By Democracy Docket

December 2020

What a difference a year makes.

One year ago, I sent out the first edition of On the Docket. In it, I wrote that “my goal is to provide thoughtful updates on important voting rights cases and initiatives as well as to highlight topics and trends that are developing but might otherwise be overlooked in a busy election year.” Little did I know just how busy 2020 would be for voting rights and voting.

We’ve come a long way since then. In one year, On the Docket has grown from 2,000 subscribers to more than 50,000. And it turned out that a monthly newsletter was not all that 2020 had in store!

In March we launched our flagship website, Democracy Docket, to serve as a platform for expert opinion and commentary on voting, as well as provide detailed information about important litigation that will shape our elections and democratic institutions for years to come. Throughout the year it offered sharp, honest opinions that helped frame the fight over voting rights as well as content that helped explain the voting process. Most famously, it tracked court cases in the pre and post-election period that shaped our elections and posted key court filings so that anyone could see the argument and results for themselves.

Most importantly, Democracy Docket has highlighted the work of those protecting voting rights and our democracy. In the last two years, I have had the honor to work with amazing organizations and individuals in over 150 voting rights cases in over 20 states. When people ask how we did, I say we won more than we lost and more than I thought we would. But I also say that the fight is not over.

In recent weeks, attention has turned from improving voting rules, to larger questions of protecting democracy. In December I wrote two pieces: A Threat to Democracy and Profiles in Cowardice that focused on the long term damage to our democratic institutions the Republican’s handling of the post-election period has caused. Trumpism has taught us that, for our democracy to survive, we cannot allow ourselves to be exposed to public evils from private vices. This means hardening our institutions of democracy and making them more explicit. This will need to take many forms, but we must start with those that force our nation’s leaders to do better. I expect to continue to speak out and advocate on prospective measures to re-strengthen our democratic institutions in the new year.

One of the immediate tests we will face will be Republican state legislatures using the lies of Trump to justify restrictive voting laws. I know people are tired of politics and elections, but it is critical that we stay vigilant and yield no ground to voter suppression.

The other big test facing our democracy is reapportionment and redistricting. Every ten years we reapportion and redistrict based on the Census. Like other aspects of democracy, Trump and his allies have systematically undermined an accurate Census count. Between that and the Supreme Court’s rulings gutting Section 5 of the Voting Rights Act and greenlighting partisan redistricting, we will all have our hands full.

But before we can turn fully to those items, we must first finish out the 2020 election cycle with victories in two crucial Georgia Senate elections and the swearing in of a new Congress and President. Earlier this month, Stacey Abrams shared the blueprint for How Georgia Went Blue in November and will again in the January run offs.

The entire Democracy Docket team and I are extremely grateful for all of your support. Whether you’ve received every newsletter for the past year or recently subscribed, if you signed up to support voter protection or retweeted our latest case updates, your advocacy for voting rights helped change the outcome of the election and helped shine a light on disenfranchisement.

I expect next year to be full of important voting rights litigation, fights against Republican schemes to disenfranchise voters and a struggle over the very basics of American democracy. Until then, I hope you and your family have a safe and relaxing holiday. I am excited to show you what Democracy Docket and I have planned for 2021 and beyond.

Litigating Post-Election

Last month, I told you about all of Trump’s unsuccessful post-election challenges. Since then, Trump and his allies have continued to worsen their record, losing 59 total cases and winning one case that only affected a few dozen ballots. It’s hard to believe that almost two months after Election Day, we’re still mopping up the Republicans’ mess in the courts. None of these efforts will change the outcome of the election.

The safe harbor deadline on Tuesday, December 8th brought a flurry of court decisions at the beginning of the month. Republicans lost their biggest case brought by the state of Texas against four battleground states in front of the U.S. Supreme Court. Here is a summary of some of the most notable post-election cases in December:

Arizona

After an extensive hearing and ballot review, Republicans’ election contest in Arizona was dismissed on all claims. The Court found “no misconduct, no fraud, and no effect on the outcome of the election.” After again losing in front of the Arizona Supreme Court, the Republican plaintiffs appealed to SCOTUS, where we expect another loss.

Georgia

The Eleventh Circuit dismissed the Georgia “Kraken” case appeal led by Sidney Powell. The lawsuit—which in case you forgot was littered with typos and other glaring misspellings —was then dismissed by the district court. Upon losing, the Kraken filed an emergency petition to SCOTUS, where we expect them to lose once again.

Michigan

Trump lost another appeal attempt in front of the Michigan Court of Appeals. The lawsuit tried to stop Michigan from counting all absentee ballots. After losing in the lower court and appealing in early November, the Trump campaign failed to file a brief in support of their appeal until November 30th. As the Court of appeals wrote in their decision denying the motion, “The Michigan Board of State Canvassers certified the presidential election results on November 23, 2020, a full week before the plaintiff perfected its application. Plaintiff does not address whether the certification of the election result by the Board of State Canvassers had any impact on the viability of its suit below or on the viability of the instant application. Perhaps the reason for the plaintiff failing to discuss the impact of the certification is because such action by the Michigan State Board of Canvassers clearly rendered the plaintiff’s claims for relief moot.”

Minnesota

The Minnesota State Supreme Court dismissed a Republican petition asking the court to stop the State Canvassing Board from certifying the results of the election. The court dismissed the petition and its call for a full recount because of the “unacceptable burdens” and uncertainty it would cause for voters and election officials alike.

