Legislative Updates
Federal Legislation: Senators Ron Wyden (D-OH) and Jeff Merkley (D-OH) has introduced federal legislation to end hours-long lines at polling places that suppress hundreds of thousands of American votes, and to restore our Constitutional rights to vote in free and fair elections. The People Over Long Lines (POLL) Act would require state and local governments to end these forms of voter suppression. The bill requires states to file public plans detailing how they will ensure voters can cast ballots with waiting times of less than 30 minutes and require audits by the Election Assistance Commission to determine how many voters face longer waits. The bill includes $500 million to help states reduce voter wait times. The POLL Act would also create a private right of action of $50 for voters forced to wait for longer than 30 minutes, with an additional $50 for every hour after that.
Penalties would increase if a court determines long lines were the result of intentional voter suppression or reckless disregard for election plans. Successful plaintiffs would also be entitled to court costs. “Forcing people to wait in long lines to vote is a long-standing tool used to prevent citizens from voting to manipulate elections, and like nearly every voter suppression strategy in American history, it’s directed six times as often at people of color,” said Merkley. “Nobody should have to spend hours out in the weather, when they might need to get to work or pick up their kids, to exercise their constitutional rights. If we believe in the freedom to vote and democracy, let’s make sure staffing and equipment are distributed equitably so nobody has to wait more than 30 minutes to vote.”
U.S. Sen. Raphael Warnock (D-GA) introduced legislation this week aimed at circumventing some of the pressure of partisan politics on state elections while also providing more safeguards to insulate local election boards, election workers, and volunteers. Warnock is the lead sponsor of the new Preventing Election Subversion Act of 2021 that targets provisions of new election legislation sweeping the country, like the state takeover of local election boards that’s now permitted under Georgia’s new voting law.
Arizona: The House advanced a measure requiring election officials to give prosecutors records of mail ballots that get rejected because the signature doesn’t match the one on file. SB1241, would require county election officials to give a variety of information from those ballots to the county attorney or attorney general, including the signatures from the ballot envelope and those on file and the voter’s contact information. Republicans said the measure would help find potential criminals trying to illegally cast ballots. But Democrats said there’s no evidence of widespread fraud, and the measure would promote the myth that the 2020 election was marred by illegal votes. Republicans also voted to raise the threshold for an automatic recount of an election to 0.5 percentage points. Under the current standard, recalls are triggered for most statewide races when the margin is fewer than 200 votes. Both measures still need approval in the Senate.
Illinois: Gov. J.B. Pritzker signed into law an election package that moves next year’s March 15 primary to June 28, makes the general election day in November a state holiday and allows voters to permanently cast ballots by mail. In signing the elections bill, Pritzker painted the new law as a sharp contrast to efforts in other states to curtail voting rights. “With attacks on voting rights on the rise in states across the nation, Illinois is proud to stand up for a strong, secure, and accessible democracy,” Pritzker said in a statement. The new law builds off election changes imposed during the pandemic. It makes curbside voting permanent and sets up voting centers on Election Day where anyone within the election’s jurisdiction can vote, regardless of the precinct of their residence. Election authorities will send out a notice of the availability of vote-by-mail applications as well as a new registry allowing people to permanently vote by mail. People who move or die would be removed from lists based on address data and death certificates. The measure also allows county sheriffs statewide to set up polling places in their jails for people who are awaiting trial and have not been convicted, similar to what Cook County already does. In addition, due to a previous hacking of the Illinois State Board of Elections, the law requires the state’s 108 election authorities — primarily county clerks and boards of election — to conduct monthly vulnerability risk scanning.
Maine: Lawmakers in the Maine House and Senate voted overwhelmingly to advance a bill aimed at opening up primary elections to unenrolled and independent voters. The House voted 92-52 in favor of the bill, which would allow unenrolled and independent voters to vote in a primary election without having to register under a particular political party. The vote came one day after the state Senate voted 27-7 in favor of the bill. The bill, LD 231, has been placed on the Special Appropriations Table and will need to be funded before it’s sent to Gov. Janet Mills’ desk for her signature or veto. As Maine election law stands now, voters can only cast ballots in primary elections by registering under a particular political party. LD 231 would allow unenrolled voters to cast a ballot in a party’s primary election without registering for that party, which would serve to increase primary turnout, as unenrolled voters account for nearly one-third of all voters in Maine. Primaries would then be considered “semi-open.”
