Thursday, May 20, 2021

Electionline Weekly May-20-2021

Legislative Updates Federal Legislation: The House Oversight and Reform Committee unanimously approved the 2021 Postal Reform Act after Republicans offered their support. Rep. James Comer (R-KY), co-authored the bill and emphasized at the markup it represented a compromise. Virtually all Republicans who spoke on the measure said they were supporting it despite their significant reservations. The core of the bill will shift more postal retirees to Medicare for their health care and require most postal workers to select postal-specific health care plans. It would take onerous payments toward health care benefits for future retirees off the agency’s balance sheets.

The committee passed another bill to boost tracking ballots sent through USPS and to provide all postal employees with paid parental leave, but did so without Republican support. Congress passed legislation last year to provide such leave to all civil servants, but it excluded postal workers. Republicans said the provision would add too heavy a financial burden to the mailing agency. Democrats also led the approval of amendments to block service standard changes and to provide $8 billion to USPS to electrify its fleet.

Sens. Joe Manchin (D-WV) and Lisa Murkowski (R-AK) are urging congressional leaders to advance a reauthorization of the Voting Rights Act that could garner bipartisan support. Manchin and Murkowski, sent a letter on Monday to Senate Majority Leader Charles Schumer (D-NY), Speaker Nancy Pelosi (D-CA-12th District), House Minority Leader Kevin McCarthy (R-CA, 23rd District) and Senate Minority Leader Mitch McConnell (R-KY) saying that they “must not allow” voting to become a partisan issue. “Inaction is not an option. Congress must come together – just as we have done time and again – to reaffirm our longstanding bipartisan commitment to free, accessible, and secure elections for all. We urge you to join us in calling for the bipartisan reauthorization of the Voting Rights Act through regular order. We can do this. We must do this,” they wrote in the letter. Congress last reauthorized the 1965 Voting Rights Act in 2006. But the Supreme Court, in 2013, gutted the law when it struck down the formula for determining if state and local governments were required to get Justice Department preclearance for voting and election changes, arguing that it was outdated. According to The Hill, while previous reauthorizations of the Voting Rights Act have gotten bipartisan support, the bill would likely face challenges getting the votes needed to defeat a filibuster in the Senate. Murkowski was the only GOP co-sponsor for the bill during the previous Congress. Manchin and Murkowski, in their letter, don’t specifically throw their support behind one bill in particular. “We reflect not just on the positive impact this legislation has had on individual Americans’ ability to exercise their most fundamental right – the right to vote – and the strength of our democracy writ large, but on the important work we still have to do to realize that promise of ensuring the right of all to vote,” they wrote.

Rep Bonnie Watson Coleman (D-NJ, 12th District) introduced the Filer Voter Act to make it easier to register to vote. The bill would allow voters to register to vote when they file their taxes. Much like the “Motor Voter Law” of the 1990s that allowed voters to register to vote with their local motor vehicle department the “Filer Voter Act” will require tax preparers to provide individuals the option to receive voter registration materials. Whether you do your taxes in person, online, or through a Volunteer Income Tax Assistance (VITA) Program, the tax preparers will make sure you have the option of receiving a voter registration application form.

Alabama: Alabama lawmakers approved a ban on curbside voting, a balloting method Republicans portrayed as fundamentally unsecure, but Democrats argued would make voting easier for the elderly and others. The Alabama Senate voted 25-6 for the bill by Rep. Wes Allen (R-AL, 89th District, Troy) that would forbid election workers from setting up curbside areas for people to vote as well as forbid the setting up of voting machines outside a polling place. The bill now goes to Alabama Gov. Kay Ivey. The debate in the closing hours of the legislative session mirrored partisan debate across the country as Democrats urged expanded voting access and Republicans sought restrictions in the name of ballot security. The GOP-dominated Legislature approved the bill while a Democratic-sponsored bill that would expand absentee voting did not get out of committee.

