Legislative Updates
Federal Legislation: This week the president signed legislation making it a federal crime to attempt to hack federal voting systems. The Defending the Integrity of Voting Systems Act was unanimously approved by the House last month, over a year after the Senate also unanimously passed the legislation. Trump signed the legislation on Tuesday, just two weeks before the election. The new law empowers the Department of Justice to pursue charges against anyone who attempts to hack a voting system under the Computer Fraud and Abuse Act, commonly used by the agency to pursue charges against malicious hackers. The bill’s original introduction was the result of a 2018 report compiled by the DOJ’s Cyber Digital Task Force, which evaluated ways the federal government could improve its response to cyber threats. The bipartisan bill was introduced by Sens. Richard Blumenthal (D-CT), Sheldon Whitehouse (D-RI), and Lindsey Graham (R-SC) last year.
Louisiana: A House committee advanced a compromise bill Tuesday, Oct. 20th that would re-work how lawmakers adopt rules for elections held during states of emergency. Under current law, the legislature and governor must each approve the Secretary of State’s plan, which may include expanded mail-in voting or an extended early voting period to accommodate the emergency. But there are no opportunities to amend the idea without starting the entire process over, meaning a ‘no’ vote from any stakeholder kills the idea and delays its replacement. Under the new proposal, lawmakers would adopt election rules in a manner more like how they pass bills. The Secretary of State would present the idea to a joint governmental affairs committee, which would advance the plan to the full body for a vote. The governor could sign or veto the idea, and the legislature could override a potential veto. But perhaps most important, lawmakers would give the Secretary of State more flexibility to change the proposal as it advances through the process. The bill creates a strict timeline for accomplishing the task. The bill now moves to the full House for debate. It would have to return to the Senate for approval of the committee’s re-write before the governor signs off.
Michigan: Gov. Gretchen Whitmer vetoed bills that would have made it a felony to knowingly try to apply for multiple absentee ballots or to fill out an application for others without their consent. The Democratic governor said voter fraud — such as trying to vote more than once — already is a crime, and the Republican-sponsored legislation would “muddy the waters” and “likely confuse voters” about what conduct is criminal. “Any suggestion that the filing of a second absentee ballot application is criminal behavior creates needless confusion and fearmongering around the absentee voting process,” Whitmer wrote in her veto letter. “It is bad for voters and bad for our elections.” The main bill was passed by the GOP-controlled House and Senate on bipartisan 77-26 and 32-6 votes, with some Democrats opposed.
New Jersey: The Assembly State and Local Government Committee approved a bill that would allow New Jerseyans to cast ballots in-person for two weeks ahead of election day. The bill, sponsored by Assemblyman Andrew Zwicker (D-South Brunswick), would allow two weeks early in-person voting for the state’s May non-partisan municipal elections and November general elections. Under the bill, counties would operate between three and seven — based on county population — early voting centers and would be required to obtain electronic poll books needed to administer an early voting system
The Senate State Government, Wagering, Tourism and Historic Preservation Committee approved along party lines S-2923, which would prevent police from providing general protection of polling locations, serving as election challengers unless they are on the ballot or standing within 100 feet of a polling place unless they are voting. Police could respond to a disturbance or other specific issue that occurs at a polling place if their assistance is requested.
Texas: Galveston County Judge Mark Henry issued an executive order stating that elections workers who require Galveston County voters to wear a mask will be fined up to $1000. Henry said that order ensures that all eligible Galveston County voters will be granted the right to vote, regardless if they are wearing a mask/face covering or not. Under the county judge’s order, if any election worker attempts to require a mask/face covering or denies an eligible voter the opportunity to vote at a polling location in Galveston County, the Galveston County Sheriff’s Office will be issuing a $1,000 fine to that election worker.
Legal Updates
Alaska: The Alaska Center Education Fund, Alaska Public Interest Research Group and a Sitka resident filed suit seeking to give absentee voters in Alaska a chance to fix mail-in ballot errors that would prevent their votes from being counted. While voters are able to fix ballot mistakes in some municipal elections, Alaska law doesn’t provide for a similar process. State law currently requires that voters be notified their ballots were rejected within 60 days of the election results being certified. This year, the target date for certifying the results is Nov. 25, so voters wouldn’t be notified until late January. The lawsuit seeks to require the Division of Elections to notify voters their ballots were rejected because of a lack of signature or identifying information before the votes are certified, and to give them a chance to correct it. The filing also notes that there will be an unprecedented number of absentee ballots this year, and that inexperienced voters are more likely to have their ballots rejected because they made an error.
