Litigation Look Ahead: March

Key dates: Oral argument on rehearing on March 15, 2023

On March 15, the new Republican-led North Carolina Supreme Court will hold oral argument in a lawsuit over the state’s photo ID law that it decided to rehear. In December 2022, the North Carolina Supreme Court, with its 4-3 Democratic majority, struck down Senate Bill 824, a Republican law that created strict photo ID requirements to vote, after a majority of justices found that the “law was enacted with discriminatory intent to disproportionately disenfranchise and burden African-American voters in North Carolina.” However, after the court flipped from blue to red in the 2022 midterms, Republican legislators asked for a redo — which the court granted despite the fact that no facts or laws had changed in the few weeks between the December 2022 ruling and when it decided to rehear the lawsuit in early February. In their opening brief, the Republican legislators argue that the court’s prior opinion striking down the restrictive photo ID law was incorrectly decided and “undermined by several flaws.” The legislators’ main arguments — namely that S.B. 824 was not enacted with racially discriminatory intent in violation of the state constitution — closely track with the ones they previously submitted the first time the case was before the North Carolina Supreme Court. On Friday, March 3, the voters who originally sued over the law will submit their brief opposing any reversal of the December 2022 opinion. The state Supreme Court, with its new 5-2 Republican majority, will hold oral argument on March 15 and then decide whether to overturn or uphold its prior ruling striking down S.B. 824.

Key dates: Hearing on March 10, 2023

In December 2022, two Lycoming County, Pennsylvania, voters who are members of a right-wing group called the Lycoming County Patriots sued the county over the results of the November 2020 general election (that year is not a typo). The “patriots” request that the Lycoming County commissioners vote to conduct a forensic audit of the 2020 election results because the commissioners were provided “evidence of fraud, numerous irregularities, and violations of the Election Code” but failed to properly investigate these claims. In response to these allegations, the county points out that the plaintiffs failed to follow state procedures to challenge the results of an election, namely that any “petitions must have been filed within five days of completion of the Election Board’s computation of the vote — which would have occurred over two years ago.” Due to these procedural missteps, the county asks the state trial court to put an end to this lawsuit; a hearing on the matter is scheduled for March 10.

Key dates: Oral argument on March 6, 2023

On March 6, the 5th U.S. Circuit Court of Appeals will hear a challenge to Texas’ “wet signature” law, which requires individuals who submit their voter registration applications electronically or through fax to also provide a copy of their application with their original signature — meaning signed with pen on paper. Vote.org — the largest nonpartisan registration and get-out-the-vote nonprofit in the country — sued over this law in July 2021, arguing that it places an arbitrary barrier on voting, erects an unnecessary “logistical hurdle” for voters and contradicts the state’s ongoing practice of accepting electronic signatures on registration applications submitted through state agencies, such as the Department of Public Safety. A district court agreed with these arguments and blocked the law in June 2022 for violating the First and 14th Amendments and the Civil Rights Act. Texas Attorney General Ken Paxton (R) and two election officials appealed the decision and the 5th Circuit reinstated the law while the appeal is being litigated. The U.S. Department of Justice got involved in the appellate court proceedings, first by filing an amicus brief and then by receiving permission to participate in oral argument on March 6. Following oral argument, the 5th Circuit will decide whether or not the wet signature law should remain in effect or be struck down for violating federal law.

Key dates: Hearings on March 15, 21 and 23, 2023

Attacks on mail-in and absentee voting in Wisconsin have only grown since the 2020 election and there’s no sign they will slow down any time soon. We are tracking three lawsuits that will see some movement in March:

• On March 15, Brown v. Wisconsin Elections Commission will head to court. This lawsuit, which is backed by the conservative group Wisconsin Institute for Law & Liberty (WILL), challenges the use of mobile voting sites, specifically a van, throughout the community of Racine, Wisconsin. The city argues that the lawsuit should be dismissed, which is the focus of the March 15 hearing. During this hearing, the court will also hear arguments as to why the Democratic National Committee and Wisconsin Alliance for Retired Americans should be allowed to participate in the case and defend the mobile voting van.
• On March 21, Braun v. Wisconsin Elections Commission — yet another lawsuit backed by WILL — has a hearing in state court. The lawsuit argues that the federal National Mail Voter Registration Form provided to Wisconsin residents is missing certain components that are required under Wisconsin law while also containing other elements that are not allowed under state law. WILL argues that the form should not be approved for use in the Badger State, while the commission argues that the lawsuit is fatally flawed and the form complies with state law. A hearing on these arguments is scheduled for March 21.
• On March 23, a state court will hold a hearing in Concerned Veterans of Waukesha County v. Wisconsin Elections Commission, a lawsuit brought right before the 2022 midterms that raised allegations of fraudulent absentee ballots completed by voters in the military. The Republican plaintiffs failed to obtain their requested relief to sequester all military ballots cast in the midterms, but the lawsuit remains pending. The Wisconsin Elections Commission has asked the court to dismiss the case, which is the subject of the March 23 hearing.

Key dates: Oral argument on rehearing on March 14, 2023

Holmes v. Moore, the lawsuit over North Carolina’s restrictive photo ID law, isn’t the only case being reheard by the newly Republican North Carolina Supreme Court this month. The new GOP majority also agreed to rehear Harper v. Hall, a redistricting case that was previously decided by the court’s then-Democratic majority. The case — a precursor to Moore v. Harper, which is currently pending before the U.S. Supreme Court — tossed out North Carolina’s original congressional and legislative maps drawn with 2020 census data for being partisan gerrymanders that violated the state constitution and, following that, rejected the remedial state Senate map adopted by the Legislature. The Republican legislators want the court to overturn these prior rulings by arguing that “[p]olitical gerrymandering claims are non-justiciable” and that the court overstepped by reviewing the political choices of the Legislature. The Republican lawmakers want the court to review its prior rulings on the maps and allow the Legislature to impose three new maps of its choosing for future elections. On Friday, March 3, the parties who originally sued over the maps will submit briefing opposing any reversal of the prior opinions. Oral argument on the rehearing is set for March 14 and, as of now, the possible impacts of this rehearing on Moore v. Harper remain uncertain.