The end of the legislative session meant the end to a number of bill including one that would have restored voting rights for some formerly incarcerated resident. Faith in Action Alabama supported the bill from its origin, and group leaders report they will continue the fight to restore voting rights. “People who leave prison are expected to leave, get a job in the community, pay taxes, and not vote,” Community Organizer JaiGregory Clarke said. “We feel there is something fundamentally wrong with that. If they are contributing to that community then they should have a voice.”

Alaska: The Palmer City Council approved a feasibility study for $3,000 in CARES act funds to hire Resource Data Inc., to conduct a feasibility study on voting by mail. Using $3,000 in appropriated CARES act funding, Action Memorandum 21-034 passed the council 4-3 to pay Resource Data Inc., to conduct a feasibility study for voting by mail. The council held committee on the whole discussions twice last year and again in March of 2021 concerning election processes and Councilwomen Julie Berberich and Dr. Jill Valerius sponsored the measure to conduct the study. Resource Data Inc., assisted Juneau and Anchorage with vote-by-mail studies and implementation and assisted the Kenai Peninsula Borough in a feasibility study. The letter written to the council by RDI Anchorage Branch Manager Diane Thompson said the study would include examining needs such as physical space, site and cyber security, pricing of equipment, staffing costs and supply needs.

Arizona: Candidate filing and voter registration deadlines could not be moved by state or local officials under a bill passed by the Arizona Senate on Monday. House Bill 2794 allows deadlines to be moved only by a judge. Opponents said they do not see a need for the proposal. In October, a judge extended the voter registration deadline after groups said the COVID-19 pandemic prevented them from registering people to vote. That deadline extension was quickly ended with the U.S. Ninth Circuit Court of Appeals struck the change down. Secretary of State Katie Hobbs (D) nd Attorney General Mark Brnovich (R), both argued against the extension.

Delaware: The Delaware House passed “motor voter” registration and a measure that moves primary elections from September to April. House Bill 30 would move Delaware’s state primary elections to coincide with its presidential primary elections in April. Currently, Delaware holds its presidential primaries for both major parties on the fourth Tuesday in April. The primaries for statewide and local political offices are held on the second Tuesday after the first Monday in September. The House also passed Senate Bill 5, which would create an automatic “motor voter” registration system at the Delaware Division of Motor Vehicles. Interestingly enough, the motor voter bill passed with only one no vote in the House but was approved on a party-line vote in the Senate. Republicans typically are not in favor of bills that make voting easier, usually citing election security concerns. Currently, Delawareans are asked if they would like to register or re-register as voters whenever they engage in a transaction at their local DMV. They then must provide detailed information to complete the voter registration process. SB 5 would permit all driver’s license applications to also serve as voter registration applications and allow Delaware DMV to share the information collected on those forms with the Delaware Department of Elections for that purpose whenever an applicant shows proof of U.S. citizenship. Anyone who does not provide proof of U.S. citizenship will not be registered to vote and will not have their information forwarded to the Department of Elections.

Louisiana: Three bills related to voting and elections passed through the House and Senate Governmental Affairs Committees on Wednesday. Two of the bills, one by Rep. Frederick Jones (D-16th District, Bastrop), and the other by Sen. Louie Bernard (R-31st District, Natchitoches) would extend the early voting period and create additional provisions for a noncampaigning zone during the early voting periods. The third, by Sen. Sharon Hewitt (R-1st District, Slidell), would mandate the secretary of state to examine voting machines if requested as well as creating certification standards for new voting systems. Kyle Ardoin, the Louisiana secretary of state, testified on behalf of all three bills. Hewitt’s bill, Senate Bill 221, also would create the Voting System Commission, a group of 13 members that would research possible voting systems and give a report to Ardoin to guide him on which type of voting system to seek. Members of the commission would include members appointed by the secretary of state and the governor as well as hired election experts. SB221 also would create the Voting System Proposal Evaluation Committee that would test the recommended voting systems. Rep. Jones’ bill, House Bill 286, would increase the early voting period in presidential elections by four days, making the total early voting period 11 days. Sen. Bernard’s bill, Senate Bill 64, would emphasize the state’s interest in protecting the right for citizens to vote freely. A campaign-free zone is already established in present law, but the bill would prohibit actions including voter intimidation, election, fraud, confusion and general disorder. All three bills were reported favorably. Senate Bill 221 and Senate Bill 64 will now move to the House floor for debate. House Bill 286 will move to the Senate floor for debate.