Nevada

The Trump-backed election contest in Nevada was dismissed by the Nevada Supreme Court. The frivolous lawsuit again made false claims of voter fraud and attempted to question the use of a ballot sorting machine—a claim that has already been thrown out of court in four different Nevada lawsuits. The Court found no evidence of fraud and denied the contest.

Texas

Texas’s Attorney General Ken Paxton sued Pennsylvania, Michigan, Georgia and Wisconsin. 17 other attorneys general and 126 Republican House members also signed on to the lawsuit, despicably showing their alliance to Trump over their own voters. The U.S. Supreme Court denied the meritless petition.

Wisconsin

The Wisconsin Supreme Court denied a right-wing group’s petition that challenged the election. As one of the conservative judges wrote in his concurring opinion, “Something far more fundamental than the winner of Wisconsin’s electoral votes is implicated in this case. At stake, in some measure, is faith in our system of free and fair elections, a feature central to the enduring strength of our constitutional republic…The relief being sought by the petitioners is the most dramatic invocation of judicial power I have ever seen. Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election.”

Too-Close-to-Call House Races

Despite the Electoral College affirming Joe Biden’s victory, some conservatives are still grasping at straws in an attempt to claim voter fraud. Just yesterday, Senator Josh Hawley announced he would object to the results when they are presented to Congress on January 6th. Let’s be clear: no matter what stunt they pull on January 6th, or how many additional meritless lawsuits they file, on January 20th Joe Biden will be sworn into the presidency.

The outcome of the presidential election may be known, but we are also still fighting election results in two too-close-to-call House races. Last week, Rita Hart—Democratic candidate for Iowa’s Second Congressional District—filed a Notice of Contest with the U.S. House of Representatives. The race is the closest federal race in 2020, with a vote margin of only six votes. A review of the election following the recount showed there were 22 lawfully-cast ballots that were illegally excluded from the initial count. These voters were disenfranchised for miniscule discrepancies, often outside of their control, including location of a signature, receiving pre-sealed absentee ballot envelopes and returning their ballots to a drop box in a neighboring county. Once these ballots are counted, we expect that Rita Hart will lead the race by nine votes.

The other close House race is in New York’s 22nd congressional district. Democratic incumbent Anthony Brindisi is behind Republican challenger Claudia Tenney by only 30 votes. Election boards for the district are waiting to certify the election until about 2,000 disputed absentee and affidavit ballots are reviewed by the state judge. Due to the holiday break, the unofficial vote count won’t be known until next week. This race is the last undecided House election in the country this year. We are keeping a close eye on NY-22 and Representative Brindisi’s effort to keep his seat.

Eyes on Georgia

In the last several weeks, my full focus has been on the upcoming Senate runoff elections in Georgia. And, not surprisingly, there has been no shortage of voting rights litigation.

Picking up where Trump left off, the Republicans and their right-wing allies shamefully filed five different challenges to the runoff elections, all aimed at disenfranchising voters and slowing down the counting of absentee ballots. The DSCC and Democratic Party of Georgia intervened in each of them and all of these cases have already been dismissed.

Meanwhile, our side has filed seven lawsuits focused on protecting and expanding the right to vote.

Five of these lawsuits—filed on behalf of the New Georgia Project—challenged different Georgia counties for failing to offer early voting for all of the statutorily required dates and times for the runoffs. With these cases pending in court, other counties have agreed to expand voting opportunities for Georgians.

While we work to expand voting rights for Georgians, the Conservative group, True the Vote, announced their plan to challenge the eligibility of over 350,000 voters registered in all 159 counties in Georgia. These frivolous challenges would force voters to vote a provisional ballot instead of a regular ballot. Targeting voters in this way puts thousands of voters at risk for disenfranchisement during an unprecedented public health crisis, especially because they would have to show up in person to “prove” their eligibility.

Progressives immediately countered this affront to voting rights by informing counties that this scheme is illegal and should not affect who can vote a regular ballot. When two counties failed to heed our warning, Majority Forward and affected individual voters brought a lawsuit. Earlier this week, the court granted a motion for a Temporary Restraining Order, which the counties then appealed.

And then, on behalf of Fair Fight, my team and I went a step further and sued True the Vote in federal court for voter intimidation and for violating the Voting Rights Act.

I will continue to fight against Republican plots to suppress the vote at every level. Democracy Docket is committed to providing a platform for accurate information and advocacy so that every eligible voter in Georgia can cast their vote and have it counted in January.

Marc’s Redistricting Reading List

As mentioned above, every ten years, the constitution mandates a count of the entire population of the United States. This triggers the redrawing of equal electoral districts across the country at the federal and state legislature level.

Redistricting is vital to our democracy. The maps states will draw in 2021 based on the 2020 census will affect political control, state and federal budgets and, ultimately, who counts in America. I am already planning litigation strategies with the National Democratic Redistricting Committee to stop Republican gerrymandering and ensure fair maps for everyone.

Democracy Docket is planning to publish more explainers and spotlights to teach you what you need to know about the redistricting cycle. Until then, I suggest you read (or re-read): The GOP’s Greatest Political Weapon: Redistricting Control.

What Bode’s Barking About

“We will not allow out-of-state agitators to violate the law and disenfranchise lawful Georgia voters in an eleventh-hour, desperate attempt to create chaos, burden county boards, and tie up the election” AJC.

“The suits, which are backed by a combination of local, state and national Republican Party organizations, are an attempt to make successfully voting by mail harder in Georgia.” Politico.

“President Donald Trump had another brutal weekend in court, with the US Supreme Court and other judges across the country rejecting his latest efforts to overturn his loss to President-elect Joe Biden.” BuzzFeed News.

Image of Bode the dog