Michigan: House lawmakers passed a bipartisan bill that would require election challengers to undergo training. The GOP-sponsored bill passed the House 105-4 without debate. Four Republican House lawmakers voted against the legislation. The bill – HB 4528 – would require the secretary of state to develop comprehensive training on election processes and the rights and duties of challengers. County clerks and the secretary of state would be required to provide the training for political parties and organizations designating challengers. Political parties and organizations would then be required to provide the same training for the challengers they appoint and provide a certificate of completion. Individuals who do not undergone the training would not be allowed to serve as challengers. Political parties and organizations that issue certificates to individuals they did not train may be subject to a $2,500 fine under the bill. The House bill would also amend Michigan’s election law to allow candidates to serve as challengers. Under the bill, candidates would only be allowed to serve as challengers in precincts outside the jurisdiction in which they’re on the ballot.
House Republicans passed a series of bills that would enact a strict voter ID law in Michigan. Michigan already requires voters to present an ID at their polling locations. But under current law, voters who don’t have an ID when they show up can sign an affidavit affirming their identity and vote normally. SB 303, which passed the House along a party-line vote, would eliminate that option. Instead, voters who don’t present an ID on Election Day would have to cast a provisional ballot. In addition to eliminating the affidavit ballot option, the House amended SB 303 to also require a digital copy of voters’ signatures to be included in the electronic poll book used to process voters at polling locations. Under the bill, election workers would verify voters’ signatures at polling locations. Voters whose signature does not match the one on file would be issued a provisional ballot. SB 304, which also passed the House along party lines, would allow those provisional ballots to be counted only if a voter goes to his or her local clerk’s office and presents an ID within six days of the election. Earlier versions of the bills were passed in the Senate June 16. The two bills have been returned to the Senate. The bills are tie-barred to HB 5007, which would eliminate fees for obtaining or renewing a state ID card starting in 2022. That bill passed along a party-line vote.
Rep. Steve Carra (R-Three Rivers) wants to create a bipartisan board to contract with an “impartial, nonpartisan corporation” to audit the 2020 election. Carra introduced House Bill 5091, which would create a bipartisan audit board to review the 2020 general election. Despite court rulings, canvassing boards and dozens of audits performed across the state affirming the results, Carra said in an interview Tuesday that the only way to ensure the integrity of the 2020 election is through what he calls a “forensic audit.” Under House Bill 5091, a bipartisan audit board would be tasked with contracting an outside group to conduct the investigation of the 2020 general election. The audit would be required to begin no later than 45 days after the bill takes effect, and the corporation would have 90 days to complete the audit. The bipartisan audit board would then have two weeks to complete and submit a final report. The bill proposes a body that would consist of seven members: the state auditor general or the auditor general’s designee; one each appointed by the Republican and Democratic leaders of the House and Senate; and one election challenger who served during the 2020 general election from each of the two major political parties. Carra’s bill asks auditors to take a look at 10% of precincts from across Michigan’s counties and 20% from “each city with at least 500,000 residents,” a designation that only the city of Detroit would qualify for.
Minnesota: Republicans’ push for voter ID and a provisional ballot system appears to have failed at the Minnesota Capitol, and Democrats’ hopes to expand voter access and felon voting rights have fallen by the wayside, too. A deal on the bill that helps fund elections — among many other aspects of state government — leaves out controversial voting provisions that have been sources of contention in Minnesota and across the country. “In the end, I think neither side was 100% happy with it, but I think that’s when you get to a good compromise,” Rep. Michael Nelson (DFL-Brooklyn Park), the lead House negotiator on the bill, said Wednesday. “No one is claiming victory.” A draft of the agreement negotiators struck on the state government bill does include other new items, including a security requirement for absentee ballot drop boxes and a veterans court program to direct people struggling with post-traumatic stress or addiction to treatment rather than prison. The compromise is still winding its way through the legislative process.
New Jersey: A bill to raise the pay of Election Day workers from $200 to $275 was approved today by the Senate Budget and Appropriations Committee. The legislation, which effectively raises the hourly rate from $14.28 to $19.64, was introduced by State Sens. Jim Beach (D-Voorhees) and Joseph Cryan (D-Union) and co-sponsored by lawmakers from both parties. The Senate panel approved a similar bill in 2019, but the Assembly never considered the measure. The legislation includes a $5 million appropriation to pay for the added cost.
