Thursday, May 6, 2021

Electionline Weekly May-6-2021

Legislative Updates

Alabama: The Legislature passed legislation to allow local election officials to fill the ranks of the workers who work the polls during an election with workers who reside outside of the voting precinct in which they are assigned. The poll workers hired would still have to be residents of the county in which they work. House Bill 312 is sponsored by state Rep. David Wheeler (R-Vestavia). Wheeler asked that the Alabama House of Representatives vote to concur with the changes made to the bill by the Alabama Senate. The local boards of registrars would still have to give priority to hiring applicants from within that precinct. The House voted to concur on a 92 to 0 vote. According to the legislation: “The appointing board, or a majority of them acting as an appointing board, not more than 20 nor less than 15 days before the holding of any election in their county, shall appoint from the qualified electors of the respective precinct county, necessary precinct election officials, which shall include at least one inspector, to act at each voting place in each precinct. “Precinct election officials shall be registered voters in the county in which they serve, but are not required to be registered at the precinct in which they serve; provided, that first priority. Provided, first priority may be given to the appointment of poll workers and alternate poll workers who are registered voters at their respective precincts, so long as the board determines that the poll worker is qualified for appointment as a poll worker.”

Arizona: Arizona voters who forget to sign their mail ballots would have to fix the problem by 7 p.m. on election day under legislation approved Thursday by House Republicans. The measure codifies in state law the rules as implemented for the 2020 election and blocks a five-day curing period after the election, which Secretary of State Katie Hobbs tried unsuccessfully to implement to settle a lawsuit filed by the Navajo Nation. Before 2020, policies for handling missing signatures varied by county. Voting rights advocates condemned the legislation and urged Gov. Doug Ducey to veto it. The measure would require county election officials to notify voters who fail to sign their ballots. But critics say those who return them on Election Day or shortly before would not have time to fix the problem. Voters who do sign their ballots but have the signature rejected because it doesn’t closely match the one on file would still get five days after the election to resolve the issue. The measure passed the Senate earlier then year then stalled in the House. It was revived on Thursday and sent to Ducey as all election-related bills remain in limbo in the Senate because of a disagreement among Republicans.

Colorado: A House panel advanced a bill that seeks to allow blind or otherwise print-impaired voters to privately and independently vote by returning marked ballots online. But a host of federal agencies, including the Department of Homeland Security and the Federal Bureau of Investigation, warned in a report to states ahead of last fall’s election the bill’s provisions would amount to a “high-risk” endeavor that could compromise election integrity by allowing hackers to manipulate ballots and election results “at scale.” Senate Bill 21-188 was carried through the Senate by Sen. Jessie Danielson, D-Wheat Ridge, where it passed on a near-party line vote. In the House, the legislation is sponsored Democratic Reps. Monica Duran (D-Wheat Ridge), and David Ortiz, a Littleton Democrat who now uses a wheelchair after a helicopter crash while serving in Afghanistan left him with little muscle control below his waist. The proposal seeks to build on legislation that allows voters with disabilities to access a ballot online, which Danielson championed in 2019. Under Danielson’s Senate Bill 19-202, a ballot can then be marked, printed and returned, which allows voters with disabilities to cast a ballot privately and independently. After being signed into law in May 2019, Danielson said Secretary of State Jena Griswold quickly implemented the legislation and it has largely been successful, save for one hiccup: few voters with disabilities have a printer.

Florida: The Florida Legislature approved along party lines a multitude of changes to the state’s elections laws including a ban on possessing multiple vote by mail ballots and restrictions on the use of ballot drop boxes. Relenting on a number of ideas that were strongly opposed by county elections supervisors and Democrats, the bill now heading to Gov. Ron DeSantis’ desk is far less onerous than what Republicans were proposing over the last month. The bill does not ban drop boxes, an idea DeSantis endorsed earlier this year. It does not require someone show an I.D. when leaving a vote by mail ballot in a drop box, which elections supervisors warned would have created long lines. It also does not include the strict signature-comparison requirements for validating vote by mail ballots that some feared would require millions of Floridians to update their signatures with their county elections office. It does restrict people from possessing more than two vote by mail ballots, reimposing a ban on ballot collection that Republicans did away with 20 years ago. Possessing more than two ballots is already outlawed in Miami-Dade County, a response to a series of scandals involving people illegally obtaining ballots and pressuring voters. Senate Bill 90 also would require ballot drop boxes to be used only during early voting hours, and must be manned during those times. The 150-foot ban on soliciting voters at polling sites would also apply to drop box locations. Most of the bill makes dozens of technical and administrative changes to the state’s vote-by-mail laws. Elections supervisors would be given more time to count vote by mail ballots and be required to regularly report online the number of ballots submitted and counted. They would also have to allow candidates’ observers to closely watch, and easily dispute, the duplicate ballot process. That’s the process where supervisors duplicate ballots that are wet, wrinkled or otherwise too damaged to run through voting machines. They would also be prevented from changing the locations of drop boxes within 30 days of an election. The vote passed the Senate 23-17, and in the House of Representatives 77-40. DeSantis was expected to sign the bill at press time.

