Litigation Look Ahead: February

Key dates: Hearing on Feb. 1, 2023

A multi-year long lawsuit alleging that an organization intimidated Georgia voters is finally going to have its day in court. Fair Fight v. True the Vote, filed in December 2020 by Fair Fight and two voters, claims that the right-wing group True the Vote violated Section 11(b) of the Voting Rights Act of 1965 (VRA) by illegally intimidating voters in Georgia. Among other actions, the lawsuit focuses on True the Vote’s attempt to challenge the eligibility of over 350,000 Georgia voters ahead of the Senate runoff elections in January 2021, leading to tangible consequences for Georgians at the center of the challenges. Both sides filed motions for summary judgment (asking the court to rule on the case based on the facts presented before holding a trial), which are the subject of the Feb. 1 hearing. Fair Fight argues that True the Vote’s actions — which include challenging voters’ registration “on the basis of unreliable information,” “recruiting ‘citizen watchdogs’ to watch voters return their ballots” and “offering a $1 million reward to incentivize its supporters to find evidence of ‘illegal voting’” — are clearly illegal and the “only plausible outcome of Defendants’ challenges and election-subversion activities is voter harassment and intimidation.” True the Vote rejects this argument, countering that the group and its volunteers legally submitted voter challenges in line with Georgia law and never intimidated voters in violation of Section 11(b). Going even further, True the Vote suggests that its actions are protected by the First Amendment, so Section 11(b) of the VRA is unconstitutional.

The lawsuit had an interesting development in late 2022 when the judge presiding over the case asked the U.S. Department of Justice (DOJ) if it wanted to participate in the lawsuit given that the defendants questioned the constitutionality of Section 11(b). The DOJ accepted the invitation and filed its own brief in support of Fair Fight, defending the constitutionality of Section 11(b) and asserting that the provision should be interpreted broadly to cover voter challenges as potentially unlawful voter intimidation. During the Feb. 1 hearing, both the plaintiffs and the DOJ will present their arguments as to why True the Vote’s actions were illegal, while True the Vote will argue the opposite and defend itself.

Key dates: Hearing on Feb. 1, 2023

On Feb. 1, the Kansas Supreme Court will hold oral argument in League of Women Voters of Kansas v. Schwab, a lawsuit filed in 2021 challenging two of the state’s newly enacted voter suppression laws. The two laws at issue in the case criminalize voter assistance, limit ballot collection, restrict advocacy organizations from helping voters, impose a signature verification requirement and more. Most of the claims have been dismissed (a decision that’s being litigated in a separate appeal), so the oral argument on Feb. 1 only involves provisions that criminalize the action of “knowingly misrepresenting” oneself as an elections official or engaging in election-related activity that “gives the appearance” of being an election official. The nonprofit organizations behind this lawsuit asked for these provisions to be blocked in 2021, pointing out that it’s already illegal under Kansas law to impersonate an election official and these provisions instead restrict and criminalize protected political speech using a “a highly subjective standard.” Lower courts denied this request, bringing the case up to the state Supreme Court. As the organizations previewed in the lower courts, since the law was enacted in 2021 these groups have been forced to stop their voter activities for fear of prosecution: “Unrebutted evidence showed that [the organizations] have severely restricted, and in some cases completely stopped, their voter engagement and registration activities for fear of prosecution under the new law.”

Key dates: Oral argument on Feb. 2, 2023; Expect other developments throughout the month

On Feb. 2, a crucial case about North Carolina’s felony disenfranchisement law will be before the newly elected Republican North Carolina Supreme Court. Following a trial in summer 2021, a trial court ruled in a 2-1 decision that the state’s law that disenfranchises individuals on felony probation, parole or post-release supervision violates the North Carolina Constitution because it discriminates against Black voters and denies people the fundamental right to vote. This ruling immediately enfranchised over 55,000 people who were on probation, parole or a suspended sentence due to a prior felony conviction at the time of the ruling. However, the North Carolina Supreme Court rolled back this victory when it agreed to pause the trial court’s ruling while the case is on appeal. This means that individuals in the state who are on probation, parole or a suspended sentence cannot register to vote while the case moves through the appeals process, though individuals who registered before the pause was in place were still considered registered voters. On Feb. 2, the state’s highest court will hear oral argument and determine if over tens of thousands people should remain disenfranchised in the state.

The North Carolina Supreme Court’s docket will remain busy for the rest of the month as it weighs two pending petitions for rehearing. On Jan. 20, North Carolina Republicans asked the court to rehear two cases they lost — one challenging a restrictive photo ID to vote law and one over the state’s congressional and legislative maps — after the court shifted from blue to red in the 2022 midterm elections. Under North Carolina law, the state Supreme Court has to grant or deny the petitions within 30 days, which falls on Feb. 21 due to Presidents’ Day on Feb. 20.