Litigation Look Ahead: August 2022
The summer months may be slower, but the voting rights world is not taking a vacation this August. Democracy Docket is currently tracking 156 lawsuits across 39 states, with some expected court activity this month in Montana, New York, Texas and more.
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 lawsuits and others.
Voting rights litigation: what to expect.
Voter suppression laws are front and center in courtrooms in August. Along with the lawsuits mentioned below, we’re monitoring a Republican lawsuit in Arizona focused on mail-in voting, multiple challenges against mail-in voting access in Pennsylvania and briefing about Florida’s voter suppression law that’s ongoing in a federal appeals court.
Key dates: Trial on Aug. 15-26, 2022
Three Montana voter suppression laws are headed to trial this month. These laws (plus a fourth one that was blocked just last week) were originally challenged in three separate lawsuits, which were consolidated under Montana Democratic Party v. Jacobsen. You may remember hearing about this case earlier this year; let’s break down what’s happened in litigation so far.
First, back in April a state trial court granted a preliminary injunction blocking all four challenged laws — House Bill 176, Senate Bill 169, House Bill 530 and House Bill 506 — for likely violating the Montana Constitution. However, a month later the Montana Supreme Court partially undid that victory when it reinstated two of the laws (H.B. 176 and S.B. 169) while an appeal of the preliminary injunction is being litigated. This appeal is still pending before the Montana Supreme Court, but activity on the merits of the challenged laws is also ongoing back in the trial court. (Remember that an order granting a preliminary injunction does not reach the merits — the actual substance of a legal dispute — of a lawsuit’s claims and instead focuses on whether a law should be temporarily blocked to prevent harm to voters.)
In the lower court, on July 27 the judge granted a motion for summary judgment from one set of plaintiffs and permanently blocked H.B. 506 — which prohibited the mailing of ballots to new voters who will be eligible to vote on Election Day but are not yet 18 — for violating the Montana Constitution. H.B. 506 is now struck down, but the other three challenged laws will still head to trial in mid-August. After the conclusion of the trial, the judge will determine if the challenged laws violate the Montana Constitution as alleged. Keep an eye out for an upcoming Case Watch detailing what’s at stake in this lawsuit.
Here are the three laws at issue during the upcoming trial:
- H.B. 176 ends Election Day registration, an option that had been in place in Montana for 15 years. This law is currently in place in Montana after the state Supreme Court reinstated it, meaning voters in Montana cannot currently register on Election Day.
- S.B. 169 narrows the list of eligible IDs to vote. For example, while concealed carry permits count as an acceptable ID, student IDs must now be accompanied with another form of ID. This law is currently in place in Montana after the state Supreme Court reinstated it.
- H.B. 530 prohibits ballot collection efforts completed in exchange for a “pecuniary benefit,” which generally means money. While paid elections officials are exempt from this law, it is otherwise vague as to whether paid employees of voter assistance organizations would violate this law if they assist with ballot collection. This law is currently not in effect after being blocked by the trial court.
Key dates: Trial tentatively scheduled to begin on Aug. 12, 2022
Math and voting rights might both get their day in a Nevada courtroom this month. Back in mid-July, Joey Gilbert — a Republican candidate for governor who lost the June 14 GOP primary election by 11% to Clark County Sheriff Joe Lombard — filed a lawsuit against Nevada state and county election officials challenging the results of the Republican primary election. The lawsuit alleges that the “votes as counted and as announced produce a mathematical and geometrically impossible result” because an “illegal geometric formula” was used to “alter the election results.” Gilbert bases his argument on calculations done by “experts” — one of whom does not actually qualify as an expert under Nevada law — and wants the state court to reject the certification of the primary results and order that a “recount of the vote be mathematically corrected.” A trial is tentatively scheduled to begin on Aug. 12; keep an eye on the case page for any updates.
