My litigation status update: June is the month for...

 

Free sample of our premium, member-only content Ever since I was a kid I operated on a different internal clock. Days ended at 2 a.m., not midnight. Weeks began on Monday, not Sunday. And, regardless of what the calendar said, the year began in September. It reflects the mindset of a student who was decidedly not a morning person. Little has changed in the intervening five decades. When I started practicing political law, things adjusted a little. Years began and ended in November. Weeks stopped having a beginning and end. Unfortunately, days continued to end at 2 a.m. The one constant throughout my entire life, however, has been the unique role that June plays. It has always marked an ending of sorts. A time to receive the judgment of others and make plans about what the future might hold. It is, in short, a month for taking stock and deciding. In this regard, the courts, especially in an election year, mirror my internal clock. The Supreme Court, which starts hearing cases in October, renders its last, and typically its most important, judgments in June. With an election approaching, and primary season underway, lower courts also tend to clean up their dockets in June as well. They dispose of the cases they can and set hearing dates that reflect the urgency of the season. In this month’s Litigation Look Ahead, I focus on what needs to get done in this critical month. Let’s get started.

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My takeaways from last month The maps were decided. May spelled the end of redistricting litigation that will impact the 2024 elections and it was a good news/bad news story from the Supreme Court. Good: In Louisiana, the Supreme Court rejected a hurried effort by the GOP to reverse a voting rights win from earlier this year that resulted in the creation of a second Black-opportunity district. The conservative majority appears to think it's simply too late in the election cycle to redraw maps. Bad: In an opinion written by flag-hating Justice Samuel Alito, the Court severely limited the ability of plaintiffs to bring racial gerrymandering cases. While this case will have lasting repercussions, for now it means that Black voters in South Carolina will suffer. Early decisions are bad for the GOP. If we have learned nothing from the last few years, it is that Republicans know how to file anti-voting lawsuits and know even better how to lose. While not yet at their 2020 post-election level (where they lost 64 lawsuits and won one), May was a brutal month for the GOP… MAGA Lost: The Supreme Court refused to hear a case challenging Oregon’s vote by mail system. MAGA Lost: An Arizona state court rejected the RNC’s effort to invalidate the state’s Election Procedure Manual. MAGA Lost: A Maryland federal dismissed a lawsuit aiming to disrupt Maryland’s system for election administration. MAGA Lost: An appeals court turned away a Republican Party appeal seeking to overturn New York’s expanded mail-in voting law. MAGA Lost: Also in New York, a trial court largely upheld the state’s absentee voting law against a Republican lawsuit. TRUMP CONVICTED: Last but not least, thanks to New York, Trump is now a convicted felon. The Trump campaign brings its first lawsuit in years. In what is certainly a sign of things to come, the Trump campaign filed its first election lawsuit in three years. Unsurprisingly, they target Nevada’s mail-in ballot receipt deadline. Given Trump’s track record in court, I feel pretty good about this one. What I’m watching for Decisions to sue. In recent months, we have seen a measurable uptick in litigation filed by the Republican Party aimed at election administration. These cases serve the dual purpose of challenging existing laws as well as satisfying Trump’s desire for more election-denying litigation. I’m watching to see if the RNC continues to expand precious resources on these cases? What will their allies do? Decisions to appeal. As courts decide more and more election cases, losing parties will have to make fast decisions about whether to appeal. This is especially tricky for states that have a dual incentive to defend their laws and already have settled rules for the election. Appealing adverse decisions often puts those two motivations at odds. Look for Republican attorneys general to dig in and fight ideological wars while election officials prioritize certainty. Decisions to settle. States and localities looking to avoid litigation are often tempted to find a middle ground with potential plaintiffs. In 2020, we saw several states and counties settle cases either before they were filed or shortly thereafter. Republicans attacked those decisions making the political cost of settlement higher. Still, as we approach the summer, this option will be on the table for government officials. What I’m waiting for Trump cases. While Trump was convicted in New York, that certainly won’t be the end of the road for his hush money case. I’m waiting to see when he appeals that decision and more importantly, what the Supreme Court decides on his claim of absolute presidential immunity. Though they will likely make little practical difference for how the election is conducted, they are all politically significant to how the campaigns message to and persuade voters and thus worth watching. RNC cases. I could list dozens of cases awaiting decisions, but I am particularly interested in how the courts confront three filed by the RNC. All have a good chance of being decided this month. Michigan: Attempts to impose stricter signature verification rules for absentee ballots. Nevada: Challenges the state’s voter roll maintenance policies. Mississippi: Seeks to shorten the deadline to return mail-in ballots.

Here are the dates and battles coming up this month. June 7, 2024 Hearing on a motion to dismiss a federal lawsuit brought by the Republican National Committee challenging Nevada’s voter roll maintenance policies. June 11, 2024 Hearing in a far-right candidate’s election contest to the results of the Republican primary for Shasta County, California’s Board of Supervisors June 13, 2024 Hearing on a motion to dismiss a state-level lawsuit challenging North Carolina’s congressional, state House and state Senate map, which the Republican-controlled Legislature redrew in October 2023. June 18, 2024 Oral argument in a state-level lawsuit challenging a set of 2022 rules for Michigan election challengers. June 24, 2024 Hearing in a federal lawsuit challenging the accessibility of California’s mail-in ballots for voters with print disabilities. Hearing in a state-level lawsuit alleging that Wisconsin’s absentee voting system — which lacks an electronic option for requesting, receiving and submitting absentee ballots — discriminates against voters with disabilities. June 28, 2024 Deadline for the Arkansas State Conference NAACP and Arkansas Public Policy Panel to file a petition asking the U.S. Supreme Court to review a decision from the 8th U.S. Circuit Court of Appeals holding that there is no private right of action under Section 2 of the Voting Rights Act. We are waiting on big decisions from these courts.   The Arizona Court of Appeals, which will determine if failed Republican gubernatorial candidate Kari Lake’s 2022 election contest will be dismissed for good. Arizona trial courts in right-wing lawsuits that will determine the fate of the state’s Election Procedures Manual. A Michigan trial court in a state-level lawsuit from the Republican National Committee (RNC) seeking to impose stricter signature verification rules for absentee ballots. A federal district court in a lawsuit challenging Texas’ 2021 omnibus voter suppression law. A federal district court decision in an RNC lawsuit challenging Nevada’s voter roll maintenance policies. A federal district court in a lawsuit challenging Florida’s 2023 omnibus voter suppression law. A federal court in a lawsuit challenging the Mississippi’s legislative maps for diluting Black voting power in a racial gerrymander. A federal district court in a lawsuit challenging part of Georgia’s 2021 omnibus voter voter suppression law. A federal district court in an RNC lawsuit challenging Mississippi’s absentee ballot receipt deadline. A federal district court in a lawsuit challenging a Minnesotan law that combats election misinformation and voter intimidation. A federal district court in a lawsuit challenging North Carolina’s photo ID requirement.

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