Litigation Look Ahead: April 2022
2022 has already seen extensive voting rights and redistricting litigation. There have been two major court victories in Arkansas and Florida after their voter suppression laws were struck down. Multiple states have had their new maps go through the court system for unfairly favoring one political party or failing to adequately represent minority voters.
As it appears, April showers bring…even more court action! Below we highlight cases with likely court action over the next month. This is not an exhaustive list — new lawsuits will be filed, and pending cases are subject to scheduling conflicts, delays or case developments that change the course of litigation. Keep an eye on our Cases page for any developments in these cases and others.
Voting rights litigation: what to expect.
Along with the cases described in detail below, we’re monitoring Arizona (where Republicans are challenging the state’s mail-in voting system), Pennsylvania (where the state Supreme Court is making a decision on the future of mail-in voting) and Wisconsin (where the state’s process for providing temporary IDs will be tried in court).
An hour after an Arkansas trial court judge formally blocked four voter suppression laws, the state — apparently determined to roll back this expansion of voting rights — filed a notice of appeal. The trial court judge ruled on March 24 in League of Women Voters of Arkansas v. Thurston that four challenged laws violated the Arkansas Constitution because they impose burdens on voters, particularly among minority voters, without any good reason. Highlighting that the defendants presented no evidence of voter fraud in Arkansas, the judge admonished them for relying on “conjecture, speculation, surmise, misinformation, and fear-mongering about allegations of voter fraud and election insecurity” to argue in favor of the voter suppression laws. The Arkansas Supreme Court paused the trial court’s ruling while the case is appealed, meaning that the four laws are back in effect pending further action by the state Supreme Court. It’s unclear at the time of publication what the schedule will be for the appeal and how it may affect upcoming elections. Arkansas has primary elections scheduled for the end of May.
Republicans are challenging Colorado’s open primary election system, which allows unaffiliated voters to cast a ballot in any party’s primary. The lawsuit alleges that this system violates the rights to free speech and association in violation of the First Amendment and dilutes the plaintiffs’ votes in violation of the 14th Amendment. The plaintiffs are seeking a preliminary injunction blocking the open primary system — a system used across 21 states — and a hearing is scheduled for April 5 before a federal judge. For context, as of March 1, 2022, about 44% of the state’s active voters are unaffiliated with a political party. In fact, there are more unaffiliated active voters than those registered with either the Democratic or Republican parties, meaning that any change to the state’s primary system would throw voters into complete disarray.
A lawsuit filed in 2018 by Fair Fight Action and other voting and civil rights groups is finally headed to trial starting on April 11. After multiple claims were dismissed during the summary judgment stage in favor of the defendants, three claims remain challenging certain election administration practices in Georgia:
– First, the plaintiffs challenge the state’s exact-match policy that requires the state to cross reference the information provided on a voter registration form to information on file with the Georgia Department of Driver Services and U.S. Social Security Administration to confirm the applicant’s identity. Any discrepancies — no matter how minute — between the applicant’s information on their voter registration form and information found on the state and federal databases will result in the registration form being denied. The plaintiffs argue that this law places a particularly high burden on voters of color, who have been most affected by this policy in recent elections, and naturalized citizens because errors in the state’s databases are more likely to cause a mismatch for naturalized citizens than native-born citizens.
– Second, the lawsuit alleges that the Georgia secretary of state has failed to properly maintain the state’s voter rolls, causing the voter database to be “error-ridden.” The plaintiffs argue that the lack of inadequate guidance and rules has caused erroneous deletions and errors among registration files, placing a burden on voters.
– Third, the plaintiffs challenge the state’s lack of uniform guidance for canceling absentee ballots. Even though Georgia law allows a voter whose absentee ballot has not been returned and accepted to cancel it and cast a ballot in person, counties have varying rules for this practice, meaning that voters “who try to cancel their absentee ballots face a variety of obstacles that should not exist and depend on where the voter lives.”
The plaintiffs allege that, in total, the challenged laws and practices violate Georgians’ right to vote and discriminate against voters depending on where they live, their citizenship statuses and their race in violation of the First, 14th and 15th Amendments and Section 2 of the Voting Rights Act. In response, the defendants argue that the plaintiffs’ “claims are not supported by the evidence” and the parties lack standing to bring this lawsuit. During the bench trial, both sides will present evidence in support of their positions and the judge will determine if the challenged practices violate federal law as alleged.
Soon after Kansas Republicans overrode a gubernatorial veto in order to enact two new voter suppression laws, these laws were challenged in court. In League of Women Voters of Kansas v. Schwab, four organizations sued in state court to stop the harmful effects of these laws. The challenged provisions:
– Criminalize individuals for giving voter assistance,
– Limit ballot collection,
– Restrict nonpartisan out-of-state organizations from providing mail-in ballot applications to registered voters (a provision that was blocked in a separate federal lawsuit),
– Criminalize the mailing of personalized early voting applications (also blocked in the federal lawsuit) and
– Impose a strict signature matching requirement for mail-in ballots.
