Legislative Updates
Federal Legislation: Democratic Reps. Susan Wild of Pennsylvania and Nikema Williams of Georgia have introduced the Stay in Line to Vote Act. The Stay in Line to Vote Act prohibit states from restricting a person from providing food or drink to individuals at a polling place in an election for Federal office, and for other purposes. The bill has 10 co-sponsors.
Arizona: Gov. Doug Ducey (R) signed legislation banning the use of private funding for elections but said the money the state received last year from organizations with funding from Facebook founder Mark Zuckerberg’s foundation was helpful and used with “integrity.” But the governor said election officials should not be forced to rely on private grants for voter outreach, staffing or other expenses in the future. While he said nothing in the new law should be interpreted as a sign the state is unappreciative, the bill is needed to preserve the integrity of and voter confidence in elections. “With public confidence in our elections in peril, it’s clear our elections must be pristine and above reproach — and the sole purview of government,” Ducey said in a signing letter. Republicans who control the Legislature voted for the measure, with some questioning how county officials used the money. Democrats warned the measure could starve election offices of the funds needed to run secure and efficient elections because lawmakers consistently underfund state and county elections operations.
Ducey vetoed a bill that would have given the secretary of state control of an online voter registration system that is currently managed by the Arizona Department of Transportation. In explaining his first veto of the year, Ducey said Arizonans recognize and appreciate the website developed by ADOT, and transferring control to the state’s top election official would remove checks and balances from the system. The bill would have taken affect in 2023, after the end of Democrat Katie Hobbs’ term as secretary of state. Hobbs supported HB2360, which was sponsored by Republican Rep. John Kavanagh. The measure would have required Hobbs’ successor to work with a committee of county recorders to run the website.
Arkansas: The House State Agencies and Government Affairs committee approved Senate Bill 486 by Sen. Ken Hammer (R-Benton) targets the volunteer groups of young people who traveled among polling places last November with boxes of bottled water and chips. Hammer said candidates cannot go within 100 feet of polling locations, and other groups shouldn’t be allowed to, either. He suggested t-shirts worn by these refreshment fairies might be political in nature and aimed at influencing votes. The full House approved the bill 74-23.
A bill that would implement stricter scrutiny of absentee voting applications in Arkansas has received final legislative approval and is heading to the governor’s desk. The Senate, by a vote of 27-8 on Tuesday, passed House Bill 1715. It would change several aspects of absentee voting in the state, including banning county clerks or other designated election officials from distributing absentee ballot applications or ballots to voters who had not requested them. The bill would also require the creation and approval of a uniform voter statement by the State Board of Election Commissioners. Another part of the legislation would require election officials to verify the signatures of a voter’s absentee ballot application with their voter registration application. If the signatures do not match, an absentee ballot would not be mailed.
SB 485 a bill that would eliminate early voting in Arkansas on the Monday before an Election Day has failed in a Senate committee for a second time. During a voice vote, members of the Senate State Agencies & Governmental Affairs Committee did not have enough yes votes to advance Senate Bill 485. It would eliminate all early voting in Arkansas on the day before both a preferential primary or general election day. Though the bill failed again, the chair of the committee, Sen. Jason Rapert, R-Conway, said the bill’s sponsor could bring the bill back to the committee in another attempt to pass it.
The Senate State Agencies & Governmental Affairs Committee oted to advance House Bill 1517, which would allow for online voter registration in Arkansas. The bill would create the “Voter Integrity and Voter Registration Modernization Act of 2021,” requiring the Secretary of State to prepare and administer electronic voter registration application forms. The system would be available to users for free. In order to be eligible to vote, the online registration must be completed at least 30 days before the date of the election. Applicants would be required to provide a current valid driver’s license number or the last four digits of their Social Security number.
