Legislative Updates
Federal Legislation: The House unanimously approved the Defending the Integrity of Voting Systems Act, approved by the Senate last year, would make hacking federal voting infrastructure a crime under the Computer Fraud and Abuse Act, which is commonly used by the Justice Department to take action against malicious hackers. The bipartisan bill was introduced by Sens. Richard Blumenthal (D-CT), Sheldon Whitehouse (D-RI), and Lindsey Graham (R-SC) last year. It will now be sent to the president desk for signature. Blumenthal applauded the bill’s passage Monday, saying in a Statement that “as foreign adversaries seek to undermine our democracy, our election systems are in dire need of strong safeguards.” “Our adversaries have shown a willingness and capability to hack the infrastructure that powers our democracy, however, our laws and enforcement lag far behind this dire threat,” Blumenthal said. “This bill must now quickly become law so every vote counts. Nearly a month out from our 2020 elections, there’s no time to waste.”
Kentucky: Lawmakers have unveiled a series of election reform bills they plan to put forward during the 2021 session of the General Assembly. Among the topics covered by the bills are: Early, in-person voting and excuse-free absentee ballots; Permanent “cure” process for correcting absentee ballots; Expanded voting hours to 7:00 p.m.; Automatic voter registration and same-day voter registration; Repeal straight-ticket voting; Require advance notice of polling-place changes; Automatic restoration of voting rights for felons and expanded felony expungement; and Redistricting reform/maps with citizen input, rather than just lawmakers whose districts are being redrawn. Other election changes would expand the list of which family members could request an absentee ballot for a voter having a medical emergency, make requesting an absentee ballot via the Secretary of State’s secure online portal permanent, provide additional secure drop boxes for absentee ballots, require provisional ballots in State races for voters whose identity cannot be verified by poll workers, and make it easier for Kentuckians to vote who do not have a permanent address.
Massachusetts: Rep. Antonio Cabral (D-13th District, New Bedford) is proposing to amend the State law that deals with the preservation of order by police at polling locations by banning sheriffs and their deputies from showing up to maintain order among voters and sign-holders. Under a bill (HD 5270), no county or State law enforcement officer, sheriff, deputy sheriff or special sheriff would be “permitted on the premises of a polling place or within 300 feet of a polling place to preserve order or to protect the election officers and supervisors from any interference with their duties or to aid in enforcing the laws relating to elections without the express written approval of both the secretary of public safety and security and the board or officer in charge of the police force of the city or town.”
The Northampton city council has voted to accept two elections-related recommendations from the Charter Review Committee. One recommendation would allow noncitizens to vote in local elections and the other would move the city to a ranked-choice voting system. Those recommendations must be approved by the city council and mayor before moving on to the State Legislature.
Michigan: Senate bills 977 and 978 would make filling out an application to receive multiple ballots, providing false Statements on the application or forging a signature a felony punishment leading to five years imprisonment, a fine of up to $1,000 or both. House bills 5880 and 5881 address the same issues. Rep. Ann Bollin (R-42nd district, Brighton), co-sponsored the house bills and defended the Senate ones in a Tuesday, Sep. 22nd hearing in the House Judiciary Committee. Providing false information on an absentee ballot is now a misdemeanor punishable up to 93 days in jail or a $500 fine. By increasing the consequences, attempts at fraudulently voting would decrease and help prevent local clerks from getting overwhelmed, Bollin argued.
The House Elections and Ethics Committee has approved Senate Bill 757 by a 4-1 vote with two abstaining. The bill, sponsored by Sen. Ruth Johnson, (R-14th District, Holly), would allow clerks from cities with at least 25,000 residents to start pre-processing absentee ballots between 10 a.m. and 8 p.m. the day before the Nov. 3rd general election. It also outlines the pre-processing procedure for clerks before Election Day, how inspectors can validate proper ballot handling and what shift times vote-counting staff can work. The bill will be reviewed at least once more by the Ways and Means Committee before consideration by the House.
The Kalamazoo City Commission passed a resolution to expand voting and registration access, beyond the minimum required by the State constitution. The newly adopted resolution would extend voting hours and establish another voter registration location to help people navigate Election Day, Nov. 3rd, 2020.
