Thursday, December 17, 2020

Electionline Weekly December-17th-2020

Legislative Updates - Federal Legislation: Rep. Mary Gay Scanlon (D-PA) who serves as Vice Chair of the House Judiciary Committee launched an effort this week to beef up criminal penalties for threats against election officials, which have escalated dramatically as Trump has pressed baseless voter fraud claims following his electoral loss. Scanlon urged the Department of Justice (DOJ) in a letter to investigate serious threats against election officials and poll workers that have come amid an increasingly hostile campaign of post-election misinformation. She also introduced a bill that would build on existing election-related legal protections and broaden criminal punishment against perpetrators. Scanlon’s legislation would broaden a current federal law that protects voters to include protections for election officials.

Arizona: Arizona Senate Republicans said Tuesday they sent subpoenas to the Maricopa County Board of Supervisors seeking images of all mail-in ballots counted during the 2020 general election and a large pile of other records. Senate President Karen Fann, R-Prescott, said she anticipates the county will conduct an audit of the election results but that if it does not, the Senate would proceed with its own. One subpoena calls for images of every mail-in ballot and another calls for the county to provide access to a range of election equipment for “forensic analysis.” According to The Arizona Republic, County officials have said machinery cannot be accessed while litigation over the election is ongoing, as equipment could be considered evidence in a case. If litigation is wrapped up by the end of the week and the county can proceed with its own audit, the subpoenas could be withdrawn, said Senate Judiciary Committee Chairman Eddie Farnsworth, R-Gilbert, who issued the subpoenas after a hearing on the election with local officials on Monday. The subpoenas otherwise set a deadline of 5 p.m. Friday.

Sen. J.D. Mesnard, R-Chandler, is reviving a proposal he sponsored two years ago that would permit outside parties to pay for recounts. State law currently only permits recounts under extremely narrow circumstances if races are particularly close. For a statewide contest, recounts are only triggered if the margin of victory is 200 votes or one tenth of one percent of the total votes for both candidates. Senate Bill 1010 would allow anyone to request a recount in a race, conducted either through the tabulation machines that election officials use to count ballots or a much more intensive hand count, regardless of the margin of victory. But whoever makes the request would have to foot the bill. The requester would have to post a bond for whatever amount a superior court judge deems sufficient to cover the costs.

Colorado: The state’s Republican-led Legislative Audit Committee convened a meeting on election integrity at the Colorado Capitol, featuring GOP election officials as witnesses, as well as a prominent member of the president’s post-election legal team. According to Colorado Public Radio, the hearing was a departure from the bipartisan committee’s usual work. Typically the audit committee meets to hear the results of investigations into state departments, agencies and enterprises. The committee cannot audit counties, which administer elections, or private companies, which make the equipment for those elections. About a dozen people testified at the committee’s invitation, and none presented evidence of widespread voter fraud in Colorado. Most spoke instead to the strength of the state’s system and some suggested areas of improvement. “There is no one in Moscow, nobody in Beijing, nobody in Antifa, nobody in the Trump campaign that has changed a single ballot in the state of Colorado because you physically can’t do that unless you broke into the clerk’s office, you bypass the cyber locks,” said former Secretary of State Wayne Williams. “You somehow circumvented the 24-7 video surveillance and the security protocols that are in place.”

Hawaii: Hawaii Chief Elections Officer Scott Nago plans to ask the Legislature for changes to Hawaii’s mail voting system that could make it easier for officials to open more in-person voting sites and give voters more time to fill in their ballots. In a report to the state Elections Commission, Nago said the Office of Elections plans to propose several measures. Chief among them is one that would give county election officials more flexibility than currently allowed under the law to open more voter centers, an issue that came to a head on Nov. 3 when thousands of voters waited for hours in lines outside Hawaii’s eight Poll Sites. The elections office proposal is similar to a bill that died in the last days of the 2020 session.

