Courts Uphold Voting Rights as GOP Turns to Obstructing Citizen-led Ballot Initiatives
Plus, updates on the Classified Documents case, Georgia Gov. seeks to oust MAGA election board, and Utah GOP's attempt at a federal land grab
Courts Uphold Voting Rights as GOP Turns to Obstructing Citizen-led Ballot Initiatives
There have been a number of updates on voting rights and citizen-led ballot initiatives nationwide so today’s newsletter is a roundup focused on these important issues. Below, you’ll see court rulings on cases challenging voting rights and state election laws, as well as certifications of abortion ballot initiatives.
I’ve also included updates on the classified documents case, new developments in Georgia regarding the MAGA state elections board overreach, and a legal challenge by Utah that asks the Supreme Court to give the state rights to federal land.
Update on Classified Documents case
On Monday, Special Counsel Jack Smith filed an appeal of Trump’s personal District Judge Aileen Cannon’s dismissal of the classified documents case with the 11th Circuit Court of Appeals. Smith’s office wrote in an 81-page court filing that Judge Cannon made a serious error in ruling that Smith was unlawfully appointed by U.S. Attorney General Merrick Garland and asked the court to reinstate the case. The special counsel wrote that Cannon’s reasoning opposes court precedent, as well as “widespread and longstanding appointment practices in the Department of Justice and across the government.” The filing added that “the Attorney General validly appointed the Special Counsel, who is also properly funded. In ruling otherwise, the district court deviated from binding Supreme Court precedent, misconstrued the statutes that authorized the Special Counsel’s appointment, and took inadequate account of the longstanding history of Attorney General appointments of special counsels.” Smith’s office also warned that, if Cannon’s ruling is upheld, it could ”jeopardize the longstanding operation of the Justice Department and call into question hundreds of appointments throughout the Executive Branch.”
Update on Georgia State Election Board
On Monday, Georgia’s Republican Governor Brian Kemp asked state Attorney General Christopher Carr for “guidance” on the Governor’s office’s authority to remove State Election Board members for misconduct. The Atlanta Journal-Constitution reporter Greg Bluestein posted on X (previously Twitter) that Gov. Kemp was determining whether he could take action against the 3 MAGA SEB members. Bluestein posted a statement by Kemp’s office that writes, “This office has received Senator Nabilah Islam Parkes and other’s letters alleging ethics violations by members of the State Elections Board. Due to uncertainty regarding whether this office has authority to act under Code Section 45-10-4 in response to these complaints, we have sought the Attorney General’s advice regarding the application of the statute to the letters. We will respond following receipt of this advice and further evaluation of the letters.”
Updates on Abortion Ballot Initiatives for the November Election
On Friday, Nebraska Secretary of State Bob Evnen confirmed that two competing abortion measures—one seeks to enshrine abortion rights in the state Constitution and one seeks to enshrine the current 12-week ban in the state Constitution—will appear on the November ballot. Each measure needs a majority vote to pass, as well as to reach a total vote threshold of at least 35% of ballots cast. If both measures pass, the ballot measure with the highest number of votes in favor will be adopted.
Also on Friday, a New York judge ruled that the court will not compel state election officials to include language in a proposed constitutional amendment that explicitly states it would protect abortion and LGBT rights. State Supreme Court Judge David A. Weinstein wrote that the decision by the state Board of Elections to include technical language in the Equal Rights Amendment “was not inherently misleading, and thus cannot serve as a basis for striking the certified language.” New Yorkers for Equal Rights, the petitioners of the ERA referendum, aimed to include the words “abortion” and “LGBT” to make the amendment’s purpose clear to voters that, if passed, it would expand the state’s current anti-discrimination protections. The amendment does state that the list of protected categories will expand to ethnicity, national origin, age, disability, and “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive health care and autonomy.” Judge Weinstein did order some adjustments to the wording for the summary, including using the phrase “unequal treatment” instead of “discrimination.”
Last Thursday, the Arkansas Supreme Court upheld the GOP-controlled state’s rejection of an abortion rights ballot initiative. In a 4-3 decision, the state high court determined that the petitioners failed to file the paid canvasser training certification with the rest of the gathered signatures. This means the issue will not appear on the November ballot in Arkansas. Justice Karen Baker wrote in her dissent, “The majority has succeeded in its efforts to change the law in order to deprive the voters of the opportunity to vote on this issue, which is not the proper role of this court.” In a separate dissent, Chief Justice Dan Kemp wrote the court should have ordered the state to count all of the signatures and appointed a special master to review the disputed facts.
