Thursday, December 3, 2020

Electionline Weekly December-3rd-2020

Legislative Updates

District of Columbia: The Council of the District of Columbia Judiciary Committee has advanced a bill that would require initiatives and referenda be written in “plain language” that voters can understand, a direct response to concerns raised with Initiative 77, a tipped-wage ballot measure approved by voters in 2018 and then repealed by the council later that same year. The bill would also make permanent the use of vote centers in lieu of traditional polling places for elections, and require that a polling place be established at the D.C. Jail so that inmates can vote.

Georgia: A group of Republican state lawmakers are calling for the General Assembly to hold a special session ahead of the Jan. 5, 2021 runoff elections for U.S. Senate to consider changes to Georgia’s voter ID laws. Gov. Brian Kemp (R) has not said whether he would convene the Legislature before the regular session begins on Jan. 11. If a special session is convened, lawmakers would consider creating a notary or photo ID requirement for voting by mail and hold committee hearings on “any evidence of voter fraud,” the lawmakers said in a release.

Massachusetts: Gov. Charlie Baker on Tuesday filed a bill to let the City of Newton use mail-in, early, and expanded absentee voting next year. The governor’s bill, filed at the request of Mayor Ruthanne Fuller and the Newton City Council, would permit the City to use the voting options for a special election to be held in January or February. In a letter to lawmakers, Baker said the bill extends the voting provisions used in this month’s statewide election to a special election needed to fill two vacancies on the city council, and “permits Newton voters to avoid the risks of COVID-19 transmission that could be associated with in-person voting.” Baker’s bill also states that “any eligible voter may vote early in-person for any special municipal election held on or after January 1, 2021 and before March 31, 2021 in the City of Newton.” Under the bill, the voting period for in-person early voting shall run from “the sixth business day before the special election until the close of business on the business day preceding the business day before the election.”

Michigan: The State House approved a series of bills this week that would provide a greater level of confidentiality for survivors of domestic and sexual violence. The bills seek to ensure victims of crimes can vote. Michigan voter registration records are open to the public, which includes addresses of voters. Participants would be able to use their program ID in the state’s Qualified Voter File in order to protect their location from being accessed by their perpetrator.

New Hampshire: Legislators are working on a number of election-related bills in advance of the upcoming session. Newly elected state representative and former State Supreme Court Chief Justice Robert Lynn is drafting legislation that would introduce provisional ballots, which are used in other states when there are questions about a voter’s eligibility. The student vote will face renewed scrutiny as Rep. Al Baldasaro (R-Londonderry), plans to file legislation that would give in-state tuition to out-of-state college students who register and vote in New Hampshire. Less splashy proposed changes include requiring town and city clerks to make the list of voters who’ve requested, been mailed or returned absentee ballots available electronically.

New Jersey: State Sen. Vin Gopal (D-Long Branch) will introduce bills to quicken New Jersey’s counting of mail-in ballots. One of the planned bills would require New Jersey’s State Department to create a grant program to fund improvements for county election boards. That money could go to high-speed ballot counting machines. Gopal’s other bill would create a vote-by-mail task force meant to spot and fix deficiencies in the state’s counting process. “Our main goal is to ensure each county has the technology they need to provide safe, secure, and efficient vote-by-mail counting methods,” Gopal said. “Establishing funding for these counties is a positive step towards making sure each board of elections is well equipped to handle vote-by-mail ballots in the years to come if a voter chooses to use that method.”

Oregon: In her proposed 2021-2023 budget Gov. Kate Brown (D) is proposing several elections-related reforms. Those include: Allow ballots to be postmarked up to Election Day and still be counted. Currently, there is a cut-off date several days in advance of the election, after which Oregonians are told to bring ballots to drop boxes or elections offices to ensure that they will be counted. Institute same-day voter registration. Currently, the cut-off date is 21 days before an election. Pay for more ballot box infrastructure statewide. Expand its “motor voter” program, which automatically registers voters when they visit the DMV. Under Brown’s proposal, other state agencies would also be able to process voter registrations.

