Thursday, January 21, 2021

Electionline Weekly January-21-2021

Legislative Updates

Federal Legislation: Senate Democrats, on the cusp of holding the slimmest possible majority in the chamber, signaled Tuesday a symbolic first order of business: a major overhaul of the nation’s voting, campaign finance and ethics laws. The measure, dubbed HR 1 in the House and now christened in the Senate as S1 to signify that it is a top priority, died in the GOP-controlled Senate last Congress. It could see the same fate again in the 117th Congress unless Democrats remove the 60-vote threshold to end filibusters on legislation, a change the party’s base eagerly wants but remains in doubt. Advocates pushing for the overhaul said they were mobilizing anew to build public support in both chambers. House Democrats expect to take up the measure as soon as this month or next, congressional aides said, as it closely tracks the same bill in the last Congress. The bill would create nationwide automatic voter registration and require paper ballots in all jurisdictions. It would set up a 6-to-1 optional public financing system to pay for congressional campaigns and tighten disclosure rules for political groups and super PACs that spend money to influence elections. It would require early voting and expand voting by mail, two changes made hastily in some states to cope with the pandemic in 2020 that Trump and many of his GOP allies falsely charged led to fraud. Some House Republicans have responded with their own bill that would sharply curtail such practices in federal elections. The bill would also put new limitations on some behind-the-scenes lobbying efforts, require more disclosure of online political ads and create nonpartisan redistricting efforts, among numerous other provisions.

Alaska: The Anchorage Assembly approved an ordinance with a package of adjustments to the municipal code that governs city elections. The measure, which passed 8-1, is the result of a yearly review of election code. Leading up to the vote, Assembly members grappled with questions of eroding public trust in elections systems. Nationwide, distrust among some voters hit a crescendo after the presidential election and the ensuing unsubstantiated claims of widespread voter fraud. The municipal election is April 6. The updated code makes it explicit that the municipal clerk can “gather information” pertaining to alleged voter fraud or an election offense and then give that information to law enforcement when needed so a complete investigation can be conducted. Vote centers will be open for fewer days during runoff elections because of the shortened election period. Ballots mailed from overseas and postmarked by election day will have four days longer to be received. How questioned ballot envelopes are reviewed has been changed so that a voter ballot can still be counted if the voter is verified and qualified to vote, even when the voter or an election worker fails to sign the questioned ballot envelope. Voter misconduct offenses that are consistent with those in state statute have been added to code. This is so the city has “the authority to prosecute election offenses and maintain the accuracy and integrity of municipal elections,” according to the memorandum.

Arizona: Senate Bill 1023 by Sen. Kelly Townsend (R-Mesa), would bar county boards of supervisors from requiring that a specific marking pen be used on paper ballots and “shall not provide for use on ballots any pen that creates marks that are visible on the reverse side of the paper ballot or that otherwise may damage or cause a ballot to be spoiled.”

Sen. J.D. Mesnard (R-Chandler) wants the hand count of the votes from precincts or vote centers, comparing what the machines tallied with what humans have determined are the votes to be increased from 2% to 5%. He also wants to allow anyone with enough money to cover the costs to demand a full recount of any election. Now, the only way that happens is if the margin of victory falls within certain margins, like 200 votes for a statewide race.

Legislators proposed to abolish the permanent early voting list, which 3.2 million of the state’s voters use to get their ballots in the mail for each election, and to require anyone voting by mail get their ballot notarized. Rep. Kevin Payne (R-Peoria) sponsoring both bills, said he wants changes to state election laws this year and argued the latter proposal in particular is meant to improve election security.

Payne has also introduced House Bill 2369 would require attestation by a notary that the person whose name is on the envelope was in fact the person who signed it.

House Bill 2054 would require the Secretary of State to compare names of those who have died to the voter rolls on an annual basis. Current law requires the counties to make the comparison once a month. The bill was taken up Wednesday by the House Government and Elections Committee. The bill passed on an 8-5 vote. Democrats said it was unnecessary because the law already requires the month check. The proposal still must be approved by the full House and Senate.

