Litigation Look Ahead: September 2022

Key dates: Hearing on Sept. 8, 2022

A new Arizona law signed in July is already getting its day in court this month. Last month, the  Arizona Asian American Native Hawaiian and Pacific Islander for Equity Coalition sued the state over two new voter suppression laws and now it is trying to block one of those laws — House Bill 2243 — from going into effect on Sept. 24. H.B. 2243 enables county recorders to purge voters from the rolls so long as county recorders have a “reason to believe” that a voter is not a U.S. citizen based on a comparison of voter registrations to information from the state’s driver license database. The organization argues in its lawsuit that this process will lead to a voter purge that is likely to target voters of color and naturalized voters. In filing a motion for a preliminary injunction seeking to stop H.B. 2243’s implementation, the plaintiff alleges that the upcoming purge of voters would violate federal law by canceling registrations within 90 days of a federal election and imposing inconsistent standards for determining registration eligibility. A hearing on the plaintiff’s motion for a preliminary injunction is scheduled for Sept. 8.

Key dates: Oral argument on Sept. 15, 2022

After a favorable ruling from a federal district court that blocked the most harmful provisions of Florida’s Senate Bill 90, the omnibus voter suppression law will be put to the test again this month, this time before a federal appellate court. Back in March, a district court judge blocked three parts of S.B. 90 — a line-warming ban, drop box restrictions and a warning requirement for third-party voter registration organizations — after finding that these policies “specifically target Black voters” in violation of the Voting Rights Act (VRA) and 14th and 15th Amendments of the U.S. Constitution. In an extraordinary move, the district court also placed Florida under preclearance requirements for the next 10 years — a power granted to federal courts under a section of the VRA if they find that jurisdictions have engaged in intentional discrimination in voting practices — in concluding that “Florida has repeatedly, recently, and persistently acted to deny Black Floridians access to the franchise.” Naturally, the state appealed this decision to the 11th U.S. Circuit Court of Appeals, which paused the lower court’s order while it decides the appeal. Oral argument is scheduled before the appellate court on Sept. 15 where the state’s Republican election officials along with the Republican National Committee and National Republican Senatorial Committee will argue that the previously blocked provisions of S.B. 90 aren’t “intentionally discriminatory” against Black Floridians in violation of federal law and the U.S. Constitution. Their end goal? Keeping S.B. 90’s suppressive provisions in place.

Key dates: Oral argument on Sept. 20, 2022

Kansas doesn’t always get front page coverage (except when impressive primary turnout shut down a proposed anti-choice amendment), but that doesn’t mean its voter suppression laws aren’t as harmful as those in big ticket states such as Georgia, Florida or Texas. After the Sunflower State adopted two new voter suppression laws in 2021, a lawsuit was filed challenging provisions that criminalize engaging in election-related activity that “gives the appearance” of being an election official, limit ballot collection and impose a signature match requirement. The litigation got a bit complicated over the past year: Before the Kansas Court of Appeals, the League of Women Voters of Kansas, Loud Light, Kansas Appleseed and Topeka Independent Resource Center are fighting the ballot collection restrictions and signature match requirements after a district court tossed their lawsuit. Oral arguments before the court of appeals regarding the fate of these two provisions is scheduled for Sept. 20. Separately, before the Kansas Supreme Court, there is also an ongoing appeal of the provision that criminalizes the false representation of an election official; this will continue into the fall. Currently, all three challenged provisions pending before both the Kansas Court of Appeals and Kansas Supreme Court are in effect.

Key dates: Oral argument on Sept. 12, 2022

As we ramp up for the midterms, litigation over the 2020 election is still not over. On Sept. 12, the Commonwealth Court of Pennsylvania will hear oral argument in a case concerning a Republican-led investigation of the 2020 election. This Republican audit requests the “names, dates of birth, driver’s license numbers, portions of social security numbers and addresses of all registered voters in the Commonwealth” in order to provide this information to a third-party contractor that will allegedly investigate election allegations and voter information. The sharing of this information could empower vigilantes and instill doubt in the electoral process. During oral argument, Democratic state senators are expected to argue that the audit violates state and constitutional authority since it involves requesting the personal information of voters that is illegal to share publicly.

Key dates: Hearing on Sept. 7, 2022

In mid-July, Republican voters and the Republican Party of Waukesha County filed a lawsuit challenging the Wisconsin Elections Commission’s (WEC) guidance instructing election officials to fill in missing or insufficient information on absentee ballot certificate envelopes. Under Wisconsin law, absentee ballots must be accompanied by a witness certificate proving that the voter completed their absentee ballot in the presence of a witness. In line with this requirement, WEC issued guidance allowing election officials to fill in any missing information (such as an incomplete address) on these certificates if they can find reliable information. Other WEC guidance instructs officials to avoid contacting voters or witnesses to fix any absentee ballot defects if the officials can “reasonably discern” information to fill in. The Republican plaintiffs, alleging that they are “harmed” by this protocol for processing absentee ballots, want this WEC guidance to be invalidated for allegedly violating Wisconsin law. They are seeking a preliminary injunction that would block this guidance for the November midterm elections; a hearing on their request is scheduled for Sept. 7. While this may seem like a technical detail regarding mail-in voting, altering this guidance has the potential to upend absentee voting in the state, especially given the massive increase in this method of voting since 2020. Nearly 2 million absentee ballots were processed during the 2020 general election.

Key dates: Amicus briefs due Sept. 5, 2022

Briefing in Moore v. Harper — the case focused on the radical independent state legislature (ISL) theory that the U.S. Supreme Court is hearing in its term starting this fall — has kicked off. On Aug. 29, the Republican lawmakers raising the ISL theory, which posits that state legislatures have exclusive authority to set federal election rules, including drawing congressional maps, free from interference or review from other parts of the state government, filed their opening brief. Their end goal is for the Court to toss out North Carolina’s remedial congressional map adopted by the state court system after its first map was invalidated for violating the state constitution, along with redefining the power of state legislatures to control federal election rules without any oversight from governors, state courts, the people or even state constitutions themselves. Sept. 5 is the deadline for amicus (friend of the court) briefs to be filed in support of this position. Briefing will continue throughout this fall, but every single stage of this case is crucial to pay attention to given the potential ramifications of this fringe, right-wing theory.