Thursday, June 3, 2021

Electionline Weekly June-3-2021

Legislative Updates

Arizona: Gov. Doug Ducey has signed into law a measure that prevents government officials from changing election deadlines established by statutes. HB2794, sponsored by Rep. Jake Hoffman (R-Gilbert), was created to address changes in voter registration deadlines that occurred during the November 2020 general election. “This is something that we saw in an unprecedented election,” Hoffman said. “We saw all across the country, including here in Arizona, the attempt to change statutorily prescribed deadlines. This is a bill that says that in Arizona, the legislature as granted by the Constitution of the United States, has the authority for the management and administration of elections; that those deadlines should not be changed, and that if they are there is a penalty for doing so.” Hoffman’s bill, which passed both the House and Senate by narrow margins of two and three votes respectively, received unanimous support from Republicans but was largely shunned by Democrats, who claimed that it violates separation of powers and gratuitously punishes election officials. Sen. Christine Marsh, D-Phoenix, was the only member of her party who did not vote against the bill, instead opting to refrain from voting altogether.

Connecticut: The State Senate passed House Joint Resolution 59, which would put a constitutional amendment to allow early in-person voting on the 2022 General Election ballot for Connecticut voters to decide to add it to the state Constitution. The amendment passed the House of Representatives on May 6 and was approved in 2019 by a majority in both chambers of the Connecticut General Assembly. Secretary of the State, Denise Merrill, released a statement following the joint resolution passing the Senate, praising the state for working to expand voting laws in Connecticut. “On Election Day 2022, Connecticut voters will get to decide if they want the option of voting in person before Election day – just like the voters in 44 other states,” said Merrill. “As Florida, Texas, Georgia, and other states are moving to restrict voting rights, I’m proud that Connecticut is doing the opposite, addressing our burdensome and restrictive laws, and making voting more accessible to every eligible Connecticut citizen. The question that voters will see on the 2022 ballot will be: “Shall the Constitution of the State be amended to permit the General Assembly to provide for early voting?”

Illinois: Lawmakers passed an omnibus elections bill that would push back the date of the 2022 primary elections amid other major changes to the state’s election code. The 156-page omnibus bill, an amendment to Senate Bill 825 filed by Rep. Maurice West (D-Rockford), would also strengthen the state’s cybersecurity surrounding elections and make Election Day a holiday among other provisions. The bill was filed Sunday night, passed the House 72-46 at about 6 p.m. Monday, then passed on a partisan 41-18 split in the Senate at about 10 p.m. It will need only a signature from the governor to become law.

Under the legislation, in 2022, early voting for primary elections would start May 19 and Election Day would be moved to June 28. State primaries are typically held in March. The dates for nominating petitions for primaries would also change, with those seeking office being able to circulate petitions starting Jan. 13. Congressional and judicial candidates must have petitions filed by March 14. The provision changing these dates is set to expire at the start of 2023.

The bill would also make the date of the general election, November 8, a state holiday in 2022. It will be considered a legal school holiday, and any schools closing due to the holiday would “be made available to an election authority as a polling place for 2022 General Election Day.” This provision would also expire at the start of 2023. The legislation would have voters who apply to be on the list remain on it until they request to be removed, change their registration or register to vote in another county. A witness representing the Kane County Clerk told the committee that county clerks receive death certificates and notice of address changes and would remove voters from the rolls in those instances as well.

The bill also tasks the Illinois State Board of Elections with looking into the possibility of electronic vote-by-mail for voters with disabilities. By the end of 2021, ISBE must submit legislation to the General Assembly creating a method for disabled voters to independently and privately mark a ballot using assistive technology. Before submitting the legislation, ISBE must hold at least two public hearings on the subject. he bill would also require election authorities to beef up cybersecurity measures including monthly vulnerability scans, risk assessment every two years and use protection from the Department of Innovation and Technology or a third-party vendor within one year of its passage. The bill also allows election authorities to create temporary polling places in the jails of smaller counties. Under current law, a county with 3 million or more residents – which applies exclusively to Cook County – is required to make a temporary branch polling place in the county jail, allowing residents of that county who are in custody but have not been convicted of the arresting offense to vote. The election omnibus allows sheriffs in all other Illinois counties the option of establishing a temporary polling place in their county jail.