California: Senate Bill 29, written by Sen. Tom Umberg (D-Santa Ana), would continue universal vote by mail for another year, covering the special election for the 30th District state Senate seat vacated by new Los Angeles County Supervisor Holly Mitchell. It could also apply to a special election to fill San Diego Democratic Assemblywoman Shirley Weber’s seat, if she is confirmed as secretary of state, and a potential recall campaign against Gov. Gavin Newsom. “Special elections and off-year elections are notoriously low in terms of turnout,” Umberg said. “I think this should help turnout by making sure everybody has access to a ballot.”

Assembly Bill 37, written by Assemblyman Marc Berman (D-Menlo Park), would make universal vote by mail a permanent feature of California elections. Weber has said she would support the change as secretary of state. A handful of Republicans supported making the change last year, but it’s unclear how many would back an ongoing expansion of mail voting.

SB 34 would create penalties for falsely labeling a voting location or drop box as “official.”

AB 53 would make Election Day a state holiday and avoid added costs by replacing the President’s Day holiday with Election Day in even years.

Georgia: Democratic lawmakers have filed legislation that would reinstate voting rights to Georgians who have been convicted of a felony. The bill’s sponsor, state Rep. Josh McLaurin (D-Atlanta), said the current law is rooted in racism. Under the Georgia Constitution, those who have been convicted of a “felony involving moral turpitude” can’t be registered to vote until their sentences are completed, including the completion of any probation, parole and payment of any fines. But the state hasn’t defined which felonies involve “moral turpitude,” and election officials interpret the state constitution to mean that all felonies limit voting rights.

A bill introduced in the Georgia House would stop organizations from donating money to help run elections after a group backed by Facebook founder Mark Zuckerberg gave millions of dollars last year. State Rep. Joseph Gullett (R-Dallas), said taxpayers and their governments should fund elections administration, not nonprofit groups. Gullett introduced his legislation after the Center for Tech and Civic Life awarded grants to several county election offices in Georgia.

Illinois: The vote-by-mail bill, which passed the Senate by a vote of 40-18, would have made permanent some changes that were implemented in response to the pandemic for the 2020 general election. This would have included the use of drop-box sites to collect ballots without postage and curbside voting during early voting or on Election Day. It also would have required the State Board of Elections to provide guidance, rather than rules, for securing collection sites. Neither bill was taken up for a vote by the full House on Wednesday.

Indiana: State Representative Vernon G. Smith (D-Gary) announced this week that he introduced a bill during the 2021 legislative session that would permit same-day voter registration. The bill, HB 1301 would allow voters to register at the polls on the day of an election, providing they have not voted elsewhere and show an ID and proof of residence. “We need to begin removing the harmful barriers that discourage people from exercising their right to vote,” Smith said. “There is strong evidence that same-day registration increases voter turnout. The more people we have participating in our democratic process, the better.”

Kentucky: State lawmakers this month approved and sent to Gov. Beshear (D) a bill that would take authority for deciding the “manner” of an election away from the governor and secretary of state in emergencies and give it to lawmakers. Beshear announced late Monday that he has vetoed it. The changes in elections law were contained in Senate Bill 1. The measure also limits the governor’s emergency executive orders, such as those requiring face coverings to be worn in public, to 30 days unless extended by the legislature. It also says the governor needs approval from the attorney general to suspend a state law by executive order in an emergency, a provision Beshear says is unconstitutional. Quietly added to the bill in a Senate committee was the provision preventing the governor or secretary of state from changing election policies during an emergency.

Massachusetts: With more than a million Massachusetts voters submitting ballots by mail in the November election, state Sen. Becca Rausch (D-Needham), believes it’s time to make vote-by-mail permanent. Last week she filed a bill called the MAIL-In Voting Act to do just that. “The bill is a new piece of legislation to retain and expand the vote-by-mail system that was implemented last year in response to the COVID-19 pandemic,” Rausch said in a press release. One of the main provisions of Rausch’s bill allows voters to become permanent mail voters at the time of registration, which means they would automatically get a ballot for every eligible election. Another would allow ballots postmarked by Election Day for primaries and general elections to be counted if received within 10 days thereafter. It would allow vote by mail in municipal elections. And it would allow communities to opt out of providing police details at polling places and would require employers to provide two hours of paid leave for employees for the purpose of casting a vote in person or by mail.

