A lot has happened since we last looked at the state of voting rights litigation at the end of 2021, especially given that 2022 was an election year. Now that we’re at the close of the year, we wanted to review all of the major voting rights rulings that came from courts across the country — and, given the record-high litigation in the voting rights and democracy sphere over the last 12 months, it was no easy feat. While we can’t touch upon every single decision that impacted voters — either positively or negatively — there were some notable trends across dockets that impacted voters’ access to the ballot box.
Republican attempts to curb mail-in voting had some success, but failed on multiple fronts.
Throughout 2022, GOP-affiliated groups filed a deluge of anti-voting lawsuits, many of which attacked mail-in voting. The two biggest impacts from the GOP’s attacks on mail-in voting came in two swing states that were the center of former President Donald Trump’s 2020 ire.
In Wisconsin, a conservative group prevailed in banning drop boxes across the state when a slim majority of the Wisconsin Supreme Court used warped legal reasoning to deem the drop boxes illegal. This ruling prohibits Wisconsin voters from placing their ballots in one metal container (drop boxes, which have been specifically designed for this purpose) while allowing voters to place their ballots in a different metal container (mail boxes). Following a Republican lawsuit, Wisconsin election clerks were also blocked from filling out incomplete information on voters’ absentee ballot witness certificates, leading to the possible rejection of absentee ballots for minor and fixable omissions.
In Pennsylvania, litigation over mail-in voting reached new levels. After multiple rounds of litigation, the GOP succeeded in its quest to ban the counting of undated and wrongly dated mail-in ballots when the Pennsylvania Supreme Court found that counting these ballots violates state law. While litigation over whether this violates federal law will continue into 2023, this ruling meant that these ballots were not counted in the 2022 midterms — which disproportionately affected voters of color across the state. However, Republicans did fail to eliminate cure procedures in the commonwealth, meaning that voters who lived in counties that offered these procedures could fix technical errors, such as a missing or incorrect date, on their mail-in ballots this past fall. Republicans also lost their bid to limit the use of drop boxes in various Pennsylvania counties and to toss out their own no-excuse mail-in voting law passed in 2019 (though they filed yet another lawsuit against the law that’s pending).
Although Republicans also succeeded in blocking a new no-excuse mail-in voting law in Delaware, they were otherwise largely unsuccessful in chipping away at this popular method of voting. Other conservative lawsuits attacking various aspects of voting by mail came up short in Arizona, Massachusetts, New York and North Carolina.
Republicans didn’t pull off all of their attempts to restrict mail-in voting, but their strategy attacking this method as a tool of fraud appears to have had a clear consequence among their own party: Polling conducted earlier this fall showed that Republican voters are overwhelmingly opposed to mail-in voting. Yet, after the GOP failed to perform during the 2022 midterms, party leaders almost immediately shifted their tone on voting by mail, possibly signaling a change in strategy in 2023.
Republican-backed voter suppression laws and practices met their fates in court.
Mail-in voting wasn’t the only focus of the Republican Party in 2022. Aside from the mail-in voting legal challenges and litigation against GOP-backed voter suppression laws enacted in 2021, conservative attempts to limit access to voting in this election cycle were largely reined in by the courts.
In Pennsylvania, Republicans fought to throw out one of their own laws — the aforementioned law adopted in 2019 that created no-excuse mail-in voting, which we think is worth mentioning twice — and lost. In North Carolina, voting advocates successfully: challenged the lawmaking authority of Republican legislators elected under illegal maps; permanently blocked a strict photo ID law passed by Republicans during the lame-duck legislative session that’s at the center of the first North Carolina lawsuit mentioned and had congressional and legislative maps that unfairly and illegally favored Republicans tossed out.
In New York, GOP election officials tried to ignore state laws in multiple instances, and each time courts put an end to their subversion. In Dutchess County, home to Vassar College, the Dutchess County Board of Elections and its Republican commissioner originally refused to open an on-campus polling location, but were later required to do so by a state court. The Republican commissioner of Albany County similarly tried to shirk her duty to process absentee ballots in compliance with state law, but folded and agreed to properly count ballots just 24 hours after being sued.
In Arizona, the most harmful provisions of two GOP-backed voter suppression laws enacted earlier this year were blocked for the midterm elections, ensuring that voters’ registrations weren’t needlessly canceled and Arizonans weren’t charged with a felony for simply forwarding mail-in ballots to certain voters. And, rogue right-wing election officials in Cochise County, Arizona who tried to implement round after round of illegal hand counting procedures were forced to go to court to answer for their shenanigans — and they lost each round.
