator Craig Hickman, who spearheaded the effort to put the matter to the vote, told Bolts. Hickman, a voting rights advocate, has also been involved in other measures to remove outdated language from Maine’s constitution. “I think it’s important to ratify this amendment. [We need to] make it clear that in this state we have no reason to disenfranchise.” 

“Voting is…a fundamental right,” says Lewis Bossing, an attorney at the Bazelon Center for Mental Health Law, an organization that advocates for adults and children with mental disabilities. “We would like to see a world in which there is no competency standard for voting, because we don’t subject people generally to proving somehow that they can make a choice.”

While it may seem symbolic, the amendment in Maine highlights the patchwork and shifting landscape of voting rights for people under guardianship across the country. And it may have a material impact. The constitutional amendment, if passed, could encourage other states to examine and strike or reform their language—and Bossing notes that the American Bar Association has a recommended standard, starting with due process, for determining when someone under guardianship may lose their voting rights. Some states, such as California, have already adopted versions of this language in their code. 

While the number of people living under guardianships in the United States is unknown because there’s no formal tracking, one study this year guessed at 1.5 million, with guardians supervising some $50 billion in assets. The specifics of these legal arrangements can vary by state and by person, but typically require going to court to petition a judge for a guardianship on the grounds that someone cannot make independent decisions. Considerations for guardianships can include severe mental illness, some developmental or intellectual disabilities, and illnesses related to aging such as Alzheimer’s. 

Many states, including Texas, West Virginia, and Wyoming, have clauses in legislation or their constitutions that explicitly prohibit some people judged “incompetent” from voting, though the specifics can vary by state. Many, like Maine, have conflicting constitutional and legislative positions around voting rights for people under guardianship. Kentucky’s constitution, for example, uses outdated language to describe who shall not have the right to vote (“idiots and insane persons”), though the state’s civil code is actually protective of voting rights for those under guardianship. According to a congressional report published in 2018, nearly 10,000 people across the country lost the right to vote due to “mental incompetence”, which Bossing warns can be an overly broad category.  Though advocates say that the true number is likely much higher because reporting is not reliable. 

Maine barred people under guardianships for mental health conditions from voting until the Disability Rights Center of Maine sued on behalf of three women under guardianships who wanted to vote in the 2000 presidential election. One of them was allowed to vote in that election after successfully petitioning the local judge overseeing her guardianship. Another woman tried but was unable to vote that year after her judge denied the petition to amend her guardianship, citing the prohibition in the state constitution. The third plaintiff was unable to seek a modification to her guardianship ahead of the 2000 election because she had been hospitalized at the time.    

The federal court in Maine ruled in 2001 that it was in fact unconstitutional to deny ballot access for people under guardianships for mental illness, a violation of both the due process and equal protection clauses in the federal 14th Amendment. The state chose not to appeal the decision and legislators struck the relevant sections of the elections code. Today, the voting information page maintained by Maine’s Secretary of State affirms voting rights for people under guardianship, in alignment with the court decision and legislative changes. 

But the outdated voting restrictions have remained in Maine’s constitution since then. Scrubbing the language requires a two-thirds majority in both the state House and Senate to place an amendment on the ballot, followed by a simple majority vote in a referendum. 

“I want to excise anything that is unconstitutional,” Hickman, who led the amendment process in the legislature this year, told Bolts. “We have already removed any disenfranchisement of mentally ill people under the courts and law.” Only a handful of people testified in this year’s legislative hearing over the amendment, including Maine’s secretary of state, who noted that it would finally bring the state’s foundational legal document in line with established case law.

Bossing and other advocates for people under guardianships also argue that people who express a desire to vote should be allowed to vote, and should be provided with any accessibility accommodations they need, such as an electronic voting machine equipped for use by blind voters, plain language material for people with cognitive or intellectual disabilities, or a communication board for a developmentally disabled voter. 

But that help isn’t always available. Despite numerous federal laws protecting the right to vote privately and securely for disabled people, disabled voters report systemic access problems in every election. A 2017 U.S. Government Accountability Office report found that 83 percent of voting places surveyed had one or more accessibility barriers. Disabled voters are also harmed by restrictions on mail and early voting, poor mail ballot design, limits on who can collect and drop off ballots, and calls for hand-marked paper ballots. In a bitter twist, leveraging the Americans with Disabilities Act to close or move polling places has become a voter suppression tactic.

The conversation about voting rights for people under guardianship also connects with a larger discussion about guardianships: Some disability activists and organizations, including Bazelon, question whether they should exist at all, when alternatives that offer more autonomy are available. The supported decision-making movement, for example, presents an option where a disabled person can talk to friends, family, service providers, or others about a decision, weighing those conversations but ultimately making an independent choice. Individual disabled people decide which kinds of decisions they want help with on the basis of their own needs, and they can revisit the topic as their lives change. 

While reformers work on a state-by-state basis, there have been attempts to address the issue federally. The Accessible Voting Act of 2020 filed by U.S. Senator Bob Casey, a Pennsylvania Democrat, would have barred voting restrictions on the basis of guardianships. Under the bill, which failed that session, in order to terminate voting rights, guardians or the state must produce “a court order finding by clear and convincing evidence that the individual cannot communicate, with or without accommodations, a desire to participate in the voting process.”

In Maine, there is currently no coordinated campaign against Question 8 this year, but its proponents are concerned that voters may not understand the context of the ballot measure. “People are confused,” notes Hickman, who hopes clarifying the fact that the amendment is simply cleaning up the constitution to remove language that violates the law will help voters. In the state’s voters’ guide, Disability Rights Maine Executive Director, Kim Moody, explains the story behind the amendment, saying “that outdated provision remains part of the Maine Constitution today and should be removed.”

“People assume folks can’t make their own decisions, people must be making them for them. They think people are going to be taken advantage of,” Hickman says, describing concerns about Question 8. But, like Bossing, he believes in the capacity of disabled voters to make their own decisions, telling Bolts “you can’t disenfranchise based on a feeling.”

The post Maine Referendum Spotlights Voting Rights for People Under Guardianship  appeared first on Bolts.

Patty Durand followed a pretty typical path into local politics. She thought her representative on the Georgia Public Service Commission—the body tasked with regulating gas, electricity, and telecommunications in the state—wasn’t doing enough for ratepayers who faced mounting monthly utility bills. Durand, who worked in the energy sector, says that after meeting with her representative on the commission, Tim Echols, she became convinced that he wasn’t doing the research necessary to understand the rate increases he regularly approved for power companies. So, in July 2021, she launched a campaign to replace him in the 2022 midterms. 

“I started looking around for other candidates,” Durand said, “Then I thought, ‘Nobody’s gonna say and do what I want, I’d better just run myself.’ So that’s what I did.”

But nearly two years after Durand entered the race, no election has taken place. Her race against Echols, a Republican incumbent, was canceled last year after a federal judge ruled that the state’s system for electing utility commissioners violates the federal Voting Rights Act. Echols remains in office to this day, many months after his term was set to expire, as state appeals have continued to delay any new utility commission elections. 

A year before Durand filed as a candidate, environmental justice and voting rights advocates filed a federal lawsuit against the state challenging how representatives on the Georgia Public Service Commission (PSC) are elected in the first place. While commissioners ostensibly represent and are required to live within five distinct districts, elections for these seats are held at-large—meaning voters statewide get to weigh in on elections for each district, not just those who live there.

Brionté McCorkle, executive director of the Atlanta-based Georgia Conservation Voters, and one of the main plaintiffs in the suit, argued that this system dilutes the power of Black voters to elect the candidate of their choice, in violation of Section 2 of the Voting Rights Act. Her lawsuit, which sought district-wide voting for PSC seats and a majority-Black PSC district around the Atlanta region, cited a long history of this voting structure being used to disenfranchise Black Georgians, dating back to 1906, when commission elections were first changed to at-large by a governor who ran on an explicit platform of disenfranchising African Americans. 

McCorkle tried educating and organizing voters to make their voices heard on the utility commission, but eventually realized that this wasn’t a winning strategy for Black voters in District 3, which covers Atlanta and the surrounding metro area. The district, like the commission at large, has for the past 30 years been represented by mostly white Republican men, despite the tendency of voters in that district to support Democrats in other races.

“They don’t feel accountable to their voters,” McCorkle said. “And that’s what I started to look at. Why do they feel like they can just ignore what the people who elect them are saying they want? Then I started looking at the election structure.”

After a five-day trial last summer, a federal judge sided with the plaintiffs and ruled in August 2022 that the commission must end at-large voting for PSC representatives. Elections for two commission seats that were slated to occur in November were put on hold, including the one Durand, a Democrat who is white, was running in. By that point, however, her campaign had already been thrown into chaos—GOP lawmakers gerrymandered her out of the Athens-area district where she had sought to challenge the incumbent. 

As it has unfolded, the conflict over utility commission elections in Georgia has shone a harsh light on a government body that often goes unnoticed by voters, despite its everyday impact on their lives and budgets. The now years-long fight for equal representation on the PSC also highlights the anti-democratic lurch of these state oversight commissions, from at-large elections and gerrymandered districts diluting the voting power of minority communities to a larger trend of states removing voters from the equation in lieu of governor-appointed commissioners.     

Among other duties, PSC commissioners are tasked with regulating Georgia Power, the utility company that generates and supplies electricity to more than 2.6 million customers across the state. In addition to approving increases to the rates customers pay for their energy, the commission also has oversight over the company’s capital projects, including a $30 billion expansion to Plant Vogtle, a nuclear power plant. Since it was first approved in 2009, the expansion project has drawn widespread criticism for its exorbitant construction costs, which are then passed on to consumers, as well as potential environmental and health hazards stemming from radioactive waste. 

