Legislative Updates
Federal Legislation: Rep. Terri Sewell (D-Alabama) lead a group of House Democrats to reintroduce a bill Tuesday that would shore up and expand the Voting Rights Act of 1965 after the U.S. Supreme Court dismantled key parts of the landmark law. The John R. Lewis Voting Rights Advancement Act — was part of a pair of voting rights bills in the last Congress that President Biden tried to rally lawmakers around in “a moral and Constitutional obligation to act.” In 2021, the Democratic-controlled House passed Sewell’s bill in a vote along party lines. But in the Senate, where Democrats have held a slim majority, the legislation ultimately could not overcome Republican opposition, as well as a failed attempt to end the Senate’s legislative filibuster in order to pass the bill with a simple majority. As in its previous version, key provisions in Sewell’s latest bill respond to two Supreme Court decisions that have made it more difficult to protect voters of color from discrimination. Sewell’s bill updates the formula to require preclearance for 10 years for any state that, in the past 25 years, had at least 15 voting rights violations, as determined by the U.S. attorney general, committed by localities within the state or at least 10 violations, including one by the state itself. A county would be covered if it had three or more violations. The bill would amend the section by codifying factors that courts would have to consider when reviewing claims of vote denial. It specifies, for example, that an election rule that is intended to help a political party would violate Section 2 if it is also intended to dilute the power of voters of color or make it harder for them to “cast a ballot that will be counted.”
San Joaquin County, California: The Board of Supervisors approved a proposal to replace current vote-by-mail drop boxes across the county with new drop boxes equipped with security measures to prevent election fraud. With the supervisors’ vote, nearly $200,000 will be sent to the San Joaquin County Registrar of Voters to replace the county’s 25 vote-by-mail boxes with “Vote Armor” ballot boxes from Laserfab, Inc. Despite the current system being compliant with secretary of state requirements and having precautions to ensure the security of ballot boxes, Registrar Olivia Hale said that “change is definitely needed.” Those changes will include fortified locking mechanisms, security cameras and tamper seals on the boxes. As an added layer of protection, the boxes will be securely bolted to permanent locations throughout the county and sealed during non-election years.
Missouri: Sen. Denny Hoskins (R-Warrensburg), plans to refile legislation creating the “Office of Election Crimes and Security” within the secretary of state’s office, a position he’s running for. Hoskins said the General Assembly should continue focusing on election integrity. He sponsored Senate Bill 350 last session, a five-page bill to review election complaints and conduct investigations into alleged violations of election law. It died in committee. “This will create, basically, an election audit task force to look before the election, on election day after after the election for any abnormalities or irregularities in Missouri elections,” Hoskins said in an interview last month with The Center Square. “I’ve been talking to my constituents and it’s very popular.”
North Carolina: The North Carolina House passed major changes to the rules for elections — and how election results could be audited. Both could go into effect for the 2024 elections if they become law.
House Bill 770, would make people’s ballots a public record. HB 770 would allow individuals or private groups to request to see all of the state’s ballots after an election, to conduct their own audit in addition to the audits the state government already does. It was originally filed by a group of far-right lawmakers, raising concerns that it was based on false claims of a stolen 2020 election pushed by former President Donald Trump. But GOP lawmakers worked with Democratic colleagues and state elections officials to make changes in recent days. It passed Tuesday with broad, but not unanimous, support.
SB 749 would remove the governor’s ability to appoint members of the State Board of Elections — as well as all 100 county election boards — and instead transfers that power to the legislature. It also would end the process of the governor’s political party getting the edge over the other party with a 3-2 majority on each of the five-member boards, and would instead create evenly tied boards. In effect, it would end the Democratic Party’s control over election rulemaking ahead of the 2024 elections. There are two main concerns critics of SB 749 have with the bill’s potential consequences, both stemming from the fact that it would create a politically even board. If county and state boards found themselves deadlocked by ties, it could mean no early voting sites could be approved, for example, and the county in question would only be allowed a single site at the county elections office. The other concern among opponents is that politically motivated election board members could simply refuse to certify the election victory of a candidate their party opposes. The measure failed in the Senate on Sept. 20, however, the bill isn’t dead. Senate Bill 749 passed the Senate earlier this year and passed the House on Tuesday. But each chamber passed slightly different versions, and on Wednesday the Senate declined to agree with the House version. So now the two chambers must appoint a smaller team of lawmakers to get together and try working out a compromise.