Michigan: Dominion Voting Systems CEO John Poulous told the State Senate Oversight Committee that he stands by his company’s work and shot down unfounded allegations that the results may have been manipulated. According to Poulous, Dominion is the victim of “a dangerous and reckless disinformation campaign aimed at sowing doubt and confusion over the 2020 presidential election.” According to The New York Times, Poulos assured the committee that his company had no connections to House Speaker Nancy Pelosi, the former Democratic presidential nominee Hillary Clinton, or George Soros, the billionaire financier who is a subject of conspiracy theories on the right. “The comments about our company being started in Venezuela with Cuban money with the intent to steal elections are beyond bizarre and are complete lies,” Poulos added. “My company started in my basement, which happened to be in Toronto.”

The Michigan House granted additional power to its Oversight Committee, which is investigating claims of irregularities in the Nov. 3 election. The House voted Tuesday to give the committee subpoena power, giving members authority to compel witnesses to testify and provide documents. The Oversight Committee plans to begin by issuing subpoenas for documents and election records from Detroit and Livonia. “Regardless of our political affiliations, we should all agree that we must do more to restore the public’s trust in our voting procedures,” said Republican State Rep. Triston Cole of Mancelona. “We can begin that process by conducting a thorough and complete investigation that gets to the bottom of these reports and delivers the answers voters deserve. The Oversight Committee needs full access to accurate information to make sure that happens.” He said the Oversight Committee likely will look into Antrim County’s election system after the clerk initially reported a landslide win for Democrat Joe Biden on Election Day even though the county traditionally supports Republicans overwhelmingly.

Missouri: A resolution, sponsored by Rep. Justin Hill, R-St. Charles, calls six states won by President-elect Biden on Nov. 3 to “conduct investigations into voter fraud and if they do not, we demand that Congress refuse to certify their electors.” The measure, which is symbolic and carries no weight of law, was co-signed by 66 of the Missouri House’s 163 members. House Speaker Elijah Haahr, R-Springfield, said Thursday he will assign Hill’s proposed resolution to a committee that will determine if the measure should be presented to the House in an extraordinary session as early as next week. The proposed resolution, which has not been posted on the House’s website, will say the Missouri House has “no confidence” in Arizona, Georgia, Michigan, Nevada, Pennsylvania or Wisconsin’s presidential election results. The resolution calls for election results in Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin to be invalidated and demands the legislatures in those states “call themselves into a special session to investigate the election results and, if needed, exercise their authority under Article 2 of the U.S. Constitution to elect new electors.” A House committee approved the resolution 6-3.

North Dakota: Grand Forks County saw record voter turnout in the 2020 election. But when compared to other areas of the state and country, the local record was broken by a relatively modest margin. Now, some Grand Forks legislators are calling it an outlier that needs to be examined further. Sen. Scott Meyer, R-Grand Forks, says he believes the relatively low turnout is due in large part to Grand Forks’ more transient populations: UND students, active duty airmen and their families who live on Grand Forks Air Force Base, who might reside in North Dakota for longer than the requisite 30 days but who might still use a driver’s license issued by another state. Meyer – along with Sen. Curt Kreun, R-Grand Forks, and Rep. Emily O’Brien, R-Grand Forks – is in the early stages of preparing legislation that aims to make it easier for qualified Grand Forks County voters who aren’t necessarily permanent residents to vote.

Texas: State Rep. Michelle Beckley wants to bring countywide voting centers to Denton County, which would allow residents to vote at any polling location in the county. To do so, she is pushing a bill in the Legislature to allow counties with paper-based ballots, like Denton, to participate in the state’s countywide polling place program. “You run for office and you want to increase voter turnout,” said Beckley, a Carrollton Democrat who considers this bill her top priority for the 2021 session that begins next month. “You just need to make it easier and less confusing.” Currently, to operate a countywide polling program, a county must use all electronic equipment to count votes. Denton County uses paper-based ballots that voters fill out by hand and are then scanned electronically into the voting system. Beckley’s bill would add language into the election code allowing counties that use such technology into the state’s countywide vote center program.