Last Tuesday, Montana Secretary of State Christi Jacobsen certified an abortion referendum that seeks to enshrine access to the procedure in the state Constitution. This means that Constitutional Initiative No. 128 (CI-128) will appear on the November ballot, making Montana one of nine states with the issue on the ballot despite GOP-led efforts to block it. Montana’s Republican Attorney General Austin Knudsen attempted to obstruct the reproductive rights measure at every step—he initially ruled that the measure was legally insufficient and after being overruled by the state Supreme Court, Knudsen (a Federalist Society member) dug in his heels, crafting misleading and false language into the text of the initiative. The state Supreme Court had to intervene again to rewrite the language of the initiative for signature gathering. Jacobsen’s office also attempted to change the rules of the petitioning process but was overruled by the courts.
Ohio Judge temporarily blocked 24-hour abortion waiting period law, affirms authority of Constitutional amendment enshrining the procedure
On Friday, Franklin County Common Pleas Court Judge David Young granted a preliminary injunction that temporarily blocks an Ohio law that mandates a 24-hour waiting period for patients seeking an abortion. This marks the first court decision that affirms the merits of the 2023 Constitutional amendment enshrining abortion rights that Ohioans passed. After Issue 1 passed, attorneys for a coalition of abortion clinics, including Preterm-Cleveland, and a physician sued to block existing state laws that add coercive requirements for abortion patients from being enforced.
The Ohio Legislature first passed a 24-hour waiting period in 1991. Lawmakers updated the law law in 1998 that added a requirement for an in-person doctor’s appointment to start the 24-hour clock. In 2013, lawmakers expanded the law to include a mandate for doctors to perform an ultrasound and to provide state-approved information about the gestational age and likelihood of the patient carrying their pregnancy to term.
In his decision, Judge Young wrote that the language approved by Ohio voters is “clear and unambiguous,” making it clear that “a person's right to reproductive freedom is now enshrined in the Ohio Constitution.” He added that the plaintiffs clearly showed “that the challenged statutes burden, penalize, prohibit, interfere with, and discriminate against patients in exercising their right to an abortion and providers for assisting them in exercising that right.” Ohio’s Republican Attorney General Dave Yost, a Federalist Society member, plans to appeal.
Tennessee GOP lawmakers threaten to defund Democratic-held county if it allows a citizen-led initiative on the November ballot
On Monday, Tennessee GOP House Speaker Cameron Sexton, who is running for re-election for state House District 25, and Lt. Gov. Randy McNally, who represents state Senate District 5, issued a joint statement threatening to wield their legislative power to defund the city of Memphis and Shelby County, the state’s most populous county, if the municipalities place a common sense gun safety ballot initiative on the November ballot. Cameron and McNally boldly wrote on paper that, as punishment for allowing the three referendums that conflict with the GOP’s NRA-friendly gun policies, they would pass a new law that would withhold state sales tax from the area.
Because voters do not approve of the law stripping municipalities of their authority to govern or the state legislature’s overt policies that put citizens in danger, the people of Memphis petitioned for a citizen-led initiative on the issue. The referendum includes 3 questions:
1) If voters wish to change the city charter to block permitless handgun carry within Memphis and prohibit unpermitted handguns from being carried or stored inside a vehicle.
2) If voters wish to ban the commercial sale of assault rifles and make it illegal to carry the weapons in Memphis. This rule would exempt law enforcement and armed forces and would allow an exception for those with valid handgun permits on privately owned property or a shooting range.
3) If voters wish to create a "red flag" law that could block an individual from purchasing a firearm if probable cause was found that it posed "a significant danger or extreme risk of personal injury or death to the respondent or another person."
In a special session in late 2023, the GOP-controlled state legislature passed a new law blocking local governments from enacting "red flag" laws. Tennessee Governor Bill Lee signed the bill into law in May. Lawmakers also passed a package of bills that reduced the size of Nashville’s Metro Council, which a state court ruled was unconstitutional in July, and stripped municipalities of their power to appoint members to Nashville’s airport and sports authority boards, which is being litigated.
Sexton criticized the Shelby County District Attorney Steve Mulroy and the Memphis City Council for "continued efforts to override state law with local measures" and wrote in a statement that if a city refuses “to participate within the state and state laws, then they do not need to participate in the state’s successes."