The power of the PSC to affect people’s everyday lives became glaringly apparent in March 2020 when commissioners responded to the COVID-19 pandemic by issuing a temporary moratorium on utility shutoffs for people who suddenly couldn’t pay their bills. But the relief was short-lived; months later, in July of that year, commissioners voted against extending the moratorium.

“They have a lot of oversight over real, kitchen-table [issues], everyday, lived experience in Georgia,” McCorkle said. “You get a ton of coverage over the Senate, and the governor, and the president, and then things like who’s actually making the decision about the power bill you have to pay every month, [people] don’t know anything about.”

Only two Black members have ever served on the commission in its entire 144-year history, both of whom were initially appointed to their seats by governors. David Burgess was both the first Black member and the last Democrat to sit on the commission, and was appointed in 1999. He won his election to retain the seat in 2000, but was defeated by a white Republican in 2006. Fitz Johnson, a Black Republican representing District 3, was appointed to the commission in 2021, after McCorkle and other activists had filed their lawsuit challenging the structure of PSC elections. 

McCorkle was joined in her lawsuit by several other Black residents of District 3, including James Woodall, then-president of the Georgia NAACP. They argued that while Black voters in the district have tried repeatedly to vote out Republican incumbents, their votes were outnumbered by white voters in the rest of the state. Black residents are indeed a voting minority in Georgia; they make up roughly 33 percent of voters across the state, and are regularly outnumbered by white voters in other statewide races. But in areas where they do have concentrated power, the plaintiffs argued, Black voters should have been able to elect the candidate of their choice, but were unable to do so because of at-large elections. During the trial, the court heard from Lindy Miller, a Democrat who ran for the District 3 seat the last time it went on the general election ballot in 2018 and lost despite winning a majority of votes in her district. 

“It’s not about partisanship, we’re upset because the preferred candidate of Black voters can’t win, regardless of who that preferred candidate is,” McCorkle said. “It doesn’t matter if it’s a Democrat, if it’s a Libertarian, [these voters] just don’t want the incumbent who has been approving bill increases to stay in that seat. What we’ve seen is that the preferred candidate cannot win in this election structure because of the vote dilution effect of the voters in the other parts of the state.”

In early 2022, while the lawsuit from activists was still winding through the courts, Georgia lawmakers redrew the PSC district lines to ensure the commission would retain a GOP supermajority even if federal judges forced the state to end at-large voting.

McCorkle says the gerrymandering was a direct response to their lawsuit. 

“[The redistricting committee] admitted that they were concerned about our ability to win this case,” she told Bolts. “So they drew these new districts intentionally to make one district less competitive and better for Republicans. It was just case-in-point gerrymandering.”

Lawmakers also gerrymandered the maps to target one candidate in particular: Durand, who was drawn out of the district she had been campaigning for. She then filed her own lawsuit against the secretary of state appealing her disqualification from the ballot, and evidence in the case revealed PSC commissioners—including Echols, whom she was campaigning against—had colluded to draw her out of the district. (While PSC elections were at-large, they still required members to file and live in certain districts). A state court judge sided with Durand and allowed her to remain on the ballot for the seat, writing in her ruling, “The record here contains substantial evidence that District 2 was drawn to exclude Ms. Durand, specifically, as a candidate.” 

The win was short-lived: Hours later, on the same day as that state court ruling allowing Durand to stay on the ballot, the U.S. Supreme Court upheld a separate federal court ruling in favor of McCorkle’s lawsuit challenging at-large districts, which blocked those races from appearing on the midterm election ballot.

The state immediately filed an emergency injunction, pending an appeal, to try to get the PSC races back on the November ballot, but then backtracked. Since then, no election has been held for the District 2 and 3 seats, whose representatives continue to make decisions on the commission despite being elected to terms that were supposed to end in January 2023. The episode adds to the list of canceled elections that Georgia has experienced in recent years. 

“We’ve just been in a gray area,” McCorkle said. “And the way that the statute was written that created the public service commission races, it says the commissioners are allowed to serve until their successor is elected. So that means these folks are just sitting in these seats—basically squatting.” 

Durand, who wasn’t able to run in November, has a similarly ambivalent feeling about how things turned out. 

“At first I was really furious because I’d been running my campaign for so long, we’d been working so hard, we were 80 days away from the vote,” Durand said. She says she was hoping to capture many of the voters who turned out for Stacey Abrams in the gubernatorial race, but realized once Abrams lost, she likely would have too. 

“The tiny silver lining is that I get to run again.” 

The federal court ruling blocking at-large elections for Georgia’s utility commission was groundbreaking for applying an argument about vote dilution to a statewide elected body as opposed to smaller jurisdictions like cities or townships, where such voting rights battles more commonly occur. 

But barriers to equal representation and democratic access around regulatory oversight bodies are hardly isolated to Georgia. In 2020, New Mexico voters amended its constitution to switch its public utility commission from an elected body to a governor-appointed one, eliminating a majority-Native district that routinely elected Native representatives to the public utility commission. (Several Native nonprofits later sued over the change, but the New Mexico Supreme Court ruled against them.) 

New Mexico follows a larger trend of states moving away from elected public utility commissions, which have slowly disappeared over the past century, according to research by legal scholar and frequent Bolts contributor Quinn Yeargain. Today, just 11 states have elected public utility commissions, down from roughly half of states at the start of the 20th century. Among these states with elected commissions, representing roughly 66 million Americans, most elections occur statewide. But where districts do exist, they are regularly subjected to gerrymandering without much legal pushback, according to Yeargain––often flying under the radar of legislators, activists, and everyday voters. For example, Democratic lawmakers in Montana objected to newly-drawn utility commission districts that heavily favor Republicans, but the map ultimately passed the legislature this past April. 

All of this has meant that, even when elected, commissioners often serve the interests of the companies they’re meant to regulate, says Caroline Spears, executive director of Climate Cabinet Action, and advocacy group that supports political candidates based on their climate action policies. 

“Usually the biggest and sometimes only funder of these races are the utilities that they regulate directly,” Spears said. “The ability of utility [companies] to put a bunch of money into politics, and then recoup all of their costs by just charging their ratepayers for it—it’s just really an unlimited pot of money. And that ability is alive and well whether the public service commission is elected or not.” 

Because these commissions have such direct control over the way energy companies conduct their business, many aggressively lobby commissioners—as well as the politicians who appoint them—to achieve their desired policy outcome, from approving major capital expenditures for new projects to continuing to invest in fossil fuels like coal and natural gas over clean energy technologies like wind and solar.  

“From a climate and clean energy perspective, public utility commissions couldn’t be more important,” Spears said. “They can set 100 percent clean energy goals and decide how much, and how fast, clean energy like solar and wind are added to the grid. When monopoly utilities try to block wind and solar, we need our public utility commissioners to fight back and build the clean energy economy of the future, not squash the market.” 

In Georgia, this has all come to a head in the debate over the expansion of Plant Vogtle, which is currently $17 billion over budget and seven years behind schedule. The ballooning costs have meant that Georgia Power ratepayers have already paid an additional $913 in advance charges, and are expected to see $3.78 added to their monthly power bills once the plant is up and running, although recent estimates conducted by PSC staff put that additional monthly cost much higher at $17.20 per month for the first five years of the plant’s operation. Still existing commissioners, including Echols, who has been shown to have ties to energy industry execs, have maintained their support for the expansion plans. 

Such critical decisions are a major reason why Durand, McCorkle, and others feel an urgency to hold new PSC elections. Echols and Johnson, the District 2 and 3 incumbents who were supposed to face challengers at the ballot box last year, can remain active and voting members on the commission until a final ruling in the lawsuit McCorkle filed three years ago, which is currently pending at the 11th U.S Circuit Court of Appeals.

“There are serious public policy implications of two commissioners voting on billions of dollars of rate increases whose terms expired,” Durand said. “Echols and Johnson should not be voting.”

Observers believe that the ultimate decision in the lawsuit over at-large PSC elections could be influenced by the Supreme Court’s June 8 ruling in Allen v. Milligan, when the court surprised many by upholding a key section of the Voting Rights Act and striking down racially gerrymandered district maps in Alabama. McCorkle hopes this precedent will soon lead to an appeals court ruling supporting their case. But even then, further appeals, possibly even to the Supreme Court, could take years to fully resolve, says Bryan L. Sells, the lead lawyer for the plaintiffs.

“There’s a really good chance that whichever way the 11th Circuit panel rules, the losing side will try to seek further review,” Sells said. “These cases take forever.”

In the meantime, the path forward for PSC elections isn’t clear either.  

“If there is a new election, are there new rules? Old rules? Do we get new districts? What is the new structure gonna be if we do get the ruling upheld?” McCorkle said. “It’s just an endless flow chart of possibilities at this point.”

Theoretically, there is nothing stopping the Georgia legislature from redesigning the races according to the original federal district court ruling, but they have not taken any action while the appeal is pending. So for now, the elections remain in limbo. 

Even though this effort to make the PSC elections more fair in the long run has had the effect—for now—of halting them entirely, McCorkle has no regrets. She sees this fight over one arcane corner of government as part of a larger continuum, extending from Black voters in Georgia’s past fighting for equal rights and representation to a younger generation of voters fighting for sustainable energy in a rapidly changing climate. 

“It’s all very deeply connected. Because who’s hurt? It’s this more diverse wave of voters and younger voters who are inheriting the country and the planet,” McCorckle said. “Because we’re inheriting it, we have a greater stake in it. We should be able to exercise our right to elect leaders who we think will do the right thing.”

Correction: An earlier version of this story misstated the year the commission first approved the Plant Vogtle expansion. This story has also been updated with a PSC estimate of added monthly costs due to the expansion.

The post Canceled Elections Leave Georgia’s Utility Commission in Anti-Democratic Limbo appeared first on Bolts.