Other bills still moving through the Legislature include: SB 556 to allow the takeover of Arkansas election in cities of populations over 50,000 by the state Election Commission for undefined emergency reasons. SB 557 to transfer supervision of elections from full-time, trained county employees to partisan, part-time election commissioners. SB 644 to establish a legislative committee with investigative powers into local elections, and further shifts authority from local officials to state legislators with a personal stake in the election outcomes. HB 1112, now Act 249, that eliminates the voter ID verification statement option for voting, for those without current photo ID.
California: The Senate Committee on Elections and Constitutional Amendments has approved SB 583, the Secure Voter Verification and Enrollment, authored by Senator Josh Newman (D-Fullerton), passed by a 3-2 vote. The legislation will create an AVR system in which adults who have provided proof of U.S. citizenship during a DMV transaction will have their information provided automatically to the Secretary of State. Citizens who do not wish to register to vote may opt-out. California began modernizing the voter registration system in 2018 with upgrades that expanded voter registration through an opt-in system. SB 583 will expand voter registration by developing and deploying an automated process for registering eligible voters through the DMV, while also providing enhanced protections for people who are ineligible to register.
Florida: A controversial elections bill focused largely on the state’s vote-by-mail process underwent an overhaul in the Florida House, but critics say it still poses unnecessary barriers to voters. The revamped proposal, which addresses issues such as the use of mail-in ballot drop boxes and signature verification, relaxes some restrictions included in an earlier version of the bill. Under the proposal approved Thursday by the House Appropriations Committee, supervisors could continue to use drop boxes at their offices if they are “continuously monitored in person” during regular office hours. Those drop boxes could be made available after hours only if they are “secured from tampering and monitored by video surveillance.” Copies of the videos would have to be provided to candidates or political parties within 24 hours of requests. The House plan (HB 7041) would allow drop boxes to be used at other locations, but only during early voting hours. The boxes would have to be staffed by supervisors’ employees. The measure, sponsored by Spring Hill Republican Blaise Ingoglia, also would require supervisors of elections to designate drop boxes at least 30 days before elections and prohibit officials from changing or moving the boxes after they’ve been designated. Contents of the boxes would have to be emptied and returned to supervisors’ offices daily. Voters who want to submit ballots at drop boxes would have to show proof of identification or sign an “attestation” saying they did not have identification with them. The revised House bill would subject supervisors to a $25,000 civil penalty if drop boxes are available when early voting is not underway.
The Senate Rules Committee debated, but did not vote on SB90 this week. The bill (SB 90) would, among other things, curtail elections supervisors’ use of ballot drop boxes; change the process for verifying mail-in ballot signatures; and make it more difficult for voters to change registrations. The plan could also have an impact on hundreds of thousands of Floridians who registered to vote when they received their driver’s licenses or state identification cards. Senate sponsor Dennis Baxley, R-Ocala, argued the changes are needed to protect against vote-by-mail fraud but acknowledged that Florida’s elections last year ran smoothly and that no evidence of fraud exists. But Leon County Supervisor of Elections Mark Earley told the committee that several provisions in Baxley’s bill are problematic, including a section that addresses the duplication of mail-in ballots that are damaged or unreadable by tabulation equipment. Under the proposal, elections supervisors would be required to allow observers “to stand in close enough proximity to observe the duplication of ballots in such a way that the observer is able to see the marking on each ballot and the duplication taking place.” But Earley said the provision raised serious concerns for the Florida Elections Supervisors association because of space issues and because it could allow dozens of people to be close enough to see personal identifying information about a voters’ secret ballots. The provision “presents very grave security” issues, Earley said. But Baxley said supervisors will have to figure out a way to cope.
Georgia: The Fulton County Commission has decided to begin the process of legally challenging the state on Senate Bill 202. The “Stop Voter Suppression” resolution was adopted 4 to 2. The resolution directs the county attorney to provide legal methods the county could use to fight the implementation of the bill, along with other measures. Several provisions of SB 202 re aimed at how Fulton County conducts its elections.