The district court denied the plaintiffs’ motion for a partial temporary injunction, which sought to prohibit the enforcement of the provision that criminalizes the action of “knowingly misrepresenting” oneself as an election official or engaging in election-related activity that “gives the appearance” of being an election official. The plaintiffs appealed this decision to the state appellate court and oral argument before a three-judge panel is scheduled for April 7. The plaintiffs argue that this provision should be temporarily blocked because of their past experience interacting with voters and “despite their best efforts to communicate that they are not elections officials…some people with whom they interact (or who observe their activities) assume they are acting in an official capacity.” Since this law is still in place, these organizations are currently not engaging in “voter engagement and registration activities across the state, out of fear that their actions could be misconstrued and result in criminal liability.”
Last June, a conservative group filed a lawsuit on behalf of two Wisconsin voters challenging the legal status of drop boxes. During the COVID-19 pandemic, the Wisconsin Elections Commission (WEC) issued guidance encouraging the use of drop boxes for the 2020 primary and general elections. The plaintiffs allege that this guidance is contrary to Wisconsin election law, which state that absentee ballots can only be returned legally via two methods: the voter mails their ballot to the municipal clerk or the voter hands their ballot to the municipal clerk. The plaintiffs thus claim that any other method of absentee voting — such as dropping a completed ballot into an unstaffed drop box or having a family member or friend deliver a completed ballot — is illegal. In January, a state trial court judge sided with the plaintiffs, prohibiting the use of the 500+ drop boxes in the state and barring any third party from returning an absentee ballot on behalf of a voter. WEC and nonprofit groups seeking to protect drop boxes immediately appealed this decision and the court of appeals paused the ruling for the state’s February primaries, meaning drop boxes were allowed in these February elections only. The Wisconsin Supreme Court affirmed this pause, but declined to extend it to allow drop boxes for the state’s April primaries, meaning that drop boxes are currently banned in Wisconsin pending further action by the state Supreme Court. The case then went through briefing before the state Supreme Court addressing the legality of drop boxes. Oral argument is scheduled for April 13, after which the court will determine the fate of drop boxes in Wisconsin.
Redistricting litigation: what to expect.
Districts across the country are being litigated in state and federal courts. Along with the states below, keep an eye on impasse litigation in Florida, Missouri and New Hampshire — the remaining states that have yet to enact new congressional maps based on 2020 census data. Finally, congressional maps for Maryland and New York were recently overturned for being Democratic gerrymanders. Given that both states have appealed these decisions, it’s likely that we’ll hear more about the status of their congressional districts in the coming month.
We’re monitoring multiple Arkansas redistricting lawsuits making their way through federal and state courts. First, there is a pending federal lawsuit against the new state House map. The plaintiffs argue that the new map dilutes Black voting strength in violation of Section 2 of the Voting Rights Act (VRA) and sought a preliminary injunction blocking the use of the enacted map in future elections. In an unprecedented move, a federal judge ruled that there is no private right of action under Section 2 of the VRA, which means only the U.S. Department of Justice — and not individuals and organizations — can bring Section 2 lawsuits. After the U.S. attorney general declined to step into the case, the plaintiffs appealed this decision to the 8th U.S. Circuit Court of Appeals. Briefing is set to start mid-April and will focus on the future of the VRA.
Two lawsuits filed in state court against Arkansas’ new congressional map are also moving forward. The plaintiffs in both cases argue that the map intentionally “cracks” Black voters across multiple congressional districts in order to dilute their voting strength in violation of the U.S. and Arkansas Constitutions and Section 2 of the VRA. Keep an eye on those case pages for any updates.
A consolidated lawsuit challenging Kansas’ new congressional map is headed to trial starting on Monday, April 4. The plaintiffs, who include Kansas voters and the organization Loud Light, argue that the new map, which was enacted after Republicans overrode Gov. Laura Kelly’s (D) veto, is a partisan gerrymander that favors Republicans and dilutes minority voting strength in violation of multiple provisions of the Kansas Constitution. Of particular focus is how Wyandotte and Douglas counties — the state’s two Democratic strongholds and heavily minority counties — were divided among white and Republican-leaning congressional districts. During the trial, the court will hear evidence from both sides on the legality of the map and determine whether or not to block it for the 2022 election cycle. The trial is scheduled to take place on April 4-6 and April 11, with post-trial briefing due five days after the trial concludes. We can expect the trial court to issue its decision soon after that.
Ohio’s first round of redistricting under its new redistricting commission has not gone to plan. The state does have new congressional districts in place after the first enacted map was struck down by the Ohio Supreme Court for being a partisan gerrymander in violation of the Ohio Constitution. Two lawsuits were filed against the second enacted map and are moving forward; however, given the schedule set by the court, the cases seem unlikely to be resolved in time for the 2022 elections.
Ohio’s legislative districts are an entirely different story. After three iterations of legislative maps were struck down by the state Supreme Court for being partisan gerrymanders that violated the Ohio Constitution, the Ohio Redistricting Commission passed a fourth set of districts on March 28. Notably, these districts barely differ from the ones already struck down and the commission members are facing possible contempt charges for failing to comply with previous court orders. The Ohio secretary of state has already indicated that it’s too late for legislative races to appear on ballots for upcoming primary elections in May. Meanwhile, a federal impasse case filed over the lack of legislative maps is also ongoing. After a hearing was held in late March, the three-judge panel indicated that it would wait until April 20 to give the state more time to figure out districts. Given all of these moving factors, court activity on Ohio’s legislative maps is likely throughout April.
Keep an eye out for our next monthly litigation look ahead in May. In the meantime, be sure to stay up to date on important cases and court decisions on our Cases and Alerts pages.