Looking Ahead: Litigation in the New Year

In Mecinas v. Hobbs, Democratic organizations have appealed to the 9th U.S. Circuit Court of Appeals in order to challenge Arizona’s ballot order statute. The law requires that candidates affiliated with the same political party as the gubernatorial candidate who won the most votes in a county are listed first on that county’s ballots. The plaintiffs allege this law treats similarly situated political parties differently and violates the First and 14th Amendments. The U.S. District Court for the District of Arizona dismissed the case after holding that the plaintiffs lacked standing to challenge the ballot order statute, which they appealed. Oral argument is scheduled for Jan. 14 before the 9th Circuit, in which the Democratic organizations will argue that they have standing.

A lawsuit was brought by the League of Women Voters of Arkansas and Arkansas United against four new voter suppression laws. The laws attack every aspect of the election process: House Bill 1715 establishes a new absentee ballot application signature match; Senate Bill 643 limits the absentee ballot return period; House Bill 1112 requires voters who lack proper ID when casting their ballots to bring a form of identification to the county clerk’s office within six days; and Senate Bill 486 bans anyone except voters from coming within 100 feet of a polling place, including volunteers who are distributing food and water to voters in long lines. The state trial court denied the defendants’ motion to dismiss the lawsuit last fall, and the defendants then appealed this to the Arkansas Supreme Court. Discovery is still proceeding at the trial court level while the appeal is litigated; a trial currently scheduled for February. At the close of the trial, the judge will determine if the challenged laws violate the Arkansas Constitution like the plaintiffs allege.

Four lawsuits challenging provisions of Florida’s new voter suppression law, Senate Bill 90, are headed to a consolidated trial (meaning all four cases will be tried jointly) in late January after a federal district court judge denied attempts by Republican officials to throw out the cases in full. These cases, brought by various voting and civil rights organizations and Florida voters against election officials, challenge the most restrictive parts of S.B. 90, including new drop box restrictions, a vote by mail repeat request requirement, a volunteer assistance ban, a deceptive registration warning and voter ID requirements. In total, the plaintiffs allege that these provisions violate Section 2 of the Voting Rights Act (VRA); the First, 14th and 15th Amendments and Title II of the Americans with Disabilities Act by discriminating against voters of color and voters with disabilities and placing undue burdens on free speech and the right to vote. During the bench trial, after both sides present their arguments, evidence and witnesses, the judge will determine if the challenged provisions violate any federal laws or constitutional provisions.

League of United Latin American Citizens of Iowa v. Pate is scheduled to go to trial in mid-March before an Iowa state court. The lawsuit challenges two new voter suppression laws, Senate File 314 and Senate File 568. Specifically, the lawsuit challenges the following provisions for imposing undue burdens on the right to vote and violating equal protection and free speech guarantees in the Iowa Constitution: fewer voter registration opportunities, a shortened period to request and return an absentee ballot, fewer poll hours on Election Day, limits on satellite voting locations and drop boxes and restrictions on who can assist voters with returning their ballots. The bench trial, which is expected to last around 10 days, will determine if the challenged provisions violate the Iowa Constitution and need to be blocked.

Likely by the end of June, the U.S. Supreme Court will rule on whether North Carolina Republican officials can intervene in a case challenging the state’s strict photo ID law. This relates to a lawsuit filed in 2018 by the North Carolina State Conference of the NAACP and other local chapters against a 2018 law that requires voters to provide one of 10 authorized photo IDs to vote absentee or in person. The complaint alleges that this ID provision disproportionately burdens Black and Latino residents in violation of the VRA and the 14th and 15th Amendments. The Republican leaders of the North Carolina Senate and House of Representatives tried unsuccessfully to intervene in the case three separate times — twice before the district court and once before the 4th U.S. Circuit Court of Appeals. The Supreme Court then granted the Republicans’ petition asking it to rule on their right to intervene. Until the Supreme Court determines if the Republicans can intervene in the case, the federal district court has stayed (meaning paused) the case (including a trial that was scheduled for January).