Legal Updates
Alaska: Anchorage Superior Court Judge Jennifer Henderson issued a five-page temporary restraining order on September 17th temporarily blocking Alaska elections officials from printing more ballots after a U.S. Congressional candidate’s lawsuit raised “clear and very significant questions” about whether a new ballot design is illegal. Later in the day, State elections officials filed an emergency motion asking the Alaska Supreme Court to intervene. The 95-page motion says the State faces a Friday deadline under federal law to mail ballots to military and overseas voters, although that law, the Uniformed and Overseas Citizens Absentee Voting Act, includes an exemption for lawsuit-related delays. The Alaska Supreme Court upheld a lower court ruling, which said forcing the reprinting of the ballots would cause harm to the State. The high court heard the case on an expedited basis Henderson issued her ruling early Friday afternoon.
Arkansas: A lawsuit has been filed in Jefferson County Circuit Court against the Jefferson County Election Commission, along with Commissioners Mike Adam, Ted Davis, and Stu Soffer, alleging that the closure of a Ward 4 polling site at New Town Missionary Baptist Church was done illegally. The lawsuit was filed Sept. 11th by Ward 4 resident Walter Johnson and by Ward 4 Aldermen Steven Mays and Bruce Lockett. Adam and Soffer have also been named in an ethics complaint filed by the Democratic Party of Arkansas with the State Board of Election Commissioners regarding a number of poll site consolidations that it contends were done illegally and regarding a number of public comments made by Soffer that it said are abusive or offensive. One of the allegations in the lawsuit is that Soffer and Adam improperly closed three polling locations in African-American neighborhoods, including New Town. The decision on two of those locations, Old Morning Star Baptist Church in Packingtown and the Pine Bluff Administration Building, were reversed at a meeting Aug. 18th as a compromise with Commissioner Theodis “Ted” Davis. Davis had refused to allow the relocation of the Swan Lake Community Center polling site to the Swan Lake Fire Department, which Adam and Soffer said better met requirements under the Americans with Disabilities Act, until the decision to close polling sites was reconsidered.
The League of Women Voters of Arkansas and two registered voters have filed suit against which names Arkansas Secretary of State John Thurston and several members of the State Board of Election Commissioners alleging in their lawsuit that the State’s requirements for accepting absentee ballots are unconstitutional and that history has shown that a significant number of ballots are wrongly rejected every election cycle. That won’t change, attorneys said, unless the law is changed. The suit is seeking more time for residents to cure their ballots should a problem arise which means elections officials need to begin processing ballots earlier.
Georgia: The Lawyers’ Committee for Civil Rights Under Law has filed a federal lawsuit in seeking to require Gwinnett County send Spanish-language absentee ballot applications to those that need them and require the secretary of State’s office to make its absentee ballot portal available in Spanish as well. The suit asks the court to require the Secretary of State’s office to translate its absentee ballot application portal and ballot confirmation receipt into Spanish. The request also includes accurate translations of voter precinct cards on the State’s My Voter Page and broader access to Spanish-language materials.
Illinois: U.S. District Judge Robert Dow rejected a bid by the Cook County Republican Party to block the State’s enhanced vote-by-mail program, rejecting as conjecture allegations that the program was a scheme aimed at disenfranchising GOP voters. ruled the Cook County GOP also was tardy in filing its lawsuit in August seeking a preliminary injunction over the law approved in May as an effort to deal with the COVID-19 pandemic by offering an alternative to traditional in-person voting. Dow’s ruling also noted existing State statute is aimed at preventing so-called ballot harvesting by political operatives, requiring a voter authorization signed on the exterior of vote-by-mail ballots that are dropped off to election authorities or at drop boxes as an alternative.
Indiana: Southern District of Indiana Judge Richard Young granted an injunction sought by Common Cause Indiana blocking a 2019 Indiana law restricting who may seek to extend polling-place hours due to conditions that prevent voters from casting a ballot. “The public interest plainly favors the injunction,” Young wrote, enjoining Indiana Code §§ 3-11.7-7-2, 3-11.7-7-3, and 3-11.7-7-4. The so-called standing amendments restricted who may ask for an extension of polling hours. “Prior to 2019, voters could go directly to State court to seek an extension of polling place hours when they encountered barriers to casting their ballot,” Young’s order says. Under the standing amendment, “[o]nly a county election board has standing in an Indiana court or with any other State governmental entity to file an action or petition to request the extension of the hour for closing the polls by the court or entity,” Young wrote. “The Standing Amendment prevents any entity other than a unanimous county election board from ‘fil[ing] an action or petition’ in State court ‘to request the extension of the hour for closing the polls’ when there are unforeseen barriers to casting a ballot. This burdens the right to vote because when voters face disenfranchising conditions at their polling place, the Standing Amendment can deny them an opportunity to vindicate their right to vote by seeking relief in an Indiana court,” the Judge found.