Hawaii: The House has approved Senate Bill 159 that would make voter registration part of the application process for a driver’s license. The measure was approved with one lone vote against it. The bill now returns to the Senate and will likely head to conference committee to resolve differences between the House and Senate amendments. The most significant discrepancy between the two lies in specific language whether one would be required to opt into or opt out of registering to vote. Under the Senate’s proposal, a qualified applicant would automatically be registered to vote upon completion of the license/identification card application unless affirmatively declining registration; under the House’s proposal, one would not be registered to vote until they’ve made the choice to register.
Indiana: Senate Bill 353 adds identification requirements to vote by mail and limits who can alter how elections are held will head to the House floor for a full vote, but with significant changes. Two of the bill’s provisions — which would have prevented the election commission and governor from ever expanding vote-by-mail or changing the time, place or manner of an election — were removed entirely by a bi-partisan vote. The bill’s requirements that voters provide an identification number when applying for an absentee ballot now only applies to online applications.
Kansas: The House has approved House Bill 2183, opposed by voting rights activists, would restrict the number of advance ballots an individual may deliver on behalf of others to a maximum of 10, loosened from five in negotiations. In addition, the measure would remove the authority of the secretary of state to extend the deadline for receiving mail ballots. The bill also bans candidates from assisting neighbors, friends or family with their ballots. Senators passed the bill 27 to 11, and within an hour, the House followed suit, 80 to 42.
House Bill 2332, the second election bill considered late last week, passed in the House 83 to 38 and in the Senate 27 to 11. The bill would amend the law regarding advanced voting ballot applications and require every county election officer to keep the residential and mailing address for each registered voter if they differ.
Maine: Three Republican-backed bills that would require Maine voters to show a photo ID before casting ballots were voted down along party lines by a key legislative committee Wednesday. The measures were defeated on 8-5 votes, with majority Democrats on the Legislature’s Veterans and Legal Affairs Committee united in opposition. All would have required a photo ID, but they differed in details such as the kinds of photo IDs that could be used. The three bills, which go to the full Legislature for votes later this year, come as Republican-controlled legislatures across the U.S. are pushing for changes to voting laws that critics say will strip or erode voting rights for minorities, the elderly and the impoverished. The committee also rejected an amendment to one of the bills that would have required voters to show an identification document acceptable as proof of residence for voter registration. This could include documents that do not bear a photo of the voter, such as a utility bill. A fourth bill, L.D. 1099, was rejected unanimously by the committee. It would not only require photo identification at the polls, but would also strip voting rights from incarcerated Mainers.
Maryland: Two bills that expand voter access became law without Gov. Larry Hogan’s signature. Senate Bill 683 will require a local board of elections to designate the locations of ballot drop boxes in accordance with certain factors; requiring each local board to submit proposed ballot drop box locations to the State Administrator of Elections; requiring a local board to ensure the security of ballot drop boxes; requiring that certain guidelines for absentee voting established by the State Board provide for a permanent absentee ballot list; prohibiting canvassing, electioneering, or posting campaign material on a ballot drop box; etc. House Bill 745 will alter the number of early voting centers counties are required to establish; clarifying the process by which one additional early voting center may be established in a county in excess of the number of required to be established; and requiring a local board of elections, in determining the location of centers, to take into account the accessibility of centers to historically disenfranchised communities, proximity to dense concentrations of voters, accessibility by public transportation, and equitable distribution of centers in the county. Also approved was a bill that would allow Marylanders to opt-in to a permanent vote by mail list.
Missouri: The House Elections and Elected Officials Committee approved by a party-line vote of 7-2 a proposal by Rep. Curtis Trent (R-Springfield), clarifying only citizens older than 18 can vote in the state. Opponents have argued the measure is redundant and meant to confuse voters or stoke anti-immigrant fears. Some lawmakers on the committee argued local governments in other states have allowed certain noncitizens to vote in local elections and said they want to prevent Missouri cities from doing the same.
Montana: Senate Bill 170, was signed into law by Governor Greg Gianforte this week. The new law will require annual voter registration list maintenance, while previous maintenance was held only in odd-numbered years. Annual maintenance of the voter list will reduce the cost for taxpayers, lawmakers said, while also improving efficiency for election administrators. The bill, sponsored by Senator Doug Kary (R, SD-22) was requested by Secretary of State Christi Jacobsen.