Pennsylvania: The House has approved the Voting Rights Protection Act by a 110-91 vote. The sweeping changes to election administration would cut off voter registration 30 days before an election instead of the current 15 days. Applications for mail-in ballots would be due 15 days before an election, instead of the current seven days. Supporters say it would allow the counties more time for processing those requests. It also responds to counties’ request for more time to open and prepare mailed ballots for counting by letting them begin that five days before the election instead of just on Election Day as the law now allows. And it requires counties to continue counting votes until the results are known. The legislation would set a standard that limits voting lines to no more than a 30-minute wait and allows older and disabled voters to move to the front of the line. It establishes early in-person voting starting in 2025, as well as allows for curbside voting by disabled voters. It requires election official and poll worker training; requires poll workers to reside in the county where the polling place is locate; and allows for counties to have one bipartisan-staffed ballot drop box locations for every 100,000 residents. It now goes to the Senate for consideration. Earlier Tuesday, the State Government Committee chairman there, Sen. David Argall (R-Schuylkill County), implored his members to start boning up on the House bill, “so that you’re prepared to vote on this legislation in the next few days if, indeed, it is approved by the House.” Even if it passes the upper chamber, Gov. Tom Wolf, a Democrat, has made it clear his veto pen is ready despite its inclusion of elements he favors such as pre-canvassing of mailed ballots and $11 million annually to counties to administer elections and for election machines.
A proposed constitutional change that would require Pennsylvanians to show identification every time they vote is headed to the floor of the Pennsylvania state Senate. The legislation, sponsored by Sen. Judy Ward (R-Blair), cleared the Senate Appropriations Committee on a 15-9 party-line vote on Monday, which means it could come before the full Senate soon. Republicans in the GOP-controlled General Assembly are increasingly looking to constitutional amendments to dodge Democratic Gov. Tom Wolf’s veto pen. Under Ward’s proposal, voters would include a copy of their identification with their mail-in ballot, so whoever opens their envelope will have access to their name and ballot results. This wouldn’t be the case for traditional in-person voters who cast their vote in the privacy of a poll booth. Before a ballot question reaches voters, amendments must be approved by the Legislature in two consecutive sessions — meaning that the process can take months, if not years. The earliest this amendment could reach voters for consideration is May 2023.
Rhode Island: Despite objections from elections officials, the House voted 48 to 17 for legislation that would allow voters with disabilities and military voter to “electronically receive and return their mail ballot.” The bill now goes to the Senate, where its prospects are uncertain. Secretary of State Nellie Gorbea (D), who is running for governor, initially supported the bill but sent a letter to lawmakers before the vote withdrawing her support. “It has become clear that more work is needed before passage of this bill,” she wrote. Among her stated reasons: “Just this week, at its June 14 meeting, the Board of Elections voted unanimously to oppose House Bill 6004 and Senate Bill 738. [Included in] the testimony the Board received was a letter from the Rhode Island Developmental Disabilities Council. “The letter expresses support for the electronic transmission of ballots to voters, such as the process we implemented last year, while expressing security concerns regarding the electronic return of mail ballots. The Council suggests additional time is needed to study the issue of the secure return of mail ballots prior to moving forward.” “As you know, my office is responsible for sending mail ballots to voters. … However, voters return their mail ballots to the Board of Elections. I do not believe it is appropriate to support a bill that is opposed by the State election office that receives the ballots.”
Vermont: The House of Representatives voted to override Gov. Phil Scott’s vetoes of two bills that would allow noncitizens in Montpelier and Winooski to vote in local elections. By a vote of 103 to 47, representatives mustered the two-thirds vote necessary to force the bills into law over the governor’s objections. The 30-member Senate is expected to follow suit later this week. The residents of the two cities had already voted overwhelmingly to change their charters to allow noncitizens to vote in local — but not statewide or national — elections. The Vermont legislature must approve all proposed local charter changes, and it did so in these cases. But Scott vetoed both measures earlier this month. “This is the local control that Vermont champions,” Rep. Hal Colston (D-Winooski) said. “This is the local democracy that other states covet.” In his veto message, Scott argued that a “highly variable town-by-town approach” to local voting effectively creates “separate and unequal classes.