McNally wrote, "The Tennessee Constitution clearly outlines the roles and responsibilities of the state and local governments. Shelby County needs to understand that despite their hopes and wishes to the contrary, they are constrained by these explicit constitutional guardrails."
Alaska Supreme Court allows referendum seeking to repeal the state’s ranked-choice voting system on the November ballot
On Thursday, the Alaska Supreme Court affirmed a lower court decision that certified Ballot Measure 2, a far-right-funded referendum seeking to repeal the state’s ranked-choice voting system. In a 1-page order, the state high court did not provide reasoning for the opinion, but wrote that “an opinion explaining this decision will be issued at a later date.” Voting rights groups appealed the lower court ruling, arguing that the Alaska Division of Elections improperly certified the measure and unlawfully allowed post-deadline corrections to the signature booklets. It’s worth noting the repeal petitioners currently face fines of $100K after Alaska’s campaign finance regulator cited them for illegal fundraising.
Pennsylvania judge ruled the Washington County elections board must notify April primary voters of mail-in ballot errors and allow them to vote by provisional ballot
On Friday, a Washington County, Pennsylvania judge ruled that the county board of elections must notify April Primary voters of errors found on their mail-in ballots and allow them to cast provisional ballots in November. In July, the ACLU of Pennsylvania, the NAACP, and 7 voters in the commonwealth sued the county elections board alleging its new policy concealed errors made, such as missing signatures or incorrect dates, which denied 259 voters who cast mail-in ballots for the primary to correct the mistakes in time. Judge Brandon P. Neuman concluded that the county board’s failure to notify voters about mail-in ballot errors violates their due process rights, as well as their lawful right to challenge claims of ballot errors before a canvassing board.
New York Appellate Court upholds absentee voting law, rejects state GOP lawsuit seeking to invalidate the law
On Friday, a New York appellate court upheld a 2021 state election law that governs tabulating absentee ballots. The state Supreme Court, Appellate Division reversed a lower court ruling that struck down a provision of Assembly Bill 7931, ruling that the entire absentee voting law is constitutional and valid. The state Republican Party, including its chairman Ed Cox, as well as a coalition of state and county GOP committees, including the NY State Conservative Party and its chairman Gerard Kassar, Saratoga County Republican Party chairman Joe Whalen, and county elections commissioners, sued in 2022, alleging Assembly Bill 7931 is unconstitutional. Assembly Bill 7931 allows ongoing reviews of absentee ballots and requires absentee voters to use a provisional ballot when they decide to vote in person. It also prohibits legal challenges to absentee ballots already cast.
The GOP lost its original lawsuit, but it can’t accept no for an answer, so it sued again, alleging the law “protects fraudulent votes” from being questioned and “favors fraudulent ballots over genuine ballots cast in person.” The GOP targeted a provision that mandates that when a board of canvassers split on whether a ballot is valid, “it shall prepare such ballot to be cast and canvassed.” In May, a lower court struck down this provision, ruling that the law exceeded its authority because the state Constitution requires a contested ballot to “be set aside subject to judicial review.” The state and the state Senate appealed, arguing the law does not bar contested ballots from judicial review.
New York Appeals Court upholds New York vote-by-mail law, rejects lawsuit by GOP Rep. Elise Stefanik to disenfranchise voters
Last Tuesday, a New York appeals court upheld a vote-by-mail law challenged by the Republican Party—an effort led by GOP Rep. Elise Stefanik who represents NY’s 21st Congressional District and is running for re-election. Stefanik faces Democratic candidate Paula Collins, a cannabis tax attorney and former special education teacher in Harlem and Brooklyn. The decision by the state’s highest court means that all registered New York voters will be allowed to cast their ballots by mail. The GOP, which is owned by Donald Trump, sued to overturn the 2023 Early Mail Voter Act, claiming that it violated the state Constitution. In a 6-1 ruling, the state Court of Appeals affirmed lower court rulings that determined the voting rights law, which went into effect in January, was constitutional. A voter referendum to amend the state Constitution to enshrine vote-by-mail was rejected by voters in 2021 after an aggressive campaign funded by dark money claimed the referendum would allow voter fraud. This led state lawmakers to pass the Early Mail Voter Act into law, which expanded access to vote-by-mail to New Yorkers. Before 2020, only military service members, people with disabilities or illness, or those living/traveling abroad could request an absentee ballot.
