Thursday, January 7, 2021

Electionline Weekly January-7-2021

Legislative Updates

Federal Legislation: Rep. Julia Brownley (D- CA) introduced her first bill of the 117th Congress: the Same Day Registration Act, legislation that would require all states to allow same-day voter registration for all federal elections. Brownley’s legislation would require every state to enact same-day voter registration for all federal elections, similar to the process allowed in her home state of California. “Our democracy is strongest when it is reflective of the people it serves. Same-day voter registration is one of the most effective tools for increasing voter participation, which means better representation for everyday Americans.”

Alaska: The City and Borough of Juneau Assembly Human Resources Committee passed a motion asking the city clerk to flesh out thoughts around a hybrid election for the Oct. 6, 2021, municipal election. They declined to entertain a motion directing the clerk’s office to look beyond the next election. Since the Assembly doesn’t keep a standing elections committee, the Human Resources Committee became the starting point for the question. In late February or early March, the assembly’s Committee of the Whole will hear the results of the research and consider the possibilities for the upcoming election. City Clerk Beth McEwen asked the committee to weigh in with direction on the preferred process for future elections, noting that planning for the mayoral election slated for fall needs to begin by April. McEwen explained that a mail process elongates the election process, requiring earlier filing and taking longer to certify because Juneau doesn’t have equipment capable of locally counting votes cast by mail. She also said that the assembly had mentioned an interest in pursuing this track based on the successful 2020 municipal election.

Delaware: Legislation already introduced for the upcoming General Assembly session could change how Delawareans vote absentee. Lawmakers passed an amendment to Delaware’s constitution eliminating limitations on when voters can vote absentee last session. It must pass a second time by a two-thirds majority in this new session to be finalized, like any amendment to the state constitution. The change would strike the specific excuses currently needed to vote absentee, such as being away on vacation or having a physical disability, and direct the General Assembly to enact “general laws” providing the circumstances, rules, and procedures for absentee voting.

Louisiana: Louisiana appears on track to broaden the mail-in balloting options for spring municipal elections and two upcoming special congressional elections because of the coronavirus pandemic. The emergency plan easily won bipartisan support Tuesday from two key legislative committees, and Gov. John Bel Edwards announced his backing. The emergency rules offered by Ardoin caused none of the controversy that marked prior debates. Lawmakers on the House and Senate governmental affairs committees approved the recommendations without objection in separate hearings, advancing the proposal to the full Legislature for a decision. “With all the teeth-gnashing we did over the COVID ballot, relatively few people took advantage of it,” said Slidell Republican Sen. Sharon Hewitt, chair of the Senate committee. Fewer than 5,500 people out of the 2.1 million who voted in November used the COVID-19 excuses to cast ballots absentee by mail, Ardoin said. Across elections in July, August and December, the numbers were even smaller.

Maine: The Maine Legislature is poised to debate more than a dozen bills that could substantially change the way ballots are cast and counted in state elections. The voting bills range from requiring verification of absentee ballot signatures to establishing full online voting. Rep. Maureen Terry, D-Gorham, is the primary sponsor of a bill that would make Maine one of the first states to allow full online voting. Terry believes encryption technology is at a point where voters should be able to cast their ballots securely from their homes electronically. Rep. Heidi Sampson (R-Alfred), is one of several lawmakers who is sponsoring a bill seeking to make Maine’s absentee balloting system more secure and more private. Her bill would remove the voter’s party designation from a bar code that is printed on all envelopes that are used to return completed absentee ballots. Rep. Billy Bob Faulkingham (R-Winter Harbor), is proposing a bill that would have Maine adopt a system to verify absentee voter signatures, a practice required in a handful of states. Other bills would put into law temporary policies that were adopted last fall to help protect against the spread of COVID-19. Rep. Kyle Bailey (D-Gorham), is sponsoring legislation that codifies the drop boxes that many towns and cities installed for absentee ballots in last November’s election. Another bill offered by Bailey would codify an online absentee ballot tracking system that went into effect in 2020. Several other bills dealing with absentee ballots would expand the time allowed for early processing of ballots by local election officials or expand the period when a voter can apply for an absentee ballot.

