Litigation Look Ahead: December

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We made it through the 2022 midterm elections and now 2023 is right around the corner. During the last month of the year, the U.S. Supreme Court will hear a case out of North Carolina that could upend federal elections. Meanwhile, redistricting litigation is in full swing and courts across the country are weighing legal challenges to voter suppression laws.

Below we outline cases with courtroom activities or filings to look out for this 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 and News Alerts pages for any developments in these lawsuits and others.

Voting rights litigation: what to expect.

Along with the lawsuits described below, we’re monitoring litigation in Connecticut over the state’s early voting ballot measure.

Key dates: Hearings on Dec. 7 and 15, 2022

In Arizona Republican Party v. Hobbs, the Arizona Republican Party and its chairwoman are challenging the state’s no-excuse mail-in voting system, which has been extremely popular since it was instituted in 1991. The plaintiffs argue that the Arizona Constitution requires in-person voting on specific days and, because mail-in voting does not follow these rules, it is unconstitutional and must be struck down. Notably, this is the plaintiffs’ second attempt to disband the state’s mail-in voting system after their first attempt was rejected by the Arizona Supreme Court. In June, a state trial court judge in Arizona rejected the Republicans’ second attempt to disband no-excuse mail-in voting across the state, finding that Arizona’s mail-in voting system does not violate the Arizona Constitution. The Republicans appealed this decision and oral argument is scheduled before the appellate court on Dec. 7. However, Arizona Secretary of State Katie Hobbs (D) has asked for this oral argument to be moved to a later date, so this schedule may change in the first week of December.

Mi Familia Vota v. Hobbs, a consolidated case made up of seven legal challenges — including one brought by the U.S. Department of Justice — to two of Arizona’s new voter suppression laws, House Bill 2492 and House Bill 2243, heads to court this month. H.B. 2492 requires Arizonans using federal voter registration forms to provide documents proving their citizenship and requires election officials to provide the Arizona attorney general with a list of voters who do not provide satisfactory proof of citizenship for investigation. H.B. 2243 requires county recorders to cancel a voter’s registration if they receive information that a voter is not qualified to vote or if the county officials have a “reason to believe” that a voter is not a U.S. citizen. Both laws were immediately challenged in court for allegedly violating the U.S. Constitution and federal law. On Sept. 8, a federal court temporarily blocked the implementation of H.B. 2243 by approving an agreement between one set of plaintiffs and Hobbs, leaving the law blocked for the 2022 midterm elections. Litigation continued on though, with the state defending the challenged laws and suggesting that the laws were “enacted to promote election modernization, prevent voter fraud, and safeguard voter confidence in Arizona’s election system, in part by requiring Arizona residents to show evidence of U.S. citizenship.” The state now asks the federal district court to dismiss the consolidated case based on technical defects. A hearing on the state’s motion to dismiss is scheduled for Dec. 15.

Key dates: Hearing on Dec. 7, 2022

This month, a federal judge in Illinois will hold a hearing in a Republican lawsuit alleging that Illinois’ mail-in ballot receipt deadline violates federal law. The Republican plaintiffs argue that federal law requires states to hold Election Day on the first Tuesday in November and contend that Illinois violates federal law by allowing mail-in ballots to be counted for up to two weeks after Election Day. The defendants — the Illinois State Board of Elections and its members — want the lawsuit to be dismissed, arguing that rejecting validly cast mail-in ballots received after Election Day would result in the disenfranchisement of millions of Illinoisans who rely on mail-in voting and whose ballots might not arrive by Election Day due to “delayed mail delivery and/or inconsistent postmarking practices.” The judge will hear both sides’ arguments on Dec. 7 and determine the future trajectory of the lawsuit.

Redistricting litigation: what to expect.

With the 2022 elections behind us, ongoing redistricting litigation now looks at district lines for 2024 and beyond. Along with the lawsuits below, we’re waiting for further briefing in the U.S. Supreme Court on a request from Ohio Republicans who, by invoking the independent state legislature (ISL) theory, are asking the nation’s high court to review the Ohio Supreme Court’s decision to strike down the state’s congressional map.

Key dates: Oral argument on Dec. 14, 2022

The 8th U.S. Circuit Court of Appeals will hold oral argument on Dec. 14 in a lawsuit alleging that Arkansas’ state House map dilutes the voting strength of Black Arkansans in violation of Section 2 of the Voting Rights Act (VRA). Notably, a federal judge in a lower court ruled earlier this year that there is no private right of action under Section 2 of the VRA, meaning only the U.S. attorney general — and not individuals and organizations — can bring Section 2 lawsuits. This lower court’s ruling, which rejected decades of case precedent, was immediately appealed and will be the focus of oral argument on Dec. 14.

Key dates: Oral argument on Dec. 15, 2022

In mid-December, the 11th U.S. Circuit Court of Appeals will hold oral argument in a years-long lawsuit over the way members are elected to Georgia’s Public Service Commission, which is responsible for regulating public utilities. The lawsuit was filed in 2020 by Black voters registered in Fulton County, Georgia challenging the at-large method used to elect members of the commission for diluting the voting power of Black Georgians in violation of Section 2 of the VRA. A federal district court agreed with the plaintiffs, finding that the commission’s statewide elections dilute Black voting power in violation of the VRA and delayed the commission’s November 2022 elections to remedy the violation. The state appealed this decision to the 11th Circuit, which paused the district court’s order. This pause was lifted by the U.S. Supreme Court, which meant that elections weren’t held for the Georgia Public Service Commission this past November. Litigation continued back in the 11th Circuit and now the appellate court will hear the state’s appeal of the district court’s decision on Dec. 15.

Key dates: Oral argument on Dec. 7, 2022

On Wednesday, Dec. 7, the U.S. Supreme Court will hear Moore v. Harper, a case out of North Carolina that gives the Court the opportunity to review the fringe ISL theory. This right-wing constitutional theory suggests that state legislatures — and only state legislatures — have special authority to set federal election rules and draw congressional districts, free from interference from other parts of the state government such as state courts and governors. This special authority, according to the ISL theory, means that only state legislatures can draw new congressional districts and any map adopted by a state judicial system is unconstitutional. This is where North Carolina comes in: The state’s Republican legislators are arguing that the North Carolina court system’s involvement in striking down a congressional map drawn by the Legislature and replacing it with a map drawn outside of the Legislature is unconstitutional. How the Court rules on this issue raised in Moore could shape state legislatures’ power in regulating federal elections — and the checks and balances on this power — for years to come. You can read a full breakdown of the case here and get live updates on the oral argument here.

Subscribe to our monthly newsletter, The Brief, for an in-depth review of legal updates at the end of the month and look out for our end of year content summarizing all the biggest voting rights news from 2022. In the meantime, stay up to date on important cases and court decisions in December on our Cases and News Alerts pages.