Nebraska: A Nebraska bill aims to change when early voting ballots can be sent out to voters. State Sen. Mike Groene introduced a measure that would shorten the time ballots can be delivered to voters from 35 days to 20 days before a primary or general election. The bill would also shorten the time frame when an absentee voter can pick-up a ballot in-person from their election commission office from 30 to 15 days. The measure was introduced Wednesday.

New Jersey: The Senate State Government Committee pulled a bill that would have allowed county election boards to decide the placement of all ballot drop boxes after an advocate voiced concerns that the bill did nothing to prevent unequal placements. The measure, sponsored by Senate State Government Committee Chairman James Beach (D-Voorhees), would eliminate provisions requiring drop boxes be installed at certain locations, like county clerk offices and colleges campuses, instead allowing election boards to decide drop box placement through a majority vote.

The Senate State Government, Wagering, Tourism and Historic Preservation Committee tabled bills that would establish in-person early voting and restrict access to legislators’ personal information Tuesday. Both bills were pulled before the committee meeting began. The Assembly Appropriations Committee tabled an identical early voting bill last week.

New York: After three years in legislative limbo, Democrats in the state Senate have passed a bill giving state residents a way to track their absentee ballots. S.1028, sponsored by Sen. Leroy Comrie (D-Queens), was approved in a 43-20 party-line vote. The legislation amends the state Election Law to require the state Board of Elections to provide a secure website where New Yorkers can track an absentee ballot from the moment the original request is received, approved, mailed or delivered to the voter, received a completed ballot back, opportunities to cure and the actual counting of the vote. While the website would be run through the state Board of Elections, it will require data to be sent from local Boards of Election in order to function. County Board of Elections and the New York City Board of Elections will be allowed to establish absentee ballot tracking systems of their own accord, if desired. Tracking information would only be available for individual voters to track their own ballot.

Oklahoma: Sen. Julia Kirt filed a trio of election bills to boost voter registration and participation in the state. Senate Bill 103 would allow absentee voters who are unable to vote in person because of physical incapacity, or their designee, to hand-deliver their sealed ballot to their county election board. Currently, absentee ballots for these groups can only be accepted via mail. SB 205 would implement a process for automatic voter registration when an eligible voter gets a state driver’s license or ID, building on the partnership of the State Election Board and the Department of Public Safety (DPS) for verifying individuals. The measure would direct DPS to provide electronic records of each person who is a qualified voter, or who will be a qualified voter within the next two years. The final bill, SB 77, would require the State Election Board to establish a website to allow Oklahomans to register to vote online by Dec. 31, 2021. Kirt ran the measure during the 2020 legislative session, but it was put on hold due to the COVID-19 pandemic and shortened legislative session.

South Carolina: If a bill crafted by state Rep. Russell Fry (R-Surfside Beach), becomes law, county-level candidates who protest their partisan primary elections will have to head to Columbia to make their case. Fry’s bill would take away local political parties’ responsibilities for handling primary election protests for county-level partisan offices. Instead, it would give control of the process to state parties. Fry said his bill would create a standardized way of handling all partisan primary challenges at both the state and county level. He said the state party is better equipped to handle the primary protests since it already performs that function for state-level candidates. Fry added that some county parties don’t have the infrastructure and experience to handle the protests and follow the process required by state law.

Utah: HB12 would require county clerks work in conjunction with the state or local registrars via the lieutenant governor’s office to ensure that the certificate of death for a Utah resident is provided. Once a death certificate is issued, notification to county clerks must be done within five days. Once the clerk receives that death certificate, they have one day to remove the dead person’s name and information from the voter rolls. The bill outlines the process that would create a paper trail that can be audited to make sure all steps have been taken and all offices have complied.

Vermont: The bill, H. 48, moved quickly through the state House of Representatives and state Senate last week so that town and city clerks can prepare for Town Meeting Day, scheduled for Tuesday, March 2. The legislation allows cities, towns, school boards and other municipal boards to mail town meeting ballots to registered voters, or change the date of their town meetings so they can be held outdoors. It also allows for Brattleboro’s Representative Town Meeting to be held electronically. Gov. Phil Scott has signed a bill. Scott had sought a mandatory vote-by-mail strategy in the bill, saying it would do the most to protect Vermonters from exposure to COVID-19. The Legislature did not agree, saying that it wanted to leave that choice to cities and towns. In announcing the signing, Scott advocated for voting by mail.