Known as the independent state legislature doctrine, the theory claims that the Elections Clause of the U.S. Constitution grants state legislatures near-total authority to regulate federal elections and draw congressional districts, and that no other institution can check them. Had justices embraced the doctrine, it could have drastically curtailed if not eliminated the ability of state courts to thwart lawmakers looking to suppress votes, gerrymander election maps, and subvert election results. It could even have sidelined governors, independent redistricting commissions, and other state officials from overseeing federal elections.

Instead, writing for a majority of six justices, Chief Justice John Roberts rejected the theory. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” he wrote in a decision that’s largely focused on the power of state courts.

Roberts was joined by the court’s three liberal members, Justices Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor, as well by Justices Amy Barrett and Brett Kavanaugh. Three conservative justices dissented. 

Tuesday’s decision keeps alive high-stakes litigation challenging gerrymanders and onerous voting requirements in state courts, such as a lawsuit challenging Wisconsin’s congressional map that is expected to be filed once the state supreme court flips to a liberal majority this summer. Given the conservative bent of the federal bench, civil rights litigants have increasingly turned to state courts on all sorts of matters from abortion rights to criminal justice; an adverse ruling in this case could have gutted that strategy on voting rights.

Stuart Naifeh, manager of the Legal Defense Fund’s Redistricting Project, stressed his relief that his organization will be able to continue litigation on issues they cannot bring in federal courts. “The Supreme Court has affirmed that state courts are not barred from addressing critical issues, like partisan gerrymandering, which the Supreme Court held in 2019 that it did not have jurisdiction to consider,” he said in a statement, alluding to a ruling, also authored by Roberts, that partisan gerrymandering claims in particular cannot be brought in federal court. 

He added, “By rejecting ISL theory, the Supreme Court has set an important precedent that state courts retain the authority to prevent suppression and protect their citizens from disenfranchisement.”

Still, Tuesday’s ruling came with a caveat whose full ramifications may not be known until 2024, if not later. 

The fifth section of Roberts’ opinion stresses that the authority of state courts authority is not unlimited when it comes to regulating federal elections, and that the U.S. Supreme Court has an “obligation” to intervene to ensure that state courts do not “transgress the ordinary bounds of judicial review.” This language is vague as to how the justices will test this criteria, and when they might intervene. But in a break with usual practice, it hints that they may be more aggressive going forward in policing how state courts interpret their own state’s laws and constitutions.

In light of the right’s dominance on the federal bench, this caveat could end up undermining state courts as a fruitful alternative for voting rights litigation after all. And with the 2024 presidential election just around the corner, it is also creating new uncertainty for future election cases. One election law expert labeled it a potential “time bomb.”

The independent state legislature doctrine arose for the first time in recent memory in the litigation over the 2000 presidential election, but the doctrine’s visibility in conservative legal circles grew as state courts asserted a greater role in combating partisan gerrymandering, as well as in the aftermath of the 2020 election.

In late 2020, several GOP-led states asked the U.S. Supreme Court to block the certification of some states’ election results to help Donald Trump overturn his loss to Joe Biden. They argued that changes ordered by state courts in places like Pennsylvania, for example, had violated the U.S. Constitution because the authority to order those changes should have been reserved for lawmakers. This legal effort failed but some conservatives remained intent on further testing the doctrine.

When the North Carolina Supreme Court in 2022 struck down a congressional map approved by the state legislature as an illegal gerrymander, state Republicans invoked the independent state legislature theory and appealed to the U.S. Supreme Court. Voting rights advocates grew alarmed when it agreed to hear the case.

The federal court heard Moore vs. Harper in December, just weeks after control of the North Carolina’s supreme court flipped from a liberal to a conservative majority in the midterms, and the new court in early 2023 overturned the earlier rulings striking down the state’s congressional map. Some court observers thought that the U.S. Supreme Court may use this as an opportunity to declare the case moot, deferring the showdown over the independent state legislature theory to a future date.

But the 6–3 majority determined that the case wasn’t moot and proceeded to rule on the merits. Writing for the majority, Roberts pointed to a long string of precedents in which the U.S. Supreme Court has held that state legislatures’ power under the Elections Clause isn’t absolute.  In the past century, Roberts detailed, the court has greenlit many instances in which the rules of federal elections have been set by actors other than state lawmakers. Those include voters using ballot initiatives to reject a redistricting proposal, a governor vetoing a map, and independent redistricting commissions drawing new congressional lines.

Roberts’s defense of independent redistricting commissions is especially striking since he wrote a vocal dissent in the 2015 case that tested their constitutionality. Roberts castigated Justice Ruth Bader Ginsburg’s majority opinion in that case as “perform[ing] a magic trick,” and many thought the decision was under threat of being reversed. But on Tuesday Roberts seemed to have changed his tune and approvingly cited Ginsburg’s opinion.

Justice Clarence Thomas, joined by Justice Neil Gorsuch and only in part by Justice Samuel Alito, dissented on Tuesday. He argued the case should have been dismissed as moot but he also made a case for the doctrine on the merits. State constitutions, he wrote, “cannot control what substantive laws can be made for federal elections.”

Despite North Carolina Republicans’ failure to get their arguments upheld, Tuesday’s ruling brings no relief to the original plaintiffs who had challenged the GOP’s gerrymander. The new Republican majority on that state’s supreme court has given lawmakers there a virtual carte blanche in how they redraw maps, and the GOP is now widely expected to adopt a brutal gerrymander that could give them as many as four new congressional seats in 2024.

Moreover, many voting rights lawyers and election law experts are now expressing nervousness about Part V of Roberts’ opinion: This is the section that defies the typical deference that federal courts have shown to state court decisions that are grounded on that state’s own statutes and constitution. It carves out an exception to that general practice when it comes to federal election cases. 

The U.S. Supreme Court can always receive appeals of state supreme courts decisions, but its typical practice is to not review the validity of rulings that are focused on state texts. Moore vs. Harper tweaks that approach. Citing the unusual opinion overruling the Florida Supreme Court in Bush v. Gore (this is the first time ever that a majority opinion has cited that case), Roberts’ majority opinion hints that his court will keep a more watchful eye on state judges.

The chief justice nods toward a soft version of the independent state legislature theory. “State courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections,” he writes. “The Elections Clause expressly vests power to carry out its provisions in ‘the Legislature’ of each State, a deliberate choice that this Court must respect.”

In practice, there is no way of fully anticipating what this means for future decisions, and whether the U.S. Supreme Court will step in only for extraordinarily rare cases or more frequently, until those cases arise. “The Court makes clear that it is not providing any standard at all—even an attempt at a standard—as to what this means concretely,” Rick Pildes, a professor at New York University School of Law, wrote on Tuesday.  

The concern is that this ruling may give the conservative majority on the U.S. Supreme Court more room to second guess state supreme courts—and that this will be tested in the cases that are bound to arise in the midst of the crucible of the upcoming presidential election. Moore vs. Harper, writes Rick Hasen, a professor at the UCLA School of Law, “is going to potentially allow for a second bite at the apple in cases involving the outcome of presidential elections.”

Still, the U.S. Supreme Court’s rejected voting rights organizations’ worst fears, and these groups largely celebrated Tuesday’s ruling. This was their second court victory this month, after a decision earlier this month that salvaged what’s left of the Voting Rights Act. 

Both cases could have thrown a major wrench into how U.S. elections are run but a majority of justices chose to mostly uphold the status quo. 

“This is the second time this month that the Supreme Court has ruled in favor of protecting our democracy through voting rights,” Maya Wiley, president of The Leadership Conference on Civil and Human Rights, which filed an amicus brief in this case, said in a statement. “We will continue the fight to ensure all of us can participate in our democracy and hold accountable the elected officials who abuse their power.”

The post Supreme Court Refuses to Empower State Legislatures to Run Elections as They Please appeared first on Bolts.

The case asked whether the congressional map Alabama adopted in 2021 is an impermissible racial gerrymander. After the legislature drew just one majority-Black district out of seven in a state that is roughly 25 percent Black, a lawsuit filed by voting rights groups argued that this violated section 2 of the VRA. A trial court sided with plaintiffs, but in early 2022, the Supreme Court stayed that ruling, let the state use the map for the midterms, and granted a review of the case. For voting rights advocates, the risk went beyond the court preserving Alabama’s map: they feared its ultra-conservative majority may render Section 2 altogether moot. 

Instead, the court on Thursday issued a reprieve for the VRA. In a 5-4 ruling authored by Roberts—joined by Justice Katanji Brown Jackson, Sonia Sotomayor, Elena Kagan, as well as Brett Kavanaugh—the court reaffirmed Section 2 and used it to strike down Alabama’s map. The state now has to create a new district that will be likely to elect a Black Democrat, an outcome that may trigger similar results elsewhere in the South, starting in Louisiana. 

Voting rights advocates breathed a sigh of relief at the surprise outcome, thrilled to see the VRA survive.

“I was completely floored,” Ruth Greenwood, who coordinated an amicus brief on behalf of the plaintiffs as director of Harvard Law School’s election law clinic, told me of her initial reaction. “It’s not just a win for the plaintiffs, it’s a full-throated defense of the way the Voting Rights Act has been applied to redistricting. It’s pretty fantastic.” 

But they also remained wary as they cheered, warning that by chipping away at the VRA and other voting rights tools for years, the court has left them shadows of their old selves. The decision on Thursday does nothing to revive Section 5 of the VRA, which forced certain jurisdictions with a history of racist voter suppression to seek preclearance from the Department of Justice before drawing new lines or making other changes to their voting rules; absent that requirement, litigation often drags on for years after harmful changes are already into place.

“I view this outcome as a victory, but it’s a victory in the context of profound losses that still need to be addressed,” says Justin Levitt, a law professor at Loyola who is deeply experienced in redistricting litigation. Levitt worked at the DOJ at the tail end of the Obama administration and at the White House as a voting rights adviser in the early stages of Joe Biden’s presidency. 