Louisiana: A bill to extend early voting from seven to 10 days during presidential elections was approved unanimously by a Louisiana House committee Wednesday. Rep. Frederick Jones (D-Monroe), offered his bill after the record voter turnout in the 2020 presidential election. Louisiana saw more than 2.1 million people vote in November, and 986,000 of them voted early in-person. The bill originally extended early voting for every election, but after financial concerns from the registrars of voters, Jones limited the bill to presidential elections. The extension of early voting comes with a price tag of $400,000 to the state, including pay for poll workers. Secretary of State Kyle Ardoin noted that while early voting provides a great convenience to voters, extending this period for every election would come with challenges for his office and the registrars. Limiting the bill to presidential elections also allows for more time to adjust election timelines.

Minnesota: The Republican-controlled Minnesota Senate has passed a requirement that voters show a photo ID, even though opposition from DFL Gov. Tim Walz and House majority Democrats makes it unlikely to become law this year. The vote for the Republican-backed bill was 34-32 and fell along party lines. Supporters say the voter ID measure would protect election integrity. Critics argue that it would suppress the vote. The debate has gone on for years, and Minnesotans rejected a voter ID constitutional amendment in 2012. Under the bill, eligible Minnesotans would need to show a photo ID when voting in person or when casting an absentee ballot. A new provisional ballot system would be established for people unable to produce an ID on Election Day. There would also be a new voter identification card established and provided free to those who need it. A companion bill in the House has not received any committee hearings. There are just two weeks left in the session, with budget work expected to occupy nearly all of that time.

Montana: Gov. Greg Gianforte (R) on signed into law House Bill 429, requiring a majority of lawmakers in both the House and Senate to approve of any emergency suspensions of the election laws in the state. If the Legislature isn’t in session at the time, the new law requires the Secretary of State to poll lawmakers on the proposed change in election laws within three days of the governor’s request. The measure was sponsored by Rep. Llew Jones (R-Conrad), and was brought as a response to Bullock’s decision to allow all-mail primary and general elections in 2020, due to the coronavirus pandemic. All but a handful of Montana’s 56 counties opted to hold their elections by mail ballots only. HB 429 passed on a party-line vote in the Senate last month, although it had picked up some Democratic support when it passed the House in February. It became effective upon being signed by Gianforte.

New Hampshire: A House-passed bill to move the state primary election from the second Tuesday in September to the fourth Tuesday in June appears to have receptive audience among the members of a key Senate panel at this early stage of consideration. But even if the bill eventually passes the Senate, it appears that it would face a veto by Gov. Chris Sununu. The Senate Election Law and Municipal Affairs Committee has yet to vote a recommendation on House Bill 98 but following a public hearing on Monday, there appeared to be a consensus in favor of the concept, with details yet to be addressed. The bill passed the House on a 195-174 vote on April 8. But at a news conference later the same day, Sununu said the current system is strong and he saw no reason for a change. “We have a very unique system here,” Sununu said. “I’m not for moving the primary. You start down a slippery slope.”

New York: The Senate Election Committee on Monday advanced a bill meant to address the issue of out-of-precinct voting. The proposal is aimed at ensuring ballots are still counted for all the offices or ballot questions they are eligible to vote for, as long as they are in the right polling site in their county. General election data gathered by the group VoteEarlyNY released on Monday found 13,800 ballots were disqualified after voters appeared at the wrong polling site. “The 2020 data confirms what has been reported anecdotally for years,” said VoteEarlyNY Co-Founder and Voting Rights Counsel Jarret Berg, “That each election thousands of legitimate voters have their ballots tossed and their right to vote fully and needlessly frustrated. Against this backdrop, a modern safeguard that counts the eligible votes on ballots cast by registered New Yorkers, rather than entirely discounting them, will improve due process and significantly reduce the disenfranchisement of eligible voters, ensuring more accurate election results.”