Louisiana: Governor Edwards on Tuesday signed into law a round of bills from the 2021 Legislative Session, one of which would increase the amount of time a voter may remain in a voting machine during elections. Act 22 (HB 285) states voters shall not remain in a voting machine longer than six minutes. If a voter fails to leave a voting machine after a commissioner notifies him that six minutes have elapsed, the commissioners shall order the voter to complete voting and leave the voting machine. Even so, if a ballot is lengthy or if it contains complex propositions or constitutional amendments, the commissioners may allocate additional time in an equitable manner, the act states. Previously, voters were given three minutes to remain in voting machines.

Michigan: The Senate Elections Committee approved three bills that according to Republican legislators including former secretary of state Ruth Johnson would fix vulnerabilities in the 2018 election changes that voters approved. Senate Bill 285 would require anyone applying for an absentee ballot in Michigan to provide their driver’s license number, state ID card number, or the last four digits of their Social Security number. They also could show their ID to their local clerk or send a photocopy of their license or ID card. Michigan voters already are asked to present a photo ID at the polls, but anyone who doesn’t have one can fill out an affidavit instead and cast their ballot as normal. Senate Bill 303 would require voters to present a valid ID at the polls and Senate Bill 304 would set up a process of casting a provisional ballot if they don’t have ID. All three bills now go to the full Senate for consideration. They would have to pass there and in the House before Gov. Gretchen Whitmer would decide whether to sign them into law.

Nevada: In the final hours of the 2021 legislative session, the Assembly approved AB321 measure meant to cement much of what was supposed to be a temporary, pandemic-era switch to a vote-by-mail system, will see all registered, active Nevada voters automatically receive a mail-in ballot before future elections. They will also be able to request that someone else fill out and hand in that ballot, a practice known as “ballot harvesting” and one of several reasons GOP lawmakers loudly protested AB 321’s predecessor, Assembly Bill 4, before it became law in August 2020. AB 321 moved out of both chambers on a strict party-line vote, with all Republicans opposed. Gov. Steve Sisolak has now signed the bill into law. “At a time when state legislatures across the country are attempting to roll back access to the polls, I am so proud that Nevada continues to push forward with proven strategies that make voting more accessible and secure,” Sisolak said in a statement. “Nevada has always been widely recognized as a leader in election administration and with this legislation, we will continue to build on that legacy.”

New Hampshire: The Senate passed along party lines a bill requiring the attorney general to analyze requests for absentee ballots in future presidential primary and general elections with an eye toward trying to identify instances of election fraud. Under an amended House Bill 291, “The attorney general shall analyze the requests for absentee ballot information for state general elections and presidential primary elections contained in the statewide centralized voter registration database for evidence of misuse.” The bill requires the attorney general to analyze and report absentee ballots mailed to a common address and “significant differences in the number of ballots that were requested from a city or town.” The attorney general would be required to report the results of the analysis and any additional actions that were taken to the Senate Election Law and Municipal Affairs Committee and the House Election Law Committee. The bill was passed on a 14-10 roll call vote, with all Republicans in favor and all Democrats opposed. The bill has the same goal as the version that passed the House earlier in the session, but with different details and wording. The differences between the two versions will presumably eventually be addressed by a committee of conference.

New York: State lawmakers in the Assembly approved a bill that would create a trackable system for absentee voting, similar to a program already in place in New York City. The online system would track applications for absentee ballots, when it has been received by elections officials, whether it has been approved and when the ballot has been mailed to the voter as well as whether the ballot, once cast, has been accepted or rejected. It would also provide a reason to the voter as to why the ballot was rejected. “We have continued to take steps to make it as easy as possible for New Yorkers to vote in our elections, and in a few short months voters will have the opportunity to enshrine permanent no-excuse absentee balloting in our state constitution,” said Democratic Assemblyman Jeff Dinowitz. “It is imperative that we make sure voters maintain confidence in our electoral systems, regardless of the method by which they choose to vote.”