I talked to Levitt hours after the court’s ruling Thursday to break down Allen v. Milligan, racial gerrymanders, how Section 2 has been applied—and how it will be applied going forward.

In an extensive conversation, Levitt laid out conflicting emotions—calling the ruling a “status quo decision” that largely sticks to long-established precedent but also explaining why, in an era of dominant conservative jurisprudence, that alone feels momentous.

Most court observers expected the court to further gut the VRA. How surprised are you by this ruling?

I’m very happily surprised. And the reason for the surprise isn’t a knee-jerk reaction to the justices’ conservative disposition—this is a very conservative court, and it remains a very conservative court even after today. 

I’m surprised because this court has not been particularly friendly to voting rights, particularly voting rights in the racial justice sphere, particularly the Voting Rights Act. I’m surprised because the chief in particular has expressed hostility to some basic tenets of the Voting Rights Act, including in opinions, including going back to his time at the justice department. And I’m surprised because, in the lead up to this case, a trial court gave an A-plus reading of existing precedent, and the Supreme Court in January of 2022 stayed that; that led to an expectation that the court was prepared to upend an awful lot of settled precedent. So all of the evidence leading up to this case pointed to the potential for a very bad ruling.

Let’s start with the basics: The court said Alabama’s congressional map violated Section 2 of the VRA. What’s the history of Section 2, and how does it assess such a map? 

In 1982, Section 2 of the VRA was amended to say that maps with a discriminatory effect would be illegal. In a 1986 case, Thornburg vs Gingles, the court clarified what that would mean in practice: there would be a number of things the plaintiffs have to prove in order to make a successful case. 

Condition one: The minority group or groups have to be big enough to be a majority in a single member district; if they’re not, that shows that the way the lines are drawn isn’t the thing keeping minority voters from political power. 

The second thing you have to show is that there’s a difference in the way minority voters vote.  The VRA doesn’t assume that, for example, Black voters and white voters are going to vote differently; but if you can prove that they vote differently, and that districts are aligned such that they lose most of the time, then that’s a potential problem. 

The third thing you have to prove is that there’s a tie-in to discrimination; it’s not just dumb luck. This does not have to find a specific intent with respect to the lines: It can be discrimination elsewhere in the social or electoral structure that leaves minority voters at a disadvantage. The easiest way to see it is in literacy tests in the original VRA: It’s obvious if you keep a segment of population from being able to read and write, and then you design a voting rule that says you got to be able to read and write in order to participate, that the earlier discrimination feeds the later problem. The VRA is meant to break down these distinctions; if you have discrimination, and you have an electoral process that turns that discrimination into electoral loss of power, then you’ve got to fix the electoral loss power.

Many voting rights advocates worried that this case would obliterate the test you just laid out, but it did not. How would you describe the ruling’s significance?

The significance of today’s case is that it reaffirmed that, yes, this is how we do VRA cases.  The stakes were that the supreme court could have changed the rules entirely; Alabama was asking the Supreme Court to change the rules in really radical ways—and the court said no. 

The court didn’t make it any easier to win voting rights cases. It just declined to make it much, much, much, much, much, much harder. This is a status quo decision. 

Don’t get me wrong, I’m very excited by today’s result, and I think voting rights activists are very excited by today’s results. But it’s a measure of the fetal position we find ourselves in as voting rights advocates that the court just doing its job gets us excited. The fact that the court didn’t blow up the entire structure, and the fact that that’s cause for celebration, shows you a little bit about how far the window has moved.

When it comes to those radical claims Alabama made in the case, what worried you the most going into the ruling? What changes are you most relieved to avoid?

There were so many. Alabama threw a bunch of grenades out on the ground, and the supreme court just declined to pull any of the pins. The theories that Alabama was putting forward would have radically changed the construction of the VRA across the board, and it shows how much the Overton window has shifted that people took Alabama seriously. 

One of the things they claimed is that you need to show an intent [to discriminate], and not just effect; and that discrimination is the sole reason for the map looking like it did, not just one of the reasons. That’s a radical revision, not just of voting rights law, but of racial discrimination law generally—and of law on any discrimination. Alabama also argued that Section 2 of the VRA doesn’t apply to redistricting at all, which is patent nonsense. 

This was first and foremost a case about Alabama’s map. So how did the court test it against Section 2, and what’s next for redistricting there?

The case in Alabama was whether there should have been a second congressional district drawn in Alabama responsive to Black voters there. Alabama said there should only be one; litigants said at this point there should be two.

So the way in which [the Gingles test] cashes out in Alabama: Condition one, there are enough minority voters to form a reasonable second congressional district responsive to the minority vote. Condition two, voting is exceedingly polarized by race. And is there a tie-in to discrimination? Yes, unfortunately, Alabama shows not only the lingering impacts of past discrimination, but present age discrimination that helps you understand why the loss of minority political power is not just happenstance. 

So it requires a second district that responds to minority voters. 

The trial court didn’t say you have to draw a district exactly here. It said to the legislature to go back and fix it. The legislature gets first shot, and the trial court will be watching very carefully.

Alabama’s map was adopted two years ago and was used in the midterms last year. How do you address the challenge that litigation takes so long that illegal maps are in place for years no matter the final outcome?

Voting cases are different because you can’t fix the damage afterwards. Discriminatory elections have consequences: They’re taking place, and they’re discriminatory, and that means that laws are being put in place and executive actions are being instituted in ways that are not legitimate. The other thing is that VRA cases are hard and complicated; they would take years even if the defendants weren’t fighting like crazy, and they’re often fighting like crazy

That’s why it was so important to have the preclearance regime of Section 5: That stopped the problem before it took effect. And since the Shelby County decision, absent action from Congress, that’s just gone. Folks are right to be frustrated, even with today’s decision.

The supreme court stayed the trial court’s decision against the map in early 2022, saying that it was too close to the election to change it. Could that happen again? Could litigation over a new map drawn by lawmakers drag on for so long that 2024 is held under other illegal lines?

Theoretically yes, because people in robes do what people in robes want to do. So could it happen? Sure.

But I think that’s extremely unlikely. The trial court was very careful in its original opinion, and there’s no shortage of attention now that the Alabama voters were due a map last cycle and they had to sit through an election that was discriminatory. The supreme court has now said the trial court was right, and the trial court is likely to give the legislature a real shot but it is also extremely likely to monitor the legislature’s work very carefully and demand proof that its new math satisfies the VRA and remedies the problem. I think that if the legislature engages in bad faith, particularly in drawing a map that does not fix the problem, the court will step in.

I’d like to look beyond Alabama to what the ruling signal for future cases. For one, there’s similar litigation in Louisiana and speculation of a broader domino effect in the South. What does this decision mean for other states?

I think of Louisiana as the next map standing, the one most directly related, and this will help the litigants in Louisiana proceed in a much more straightforward analysis of the Voting Rights Act than people were expecting. I don’t think it’s far to assume Louisiana is going to fall. There are also pending challenges in Georgia and in Texas, a somewhat related case in Florida (though it’s under the state constitution). So there are certainly other cases in the pipeline. 

You’ve referred to the decision as preserving the status quo. But is there any small way in which it makes it harder or easier for future lawsuits to meet the Gingles test?

It’s mostly the same. There are little caveats in the opinion, caveats that were there in the law before, little pieces that I’m sure states will use to fight back against VRA claims; I don’t think any of them are new, they may be slightly differently phrased.

What’s an example of such a caveat?

The court emphasized VRA cases are hard. The chief said, look, this isn’t that many districts we’re talking about and you don’t have to worry about proportionality because no state has proportional representation for its communities of color. That’s a pretty big societal red flag, to not worry communities of color are represented consistent with their numbers in the population. And that also jumped out at me as recognizing the limitations of litigation under the VRA as currently construed; the court’s not saying you should bring and win a whole bunch of cases.

Justice Kavanaugh, a decisive fifth vote in the case, wrote a concurrence that qualifies some of the majority opinion; he states that race-based redistricting cannot “extend indefinitely.” Does that concern you, as to what it means for this future pipeline?

No. I mean, his concurrence reflects some wishy-washiness, but that wishy-washiness is all over the rest of his jurisprudence. This is a majority that surprised people because it’s a majority that most people were not counting on in VRA cases, and I think the skepticism leading up to today is still warranted for cases tomorrow.

Throughout our conversation, you’ve warned that the situation remains precarious for VRA litigation no matter today’s decision. Taking a step back, how would you assess the health of that law at this juncture—to what extent has it become a shadow of itself?

It’s part of why we’re in the fetal position. There’s absolutely no question that the VRA remains one of the crown jewels of the civil rights movement and that it is still one of the most powerful tools there is. And also, in its current state, it is nowhere near enough. Shelby County was a huge blow; the Brnovich decision made all Section 2 cases harder; and there have been a number of smaller decisions that have also made cases harder to prove and harder to win. 

It’s part of why, like others, I view this outcome as a victory. But it’s a victory in the context of profound losses that still need to be addressed.

It’s part of why there was such a strong emphasis on restoring the Voting Rights Act in the John Lewis Voting Rights Restoration Act. To secure real justice, it still has to be a priority. You really need Congress to step in to set national rules. 

The interview has been edited for length and clarity.

The post Surprise After Supreme Court Saves What’s Left of the Voting Rights Act appeared first on Bolts.

But that didn’t stop Arkansas Republicans, who this month pushed through those same stricter ballot measure rules that voters rebuffed in 2020. This time, lawmakers simply packaged their proposal into a regular bill, which sidesteps another referendum to amend the state constitution, and Republican Governor Sarah Huckabee Sanders signed it into law on March 7.

“I think the ultimate goal is to make it harder for citizens to challenge what their government does,” Senator Bryan King, who opposed House Bill 1419, told Bolts. 

