Thursday, December 10, 2020

Electionline Weekly December-10th-2020

Legislative Updates

California: Senator Thomas Umberg (D-Santa Ana) has introduced several elections related bills including:

SB 29: Minimum In-Person Voting Standards for Counties Conducting Elections in 2021

SB 423: (2020) authored by Senator Umberg. The historic turnout for the 2020 election was 80.7% (as of early December) despite the pandemic.

This year’s successor, SB 29: set statewide minimum standards for counties to conduct safe and accessible in-person voting procedures in light of the Covid-19 pandemic. Both voters and election workers need to be guaranteed a safe environment in order to conduct elections. This bill will guarantee that all eligible voters living in jurisdictions conducting elections in 2021 will be mailed a vote-by-mail ballot in order to give the option for individuals to vote at home if they wish.

SB 34: Increased Penalties for Unofficial or Fraudulent Vote Centers, in light of reports from the fall of unofficial ballot boxes and unofficial vote centers operating illegally, Senator Umberg introduced SB 34 to clarify the basic guidelines for the operation of ballot drop boxes and vote centers.

SB 35: Extension of the Polling Place Buffer Outside of Polling Places, with the need for social distancing, some areas of California this November saw lines that extended beyond the front door of polling places. Current law prohibits electioneering within 100 feet of a polling place, but reexamination of that distance is necessary after some allegations were made about campaigning and intimidation as voters waited in line outside to vote.

Delaware: Several elections-related bills have been introduced for consideration.

House Bill 15: would eliminate the state’s restrictions on absentee voting, striking the specific list of reasons allowing an individual to vote remotely. The second leg of a constitutional amendment, it would add to the constitution a line stating, “The General Assembly shall enact general laws providing the circumstances, rules, and procedures by which registered voters may vote by absentee ballot.”

House Bill 25: would authorize same-day voter registration, letting a Delawarean register and cast his or her ballot on Election Day. Current law sets the last day to register before an election as the “fourth Saturday prior to the date of the election.”

House Bill 30: is the latest effort to shift the date of Delaware’s primary election, currently the second Tuesday after the first Monday in September, to coincide with the April presidential primary, even in off years. Delaware holds its presidential primary on the fourth Tuesday in April.

Missouri: The Missouri Legislature will be asked to change part of Missouri’s voter ID law. State Senator Bob Onder wants to put an end to a provision in state law allowing voters without certain identification to still vote by signing a statement saying they are who they say they are. Onder, a Republican from Lake St. Louis, is also proposing to create new provisions about the use of provisional ballots when voters do not have proper identification to vote.

State Senate Bill 17 would allow voters to cast an absentee ballot without an excuse. St. Louis state senator Jill Schupp proposed the bill in order to provide that same flexibility every election. ”Clearly it will provide additional flexibility because currently you have to have a reason,” Schoeller said. “Of course after the end of this year the seventh reason, the COVID-19 reason would go away.” Though Schoeller said he and many other voters likely prefer to vote in person so they can see their ballots go into the machine, he said absentee voting could become especially helpful for people who may not qualify for reasons currently listed on a ballot.

Pennsylvania: Rep. Jeff Wheeland (R-Lycoming) has reintroduced House Bill 1579, legislation to apply voter ID requirements to each and every election, including photo and non-photo options as acceptable forms of ID. Under the bill, the forms of ID that would be acceptable are the same as the options that are currently available to first-time voters in Pennsylvania. They include the following forms of photo and non-photo ID: Driver’s license or PennDOT non-driver ID card; Photo or non-photo ID card issued by other state agency; Photo or non-photo ID card issued by the U.S. government; Student ID with photo; Employee ID with photo; Armed Forces of the U.S. ID card; Firearm permit; Current utility bill; Current bank statement; or Government check. If a voter is unable to present a valid photo ID, he or she would be required to present two forms of non-photo ID from among those listed above.

Vermont: Vermont lawmakers plan to pass legislation in January that will allow towns to send Town Meeting Day ballots to residents via mail, or postpone the date that voting takes place. The proposal, which lawmakers are poised to send to Gov. Phil Scott’s desk within the first two weeks of the legislative session, would also give school officials the same flexibility for budget votes, which also typically happen in person. Town Meeting Day is March 2, and Sen. Jeanette White, D-Windham, told a joint meeting of the House and Senate Government Operations Committees on Friday that she hoped the legislation could reach the governor’s desk by Jan. 19 — two weeks after the legislative session begins.