Pennsylvania: A bicameral legislative committee Monday rejected a Republican-backed effort to audit the general election, but that didn’t stop a “very disappointed” state Rep. Seth Grove, who championed the idea, from releasing a report on the election just hours later. During a meeting of the bipartisan Legislative Budget and Finance Committee, state Rep. Jake Wheatley Jr., an Allegheny County Democrat, called a possible legislative audit a “wasted effort” because the Pennsylvania Department of State is already conducting one. “There are other ways to validate our election result,” he said during the meeting of the committee’s officers as they discussed House Resolution 1100, which was passed last week along mostly party lines. Wheatley, the committee’s treasurer, and committee vice chairman state Sen. Jim Brewster, another Allegheny Democrat, voted against doing an audit while committee chairman state Sen. Bob Mensch, a Montgomery County Republican, voted for it.

Nearly three dozen Republican state lawmakers are asking Democratic Gov. Tom Wolf to use his constitutional authority to call the General Assembly back into immediate session to address their concerns about the 2020 presidential election. In a letter dated Wednesday, the group of conservative GOP lawmakers led by Rep. Daryl Metcalfe (R-Butler County), listed 15 questions they say need to be answered ”to help restore our citizens’ faith in the electoral process.” Among them are issues related to ballot dropboxes, ballot handling, voting machines and more. “The facts are clear: Pennsylvania had a secure election,” said Wolf’s spokeswoman Lyndsay Kensinger. “Pennsylvanians voted, state and federal judges have rejected the reckless accusations, the U.S. Attorney General has found claims of widespread fraud baseless, and the representatives must move forward. Spreading lies and misinformation is irresponsible. Pennsylvanians deserve better from their elected officials.”

Texas: Six Republican state lawmakers have pre-filed companion bills in the state Senate and House to codify legal opinions issued by the Texas Attorney General’s Office and Texas Supreme Court related to election procedure. Sens. Paul Bettencourt of Houston, Brain Birdwell of Granbury, Brandon Creighton of Conroe, Bob Hall of Rockwall, and Kel Seliger of Lubbock, filed SB 208 in the state Senate. State Rep. Valoree Swanson, R-Houston, filed HB 25 in the House. The bills state that unless otherwise authorized by Texas Election Code, “an officer or employee of this state or of a political subdivision of this state may not distribute an official application form for an early voting ballot to a person.”.

A bill filed by state Rep. Michelle Beckley (D-Carrollton), would allow Denton County residents to vote at any polling location on Election Day — a convenience that is not available today. “The issue is that currently, in order to be a vote center county, the equipment you use must be all-electronic,” Denton County Elections Administrator Frank Phillips said in an email. “Paper-based counties are not allowed to participate in the program. It’s a simple matter of changing a few words in the Election Code and bring it in line with modern technology.” Beckley’s House Bill 661 appears to do just that, providing that the secretary of state “shall elect to participate in the program each county that uses direct recording electronic voting machines, ballot marking devices or hand-marked scannable paper ballots that are printed and scanned at the polling place or any other type of voting system equipment.”

Utah: Legislators are planning on introducing several pieces of elections-related legislation. Rep. Mike Winder (R-West Valley City), and Sen. Curt Bramble (R-Provo), are sponsoring a bill that would move Utah to “ranked choice voting” for primary elections in the state. Sen. Derek Kitchen (D-Salt Lake City), plans to run a bill that would have Utah join a multi-state compact that would award its Electoral College votes to the winner of the national popular vote in a presidential contest. Currently, Utah awards its six electoral votes to the candidate who wins the state. House Minority Leader Brian King (D-Salt Lake City), is planning to introduce a bill to allow ballots to be postmarked on Election Day.

Legal Updates

Arizona: Maricopa County Superior Court Judge Randall Warner has granted a request from the leader of the state Republican Party to inspect a sampling of Arizona ballots for irregularities to determine if any were improperly counted. But Warner capped at 200 the number of ballots Arizona GOP Chair Kelli Ward and her team can examine, arguing the limited sample should be “enough to let us know if there’s a red flag” when he reviews the results at trial Thursday. Ward’s challenge relies on a state law that allows voters to dispute election results if they suspect misconduct by election officials, illegal votes or an inaccurate count. Without evidence, Ward’s lawsuit questions the signature verification process used to authenticate mail-in ballots, as well as the duplication process election officials use to count ballots that tabulation machines couldn’t read.