North Carolina: The House elections committee voted along party lines for a GOP measure that requires traditional absentee ballots to be received by county officials by Election Day in order to be counted. Like a similar bill in the Senate, it would eliminate the current three-day grace period in state law for county boards to receive ballot envelopes in the mail that are postmarked by the date of the election. Against the wishes of Republican legislators, that period was extended to nine days for last November’s election following a lawsuit settlement between the State Board of Elections and a pro-union group addressing the pandemic and mail delays. In contrast to the Senate measure, the House bill also would direct county elections boards to send absentee ballots to applicants starting 63 days before the date of an even-numbered year general election, instead of the current 60 days. The distribution date for primaries also would be 53 days before the election, instead of 50. North Carolina’s current 60-day window made the state the first in the nation to allow voters to turn in ballots in early September for the Nov. 4 election. Now it would be even longer.

North Dakota: The Legislature has sent a sweeping election bill to the governor after a late snag over whether to identify endorsed and petition candidates on the primary ballot. House Bill 1253, brought by Rep. Scott Louser (R-Minot), is 83 pages detailing changes for election administration. It includes language updates and provisions for matching absentee ballot application signatures, helping people with disabilities vote and enabling technology additions, such as QR codes for smartphones. “We’re just making the best system in the country a little bit better,” said Louser, who began working on the bill with the secretary of state’s office in July 2020. One provision of House Bill 1253 limits voters to 30 minutes “to mark and cast the ballot after receiving the ballot from the election judge.” If a voter wanted to take longer than 30 minutes after the last person in line at closing time received a ballot, he or she could submit the ballot as marked or continue to mark it and have it counted at the county canvassing board meeting. Louser said that provision likely wouldn’t be enforced on most voters, is “designed for the end of the night” to speed election work and has no penalty. The bill does not include an amendment Louser proposed that mirrored language from a bill the Senate earlier defeated in imposing a three-hour election results deadline. Opponents said that time limit would exacerbate stress to produce election results. The House adopted a conference committee report and passed the bill unanimously. The Senate on Thursday did the same, 44-3, after initially rejecting the first conference committee report on Monday over concerns about a provision that would indicate on the primary ballot whether state and legislative candidates were endorsed or petition candidates. The provision ultimately was removed. The bill reduces some deadlines for post-election work, such as entering voters into the central voter file, which is a record of who has voted. North Dakota has no voter registration. The bill also extends the time frame for county canvassing boards to meet, from six days after each election to 13 days. The bill imposes a Class A misdemeanor on people who knowingly accept private money for running elections. Louser said lawmakers felt “no outside, private money, especially big tech, should be allowed to come in and attempt to influence any election in North Dakota.”

Texas: The House Committee on Elections has approved Sen. Bryan Hughes (R-Mineola) sweeping election legislation. SB 7 passed on a 5-4 vote in the House Committee on Elections. is the author of the bill. SB 7 would require applicants to affirmatively indicate eligibility when they register to vote and when applying for mail ballots. Also, it would standardize polling hours across the state as well as prohibit dropbox locations for mail ballots. The bill would also allow cameras into rooms where vote counting is taking place. The bill will now go to the Committee on Calendars for possible placement on the House floor.

Wisconsin: Democratic legislators introduced a bill that would require all elected state officials to serve as poll workers during elections. The legislation wouldn’t apply to members of the judiciary, but it would apply to Wisconsin’s Senators and Assembly members. The only exception is if the official is on the ballot. Representative Lee Snodgrass (D-Appleton) said during a press conference today that the proposal will increase transparency in the state’s election processes. “By requiring our non-judicial state elected officials to receive the same training as election officials in their district, we can increase knowledge, understanding and confidence in an election administered fairly and without doubt,” Appleton said.

Legal Updates

Arizona: The U.S. Supreme Court on Monday threw out what is likely the last legal challenge remaining about the choice of Arizona voters of Joe Biden for president. Without comment the justices refused to consider a request by Pinal County resident Staci Burk that she should be allowed to pursue her claims of evidence of election fraud. She wanted access to the ballots to prove that some were invalid. The justices, however, never actually got to look at those claims. In fact, that wasn’t even part of her petition to the high court. What Burk wanted — and what the justices refused to grant her — is a hearing over the question of whether she was an “elector’’ under Arizona law who had standing to bring such a claim in the first place. It was that lack of standing that allowed state courts, right up through the Arizona Supreme Court, to ignore her claims. In her underlying claims, Burk alleged widespread fraud and improper tallying by voting machines. She also claims that someone had flown a batch of ballots into Phoenix’s Sky Harbor International Airport, some of which Burk said were taken to the Maricopa County ballot tabulation center. Burk never got a hearing on her claims after her case was tossed last year by Pinal County Superior Court Judge Kevin White who concluded she had no legal right to sue because she did not fit the legal definition of “qualified elector.’’ She charged that her registration had been illegally canceled and sought a hearing. But White also found that Burk, who represented herself, waited too long to file suit. The state’s high court reached the same conclusion.