Nevada Supreme Court declines to clarify role of County election boards, warns that failure to certify future election results will come with consequences
Last Tuesday, the Nevada Supreme Court declined to intervene in a Washoe County election certification dispute, ruling that the matter was moot since the county commission changed course and certified the June Primary results. Nevada Secretary of State Cisco Aguilar and Attorney General Aaron Ford asked the state high court to declare that the County board of commissioners acted illegally and require it to certify the results for 2 races before the August 22 state deadline. The state officials also asked the court to address the role of county boards, arguing that it’s likely the county board would act again to reject certification in November. The court agreed that the issue of county boards refusing to certify election results is important, but was not convinced that it would happen again. The state Supreme Court noted in the 30-page order that it has the legal authority to order a county board to certify future election results and warned that it may do so on an expedited basis if a board attempts to subvert another election.
7th Circuit Court of Appeals upholds Illinois vote-by-mail law, rejects lawsuit funded by Project 2025 sponsor
Last Thursday, a 3-judge panel on the 7th Circuit Court of Appeals upheld an Illinois election law that authorizes election officials to accept mail-in ballots postmarked before or on Election Day that are received up to 2 weeks after Election Day. The 2-1 ruling upholds a 2023 decision by U.S. District Judge John Kness, a Trump-appointed judge and a Federalist Society member, that dismissed the lawsuit seeking to invalidate the law.
The legal challenge was brought by the far-right nonprofit Judicial Watch on behalf of Republican Congressman Michael Bost, a former Marine who represents IL’s 12th Congressional District, and 2 GOP officials. They alleged that the state law violated federal law and subjected Rep. Bost to harm via expenses for hiring post-Election Day poll watchers and possibly diluting votes received by Election Day. The court rejected these claims, writing,
“If we were to accept Plaintiffs’ premise that inclusion of these ballots would cause vote dilution, their votes would be diluted in the same way that every other vote cast in Illinois prior to Election Day would be diluted. Thus, to the extent Plaintiffs would suffer any injury, it would be in a generalized manner and not ‘personal and individual’ to Plaintiffs, as the Supreme Court requires.”
The court concluded, “Because Plaintiffs have not alleged an adequate injury, we agree that they lack standing to bring this suit and affirm the district court’s dismissal of the case on jurisdictional grounds.”
Bost, who is running for re-election and faces Democratic candidate and attorney Brian Roberts, benefited from the law as it was written to accommodate federal voting requirements for military members serving overseas. He has been endorsed by Donald Trump and brought this lawsuit with the funding and legal assistance of Project 2025 sponsors. Judicial Watch’s biggest donor is Project 2025 sponsor, the Sarah Scaife Foundation, a far-right organization that funds other far-right operations affiliated with Project 2025.
Illinois Supreme Court upholds MAGA judge order that temporarily blocks law banning candidate slating
On Friday, the Illinois Supreme Court upheld a lower court ruling that found a new state law prohibiting “candidate slating” was unconstitutional. The law, which was signed into law by Governor Jay Pritzker in May, barred a long-held practice that allowed party bosses to nominate a state legislative candidate for the general election even if there was no candidate in the party primary election. The process through which a General Assembly candidate would be eligible for placement on the General Election ballot would be through the candidate-petitioning process, which had a June 3 deadline. The law does make an exception for withdrawn candidates, allowing parties to replace a candidate who drops out of the race.
In a 1-page order, the court explained that 2 justices recused from the case without providing a reason and the remaining 5 justices were split. This means the court was unable to reach the 4 votes needed to rule on the merits of the case. Because the state high court was divided on the matter, it issued a “Perlman order,” meaning the law is only blocked for the 2024 Presidential election in November and only applies to 14 Republican General Assembly candidates who sued to overturn the law. The court noted that while the order affirms the lower court opinion, it “is of no precedential value.” In June, Sangamon County Judge Gail Noll ruled the law unconstitutionally interfered with the right to vote, which includes a candidate’s access to the ballot. Noll is married to current Sangamon State’s Attorney John Milhiser and former U.S. Attorney for the Central District of Illinois under the Trump administration.
Also on Friday, the State Board of Elections ruled that 14 Republican candidates are eligible for placement on the November ballot and threw out the challenges against them. One of the candidates that will be on the ballot is Jay Keeven, Troy City Administrator and former Edwardsville Police Chief who was slated by the party to run for Illinois’ 112th state House District despite not running in the March primary. He seeks to flip the seat and will face incumbent state Rep. Katie Stuart. The state elections board also continued accepting petition signatures for General Assembly candidates.