King is a Republican, one of three GOP lawmakers (out of 111) who joined Democrats in voting against the bill. Days later, King filed a lawsuit to block it alongside the League of Women Voters of Arkansas, an organization that defends voting rights in the state. Their complaint argues that HB 1419 violates the rules for the ballot initiative process that are laid out in detail in the state constitution. 

“We see this bill as an attack on direct democracy in Arkansas,” says Bonnie Miller, the league’s president. “To have them go into session, pass this bill because they lost, and just say, ‘We know that you didn’t want this, that you don’t want us to restrict the process, but we’re just gonna do it anyway’—it’s ridiculous,” she added.

Currently, organizers must collect signatures from no less than 15 of the state’s 75 counties, a requirement embedded in the state constitution. The 2020 proposal that voters rejected would have increased that threshold to 45 counties. HB 1419 increases it to 50 counties. This will require organizers to set up robust signature gathering operations across most of the state, significantly raising the amount of money and resources that citizen groups need to get an initiative on the ballot. 

“Even collecting signatures in 15 counties is wildly expensive, and so for them to increase the number of counties to 50, it’s going to shut out groups like ours,” says Miller. “We’re not going to be able to afford to do this.” 

David Crouch, an Arkansas attorney who helped jumpstart several initiatives like the successful 2014 medical marijuana measure, and who is now the lead counsel in the lawsuit against HB 1419, agrees. “The grassroots people are going to be screwed,” he said.

HB 1419 is part of a broader nationwide effort by Republican politicians to undercut ballot initiatives. The Ballot Initiative Strategy Center has identified many such bills in recent years; when submitted to voters, like in South Dakota last spring, these changes are often defeated by dramatic margins. But the GOP has also pushed through bills to make the process of qualifying initiatives far more impractical, including imposing more onerous requirements for the geographic distribution of signatures gathered, which is the template that HB 1419 emulates. 

Most recently, Oklahoma’s governor chose to schedule a citizen-initiated referendum to legalize recreational weed in an unusual standalone special election, dampening turnout. The day after the measure lost, on March 8, Oklahoma’s GOP-run state Senate passed a bill that would make it easier to invalidate signatures in the future by mandating that voters use their full legal name when signing a petition (any misspellings, nicknames, or other deviations from a government ID could nullify their signatures). The bill now sits in the Oklahoma House. 

Even in this national context, the law Arkansas Republicans passed this month stands out for recycling a proposal that voters just recently rejected. But crafting HB 1419 as a regular bill to sidestep voter opposition only works as a legal maneuver if its changes to the ballot initiative process don’t require revising the constitution. 

To the bill’s critics, the fact that the state GOP first tried to change the signature requirements for ballot measures with a constitutional amendment in 2020 was acknowledgment that their proposal required one, and that an ordinary statute wouldn’t do. In fact, Republicans initially rebounded from their 2020 failure by drafting yet another constitutional amendment, one that would have forced future initiatives to receive 60 percent of the vote at the polls, rather than 50. Arkansans again rejected that measure overwhelmingly in November 2022, by 18 percentage points. 

David McAvoy, a progressive advocate who chaired the group Protect AR Voices when it helped fight off the 2020 amendment, is livid that the state is ignoring those repeat election results and calls the new law an unconstitutional “power grab.”

“They tried amending the constitution,” McAvoy says, “and now that the voters have rejected those attempts, they’re just saying, ‘Well, we’re just going to forget what the constitution says and just do whatever we want.’” 

The lawsuit against HB 1419 argues specifically that its requirements contradict those in the state constitution’s Article 5, which is the section that regulates the initiative process, and that lawmakers therefore needed to craft their proposal as a constitutional amendment like they did in 2020.

Article 5 states that an initiative must gather signatures “in at least 15 counties.” The lawsuit argues that this constitutional stipulation bars the legislature from passing a law requiring a higher threshold. The bill’s proponents have said this language merely sets “a floor” that lawmakers can raise. Crouch said in an interview that the words “at least” do not authorize lawmakers to  raise the threshold because those words needed to be there to clarify that organizers don’t need to pursue signatures from exactly 15 counties. (Case in point: Republicans deployed the same phrasing in HB 1419, which requires signatures from “at least 50 counties.”)

Crouch also points to Article 5’s final clause, which lays out what the legislature is allowed to do when it comes to toying with the rules: “All its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation. No legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the people.” For Crouch, HB 1419 plainly violates these bounds because raising the county threshold from 15 to 50 restricts the ballot initiative process.

“You can’t change the constitution with a bill,” Crouch said. “Facilitate means facilitate, and 15 means 15 and not 50.”

The chief sponsor of HB 1419, Representative Kendon Underwood, did not reply to a request for comment. 

Other Republicans who supported the change say the law will ensure that rural voters are heard. A spokesperson for the governor said Sanders signed the bill because she “wants to ensure all Arkansans, especially rural residents, have a voice in this process.” But King, who represents a Northwest Arkansas district, rejects that argument. “I’m a rural guy through and through, I represent rural counties,” he told Bolts. “This is making it harder for the citizens.”

HB 1419 poses a particular challenge to progressive proposals because Democratic-leaning counties tend to be more populous. Until now, progressive organizers needed to spread their work across 15 counties, and Joe Biden received 35 percent in Arkansas’s 15th bluest county in 2020; that’s nearly identical to his statewide result. But once they need 50 counties, they’ll have to find allies in far more conservative territory than even the state as a whole; Biden received just 20 percent of the vote in the state’s 50th bluest county.

The legislature added an “emergency” clause in HB 1419, so the changes take effect immediately. If upheld, it will affect several efforts that state advocates say are already in the works for 2024, such as the rerun of a 2020 proposal to implement an all-party primary coupled with ranked-choice voting—an initiative akin to what Alaska implemented last year. The proposal was set to make the ballot in 2020 but the Arkansas supreme court blocked it over its strict interpretation of a background-check requirement for canvassers gathering signatures. 

The fate of HB 1419 will also eventually come down to the state supreme court. In last year’s election, conservatives in Arkansas tried to push the state supreme court further to the right by targeting two justices who have a moderate reputation. Both incumbents secured re-election, though, and are likely to be on the court if it hears the case against the new law or any other restrictions, as the legislature could still escalate its war on direct democracy in the remainder of the session. 

On March 10, three days after HB 1419 was signed into law, Republican Representative David Ray filed HB 1601, a new proposal that would require that the canvassers who are hired by organizations to collect signatures first obtain a special license. The bill would ratchet up the costs and bureaucracy associated with the process, just as HB 1419 has required organizations to hire significantly more canvassers given they’ll need to spread in many more counties.

Crouch expects even more attacks on ballot initiatives. “They just feel like they are in power to do whatever they want to do,” he said. “They don’t care anything about the constitution, unless it’s a gun.”

The post “An Attack on Direct Democracy in Arkansas”  appeared first on Bolts.

The Howard R. Young Correctional Institution sits between a creek and Interstate 495 in Wilmington, Delaware. For the last ten years, the prison’s 1,281 residents were counted as constituents of Wilmington’s third city council district.

But when local officials sat down to redraw Wilmington’s city council lines after the 2020 Census, they took a new approach: They counted people in the prison at their last known address in Wilmington—and didn’t count them at all if they hadn’t lived in the city.

“Counting people where they are incarcerated during redistricting, it distorts our system of representative government,” said Wilmington Councilmember Shané Darby, who pushed for the change.

Several states, and a growing number of cities and counties across the U.S., have adopted this reform. They’re seeking to end prison gerrymandering—the term advocates use for counting incarcerated people at the facility where they’re locked up, rather than in their home community. The practice typically dilutes the power of urban areas and communities of color, which see higher rates of incarceration, and at their expense boosts white and rural areas where most prisons are located.

But prison gerrymandering affects more than the representation cities receive in statehouses and Congress, where the issue has drawn significant attention. It also distorts representation within a city, affecting the boundaries that define politics at the local level.

That’s the case in Wilmington, Delaware’s most populous city and one where Black residents make up a majority. The city also has the highest rate of incarceration in the state. And not only does a state prison sit within city limits, Wilmington is also home to a facility for people in substance abuse treatment programs and on work release, which itself has about 150 residents.

Delaware passed a law in 2010 ending prison gerrymandering in state legislative maps—but not in maps for municipal or county governments. That left it up to city and county officials to decide whether to do the same for their local districts. 

Predictably, different places made different choices. Now, for the rest of the decade, people in this state will be governed by local maps that follow conflicting standards. This idiosyncrasy extends to several other states, with local officials’ choices on prison gerrymandering typically receiving little scrutiny.

In Wilmington, Darby and other officials voted to follow in the state’s footsteps in September 2021. Darby said the approach was designed to better reflect the city.

“When you divide up communities, you diminish their power and their voice,” she said.

In the city’s third district, that meant subtracting the 1,281 residents at the prison from its population count. But it also required adding back 281 residents of the district who were incarcerated around Delaware—some at the prison in Wilmington, but many in other parts of the state.

Wilmington’s third district, on the city’s east side, had the highest share of Black residents of any of its eight council districts as well as the largest number of residents who are incarcerated in Delaware. Several census tracts within the district have lower median incomes than the city as a whole.

The new approach to map-drawing left Wilmington’s third district with fewer residents than under the old formula. So the committee shifted its boundaries, adding several downtown blocks to ensure it had a population in line with other districts.

The end to prison gerrymandering enjoyed wide support among the politicians redrawing the lines in town.

The city finalized its maps in December 2021, and voters will cast ballots in the new districts for the first time in 2024. Separately, the city council adopted a measure sponsored by Darby to continue drawing maps this way in future cycles of redistricting.

