Electionline Weekly July-22-2021

Legislative Updates

Federal Legislation: Minnesota Senator Amy Klobuchar who chairs the Senate Rules Committee, said in an interview that while the priority continues to be passing the legislation known as the For the People Act, which would usher in minimum voting standards in the U.S. such as automatic and same-day voter registration, early voting and no-excuse absentee voting that Democrats could also use the process known as reconciliation to advance financial incentives for states to adopt certain reforms. Election systems have been designated critical infrastructure on par with the nation’s power plants, banks and dams. “You can do election infrastructure in there because that is part of infrastructure,” Klobuchar said according to The Associated Press. “It’s no substitute for the For the People Act, but it is something we can start working on immediately and are working on right now.” Under the congressional budget process, certain measures regarding revenues, spending and the debt can be approved with a 51-vote threshold, which is why Democrats are pursuing it. The process allows them to bypass a near-certain filibuster from Republicans. But there’s a catch: The Senate’s nonpartisan parliamentarian can rule for the removal of any provision not directly related to the budget, or items whose budget impact is “merely incidental” to their intended policy changes.

Reps. Claudia Tenney (R-New York) and Elise Stefanik (R-New York) have introduced the “End Zuckerbucks Act” would prohibit tax-exempt non-profit organizations from donating money directly to election administrators or risk losing that preferential status.

Rep. Paul Gosar (R-Arizona) has introduced a bill, Securing America’s Elections Act of 2021, that would require states to ensure all voting machines leave a paper trail that can be double checked. Additionally, bill would nudge states toward using voting machines based on public, open-source technology, in order to make vote tallies more transparent and less reliant on programming privately owned by the companies that make the voting machines.

Colorado: Broomfield City Council voted unanimously to refer a ranked-choice voting ballot measure to voters. They’ll be asked this November to weigh in on whether the city should use ranked-choice voting to elect its mayor and council, starting in 2023. Ranked-choice voting “would provide opportunities for more candidates to freely run for office while encouraging positive yet competitive campaigns where the winner is chosen by a majority of the voters,” Councilmember Deven Shaff said in a Wednesday statement from the advocacy group Ranked Choice Voting for Colorado. If voters approve the ballot measure, Broomfield would follow the lead of Boulder, where in 2020, citizens decided to elect their mayor by ranked-choice voting in 2023.

Massachusetts: Voters in cities and towns with municipal elections this summer and fall, including Boston, would be able to cast their ballots by mail without an excuse or in person during early voting days under a compromise bill lawmakers filed Friday. After allowing pandemic-era election policies to lapse on June 30, House and Senate negotiators reached a deal on a fiscal 2021 spending bill that effectively revives and extends the voting provisions until Dec. 15. A six-person conference committee filed the proposed agreement on competing supplemental budgets (H 3871 / S 2845) with the House clerk’s office Friday afternoon, 15 days after legislative leaders formed the panel. The bill could be sent to Gov. Charlie Baker next week. In its version of the supplemental budget, the House voted to make mail-in voting and expanded early voting permanent but only in even-year state primaries, general elections and municipal elections that fall on the same day. The solution that legislative negotiators reached flips the expired pandemic voting law temporarily back into effect with a new end date of Dec. 15, punting the long-term debate to another time. The bill is now headed to Gov. Charlie Baker’s desk.