Maine: Bills to make Election Day an official state holiday and to allow for early voting were rejected by the Senate and House, respectively, meaning they have little chance of moving forward in 2021. While Maine has early absentee voting, those ballots are not counted by voting machines until Election Day. The proposed change, which required a two-thirds vote from the Legislature to put the question to voters, would have allowed ballots to be cast in voting machines or ballot boxes before Election Day. It gained only 83 votes in the 151-seat House. Those opposed to creating a state holiday for Election Day included town and city clerks from across the state who argued Maine voters already have unprecedented access with Maine’s expansive absentee voting laws. “I would contend that polling places are already accessible to voters,” Lewiston City Clerk Kathy Montejo wrote to the Legislature’s State and Local Government Committee in opposition to the bill. “In Lewiston, polls are open for 13 hours on election day and the average time a voter is in the building is less than 30 minutes, (many times far less than 30 minutes). This is not uncommon for other communities around the state.” Montejo said making Election Day a holiday would require municipalities to provide holiday pay to workers who set up, man and dismantle the polling stations, adding to the expense of elections.

Massachusetts: A major hearing took place in the legislature, causing a little bit of tension on Beacon Hill. Lawmakers took testimony on a package of bills that would give residents more options when it comes to casting their vote, but several organizations in Massachusetts think this debate is a complete waste of time. Members of the election laws committee took testimony on the VOTES Act for over four hours. Supporters of the plan want to see mail-in voting offered in all elections moving forward because they say it worked so well during the pandemic. On top of that, advocates also want to see same-day voter registration put in place and they want to extend the early voting period. Opponents of the Votes act say there is no need for these permanent changes because the Commonwealth is on its way to fully re-opening.

Michigan: Rep. Phil Green (R-84th District, Millington) introduced a bill that would prohibit election officials from connecting ballot counting machines to the internet on Election Day. They would have to remain offline from 7 a.m., when the polls open, until results are tabulated after the polls close at 8 p.m. Green believes the bill is a logical step to maintain public confidence in Michigan’s elections. “There’s nothing more important to our democracy than the security and integrity of our elections process,” he said. “Ensuring that voting machines are not connected to the internet until all votes have been counted reduces the possibility of hacking and altering vote counts.” House Bill 4838 was referred to the House Elections and Ethics Committee.

A pair of bills in a Republican package to reform Michigan elections would allow observers to record and broadcast vote counting, drawing concerns about privacy and intimidation from municipal clerks. One bill, SB276 would allow election inspectors, challengers and poll watchers to record and photograph the counting of the votes. Another, SB275, would allow video recording and live broadcasting of elections audits.

New Hampshire: House Republicans are readying an attempt to counter what they view as a federal takeover of the state’s elections if the For the People Act passes the U.S. Senate and is signed into law. The chair of the state House Election Law Committee. state Rep. Barbara Griffin (R-6th District, Goffstown), is sponsoring an amendment asserting that if the federal bill becomes law, the state will maintain the “full force and effect” of its authority over elections for state offices, such as governor, the Legislature and the Executive Council. If both measures become law, a situation could arise in which New Hampshire would have one set of federal rules for elections for the U.S. Senate and U.S. House seats and another for state and county offices. Presidential elections are also conducted on a state-by-state basis. Under the amendment, the state would keep its authority over “procedures and requirements relating to voter eligibility, voter registration, absentee voting, conducting the vote and counting of votes” in state elections.