Maricopa County Superior Court Judge Margaret Mahoney tossed out a lawsuit last week claiming that the county denied one voter the right to cast her ballot and failed to properly process another voter’s ballot, dismissing the last election-related case pending in Arizona. Mahoney did not elaborate on her reasoning for throwing out the case at the end of the hearing but said she would issue an order in writing.

Supporters of President Trump filed suit in federal court this week in their latest bid to throw out the certified popular vote results that awarded Arizona’s 11 electors to Joe Biden. The lawsuit alleges “widespread ballot fraud,” due in part to Dominion Voting Systems machines used in Maricopa County, which they assert were designed purposely to take votes away from Trump. Attorney Sidney Powell specifically blames that on Eric Coomer, an executive with the company, and “his visceral and public rage against the current U.S. president.” She said it is part of a criminal conspiracy. The lawsuit, filed on behalf of Arizona GOP Chairwoman Kelli Ward, among others, also claims poll watchers were unable to adequately monitor that the signatures on envelopes of mail-in ballots were verified. It refers to “biased and partisan Maricopa County poll referees.” The Supreme Court Rejected a similar case.

Georgia: A former lawyer for President Donald Trump’s campaign and some supporters filed a lawsuit against the state of Georgia, citing massive election fraud, multiple violations of Georgia laws and multiple constitutional violations, and asking elections officials to overturn the results in the state. The 104-page civil suit was filed on Wednesday, specifically naming Gov. Brian Kemp, Secretary of State Brad Raffensperger and several other state election officials. In the lawsuit, former campaign lawyer Sidney Powell claimed there was widespread voter and ballot fraud, that voting machines were rigged to change votes from Trump to Biden and that ballots were mishandled, among other things. The suit seeks an emergency order instructing the state to decertify the results of the general election and declare Trump the winner in Georgia.

Voting rights groups filed a federal lawsuit this week that accuses the Georgia secretary of state’s office of improperly removing nearly 200,000 people from the state’s voter registration list last year. The lawsuit says the state removed tens of thousands of voters from the list because it believed they had moved away when, in fact, they had not. It also challenges a “use it or lose it” provision in state law that allows Georgia to purge voters who do not cast ballots for many years. That allowed the state to remove tens of thousands more voters, the lawsuit says. The lawsuit was filed in U.S. District Court in Atlanta by the Black Voters Matter Fund, the Transformative Justice Coalition and the Rainbow Push Coalition.

Samuel Scott has filed a civil rights lawsuit against the Chatham County board of elections saying that he was denied the right to work as a poll worker for a felony conviction that was overturned. In 1987, Scott was sentenced to life in prison for rape and kidnapping. After 15 years in prison, he was exonerated by DNA evidence and released in 2002. He’s been a legal Georgia voter since 2006. Scott applied to be a poll worker and never received any correspondence from the BOE until his attorneys eventually got a response. “We had to write a letter to them, and ask why he had been turned down, and they wrote us back, simply, that his prior felony conviction stopped him from being a poll worker,” William Claiborne told reporters. He says the board claimed to have no written policy to back up their denial of Scott. That’s why he and his client want a court to step in. “If you’re going to take the step to deny someone their constitutional or their fundamental rights, then you need to have a very clear policy, and that policy has to pass strict scrutiny,” the attorney said.

Illinois: The La Salle County Republican Central Committee challenged the race for La Salle County state’s attorney and state representative, won by Democrats Todd Martin and Lance Yednock, respectively. Mail-in votes tabulated late Nov. 3 abruptly swung the races away from incumbent state’s attorney Karen Donnelly and Yednock challenger Travis Breeden, both Republicans. At a hearing last week, Judge Robert Marsaglia learned the results already were certified and he continued the hearing to this week. Marsaglia instructed County Clerk Lori Bongartz to maintain a flash drive containing the mail-in votes as well as any companion records.