“I was glad that we were able to count folks back in their home district and not overinflate the population of the district that has the facility,” said Dwayne Bensing, legal director of the ACLU of Delaware. In a newspaper editorial, Bensing wrote that Wilmington “avoided a prison gerrymandering fiasco.”

He told the Center for Public Integrity and Bolts that the redrawn districts weren’t likely to lead to huge political changes in the city, but in Wilmington’s compact districts, with about 8,800 people each, it’s a meaningful step.

The new approach “ensures that every person in Wilmington has an equal say in their government,” said Mike Wessler of the nonprofit Prison Policy Initiative, which tracks reform efforts across the country.

A rising effort to restrict prison gerrymandering

Exploding prison populations in the 1980s and 1990s, fueled by America’s war on drugs, reshaped communities and political maps across the country. They also added weight to the issue of prison gerrymandering.

The city of Anamosa, Iowa, became a poster child for challenges at the local level: In one of its city council districts, about 95% of residents were incarcerated in a state prison. (After a local man won the seat with two votes in 2006, he told a reporter, “Do I consider [incarcerated people] my constituents? … They don’t vote, so, I guess, not really.”)

Prison gerrymandering “distorts our democracy,” Wessler said. “It fundamentally alters political representation, and that harms every single person, whether they live one mile from a prison or 1,000 miles from a prison.” He said local governments were early leaders on the issue, with over 200 adopting reforms in the 2000 and 2010 cycles.

In 2010, New York and Maryland passed laws ending prison gerrymandering at the state legislative level. By the next cycle, a decade later, over a dozen states had passed similar laws. 

Nearly half of Americans now live in a state that has taken action to end the practice in drawing statewide maps, the Prison Policy Initiative estimates.

Wessler called the adoption of these laws “a sea change” from the situation two decades ago.

States that ended prison gerrymandering heading into the last redistricting cycle were nearly all run by Democrats, with a wave of newcomers passing the reform in rapid succession over the past four years — including Colorado, New Jersey and Virginia. In these states, with vast disparities in the geography of where people are arrested and where they serve prison terms, legislative maps now count incarcerated people at their last known address.  

The issue has attracted attention in some areas that tilt Republican. Earlier this month, Montana’s state Senate passed a bill to end prison gerrymandering after the state’s bipartisan redistricting commission unanimously supported the change.

But any movement to end the practice altogether would have to come at the federal level. With that in mind, a group of three dozen advocacy organizations are calling on the U.S. Department of Commerce to change the tally in the 2030 Census. They write in a letter that “counting incarcerated people at home ensures that communities hit hardest by mass incarceration get equal representation in state and local governments.”

Even within a state, a patchwork of laws

The combination of state and local laws leaves some Americans without any representation.

Take the situation in Delaware. Wilmington ended prison gerrymandering, but Newark, the state’s third most populous city, didn’t. That means a Newark resident incarcerated in Wilmington wouldn’t be counted in a city council district in their hometown — and also wouldn’t be counted in the city where they are incarcerated.

For the purposes of city council representation, they are counted nowhere.

Muddying the waters further: New Castle County, which includes Wilmington, still draws lines for its own districts that count people as living in prison.

“This fits within a broader scheme of a patchwork of laws governing voting rights within the state of Delaware,” said the ACLU’s Bensing. Several states take a scattershot approach to the issue, with inconsistent requirements for congressional districts, state legislative districts and even school boards.

A similar dynamic has played out in Nevada: The state ended prison gerrymandering in congressional and state legislative districts, but left decisions at the city council level up to local governments. In the most recent cycle, Las Vegas counted incarcerated people at their last pre-prison address, and Reno did not.

Some of these asymmetries stem from state legislators’ decision to exempt local governments from the laws they passed. Kathay Feng, an advocate at the voting rights organization Common Cause, said this may have been a tactic in some states to avoid paying the cost of local changes, or to sidestep conflicts with “home rule” laws that give localities wide latitude.

Darby, the Wilmington councilmember, was happy to bring her city in line with the way Delaware draws state legislative districts.

Now, she says she’d like to see governments include incarcerated people in the political process. Delaware currently bars people in prison with felony convictions from voting, and it also disenfranchises thousands of people on probation or parole. The state makes it more difficult to regain voting rights than most in the Northeast.

“How do we take it a step further?” Darby asked. “They need rights to vote — not everybody, but some people who are in prison should still be able to vote and have their voices be heard.”

Currently, only Maine, Vermont and Washington, D.C., allow people in prison to vote. Many Americans held in local jails also retain their right to vote but find it nearly impossible to cast a ballot. Advocates say that this “de facto disenfranchisement” affects the majority of the roughly 445,000 people in American jails who have not been convicted of a crime. A handful of states and counties around the U.S. have made a push to facilitate jail voting, including establishing precincts in jail, but some local officials have resisted such efforts.

As a result, thousands of Americans are counted for the purpose of redistricting where they are detained, increasing that area’s political clout, without the ability to participate in local elections.

And until the Census Bureau changes the way it counts incarcerated people, advocates and elected officials will be forced to address prison gerrymandering one place at a time. 

“The city of Wilmington is small, and the population of the prison wasn’t anything crazy,” said Darby, who sponsored the measure to permanently end the practice in the city. “But I thought it was important to make that point.”

The post How One City Ended Prison Gerrymandering appeared first on Bolts.

The 51-year-old has a felony on his record, like all of the people DeSantis had arrested. He wondered if the governor would come after him next, because he had just voted in the August primary.

Johnson was convicted of drug trafficking and released in 2002 after serving 22 months in prison. For years after his release, he was barred from voting due to Florida’s draconian rules. In 2018, voters passed Amendment 4, a landmark ballot initiative that overrode the 19th century policy barring anyone with a felony conviction from voting for life. Amendment 4 allowed people convicted of most felonies to vote once they complete their sentence.

Johnson’s first time voting was in 2020 and he’s been engaged with electoral politics ever since. 

But a series of arrests this year have rocked the reform’s promise. Earlier this year, county prosecutors charged people for voting despite owing court debt, due to a law signed by DeSantis in 2019 that rolled back Amendment 4 by imposing financial payments. The people who were then charged in August had been convicted of murder and sexual assault, offenses carved out by Amendment 4. But several said that they thought the amendment allowed them to legally vote, especially because they had been provided with voter IDs by local election officials—with the approval of the DeSantis administration. 

Now, leading up to the November 8 general election, Johnson is wondering what legal stunt DeSantis might pull next. 

 “It makes you think twice before going to vote,” he said.

A new report by the Sentencing Project estimates that over 1.1 million Floridians are barred from voting this fall due to a past felony conviction in Florida. Others may have regained their right to vote but shy away from the polls over the uncertainty caused by the recent events. And given the vast racial disparities in Florida’s criminal legal system, the predicament disproportionately affects African Americans.

More than one in five Black adults in the state were disenfranchised in 2016. Amendment 4 cut down that number, but 13 percent of Black adults are still barred from voting in the state, which compares to 7 percent of the rest of state’s population.

Of the 19 people whose August arrests for voter fraud were reviewed by The Palm Beach Post, 15 are Black.

“DeSantis’ arrests have built upon a culture of fear that already existed around voting, but he has added new consequences, especially for Black people in particular,” said Kevin Anderson, a defense attorney who represents Leo Grant Jr., one of the people who were arrested in August.

Backed by law enforcement from his Election Crimes and Security Office at a press conference on Aug.18, DeSantis said the voters had committed fraud, which would require that they had knowingly and willfully violated the law so they could cast their votes.

“The state of Florida has charged and is in the process of arresting 20 individuals across the state for voter fraud,” DeSantis said to a round of cheering and applause. “They did not go through any process. They did not get their rights restored, and yet they went ahead and voted anyways. That is against the law, and now they’re going to pay the price for it.”

At another press conference 12 days later, DeSantis then put the blame on local voting jurisdictions. “Some local jurisdictions don’t care about election laws. We do, and we think it’s important. If you’re not able to run an election right, we want to hold people accountable,” DeSantis said.

But DeSantis’ claims have since come under scrutiny. He failed to mention during his press conferences that government officials had told the people who were arrested that they were allowed to vote. And DeSantis’ own election investigation chief had sent an email to local jurisdictions telling them that they did nothing wrong when the returning citizens voted in August.

Last week, one of the arrests was thrown out by a South Florida judge, who said that the state did not have jurisdiction to charge Robert Lee Wood. The DeSantis administration said that it intends to appeal that decision.

“The DeSantis story about the arrests after the primary has already started to fall apart, but who knows what he’s capable of next,” Johnson said.

DeSantis created a new police force to investigate election crimes in April, spending an estimated $3.7 million in startup costs. It employs agents tasked with investigating election-related crimes, which are very uncommon in Florida. 

The DeSantis administration has not responded to multiple requests for comment on this story.

Some of those who were arrested have come forward to explain that they thought their rights had been restored when Amendment 4 passed, and that the state had given them every indication that they were eligible to vote.

Leo Grant Jr. had thought he was just fulfilling his civic duty, until law enforcement arrived at his door in August. His defense attorney, Anderson, says that the DeSantis administration used people’s lives to advance his political agenda and create an environment for rumors to spread in Florida about rampant voter fraud.

“This process was weaponized to make it appear that you have all of these people out in the community casting votes that they ought not cast, when really what has happened is that they’ve been lured,” Anderson said. “So it’s like a game that’s being played with their lives.”

Anderson—who has 20 years of experience and has handled hundreds of state and federal criminal and police liability cases—said that DeSantis has created “an environment of intimidation,” which will affect potential voters who may now be worried about going to cast their vote after the arrests. 

“Intimidation is one tactic that has been used in the past against Black people for voting, and it is being used now,” he said.

Fear tactics have been wielded to mute Black people’s voices and suppress their votes throughout American history. The Ku Klux Klan did this, often through violence, in the late 1800s and early 1900s. This year, in Florida and in other states, intimidation and election-related threats of violence have made securing polling locations more difficult leading up to elections.  