Arizona: A three-judge panel from the 9th U.S. Circuit Court of Appeals said it would not move back the deadline for mail ballots from the Navajo Nation. Citing slow mail service and long distances between polling places, several voters from the Navajo Nation filed a lawsuit in August arguing that their ballots should still be tallied if received after 7 p.m. on Election Day but postmarked by that date. The panel said hile the lawsuit “is replete with general allegations concerning the various hardships the Navajo Nation members who live on the reservation generally face with respect to mail voting,” the voters had not shown how the current deadline will harm their ability to vote in this election. The court also said there did not seem to be any way to extend the deadline on mail ballots for voters from the Navajo Nation but not for other voters casting ballots in the same counties.
Brad Luebke, 39 of Goodyear, has been sentenced to six months of probation and fined $400 for a 2018 incident at a polling place. He went into the polling site at Desert Spring Community Church on Nov. 6th, 2018, with a holstered BB gun and a cellphone camera on a specialized mount and a microphone. It was a clear violation of the 75-foot rule, which bans those items that close to a polling site. Luebke was told to get rid of the restricted items, but he refused, so police were called. When they showed up, he was found outside the church and taken into custody.
California: California Attorney General Xavier Becerra sought a court order this week to force state Republicans to turn over information about the party’s use of private ballot drop boxes in a handful of counties. The complaint filed in Sacramento County Superior Court alleges several examples of the drop boxes being promoted as either “authorized” or “official.” It says the GOP effort “caused confusion among voters, prompted complaints from county elections officials alarmed about their use, and raised serious concerns about whether the appropriate chain of custody was being observed for ballots deposited” in the boxes. “Here in California, we’re doing everything in our power to protect the integrity of our elections,” Becerra said in a written statement. “As part of that and pursuant to our statutory authority, we issued subpoenas and interrogatories to determine the extent to which the deployment of unauthorized ballot drop boxes may have impacted Californians.” State GOP officials said last week that the labels were the work of “overzealous” local volunteers and that they were quickly replaced. And they have insisted that without those erroneous signs, there is nothing else about their effort to cause concern.
Florida: Judge Linda Allen said Supervisor of Elections Julie Marcus is following the law by asking voters if the address on their driver’s license is current. The decision came during an emergency hearing requested by Marcus’s challenger in next month’s election who said the question violates state law. Allen acknowledged Dan Helm’s sincerity in seeking relief but denied his request to block poll workers from asking the question. She also said the Supervisor’s office should review its policy in the future. “It is something that deserves further consideration by the Supervisor of Elections,” Allen said. At question was a Florida statute regarding how poll workers confirm a voter’s address. Helm read the statute. “When an elector presents his or her picture identificati on to the clerk or inspector and the elector’s address on the picture identification matches the elector’s address in the supervisor’s records, the elector may not be asked to provide additional information or to recite his or her home address.” Pinellas County poll worker training materials directs poll workers to ask voters if the address on their identification is current. Helm said that violates the law.
Georgia: The Georgia Supreme Court has cleared the way for Jesse Houle to become commissioner from Athens-Clarke County’s District 6. In a two-man race, Houle lost to incumbent Jerry NeSmith in nonpartisan elections in June. NeSmith, 71, won with 1,866 votes to 1,405 for Houle. NeSmith died just days before the election, however, and under Georgia law, votes for NeSmith were declared void, leaving Houle the winner of the seat. A bipartisan group of voters challenged the law in Athens-Clarke County Superior Court, saying it effectively disenfranchised District 6 voters. A Superior Court judge upheld the law, ruling against the plaintiffs and their claims that their rights to equal protection and to vote had been denied. In sum, the Superior Court did not err by determining that the appellants’ challenge to the action of the Board of Elections was without merit,” Justice Charlie Bethel wrote. “The application of those statutes by the Board in this case violated no rights of the appellants recognized under the First or Fourteenth Amendments to the United States Constitution or Article I, Section I, Paragraph II of the Georgia Constitution.”