The Senate voted down a bill that would have restricted absentee ballot collection, with some Republicans joining Democrats who opposed the measure as creating an unnecessary barrier for mail-in voting. House Bill 406 sought to outlaw a practice commonly used by get-out-the-vote groups, in which organizations submit mail-in ballots collected from voters. Under the measure, voters could have still let family members and legal guardians submit their ballots for them, but they would have been be required to enter their personal information into a state registry subject to public information laws. Sen. Bryce Bennett, D-Missoula, pointed out that an amendment added to the bill Friday by a Senate panel went further than just prohibiting get-out-the-vote groups from collecting voters’ ballots. Caregivers for voters with disabilities, limited mobility or medical problems would also be prohibited from turning in those ballots. “This bill is not just unconstitutional, as I’m sure the courts will find. It’s just cruel,” Bennett said. The bill failed on a 23-27 vote on second reading, with eight Republicans joining all 19 Democrats in voting against it.
Nevada: Voting Right Advocates are voicing support for a measure that would expand automatic voter registration in Nevada. Eligible residents are automatically registered to vote whenever they make a transaction at the DMV, unless they opt out. AB432 would fold more state agencies into the process by allowing the Department of Health and Human Services to register people through Medicaid or the State Health Insurance Exchange.
New Hampshire: SB 43, a bill authorizing an audit of the Rockingham County District 7 state representative race, is now New Hampshire law. Gov. Chris Sununu signed the bill into law on Monday saying, while the state’s elections were safe and secure, the bill would get to the bottom of what happened in Windham during the November 2020 general election. The bill allows for a full audit of New Hampshire’s AccuVote optical scanning machines, memory cards, ballots, and other evidence from the Windham election.
Bills requiring verifiable photo IDs for all people registering to vote and for some who mail in requests for absentee ballots were passed by the House. House Bill 292 would require voters applying by mail for an absentee ballot to include a copy of a photo ID if they are asking their city or town clerk to return the absentee ballot to them at an address other than the address on file with the city or town as their domicile. Another option under the bill would be to have the signature on their application notarized. The bill passed the House on a roll call of 198-174. House Bill 523 would require a person who registers to vote on Election Day but does not have a photo ID to have his or her photograph taken at the polling place. The bill would do away with a religious exemption that currently allows some people who do not show a photo ID to register without having their photo taken. It passed the House on a vote of 197-172.
New Jersey: A-5375 has been signed into law by Gov. Phil Murphy. The new law will allow county boards of elections to relocate drop boxes if they are within 2,000 feet of another box – regardless of existing criteria regarding placement. Members of a county’s Board of Elections would determine the new location, which must be within the same municipality as it was originally located. “It is not fair for some New Jersey residents to have to trek miles to drop their ballot off while other residents have multiple boxes to choose from within just blocks of each other,” said Assemblyman Moen (D-Camden, Gloucester). “Rather than spending taxpayer money on entirely new boxes, this law will permit county boards of elections to better allocate the resources they already have. Allowing them to determine better locations for boxes that are unnecessarily close together will help give more voters equal access to these secure receptacles.”
Pennsylvania: Two bills from a Bucks County state senator could give voters more access to mail-in ballot drop boxes across the state and counties more time to prepare those ballots for the final Election Day tally. Sen. Steve Santarsiero, D-10, of Lower Makefield, introduced the Safe Drop Act on Tuesday requiring at least one ballot drop box for every 20,000 residents. An upcoming bill to be introduced in the coming week would change state law from limiting a county’s precanvassing start time to 7 a.m. on Election Day, to up to 20 days beforehand. Santarsiero said the bills would help ensure mail-in ballots are returned to a respective voter’s local election board in a timely fashion and strengthen public trust in the vote-counting process.