Missouri: Two House members, Reps. Dan Stacy (R-Blue Springs) and Jered Taylor (R-Republic), along with Sen. Andrew Koenig (R-Manchester), have introduced Bills requiring voters to choose a party if they wish to vote in primaries. And anyone who wants to run for office in a particular party would have to be registered in that party for at least 23 weeks prior to the opening of filing for office. The proposals to limit nominating primaries to voters registered in a party would still allow independents to receive a non-partisan ballot for statutory and constitutional questions.

New Hampshire: A bipartisan group of lawmakers is seeking to fast-track a bill allowing towns to postpone their town meetings as far back as July, as concerns over the state of COVID-19 in March persist. The bill, Senate Bill 2, would allow towns or cities to push back town elections and annual meetings to the second Tuesday of April, May, June or even July. Those elections are typically held in March. The deliberative sessions ahead of those meetings could also be postponed. Town representatives would be required to announce the amended dates 14 days before the rescheduled date. The bill would also bring back several temporary changes to absentee voting implemented for the elections last year, and allow them to be applied to town meeting days. It would allow moderators of elections to partially process absentee ballots in the days ahead of Election Day, in this case Town Meeting day.

Utah: Rep. Dan Johnson (R-Logan), said the mistrust of mail-in voting being vocalized in many parts of the country led him to sponsor HB70 for the upcoming legislative session to require a ballot tracking system. The system would be optional for registered voters to sign up for, but would provide electronic notifications via email or text that their ballot was received and counted. Utah voters can already track their ballots by visiting once they’ve mailed it in. Johnson wants to give all registered voters the choice to streamline the process of verifying mail-in voting with auto-alerts when their ballots arrive at their county’s ballot center.

Vermont: The Joint Fiscal Committee voted unanimously to use some of the state’s remaining federal CARES Act money to help municipalities with postage and other expenses. The committee allocated $2 million to cover costs of vote by mail for Town Meeting Day. Vermont lawmakers are expected to pass legislation in coming days that will allow mail-in voting for Town Meeting Day on March 2, or postponement of voting, to mitigate the health risk associated with the COVID-19 pandemic. Mail-in voting in the November general election cost about $1.5 million in postage alone, with 440,000 active voters, Secretary of State Jim Condos told the panel. That includes postage to send the ballots, and the prepaid postage for voters to return the ballots. Condos expects it to cost municipalities, including cities and towns, sewer districts and school districts, at least that much. “You have solid waste districts out there, water/sewer districts out there, school districts that cross town lines,” Condos said. “There are districts that include several towns. If those towns don’t align their votes together (on a ballot), we could fast use that money up and not have enough to cover postage.”

Legal Updates

Arizona: The Arizona Supreme Court upheld a lower court decision dismissing the last in a series of challenges that sought to decertify Democrat Joe Biden’s victory in the state. The high court ruling is the second time the majority-Republican court has turned aside an appeal of a court loss by backers of Trump seeking to overturn the results of the election. In all, eight lawsuits challenging Biden’s Arizona win have failed. It comes the day before a divided Congress is set to certify Biden’s victory. Tuesday’s ruling from a four-judge panel of the high court agreed with a trial court judge in Pinal County that plaintiff Staci Burk lacked the right to contest the election. That’s because she wasn’t a registered voter at the time she filed her lawsuit, as required in state election contests. Both courts also agreed that she made her legal challenge too late, after the five-day period for filing such an action had passed.

The U.S. Supreme Court said it would hear oral arguments March 2 on an Arizona law that forbids anyone but a family member, household member or caregiver from turning in another person’s early ballot. The 9th U.S. Circuit Court of Appeals struck down Arizona’s ban on so-called “ballot harvesting” nearly a year ago, ruling that it violated the Voting Rights Act, disproportionately affects Black, Latino and Indigenous voters and was enacted with discriminatory intent. The court also struck down a state law disqualifying ballots cast in the wrong precinct.

In a brief filed in Maricopa County Superior Court Arizona Attorney General Mark Brnovich said the Senate had the authority to issue two subpoenas demanding the Maricopa County Board of Supervisors turn over election materials and machinery earlier this month. Brnovich’s brief, claims the supervisors misunderstood the scope of the Legislature’s sweeping authority to issue and enforce subpoenas. It contends the county’s position is “inconsistent with constitutional structure, governmental tradition and practice, the plain meaning of an Arizona statute, and binding Arizona Supreme Court case law.”