Illinois: Circuit Judge Raylene Grischow has ruled local units of government are exempt from a law the General Assembly passed this year declaring the Nov. 3 general election as a state holiday and requiring all government offices to be closed that day, unless they are used as polling places or for other election-related services. The Illinois Municipal League, a nonprofit advocacy group that represents local governments, filed suit in July seeking a declaratory judgment stating that the law did not apply to its members. Grischow ruled that if the law were applied to local governments, it would amount to an impermissible unfunded mandate. “Where the Legislature fails to make necessary appropriations allowing reimbursement of expenses, local governments are not required to implement such mandates,” Grischow wrote.
Michigan: The Michigan Court of Appeals a lower court ruling that said late-arriving ballots must be counted, as long as they are postmarked the day before Election Day. The Republican-controlled Legislature had appealed the September ruling by Michigan Court of Claims Judge Cynthia Stephens that said ballots postmarked before Election Day could arrive as much as 14 days late and still be counted. A three-judge panel of the Court of Appeals ruled unanimously in favor of the House and Senate in the case involving the union-backed Michigan Alliance for Retired Americans. The ruling also reversed Stephens on the question of who may lawfully possess another voter’s ballot to give assistance. Stephens said that with a voter’s consent, anyone can help deliver an absentee ballot from 5 p.m. on the Friday before the election until polls close. Under normal state law, only immediate family members or a local clerk, until 5 p.m. on the Friday before Election Day, can help.
Minnesota: U.S. District Judge Michael J. Davis ruled that the City of Minneapolis can accept $2.3 million in grant funds from the Center for Tech and Civic Life. The Minnesota Voters Alliance and four Minneapolis residents had asked the courts to block the city from accepting the money, arguing that a combination of state and federal laws would prohibit those types of private donations. The alliance accused the center of focusing its help on places with “progressive voting patterns.” Davis wrote that the alliance lacked standing and the voters involved in the suit failed to show that the city’s acceptance of the grant money would interfere with their ability to vote. “As Minneapolis voters, they are beneficiaries of the City’s use of the grant money to make voting safer and more efficient,” Davis wrote. “An attenuated argument that Plaintiffs will be unhappy with the election results if their fellow Minneapolis residents can also safely vote during a pandemic does not show that Plaintiffs’ own voting rights have been impaired or denied.”
The Minnesota chapters of the League of Women Voters and the Council on American-Islamic Relations have filed suit against Tennessee-based Atlas Aegis and it’s effort to recruit and deploy an armed and paid militia to Minnesota polling places. In the complaint, plaintiffs asked U.S. District Judge Nancy Brasel to prevent the company and chairman Anthony Caudle from doing so. The groups argue recruiting militias to observe polling places is a violation of the Voting Rights Act. “Defendants’ objective is to further intimidate people with certain political beliefs from accessing polling locations through the presence of armed, highly trained, and elite security personnel,” the lawsuit states. “Defendants’ threat is terrifyingly credible given the concrete steps they have already taken to recruit those armed personnel, particularly considering the context of broader intimidation efforts targeting voters and activists in Minnesota and elsewhere in the United States.”