Legal Updates

Federal Lawsuits: Former CISA Director Christopher Krebs, who was fired by the president last month after asserting the recent presidential election was “the most secure in American history,” filed suit this week against the Trump campaign, attorney Joseph diGenova and the cable channel Newsmax. Krebs charges he was defamed by diGenova, who said on Newsmax that Krebs “should be drawn and quartered” or “shot at dawn” following Krebs’ statement. Krebs says such punishments are the “fate of a convicted traitor” and are the basis for his defamation accusation. The lawsuit, filed in Montgomery County, Md., circuit court, seeks an injunction ordering Newsmax to remove the diGenova interview from its website, as well as monetary damages. Krebs charges he has been the victim of death threats following DiGenova’s remarks, which diGenova has said were “hyperbole.”

Alabama: U.S. District Judge Emily C. Marks of the Middle District of Alabama has ruled in favor of Secretary of State John Merrill and other officials in a lawsuit challenging the Alabama law that disqualifies felons from voting. Greater Birmingham Ministries joined with individuals who had been convicted of felonies in challenging the law as unconstitutional, claiming that it was racially discriminatory, discriminated on the basis of wealth, and violated due process because it was applied retroactively. They were represented by the Campaign Legal Center in Washington, D.C., and other attorneys. The plaintiffs updated their claims in 2017 after the Legislature changed the law. Marks granted the state’s motions for summary judgement. “In 2017, our office worked with the Alabama Legislature to clearly define the crimes of moral turpitude, which, upon conviction, prohibit an individual from being eligible to vote,” Merrill said in his statement on Marks’ ruling. “In defining the 60 crimes of moral turpitude, we created a consistent standard among all 67 counties, as opposed to leaving the interpretation up to each county’s Board of Registrars. After an individual completes his or her sentence and pays all fees and fines associated with the original sentence, he may apply to have his voting rights restored.”

Alaska: Anchorage Republican Rep. Lance Pruitt has filed a lawsuit seeking to overturn his 11-vote loss to Democratic challenger Liz Snyder. In a complaint filed Wednesday, attorney Stacey Stone claims the state failed to properly provide notice when the Alaska Division of Elections moved a polling location from Muldoon Town Center to Begich Middle School. The suit also claims the Division of Elections failed to provide adequate election security after the Alaska Supreme Court temporarily invalidated the state law requiring absentee ballots to be co-signed by a witness. The lawsuit asks that the results be recounted after particular ballots are thrown out. If the court isn’t willing to do that, the suit asks for a new election. State law allows the case to be appealed immediately to the Alaska Supreme Court, and Stone filed the appropriate documents on Wednesday.

Arizona: U.S. District Court Judge Diane Humetewa tossed out the last election challenge pending in Arizona, dismissing its sweeping fraud claims as “sorely wanting of relevant or reliable evidence.” “Allegations that find favor in the public sphere of gossip and innuendo cannot be a substitute for earnest pleadings and procedure in federal court,” Humetewa wrote in the 29-page ruling. “They most certainly cannot be the basis for upending Arizona’s 2020 General Election.” The lawsuit — filed by a group primarily composed of would-be Donald Trump electors, including Arizona GOP Chair Kelli Ward — claimed “massive election fraud” in Arizona involving Dominion voting machines, foreign interference and illegal votes. But their 100-plus-page complaint and preliminary arguments did little to convince Humetewa, who deemed the relief sought by the group “extraordinary.” “If granted, millions of Arizonans who exercised their individual right to vote in the 2020 General Election would be utterly disenfranchised,” she wrote. “Such a request should then be accompanied by clear and conclusive facts to support the alleged ‘egregious range of conduct in Maricopa County and other Arizona counties … at the direction of Arizona state election officials,'” she continued. “Yet the Complaint’s allegations are sorely wanting of relevant or reliable evidence, and Plaintiffs’ invocation of this Court’s limited jurisdiction is severely strained.”