Oklahoma: Members of the House Elections and Ethics Committee weighed potential policies governing ranked-choice voting, including a municipal-level ban, during an interim study at the state Capitol. Interim studies don’t generate official reports or recommendations but are often used to guide future legislation. Four of the five speakers at the study were critical of ranked-choice voting, raising concerns that it’s overly complex or mostly supported by left-leaning organizations. State Election Board Secretary Paul Ziriax said the state’s voting machines aren’t capable of reading ranked-choice ballots and would need to be replaced if the voting system is adopted. He said it would probably take at least a year to send requests for proposals and purchase capable machines, likely at a cost exceeding $10 million. Additional money would be needed to educate voters and election officials of the changes. “I’ll be honest, I’m confused by ranked-choice voting,” Ziriax told lawmakers. “As you can imagine, if I’m confused, how does the general public respond to it? I would not want to be the one to have to go out and explain it to voters.”
Pennsylvania: The State Senate Government Committee advanced a bill to move Pennsylvania’s 2024 primary election five weeks earlier and also to compress the pre-election schedule for candidates, drawing expressions of concern from county election directors. The bill would move the primary from April 23 to March 19. That would eliminate a conflict with the first full day of Passover and also satisfy state leaders who want to give Pennsylvania a more prominent spot in the national presidential primary sequence. Lisa Schaefer, executive director of the County Commissioners Association of Pennsylvania, said the pre-election schedule change is “incredibly concerning to us, almost to the point of being unworkable.” Setting the pre-election schedule in traditional fashion to culminate on the March 19 date, though, meant the 22-day window for candidates to knock on doors seeking nominating signatures would start Dec. 19. Sen. David Argall, R-Schuylkill and the bill’s prime sponsor, successfully moved to have the bill amended to make the period Jan. 2 to Jan. 23. The bill now goes to the full Senate for consideration. The Senate approved the bill 45-2. The bill next moves to the House.
Wisconsin: Two Republican lawmakers renewed a proposal to amend the Wisconsin Constitution to enshrine state laws that require voters to show identification at the polls, with some exceptions. Constitutional amendments must be passed by two consecutive legislatures before appearing on voters’ ballots for approval, meaning any such change would not go into effect until after the 2024 presidential election. Wisconsin already has voter identification laws, with some exceptions for military, overseas and permanent absentee voters. Voters who do not have a photo ID can vote a provisional ballot and show their identification to their clerk up to a certain deadline. Absentee voters who request a ballot by mail must provide a photocopy of their identification. The constitutional amendment, proposed by Rep. Patrick Snyder, R-Schofield, and Sen. Van Wanggaard, R-Racine, would not change the provisional ballot process and any exceptions, but rather spell them out in the state constitution. The Legislature would also retain the ability to make laws to create new exceptions.
A bipartisan group of lawmakers revived a push to implement ranked-choice voting and nonpartisan blanket primaries. Under the new bill, candidates for the U.S. House and Senate would compete in a single statewide primary regardless of their political party, with the top five finishers advancing to the general election. Voters in the general election would then rank candidates in order of preference, a system that ensures winners are chosen by a majority. It’s the second time the idea has received bipartisan support in the Republican-controlled Legislature. A nearly identical bill introduced in 2021 was never voted out of the Senate elections committee. The goal “is not to change who gets elected; it is designed to change the incentives of those who do get elected,” authors of the bill said in a message asking other lawmakers to co-sponsor it. “Partisan primaries can be very damaging, encouraging candidates to adopt more extreme partisan positions in order to come through a partisan primary,” Democratic Sen. Jeff Smith, one of the bill’s authors, said in a statement. “This bill will improve legislators’ accountability to their constituents and incentivize cooperation rather than competition.”
Legal Updates
Arizona: The Arizona Republican Party is asking the state Supreme Court to overturn lower court rulings that found a 2020 lawsuit the party filed was submitted in bad faith. The party is seeking to evade $27,000 in legal fees. The original lawsuit alleged the process Maricopa County used to conduct hand-count audits to check voting machine accuracy was illegal. The party claimed state law requires audits to be done by precinct, but the county instead audited vote centers. That process was allowed by the state’s Elections Procedure Manual, and has been used since 2011 when the Legislature approved the use of Vote Centers. In April, the state Court of Appeals agreed with a trial ruling that said the GOP had no basis to sue, and did so for political reasons. The Supreme Court has yet to decide whether it will take up the case.