Illinois: Frank DiFranco, who ran as a Republican candidate for the 12th Cook County Subcircuit seat against incumbent Patricia Fallon, filed county and federal lawsuits on Dec. 30, claiming that election misconduct and over-counting of ballots resulted in his opponent winning the election. DiFranco is asking to be declared the winner of the election and is seeking monetary damages of more than $100,000. The federal lawsuit, which names the clerk’s office, Cook County Clerk Karen Yarbrough, the Illinois State Board of Elections and Fallon as defendants, alleges that the clerk’s office continued counting ballots after the Nov. 17 state deadline and that a “great majority” of these ballots favored his opponent. In his complaint, DiFranco also accuses the clerk’s office of “altering” the postmarks on vote-by-mail envelopes to make them “appear to have been postmarked on or before Nov. 3,” and claims the clerk’s office counted ballots that had already been counted, resulting in higher vote totals.

Michigan: The city of Detroit filed its request for a federal judge to impose sanctions against attorney Sidney Powell and other pro-Trump lawyers involved in the infamous “Kraken” election fraud lawsuit, as those involved in the president’s post election challenges begin to face calls for legal consequences from multiple angles. The 40-page motion requests that the “Kraken” lawyers “deserve the harshest sanctions” the court is empowered to order, including fines, a sweeping ban from practicing law in the Eastern District of Michigan and a referral to the state’s bar for grievance proceedings. The motion argues that the lawsuit, which hinges on debunked claims and crackpot witness testimony that the election’s voting machine system was manipulated in favor of President-elect Joe Biden, is “the quintessential example of a case filed for an improper purpose,” submitted with so many false allegations that “it is not possible to address them all in a single brief” and done so despite lawyers knowing that their complaint was “deficient.” Detroit is seeking sanctions under federal rule 11, which requires that lawyers must not make cases in court “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.”

Nevada: Former Attorney General Adam Laxalt has filed a lawsuit against Secretary of State Barbara Cegavske on behalf of several plaintiffs, including a former Republican legislator, over an alleged inability to keep noncitizens off the state’s list of registered voters. The lawsuit, which was filed last week in Carson City District Court names three conservative-aligned plaintiffs who say their votes were improperly diluted by an alleged failure to keep noncitizens from registering to vote in state elections. “The Secretary of State, by not verifying the citizenship of those on the voter rolls, is allowing the dilution and discount of Plaintiffs’ votes because noncitizens are on the voter rolls and have voted in the past,” the complaint states. “Thus, Plaintiffs’ right to participate in Nevada elections on an equal, undiluted basis has been infringed.”

New Jersey: Superior Court Judge Joseph Marczyk on Monday revoked the election of Democrat Thelma Witherspoon as District 3 Atlantic County Commissioner and ordered a new election be held to fill the position because the county clerk sent 554 voters the wrong vote-by-mail ballots — affecting only the District 3 race. “In short, there were sufficient legal votes rejected to change the results pursuant to (New Jersey law),” Marczyk wrote in explaining his decision. Witherspoon, of Hamilton Township, defeated Republican Andrew Parker, of Egg Harbor Township, 15,034 to 14,748. That’s a margin of just 286 votes, fewer than the number of people denied their right to vote in the race, the judge said. Marczyk said 335 ballots without the District 3 county commissioner race were sent to voters who lived in District 3, and only seven of them were replaced with corrected ballots.

Texas: Williamson County Sheriff Robert Chody, who lost his November bid for reelection while under criminal indictment, has filed a lawsuit against the winner, claiming there was election fraud. The lawsuit against Mike Gleason says there was an electronic glitch that caused voters in Leander to be given the wrong ballots on Election Day. It also says that Gleason and his wife were seen standing within Wi-Fi range of one of the Leander polling places for most of Election Day. Chody brought the suit in civil court. Neither he nor Williamson County prosecutors have brought criminal charges against Gleason or his wife in connection to any allegations of election fraud.

Wisconsin: U.S. District Judge James Boasberg rejected the underpinning of a lawsuit seeking to undo election results brought by two Wisconsin Republicans and others, writing that it was riddled with errors, unserious and brought in bad faith. “Courts are not instruments through which parties engage in such gamesmanship or symbolic political gestures,” he wrote. “As a result, at the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel.” His ruling denied a preliminary injunction that sought to undo the certifications of elections in Wisconsin and other battleground states that went to Democrat Joe Biden over President Donald Trump.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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