One of the three remaining lawsuits challenging Arizona’s presidential election results was withdrawn after the secretary of state’s office threatened to pursue legal fees and sanctions against the attorney involved. The case, filed on behalf of four plaintiffs who identified themselves as members of something called the Arizona Election Integrity Association, included charges that Facebook billionaire Mark Zuckerberg funneled money to election officials in nine Arizona counties through the Center for Tech and Civil Life in a way designed to deliberately skew the vote here for Biden. Attorney David Spilsbury said Zuckerberg sought to create a “two-tiered treatment of the American voter,” putting funds into “progressive strongholds” to turn out more voters. Other places, Spilsbury said, did not have the same opportunity.

Georgia: Attorney Sidney Powell this week filed an appeal for her so-called “Kraken” lawsuit alleging a wide-ranging conspiracy to rig the election for Joe Biden in Georgia. The suit was swiftly dismissed after a hearing the day before by Judge Timothy Batten in the U.S. District Court for the Northern District of Georgia. Batten expressed strong skepticism to Powell’s arguments throughout the hearing, and one thing he returned to multiple times was the jurisdictional issue of whether the suit should have been brought in state court. He also said that the relief Powell seeks with her suit – among other things, invalidating Georgia’s 1 million absentee ballots and declaring President Trump the winner in the state – is something “this court cannot grant.” He characterized it as “the most extraordinary relief every sought in a court in an election.” It’s unclear if the 11th Circuit Court of Appeals in Atlanta will hear the case. The 11th Circuit affirmed the District Court’s dismissal of another election challenge, brought by attorney Lin Wood, last weekend.

The Republican Party has filed suit in Fulton County Superior Court seeking to curtain the use of ballot drop boxes in the January runoff. In a lawsuit the Republican National Committee and the Georgia Republican Party seek to allow voters to return ballots at drop boxes only during normal business hours, not 24 hours a day. Among other things, the lawsuit also seeks greater access for party monitors to observe vote counting and related activities in the Jan. 5 runoff that will determine which party controls the U.S. Senate.

Illinois: The lawsuit filed by the LaSalle County Republican Central Committee accusing the LaSalle County Clerk of mishandling vote-by-mail ballots will have a new judge assigned to it. The case was heard Wednesday morning by Grundy County Judge Lance Peterson. It was being handled by Judge Robert Marsaglia, who did not seek reelection to the bench in November. Marsaglia’s last day was Friday. Peterson says that a new judge will be assigned to the case come early January. In the meantime, Peterson agreed to hold one hearing on December 23 to discuss a motion to dismiss the case by the attorney representing the LaSalle County Clerk’s Office Matthew Krueger. The motion to dismiss takes issue with Larry Smith, the Republican Central Committee Chairman, being referred to as a “voter” instead of a “qualified voter” in the petition asking the court to order a recount of vote-by-mail ballots.

Indiana: Hoosier voters who are blind or have low vision are suing the Indiana Election Commission and Secretary of State over absentee voting. According to plaintiffs Rita Kersh, Kristin Fleschner and Wanda Tackett, Indiana only permits them to vote at home by appointment with a “traveling board” of elections officials. They claim this leads voters who are blind to choose between giving up their right to vote privately and independently, risk exposing themselves to COVID-19 at the polls, or not voting at all. Instead, they say they should be allowed to use electronic options that let them vote privately. The lawsuit was filed in federal district court in the Southern District of Indiana.

Massachusetts: U.S. District Court Allison Burroughs has expressed skepticism in a lawsuit filed by five Massachusetts Republicans who lost races in the November election. The plaintiffs are suing to nullify the results, claiming widespread voting fraud and illegal acts by lawmakers. They claim the governor and state lawmakers violated the state Constitution by expanding absentee and early voting, among many other claims. Burroughs said the plaintiffs should have sued before the election if they were worried about expanded voting. “What you don’t get to do is look at an entire arrangement for voting and not say a word until you lose the election, and then complain about the process,” Burroughs told Moran, who was speaking on behalf of the group, during a hearing this week.

Michigan: The Michigan Supreme Court, in a 4-3 decision, denied requests from two voters who backed President Donald Trump and sought an election audit and other actions to address alleged fraud related to absentee ballots. Angelic Johnson and Linda Lee Tarver, both members of Black Voices for Trump, petitioned the state Supreme Court directly on Nov. 26. They sought a range of court actions, in addition to an audit, including: a declaration that Secretary of State Jocelyn Benson had violated their constitutional rights; seizure of ballots, ballot boxes and poll books; appointment of a special master or legislative committee to investigate claims of fraud related to the counting of absentee ballots at the TCF Center in Detroit, and an injunction preventing Gov. Gretchen Whitmer from certifying Michigan’s presidential election results, which has already happened. The three Democratic-nominated justices — Chief Justice Bridget McCormack and Justices Richard Bernstein and Megan Cavanagh — were joined by Republican nominee Elizabeth Clement in denying the requested actions without first hearing oral arguments. Justices Brian Zahra, David Viviano and Stephen Markman dissented, saying the court should call for additional briefings and oral arguments and hear the case fully on an expedited basis.