Legal Updates

Arizona: Pinal County Superior Court Judge Kevin White jettisoned a lawsuit claiming widespread election fraud in Arizona, saying the plaintiff had no standing to challenge the state’s election results because she was not registered to vote. White also said former Gilbert Public Schools Board President Staci Burk had waited too long to file her complaint, and allowing it to proceed would “circumvent the strong public policy supporting prompt resolution of election cases.” Burk filed the case Dec. 7, seven days after state officials certified Arizona’s Nov. 3 results. Voters have a five-day window to bring election contests. Ahead of the hearing, an attorney for the secretary of state submitted a signed declaration from the state’s elections director stating Burk was not a registered voter for at least 10 years, indicating she did not have the legal authority to contest a state election. Burk countered with a claim that state law requires those contesting elections only be eligible to register to vote. The judge disagreed with Burk’s assessment, noting in his ruling that “plaintiff by her own admission was not registered to vote for the 2020 general election.” “She therefore does not qualify to contest the election under (state law) because she was not an ‘elector’ of the state and county in which she resides,” White wrote. “She lacks standing to challenge an election in which she did not vote and could not vote.”

Arkansas: A lawsuit challenging Democrat Ashley Hudson’s 24-vote victory in a west Little Rock House district was dismissed on jurisdictional grounds by a Pulaski County circuit judge on Tuesday. The judge, Mackie Pierce of the 6th Judicial Circuit, at times appeared frustrated with Sorvillo’s request to have the court intervene more than a month after the election and on the heels of other legal challenges filed by the three-term lawmaker. “I don’t think I have jurisdiction in this matter whatsoever,” Pierce said. Pierce dismissed the case with prejudice, meaning that Sorvillo and his attorneys cannot file a new lawsuit along similar grounds. However, Pierce noted that Sorvillo still has a remaining avenue open with the Arkansas Claims Commission, a quasi-judicial body.

Florida: A long-running legal battle over Spanish-language ballots for Puerto Rican voters in 32 Florida counties will move forward, after a federal judge refused to dismiss the lawsuit. The case centers on allegations that elections officials have not complied with part of the federal Voting Rights Act related to Spanish speakers who were educated in Puerto Rico. Chief U.S. District Judge Mark Walker last year issued a preliminary injunction requiring 32 counties to take a series of steps, including providing Spanish-language ballots and materials, in time for the March 2020 presidential primary election. in an order last week, Walker said the case should move forward because “there remains a live controversy between plaintiffs and defendant over the necessary scope of relief.” After last week’s order, Walker on Monday denied the plaintiffs’ request to certify the 32 elections supervisors as a class of defendants. The counties — Alachua, Bay, Brevard, Charlotte, Citrus, Clay, Columbia, Duval, Escambia, Flagler, Hernando, Highlands, Indian River, Jackson, Lake, Leon, Levy, Manatee, Marion, Martin, Monroe, Okaloosa, Okeechobee, Pasco, Putnam, St. Johns, St. Lucie, Santa Rosa, Sarasota, Sumter, Taylor and Wakulla — don’t share enough in common to be grouped together, the chief judge wrote.

Georgia: U.S. District Judge Steve C. Jones declined to force the state to immediately restore to voting rolls thousands of people who were removed last year. Voting rights organizations, including the Black Voters Matter Fund, sued Georgia Secretary of State Brad Raffensperger earlier this month, challenging the removal of what they said were hundreds of thousands of eligible voters from Georgia’s rolls. Jones said he would not grant the immediate restoration of voters to the rolls because they have had a year to reregister if they were removed incorrectly and, if the secretary of state’s office did reinstate them, it would cause confusion. “Plaintiffs acknowledge that they do not know how many people on their list of cancelled registrations may have re-registered before December 7, 2020,” Jones wrote in his ruling. “Thus, the risk of dual registrations and voter confusion is high.”

The New Georgia Project and Democracy Docket have filed lawsuits against four Georgia counties for failing to offer sufficient early voting for the Jan. 5 runoff election. The groups say Bibb, Clarke, Houston and Paulding counties are not offering early voting on a Saturday during three weeks of early voting, which they say is required by state law. Bibb also will not offer early voting on Dec. 31. Election officials have said state law requires weekend voting only for a primary or general election, not for a runoff. In a release announcing the lawsuits, the voting rights groups said the lack of early voting “threatens to disenfranchise voters in this critical election.” The lawsuits were filed in the superior courts of the respective counties this week. They seek emergency orders forcing the counties to offer additional early voting.

