Litigation Look Ahead: May 2022
April lawsuits bring May court activity! Litigation was active across the country over the past month, with new lawsuits filed over restrictive voting laws and new maps (or lack thereof) and with courts handing down wins for voters in Kansas and Montana. The flurry of activity continues into May, where we can expect multiple courtroom hearings and potential decisions on voting rights and district lines.
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 below, we’re waiting to see if the Wisconsin Supreme Court makes a decision on the fate of drop boxes in the state, monitoring right-wing attempts in Nevada to dramatically ramp up election observation, keeping tabs on the status of Montana voter suppression laws to see if they’ll be reinstated for the 2022 elections and tracking voter suppression bills in Missouri and New Hampshire. With primary elections picking up in May, there may also be related litigation filed.
On the last day of March, a federal district court judge blocked harmful provisions of Florida’s voter suppression law, Senate Bill 90, and placed the state under preclearance requirements for the next 10 years, which means that certain legislative changes require court approval. Soon after this decision, Florida went to the 11th U.S. Circuit Court of Appeals and asked the court to pause the lower court ruling while the appeal is ongoing. While we haven’t heard from the 11th Circuit yet, we can expect a decision soon on whether or not S.B. 90’s voter suppression provisions will be temporarily reinstated. How the 11th Circuit decides the merits of the appeal will also affect the future of other voter suppression laws in Florida for years to come.
The future of mail-in voting in Pennsylvania continues to hang in limbo. While we wait for the Pennsylvania Supreme Court to issue a decision on the state’s no-excuse mail-in voting law in McLinko v. Degraffenreid, another related issue is being litigated in federal court. Last fall, 257 mail-in ballots were not counted in an election to select judges for the Court of Common Pleas, the state’s trial court. The reason these ballots were rejected? There was not a handwritten date next to their voter declaration signature on the outer ballot envelope, but everything else was correctly filled out. After a state court ruled that the ballots could not be counted, five voters whose ballots were rejected filed a lawsuit in federal district court alleging that not counting these ballots violates the Civil Rights Act of 1964 because the ballots were rejected for an “immaterial technical defect” that is unrelated to the voter’s eligibility. In turn, the lawsuit alleges this unduly burdens voters in violation of the First and 14th Amendments. The district court ruled in favor of the Lehigh County Board of Elections, specifically finding that the plaintiffs do not have the right to sue under the asserted provision of the Civil Rights Act. The plaintiffs appealed this decision to the 3rd U.S. Circuit Court of Appeals and oral argument is scheduled for May 18. What started out as a small batch of ballots in one county being rejected for a minor omission could implicate how mail-in ballots are counted across the state in future elections.
Redistricting litigation: what to expect.
Map drawing is complete in all but two states (Missouri and New Hampshire), but litigation over finalized district lines will continue for months to come.
After a partisan gridlock appeared to hold Louisiana’s new congressional map hostage, Republicans in the Legislature overrode Gov. John Bel Edwards’ (D) veto to enact their previously passed map. Edwards had vetoed the map for failing to include a second majority-Black district out of six total districts, despite the fact that one-third of Louisiana’s population is Black and votes as a bloc. Immediately after the veto override, two lawsuits were filed on behalf of voters and civil rights groups challenging the map for this exact reason. The plaintiffs in the suits, which were consolidated, argue that Black voters are “cracked” across multiple districts and “packed” into one district to ensure that they can only elect their candidate of choice in one congressional district in violation of Section 2 of the Voting Rights Act (VRA). Since Black voters can make up a majority in a second congressional district and Black Louisianans typically vote as a bloc differently than white Louisianans, the plaintiffs suggest that a second majority-Black district is required under the VRA. The plaintiffs have asked the court to block the current map and order the creation of a new map with two majority-Black districts for the 2022 election cycle. A hearing on these motions is scheduled for May 9-13, 2022.