Judge Robert Jonker, the chief judge of the federal court in Grand Rapids has denied a request for an emergency order from a Michigan sheriff, saying documents the sheriff filed Sunday are so legally deficient it is not even clear he has started a court action. Barry County Sheriff Dar Leaf sought a temporary restraining order directing local clerks not to comply with a routine post-election memorandum from the Secretary of State’s Office telling them to delete certain records related to the Nov. 3 vote. Rather than clearly showing irreparable harm unless immediate court action is taken, as required to obtain an injunction, Leaf and his co-plaintiffs “invite the court to make speculative leaps toward a hazy and nebulous inference that there has been numerous instances of election fraud and that defendants are destroying the evidence.

Wayne County Judge Timothy Kenny denied a request to audit the county’s election results before Michigan’s electors cast their vote for Joe Biden next week, citing an already-planned audit by the Secretary of State. Kenny said a group of voters who sued Detroit-area election officials are entitled to seek an audit, but not one supervised by county officials. The Secretary of State committed to performing a risk-limiting audit, and Kenny said plaintiffs could pursue a case again in the Court of Claims if the state does not follow through. “This court finds no legal authority that permits the Wayne County Clerk to conduct an audit of Wayne County election results or that separates the audit from the oversight of the Secretary of State,” Kenny wrote in his order. “Since the Secretary of State has made a public commitment to do an audit of the Wayne County vote, plaintiff’s motion for the audit is premature.”

Attorneys for the Trump campaign went to the Michigan Supreme Court on this week in connection with its earliest Michigan case challenging ballot counting in Detroit and elsewhere in the Nov. 3 election. “Unfortunately, some local election jurisdictions, including Wayne County, did not conduct the general election as required by Michigan law,” lawyers for the campaign said in a court filing. “And Secretary of State (Jocelyn) Benson did not require local election jurisdictions to allow challengers to meaningfully observe the conduct of the election and the tabulation and tallying of ballots.” In the filing Monday, Trump campaign attorney Thor Hearne said the requested relief is not moot, regardless of the outcome of the Nov. 3 vote. “This Court is asked to restore public confidence in Michigan elections by issuing a decision holding that Michigan’s secretary of state must assure the local election officials she oversees and supervises comply with Michigan’s election laws and provide challengers a meaningful opportunity to perform the important role Michigan law designates for challengers,” Hearne said in the filing.

Minnesota: The Minnesota Supreme Court on Friday, Dec. 4, denied a request to temporarily halt certification of the state’s general election results and conduct a statewide recount over suggestions of “vote count anomalies.” The request was brought by 2nd Congressional District candidate Tyler Kistner, as well as a host of other failed candidates and current Republican lawmakers, stemming from challenges over the suspension of witness requirements for absentee and mail-in ballots and other concerns. The petition was filed on Nov. 24, three weeks after the 2020 election and just hours before the state canvassing board met to certify the results. In a ruling signed Dec. 4 by Chief Justice Lorie Gildea, the high court denied the request on the grounds it was improperly served to respondents and that a recount would be overly burdensome and “cast an unacceptable degree of uncertainty over the election.”

New Mexico: The Republican Party of New Mexico launched and financed a lawsuit that was filed today, requesting that all 2020 election ballots in Bernalillo County be impounded. RPNM asked 1st Congressional District candidate Michelle Garcia Holmes to submit the petition. New Mexico law grants candidates the right to have authorities impound tally sheets, registration certificates, paper ballots, absentee ballots, statements of canvass, absentee ballot applications and absentee ballot registers. RPNM and Garcia Holmes want to have ballots checked. The petition, filed in New Mexico’s Second Judicial District Court, asks the Court to examine the attributes of ballots cast in the recent unusual election. RPNM and Garcia Holmes are petitioning the Court to impound ballots in Bernalillo County’s 70 election-day voting convenience centers, 17 early alternative voting locations and 88 absentee voter precincts.

