Breaking: Supreme Court, in Order Asking for Additional Briefing in Louisiana Voting Case, Appears to Put the Constitutionality of Section 2 of the Voting Rights Act into Question

Supreme Court, Voting Rights Act

The Supreme Court just issued this order:

Louisiana had to create that second majority-minority district in order to comply with the Voting Rights Act, as it had been found to face Section 2 VRA liability for not creating that district. What the Court seems to be asking, without directly saying it, is whether Section 2 of the VRA, at least as to how it has been applied to require the creation of majority-minority districts in some circumstances, violates a colorblind understanding of the Constitution.

The stakes here are enormous; I was worried the Court would put the VRA’s constitutionality into question when there was this great delay in the Court ordering supplemental briefing. Something big was happening behind the scenes. And now we know.

This Court is more conservative than the Court that in 2013 struck down the other main pillar of the Voting Rights Act in the Shelby County case. This is a big, and dangerous, step toward knocking down the second pillar.

There was a LOOOOONG delay in SCOTUS issuing the supplemental briefing order, burying it after 5 pm on a Friday in August rather than at the end of the Supreme Court term when everyone was paying attention.

UPDATE: Page 36-38 of appellees’s brief, referenced in the order above, make it clear that Section 2’s constitutionality is being put into question:

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“Eligible Voters at Risk: Examining Changes to USCIS’s SAVE System.”

election administration

New issue brief from the Fair Elections Center:

Changes fueled by election-denier conspiracy theories are in the works for a system created by the Department of Homeland Security (“DHS”) nearly forty years ago to verify citizenship status and legal presence in the United States. DHS recently announced major modifications to its Systematic Alien Verification for Entitlements system, or SAVE, for the state and local election agencies that use it in the voting context (not to be confused with the anti-voter SAVE Act which is pending in Congress and fueled by the same conspiracy theories ). Most significantly, state and local agencies can now query the system using Social Security numbers and submit queries in bulk uploads. Though technical in nature, these changes may impact voters across the country, especially as more states sign up to use the retooled system.

The SAVE system is administered by DHS via U.S. Citizenship and Immigration Services (“USCIS”). Originally created by the Immigration Reform and Control Act of 1986 and then expanded by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the SAVE system is used to verify or determine citizenship in response to inquiries from federal, state, and local officials, usually related to applications for public benefits. In recent years, state and local election officials in certain states have used SAVE to verify the citizenship of voter registrants and currently registered voters who provide a DHS-issued immigration identifier. User agencies sign a memorandum of agreement (“MOA”) with USCIS and, in the past, were charged a fee for each case they submitted to SAVE. Prior to the Trump administration, ten states had MOAs to use SAVE for voter registration and/or list maintenance purposes: Arizona, Colorado, Florida, Georgia, Idaho, Mississippi, Ohio, South Carolina, Tennessee, and Virginia….

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“Forged signatures found on Mayor Adams’ petitions to run as an independent”

ballot access, chicanery

Gothamist:

Mayor Eric Adams’ re-election campaign submitted faked and fraudulently obtained petition signatures in his effort to secure a spot on the November ballot as an independent candidate, a Gothamist investigation has found.

Gothamist reviewed signatures submitted from across New York City and found people who said their names were forged, as well as people who said they were deceived into signing the petitions. In at least three instances, the campaign turned in signatures from dead people.

Under state law, Adams needed to submit at least 7,500 signatures from voters who wanted him on the general election ballot as an independent. The tactic enabled the incumbent mayor to avoid a crowded Democratic primary race that was shaping up as a referendum on the federal corruption charges he once faced and his growing ties to President Donald Trump.

The Adams campaign hired several companies to deploy employees across the city and gather signatures of registered voters in New York City who supported the mayor’s re-election.

Signature gatherers were required to sign a form pledging that each signature they collected was from the person whose name appeared on the sheet. But an executive from one company said he also warned the Adams campaign that it should run additional quality control measures – a suggestion he said the campaign rejected. In response to Gothamist’s inquiries, the campaign said it expected the companies it hired to follow the law but nevertheless pledged to now conduct its own review of the signatures….

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Alaska Supreme Court Finally Explains Its Ballot Access Order from September 2024 in Divided Decision

ballot access

Alaska Democratic Party v. Beecher:

This case concerns a challenge to the Alaska Division of Elections’ inclusion of Eric Hafner — a federal prisoner in New York — as one of the four candidates on the 2024 general election ballot for the United States House of Representatives. Hafner finished in sixth place during the open primary under rankedchoice voting, but the Division elevated him to appear on the general election ballot after two of the top-four primary candidates timely withdrew. The Alaska Democratic Party and Anita Thorne, a registered Democrat (collectively ADP), argue that Hafner cannot be elevated to the general election ballot because Alaska law allows a single replacement for a withdrawn candidate: the fifth-place candidate in the primary election. The superior court rejected ADP’s claims for injunctive and declaratory relief.
Due to the time-sensitive nature of election appeals, we affirmed the superior court in a short order dated September 12, 2024. We now explain our reasoning in full, holding that the laws establishing ranked-choice voting require successive replacements on the general election ballot if more than one top-four primary candidate timely withdraws and additional primary candidates are available as replacements.

The majority relied in part upon Alaska’s particularly strong use of the democracy canon.

From the single-justice dissent:

“Fifth” has a clear meaning — the one that comes after the fourth. And the statute fixes its application to “the candidate . . . in the primary election.” The “candidate who received the fifth most votes in the primary election” therefore clearly means the candidate who received the next highest number of votes in the primary election after the candidate who received the fourth highest number. I fail to see “the facial ambiguity in the statute”2 that the court identifies as the reason to undertake its circular journey through principles of statutory interpretation to arrive at its starting point of the ambiguity it posited. I respectfully dissent.

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