Pennsylvania: Pennsylvania Republicans plan to reintroduce their election overhaul legislation — which Gov. Tom Wolf vetoed last month — now that Wolf has changed his public position to say he’s open to new voter ID requirements. Wolf told the Philadelphia Inquirer last week that he is open to new voter ID rules. In announcing his plan to reintroduce his bill, state Rep. Seth Grove (R., York), the chair of the House State Government Committee, cited Wolf’s comments to The Inquirer. It’s unclear whether Wolf will be open to negotiating the reintroduced bill. He told The Inquirer that he had prejudged the original voter ID proposal as suppressive before seeing it — and that he believes he was right — and that he didn’t negotiate because he didn’t believe Republicans were acting in good faith. But he also signaled that he is open to some stricter measures, including requiring ID for mail voting. Grove’s original bill would have changed nearly every aspect of elections, including registration, voting by mail, in-person voting, vote counting, and post-election audits. Some provisions would likely have expanded access to the ballot, such as the establishment of in-person early voting, while others may have restricted access, especially in the state’s largest counties. For example, standards on the use of mail-ballot drop boxes would have limited Philadelphia to a lower number per resident than other counties. Grove said in his memo that the bill would be updated to include changes sought by State Reps. Jared Solomon (D., Philadelphia) and Mark Longietti (D., Mercer). The updated bill would also include $3.1 million in state funding to create and operate a Bureau of Election Audits within the Department of the Auditor General.

Texas: Rep. Steve Toth (R-The Woodlands) has introduced legislation calling for an audit of the 2020 general election in some of the state’s largest counties, most of which were won by Joe Biden in the presidential race. The proposal did not specify which results would be checked. The audit would apply to counties with populations over 415,000. The bill calls on the governor, lieutenant governor and House speaker to appoint a third party to perform a forensic audit starting Nov. 1 and to be completed by Feb. 1, 2022. “Not later than March 1, 2022, the independent third party conducting the audit under this section shall submit a report to the governor, lieutenant governor, speaker of the house of representatives, and each member of the legislature detailing any anomalies or discrepancies in voter data, ballot data, or tabulation,” the bill reads. The legislation was filed on July 12, the same day Texas House Democrats fled to Washington. House Republicans in Austin can’t hear bills in committee or on the floor as long as there’s not a quorum of two-thirds of representatives present.

Legal Updates

Alaska: In a 4 to 1 decision, the Alaska Supreme Court prioritized voter discretion and potentially limited the governor’s veto authority in a decision last week that allows a recall effort against Gov. Mike Dunleavy to proceed. The recall process began in 2019 and the legal fight started after the state elections director refused to certify the recall application, asserting it wasn’t legally or factually sufficient. The Alaska Supreme Court in May 2020 upheld a lower court ruling that said the Alaska Division of Elections had improperly rejected the petition seeking Dunleavy’s removal. But the decision outlining the ruling wasn’t published and publicly available until last week. The 58-page opinion written by Justice Peter Maassen finds that if the petition meets legal grounds, then voters, not state elections officials or judges, should decide what justifies a recall. The state had argued the Division of Elections and the courts “should act as gatekeepers to determine which allegations are serious enough to be presented to the voters” and called some of the accusations “harmless” and without long-term effect, Maassen wrote.

Arizona: Maricopa County Superior Court Judge Michael Kemp rejected claims by Senate President Karen Fann that documents in the hands of Cyber Ninjas, including who is financing the review, are not public records and need not be disclosed. Kemp rejected arguments that only documents in the Senate’s actual possession are subject to the state’s public records law. “Nothing in the statute absolves Senate defendants’ responsibilities to keep and maintain records for authorities supported by public monies by merely retaining a third-party contractor who in turns hires subvendors,’’ Kemp wrote. He noted that Fann herself made statements that the audit is a public function. Allowing those documents to now be shielded, the judge said, “would be an absurd result and undermine Arizona’s strong public policy in favor of permitting access to records reflecting governmental activity.’’ Significantly, the information the judge said should be released to the public includes who is financing the audit. The $150,000 the Senate agreed to pay Cyber Ninjas “appears to be far short of paying the full cost,’’ Kemp said.