Idaho: Idaho Fourth District Judge Ronald Wilper dismissed ACHD Commissioner Rebecca Arnold’s appeal of the results of a recount in her tight race against Alexis Pickering. Arnold contended Ada County Clerk Phil McGrane and Ada County Prosecutor Jan Bennetts misapplied the law in how they conducted the recount and requested the ballots be counted by hand and some ‘newly discovered’ absentee ballots be thrown out. Wilper was not swayed by Arnold’s complaint. He said her request for a hand count would not result in higher accuracy and could result in human error. “Inherent in Ms. Arnold’s appeal is the contention that a hand-count of all 31,468 ballots, or at least the hand-count of all the ballots from the four precincts used for the test would result in a more accurate count than vote tabulating machines,” he said. “While this argument has some appeal, the Court is not convinced that hand-counts are more accurate than machine counts. This is because the element of human error is introduced in any hand-count, especially a hand-count of thousands of ballots.”

Kansas: The Supreme Court declined Monday to revive a Kansas law that required showing specific proof-of-citizenship documents before registering to vote, ending a fight that had continued for years. A trial court and the U.S. Court of Appeals for the 10th Circuit had declared it unconstitutional. It was championed by former Kansas secretary of state Kris Kobach, a Republican who had led the short-lived voter fraud commission President Trump formed to try to substantiate his unproven claims that millions of immigrants living illegally in the United States were voting. The court did not give a reason for rejecting the appeal of the state’s new secretary of state, Scott Schwab. Kansas Gov. Laura Kelly (D) had opposed the effort asking for Supreme Court review.

Massachusetts: A handful of failed Republican candidates have scaled back the scope of their challenge to the results of the Nov. 3 election in Massachusetts and one — former 9th Congressional District hopeful Helen Brady — has dropped out of the lawsuit altogether. But John Paul Moran, a former 6th Congressional District candidate who’s spearheading the legal challenge, told the Boston Herald the four remaining plaintiffs are forging ahead undeterred. “Our goal here is we want free and fair elections that are done legally and constitutionally,” Moran said. “Everybody benefits from that, so we think the whole public should be on our side.” Moran, Brady, former 5th Congressional District candidate Caroline Colarusso and former state representative hopefuls Ingrid Centurion and Craig Valdez sued the state, GOP Gov. Charlie Baker and Democrat Secretary of State William Galvin last week seeking to throw out millions of ballots cast in the November election over their claims pandemic-related changes to voting laws were “unconstitutional.” The group was initially looking to bar the state from selecting electors and transmitting certified election results to the Electoral College. On Wednesday, the day before U.S. District Court Judge Allison D. Burroughs was set to hold a hearing on their request, attorney Gregory Hession — who the plaintiffs brought on as counsel after filing the lawsuit — requested it be called off. Hession wrote in his filing that he had reviewed both sides’ arguments — “concluding that the plaintiffs would not be able to meet their burden of proof for the court to issue a preliminary injunction at this time.” But he said the withdrawal “does not forfeit any other causes of action set out in the complaint.”

Michigan: Judge Kevin Elsenheimer of the 13th Circuit Court ruled last week that Secretary of State Jocelyn Benson could intervene in a lawsuit filed by Antrim County resident William Bailey. While Bailey purportedly filed the lawsuit to settle the outcome of a local marijuana proposal, his attorney Matthew DePerno made much broader electoral claims. During a procedural hearing that was supposed to focus on whether Benson had a stake in the election lawsuit, DePerno alleged a team of Trump-aligned investigators had found “significant errors” during a recent review of 22 voting machines in the county. DePerno did not provide any of this evidence during the hearing, saying the results of the review are preliminary. The only specific allegations he mentioned involved voting machines having unsecured data ports or not having magnetic security tape. In the same case this week Elsenheimer vacated his earlier order to keep the results private and now voters will have a chance to review a report generated by a recent examination of Antrim County’s voting machines. Attorneys from the Michigan Attorney General’s office — representing Michigan’s Secretary of State — agreed the information should be released, so long as any proprietary source code from Dominion voting machine software is redacted and the Secretary of State be allowed to rebut the report’s contents.