Texas: In a party-line vote, the House Elections Committee approved a key Republican voting bill, sending the measure to the full House, where a vigorous floor debate is expected. House Bill 6 was approved without discussion, a common practice on committee votes. HB 6 would: Bar election officials from removing poll watchers, who typically represent a political party or candidate, from polling places except for crimes “related to the conduct of the election.”; Create new crimes for election officials who turn away poll watchers or obstruct the view of poll watchers; Require people who help voters fill out a ballot to submit a document listing their name, address, relationship to the voter, reason the help was necessary and what help was provided; Ban getting paid, or offering compensation, for depositing mail-in ballots or helping voters fill out an absentee ballot; Beef up criminal penalties for election fraud; Make it a state crime to vote in Texas and in another state on the same day; Create a new crime for “vote harvesting,” defined as interacting with one or more voter in connection with a ballot, a vote-by-mail ballot or an application to vote by mail with the intention “to deliver votes for a specific candidate or measure;” Prohibit local officials from sending out vote-by-mail applications unless requested by a specific voter; Create an expedited court process for complaints of election or voting impropriety before election day; and Speed the distribution of death certificates to local and state voting officials.
Senate Bill 598, authored by Sen. Lois Kolkhorst, has been approved by the Senate. The bill requires a voter-verifiable paper audit trail for all elections systems. The bill also prohibits any voting system from being connected to the internet and includes a risk limiting audit to ensure the accuracy of voting systems, according to the news release. “In 2005, I filed one of the first bills calling for a paper ballot trail to combat election fraud,” said Kolkhorst, R-Brenham. “After many visits with so many concerned constituents and years of efforts I am glad to see this through. Elections are the bedrock of our republic and ensuring that our elections are conducted to the highest standards possible is a must.” The measure will now be sent to the Republican-led House.
HB 1264, from Rep. Keith Bell (R-Forney) has been approved by the House and now moves to the Senate. The bill would expedite when a deceased person is removed from the voter rolls.
Wisconsin: The Senate has approved several bills that would alter the state’s election laws even though Democratic Gov. Tony Evers has made clear he is unlikely to approve them. n a voice vote, the Senate approved Senate Bill 207, which would prohibit the state and local governments from accepting donations from private groups to help run their elections. The legislation is in response to the Center for Tech and Civic Life giving millions of dollars to more than 200 Wisconsin municipalities to help them run last year’s elections. Together, the state’s five largest cities received $6.3 million from the group. Senate Republicans signed off on Senate Bill 210, which would allow election observers to sit or stand within three feet from the table where voters tell poll workers their names and addresses. Now, they are not allowed to be within three feet of the table but cannot be told to stay more than eight feet away from the table. The Senate on a voice vote passed Senate Bill 208, which would require the state Elections Commission to post its meeting minutes on its website within 48 hours of each meeting. The election measures now go to the Republican-controlled Assembly, which could take them up in coming weeks. Evers has said he is likely to veto their plans.
Legal Updates
Federal Lawsuits: Fox News has hired two high-profile defense attorneys to combat a $1.6 billion lawsuit filed against it by voting technology company Dominion. The media outlet disclosed in a court filing that it had hired Charles Babcock and Scott Keller for its defense. Fox News confirmed the hirings to The Hill. Babcock currently works at the Texas law firm Jackson Walker. Keller, of the Texas law firm Lehotsky Keller LLP, has argued several cases in front of the Supreme Court and served as Texas’s solicitor general. Babcock and Keller are joining Valerie Caras, Blake Rohrbacher and Katharine Mowery, who are all currently listed in court filings as Fox News’s defense attorneys.
Smartmatic said that Fox News cannot get a “Get Out Of Jail Free Card” to escape a $2.7 billion defamation lawsuit, in which the company says that the network ruined its reputation when on-air personalities spread conspiracy theories and falsehoods about its role in the 2020 presidential election. “The Fox Defendants solicited and published calculated falsehoods about Smartmatic,” the company’s legal team said in a brief filed late on Monday in New York Supreme Court (read it here). “They enjoy no protection or immunity pursuant to the First Amendment or New York law.” Fox News and three on-air personalities, Maria Bartiromo, Jeanine Pirro and Lou Dobbs, are seeking to dismiss the lawsuit, which Smartmatic filed in February.