The state Senate earlier this year passed a provision to make pre-processing absentee ballots permanent as part of an omnibus bill on election procedures. But the House Election Law Committee reversed the Senate. On an 11-8 party line vote, with Republicans in the majority, the committee voted to recommend that the full House remove the pro-processing provision from the Senate-passed bill. The bill will now move to the full House for a vote on June 3 or 4.

North Carolina: New legislation would give cities and towns across the state the option of delaying this year’s council elections if they need to draw new districts and can’t get the job done in time because of census delays. Senate Bill 722 rolled out Wednesday. It acknowledges the delay in once-a-decade census data that cities and others need to draw new election districts based on the latest population counts. Since that data isn’t expected in full until September, and municipal elections are currently scheduled for September, October and November, depending on whether a city holds partisan primary elections, many localities won’t be able to get their new districts done in time. The bill lets them put elections off until spring 2022. Current elected officials would have their terms extended.

Texas: The Texas House gave initial approval to a bill that would send the names of noncitizens who opted out of jury service to the attorney general for potential investigation of voter fraud. Senate Bill 155 would require the secretary of state to compare voter rolls with the list of individuals who opted out of jury service for reasons of being a noncitizen or non-resident of a county and provide that list to the attorney general. The legislation passed on second reading in the Texas House after already clearing the upper chamber. Another vote is needed in the House before the bill heads back to the Senate or a conference committee to work out differences made by House members to the initial proposal.

An East Texas state representative’s legislation to expedite the process by which dead Texans are purged from voter registration rolls has been approved in the Texas Senate. HB 1264, authored by Rep. Keith Bell (R-4th District, Forney) was considered by the Senate on Wednesday. They passed the bill on a 30-1 vote. Sen. Nathan Johnson (D-16th District, Dallas) cast the lone nay vote. Under current law, there is no specified amount of time between a person’s death and when a registrar is required to remove their name from voter rolls.

Vermont: The Senate passed a bill that would make universal mail-in voting a permanent fixture in November elections. The bill would also allow voters to fix or ‘cure’ a ballot if it has been deemed defective. “When we make voting more accessible, more people vote. When we make voting more accessible, democracy better reflects the will of the people. Voting is one of the most sacred rights and responsibilities that we have,” said Senate President Pro Tem Becca Balint. “The passage of our bill sends a clear signal that we believe our democracy is stronger when we make it more accessible and open to all Vermonters,” said House Speaker Jill Krowinski (D-Chittenden-6-3 District). “S.15 counters the prevailing trend across the U.S. where state legislatures are curtailing voter access with more restrictive election laws.” Governor Phil Scott said he will likely sign the bill into law after reading the latest version passed by the Senate. He had previously shown support for the move, even suggesting the Legislature should consider mail-in voting for other local elections like Town Meeting Day.

Legal Updates

Federal Courts: Fox News has asked a Delaware court to dismiss a $1.6 billion defamation lawsuit brought against it by Dominion Voting Systems over the network’s coverage of the 2020 vote count, arguing it “threatens to stifle the media’s free-speech right to inform the public about newsworthy allegations of paramount public concern.” Dominion filed its suit in March saying that Fox News personalities spread lies on air about its voting machines and software that “recklessly disregarded the truth” and resulted in the Jan. 6 riot at the U.S. Capitol. In its filing to dismiss the suit on Tuesday, Fox News said it was within the bounds of the First Amendment to air the claims about Dominion and that the company has failed to back up its allegations of “actual malice.” “The news media has the right in a democracy to inform citizens by reporting and commenting on a President’s allegations challenging the security of our elections,” court documents state. The conservative cable news outlet also alleges it “truthfully” sought to present the public with both sides of the legal dispute led by former President Donald Trump and his legal team, as it contested the outcome of the election. “Fox hosts responsibly covered the controversy, repeatedly pressing the President’s attorneys, Rudy Giuliani and Sidney Powell, for evidence substantiating their allegations,” the network stated, noting that Dominion agreed to appear on air to dispute the claims.