Republicans in the Missouri Legislature remain deadlocked over how to draw the state’s eight congressional districts. Having blown past the candidate filing period, and with no resolution on the horizon, three impasse lawsuits have been filed asking courts to step into the map-drawing process. Two lawsuits, Pereles v. Ashcroft and Thomas v. Missouri, were filed in state court by voters from both sides of the aisle asking the court to ensure a new congressional map is in place in time for the 2022 elections. One lawsuit, Berry v. Ashcroft, was filed in federal court and asks the same. With any luck, we’ll see some movement regarding Missouri’s congressional districts over the next month.
New Hampshire still does not have a new congressional map based on 2020 census data thanks to disagreements between Republicans on how much to gerrymander the state’s two districts. An ongoing lawsuit seeks to remedy this impasse by asking the state court system to take over redistricting and adopt a new map in time for the 2022 election cycle. With candidate filing set to open on June 1, the New Hampshire Supreme Court is moving forward with map drawing in the event the Legislature and governor fail to reach an agreement. On May 4, oral argument will be held before the court on preliminary issues, including whether the current congressional map based on 2010 census data is malapportioned (the plaintiffs argue it is) and the parameters and time frame for adopting a new map. If needed, another hearing addressing these issues will be held before the court-appointed special master on May 19. Finally, following the special master’s recommendations for a new map, oral argument on his suggestions is scheduled for May 24. If everything remains on schedule, New Hampshire should have a new congressional map in time for upcoming election deadlines.
After New York’s highest court struck down the state’s congressional and state Senate maps for violating the New York Constitution, the districts were sent back to the trial court for redrawing where the judge and a court-appointed special master will take over. A hearing on proposed replacement maps will be held before the trial court judge and special master on May 6. The trial court has indicated that new congressional and state Senate districts will be finalized by May 20. Keep an eye on this case page for any timing updates over the next month, as things could shift.
Two Republican voters filed a lawsuit against North Dakota’s new legislative districts alleging that certain districts are racial gerrymanders that violate the 14th Amendment because race was used as the predominant factor in line drawing without any compelling state interest. The plaintiffs specifically point to districts that encompass two Native American reservations to argue that these districts were created “solely on the basis of race” without an adequate analysis of racial voting patterns. The Republicans have filed a motion for a preliminary injunction seeking to block the legislative districts for the 2022 election cycle; a hearing is scheduled for May 5. A second challenge to North Dakota’s legislative districts argues the opposite of the Republican lawsuit: that the new legislative districts dilute the voting strength of Native Americans in the state in violation of Section 2 of the VRA. However, this lawsuit is not seeking relief in time for the 2022 election cycle.
The fight over Ohio’s legislative maps carries on into a new month. In April, the Ohio Supreme Court struck down the fourth iteration of General Assembly maps for unduly favoring Republicans in violation of the Ohio Constitution. The Ohio Redistricting Commission was given a May 6 deadline to pass a fifth round of maps, after which the state Supreme Court will review them to determine if the fifth time’s the charm. Meanwhile, a three-judge panel in federal court has stated it will stay out of the process until May 28 to give the state time to work out districts. However, if legal maps are not in place by this date (which seems likely given past patterns), the federal panel will impose the third iteration of legislative maps for the 2022 election cycle — even though these maps were already struck down by the Ohio Supreme Court. Ohio officials have already had to postpone the state’s primary elections for legislative races, spending millions of dollars in the process, and it looks like a resolution could still be a ways away.
A challenge to South Carolina’s state House districts is slated to go to trial starting on May 16. A lawsuit filed on behalf of the South Carolina State Conference of the NAACP argues that multiple state House districts are racial gerrymanders because race was intentionally used as the predominant factor in their line drawing without any compelling reason (such as compliance with the VRA). According to the complaint, the resulting districts dilute the voting strength of the state’s Black voters in violation of the 14th and 15th Amendments. Over the course of the trial, both sides will present evidence regarding the constitutionality of the challenged state House districts and the three-judge panel presiding over the case will decide whether the districts are legal or not. This lawsuit similarly challenges South Carolina’s new congressional map for being a racial gerrymander, but those claims will not go to trial until the fall.
Keep an eye out for our next monthly litigation look ahead in June. In the meantime, be sure to stay up to date on important cases and court decisions on our Cases and Alerts pages.