Litigation Look Ahead: October 2022

Key dates: Oral argument on Oct. 6, 2022

On Sept. 14, a Delaware trial court upheld a new law creating same-day voter registration while simultaneously striking down a law that allowed any voter to request a mail-in ballot without an excuse. The judge, citing precedent (prior rulings in the state court system), found that the state constitution’s list of reasons a voter may request an absentee ballot is exhaustive and that no-excuse mail-in voting therefore violates Delaware law. Five days after this ruling, the court paused its order pending appeal, which means that no-excuse mail-in voting will be in place while litigation continues. Now, the Delaware Supreme Court will decide the long-term fate of no-excuse mail-in voting. Oral argument is scheduled on Oct. 6.

Key dates: Oral argument on Oct. 3, 2022

Back in 2018, North Carolina voters challenged a North Carolina law, Senate Bill 824, that provides a narrow list of qualifying photo IDs acceptable for voting. The plaintiffs argue that this law violates the Equal Protection Clause of the North Carolina Constitution because it was passed with the intent to discriminate against African American voters, who are less likely to have one of the eligible IDs and face more barriers than other voters when obtaining an eligible ID. A state court temporarily blocked the enforcement of the law as litigation proceeded. Following a trial in September 2021 a three-judge panel found that the law was passed with the intent, at least in part, to discriminate against Black voters in violation of the state constitution and permanently blocked it. The defendants — Republican legislators, the state of North Carolina and the North Carolina Board of Elections — appealed this decision to the North Carolina Court of Appeals, but the plaintiffs then asked the North Carolina Supreme Court to directly hear the appeal to avoid any unnecessary delay in obtaining a resolution. The state Supreme Court accepted the petition and will hear oral argument on Oct. 3 on whether or not S.B. 824 violates the North Carolina Constitution.

Key dates: Hearings on Oct. 7 and 12, 2022

Even though mail-in ballots have already dropped in Pennsylvania, Republican attacks on mail-in voting continue. On Sept. 1, America First Legal — a conservative group founded by Mark Meadows and Stephen Miller — filed a lawsuit on behalf of voters in Lehigh County, Pennsylvania against the Lehigh County Board of Elections challenging the rules regulating the use of drop boxes throughout the county. The plaintiffs allege that the current lack of guidance regarding the use of drop boxes violates the Pennsylvania Election Code and ask the court to prohibit Lehigh County from using drop boxes unless “they are physically monitored in-person to assure that the person delivering the ballot is only delivering his or her own ballot.” The Pennsylvania Alliance for Retired Americans filed a motion to intervene in the lawsuit to defend the use of drop boxes in the county. A hearing will be held to decide the Republicans’ request on Oct. 7.

The fight against mail-in voting in the commonwealth doesn’t stop there. In another lawsuit, Republican members of the Pennsylvania House of Representatives are trying to eliminate Act 77, a 2019 law that largely expanded mail-in voting opportunities in the commonwealth. Notably, Act 77 was passed with the support of 11 out of the 14 Republican legislators who are now suing to strike down the law. And, the exact same group of plaintiffs already sued over the law in 2021 and lost their case on Aug. 2, 2022 when the Pennsylvania Supreme Court upheld the law. In their newest lawsuit, the Republican legislators take a new approach and argue that Act 77 should be struck down in its entirety because of the law’s “nonseverability provision,” which states that “if any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void.” The plaintiffs contend that in light of a federal lawsuit, Migliori v. Lehigh County Board of Elections, in which the 3rd U.S. Circuit Court of Appeals prohibited the application of two provisions of Act 77 requiring voters to date their outer secrecy envelopes for mail-in ballots, the entire law should be void. The petitioners request that the court declare all remaining provisions of Act 77 that are still in effect invalid. Oral argument before the Commonwealth Court of Pennsylvania is scheduled for Oct. 12.

Key dates: Oral argument on Oct. 6, 2022

On Aug. 2, a federal district court struck down strict residency requirements for voter registration in Texas’ Senate Bill 1111, one of the voter suppression laws Republican legislators passed in 2021. After the Texas State League of Latin American Citizens and Voto Latino sued over the law, the court blocked the provisions that prohibited voters from registering to vote using a prior address after they moved and prevented voters from registering to vote where they did not live full time. The court also held that the state cannot impose strict ID requirements for registration on voters who use a P.O. box to register to vote but do not claim to live at the address. The state appealed this decision to the 5th U.S. Circuit Court of Appeals, which temporarily paused the lower court’s order while the appeal is ongoing. Now that both sides have filed briefs in support of or against the strict residency requirements, the 5th Circuit will hear oral argument on Oct. 6.