Ingham County Clerk Barb Byrum (D-Onondaga) has requested a formal opinion from Attorney General Dana Nessel regarding potential violations of Oaths of Office by Michigan State Representatives and Representatives-elect as well as Michigan U.S. Congressmen. The potential violations included signing on, through amicus briefs, to the Texas v Pennsylvania et al lawsuit that was dismissed for lack of standing by the Supreme Court of the United States, last week. “Elected Officials in Michigan swear an Oath to uphold the Constitution of the United States and the Constitution of the State of Michigan,” Byrum stated. “We look to them to uphold the ideals enshrined in our founding documents, which includes free, fair, safe, and secure democratic elections. The partisan actions of these Congressmen and Representatives that sought to overturn the results of the November Election run counter to those ideals and they must be held accountable for them.”

New Jersey: Assignment Judge Julio Mendez ruled last week that Atlantic County must recount an additional 4% of the 143,000 ballots cast in the Nov. 3 election, on top of the 2% recently recounted for a state audit, to determine whether results are accurate in the at-large freeholder race. Mendez ruled that the hand recount must be completed no later than Dec. 18. “Following the additional recount, the Board will adjust the final numbers if appropriate, and provide the results to all parties and the Court,” Mendez wrote. He also ordered the recount “shall be conducted as an open public meeting and members of the public and the press shall be free to observe.”

New Mexico: Outgoing President Donald Trump’s campaign filed a federal lawsuit this week against the New Mexico Secretary of State’s Office, alleging the use of drop boxes to collect absentee ballots in the general election violated state law. The filing — which came as members of the Electoral College in New Mexico and nationwide met to cast votes formalizing Democrat Joe Biden’s presidential election victory — asks the court to delay action by electors or vacate their certification until the case is resolved. Secretary of State Maggie Toulouse Oliver implemented the drop boxes as an option for voters who chose to cast ballots by mail amid the surging COVID-19 pandemic. The presidential election drew a record number of voters who requested mail ballots. The Trump campaign argues in the complaint, however, that a drop box is not an option for returning a mail ballot under the New Mexico Election Code, and that not all such boxes in the state remained secured at all times. It asks the U.S. District Court to order Toulouse Oliver to conduct a statewide canvass of absentee ballots and an investigation into the drop boxes.

New York: New York Supreme Court Justice Carol Edmead denied a request to block the implementation of ranked choice voting in the upcoming special city council election in 2021. In a three-page decision, Edmead made clear it was the imminent mailing of military ballots scheduled to go out this Friday that persuaded her from ordering any relief that could inadvertently disenfranchise those overseas voters. “This Court is disinclined to take any action that may result in the disenfranchisement of even one voter or take any action that may result in even one voter’s ballot being nullified,” Edmead wrote. Frank Carone, the lawyer for the plaintiffs, who is also counsel to the Kings County Democrats, said he planned to file an appeal. “Although we did not get to the substantive merits, the Court was clearly concerned about the timing to mail overseas ballots to our service men and women,” said Carone. But what is now clearly apparent is that there has been a serious failure to comply with the requirements of the Charter and State law, that our application was clearly timely, since it was only revealed last week that the City had not done what it was required to do, and that we will seek relief in the Appellate Division.”

State Supreme Court Justice Scott DelConte told election officials he wants to resolve disputes in the undecided House race between Rep. Anthony Brindisi and Claudia Tenney by the start of the new Congress on Jan. 3. According to it was the first time DelConte set a goal for ending the review of challenged ballots in the 22nd Congressional District – a process that has dragged on for more than a month after the election. DelConte told lawyers for the eight counties in the district that he wants to meet with them privately Friday “to address the scheduling and logistics for resuming review of all challenged envelopes and ballots as safely and efficiently as possible.” The judge said his goal is to start reviewing disputed ballots on Monday, Dec. 21.