Florida: An appeals court dismissed eight county elections supervisors from a lawsuit seeking to require preservation of digital ballot images generated in elections. The Florida Democratic Party, Democratic lawmakers and other plaintiffs filed the lawsuit last year in Leon County circuit court against Secretary of State Laurel Lee, state Division of Elections Director Maria Matthews and elections supervisors in Broward, Orange, Lee, Duval, Hillsborough, Palm Beach, Pinellas and Miami-Dade counties. The public-records lawsuit focused on ballot images that are created when ballots are scanned. It contended that some county supervisors of elections do not preserve the images, which could be needed to verify the accuracy of vote counts. Then-Leon County Circuit Judge Charles Dodson in August dismissed Matthews from the case but let it move forward against Lee and the county supervisors. The supervisors went to the 1st District Court of Appeal, arguing that they should have been sued in their home counties, instead of in Leon County. The appeals court agreed Monday in a six-page opinion and dismissed the supervisors from the case. “In this case, the appellees (the Democratic Party and other plaintiffs) have alleged that the supervisors have put their First Amendment rights at risk, but they have not explained how,” said the opinion, written by Judge Thomas Winokur and joined by Judges Stepanie Ray and Robert Long. “They also argue that equal-protection rights may be violated if digital ballot copies are destroyed because paper ballots lost before a recount would not be tallied and some voters’ voices would not be heard. But this possible danger does not show that the supervisors are invading the appellees’ constitutional rights in Leon County, and certainly does not satisfy the requirements of (a type of legal exception) allowing them to be sued in Leon County.”

Georgia: Superior Court Judge Brian Amero has dismissed a lawsuit that sought to overturn the runoff elections that gave Democrats control of the U.S. Senate. The lawsuit aimed to void the election of Georgia’s Raphael Warnock and Jon Ossoff to the U.S. Senate. The latest lawsuit contested the Senate election results and sought a new election to be conducted on paper ballots. The plaintiff, Fulton County resident Michael Daugherty, said the senate election was marred by misconduct, raising doubts that Warnock and Ossoff were the true winners. He cited allegations of improper ballot counting at State Farm Arena in Atlanta on election night in November. Those allegations were investigated and debunked by the Secretary of State’s Office. The defendants in the lawsuit included Warnock and Ossoff, as well as Secretary of State Brad Raffensperger, the State Election Board, and election boards in Fulton, DeKalb and Coffee counties. In court briefs and arguments, they said Daugherty’s arguments have already been rejected by judges in other lawsuits. They said the problems he cited occurred in November, not during the January runoff. They argued the election challenge was filed too late and that the lawsuit was not properly served on Warnock and Ossoff. Amero agreed the challenge was not filed in time and that the senators were not properly served.

Indiana: A federal appeals court upheld a decision blocking enforcement of an Indiana law that voter rights advocates say illegally purges voters from the rolls without adhering to federally mandated election law safeguards. Legal fights over how Indiana removes the registrations of voters who may have moved have carried out since 2017, with voter rights groups mostly winning protections against voter purges in court. On Monday, these groups added U.S. Circuit Judge Diane Wood’s 31-page decision to that list of victories. The groups say two laws in recent years — SB 422 and the more recent SEA 334, or Act 334 — circumvent rules put in place by the National Voter Registration Act, or NVRA, meant to govern the fair and safe maintenance of voter registrations and target minority voters in particular. The Indiana government and proponents of the laws say they are meant to promptly correct discrepancies in the state’s voter registrations in the name of defending against election fraud.

Michigan: Matthew DePerno, an attorney for a local man who accused Antrim County of voter fraud is appealing a judge’s dismissal of an election-related lawsuit, records filed in 13th Circuit Court show. DePerno filed the claim of appeal Wednesday on behalf of Bill Bailey, of Central Lake Township. Bailey filed suit Nov. 23, accusing the county of voter fraud and of violating his constitutional rights, after initial results of the 2020 Presidential election showed about 2,000 votes cast for then-President Donald Trump had mistakenly been assigned to then-challenger Joe Biden. Bailey also accused the county of diluting his vote, after a marijuana proposal, allowing a single dispensary in the Village of Central Lake passed by a single vote. On May 18, 13th Circuit Court Judge Kevin Elsenheimer dismissed the lawsuit, ruling the court had already provided Bailey with all the relief available to him. That relief included signing a court order in early December allowing Bailey’s forensic team access to the county’s election equipment and placing the equipment under a protective seal. Secretary of State Jocelyn Benson, an intervening defendant, then sent Bureau of Elections staff to the Kearney Township Hall on Dec. 17, to train local volunteer poll workers for a hand recount of the county’s presidential election and later conducted statewide audits. Elsenheimer noted both these events in his dismissal.