U.S. District Court Judge Susan Bolton blocked Arizona from enforcing a 2022 state law limiting who can vote for president. Bolton said Arizonans who use a federal voter registration form are entitled to cast a ballot in presidential elections. More to the point, the judge voided parts of the statute which says that only those who provide “satisfactory evidence of citizenship” can vote in those elections. Bolton also said the state cannot enforce another provision which bars anyone who uses this federal form from voting by mail. But the judge withheld final judgment on whether other changes in state voter registration laws enacted by the Republican-controlled Legislature also run afoul of federal laws. That will be determined after a full-blown trial. In a separate ruling, however, Bolton gave challengers — including the voting rights groups like Mi Familia Vota and the U.S. Department of Justice — the ability to question Senate President Warren Petersen and House Speaker Ben Toma about their motives for approving the laws. “The speaker and president must produce communications that they have sent or received relating to the voting laws’ legislative process and withheld on legislative privilege grounds,” the judge wrote. “They may also be deposed about their personal involvement in the voting laws’ legislative process.”
Connecticut: Bridgeport mayoral candidate John Gomes said Monday he will challenge the results of the city’s Democratic primary election in court after videos surfaced online appearing to show a woman placing multiple stacks of papers in a ballot box. The videos, apparently recorded by municipal surveillance cameras outside the city’s government center building, captured widespread attention over the weekend, and prompted an inquiry by Bridgeport police, who are investigating any potential misconduct shown in the recordings. Police have also launched an internal probe into how the videos were obtained from the city’s video maintenance system. Gomes has alleged the woman seen in the video is a city employee and political ally of his opponent, incumbent Mayor Joseph Ganim. Connecticut Public attempted to reach her for comment Saturday, but was unsuccessful. Bill Bloss, a lawyer representing Gomes, said the pending court complaint will allege mishandling of absentee ballots by a person who is unauthorized to possess them. Gomes will ask a judge to declare him the winner of the primary, or alternatively, to toss out the results and conduct a new primary election, Bloss said.
Georgia: Fulton County Superior Court Judge Scott McAfee ruled that 17 defendants, including former President Donald Trump, will be tried separately from co-defendants Sidney Powell and Kenneth Chesebro, who are scheduled to go on trial on Oct. 23 for allegedly trying to overturn the 2020 presidential election in Georgia. McAfee noted in his order the logistical challenges of meeting the demands of the Fulton County District Attorney’s Office to have all 19 defendants tried at the same time next month. McAfee’s ruling means that co-defendants Powell and Chesebro are scheduled for an Oct. 23 hearing, the beginning installment in an expected marathon trial that prosecutors anticipate will eventually involve 150 witnesses taking the stand over the course of four months. Earlier this week, Fulton County District Attorney Fani Willis defended holding joint trials for the 19 defendants as being an efficient use of resources since prosecutors plan to present the same evidence and witnesses for every defendant’s case. McAfee wrote that the downtown Atlanta courtroom was not large enough to hold all 19 defendants, their attorneys, and the team of state prosecutors at the same time. McAfee rejected requests from attorneys representing Chesebro and Powell to have their cases tried separately. Their attorneys have said they wanted to sever the co-defendants’ trials in order to protect their clients from being unfairly tainted by unrelated evidence.In his ruling, McAfee said he considered the impact of a months-long trial that will result in “sidelining dozens of defense counsel from handling other cases and preventing this court — and quite likely most colleagues — from managing the rest of the docket.
North Dakota: U.S. District Judge Daniel Traynor requested more information about whether a local election official has the legal authority to file the suit. Traynor called into question whether Burleigh County Auditor Mark Splonskowski can file the lawsuit, which hinges on his status as a county official, without the support of Burleigh County. Splonskowski filed the suit, in partnership with the Public Interest Legal Foundation, against state Election Director Erika White in July, claiming that he is harmed by an alleged conflict between state and federal mail-in voting laws. In the wake of the filing, he has said he brought the suit in his “individual” capacity, and Burleigh County officials have said no county funding or staff time is being put toward the suit. However, Traynor raised concerns with that claim, pointing out that Splonskowski’s initial filing “clearly contemplates the suit in his official capacity as Burleigh County Auditor.” Splonskowski’s suit is not backed by Burleigh County, but the case hinges on his role for the county, with “not a single fact” Splonskowski has brought leading the court to conclude the case was brought on an individual capacity, Traynor said. As a result, Splonskowski and the foundation must submit an additional brief about his legal authority in the suit by Sept. 29. If the court finds that he doesn’t have standing, the case could be dismissed.
Michael H. Drucker
