New year, not-so-new lawsuits. Litigation can move slowly, so challenges to voter suppression laws and gerrymandered maps from last year and beyond will hopefully have major updates this year. As we begin 2023, here’s what to expect in courtrooms across the country.
By early summer, expect two major democracy rulings from the U.S. Supreme Court.
The nation’s highest court follows a unique schedule: The Court’s term begins on the first Monday in October, with oral arguments heard from October through April of the following year. All rulings are issued before the Court recesses for the summer, usually around late June. Around that time this year — late spring or early summer 2023 — we should expect two consequential rulings from the Supreme Court in Merrill v. Milligan and Moore v. Harper.
Merrill centers on whether the state of Alabama violated Section 2 of the Voting Rights Act (VRA) when it enacted a congressional map that created one rather than two majority-Black districts. During oral argument in early October, Justice Elena Kagan noted how the very court she sits on has dismantled the VRA — “one of the great achievements of American democracy,” she added — over the past decade. In 2013, the Court gutted Section 4 and 5 of the VRA. In 2021, the Court weakened Section 2. Kagan concluded: “So what’s left?” No matter where the nine justices land on the specifics, the ruling will likely alter the future application of the VRA. Last February, when the Court first stepped into this case, Chief Justice John Roberts wrote that a lower court had “properly applied existing law in an extensive opinion with no apparent errors for our correction.” Consequently, the fact that the Supreme Court even heard this case points to a desire to change “existing law.”
In Moore, the Court is weighing a right-wing constitutional theory that would give state legislatures unchecked power over federal elections. In the words of U.S. Solicitor General Elizabeth Prelogar during oral argument in December, this theory is an “atextual, ahistorical and destabilizing interpretation of the Elections Clause.”
The census may take place once a decade, but the reconfiguration of political districts will continue into 2023 and beyond.
In an election law case, timing matters. Delays in the release of 2020 census data and the rush to finalize new districts before the 2022 midterms resulted in five states — Alabama, Florida, Georgia, Louisiana and Ohio — holding congressional elections this year under maps that courts found likely to violate federal law or state constitutions.
At the beginning of a lawsuit, especially in an election year, there are many motions for immediate relief (preliminary injunction or temporary restraining order) so harmful laws are not enforced while a case moves through the courts. In 2022, much of the redistricting legal action involved immediate — though temporary — relief. Now, in 2023, maps will head back to courts for ruling on their merits, which will include trials, longer proceedings and final decisions.
There is ongoing litigation against congressional maps in Alabama, Arkansas, Florida, Georgia, Kansas, Louisiana, Michigan, Mississippi, New Mexico, New York, North Carolina, Ohio, South Carolina, Texas and Utah. Additionally, 13 states have ongoing litigation over legislative maps (districts for state houses and state senates).
Litigation can be slow moving, so legal challenges to some 2021 voter suppression laws will be resolved in 2023.
The story of 2021 was voter suppression. Following a contentious 2020 presidential election, Republican-controlled state legislatures passed a steady stream of bills that restricted voting access, particularly targeting mail-in voting, early voting and registration opportunities. In 2021, 19 states enacted restrictive voting laws, with seven states enacting the worst of the worst — omnibus election laws that cover a range of topics in a single, large bill.
Yet, it is 2023 when a large portion of those laws will likely meet their ultimate fates in court. Similar to the challenged redistricting maps, some temporary relief was granted before the midterm elections. Additionally, there have been full trials over voter suppression laws passed in Arkansas, Florida and Montana, but all three cases are now on appeal. In Texas and Iowa, trials have been previously postponed and will hopefully take place this summer.
As a testament to the slow pace of litigation, we hope to get a resolution soon in a lawsuit filed all the way back in December 2020. Stacey Abrams’ Fair Fight is alleging that a right-wing group engaged in voter intimidation in advance of the 2021 U.S. Senate runoff elections in Georgia. Recently, the U.S. Department of Justice accepted a judge’s request to join the proceedings and defend the constitutionality of Section 11(b) of the VRA, a federal law that protects against voter intimidation.
State legislatures will pass more election and voting bills in 2023; no doubt, some will face legal challenges.
Across the country, many states are set to convene for the next legislative session in early January. We don’t yet know the priorities of legislators in 2023, but prefiled bills — those submitted before the session begins — clue us in for what’s next. In Texas, legislators have prefiled over 70 election and voting bills ahead of the state’s legislative session beginning on Jan. 10 — this figure includes 48 pro-voting and 21 anti-voting measures. It appears that two major themes will carry over from last year: Republican lawmakers are intent on criminalizing voting and election administration processes and curbing popular mail-in voting methods.
In Ohio, lawmakers rushed House Bill 458 through the state legislature in the final weeks of 2022. H.B. 458 would impose a strict photo ID on voters, restrict the timeline for absentee voting, shorten the window for voters to cure ballots and severely limit drop boxes. Gov. Mike DeWine (R) has yet to sign or veto the bill, so its future remains in limbo. If DeWine takes no action, it will become law without his signature and lawsuits are expected.
In Missouri, legislators have prefiled upwards of 14 bills, including several resolutions to change the state constitution and make it harder for citizens to effect change through the ballot initiative process. A similar anti-democratic effort gained momentum recently in Ohio.
The voting and elections landscape has been permanently altered by important cases and court decisions over the past few decades. If 2023 follows the trend of elections becoming more litigious every year, the future of democracy remains on the docket.