New York: Bard College and several other petitioners including college President Leon Botstein, are suing the Dutchess County Board of Elections (BOE) in another attempt to have the Bertelsmann Campus Center designated as a polling place for District 5 in Red Hook. A 2020 lawsuit over the polling place resulted in Dutchess County Supreme Court Justice Maria Rosa designating the college as a polling place after it was learned that BOE Republican Election Commissioner Erik Haight was “untrue” when he testified to the judge about logistics. Voters in District 5 were able to cast their 2020 ballots at the campus center after Judge Rosa ordered it. Bard sent letters to the BOE in February and March of this year seeking to be designated as a place for votes to be cast. The BOE was supposed to designate the polling places by March 15 but failed to do it. “The inability of the BOE to reach a different result on or before March 15, 2021, cannot turn back the clock to some point in time before Judge Rosa’s orders,” said the attorneys. A postcard mailed to voters from the BOE in April was “confusing,” according to the latest lawsuit. Sent to voters in the district, it lists the church as the official polling place. However, it also says “you may continue to vote at the accessible polling place on this card.” Lawyers say that because the church is not “accessible” pursuant to the ADA, the card is misleading.

North Dakota: North Dakota is on the hook for nearly half a million dollars in plaintiffs’ attorney fees and costs stemming from tribal lawsuits over state voter identification requirements. An 8th U.S. Circuit of Appeals panel upheld a federal judge’s May 2020 order that the state pay $452,983. Secretary of State Al Jaeger told the Tribune in a statement that “The decision is being reviewed and all options are being considered.” He did not elaborate or say where the money would come from to pay the bill. The state in February 2020 agreed to settle longstanding legal disputes with Turtle Mountain Band of Chippewa members as well as the Spirit Lake and Standing Rock Sioux tribes. The crux of the tribal claims was that North Dakota’s requirement that voters have identification with a provable street address creates a voting barrier for Native Americans who live on reservations where street addresses are hard to come by. The dispute at one point reached the U.S. Supreme Court. U.S. District Judge Dan Hovland in April 2020 approved the agreement, which included provisions that aimed to ensure Native American voters have valid IDs and can meet the address requirement. The deal also called for the state to reimburse each tribe up to $5,000 for the cost of issuing addresses and identification for that year’s election cycle, and to pay the cost of a mediator the two sides used. Jaeger at the time estimated the amount to be about $9,000. Plaintiffs’ attorneys also sought more than $1.1 million in attorney fees and expenses. The state found the claim unreasonable and objected. Hovland later sided with the tribes but reduced the amount by 60%, saying some claimed expenses were excessive. The state appealed, saying the request had been filed too late. The appellate judges agreed but said the gaffe was “excusable.” “There is no evidence that the plaintiffs acted in bad faith,” the panel wrote in its decision upholding Hovland’s order.

Wisconsin: A Wisconsin man who cast absentee ballots in St. Croix and Rock counties for the 2020 presidential election has been charged with four felonies, making him the second person in the battleground state to face charges stemming from the election. 64-year-old Michael Ray Overall claims that his voting twice was unintentional, according to the criminal complaint filed June 16. Overall, reached by phone on Monday, said he has not hired an attorney and reiterated that his voting twice was a mistake. The latest charges, filed in June, come in one of 27 cases referred by Wisconsin election officials to prosecutors out of more than 3 million ballots cast. No other charges have been brought from that group, and district attorneys have said they are not pursuing charges in 18 of those cases. The other eight are either still under review, or the district attorney did not provide an update Monday.










NYC Wins When Everyone Can Vote! Michael H. Drucker