The Arizona Democratic Party and other critics of the state Senate’s audit of Maricopa County election results reached a settlement in a lawsuit with top Republican legislators, guaranteeing certain measures for ballot security and voter privacy as well as access for observers and reporters to witness the process. Though the state Democratic Party and County Supervisor Steve Gallardo initially sought a restraining order to stop the audit, arguing it did not include adequate measures to protect ballots or voter privacy, the settlement allows the audit to continue. Still, the party touted the settlement as a victory. And it adds to orders a judge has already issued requiring that voter privacy is maintained and ballots protected. It also gives force to agreements the Senate has hashed out during the process to allow access. The settlement stipulates that written procedures made public following a judge’s order last week will remain in place throughout the process. That comes after observers raised concerns that officials overseeing the audit were making changes on the fly. The settlement requires, too, that the Senate will ensure voting systems, voter information and ballots are secured to prevent unauthorized access. And under the agreement, images of ballots that the Senate has obtained and images that its contractors are currently making at the coliseum will not be released without a court order.

California: California Governor Gavin Newsom did not abuse his powers when his office required all voters be sent vote-by-mail ballots for the 2020 general election, the Third District Court of Appeal ruled this week. In March 2020, Newsom declared a state of emergency in the early days of the pandemic and just days after voters headed to the polls during primary election season. Newsom issued an executive order to send vote-by-mail ballots to all registered voters ahead of the November general election. Newsom’s election orders were made under the California Emergency Services Act (CESA). Republican lawmakers argued Newsom completely sidestepped the state Legislature and the governor unconstitutionally changed California’s election laws. But a three-judge panel from the Third District Court of Appeal said timing is everything and ruled that Newsom did not overstep his authority. Presiding Judge Vance Raye, Judge Ronald Robie and Judge Jonathan Renner made up the panel and wrote the unanimous 21-page opinion.

Georgia: Gov. Brian Kemp on Wednesday appointed a special counsel to represent the Georgia Secretary of State’s Office in the investigation by Fulton County District Attorney Fani Willis into former President Donald Trump’s actions in Georgia during the 2020 election. Kemp made the appointment of attorney Jack Sharman, of Birmingham-based Lightfoot, Franklin and White, by executive order. The order noted that Georgia Attorney General Chris Carr, who would typically represent the Secretary of State’s Office in any legal matters, “has declined representation of the Secretary of State in this matter.” It did not explain why. While Sec. Brad Raffensperger does not appear to be a subject of the investigation, the secretary’s office has been asked to preserve any records or docments that could be relevant to it. The office’s legal representation would presumably, at a minimum, be tied to cooperation with such requests.

Iowa: Polk County District Judge Scott Rosenberg has refused to dismiss a lawsuit that is tied to concerns over the state’s actions on voter registration in the months before the 2020 election. In July 2019, Linn County Auditor Joel Miller, a Democrat, filed a public-records request with Iowa Secretary of State Paul Pate, a Republican. After no response from Pate’s office to the public-records request, Miller filed a complaint with the Iowa Voter Registration Commission. Pate filed a motion asking the commission to dismiss Miller’s complaint, arguing Miller had failed to state a claim upon which relief could be granted. The commission heard arguments on Pate’s motion and ultimately decided on a 2-1 vote to dismiss Miller’s complaint without a hearing. Miller appealed that decision to Iowa District Court, arguing that the commission, rather than permitting Miller to present testimony and evidence to support his complaint, simply accepted “the unsubstantiated factual assertions” offered by Pate. In February, the commission, represented by the office of Iowa Attorney General Tom Miller, filed a motion asking the court to dismiss the case. In his ruling, Rosenberg stated that ordinarily, litigation related to elections becomes moot after the election passes, but both the federal Help America Vote Act (HAVA) and Iowa’s own administrative complaint procedures contemplate filing complaints and providing election-related remedies after an election is over. “HAVA and the Iowa administrative procedures provide Miller with the right to pursue injunctive relief with respect to a past election,” Rosenberg ruled. “If the Court granted Miller’s petition and remanded to IVRC for a contested case hearing on the merits, IVRC would retain the ability to grant injunctive relief related to the 2020 election for violations of HAVA.”