Wisconsin: Assembly Republicans sent bills to Gov. Tony Evers on that would prevent election clerks from filling in missing information on absentee ballot paperwork and require disabled and elderly voters to show ID to vote absentee. The governor has signaled he will veto the bills. Advocates for the elderly and disabled called the bills — all of which passed on party-line 60-38 votes — unfair. Senate Bill 212 would bar election officials from filling in the addresses of witnesses on absentee ballot envelopes if they were missing. Under current law, ballots can’t be counted if that information is missing. Senate Bill 204, which would require elderly and disabled voters to produce IDs to vote absentee in many cases. The bill would require confined voters to show an ID to get absentee ballots in most cases, just like other voters must. Confined voters who do not have an ID could instead provide a statement from a witness to confirm their identity. Under another part of the legislation, the state would no longer recognize voters as indefinitely confined if they claimed that status during most of 2020. Those voters would have to apply anew to be treated as a confined voter. Another part of Senate Bill 204 would require ordinary voters to fill out more paperwork when they vote absentee. The bill would require voters to fill out two forms — one to apply for an absentee ballot and one to certify they filled out the ballot. The bill would also require voters to provide a copy of their ID every time they ask for an absentee ballot. Now, voters have to provide a copy of their ID the first time they vote absentee but not after that. The bill would also bar election officials from sending unsolicited absentee ballot applications to voters, as the state Elections Commission did last year with bipartisan support. Under the legislation, applications could be sent only if voters requested them. Senate Bill 205 would create a backup system for voting at nursing homes if poll workers are unable to visit the facilities. The bill would allow nursing home workers who got election training to fulfill those duties if the voting deputies could not visit, provided the nursing home workers belonged to different parties. Senate Bill 210 would allow observers during election recounts to sit or stand within 3 feet of poll workers. Currently, they are not allowed to be within 3 feet of the table where they work but cannot be told to stay more than 8 feet away from the table. Under the bill, a clerk who intentionally obstructed an observer’s view could be jailed for up to six months and fined up to $1,000. Senate Bill 292 would require municipal clerks who livestream vote canvassing to maintain recordings of the livestream for 22 months after the election. That’s in line with how long they must keep other election records. Senate Bill 203 is meant to prevent what Republicans disparage as ballot harvesting — having political groups collect absentee ballots so they can deliver them to election officials. Another provision of the bill would prevent activities like “Democracy in the Park,” which allowed Madison voters to return their absentee ballots last fall to poll workers who were stationed in more than 200 parks.
Wyoming: State legislators plan to consider allowing county clerks in Wyoming to process absentee ballots before election day. The idea came from the Wyoming Association of County Officer Clerks Association, whose legislative committee co-chair Julie Freese – also Fremont County’s clerk — said it was necessary to process absentee ballots ahead of election day this year due to an influx of early voting during the COVID-19 pandemic. She estimated that Fremont County received more than twice the number of absentee ballots than typical in 2020. “There was going to be no way for our absentee boards, as large as we could get them, to get all that information done by election night,” Freese told the Joint Corporations, Elections and Political Subdivisions Committee last week. “(So) we got a directive on how to do the absentee voting a little bit earlier than normal.” Committee chair Wyoming Rep. Dan Zwonitzer, R-Cheyenne, guessed that use of the absentee voting system will remain at higher rates in the future, and that change will make a “difference in workload” for county officials facilitating local elections. “Something probably should be done,” he said. The county clerks have not yet come to consensus on an appropriate timeframe for absentee ballot counting, but this week Carbon County Clerk Gwen Bartlett said “we’re looking (at) possibly the Thursday to Friday before election day.”
Legal Updates
Arkansas: A voting-rights lawsuit challenging the legality of a quartet of election changes passed by lawmakers this year must be dismissed because there is no evidence the new laws will harm voters, state lawyers assert in a response to the month-old litigation. Plaintiffs Arkansas United, an immigrant-advocacy group, and The League of Women Voters of Arkansas, a voter-education organization, argue the four laws targeted by the suit must be struck down as illegal, claiming they are really intended to keep poor and minority-group residents away from the ballot box or at least restrict their access to voting. Republican Attorney General Leslie Rutledge filed her response to the suit on behalf of the state, outlining a four-point argument for Griffen to dismiss the lawsuit. Rutledge’s first argument is that neither of the plaintiff groups have standing to sue because they can’t show they’ve been harmed by the new laws because the organizations are not persons to whom the challenged laws would apply. Claims that the laws will injure voters are without evidence, the attorney general’s dismissal motion states. “Their fears are speculative,” Rutledge states in the 25-page response, written by Assistant Attorney General Michael Mosley. Secondly, the state lawyers argue the suit should be dismissed because the litigation is going after the wrong defendants, Secretary of State John Thurston and the state Board of Election Commissioners. The actual defendants should be each county’s election commission because those county boards are the only ones who have the authority to directly administer elections, the Rutledge pleading states. Rutledge further disputes that the litigation can meet the standard set by the Arkansas Supreme Court to successfully challenge the constitutionality of a law. To prove the laws are illegal, the plaintiffs must prove the laws have no “rational basis,” but Arkansas courts have held for more than 20 years that Arkansas “indisputably has a compelling interest in preserving the integrity of its election process,” the filing states, quoting a 2006 decision by the state’s highest court involving voter-identification laws. Strengthening election integrity and preventing fraud are sufficient reasons to justify the law, Rutledge asserts. Rutledge also asserts sovereign immunity prohibits the litigation from succeeding because state courts are barred by Arkansas.