Pennsylvania: This week, in a one-sentence order, the U.S. Supreme Court refused a request from Pennsylvania Republicans to overturn the state’s election results. In the Pennsylvania case, the justices said they would not block a ruling from the state’s highest court that had rejected a challenge to the state’s use of mail ballots on Nov. 3. The request that the Supreme Court intercede had faced substantial legal hurdles since it was filed long after the enactment of a 2019 statute that allowed mailed ballots and was based on questions of state, rather than federal, law.

A Pennsylvania appellate court on Wednesday denied the latest in a string of legal challenges seeking to roll back certification of the election results, ending the last active court battle in the state over the outcome of the race. In a four-page opinion, Commonwealth Court President Judge Mary Hannah Leavitt dismissed the suit brought by a group of nine GOP state lawmakers, led by Rep Daryl Metcalfe, saying they had waited too long to file their challenge. They “are unable to demonstrate a clear right to relief or likelihood of prevailing on the merits because their underlying action … is really an improper and untimely election contest,” she wrote.

Tennessee: Tennessee does not adequately help residents restore their rights to vote after a felony conviction, a new federal lawsuit says. “Every year that has passed since I lost my ability to vote, I’ve always felt a little bit smaller,” said John Weare, 58, a Lewis County resident who lost his voting rights after assault convictions in Arizona in 1997 and 2003. Weare has been unsuccessful in restoring his rights since he moved to Tennessee five years ago. The suit, filed last week in federal district court on behalf of the Tennessee NAACP and five Tennesseans who were unable to restore their rights, seeks court intervention in the state’s process to help those eligible residents restore their rights. As it stands, Tennessee’s process can vary from county to county and lead residents on what the lawsuit calls a “wild-goose chase.” “A person with the same facts surrounding their conviction and service of the terms of their sentence may get a different result depending on their county of conviction and which official in that county is making the determination of their eligibility,” the lawsuit claims.

Wisconsin: A key conservative justice on the Wisconsin Supreme Court delivered a scathing rebuke of Republican efforts to overturn the state’s presidential contest Friday, rejecting a lawsuit that he said would have done irreversible damage to every future election. It was the third time in two days that conservative Justice Brian Hagedorn had sided with the court’s liberals in a 4-3 ruling against Republicans, leaving President Donald Trump and his allies with fewer avenues in their efforts to undo Democratic President-elect Joe Biden’s Wisconsin victory. Hagedorn let loose on the petition by a group called the “Wisconsin Voters Alliance,” which asked the court to reject the more than 3 million votes cast in November’s election, require the Legislature to choose its own presidential electors and require the governor to approve them. Hagedorn said such a move would be without precedent in American history. “One might expect that this solemn request would be paired with evidence,” he wrote. “Instead, the evidentiary support rests almost entirely on the unsworn expert report of a former campaign employee.”

Judge Pamela Pepper, the Chief United States District Judge for the Eastern District of Wisconsin. dismissed a lawsuit brought by the head of the La Crosse County Republican Party seeking to overturn the certification of the November election for president. The lawsuit was filed December 1 by former Trump team attorney Sidney Powell in federal court in Milwaukee. The suit was brought originally on behalf of two plaintiffs, La Crosse County GOP chair Bill Feehan and 3rd District congressional candidate Derrick Van Orden. Pepper issued a lengthy response in her dismissal of the lawsuit. A copy of the dismissal can be read below. She began her order, in part, “The election that preceded this lawsuit was emotional and often divisive. The pleadings that have been filed over the past week are passionate and urgent. People have strong, deep feelings about the right to vote, the freedom and opportunity to vote, and the value of their vote. They should. But the legal question at the heart of this case is simple. Federal courts have limited jurisdiction. Does a federal court have the jurisdiction and authority to grant the relief this lawsuit seeks? The answer is no.” She continues, “Federal judges do not appoint the president in this country. One wonders why the plaintiffs came to federal court and asked a federal judge to do so. After a week of sometimes odd and often harried litigation, the court is no closer to answering the “why”. But this federal court has no authority or jurisdiction to grant the relief the remaining plaintiff seeks. The court will dismiss the case.”

NYC Wins When Everyone Can Vote! Michael H. Drucker

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