Key dates: Hearing on Oct. 5, 2022

We’ve been seeing a lot of litigation from right-wing groups based in Wisconsin. This year alone, conservative litigation has sought to end the use of a mobile voting van in Racine, challenged the use of a national voter registration form and successfully ended the use of drop boxes in the state. Now, Republicans are going after a technical part of the mail-in voting process. In a lawsuit filed in late September on behalf of a voter, a Wisconsin voter sued the Wisconsin Elections Commission (WEC) over its guidance regarding “spoiled absentee ballots.” Currently, WEC guidance allows for voters to request to spoil (meaning destroy) their absentee ballots and vote in person or “request to spoil that ballot and receive a new one in the event the voter makes a mistake or changes their mind.” The plaintiff alleges that this practice violates Wisconsin law and “opens the door to increased risk of chaos, fraud, or other illegalities in the absentee voting process.” The lawsuit asks a state trial court to block WEC’s guidance and a hearing on its motion for a temporary restraining order is slated for Oct. 5. Rise — a student-led nonprofit focused on empowering and mobilizing college students and youth voters — filed a motion to intervene in the lawsuit to defend WEC’s current guidance.

Key dates: Oral argument before the U.S. Supreme Court on Oct. 4, 2022

The U.S. Supreme Court’s term starts on the first Monday in October; this year, that’s Oct. 3. The following day, on Oct. 4 at 10 a.m. EDT, the Supreme Court will hear oral argument in Merrill v. Milligan, the case focused on Alabama’s congressional map and Section 2 of the Voting Rights Act (VRA). The state of Alabama wants the Court to adopt a “race-neutral” approach to redistricting that would effectively eliminate the power behind Section 2, which currently prohibits any law that has the intent or effect of denying or abridging the right to vote “on account of race or color.” This interpretation of Section 2 would cause very tangible harm to minority voters, particularly Black voters in southern states, such as Georgia and Louisiana, with sordid histories of racial discrimination, given that the ability to both create and protect majority-Black districts could be lost. You can read an in-depth breakdown of the lawsuit here, take a peek at the amicus (“friend of the court”) briefs filed in support of or against Alabama’s position and tune into Democracy Docket’s live coverage of the oral argument here.

Key dates: Oral argument before the North Carolina Supreme Court on Oct. 4, 2022; U.S. Supreme Court briefs due on Oct. 16 and 26, 2022 

At this point, you’ve likely read about Moore v. Harper, the U.S. Supreme Court case that threatens to upend the way federal elections are run. The case, which originated out of a redistricting battle over North Carolina’s congressional map, raises the right-wing independent state legislature (ISL) theory, which argues that the Elections Clause of the U.S. Constitution gives state legislatures exclusive authority to set federal election rules, including drawing congressional maps, free from interference from other parts of the state government like state courts and governors. Briefing is ongoing before the Supreme Court: The brief in support of adopting the ISL theory (and amicus briefs in support of this position) have already been filed. The side opposing any application of the ISL theory will file its merits brief on Oct. 16 and any amicus briefs in support of this side are due on Oct. 26.

But, that’s not the only activity going on in Moore. While the U.S. Supreme Court decides the validity of the ISL theory, a different part of the case is simultaneously being litigated before the North Carolina Supreme Court. Let’s rewind back to February, when a North Carolina trial court adopted new state House, state Senate and congressional districts after the first round of maps were tossed for violating the North Carolina Constitution. What happened next? While the Republican legislators in the case went to the U.S. Supreme Court raising the ISL theory, multiple appeals were filed in the North Carolina Supreme Court over the legality of the new maps adopted by the state trial court. Litigation is ongoing before the state Supreme Court over the following: 

• The Harper, Common Cause and NCLCV plaintiffs appealed the remedial state Senate map for being a pro-Republican partisan gerrymander that violates the state constitution.
• The Common Cause plaintiffs also appealed the remedial state House map for being a pro-Republican partisan gerrymander that violates the state constitution.
• The Republican legislative defendants appealed the remedial congressional map that’s only in place for the 2022 election cycle. They tried to dismiss their own appeal after the U.S. Supreme Court agreed to hear their case, but that motion has not yet been ruled on.

The North Carolina Supreme Court will hear oral argument on these appeals on Oct. 4 at 1 p.m. EDT.

Key dates: Trial starts on Oct. 3, 2022

A lawsuit is currently challenging South Carolina’s congressional map drawn with 2020 census data for being a racial gerrymander in violation of the 14th and 15th Amendments. The plaintiffs, the South Carolina State Conference of the NAACP and a voter, argue that race was the predominant factor used by the South Carolina Legislature to draw certain congressional districts and are therefore unconstitutional. A trial on the congressional map is slated to start on Oct. 3.