Tennessee: The state of Tennessee asked a panel of judges to reinstate a voting law that requires first-time voters to cast ballots in person, arguing the restriction helps ensure the integrity of elections. The state asked the Sixth Circuit in October for a decision without oral arguments so the law could be reinstated before the November election, but the Cincinnati-based appeals court refused and instead scheduled this week’s hearing. In his brief to the appeals court, Tennessee Secretary of State Tre Hargett argued U.S. District Judge Eli Richardson lacked jurisdiction to issue the injunction because Sweet failed to meet absentee voting eligibility requirements that were wholly unrelated to the first-time voter law. Hargett said Richardson “overstated the burden imposed by the first-time voter requirement,” a burden he called minimal at most, and argued the ruling impacted the ability of the state to verify voters and ensure the integrity of its elections.

Texas: The U.S. Supreme Court tossed out the Texas lawsuit that had become a vehicle for Republicans across the country to contest President-elect Joe Biden’s victory. In a few brief sentences, the high court said it would not consider the case for procedural reasons, because Texas lacked standing to bring it. “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” the court wrote in an unsigned ruling Friday evening. Texas sued this week to challenge the election results in Georgia, Pennsylvania, Michigan and Wisconsin on the basis that those states implemented pandemic-related changes to election procedures that, Texas claimed, were illegal and cast into question the election results. “Let us be clear,” attorneys for Pennsylvania wrote in the state’s reply brief. “Texas invites this Court to overthrow the votes of the American people and choose the next President of the United States. That Faustian invitation must be firmly rejected.” Texas’ lawsuit leaned heavily on discredited claims of election fraud in swing states. Election officials and U.S. Attorney General Bill Barr have said there is no evidence of election fraud on a scale that could have swayed the results.

Former Houston Police Capt. Mark Anthony Aguirre was arrested this week after allegedly running a man off the road and restraining him with a pistol in an attempt to prove a nonexistent massive voter fraud scheme in Harris County in exchange for more than $250,000, prosecutors said. Aguirre claimed to believe the victim was hiding about 750,000 fraudulent ballots within his truck and home, with Hispanic children being used to sign the ballots because their fingerprints would not appear in any databases, according to prosecutors. “He crossed the line from dirty politics to commission of a violent crime and we are lucky no one was killed,” read a statement from Harris County District Attorney Kim Ogg. “His alleged investigation was backward from the start – first alleging a crime had occurred and then trying to prove it happened.”

Washington: Former gubernatorial candidate Loren Culp has filed a lawsuit against Secretary of State Kim Wyman requesting an audit of ballots, vote counting machines and results in six Western Washington counties. Culp, who has refused to concede, has made allegations of voter fraud in the days since he lost the election to incumbent Jay Inslee. Wyman has maintained there is no evidence of such claims. The Culp campaign alleges there were multiple issues with the November election, like sending 10,000 ballots to the deceased and not running failed ID act software on their voter database. Culp’s lawsuit also alleges his rights were violated because of an unlawful election, saying Wyman and the state of Washington allowed illegal votes to be cast. The lawsuit now seeks an audit of votes cast in King, Clark, Thurston, Pierce, Kitsap and Skagit counties.

Wisconsin: The state Supreme Court ruled this week it is up to Wisconsinites to determine whether they face challenges that allow them to vote absentee without providing a copy of a photo ID. Under state law, people can vote absentee without showing an ID if they say they are indefinitely confined because of age, disability or infirmity. Two county clerks this spring contended voters could meet that status because of the coronavirus pandemic and a stay-at-home order issued by Democratic Gov. Tony Evers. The state Republican Party sued directly with the state Supreme Court and the justices quickly issued an initial order that said the advice from the county clerks was faulty. The clerks rescinded their advice. In its final decision, the justices concluded it was up to each voter — not clerks or anyone else — to decide when they qualify as indefinitely confined. In addition, they found the pandemic and the stay-at-home order — which has since been struck down — did not render all voters indefinitely confined.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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