But legislation has also functioned as a means of voter suppression. Prior to Amendment 4 being passed, Florida’s constitution had disenfranchised all citizens who had been convicted of any felony offense dating back to Florida’s first constitution in 1838. It said, “all persons convicted of bribery, perjury, forgery, or other high crime, or misdemeanor” should be barred from voting. This was amended in 1868 to remove the language about misdemeanors. In 1968, the language was amended again, to name felonies as the specific reason that people should not be able to vote.

In an analysis of Florida’s disenfranchisement rules in 2015, Allison Riggs wrote in The Journal of Civil Rights and Economic Development about the “enormous burden that these rules place on people of color seeking to participate in the political process.”  Even after passage of Amendment 4 in 2018, many Floridians are barred from voting, including if they are in prison, on probation, and on parole—outcomes that are far likelier to affect Black Floridians.

Shortly after Amendment 4 was adopted, DeSantis signed Senate Bill 7066 into law, which prohibited returning citizens from voting unless they paid off legal fines and fees imposed by a court pursu­ant to a felony convic­tion.

This caused anger and confusion among those who had struggled for the right to vote, and civil rights groups filed a lawsuit accusing the governor of creating a “pay-to-vote” system. The chaos created by this rule, in addition to the more recent voter arrests, led several civil rights groups to create a legal guide for returning citizens who wish to vote.

This month, body camera footage of one of the arrests was published by The Tampa Bay Times. It showed Tony Patterson, another of the voters charged, in a state of shock that he was being arrested. 

“What is wrong with this state, man?” Patterson asked the police as they arrested him. “Voter fraud? Y’all said anybody with a felony could vote, man.” 

This isn’t DeSantis’ first attempt at influencing voting procedures in Florida with an aim of impacting outcomes. Earlier this year, his administration pushed a redistricting plan before the legislature, which a Florida circuit court judge found to be unconstitutional for its attempt to dilute the Black vote. The legislature approved the plan, and now the DeSantis administration is refusing to release documents related to its creation, after the League of Women Voters and individual voters filed a lawsuit against the redistricting in April. 

Neither has DeSantis shied away from overruling the will of voters once they’ve already spoken. In August he removed a democratically-elected state attorney from office based on the prosecutor’s statements that he would not charge cases dealing with abortion or anti-transgender legislation, and claims to have “reviewed” several more. It’s created uncertainty among candidates that they could be plucked from their positions even after winning. 

“In the end, he just wants to win,” said Robin Lockett, regional director of the non-profit activist group Florida Rising. “He’ll use any tactic he can, no matter how undemocratic, to try to get his way.”

Lockett works to register voters in Florida, along with fighting for racial and social justice causes. She doesn’t have a felony conviction, but talks to people who do regularly through her work. She says that DeSantis has reached a new level of electoral desperation.

“You don’t see him out there arresting people who are most likely going to vote for him,” Lockett said. “He’s targeting people who he wants to suppress. He wants returning citizens, and especially Black people, to go back to the shed, to go underground.”

Rodney Johnson says that even though DeSantis’s actions make him think twice about voting, he’ll still be heading to the ballot box in November. 

“When you make the effort to turn your life around, you want to be able to have your voice heard, just like any other citizen.”

He won’t let a political agenda based in fear stop him from moving forward, he says, although he’s unsure if that will be the case with everyone who has been convicted of a felony. 

“A lot of us have been through so much here in Florida, rents are going up and we’re just trying to survive,” Rodney said. “People have kids and families to think about. There are plenty of voters who might not take the risk, in case DeSantis decides to pull something shady again. But I have to do what I know is right.”

The post Arrests Over Voting Escalate a “Culture of Fear” in Florida appeared first on Bolts.

Conservatives put their cards on the table sooner than expected. With Trump’s possible comeback bid still two years away, Republican members of Michigan’s State Board of Canvassers last week blocked two proposed constitutional amendments regarding abortion rights and voting rights. They flouted the usually-decisive recommendation of the state’s Bureau of Elections, which had determined that both measures received more than enough signatures to appear on the November ballot. 

The state Supreme Court intervened on Thursday in a pair of 5-2 decisions that will put both amendments on the Nov. 8 ballot. Michiganders will decide on that day whether to codify the right to access abortion in the state constitution and whether to expand ballot access by strengthening a slate of procedures like mail-in voting.

The rulings mark a failure for Michigan Republicans’ trial balloon for subverting future elections, whether the 2024 presidential race or the midterms. Once again, GOP canvassers weaponized their role in the long chain of custody over election processes, and this time they stayed unified long enough to halt routine procedures. But a majority on the high court did not blink, signaling that they are willing to act as a backstop—and could again in the future.

“It was dangerous for democracy when Canvassers in Michigan said they would refuse to certify the election results in 2020,” Josh Douglas, a University of Kentucky professor specialized in election law, told Bolts. “The Michigan Supreme Court’s decision on both of these initiatives show that refusing to put these issues on the ballot was the same kind of overreach.”

For Leah Litman, a professor of law at the University of Michigan, the sequence of events at least establishes a precedent for how the state’s high court could intervene after the 2022 or 2024 elections if GOP canvassers similarly attempt to block results. 

But that road map would only work “if the court stays the same,” she added. 

Two justices on the Michigan Supreme Court are running for re-election in November—Democrat Richard Bernstein, who voted with the majority on Thursday, and Republican Brian Zahra, one of the dissenters. The GOP would flip the seven-member court if it sweeps both seats. On the one hand, that would not have been enough to change Thursday’s rulings since Republican Elizabeth Clement voted with the four Democrats.

Still, the two rulings were handed down almost along party lines and Clement did not write an opinion in either, leaving some uncertainty over how a higher-profile partisan confrontation over a presidential election would unfold.

Since Thursday’s rulings, Justice Bridget McCormack, a Democrat who was part of the majority in both rulings and whose term was meant to last through 2029, announced she will leave the court by the end of this year. Democratic Governor Gretchen Whitmer will appoint her replacement, who will need to face voters in November 2024. The next two years could also bring an unforeseen vacancy on the court, which would be filled by whomever wins November’s governor’s race between Whitmer and Republican Tudor Dixon, who is endorsed by Trump and has falsely said the 2020 election was stolen.

The justices traded unusually acrimonious barbs in their rulings on Thursday, testifying to a polarized court. Earlier this summer, when the Michigan Supreme Court issued a landmark series of rulings that expanded protections for youth against extreme sentences, most were issued on 4-3 party-line votes. Much as he did on Thursday, Zahra was the most caustic of the dissenters.

The latest dispute about the State Board of Canvassers centered on whether they have authority in elections beyond simply aggregating and affirming the analyses and results  counted by others.

The GOP canvassers claimed that their rejection of the abortion rights referendum, which would effectively overturn a pre-Roe abortion ban that is currently enjoined by courts, was based on a typographical error on the ballot petitions that reduced spacing between some words. Proponents of the amendment, who had collected a record number of signatures to put it on the ballot, rebuffed that argument on the merits. But they also responded that it’s not up to the state canvassers to adjudicate such questions and that the board exists as a ministerial body.

The exchange echoes the aftermath of the 2020 election, when Trump allies pressured Michigan’s county and state canvassers to investigate the results transmitted to them by lower boards—rather than fulfill their usual role of effectively just adding up tallies. Attacked by Trump’s allies, one Republican member of the Wayne County Board of Canvassers who certified the results said at the time, “The only thing that the Board of Canvassers has the authority to do is to compare the statement of voters, the number of ballots that were received versus the number of ballots that were tallied and to make any mathematical corrections.” 

Mari Manoogian, a Democratic state Representative who represents Michigan’s Oakland County in the legislature, testified in front of the State Board of Canvassers in November 2020, telling them they were overstepping their role in acting as though they could ignore election results. “To me, this is a very similar situation,” she told Bolts this week about the initiatives. 

“The State Board of Canvassers really had a ministerial duty to certify both petitions, and they didn’t follow through with their duties,” she said. “I’m deeply concerned with their unwillingness to do their jobs and their propensity toward caving to partisanship regarding the certification of elections and regarding the certification of valid proposals. It’s a dangerous, slippery slope.”

Chief Justice Bridget McCormack, writing for the majority on Thursday, echoed this assessment of the two Republican state canvassers. “They would disenfranchise millions of Michiganders not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad,” she wrote in the decision on the abortion ruling. “What a sad marker of the times.”

The court’s rapid intervention this week could assuage some of the uncertainty that would be sure to follow if county or state Republican canvassers refuse to certify Michigan results in 2024 and help stem the chaos. Trump allies hope to sow confusion as a strategy to justify extraordinary measures, like having lawmakers step in.  

And in two years justices could find it even easier to step in. One of two ballot measures the Republican state canvassers tried to block last week is worded to constrain their ability to thwart future elections. The voting rights amendment contains a section that would enshrine in the state constitution that it is the “ministerial, clerical, nondiscretionary” duty of county and state canvassers to certify election results by doing no more than aggregating the statement of votes shared by lower counting boards.  

Douglas told Bolts that, if voters approve the amendment in November, it could add a layer of protection by giving state courts additional language to cite to force canvassers to honor election results. “I think that this is one of those situations where the duty exists already but that it’s not harmful to lay it out so it’s abundantly clear,” Douglas said. “I think that makes it even clearer to the canvassers that they can’t choose not to certify. It gives them much less wiggle room to try to justify their actions.”

Litman stressed, though, that doubling down on legal standards would not dissuade people who are willing to go rogue—especially if they have already signaled they are eager to do so.