Louisiana: Having gotten what they wanted last fall — expanded early voting and mail balloting in the last presidential election — voting rights advocates in Louisiana are trying to dismiss the lawsuit they filed seeking safe voting opportunities during the coronavirus pandemic. But, with their eyes on future elections, Secretary of State Kyle Ardoin, and Attorney General Jeff Landry, both Republicans, are pressing on with an appeal. They want a ruling that U.S. District Judge Shelly Dick’s expansion of voting opportunities last fall was an overreach in which the judge took actions reserved for lawmakers. The plaintiffs, including the Louisiana State Conference of the NAACP and the Power Coalition for Equity and Justice, say the issue is moot. Their lawsuit dealt only with the November and December Louisiana elections, and they have a right to have it dismissed, they argued Tuesday in a court filing. The two Republican leaders say the 5th U.S. Circuit Court of Appeals should rule anyway. Otherwise, they say in court briefs, “this case—if not addressed by this Court—could become a roadmap for similarly timed future actions.” The voting rights advocates filed a dismissal motion in Dick’s court Tuesday. They also have one pending at the 5th Circuit. The 5th Circuit hasn’t ruled on the motion. It has issued an order scheduling arguments on the appeal for June 7.

Mississippi: Three candidates have filed suit in Madison County Circuit Court seeking to overturn the results of the April 6 primary. The candidates, Aldermen Fred Esco, Rodriquez Brown, and Tim Taylor, each lost their bids for re-election and have brought suits to challenge the results. This is the second time the three have found themselves in court in connection to Canton election issues. All three point to discrepancies to back up their claims the election results should be set aside. Absentee voting started March 27, days before the April 6 primary. Under state statute, absentee ballots are supposed to be made available to voters 45 days before party primaries. However, ballots were not printed on time, in part, because of challenges brought by Esco, Brown, Mayor William Truly and his wife Natwassie Truly. “This failure to provide the statutory 45-day period for absentee voting disenfranchised many Canton Democratic primary voters, including many who would have voted for Esco if given the time and opportunity required by statute,” his suit states.

North Carolina: A trial on North Carolina’s latest photo voter identification law concluded last week. Now a panel of judges must decide: were Republicans in the legislature motivated at least partially by racial bias? Or were they purely trying to carry out the public’s desire for secure elections? The three state judges hearing the lawsuit didn’t immediately rule following three weeks of testimony and arguments on the law, which implemented a photo ID mandate added to the North Carolina Constitution by voters in November 2018. Paul Brachman, an attorney for the plaintiffs, said evidence showed Republicans rushed through the law without seeking bipartisanship and protections for voting rights before losing their veto-proof majorities in early 2019. Brachman pointed to a 2016 federal appeals court ruling, which struck down a 2013 photo ID law and other voting restrictions on grounds of racial bias, as proof the 2018 voter ID law suffered from the same flaw. Voter ID under the 2013 law was carried out briefly during the 2016 primary. David Thompson, an attorney representing House Speaker Tim Moore, Senate leader Phil Berger and other GOP legislators, sought to separate the voter ID laws from what he acknowledged was the state’s otherwise shameful history on voting rights. And he said the bill received more than just token Democratic support. Key moments in the trial surrounded the role of Democratic Sen. Joel Ford of Charlotte, who is Black and one of the bill’s cosponsors. Thompson said there are many changes from the 2013 law designed to improve ballot access while ensuring only legal citizens can vote. Superior Court Judges Nathaniel Poovey, Michael O’Foghludha and Vince Rozier didn’t say when they’d rule, but planned to receive more legal filings in mid-May. Poovey ran for office as a Republican. The other two judges ran most recently as Democrats. Any decision likely will be appealed to the state Supreme Court. There are other voter ID lawsuits pending in state and federal court. The law isn’t currently being enforced.

Texas: Secretary of State Ruth Hughes asked a Fifth Circuit panel to dismiss two voting rights lawsuits from the Texas Democratic Party, one challenging voter registration rules and the other a law Democrats say was passed to disenfranchise left-leaning college students by placing restrictions on temporary polling places. Days before the state’s voter registration deadline for the 2018 midterm elections, then-Texas Secretary of State Rolando Pablos issued a press release telling voters online registration is not allowed in Texas, and advising counties applications submitted through a cellphone app created by the advocacy group were not complete because they contained digital signatures. Following Pablos’ guidance, county registrars notified 2,400 would-be voters their applications had been rejected as incomplete. After Texas Governor Greg Abbott appointed fellow Republican Ruth Hughs as secretary of state, the Texas Democratic Party sued her in San Antonio federal court in January 2020, claiming the state’s “wet-signature rule” requiring a hand signature on a physical document is unconstitutional. Hughs claims she has sovereign immunity because the Texas Democratic Party is taking issue with part of the Texas Election Code that county voter registrars enforce.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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