Florida: Alleging discrimination against Black and Latino voters, a coalition of groups has filed yet another federal lawsuit challenging a new Florida elections law that includes additional restrictions on voting by mail. The lawsuit filed in U.S. district court in Tallahassee is at least the third challenge to the law, passed last month by the Legislature and signed by Gov. Ron DeSantis during an appearance on Fox News. But the lawsuit filed Monday on behalf of the groups Florida Rising Together, Faith in Florida, UnidosUS, the Equal Ground Education Fund, the Hispanic Federation and Poder Latinx, contends that the changes dealing with issues such as voting by mail could curtail voting by Black and Latino residents. “While SB 90 imposes unjustified burdens on all voters, it places disproportionate burdens on Black voters, Latino voters, disabled voters, and voters who face greater challenges in exercising the right to vote, even in the best of circumstances,” the 91-page lawsuit said. “SB 90 imposes specific obstacles on voters’ ability to cast ballots through in-person voting, mail voting, and the use of secure drop-boxes for early voting.” The lawsuit alleges violations of the federal Voting Rights Act and the U.S. Constitution.

Georgia: The Coalition for Good Governance, five county election board members and several voters have filed suit over Georgia’s new voting law, challenging provisions that allow state takeovers of local elections, shorten absentee ballot deadlines and change absentee ID requirements. The lawsuit opposes allowing the State Election Board to replace county election boards after performance reviews. A temporary county election superintendent appointed by the majority-Republican board would have broad authority to certify elections, fire staff, decide on voting locations, spend tax money and set policy. “The takeover provisions are so egregious and dangerous to every concept of free and fair elections that they must be stricken from the law before they undermine Georgia’s elections,” said Marilyn Marks, executive director for the Coalition for Good Governance. The litigation also takes issue with “impractical” absentee ballot deadlines that require voters to request a ballot at least 11 days before an election, leaving little time to vote by mail in runoffs. The voting law shortened the period between general elections and runoffs from nine weeks to four weeks. Other parts of the 152-page complaint oppose making it a felony to intentionally observe votes on a large touchscreen, limiting photography within polling places and prohibiting election observers from reporting issues to anyone besides election officials. The suit alleges Georgia’s law violates protections for freedom of speech, the right to vote and separation of powers.

Illinois: Judge Craig R. Belford has ordered a full recount of the November race for DuPage County auditor, ruling there are enough ballots in question to potentially overturn the results. “Any in-precinct ballot that is not initialed shall be deemed defective and not counted,” Belford wrote in his ruling. According to the initial count, incumbent Republican Bob Grogan lost to Democratic challenger William “Bill” White by 75 votes, 233,121 to 233.046. Grogan sought a recount, claiming in court filings that an election judge at a Downers Grove Township polling place failed to initial all ballots as required by Illinois law. In Downers Grove Township precincts 76, 118, and 130, a total of 436 uninitialed ballots were cast, 259 for White and 177 for Grogan, documents state Grogan contends that if the uninitialed ballots are declared invalid and not counted, he would beat White by seven votes. In his ruling, Belford wrote that the Illinois Supreme Court is clear that “statutes requiring election judges to initial ballots are mandatory” and “uninitialed ballots may not be counted.” This is true, he wrote, “even where the parties agree that there is no knowledge of fraud or corruption” and “even where election judges fail by mistake to initial any of the ballots cast in their polling place.”

Louisiana: A lawsuit that resulted in a federal judge expanding early voting and mail balloting during last year’s presidential election in Louisiana was formally dismissed Thursday by a federal judge in Baton Rouge. But it remained alive in a federal appeals court, where Republican state officials want to keep the battle alive. Voting rights advocates got what they wanted last fall when U.S. District Judge Shelly Dick ordered the expanded voting opportunities during the coronavirus pandemic. Republican Secretary of State Kyle Ardoin, the state’s top election official, did not try to block the Sept. 16 order as the November election neared. But, he and Republican state Attorney General Jeff Landry are appealing, hoping the 5th U.S. Circuit Court of Appeals will rule that Dick’s order was wrong. The plaintiffs, including the Louisiana State Conference of the NAACP and the Power Coalition for Equity and Justice, say the issue is moot. They argue that their lawsuit dealt only with the November and December Louisiana elections, and they have a right to have it dismissed. They filed a letter with the 5th Circuit Thursday noting Dick’s dismissal of the lawsuit. Appellate arguments were still set for the afternoon of June 7 at the appeals court.

