Legal Updates
Illinois: Champaign County Judge John Kennedy has ordered Democratic county Clerk Aaron Ammons to make election information sought by local Republicans available and accessible to the public. Kennedy gave Ammons a 10 a.m. Nov. 2 deadline. The clerk’s office has been closed to walk-in traffic throughout the pandemic, and Judge John Kennedy said “a locked office does not meet this requirement.” Kennedy’s ruling applied to two items: The judge ruled that Ammons must make a list of addresses where vote-by-mail applications and ballots were sent available in an accessible place for the public to view; and He also ruled that Ammons must provide equal representation of Democrats and Republicans at the counting table on election night.
Iowa: Judge William Kelly has kept in place guidance from Iowa’s secretary of state that county elections commissioners can only set up absentee ballot drop boxes at or outside their offices. Kelly rejected a request from The League of United Latin American Citizens of Iowa and Majority Forward to block Secretary of State Paul Pate’s guidance and allow for drop boxes in locations such as grocery stores. Kelly said that requiring voters or their designees to return ballots to a location where the county auditor conducts business is “not a severe burden” on the right to vote. He noted that voters can also put them in the mail or vote in person, either early or on Election Day. Kelly said that it appears a change to state law would be required to allow drop boxes to be located off of county property. He said Linn County Auditor Joel Miller was correct to scrap his plan to have three drop boxes at grocery stores. While that option would have been more convenient for citizens who didn’t want to mail their ballots, it might not have been legal, Kelly said.
Maryland: Circuit Court Administrative Judge Angela M. Eaves dismissed a lawsuit filed by a Maryland voter who argued that his rights were violated when he was arrested after refusing to wear a face mask at the polls. Daniel Swain, 52, a retired correctional officer, sued the county board of elections and the local sheriff’s office after he and his son were barred from voting at a local volunteer fire station on the first day of early voting in Maryland. Swain accused local officials of “suppressing” his right to vote; he was charged with trespassing and failing to comply with a health emergency. Eaves also rejected Swain’s request for damages and to require the defendants — who included the acting head of the board of elections and the county sheriff — to pay for and receive “constitutional voting rights training.”
Michigan: Jacob Wohl, 22 and Jack Burkman, 54 both of Arlington Virginia were charged in Ohio and Michigan with election fraud for sending out tens of thousands of robocalls intended to deter people from voting. U.S. District Judge Victor Marrero, in the Southern District of New York has order Wohl and Burkman to call those voters back and inform them that the original call “contained false information.” According Marrero’s ruling, the pair must make calls to everyone who received the robocall and deliver this message: “At the direction of a United States district court, this call is intended to inform you that a federal court has found that the message you previously received regarding mail-in voting from Project 1599, a political organization founded by Jack Burkman and Jacob Wohl, contained false information that has had the effect of intimidating voters, and thus interfering with the upcoming presidential election, in violation of federal voting-rights laws.” The pair were charged in Michigan and indicted by a grand jury in Ohio. In addition to the mandated calls, the pair face up to seven years in prison for the Michigan charges, which include violations of election law and using a computer to commit voter intimidation.
Minnesota: A three-judge panel of the 8th U.S. Circuit Court of Appeals ruled last week that Minnesota absentee ballots arriving after Election Day should be separated from other ballots in case they are later invalidated by a final court order. The ruling doesn’t block Minnesota’s seven-day extension for counting absentee ballots outright, but puts the grace period in danger. The ruling doesn’t impact ballots received by the time polls close on Election Day, but sets the stage for post-election litigation. The case was sent back to a lower court for more proceedings. “What the court left unsettled was the question of whether, once and for all and finally, ballots will or won’t be counted if received after Tuesday, Nov. 3,” Secretary of State Steve Simon said. “The decision, to be candid, is not a model of clarity and it leaves open a lot of unanswered questions.”