Pennsylvania: House Speaker Bryan Cutler (R-Lancaster), has introduced legislation that would establish a Pennsylvania Bureau of Election Audits under the office of the state’s Auditor General. House Bill 1482 was referred to the House State Government Committee this week for consideration. The bureau would be required to conduct result-confirming audits of each election in the Commonwealth by the third Friday following the election. The audits would examine processes and results, including equipment, absentee and mail-in ballots, performance audits of election systems at least every five years, and any other audit deemed necessary by the bureau to ensure public trust in election outcomes. Previous elections would not be reviewed by the bureau. Approximately $3.1 million of the state’s budget would be appropriated to fund the bureau, according to a news release from Cutler’s office.

Vermont: Gov. Phil Scott vetoed a pair of bills that would have granted local voting rights to noncitizen residents of Winooski and Montpelier, asserting that the topic needed “further consideration and debate.” Scott based his rejection on the argument that the two charter change proposals lacked clarity on who exactly would be able to vote and would lead to inconsistent election policies across the state. He urged the legislature to develop a statewide policy or “uniform template” for municipalities seeking to expand voting rights. “I understand these charter changes are well-intentioned,” Scott wrote in a letter to lawmakers Tuesday evening. “But I ask the Legislature to revisit the issue of non-citizen voting in a more comprehensive manner.” The decision will come as a blow to the two cities, where voters overwhelmingly supported the proposals.

West Virginia: The Morgantown city council has unanimously approved the first reading of a resolution endorsing the For the People Act. “I just wanted to note that I think that it’s important for us as municipalities to indicate our support for laws that support and protect voter rights,” said Morgantown Deputy Mayor Rachel Fetty. For members of council, national standards on voting rights, campaign financing, gerrymandering are what prompted the resolution of support, with the hopes of raising voter turnout in Morgantown’s elections. “I’d favor opportunities to expand voter participation and I believe that this will do that in a fair and equitable way,” said Morgantown Mayor Ron Dulaney voting in favor of the measure. The next step for the resolution is to be formally approved on second reading, which is expected to take place during Morgantown City Council’s next meeting.

Legal Updates

Florida: Secretary of State Laurel Lee is asking a federal judge to toss out a challenge to a new elections law. Lee last week filed a motion to dismiss a lawsuit filed in May by the Florida State Conference of the NAACP, Disability Rights Florida and Common Cause, one of three challenges to the elections law, which has drawn national attention. The motion describes the lawsuit as a “shotgun” complaint that does not properly spell out allegations and contends that Lee should not be a defendant. Unlike the other two challenges, Lee is the only defendant in the first lawsuit. “Because enmity and hyperbole are no substitute for well-pled facts, this court should dismiss the plaintiffs’ complaint,” said the motion, filed Friday in federal court in Tallahassee. The lawsuit was filed May 6, shortly after Gov. Ron DeSantis signed the elections law during an appearance on Fox News. The measure was one of the most controversial issues of the 2021 legislative session, with Republicans saying it was needed to ensure secure election security and Democrats contending it was aimed at voter suppression. In the motion to dismiss, Lee’s attorneys cited a ruling last year by the 11th U.S. Circuit Court of Appeals that concluded the secretary of state was not a proper defendant in a case involving the order in which candidates are placed on Florida ballots. Lee’s attorneys said the 2020 ruling requires the plaintiffs in the challenge to the new elections law to “link the secretary to the injuries they allege and the relief they seek. This the plaintiffs do not do in their complaint.”

Kansas: The League of Women Voters of Kansas, Kansas Appleseed and Loud Light have sued elections officials over two new voting laws. The suit, filed in Shawnee County district court argues that provisions of two bills altering election laws violate the state and U.S. constitution by suppressing speech and disenfranchising voters. The groups further contend that the changes were made in the absence of any evidence that the state’s elections are insecure. “In most instances, the Legislature relied on little more than vague references to concerns about elections integrity or fraud that was rumored to have occurred in other states,” the lawsuit said. “Yet, no legislator pointed to even a single instance of fraud precipitating the need for these drastic changes.” The two bills were approved over Democratic Gov. Laura Kelly’s veto. They were part of a nationwide push by Republican state legislators to use unfounded claims of voter fraud during the 2020 election as grounds for revising election rules. Secretary of State Scott Schwab, a defendant in the suit, who has said that Kansas had “free and fair” elections in 2020, declined to comment on pending litigation before his office had been formally served.