Virginia: Del. Cia Price (D-95th District) has introduced the Voting Rights Act of Virginia, modernized update to the federal Voting Rights Act enacted in 1965, aimed at expanding and protecting the right to vote for all Virginians. The Voting Rights Act of Virginia: Requires that changes to local voting laws and regulations be advertised in advance for public comment and evaluated for their impact on Black, Indigenous, and people of color communities; Expands requirements for localities to provide voting materials in languages other than English; Ensures fair representation in local government; and Strengthens protections against voter threats and intimidation to ensure every voter can make their voice heard safely.

The House of Delegates passed a bill to maintain various changes to election law that made it safer to vote during the coronavirus pandemic. If passed by the Senate, the bill sponsored by Del. Schuyler VanValkenburg (D-Henrico) would continue pre-paid postage and codify designated ‘drop boxes’ for absentee ballots. It would also establish a process allowing voters to ‘cure’ errors to mail-in ballots. Previously, VanValkenburg said many of these votes would’ve been discarded. These measures were among those approved temporarily by the General Assembly in 2020.

A bill to ban guns at polling locations in Virginia advanced in the General Assembly. The proposed legislation would prohibit firearms within 40 feet of polling sites, electoral board meetings and places where ballots are being counted. It includes exemptions for certain groups, including law enforcement and those whose homes fall within the gun-free zone. Del. Mark Levine (D-Alexandria), the bill’s chief sponsor, said the alleged plot by two armed Virginia men to attack a vote-counting operation in Pennsylvania underscored the need for change.

Washington: Washingtonians would be automatically eligible to vote after they are released from incarceration under a bill that was introduced in the state House last week. If passed, an estimated 10,000 people in Washington would immediately regain their right to vote, the bill sponsors say. As the law currently stands, those convicted of felonies are not immediately eligible to vote when they are released back into their communities. However, they can regain voting rights on an individual basis, either provisionally or permanently. If people violate the terms of their parole or fail to pay legal financial obligations, their voting rights can be revoked. Introduced at a public hearing last week, HB 1078 would replace the current process with one where voter eligibility is automatically restored upon the completion of one’s sentence. The bill would not grant currently incarcerated people the right to vote.

Legal Updates

California: On Monday, Jan. 4, Primary Law Group, P.C., and co-counsel, Tyler & Bursch, LLP, filed a Complaint for Declaratory and Injunctive Relief in the U. S. District Court, Central District of California against multiple California state officials and 13 county registrar of voters, on behalf of Election Integrity Project California (EIPCa) and 10 California Congressional candidates. The suit alleges, among other things that: “The expansion of vote-by-mail ballots and the changes in the law to send vote-by-mail ballots to all registered voters created a process where known ineligible voters (including deceased persons, non-citizens and non-residents) were sent live ballots.”

Georgia: GOP attorney Sidney Powell withdrew her lawsuit in the U.S. Supreme Court challenging Georgia’s election results this week, her second to be voluntarily dismissed, as the legal campaign to overturn President Donald Trump’s election loss has petered out in the waning days of his term. Powell and the other attorneys on the case submitted a stipulation of dismissal to the U.S. Supreme Court, saying the plaintiffs “respectfully request that this case be dismissed.” The lawsuit sought to overturn Georgia’s election results and made baseless claims about election fraud involving Dominion voting machines; it was struck down in district court for lack of standing and being brought too late.