U.S. District Court Judge Nancy Brasel has barred Atlas Aegis from deploying armed agents at Minnesota polling locations. The court’s decision stems from a lawsuit filed by the Council on American-Islamic Relations-Minnesota and the League of Women Voters of Minnesota against Atlas Aegis, described as a private security company run by veterans and based in Tennessee. Brasel’s decision orders the company, it’s owner and other defendants not to deploy, or threaten to deploy, agents within 2,500 feet of Minnesota polling places during early in-person voting and on Election Day. The decision also orders the defendants from “intimidating, threatening, or coercing voters in connection with voting activities in Minnesota.” The order takes effect immediately.
Nevada: Carson City Judge James Wilson blocked a lawsuit brought by Trump’s re-election campaign that attempted to change how Clark County is processing mail-in ballots in the final days of the election. The Nevada Republican Party and Trump’s re-election campaign filed the lawsuit on Friday asking the the court to force Clark County to alter how it has been counting and verifying mail ballots, to allow “meaningful” observation of all stages of the process, including allowing a camera inside the room where ballots are stored at the county facility, and for a way to challenge mail ballots. They claimed that the county’s process was creating risk of voter fraud and was “diluting” the votes. Wilson disagreed. “There is no evidence of any debasement or dilution of any citizen’s vote,” wrote Wilson, who added that the Republicans’ attorneys failed to present evidence to back up any of their claims alleged in the lawsuit or in the hearing held last week.
New York: New York Civil Liberties Union sued the Rockland County to have early voting hours extended. Supreme Court Justice Rolph Thorsen extended early voting hours at all four Rockland County and that signage offering accommodations for voters who require them be added. Polls were open from 9 a.m. to 4:30 p.m. — an extra two and a half hours — both Saturday and Sunday.
North Carolina: Superior Court Judge Ed Wilson ordered Rockingham County to reopen a polling place it had closed due to COVID-19. The polling place, was after three poll workers tested positive for coronavirus. With other workers at the site ordered to remain quarantined, the county board of elections decided to keep it closed and direct voters to one of the county’s other three early voting sites But the N.C. Democratic Party filed suit seeking to have the Reidsville polling place reopened. Wilson agreed, telling the county that under state law if one early-voting site in the county is open, they all must remain open.
U.S. District Judge William Osteen, in a 19-page order, noted his “serious concerns” about the N.C. state elections board in an order issued Friday, Oct. 30. But the judge denied legislative leaders’ request to take action against the state board of election. The order addresses concerns about elections officials’ compliance with an earlier Osteen ruling. The judge had preserved state law’s witness requirement for mailed-in absentee ballots. He also set limits on the types of ballot mistakes that could be “cured” by elections officials. Osteen responded that his court could not address the issue. “Unfortunately, despite this court’s serious and substantial concerns that the cure procedure used by the SBE does not comply with the statutory requirements, Legislative Defendants’ motion for clarification is an inappropriate vehicle to address such concerns.” “Though it frustrates this court, … that the SBE seems to be permitting county boards to accept and process ballots for counting without ever obtaining the information required by statute, the basis of any injunction this court might issue here would not be grounded in a federal Due Process violation,” the judge wrote. Court precedent “appears to counsel that these issues are matters for the state and state courts to address,” Osteen concluded.
North Dakota: Anthony Raymond, 33 of Dickinson is accused of threating to blow up a voting location. According Valley News Live, Raymond send sent an anonymous e-mail to their local newspaper with a bomb threat targeting a voting location. The threat was received Wednesday afternoon, and police say detectives were able to identify Raymond as the alleged author. He was arrested Thursday night, and is the Dickinson jail on terrorizing charges.