Iowa: The Iowa Supreme Court denied an appeal by the Woodbury County Auditor’s Office, affirming a district court ruling that previously received mail ballot requests for the November election were invalidated, so people who wanted such ballots will have to begin the process over. Auditor Pat Gill in a release said he would comply with the court decision, which in essence affirmed the ruling in late August by District Court Judge Patrick H. Tott granting a temporary injunction against the auditor’s office and invalidating thousands of absentee ballot requests.
Minnesota: State Rep. Eric Lucero (R-30B District, Dayton), is suing the Secretary of State Steve Simon, seeking to block an extension to allow mail-in ballots to be counted up to a week after Election Day, Nov. 3rd. The extension has been granted and approved by the courts to accommodate the large volume of mail-in ballots because of the ongoing COVID-19 pandemic. In August, a State Judge approved an agreement between Secretary of State Steve Simon and several advocacy groups, which permits ballots to be counted up to a week after Election Day as long as they are postmarked Nov. 3rd. In previous elections, the ballot had to be received by Election Day. Ramsey County Judge Sara Grewing also waived the requirement for a witness signature. Lucero, who was not a named party on the previous lawsuits, could find a Judge in federal court more sympathetic to criticisms that the changes to voting rules threaten the integrity of the State’s elections. “Plaintiffs, registered voters in Minnesota and certified electors, will be irreparably harmed in all of these ways and respectfully request that the Court declare the Secretary’s agreement unlawful and enjoin it,” Lucero argues in the lawsuit.
Mississippi: The State Supreme Court said Hinds County Chancery Judge Denise Owens erred in a ruling earlier this month when she wrote current State law “permits any voter with pre-existing conditions that cause COVID-19 to present a greater risk of severe illness or death to vote by absentee ballot during the COVID-19 pandemic.” Justice Dawn Beam, writing for the majority, said current law, as amended earlier this year by the State Legislature, requires a person to be directed to be quarantined by a physician in order to vote early. “Having a pre-existing condition that puts a voter at a higher risk does not automatically create a temporary disability for absentee-voting purposes,” she wrote.
Missouri: A Washington-based advocacy group “American Women” is suing the State of Missouri over most of the constraints imposed on mail-in voting in the Show-Me State. Specifically, the suit wants to eliminate both the notarization requirement and the requirement that says those ballots must be returned by mail. It would allow third parties to collect and submit mail-in ballots, change the protocols for matching voter registration and mail-in ballot envelope signatures. And, perhaps most important under pandemic circumstances, allow for the countability of any ballot postmarked by Election Day instead of requiring that it be received by Election Day. Cole County Judge Dan Green has scheduled an early October trial.
Oklahoma: Chief U.S. District Judge John Dowdell declined to block Oklahoma’s photo identification and notarized signature requirements for absentee ballots during the Covid-19 pandemic, ignoring Democrats’ arguments that the law suppresses voters. Dowell in Tulsa refused to enter a preliminary injunction, concluding the requirements enacted by the Republican-controlled Oklahoma Legislature are “reasonable, nondiscriminatory and legitimate.” He said legislators have put in place measures to ensure voting will be safe. “The concerns about voting during the pandemic, especially to the elderly and other voters who are at a higher risk for serious outcomes, are justified,” the 52-page opinion States. “However, the State has put in place alternatives that do not necessarily require that voters have direct contact with others in order to cast an absentee ballot, and the evidence and law substantiate that the State’s interests in preventing voter fraud and promoting certainty and confidence are sufficiently weighty to overcome any minor burden imposed upon Oklahoma voters during the pandemic.”
South Carolina: U.S. District Court Judge Michelle Childs has ruled that voters should not have to find a witness to sign their absentee ballots for the upcoming general election due to the ongoing coronavirus pandemic. In a 71-page order that dealt with several voting-related issues, Childs wrote that voter fraud concerns are not a sufficient reason to potentially jeopardize voters’ fundamental right to cast their ballots during a pandemic, and she questioned how effectively the requirement even guards against voter fraud. The evidence in the record points to the conclusion that adherence to the Witness Requirement in November would only increase the risk of contracting COVID-19 for members of the public with underlying medical conditions, the disabled, and racial and ethnic minorities,” Childs wrote. As Childs noted, the witness requirement would have applied to voters even if they had contracted COVID-19 — meaning infected voters could be forced to expose their witnesses to the virus. She previously struck down the requirement for the June primaries. South Carolina Republicans and election officials have appealed to keep the requirement on absentee ballots for the November election.