On Jan. 4, 2022, a hearing is scheduled about a conservative group’s challenges to Wisconsin’s drop boxes. In response to the COVID-19 pandemic, the Wisconsin Elections Commission (WEC) issued guidance encouraging the use of drop boxes for the 2020 primary and general elections. A lawsuit was filed by conservative group, Wisconsin Institute for Law & Liberty (WILL), against the WEC challenging this and trying to ban drop boxes in the state. The plaintiffs allege that the guidance is contrary to Wisconsin election laws and are asking the state court to issue a preliminary injunction (to prevent the use of drop boxes while litigation continues) and grant their motion for summary judgment (asking the judge to rule on their claims without a full trial). The hearing on Jan. 4 — postponed after originally being scheduled in December — will focus on these two motions and determine the status of drop boxes in Wisconsin, either temporarily as litigation continues or permanently.

Another Wisconsin voting rights lawsuit will make a court appearance in February. After being filed in 2015 and moving through various levels of the court system, One Wisconsin v. Thomsen is headed to trial before a district court judge. The trial will focus on Wisconsin’s ID petition process — how voters can obtain a valid ID if they lack the required documentation — to determine if it places unreasonable burdens on the right to vote. 

Three lawsuits challenging Alabama’s new congressional map on racial grounds have a preliminary injunction hearing in federal court scheduled for Jan. 4, 2022. The cases — Singleton v. Merrill, Caster v. Merrill and Milligan v. Merrill — challenge the new map for different reasons, but all parties want the current map to be blocked from being used in future elections and ask for a new map to be drawn that accurately reflects the state’s Black population. The Singleton plaintiffs, a group of Alabama voters, argue that the new congressional map, particularly the 7th Congressional District, is a racial gerrymander that violates the 14th Amendment of the U.S. Constitution because race was used as the predominant factor in drawing districts without any compelling state or VRA interest. They want the court to issue a preliminary injunction that blocks the current map and installs a new map that unpacks the Black voters in the 7th Congressional District. The Caster and Milligan plaintiffs, which consist of Alabama voters, Greater Birmingham Ministries and the Alabama State Conference of the NAACP, are challenging the map for violating Section 2 of the VRA by arguing that it “cracks” and “packs” Black voters across districts to dilute their voting strength. These plaintiffs want the court to block the current map and order the creation of a new map that creates two majority-Black districts, one more than the current map has. The Milligan plaintiffs also have a racial gerrymandering claim, like the Singleton plaintiffs. If the court only rules on that claim and not their VRA claim at the preliminary injunction stage, the Milligan plaintiffs ask it to redraw the 7th Congressional District and its surrounding districts to comply with the VRA.

Five lawsuits were filed against Alaska’s new legislative districts drawn following the release of 2020 census data. The first ​​was filed by Matanuska-Susitna Borough and a voter and it alleges the new state House districts don’t accurately represent the borough’s population and are overpopulated, therefore diluting the vote of borough residents; the second was filed by a group of Anchorage residents objecting to the Eagle River state Senate districts; the third by the city of Valdez over its new state House district; the fourth by the borough of Skagway arguing it should be placed in districts with downtown Juneau; and the fifth by a Native corporation opposing district lines in southwest Alaska. The lawsuits were consolidated by a Superior Court judge, who also held that a decision on the new maps must be made by Feb. 1, 2022 in order to accommodate candidate filing deadlines. A trial is expected to start no later than Jan. 11, though a specific date has not yet been set.

There are currently four lawsuits challenging Idaho’s new legislative districts and one lawsuit against its new congressional districts. The four legislative lawsuits, brought by Idaho residents and counties, mainly focus on how the Idaho Commission for Reapportionment split counties to create new legislative districts. The consolidated legislative challenges are slated for an oral argument before the Idaho Supreme Court sometime in January. All filings can be found in the lead case, Durst v. Idaho Commission for Reapportionment.