New Hampshire: New Hampshire’s attorney general has stepped into yet another attempt to limit student voting in the Granite State. The New Hampshire Republican Party had sought to prohibit students from voting in New Hampshire if they were studying elsewhere due to the pandemic. Assistant Attorney General Nicholas Chong Yen, who leads the state’s Election Law Unit, wrote in a letter issued Oct. 21 that voting eligibility “hinges on the facts relevant to that particular individual,” and “broad guidance may not capture every possible permutation.” But Chong Yen said three things are clear: Someone doesn’t give up their ability to vote in New Hampshire due to a “temporary absence;” someone can’t vote in New Hampshire if they’ve never established a “physical presence” here to begin with; and students are allowed to vote in New Hampshire even if they’re originally from another state. “As the New Hampshire Supreme Court has recently confirmed, it reflects longstanding domicile law that a student living in New Hampshire and attending an institution of learning may lawfully claim domicile in the town or ward in which the student lives if the student’s claim of domicile meets the requirements of [New Hampshire’s voting eligibility law],” Chong Yen wrote
New Jersey: A three-judge panel of a New Jersey appeals courts rejected a losing Republican U.S. Senate candidate’s bid to invalidate the primary results and stop the state’s mail-in ballot program for the general election. Hirsh Singh petitioned the court after he lost the primary to Rik Mehta in July by about 9,000 votes out of approximately 300,000 ballots cast, claiming he would have won if the mail-in ballot procedures put in place for the primary were nullified. Singh also sought to invalidate the state’s mail-in ballot procedures for the November general election. In the court’s ruling Wednesday, the three-judge panel rejected Singh’s claims, upholding the primary results and the state’s mail-in ballot program. They wrote that Singh can still petition a lower court to consider his claims of irregularities in the counting of mail-in ballots in some locations. The court wrote, “disrupting that process now would inevitably cause widespread upheaval and potential voter disenfranchisement. Similarly, an order nullifying the primary election at this juncture and invalidating nominees on the general election ballot would produce comparable harm.”
North Carolina: The North Carolina court of appeals issued a temporary stay to a lower court’s acceptance of a settlement that changed North Carolina’s absentee voting rules. An agreement was reached over the weekend that the State Board of Elections will go back to its old way of dealing with absentee ballots mailed in without a witness signature: The voter will have to fill out a new ballot and get a signature for his or her vote to count. County boards of elections will now have to spoil potentially thousands of ballots without witness signatures and contact the voters to provide them an opportunity to submit another properly completed ballot.
In a 12-3 vote, the 4th U.S. Circuit Court of Appeals rule that mailed-in ballots postmarked by 5 p.m. Nov. 3 — Election Day — should be accepted by the N.C. Board of Elections until Nov. 12. “All ballots must still be mailed on or before Election Day,” according to the ruling. “The change is simply an extension from three to nine days after Election Day for a timely ballot to be received and counted. That is all. “North Carolina voters deserve clarity on whether they must rely on an overburdened Post Office to deliver their ballots within three days after Election Day,” the ruling continued. “The need for clarity has become even more urgent in the last week, as in-person early voting started in North Carolina on October 15 and will end on October 31.”
Ohio: The Ohio Supreme Court will consider whether Republican Secretary of State Frank LaRose was justified in refusing to appoint a Democratic Party official to a county elections board seat, citing a voter fraud accusation from four years ago. The Ashtabula County Democratic Party filed its complaint with the Supreme Court late last week, asking justices to decide whether LaRose “abused his discretion” in refusing to appoint county Democratic party Chairman Eli Kalil to the vacant board seat. The court set a Friday deadline for the filing of motions in the complaint. The court has not said when it would rule.
Pennsylvania: A judge ruled a three-day pop-up voting event will be allowed this weekend at Subaru Park in Chester. “It’s a location where people can feel safe. It’s outdoors, lots of space, it’s open on a Sunday,” said William Martin, the Delaware County solicitor. “It’s the county’s objective that we want to expand the franchise so that the people who have registered to vote have the greatest possible opportunity to vote,” Martin said. Republicans had sued to keep the site closed.
The U.S. Supreme Court declined without comment to take up case that could have limited when Pennsylvania can count absentee ballots. The lower court ruled that officials may accept ballots up to three days after days after the election as long as they are postmarked by Election Day. Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas — said they would have agreed to the stay request. But Chief Justice John Roberts joined the court’s three most liberal members to reject the request. In its ruling, the Pennsylvania Supreme Court said that ballots could be counted if they were received by 5 p.m. Nov. 6, as long as they were mailed by Election Day, Nov. 3. It also said that ballots without a postmark would “be presumed to have been mailed by Election Day” unless there was strong evidence to the contrary.
U.S. Middle District Judge Matthew W. Brann denied a motion for a temporary restraining order and a preliminary injunction that would have blocked the use of about $13 million by Philadelphia and Centre and Delaware counties. They had applied for and been awarded the funds by the Center for Tech and Civil Life (CTCL) that has given grants to 15 other Pennsylvania counties that were not parties to the lawsuit. The Pennsylvania Vote Alliance, eight conservative GOP members of the state House and five individuals sued, claiming the grants targeted entities with progressive voting records. The City of Philadelphia, Centre and Delaware counties have used the money in a nonpartisan way to facilitate the upcoming election and not to increase voter turnout, Brann found. “The implication that increased voter turnout is inherently beneficial to progressive candidates is dubious at best,” he wrote. The voter alliance has failed to articulate precisely which of its interests have been infringed, Brann wrote.
