National Democratic groups litigate 2020 in the courts

Party committees are trying to expand the electorate by challenging state voting laws

DCCC Chairwoman Cheri Bustos says some GOP state legislators were trying to “keep African Americans away from the ballot box.” (Bill Clark/CQ Roll Call file photo) 
DCCC Chairwoman Cheri Bustos says some GOP state legislators were trying to “keep African Americans away from the ballot box.” (Bill Clark/CQ Roll Call file photo) 
Posted December 11, 2019 at 6:00am

More than in previous election cycles, national Democratic groups are making litigation over election and voting laws a key part of their 2020 strategy. 

A handful of Democratic groups are currently litigating about a dozen cases over what they see as unfair election laws and maps across the country. 

“This is a dramatic uptick in the amount of voting rights litigation relative to past cycles,” said Democratic election lawyer Marc Elias, the chairman of Perkins Coie’s political law group and the party’s warrior in this fight. 

[Democrats target state elections with focus on election security]

The multimillion-dollar investment in a concerted legal strategy is an acknowledgment of how important minority and youth voters are to Democratic efforts to turn out their base in states that will be pivotal in next year’s House, Senate and presidential elections.

“We’re looking at future battlegrounds,” Democratic Congressional Campaign Committee Chairwoman Cheri Bustos told CQ Roll Call by phone Thursday. 

The strategy is also a recognition that without control of state legislatures or the U.S. Senate, there’s little Democrats in government can do ahead of 2020 to reverse some of the voting laws that GOP-controlled legislatures have passed since the Supreme Court in 2013 struck down a key section of the 1965 Voting Rights Act.

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The landmark civil rights legislation required nine, mostly Southern, states to obtain advanced federal approval before changing their election laws. The House on Friday passed a bill that would reestablish a new formula for which states require federal oversight over their election law, but it’s unlikely to go anywhere in the Senate.

Republicans argue that state voting laws they’ve passed are meant to protect the integrity of elections, and they paint this latest Democratic gambit as a long-standing strategy to sue where they cannot win at the ballot box.

“Sue until blue,” said veteran GOP lawyer Jessica Furst Johnson, who worked on the Florida Senate recount that Democrats brought unsuccessfully last year when she was general counsel for the National Republican Senatorial Committee. 

The lawsuits

But Democrats did win in 2018, securing a historic House majority.

And in addition to defending those gains, the DCCC wants to expand the playing field in 2020.

“We’re calling Texas ground zero,” Bustos said. After picking up two seats in Texas last cycle, the Democratic campaign committee, which already has a headquarters in the state, is targeting six more districts there in 2020. That’s one reason the committee has signed on to two lawsuits in the state.

In various partnerships with each other, the DCCC, the Democratic National Committee, the Democratic Senatorial Campaign Committee, a handful of state Democratic parties, the super PAC Priorities USA and the National Democratic Redistricting Committee have been challenging several types of election and voting laws, as well as gerrymandering, in cases across the country.

They’ve already had some success that will affect the 2020 cycle. In North Carolina, Democrats appear likely to pick up at least two seats from a new congressional map drafted after the state’s current map was ruled a partisan gerrymander by a state court.

And in Florida, a federal judge in November struck down a law that said candidates of the governor’s party must be listed first on the general election ballot. Democrats had challenged the law in 2018, arguing that in a state with a GOP governor, the law gives Republicans an unfair advantage. 

Republicans have appealed the decision, arguing that the law has been in place throughout Democratic and Republican administrations. Democrats, meanwhile, have brought similar lawsuits over ballot order laws this fall in Texas, Arizona, Georgia and Minnesota.

Furst Johnson sees this type of case as a prime example of how Democrats are selectively challenging laws for political gain. Democrats are not challenging ballot order tied to the governor’s party in blue states, she said.

In Minnesota, where Democrats control the governorship, the party is suing over a rule that major party candidates are listed in reverse order of their average vote in the last election.

Democrats have also been challenging voter registration laws that they argue suppress registration and turnout, especially among students. One of the three lawsuits Priorities USA has filed in Michigan this fall is about voter registration, specifically automatic voter registration and proof of residency for same-day registration. Priorities USA Foundation, in partnership with the Andrew Goodman Foundation, also challenged restrictions on IDs that students can use to vote in Wisconsin.

In South Carolina, Democrats are challenging a law that requires people to provide Social Security numbers when they register to vote. 

Beyond voter registration, Democrats are also contesting state laws that they say disenfranchise voters. Some of those laws, such as those in Michigan and Florida, have to do with requirements that voters’ signatures on their absentee ballots match their signatures on file with election officials.

Democrats are also challenging Georgia’s procedure for notifying voters that their absentee ballots have been rejected, arguing voters don’t have ample opportunity to “cure” defects in ballots. In partnership with Voto Latino, Priorities USA has also challenged the deadline for returning absentee ballots in Arizona. 

In North Carolina and Texas, Democrats are challenging laws about hours and locations for early voting. 

2020 impact

Nearly all of the states where Democrats are suing will be competitive at the presidential level next year. Most have competitive House and Senate races too.

Adam Kincaid, executive director of the National Republican Redistricting Trust, said Democrats are suing for the same reason he sees them trying to impeach President Donald Trump — they’re upset about losing the White House in 2016 and unsure they can win in 2020. 

“They’re all designed to do the exact same thing — to change the rules heading into 2020,” he said of the Democratic lawsuits.

Democrats don’t disagree that they’re trying to change the rules, but they argue that the rules have been unfairly written to disenfranchise their voters.

“One of our strongest bases of support for Democrats are African American voters,” Bustos said. She said GOP legislators and governors knew that and were trying “to keep African Americans away from the ballot box” by taking such steps as curtailing early voting on days in North Carolina when blacks had tended to show up.

 Republicans aren’t buying that argument.

“It’s more of the same,” Furst Johnson said. “They are trying to paint any Republican effort to ensure fair elections as racist.”

Asked about concerns that the involvement of Democratic campaign committees in these lawsuits could further politicize voting rights, Elias said he wasn’t concerned. 

“Look at the roll call,” he said, referring to Friday’s House vote on voting rights legislation, which Republicans said infringed on states’ rights to run their own elections.

Only Pennsylvania Rep. Brian Fitzpatrick, one of three Republicans who represents a district Hillary Clinton carried in 2016, joined with Democrats to back the measure.

The last time Congress extended the protections in the Voting Rights Act, in 2006 under President George W. Bush, it passed with votes of 390-33 in the House and 98-0 in the Senate.

“I don’t think there’s any chance our litigation is going to make this a partisan issue,” Elias said. 

“Right now, realistically, the only thing that stands between an avalanche of voter suppression in 2020 and democracy are the kinds of lawsuits that the DCCC is bringing,” he said.