Michigan: Judge Kevin A. Elsenheimer of the 13th Circuit Court dismissed one of the last, high-profile court cases questioning the results of the 2020 presidential election, a case former President Donald J. Trump cited to claim fraud after unofficial results in one county initially assigned some votes for him to President Biden. The plaintiff, William Bailey, a local resident, and his lawyer, Matthew S. DePerno, had sought to use the case to cast doubt on the vote nationwide, suggesting that a flawed count by Dominion Voting System machines in Antrim County, Mich., meant that all such machines were open to manipulation and deliberate fraud. The suit was also an attempt to force another statewide audit. Although DePerno and the various experts he tapped to analyze the vote repeatedly said that various flaws with the voting machines left them open to hacking, they did not cite any specific evidence that it had occurred. A computer expert hired by the state also noted some security weaknesses, but said there was no indication that they had been exploited. In a statement, Secretary of State Jocelyn Benson said that the dismissal of the “last of the lawsuits” seeking to further the “big lie” confirmed that the election was fair and secure. Dana Nessel, the Michigan attorney general, said in a statement that she hoped the ruling would be a “nail in the coffin” for any remaining conspiracy theories surrounding the outcome of the presidential election.

Montana: The American Civil Liberties Union and the Native American Rights Fund filed a lawsuit challenging two new election laws in Montana as unconstitutional infringements on Native Americans’ right to vote. Montana legislators enacted the laws — H.B. 176, which eliminated same-day voter registration, and H.B. 530, which restricted ballot collection — this spring, amid a national Republican push to tighten voting regulations in connection with President Donald J. Trump’s false claims of election fraud. The lawsuit argues that the measures in Montana, where an estimated 6.5 percent of the population is Native American and district courts struck down another ballot collection restriction last year, are “part of a broader scheme” to disenfranchise Native voters. It argues that the laws violate the right to vote, freedom of speech and equal protection under the Montana Constitution. “The legislature knows that Native Americans are very distant from registration opportunities,” said Jacqueline De León, a staff attorney at the Native American Rights Fund. “They know that they have a very limited window to register and vote on the reservation, and they know that so many homes don’t receive residential mail delivery, and so they are again, I think, taking advantage of those barriers and amplifying them.”

Ohio: Look Ahead America, founded by former Trump campaign staffers, has filed a lawsuit against Stark County Board of Elections, alleging the board held an illegal private discussion before voting to buy Dominion voting machines. The groups is asking a Stark County Common Pleas court judge to invalidate the board’s Dec. 9 vote to approve the purchase of 1,450 Dominion ImageCast X voting machines and other voting equipment. The other plaintiff in the case is listed as Merry Lynne Rini of Jackson Township. Look Ahead America is based in Washington, D.C. Look Ahead America’s 19-page complaint filed Tuesday alleges the Board of Elections’ minutes show the four-member body met in closed-door executive sessions to discuss the purchase of public property four times. The complaint lists the board meetings for Dec. 9, Jan. 6, Feb. 9 and March 15. State law allows public bodies to privately discuss in executive session the purchase of public property. But only “if premature disclosure of information would give an unfair competitive or bargaining advantage to a person whose personal, private interest is adverse to the general public interest,” the complaint said. The Board of Elections gave no indication that it was meeting in executive session to avoid revealing information to give someone an unfair competitive or bargaining advantage, Look Ahead America argues. Therefore, it says the executive sessions are illegal and by law any actions based on discussions in illegal executive sessions are invalid.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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