Illinois: It may now be 2021, but the legal battle over the 2018 race for sheriff in Macon County continues. At a hearing held this week, a large portion hearing in Macon County Circuit Court into the contested 2018 race was spent probing the history of those found votes. Incumbent Sheriff Tony Brown had originally been declared the winner by 19,655 votes to the 19,654 awarded to his challenger and fellow officer, Lt. Jim Root. The two extra votes, found stuck in a voting machine, had been cast for Root. Root’s challenge to overturn the result is being heard by Champaign County Circuit Court Judge Anna M. Benjamin and she was told by Brown’s lawyer, Chris Sherer, that the found votes had not been handled properly. As their security could not be vouched for, they had to be thrown out. Benjamin rejected that argument, and eventually agreed they would be taken into evidence in the case without her deciding, yet, whether they could count. According to the Herald & Review, part of the problem with the lost and found ballots is their strange history. The election judge who discovered them uncounted in a voting machine in Forsyth had flagged them. They were put in an envelope that ended up on now retired Macon County Clerk Stephen Bean’s desk; but Bean said they turned up there two days after the election when he found them there after returning from lunch. Bean testified he tried to find out about what happened to them, didn’t get very far, and locked them in a vault and forgot about them. Weeks later, when the election results were finalized and the contest was decided by one vote, he remembered the ballots in the vault and said he felt sick. He was taken so ill he ended up going to hospital believing he was having a heart attack as the stress consumed him. “It just freaked me out,” he told the court.

Nebraska: Lancaster County District Judge Lori Maret has upheld the constitutionality of the law requiring election commissioners in Lancaster, Douglas and Sarpy counties to be appointed to their posts rather than elected, as they are in most other counties in Nebraska. “The Court, places great weight on the fact that for more than a century the Legislature, the executive officers, and the residents of counties with election commissioners have acquiesced in the appointment of election officials,” Lancaster County District Judge Lori Maret wrote in a 14-page decision. The ruling ran counter to a nonbinding 2019 opinion by the Nebraska Attorney General’s Office, which had called the law, which says the governor shall appoint election commissioners in counties of more than 100,000 people, “constitutionally suspect.”

New Mexico: A Bernalillo County man is suing Secretary of State Maggie Toulouse Oliver over rules regarding special elections he says discriminate against candidates not affiliated with a major political party. J. Edward Hollington’s complaint, filed in state District Court, references a special election that will be needed to fill Congresswoman Deb Haaland’s seat if she is confirmed as secretary of the interior. The complaint says candidates who aren’t Democrats, Republicans or Libertarians face a much tougher time getting their names on the ballot than affiliated candidates because of the way the state’s elections are run. Due to eligibility issues that could arise with the signatures, the lawsuit says, candidates seeking to be assured a place on the ballot would realistically need to gather two to three times that number in a 21-to- 35-day time frame following the announcement of a special election. “The special election regime described above imposes an unequal burden on and discriminates against independent candidates and voters,” Hollington’s attorney, Kenneth H. Stalter, wrote in the complaint.

North Carolina: Amy Simpson, the former senior deputy director of the Rockingham County Board of Elections, recently filed a federal lawsuit against the board and two of its members, alleging they violated her First Amendment rights and state law by firing her. In Simpson’s complaint, made by her attorney Walter Horton of Winston-Salem in U.S. District Court for the Middle District of North Carolina, Simpson alleges she was wrongfully terminated after board members Toni Reece and Bonnie Purgason acted to have her ousted based on a private conversation Simpson had with her doctor about placement of a sign outside his office. Simpson, who is seeking a jury trial, asks in the lawsuit for $100,000 in punitive damages, both from the board and from Reece and Purgason, $25,000 in compensatory wages for time she performed the duties of interim elections board director, reinstatement as senior deputy director of the elections board, and further damages to be awarded at the discretion of a jury, including legal costs.

Washington: A lawsuit filed by Loren Culp’s campaign for governor against Washington Secretary of State Kim Wyman and select county auditors has been dismissed, according to a news release from the secretary of state’s office. Culp had demanded an audit of Washington’s 2020 General Election. However, Culp’s campaign withdrew the lawsuit on Thursday, state officials said. According to the release, a notice of dismissal was filed “with prejudice,” which officials said means the lawsuit cannot be refiled. “These unsubstantiated allegations were without merit and created confusion among Washington voters,” Wyman said. “Today we finally have an opportunity to shed light on some of the misleading and inaccurate assumptions made in this lawsuit and can continue working to restore confidence with a swath of Washington’s electorate.”

NYC Wins When Everyone Can Vote! Michael H. Drucker

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