Ohio: Jacob Wohl, 22 and Jack Burkman, 54 both of Arlington Virginia were charged in Ohio and Michigan with election fraud for sending out tens of thousands of robocalls intended to deter people from voting. U.S. District Judge Victor Marrero, in the Southern District of New York has order Wohl and Burkman to call those voters back and inform them that the original call “contained false information.” According Marrero’s ruling, the pair must make calls to everyone who received the robocall and deliver this message: “At the direction of a United States district court, this call is intended to inform you that a federal court has found that the message you previously received regarding mail-in voting from Project 1599, a political organization founded by Jack Burkman and Jacob Wohl, contained false information that has had the effect of intimidating voters, and thus interfering with the upcoming presidential election, in violation of federal voting-rights laws.” The pair were charged in Michigan and indicted by a grand jury in Ohio. In Ohio, Wohl and Burkman face charges of telecommunications fraud and bribery, which carry sentences of up to 18 years in prison.
South Dakota: Lawyers from both sides want a federal judge to give more time to State of South Dakota officials to respond in a voting-rights case. Attorneys for the Rosebud Sioux Tribe, the Oglala Sioux Tribe and Four Directions, a voting-rights organization, didn’t follow standard practice and failed to file their civil lawsuit against South Dakota Governor Kristi Noem and South Dakota Attorney General Jason Ravnsborg. The case was filed September 16. It alleges South Dakota state government has violated several requirements of the 1993 National Voter Registration Act, specifically the “motor-voter” provision and agency-based voter registration requirements. The complaint and summons were served on South Dakota Secretary of State Steve Barnett, head of the state Board of Elections, and on several governor’s appointees: Social Services Secretary Laurie Gill, Labor and Regulation Secretary Marcia Hultman; and Public Safety Secretary Craig Price. The joint request for more time was filed last week by Terry Pechota, a Rapid City lawyer representing the tribal governments and Four Directions, and by Grant Flynn, a lawyer from the South Dakota Attorney General Office. Pechota and Flynn asked that U.S. District Judge Lawrence Piersol give state government three weeks, starting October 26, when the governor and the attorney general received the complaint and summons. As of Monday morning, there wasn’t a record of a decision by the judge in the file.
Tennessee: The Tennessee Democratic Party and the Marquita Bradshaw for U.S. Senate campaign filed a lawsuit against state election officials for refusing to release absentee ballot information, as required by state law, a press release says. Tennessee Secretary of State Tre Hargett and Coordinator of Elections Mark Goings are named as defendants. Tennessee open records law requires the Secretary of State’s office to release, upon request, a list of voters who have not returned absentee ballots by the end of early voting.
Texas: The legal back-and-forth over drive-thru voting in Harris County continued right up until the bitter end. On Sunday, the Texas Supreme Court rejected a request by several conservative Republican activists and candidates to preemptively throw out early balloting from drive-thru polling sites in the state’s most populous, and largely Democratic, county. The all-Republican court denied the request without an order or opinion, as justices did last month in a similar lawsuit brought by some of the same plaintiffs. Litigants also filed a last-minute suit in federal court with Judge U.S. District Judge Andrew Hanen hearing the case on Monday morning and In his ruling from the bench, Hanen said he rejected the case on narrow grounds because the plaintiffs did not show they would be harmed if the drive-thru ballots are counted. Within hours, a three-judge appellate panel denied the appeal, handing Harris County a victory.
Wisconsin: The Wisconsin Supreme Court refused to give clerks in Outagamie and Calumet counties guidance on fixing or counting ballots that have a printing error. The printing error left a blemish on a timing mark on at least 24,600 ballots. The blemish is about the size of a fingernail but can cause counting machines to reject the ballot. State law doesn’t let a municipality count some ballots by machine and others by hand — it must use one process or the other — so the counties wanted to fill in the timing mark with a pen. “They ask us to assume original jurisdiction and issue what amounts to an advisory opinion explaining what election laws they are free to disregard. We will not do that,” Chief Justice Patience Roggensack writes in a concurring opinion. Roggensack said they’re essentially asking for permission to “disregard” election laws and ignore deadlines. She emphasized that the people of Wisconsin have a fundamental right to have their vote counted if it’s received before polls close on election day. “Election officials may have to make difficult decisions regarding how to proceed as they comply with what the law requires. Obtaining more election workers appears to be a necessity,” the chief justice offered.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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