In Georgia, the Republican secretary of state’s office issued guidance prohibiting counties from holding early voting on Saturday, Nov. 26 for the U.S. Senate runoff election, which notably contradicted earlier public statements made by the secretary’s office. After Democrats sued, all levels of Georgia’s court system agreed that counties could offer early voting on Saturday, Nov. 26 and 70,050 Georgians were able to cast their ballots on that day.
Voter suppression laws enacted in 2021 moved through the court system.
This was the first election cycle after Republicans enacted omnibus voter suppression laws in 2021 in response to their unfounded claims of “voter fraud” that emerged during the 2020 election cycle. Litigation that sought to curb the most harmful effects of these laws moved through the court system over the course of the past year, though no lawsuit has been fully decided yet. In 2022, courts released significant rulings on suppressive voting laws in the following states:
- An Arkansas judge struck down four voter suppression laws that attacked every aspect of the voting process for violating the state constitution. This initial win for voters was halted when the state appealed the decision to the Arkansas Supreme Court, which paused the trial court’s decision and put the challenged laws back in place for the 2022 elections. Litigation is ongoing before the state’s highest court and the laws remain in effect.
- A federal district court judge struck down three challenged provisions of Florida’s Senate Bill 90 after finding that they are “intentionally discriminatory” against Black Floridians. The state immediately appealed this decision to the 11th U.S. Circuit Court of Appeals, which unfortunately paused the district court’s decision while the appeal is litigated. This meant that the previously blocked line-warming ban (restricting people from handing out food and water to voters waiting in line) and drop box restrictions were in place for the midterms, though the 11th Circuit hasn’t yet issued a ruling on the final status of the provisions. S.B. 90 remains in effect as litigation continues.
- Over the course of 2022, four voter suppression laws enacted in 2021 in Montana were permanently blocked and weren’t in place for the November elections — a resounding victory for Native American voters, young voters and voters with disabilities who would have been adversely impacted by these laws. In an unsurprising move, the Republican secretary of state has since appealed the decision blocking three of the laws to the Montana Supreme Court and litigation will continue into 2023. In the meantime, the three laws on appeal remain blocked.
Litigation over other 2021-era laws also moved forward in Georgia, Iowa, Kansas and Texas. As we head into another year full of legislative sessions, litigation over new laws is likely to accompany legal action over laws enacted in 2021.
Rulings on felony disenfranchisement laws failed to expand voting rights.
Felony disenfranchisement laws strip the right to vote from people on the basis of criminal convictions and vary widely from state to state. Notoriously, Mississippi has one of the strictest in the country, barring individuals from voting for life if they are convicted of certain offenses. Earlier this year, the 5th U.S. Circuit Court of Appeals upheld this provision of the Mississippi Constitution after finding that it does not violate the U.S. Constitution. In maintaining this invidious felony disenfranchisement provision, approximately 10% of the state’s population will remain barred from participating in Mississippi’s elections.
There is a pending request asking the U.S. Supreme Court to review this decision out of Mississippi. In the meantime, North Carolina’s felony disenfranchisement law — which denies the right to vote for individuals with past felony convictions who remain on probation, parole or a suspended sentence — is being litigated before the state’s highest court. Ongoing litigation in Tennessee challenges the state’s disenfranchisement of individuals with out-of-state felony convictions. Lawsuits on this topic in 2022 serve as an important reminder that millions of Americans — disproportionately people of color — remain locked out of the political process in this country.
Courts delivered wins for individuals who need assistance to vote.
On a more positive note, voting rights litigation protected the right to vote for individuals who need assistance when casting their ballots. Throughout 2022, courts blocked various state laws that restricted the type of assistance voters could receive during the midterm elections in Arkansas, Indiana, North Carolina, Texas and Wisconsin. These restrictions ranged from limiting who could legally assist voters in casting their ballots to the type of assistance that could be given. Though the initial win for Arkansas voters was paused on appeal, meaning that the restrictions were unfortunately in place for the midterm elections, voters with limited English proficiency or with disabilities who reside in the other four states could receive all the assistance options provided by federal law during this year thanks to successful court victories.
In a related area of legal activity, an agreement was reached less than a week before Election Day that ensured voters in York County, Pennsylvania had access to Spanish-language materials and assistance as required under federal law. This slate of orders protecting the right to voter assistance in 2022 serves as a reminder of the ongoing importance — and necessity — for country-wide safeguards against voter suppression.
What’s next for voting rights litigation in the new year?
Voting rights advocates will continue to litigate their cases challenging new and old voter suppression laws in 2023. And, the fight for fair maps will heat back up in state and federal courts in numerous redistricting lawsuits, with the hope that representative and fair districts will be in place by the next election cycle.
We’ll keep track of all this important litigation on our Cases page and provide updates on the progress of these cases, including trials, hearings and any important intermediate court decisions that impact voters.
As always, democracy remains on the docket.