Michigan: A conservative legal group has asked the Michigan Supreme Court to take custody of all Nov. 3 election materials to give the Michigan Legislature time to audit the results, investigate all claims of ballot irregularities and fraud, and “finish its constitutionally-mandated work to pick Michigan’s electors.” The lawsuit filed Thursday seeking the collection of ballots, pollbooks and ballot boxes also asks the court to stop the Secretary of State Jocelyn Benson and the Board of State Canvassers from giving final certification to the state’s election results until a special master can be appointed to review alleged ballot irregularities and the legality of absentee ballots in Wayne County.

Six Republicans — three who would be Electoral College electors for President Donald Trump and three local GOP officials — filed the suit in federal court last week, two days after the Board of State Canvassers certified Biden’s 154,000-vote victory in Michigan. The suit asks a federal judge to overturn President-elect Joe Biden’s win in the state based on a bevy of conspiracy theories and claims contradicted by election experts. suit relies heavily on speculation and claims that a Wayne County judge previously labeled “not credible” in a separate legal action. “Relief sought is the elimination of the mail ballots from counting in the 2020 election,” the 75-page suit says. “Alternatively, the electors for the State of Michigan should be disqualified from counting toward the 2020 election. “Alternatively, the electors of the State of Michigan should be directed to vote for President Donald Trump.”

The Michigan Supreme Court denied an appeal from poll challengers seeking an immediate halt to the certification of Wayne County results, ruling the request should not be reviewed by the high court. The 6-1 opinion was released Monday, nearly a week after the Wayne County’s certification was completed and a little more than an hour after the Board of State Canvassers certified the Nov. 3 results of Michigan’s 83 counties. The certification cemented President-elect Joe Biden’s 154,000 vote victory in Michigan. The Costantino suit, which originated in Wayne County Circuit Court, was one referenced frequently by President Donald Trump’s lawyer Rudy Giuliani in a press conference last week as proof of fraud in Michigan’s election.

A group of Black voters in Detroit have announced they are suing President Trump and his campaign, saying the targeted effort to overturn the election repeats one of the “worst abuses in our nation’s history” by attempting to disenfranchise Black voters. The lawsuit specifically takes issue with the campaign’s effort to overturn the results of the election in Michigan by blocking the certification of results in Wayne County – home to Detroit – and attempting to “intimidate” and “coerce” state and local officials into replacing electors. “Central to this strategy is disenfranchising voters in predominately Black cities,” the suit alleges. “Repeating false claims of voter fraud, which have been thoroughly debunked, Defendants are pressuring state and local officials in Michigan not to count votes from Wayne County, Michigan (where Detroit is the county seat), and thereby disenfranchise hundreds of thousands of voters.”

President Donald Trump’s campaign has resurrected a Michigan voter fraud lawsuit with a new appeal, recycling old allegations of problems at the TCF Center – where Detroit’s absentee ballots were being counted. Trump’s team filed the appeal at 11:21 p.m. on Monday, Nov. 30. The case would have been dismissed if the appropriate paperwork wasn’t filed by midnight, officials said. Michigan Court of Claims Judge Cynthia Stephens ruled against Trump on Nov. 5 in the lawsuit targeting Michigan Secretary of State Jocelyn Benson. Trump’s campaign attempted to appeal later that week, but didn’t submit the correct paperwork. It had 21 more days to fix the “defective” submission to the Michigan Court of Appeals, otherwise the case would be thrown out. One of the handful of reasons Trump’s campaign lost the court battle is because the remedy sought – to stop counting the votes until certain measures could be implemented – wasn’t possible since all votes had already been counted. But Trump’s campaign claims there’s still time to halt the process since the Electoral College doesn’t meet until Dec. 14. “The conduct of the general election in Wayne County was a disaster,” the campaign says in the appeal . “The Wayne County board of county canvassers found that more than seventy-one percent of the precincts did not balance. More than seventy-one percent!”

Nevada: Judge Elizabeth Gonzalez in the Eighth Judicial Court denied a preliminary injunction that would prevent Clark County from moving forward on its plan to hold a special election in District C. The injunction, if approved would help stop a special election in the district where Democrat Ross Miller was, at last count, the winner, by 10 votes. During the county commission’s canvassing of the vote, the Clark County registrar said that he could not determine the identified 139 discrepancies in the district. Those typically are common election errors and therefore, the county could not be certain Miller really won, given the razor-thin margin of victory. Another court hearing is set for Friday, Dec. 4.