Georgia: Henry County Superior Court Chief Judge Brian Amero heard arguments this week on whether to dismiss claims brought by a group of voters who allege that fraud during the November general election in Georgia’s most populous county resulted in the violation of their constitutional rights. The lawsuit filed by nine Georgia voters alleges that counterfeit ballots were counted and some ballots were counted multiple times in Fulton County, a Democratic bastion that includes most of Atlanta. As part of their suit, they want to inspect some 147,000 ballots to see whether any are illegitimate. Amero heard arguments this week on motions to dismiss filed by Fulton County, the county election board and the clerk of the county’s courts. Amero said at the end of the hearing that he wanted time to review the arguments and last-minute court filings but he would try to rule as quickly as possible.
Indiana: The U.S. Supreme Court declined to hear an appeal of a lawsuit seeking to require Indiana to offer mail-in voting to all residents. The lawsuit argued Indiana’s requirement that absentee voters be at least 65 years old violates the 26th Amendment: “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” By declining to hear the case, the Supreme Court allows a federal appeals court’s ruling in favor of the state to stand and keeps the absentee voting requirements in place. The appeals court ruled the requirements for mail-in voting do not violate the 26th Amendment because they don’t prevent anyone from exercising their right to vote. The legal battle will be remitted back to the Southern District court where it started.
North Carolina: Judge Terrence Boyle of the U.S. District Court for the Eastern District of North Carolina has ruled that the state must provide permanent access to an online voting system previously reserved to overseas and military voters to blind voters in the state. The ruling also expands other accessibility requirements that will have impacts beyond accessible at-home voting. Boyle granted the plaintiffs a preliminary injunction in September that forced the state to allow blind voters to vote online during the 2020 election. In the most recent ruling, Boyle granted summary judgment, meaning there was no genuine issue of material facts and the plaintiffs were entitled to a judgment as a matter of law without a trial. Boyle made his preliminary injunction permanent and added that the N.C. State Board of Elections must provide Braille and large-print options for absentee-by-mail ballots, meet accessibility standards with its website and have an accessibility coordinator. The state will also add accessible sample ballots, according to the State Board of Elections. Boyle’s ruling may also indirectly lead to more information about voters with disabilities in North Carolina. The NCSBE will be able to track how many blind voters request online, Braille or large-print ballots, as well as how many of those ballots are counted.
McCrae Dowless pleaded guilty in federal court to two crimes stemming from the investigation into the absentee ballot fraud scheme he’s accused of running in Bladen County and other parts of southeastern North Carolina. Neither of the charges dealt directly with the election fraud allegations, however. Instead, he pleaded guilty to two of the four charges he faced related to Social Security disability fraud, and prosecutors agreed to drop the other two charges. There’s a separate state-level court case dealing with the election fraud accusations, led by Wake County District Attorney Lorrin Freeman. That case is still underway and wasn’t affected by Dowless’ plea deal Monday.
Tennessee: A split 6th U.S. Circuit Court of Appeals panel reinstated a Tennessee law requiring first-time voters in the state to appear in person to vote. The panel overturned a lower court’s ruling that blocked the restriction on absentee voting ahead of the 2020 general election. Judge Julia Smith Gibbons reasoned in part that the COVID-19 pandemic is “unlikely to pose a serious threat during the next election cycle.” In dissent, Judge Karen Nelson Moore wrote that it’s hard to tell how the pandemic will evolve over months and years. The law requires first-time voters to vote in person or show ID at the local election office to vote by mail.
Texas: The Texas chapter of the League of United Latin American Citizens (LULAC), a civil rights group, and Voto Latino filed a federal lawsuit this week saying a bill signed into law by Gov. Greg Abbott that prevents Texans from using a commercial address or post office box as their address when they register to vote is unconstitutional. Plaintiffs are asking the court to block the enforcement of Senate Bill 1111, which the groups say violates the First, 14th, and 26th Amendments. The bill is set to go into effect on Sept. 1. The law states that a person cannot “establish a residence at any place the person has not inhabited” and they cannot “designate a previous residence as a home and fixed place of habitation unless the person inhabits the place at the time of designation and intends to remain.” This means that the address a voter gives while registering to vote must be the address at which they currently reside. In addition to the address restrictions, the bill empowers voter registrars to send a confirmation notice letter to a registered voter requiring them to confirm their address. If a completed confirmation notice is not received within 30 days, that voter may become unregistered and be unable to vote. The groups allege the law “burdens voters who rely on post office boxes” and unfairly targets people who may not reside in a single location for long periods of time. The population of people who may not have a primary location and rely on P.O. boxes include people who are experiencing homelessness and students who may live on a college campus.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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