Texas: Harris County can send absentee ballot applications to all registered voters after a three Judge-panel of the 14th U.S. Court of Appeals agreed a State District Judge who rejected the Texas attorney general’s request for a temporary injunction blocking the mailing plan. The all-Republican Texas Supreme Court directed the county to hold off on sending any unsolicited applications earlier this week while the case is on appeal, and the high court is the next stop for the politically fraught lawsuit. In an 11-page ruling, three Democratic justices — Charles Spain, Meagan Hassan and Margaret Poissant, rejected the State’s argument that the injunction was necessary to keep the county from “walking” voters into committing felonies by sending applications to voters who may ultimately not be eligible for mail-in ballots. That claim, the panel ruled, was “based on mere conjecture,” with the State offering no proof to support it. “The State failed to meet its burden of showing that mailing the applications will result in irreparable injury,” the panel wrote. “The injury alleged by the State is at best speculative.” The case is on track to the Texas Supreme Court, but the clock is running out for the applications to be mailed with sufficient time to get ballots into voters’ mailboxes.
A Group of Texas Republicans, including State Party Chair Allen West, Agriculture Commissioner Sid Miller and members of the Texas Legislature have filed suit against Republican Gov. Greg Abbott over his extension of early voting for the November election. In July, Abbot used emergency powers to add six days to early moving, moving the start time from Oct. 19th to Oct. 13th. The plaintiffs say the move defied election law that requires early voting to start on the 17th day before the election. The plaintiffs argue Abbott needs to consult the Legislature before making such decisions and that “if ever a special session was justified, now is the time.”
Wisconsin: Judge William Conley has extended the deadline for mail-in ballots to be counted in Wisconsin for up to six days after the Nov. 3rd election. Conley issued the order on Monday in response to a lawsuit from the Democratic National Committee, Democratic Party of Wisconsin and several nonprofit groups. The lawsuit sought to change a number of State voting laws because of the COVID-19 pandemic. Under the ruling, clerks across the State can accept ballots until Nov. 9 as long as they are mailed and postmarked on or before Election Day. The ruling knocks down a State law that requires ballots to be in the possession of local election officials by 8 p.m. on Election Day in order to be counted. In his ruling, Conley said “election workers’ and voters’ experiences during Wisconsin’s primary election in April, which took place at the outset of the COVID19 crisis, have convinced the court that some, limited relief from statutory deadlines for mail-in registration and absentee voting is again necessary to avoid an untenable impingement on Wisconsin citizens’ right to vote, including the near certainty of disenfranchising tens of thousands of voters relying on the State’s absentee ballot process.” Other changes approved in Conley’s order include: Extending the deadline for online and mail-in voter registration to Oct. 21st. The previous deadline was Oct. 14th; Lifting a ban on replacement ballots only being sent by mail. Under the order, voters will be able to access a replacement ballot online or by email if theirs never arrived after they requested it. The window for making online or email requests will be Oct. 22nd-29th; and Lifting a requirement that people must live in the county where they want to serve as a poll worker. Republican lawmakers have filed an appeal with the federal 7th Circuit Court of Appeals.
A poll worker is suing La Crosse’s city clerk and governor Tony Evers over mask requirements. Poll worker Nicholas Newman says in the suit that he has difficulty breathing, and has a medical condition that makes it dangerous for him to wear a mask for an extended period of time. In August, Newman went to work his shift as a poll worker, and he was told he could not work if he didn’t wear a mask. The lawsuit claims La Crosse city clerk Teri Lehrke, “wrongly indicated to Newman that Emergency Order 1 required a face covering.” It also says he, “could not work in any future elections because of this failure.”
U.S. District Judge James Peterson said this week that he won’t rule before the election on a lawsuit that challenged a State law requiring college student IDs to have an expiration date in order for them to be used as a voter’s ID. Peterson canceled a hearing he had scheduled for Thursday morning in the case, less than six weeks before the election in the hotly contested battleground State. Peterson said he didn’t want to cause “chaos and confusion” by ruling in the case so close to the election, noting that absentee voting was already underway. “If the court were to issue an order changing the status quo now, it would leave the (Elections) Commission and municipal clerks with little time to issue new guidance and retrain staff,” Peterson said. “The nearly inevitable appeal would mean weeks of uncertainty as the case was reviewed by the court of appeals and possibly the Supreme Court.”
NYC Wins When Everyone Can Vote! Michael H. Drucker
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