“The reality is that under existing law the board was already supposed to have clerical and ministerial duties,” Litman said. “And yet the board tried to prevent this ballot initiative as well as [the] reproductive freedom ballot initiative from getting on the ballot. So I don’t know if… the GOP members of the board will abide by the law any more going forward.” She added, “maybe after this case and this initiative they will.”

The article was updated on Sept. 12 with news of Bridget McCormack’s retirement.

The post Michigan Republicans Stumble in Dress Rehearsal for Overturning Future Elections appeared first on Bolts.

But that victory proved short-lived. Ohio’s Republican Secretary of State Frank LaRose, the named defendant in the lawsuit, appealed to overturn the ruling. A federal appeals court agreed in 2020, saying that voters in jail are “no more burdened than any other elector” facing unforeseen complications—similar, the court said, to someone who leaves town unexpectedly to attend a funeral.

Danielle Lang, an attorney with Campaign Legal Center who helped bring the lawsuit, says she was dismayed by LaRose’s decision to appeal. “These are folks that we know are eligible voters that the state is physically restraining from going to the polling place and voting, and they’re also not providing any alternative,” she told Bolts. “I find that appalling.” 

Today, LaRose is running for a second term as secretary of state, but his profile in this campaign has been markedly different. Facing a far-right challenger who peddles conspiracy theories about the 2020 presidential election, LaRose is getting cast as a bulwark of democracy.

John Adams, a former state lawmaker running against LaRose in the Republican primary scheduled for May, avidly repeats the false claim that the 2020 election was stolen from President Donald Trump. “Everybody knows after the last election last year that we got robbed,” Adams says in a video on his campaign website. “We got robbed and the Republican Party did little if anything to fight back… That’s why I’ve decided to run.” Adams has also taken to calling LaRose a “never Trumper.”

LaRose pushed back against efforts by Trump’s closest allies to discredit voting machines and decertify election results after the 2020 presidential election, as reported by The Washington Post. So far the script writes itself: Trump’s forces are coming for yet another Republican who dared stand up to the former president. 

But LaRose has himself repeatedly clashed with voting rights groups. In 2020, he imitated other Republicans like Texas Governor Greg Abbott in limiting the availability of dropboxes across Ohio, making mail-in voting tougher during the pandemic.

Since then, LaRose has gone further in embracing the premises of the Big Lie. “President Trump is right to say voter fraud is a serious problem,” he wrote last month in a Twitter thread that also attacked the “mainstream media” for “trying to minimize voter fraud.” LaRose’s office declined to comment for this story. 

As the politics of the Big Lie continue to capture a large swath of the GOP and threaten the health of American democracy, the record of establishment Republicans like LaRose may get overlooked by comparison. But voting rights advocates caution that state officials were already weakening democracy in Ohio before Trump and his followers’ efforts exacerbated that trend. And they have continued to further anti-voter policies on their own. 

On Tuesday, Governor Mike DeWine, a longtime fixture in Ohio’s GOP politics, appointed a former lawmaker who has amplified false claims about a stolen election to the state’s elections board. And given LaRose’s past policies and his slide into Trumpish rhetoric on voter fraud, barriers to expanding ballot access will persist regardless of who wins the May 3 secretary of state primary. Ohioans in jail who are eligible to vote will still have difficulty voting.

Ohio’s secretary of state is a powerful office. It oversees broad election administration decisions across the state’s 88 counties, responds to lawsuits, and serves as a tiebreaker in the rare case when bipartisan county election boards deadlock.  LaRose also sits on Ohio’s redistricting commission, which this year has failed to advance new maps after the Ohio Supreme Court struck down previous Republican gerrymanders as unconstitutional.

LaRose is now favored to win re-election and keep those powers for the next four years. He had about $1.8 million campaign cash on hand as of January, according to his most recent campaign finance report, and he secured the endorsement of the Ohio Republican Party. Adams, on the other hand, had about $41,000 to spend. In an age of anti-incumbent fervor, no primary candidate should be counted out, especially if Adams draws more support from conservative groups, but he has yet to catch fire or land Trump’s endorsement. 

The sole Democratic candidate, Chelsea Clark, is a Forest Park city councilmember who is running on strengthening access to the ballot with measures like automatic voter registration. Democrats last won the secretary of state’s office in 2006, and the party faces a tough cycle across the country in a historically difficult mid-term year. In the 2018 general election, LaRose prevailed by four percentage points against Democrat Kathleen Clyde, who ran on a similar platform.

When LaRose began his term in 2019, then-Ohio Democratic Party Chair David Pepper hoped to build a constructive relationship with him. So he invited LaRose to a forum to speak with Democrats about election administration issues. But Pepper told Bolts the relationship soon began to sour as LaRose backpedaled on early promises. 

“He wants to brand himself as ‘aw shucks I’m good for the voters’ but at every turn he does what the far right of the [Republican] party wants him to do,” said Pepper, who has since left his role as head of the state party. “He is, in many ways, more dangerous than the wide-eyed conspiracy theorists, because he’ll do what they want him to do, but he’ll dress it up like it’s more legitimate.”

Pepper’s distrust of LaRose stems in particular from the run-up to the 2020 presidential election, when LaRose sided with Trump’s crusade against voting by mail. With voters likely to rely on mail-in ballots in the midst of the COVID-19 pandemic, voting and civil rights groups wanted more dropboxes placed around the state to help them, especially given the fears about the U.S. Postal Service’s ability to handle the influx. 

But LaRose limited each county to no more than one dropbox location. A county of more than 1.3 million residents would have as many dropbox sites as one of  13,000 people.

Initially, LaRose said that state law gave him no other option, but that he could order more dropboxes if a court blessed his authority to do so. “We’ll follow what the court says,” LaRose’s attorney told a federal judge, according to a Talking Points Memo story. “If it’s legal to add extra dropboxes, then I’m certainly open to the idea,” LaRose had previously said, according to the Statehouse News Bureau.

So when a state court said that LaRose could not prevent counties from adding more dropboxes, calling restrictions “arbitrary and unreasonable,” voting rights groups celebrated. “We were expecting he would champion [dropboxes] after the court said he had the opportunity to champion it,” Kayla Griffin, the Ohio State Director of All Voting is Local, told Bolts. “Instead, he took a hard-nosed stand to oppose it.”

LaRose appealed the ruling. Even after an appeals court confirmed that he had the authority to expand access to dropboxes, but was not required to, LaRose doubled down. He directed counties to set up dropboxes at the sole location of the county board, and fought in court to shield his decision.

Voting rights advocates say that LaRose’s policy was disproportionately harmful in Ohio’s most populous counties, which have a higher share of Black residents. In the fall of 2020, LaRose blocked a plan by the board of elections of Cuyahoga County (Cleveland) to establish seven dropbox locations—a plan that had even earned the unanimous support of the board’s Republican members, in a county of more than one million people. 

Expanding access to the ballot would also benefit voters in the state’s more rural areas. “I was hearing from people who were in predominantly red communities that said it would be so much more beneficial if they could put a dropbox on the outer lines of their counties,” Griffin said. 

ProPublica reported that, during the controversy, LaRose’s office was coordinating with Hans von Spakovsky, the Heritage Foundation fellow whose claims about widespread illegal voting have been debunked in court and by experts. Von Spakovsky and other conservatives serve as consultants on election administration policy in many red states.

Catherine Turcer, a longtime voting rights advocate and the executive director of Common Cause Ohio, praises the state’s model for administering elections, which she calls “Noah’s Ark.” Each county’s board of elections has two Republicans and two Democrats, who are nominated by local political parties and are affirmed or rejected by the secretary of state. They work side by side to adjudicate ballots, decide on voter outreach, allocate dollars toward voter machines and other shared decisions. There is also always at least one Democrat and one Republican at polls or tabulating ballots.

Turcer said LaRose earned plaudits when he asked elections officials to get verified on social media so voters could trust what they post. 

Allegations of voter fraud are “vanishingly rare,” she said.

But for years now, Ohio Republicans have trumpeted claims of voter fraud like von Spakovsky’s to change election laws and to restrict options for both voters and election administrators.

In 2011, the GOP-led General Assembly passed a strict voter ID law. In 2014, they made it likelier a mail-in or provisional ballot would be rejected over minor errors, like a spelling mistake or a missing digit on a social security number. In 2016, they reduced the early voting period by a week and eliminated the so-called “Golden Week,” when voters could register and vote at the same time. And last year, they adopted a law that prohibits elections officials from partnering with outside groups. 

That law is ostensibly meant to block election administrators from accepting outside funding: In 2020, LaRose and strapped local election boards accepted grants from a foundation associated with Facebook CEO Mark Zuckerberg to help run elections and secure equipment, angering conservatives. But there is also widespread concern that the law could ban more than outside donations. Election officials may be reticent to help voters or engage with outside groups with the threat of criminal prosecution looming over them. 

Griffin said her organization has worked with county officials in various places in the past to ensure disabled voters have access to the polls or help with education efforts. Those programs are now in doubt. “We’re on high alert,” she said.

When he jumped into the secretary of state race, Adams said that those 2020 grants were one of his main reasons. The far-right group Ohio Value Voters, which has drawn attention for running candidates for school boards in Ohio, also endorsed Adams over LaRose because of them.  

Adams is also running on making Ohio’s voter ID rules even more strict. If he wins, he would have the authority to issue key directives to local election administrators in the run-up to the 2024 elections, giving believers of the Big Lie one of their most powerful positions.

But many in Ohio are also nervously monitoring LaRose’s growing embrace of baseless rhetoric about widespread voter fraud. LaRose has “jumped foursquare on the fraud bandwagon,” the editorial board of the Cleveland Plain Dealer wrote in late February, in reference to his tweets siding with Trump, “despite the very low levels of wrongful voting consistently seen in Ohio.”

“He’s starting to repeat the conspiracy theories we’ve heard throughout the country,” Griffin said of LaRose. “It does make us wonder what the end game is.”

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