South Dakota Supreme Court rejects election deniers attempting to disenfranchise absentee voters
On August 16, the South Dakota Supreme Court rejected 2 election deniers who challenged their losses in the June primary. Jessica Pollema, the president of the far-right “election integrity” organization South Dakota Canvassing Group and losing GOP primary candidate for Lincoln County Auditor, and John Kunnari, a losing GOP primary candidate for state House Representative for South Dakota’s District 11, asked the state Supreme Court in July to order Minnehaha County Auditor Leah Anderson to disqualify 132 absentee ballots and “revert to the unofficial vote count totals.” Pollema lost to incumbent Lincoln County Auditor Sheri Lund by 925 votes while Kunnari narrowly came in third place. In their filing, they claimed that 16 potentially fraudulent ballots were cast in the District 11 race, which “exceeds the margin of victory of the opposing candidates, which was won by ten votes.”
The two losers also asked the court to review registered voter lists in 2 precincts in Sioux Falls and order state election officials, including Secretary of State Monae Johnson, Minnehaha County State’s Attorney Daniel Haggar and Haggar’s Chief Civil Deputy Eric Bogue, as well as 5 members of the county commission, to be better at their jobs and to “bring the state into compliance with voter registration laws.” Pollema and Kunnari alleged that the 132 ballots in question were cast by voters whose voter registration forms were incorrect and claimed they were never residents of District 11 and thus in violation of state and federal election laws. The state high court denied their requests, upholding the official results of the June Primary election.
GOP-controlled Utah launches unconstitutional land grab campaign with new sweeping lawsuit against the Bureau of Land Management
Last Tuesday, Utah sued the Bureau of Land Management (BLM) challenging the federal government’s legitimacy of its ownership of 18.5M acres of public land—about 34% of the state. This is the latest and most sweeping lawsuit filed by the GOP-controlled state against the U.S. Government over federal-owned land. In its complaint, outgoing Utah Attorney General Sean Reyes—a Federalist Society member and election denier who participated in Trump’s attempt to overturn the 2020 election results in Nevada—asked the Supreme Court to determine whether it’s constitutional for the federal government to indefinitely control “unappropriated” land in Utah.
This lawsuit asking the high court to overturn precedent and dismantle the power of the federal government in the name of state’s rights is also a desperate publicity stunt as the state executive branch will be on the November ballot. In addition to Gov. Cox and Lt. Gov. Dierdre Henderson seeking re-election, the state Attorney General’s position is open. Republican candidate Derek Brown, a former state Rep. who also served as Deputy Chief of Staff for Senator Mike Lee and, most recently, as Utah Republican Party chairman, faces a challenge by Democratic candidate Rudy Bautista, a criminal defense attorney, as well as 3 other candidates affiliated with third parties.
The Stand for Our Land campaign, which Utah Governor Spencer Cox launched alongside the lawsuit and is paid for by taxpayers, positions the state as a crusader against federal overreach. It’s directly related to President Joe Biden’s efforts to restore federal acreage that Trump sold off, including Bears Ears and Grand Staircase National Monuments. The state is currently asking the 10th Circuit Court of Appeals to declare Biden’s monument designations unlawful and also joined Wyoming’s lawsuit seeking to overturn the BLM’s Public Lands Rule, which strengthens conservation efforts of public land, as well as road closures to motor vehicles near Moab.
In a press conference on Tuesday, Gov. Cox claimed that “the federal government has increasingly failed to keep our lands accessible and properly managed,” and that “Utah deserves priority when it comes to managing this land.” AG Reyes let slip that the state’s goal is a land grab for private exploitation, stating that federal ownership deprives Utah “of significant rights, resources, and opportunities,” adding that the state can’t police, tax, or build infrastructure on federal land within its borders. Word is still out if any Utah Republicans have read the Property Clause in the U.S. Constitution, which explicitly grants Congress the authority to regulate or dispose of federal lands.
Redge Johnson, the executive director of the Utah Public Lands Policy Coordinating Office, told the Salt Lake Tribune that the Utah Department of Land Management, which was created in 2017 as Utah’s version of the BLM, would oversee the land if the Supreme Court rules in the state’s favor. The state agency would then manage permits for private development and extraction, including for mining, livestock grazing, recreation, and energy.