Key dates: Oral argument on Aug. 2, 2022
Everything is bigger (and more complex) in Texas. Four Republican state legislators (Sen. Bryan Hughes, Sen. Paul Bettencourt, Rep. Briscoe Cain and Rep. Andrew Murr) have thrown a wrench in the lawsuit against the state’s omnibus voter suppression law, Senate Bill 1, by refusing to produce documents related to the passage of the law. The legislators are not defendants in the case, but were served with third-party subpoenas from four sets of plaintiffs (LULAC Texas, Texas AFT, Texas Alliance for Retired Americans and Voto Latino) seeking documents that the plaintiffs believe will shed light on the legislative process. The district court rejected the legislators’ arguments that a large group of documents were privileged (meaning they could not be shared with the plaintiffs because they were protected by legislative and/or attorney-client privilege) and ordered them to produce nearly 300 documents. The legislators appealed this decision to the 5th U.S. Circuit of Appeals and oral arguments on the issue are scheduled for Aug. 2.
It’s notable that this is not the only discovery issue ongoing in Texas: In the lawsuit challenging the state’s new maps, multiple sets of Republican legislators are fighting deposition and document subpoenas because they do not want to share how they drew the new districts.
Redistricting litigation: what to expect.
All 50 states have congressional and legislative maps in place for the 2022 election cycle, but districts in multiple states could change by 2024. Below are a few states to keep in mind as we move towards post-2022 redistricting litigation.
Key dates: Brief due on Aug. 10, 2022
Briefing on the legality of Alabama’s congressional map in the U.S. Supreme Court will wrap up on Aug. 10. A lower court found that the map likely violates the Voting Rights Act (VRA) and blocked it for the 2022 election cycle, but then the nation’s highest court reinstated it for the 2022 elections. The Supreme Court is now reviewing the merits of the case to decide whether or not Alabama’s congressional map violates the VRA by only having one majority-Black district out of seven total districts; the lower court had ruled that a second majority-Black district should also be drawn to adequately represent the state’s Black residents, who make up over 27% of Alabama’s population. The state of Alabama, along with claiming its map doesn’t violate Section 2 of the VRA, wants the Supreme Court to adopt a “race-neutral” approach to redistricting that would effectively eliminate the power behind the provision. Alabama will file its reply brief on Aug. 10, finishing the briefing on the merits for this case. Many other outside groups have already filed “friend of the court” or amicus briefs in support of either Alabama or the parties opposing it. Oral argument before the justices is scheduled for Oct. 4.
Key dates: Oral argument on Aug. 19, 2022
New York’s state Assembly map is set for the 2022 election cycle, but it’s slated to go through a redraw process before the 2024 cycle. Let’s rewind for some context: Back in May, three New York voters filed a lawsuit against the state’s new Assembly map drawn with 2020 census data for allegedly violating the New York Constitution. The lawsuit argues that the Legislature bypassed the citizen-led Independent Redistricting Commission’s authority to enact the districts in violation of a 2014 amendment — a similar argument successfully raised in another lawsuit against the state’s new congressional and state Senate maps — and that the map is therefore invalid. The trial court ruled against the voters after finding that the “untimeliness of Petitioners’ action” — filed months after the map was enacted — weighed in favor of keeping the map in place. The petitioners appealed this decision to a state appellate court, which agreed that the Assembly map was enacted through an unconstitutional process, but it was too late to adopt a new map for the 2022 elections. The appellate court sent the case back to the trial court “for consideration of the proper means for redrawing the state assembly map” for post-2022 elections. The hearing on Aug. 19 will give the parties a chance to share “their views as to the proper means by which to redraw the state assembly map as ordered” by the higher court.
Want to know what actually ends up happening at the end of next month? Subscribe to our monthly newsletter, The Brief, for an in-depth review of legal updates and case breakdowns.
Keep an eye out for our next monthly litigation look ahead in September and stay up to date on important cases and court decisions in August on our Cases and Alerts pages.