Mississippi: In May, the state Supreme Court ruled 6-3 to nullify the state’s ballot initiative process that allowed voters to amend the state constitution because of a flaw in the wording of the constitution. The flaw is a wording error from when the state had five U.S. Congressional districts instead of its current four. The Mississippi Constitution requires a certain percentage of signatures petitioning for an initiative to be on the ballot come from all five congressional districts. The error means the ballot initiative process “cannot work in a world where Mississippi has fewer than five congressional districts,” according to the majority opinion authored by Justice Josiah Coleman. Matt Steffey, a constitutional law professor at the Mississippi College School of Law told the Clarion Ledger the ruling represents a rigid, textual reading of the state’s constitution. It has set the state up for a potential challenge to its voter ID law of which was passed by voters as part of the ballot initiative process. Mississippi voters approved a voter ID law in 2011, with 62% of voters that cycle voting in favor of it. Secretary of State Michael Watson has called Gov. Tate Reeves to order a special session of the legislature to prevent any possible challenges to the state’s voter ID and eminent domain laws. Watson previously said his office will not challenge the Mississippi Supreme Court’s ruling. Most of the voter ID law is codified into state law, and not just the Constitution, Watson said, protecting it from legal challenge. However, the portion of it requiring Mississippi to provide free identification cards to voters has not been codified by the legislature and could be made null if challenged in a court of law.

Montana: A new lawsuit challenges legislation passed by Republican lawmakers in April argues the late shift in the bill’s function was unconstitutional. The lawsuit filed by the Lewis and Clark County attorney, a criminal defense association and several private lawyers seeks an injunction against Senate Bill 319, one of several bills re-engineered in the final phases of the legislative process in a conference committee without public comment. The filing in Lewis and Clark County District Court alleges the bill is unconstitutional because it violates the single-subject provision, as well as the article of the state Constitution that says no bill shall be amended so heavily that its original purpose has been changed. The bill, sponsored by Republican Sen. Greg Hertz, initially dealt with joint fundraising committees. In a late-session conference committee, however, lawmakers tacked on two other measures including that banned voter registration, signature collection, voter turnout and other activities by political groups in certain areas of university campuses. New York: New York Attorney General Letitia James has filed a claim against Rensselear County over where the county locates early voting sites. In a 2019 law, the state required adequate and equitable access to poll sites. James’ complaint says Rensselear fails to do that. “Two years and several election cycles after the legislation’s enactment, the BOE in Rensselaer County, New York has continually violated this law, failing to designate early voting poll sites at locations that ensure adequate and equitable access for voters in Troy as it is legally required to do,” the 41-page complaint states. James says Rensselaer completely missed the point of the law in first selecting a pair of early-vote locations that “are wealthier, less diverse, less accessible by public transportation, and already enjoy higher rates of voter turnout.” “It is the government’s responsibility to ensure that every person with the right to vote is able to do so without hardship, and I will do everything in my power to ensure every New Yorker has fair access to the polls,” James said in a statement announcing the lawsuit filed Thursday in the Rensselaer County Supreme Court. The suit names Commissioners Jason Schofield, a Republican, and Edward McDonough, a Democrat, as co-defendants for failing to provide equal access required under the state’s early voting law.

Pennsylvania: According to the Observer-Reporter, two Donegal Township supervisors – and a third supervisor who barely won her party’s nomination – are suing their two colleagues and the municipality in a last-ditch attempt to cancel its general election in November. Two days after losing the Republican nominations to three write-in candidates, Richard Martin and Richard Fidler amended an earlier lawsuit that claimed they could be denied fulfilling their original terms in office after the township’s voters decided last November to downsize the board from five supervisors to three. An earlier lawsuit Martin, Fidler and Iams filed against the two other supervisors, along with the municipality and Washington County Board of Elections, demanded the Donegal Township supervisors race be removed from the May 18 primary, or the results not be counted. Washington County Judge Michael Lucas denied their request, and the Commonwealth Court upheld his ruling five days before the election. The new lawsuit asks that Filder, Martin and Shingle be permitted to continue in their roles as supervisors until their terms expire, which is slated to happen in 2024 for Martin and Shingle and 2026 for Fidler. The terms for Iams and Croft are scheduled to end this coming January.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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