Michigan: Thirteenth Circuit Court Chief Judge Kevin Elsenheimer characterized subpoenas filed by a plaintiff’s attorney in an Antrim County lawsuit as a “fishing expedition,” as he ruled clerks in four Michigan counties do not need to provide election data as part of discovery in the case. “The plaintiff must have more than mere conjecture, more than speculation, to support its request to discover information from these other counties,” Elsenheimer said in his ruling. The ruling is among the latest court action in an ongoing election-related lawsuit filed Nov. 23 by attorney Matthew DePerno, on behalf of a Central Lake Township man, Bill Bailey, who accuses the county of voter fraud and of violating his constitutional rights. “Without same, requiring non-parties to comply with requests like this would indeed be burdensome, would be tantamount to a fishing expedition,” Elsenheimer added, “and as I said, would be unnecessarily burdensome to the clerks.”
North Carolina: Lawyers are in court again this week over whether or not North Carolina’s voter ID law is constitutional. This is the state-level trial over the constitutionality of a 2018 voter ID law. There is also a separate lawsuit, over the same law, moving forward in federal courts. No elections have been held using voter ID since the law was passed in 2018; it was put on hold until this trial. The trial is expected to last multiple days. The first day included opening arguments from both the plaintiffs challenging the constitutionality of voter ID and the legislators who are defending it, and at least one witness for the plaintiffs. The trial is being livestreamed online, on the Wake County Superior Court page on YouTube, allowing anyone to watch. Unlike a normal trial, which has a single judge and usually a jury, this trial will have no jury and three judges. That’s how all constitutional cases are handled in North Carolina.
Ohio: The Ohio Supreme Court has laid out its calendar for hearing the Stark County Dominion voting machine dispute. There won’t be a ruling before the primary election on May 4 but Stark County Board of Election had hoped to buy the new voting machines in time for elections later this year. The elections board has until April 26 to file all its evidence and legal briefs. Stark County commissioners have until May 10 to file its briefs, then the BOE must respond by May 14. The Ohio Supreme court noted the clerk of court shall refuse to file any requests for a time extension. “Whether this case is heard quickly or on a normal timetable, we’re confident that the law and evidence support the position of the county commissioners. They have the ability and the duty to carefully review recommended expenditure to ensure taxpayers are getting the best value, The elections board filed the 69-page lawsuit in the Ohio Supreme Court, and a motion to expedite the case due to a “fast approaching election-related deadline of June 15, 2021.” The board is seeking an order from the Supreme Court directing county commissioners to acquire Dominion Voting Systems Image Cast X machines,” attorney Mark Weaver, who represents county commissioners, said.
Wisconsin: The Wisconsin Supreme Court ruled 5-2 that state election officials do not have to quickly take people off the voter rolls when they suspect they may have moved. The ruling means the Wisconsin Elections Commission will not force tens of thousands of people off the rolls near a major election, such as the 2022 contest for governor and U.S. Senate. The state law at the heart of the lawsuit over when to take voters off the rolls does not apply to the Elections Commission, the majority concluded. “There is no credible argument that it does,” Justice Brian Hagedorn wrote for the majority. Joining Hagedorn in the majority were conservative Chief Justice Patience Roggensack and liberal Justices Rebecca Dallet, Jill Karofsky and Ann Walsh Bradley. The lawsuit over the voter rolls stretches back to 2019, when the bipartisan Elections Commission sent letters to about 232,000 voters who it believed might have moved. It asked them to register at a new address or confirm they had not moved. Three voters represented by the conservative Wisconsin Institute for Law & Liberty filed the case, arguing the state had to immediately take the voters off the rolls. The court’s ruling will affect how the commission acts in such matters in the future and could allow election officials to continue to take a year and a half to decide when to take voters off the rolls.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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