Clark County District Court Judge Joe Hardy Jr. denied, on procedural grounds, the effort by GOP candidate April Becker to force a re-vote in the race won by incumbent state Senate Majority Leader Nicole Cannizzaro. Hardy noted that Cannizzaro wasn’t a named party in Becker’s court filing against county Registrar of Voters Joe Gloria over his handling of the election, and that the case is actually a contest-of-election action. County lawmakers signed off on a canvass of the election on Nov. 16, after Gloria reported 936 “discrepancies” had been found among the more than 974,000 votes counted countywide. The registrar said the results in only the closest race — a commission seat — might have been affected.

New Jersey: Assignment Judge Julio Mendez ordered a recount in the freeholder at-large race in Atlantic County because of the extreme closeness of the results, but he did not determine the size or scope of it. Mendez will rule on how the recount will proceed after another hearing at 1:30 p.m. Monday, he said, in order to give lawyers in the case time to develop their cases on what size sampling they would accept. “I am not inclined to order a hand recount of every ballot at this point,” Mendez said of the more than 143,000 mostly paper ballots cast countywide Nov. 3. With the vast majority of votes cast by mail and provisional ballots, he said it would be overwhelming for the Atlantic County Board of Elections staff and costly for the county to do a hand recount of so many ballots.

New York: Supreme Court Justice Scott DelConte ordered elections officials to preserve records showing how they calculated results in an extremely close congressional race in central New York after two counties reported errors or changes in vote tallies over the holiday weekend. According to The Associated Press, Republican Claudia Tenney said Monday she had a 13-vote lead over Democratic incumbent U.S. Rep. Anthony Brindisi after one county adjusted its tabulation. In a letter to the court on Sunday, a lawyer for Brindisi’s campaign told DelConte he learned that Herkimer County had discovered a transcription error that, when fixed, netted Tenney an additional 35 votes and Brindisi an additional 10. In addition to Herkimer County’s error, Madison County also adjusted its vote tally, prompting DelConte on Monday to order all of the counties involved to “preserve and secure” all written and digital records related to vote counting, and not to make any alterations or changes in worksheets, spreadsheets or other tallying records.

North Carolina: a three-judge panel from the federal 4th Circuit Court of Appeals ruled that Republican lawmakers didn’t act with racist intentions when they passed a 2018 voter ID law. The legislature had lost the case at trial in late 2019, which had the effect of blocking any voter ID requirements in North Carolina for the 2020 elections. But the Appeals Court ruled that the trial judge was too harsh on the legislature in her ruling last year and didn’t focus enough on what was actually in the new law. However, the ruling doesn’t automatically mean North Carolina will have voter ID in the future. This case could still be appealed further in the federal court system. And an attorney for the main challenger in the case, the North Carolina NAACP, said in a press release Wednesday the group is considering doing just that.

Pennsylvania: Westmoreland County Judge Harry Smail ruled that only 46 of 250 provisional ballots cast in the Nov. 3 general election should be counted while the remaining 204 should be tossed. Smail made the ruling that the 46 ballots should be counted after voters testified to the county’s board of elections that they had signed a poll book at their polling places but did not vote using the computerized voting machines.

The Pennsylvania Supreme Court has denied a lawsuit filed by U.S. Rep. Mike Kelly and congressional candidate Sean Parnell that sought to declare universal mail-in voting unconstitutional in the state and deny the votes of the majority of Pennsylvanians who voted by mail in the Nov. 3 election. The Court, five Democrats and two Republicans ruled unanimously in an unsigned ruling over the holiday weekend. Kelly and the others involved in his suit attempted to “play a dangerous game at the expense of every Pennsylvania voter,” state Supreme Court Justice David Wecht, a Democrat, wrote in a concurring statement filed along with the Supreme Court’s order. In tossing Kelly’s suit, the state Supreme Court said Kelly and the other petitioners waited too long to challenge the 2019 state law that authorized universal, no-excuses mail-in voting in Pennsylvania — an option that millions of voters chose to use rather than voting in person during the coronavirus pandemic. Kelly and Parnell say they plan to appeal to the U.S. Supreme Court.