A consolidated lawsuit about Minnesota maps is currently before the state Supreme Court. Two lawsuits were filed following the release of 2020 census data given Minnesota’s past history of impasse litigation and the high likelihood that the Legislature and governor will not be able to enact new maps in time for the 2022 elections. The lawsuits argue that the state’s current legislative and congressional maps are unconstitutionally malapportioned following the release of 2020 census data. In June, the chief justice of the Minnesota Supreme Court appointed a five-judge panel to handle redistricting litigation. Each set of plaintiffs submitted proposed maps to the panel after it outlined redistricting principles for drawing districts. These proposals will be the focus of oral arguments scheduled for Jan. 4 before the five-judge panel, where the plaintiffs will argue in support of their proposed legislative and congressional maps. Throughout this litigation, the state Supreme Court has acknowledged that its role in redistricting is secondary to the Legislature, which has until Feb. 15 to pass new maps. However, it is preparing to help aid the process given the likelihood of impasse to ensure that fair and accurately apportioned maps are in place ahead of the 2022 elections. The oral argument can be watched here.

Redistricting was a contentious issue in North Carolina courts in late 2021 after the state enacted new legislative and congressional maps last November. Two lawsuits, North Carolina League of Conservation Voters v. Hall and Harper v. Hall, were filed against the new maps, which were then consolidated (the plaintiff from a third lawsuit challenging the state’s redistricting process joined the consolidated lawsuit as well). The plaintiffs argue that the new maps are partisan gerrymanders that favor Republicans in violation of the North Carolina Constitution and ask for new maps to be drawn that are representative of the state. In December 2021, the North Carolina Supreme Court paused the candidate filing period for all races across the state and delayed primary elections from March to May 2022. The legal fight over the new maps continues in the new year, with a trial scheduled before three Superior Court judges on Jan. 3-5 and closing arguments scheduled for Jan. 6. The Superior Court judges, per the direction of the state Supreme Court, must determine if the maps violate the North Carolina Constitution by Jan. 11. Any appeal of that decision will be heard on an expedited basis. 

There are currently nine federal lawsuits pending against Texas’ new legislative and congressional maps enacted using 2020 census data. Those lawsuits have been consolidated under League of United Latin American Citizens v. Abbott. Of those nine sets of plaintiffs, one group has filed for a preliminary injunction regarding a state Senate district. The Brooks plaintiffs, who are Texas voters and state Sen. Beverly Powell (D), are asking the federal court to step in and block the use of the current state Senate map in future elections, which they argue “is the product of intentional race discrimination” in violation of the 14th and 15th Amendments and Section 2 of the VRA. Their argument focuses on state Senate District 10, which they argue was intentionally drawn on the basis of race to dilute Black and Latino voting power. A hearing on the Brooks plaintiffs’ motion for a preliminary injunction regarding Senate District 10 is planned for Jan. 25. No other plaintiffs are seeking relief before the 2022 election cycle.

Wisconsin has historically relied on the judicial system when it comes to redistricting: Since 1980, when control of the Legislature and governor was held by different parties in each redistricting cycle, the court system has stepped in to enact new maps. This year appears to be no different after Gov. Tony Evers (D) vetoed maps put forth by the Republican-controlled Legislature. Earlier in 2021, expecting this impasse, various groups filed competing cases in federal court and the state Supreme Court to redraw the state’s districts, the first brought by Democrats and the second by Republicans. The U.S. Supreme Court denied a petition from the Legislature to stop the federal court case from proceeding. The Wisconsin Supreme Court, meanwhile, issued an order adopting the GOP’s proposal to use a “least-change” approach to redistricting and announced it would not consider partisanship when drawing new maps — an approach that could lock in the Republican advantage. The state Supreme Court will hold arguments in January about the various map proposals and next steps. The federal court case has been stayed pending further action by the state Supreme Court.