Tennessee: A three-judge panel of the 6th U.S. Circuit Court of Appeals split Thursday in denying the preliminary injunction, which sought to let voters fix signature issues before mail ballot rejections. For the majority, Judge Julia Smith Gibbons wrote there’s no evidence Tennessee’s signature verification procedures will infringe anyone’s constitutional rights. She noted extremely few voters face signature-related rejections, saying voters can cast another absentee ballot or vote provisionally, time permitting. Judge Karen Nelson Moore’s dissent claimed “yet another chapter in the concentrated effort to restrict the vote.” She said allowing signature fixes would prevent “the possibility of confused voters clogging up polling places” after they already tried voting.
This week, the 6th Circuit Court of Appeals also ruled that first-time voters may vote absentee if they are eligible. State law requires that all first-time voters, no matter how/where they register, must vote in person. The state was sued by advocates and a lower court sided with the advocates. The state appealed to the federal appellate court which also sided with the plaintiffs. “Considering that both plaintiffs and defendants have widely publicized the district court’s order in this case and that voting is well underway in Tennessee, a stay of the district court’s preliminary injunction at this point would substantially injure the plaintiffs and is not in the public’s best interest,” Judge Julia Smith Gibbons wrote in the Oct. 19 majority opinion for the 6th Circuit Court of Appeals. “Granting a stay now, with the November 3, 2020 General Election less than a month away, risks introducing confusion into Tennessee’s electoral process. Defendants have not convinced us that there is any sound reason to do so,” Circuit Judge Karen Moore wrote in a concurring opinion. “Put simply, Defendants’ motion for a stay pending appeal is too little, too late.”
Chancellor Ellen Hobbs Lyle dismissed a challenge by voting rights advocates to expand mail balloting to all voters in light of concerns over the spread of COVID-19. Hobbs Lyle said she no longer has the authority to rule on the case, and even if she did, by the time it could go to trial it would be moot, with the election just weeks away. “Even in the time of a worldwide pandemic emergency, the Tennessee Supreme Court held that the Legislature’s routine excuse-only absentee voting policy, enacted for normal times, nevertheless controls how persons exercise the right to vote during a pandemic, and stated, ‘These policy choices will be judged by history and by the citizens of Tennessee. We, however, properly may not and will not judge the relative merits of them, regardless of our own views,'” she wrote in Tuesday order.
Texas: District Judge Tim Sulak ruled that Texas counties can have multiple drop-off locations for hand delivery of absentee ballots, overriding Gov. Greg Abbott’s recent directive limiting counties to one drop-off location. But it remains unclear if state District Judge Tim Sulak’s decision will lead to the reopening of ballot drop-off locations that were shut down in Harris and Travis counties after Abbott’s order. Texas Attorney General Ken Paxton, on behalf of Abbott and Texas Secretary of State Ruth Hughs, immediately filed an appeal that paused Sulak’s decision until the state’s 3rd Court of Appeals in Austin reviews it. Sulak’s ruling is the latest turn in a handful of lawsuits in state and federal courts challenging Abbott’s Oct. 1 order, which shut down multiple ballot drop-off locations in Harris and Travis counties.
The 5th U.S. Circuit Court of Appeals ruled this week that if they decide the signature on the ballot can’t be verified, Texas election officials may continue rejecting mail-in ballots without notifying voters until after the election that their ballot wasn’t counted The appeals court halted a lower court’s injunction, which had not gone into effect, that would have required the Texas secretary of state to either advise local election officials that mail-in ballots may not be rejected using the existing signature-comparison process, or require them to set up a notification system giving voters a chance to challenge a rejection while their vote still counts. Requiring such a process would compromise the integrity of the mail-in ballots “as Texas officials are preparing for a dramatic increase of mail-in voting, driven by a global pandemic,” reads the Monday opinion issued by Judge Jerry E. Smith.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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