The U.S. Third Circuit Court has rejected the Trump campaign’s appeal of a federal lawsuit filed in Pennsylvania that challenged the outcome of the 2020 elections, denying the request with a blistering opinion authored by a Trump-appointed judge declaring: “Voters, not lawyers, choose the President.” “Free, fair elections are the lifeblood of our democracy,” said the unanimous opinion from a three-judge panel, which was signed by Judge Stephanos Bibas. “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.” “Voters, not lawyers, choose the President,” the court writes. “Ballots, not briefs, decide elections.”

Texas: This week, the American Civil Liberties Union of Texas filed a petition to appeal the sentence of Crystal Mason who was sentenced to five years in prison for casting a provisional ballot while still on probation. Three justices on the Court of Appeals for the Second District of Texas denied Mason’s first appeal in March, although it agreed she did not know she was ineligible to vote. “The fact that she did not know she was legally ineligible to vote was irrelevant to her prosecution,” Justice Wade Birdwell wrote in the court’s opinion. “The State needed only to prove that she voted while knowing of the existence of the condition that made her ineligible.” Now the ACLU will try to take the case — which ACLU legal director Andre Segura called, “one of the most important voting rights cases in modern Texas history” — through the next appeals process. “I’m more energized than ever before and I refuse to be afraid,” Mason, who is from Rendon, said in an ACLU press release. “I thought I was performing my civic duty and followed the election process by filling out a provisional ballot. By trying to criminalize my actions, Texas has shown me the power of my voice. I will use my voice to educate and empower others who are fighting for their right to vote.”

Missouri City will file a lawsuit against Fort Bend County for what the city is calling “another mistake” in an already “tumultuous election season,” according to a Dec. 2 press release from the city. In the release, Missouri City said the lawsuit stems from “disenfranchising citizens” by not allowing all Missouri City residents the ability to vote early for the Dec. 12 runoff election at all three county-run polling locations, something the city claims the county previously confirmed with officials. Instead, Missouri City voters who live in Harris County can only cast early ballots at one location: the Missouri City Community Center, located at 1522 Texas Parkway. Missouri City voters who live in Fort Bend County, however, can vote at any of the three early-voting locations: the Community Center, the Quail Valley Fund office and Stafford City Hall. John Oldham, Fort Bend County’s elections administrator, said there was a miscommunication between his office and the city regarding early-voting locations. Oldham added for previous runoff elections involving both Harris and Fort Bend County voters, the county assigns Harris County voters one early-voting location, and this election is no different.

Wisconsin: A new lawsuit filed with the Wisconsin Supreme Court asks justices to throw out the results of the Nov. 3 election. The attorney bringing the suit alleges results are “tainted” by the illegal use of ballot drop boxes throughout the state. The suit is asking the Wisconsin Supreme Court to stop the certification of election results from Nov. 3 that have President-elect Joe Biden ahead of President Donald Trump by just more than 20,000 votes. An injunction is needed, argues Karen Mueller, because the Wisconsin Elections Commission encouraged local elections officials to use drop boxes to collect absentee ballots without having the rulemaking authority to do so.

President Donald J. Trump sued Wisconsin elections officials. in a last-ditch effort to reclaim a state he lost by about 20,700 votes. The Republican president filed his suit against Democratic Gov. Tony Evers a day after the governor and the head of the state Elections Commission certified Joe Biden had won the state’s 10 Electoral College votes. The lawsuit challenges 221,323 absentee ballots cast in Dane and Milwaukee counties, alleging election officials broke the law by continuing the longstanding practice of early voting, allowing voters to label themselves indefinitely confined without further inspection, allowed clerks to fill in missing information on ballots, and allowed poll workers to collect ballots in Madison parks. The campaign is challenging: 170,140 ballots cast early; 28,395 ballots cast by voters who claimed to be indefinitely confined; 17,271 ballots collected at “Democracy in the Park” events; and 5,517 ballots for which clerks filled in missing information

NYC Wins When Everyone Can Vote! Michael H. Drucker

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