Thursday, July 29, 2021

Electionline Weekly July-29-2021

Legislative Updates

Louisiana: Louisiana Republicans have narrowly failed to override any of Democratic Gov. John Bel Edwards’ vetoes in the legislature’s first-ever override session since the adoption of Louisiana’s current constitution in 1974. Republicans had been trying to undo Edwards’ vetoes of bills addressing several topics, including two that would have added voter ID requirements for absentee voting and banned private grants from philanthropic groups seeking to remedy the underfunding of election administration. Thanks in large part to their existing gerrymanders, Republicans nominally hold a veto-proof majority in the state Senate and are just two seats shy of the two-thirds mark in the state House, where a trio of independent members hold the balance of power. However, not only did GOP leaders fail to convince a sufficient number of Democrats or independents in the House to side with them, they were unable to even get their whole caucus to show up to override the vetoes in the upper chamber. (Overrides in Louisiana require a two-thirds vote of all members, not just those present.)

Maine: Maine residents soon will be able to register to vote via a secure online portal. Gov. Janet Mills (D), has signed a proposal passed by the Maine Legislature that proponents said will expand voting access. Democratic Rep. Teresa Pierce proposed the law, which goes into effect in November 2023. Pierce said Friday that the new law will “modernize our voter registration system while prioritizing accessibility and security.” The Maine Department of the Secretary of State will implement the new law.

Massachusetts: Boston city councilors on approved two home rule petitions that, if supported by state lawmakers, will allow eligible voters to register on Election Day and continue early voting and vote-by-mail options for city elections. Councilor Ricardo Arroyo, who sponsored both proposals, has said the measures would help remove barriers for residents who have been historically disenfranchised. Councilors unanimously supported the petition to make permanent the popular early voting and vote-by-mail options voters used during last year’s elections amid the COVID-19 pandemic. The second petition, which would allow voters to register and vote on the same day, passed 11-1, with Councilor Frank Baker voting in opposition.

New York: Governor Andrew M. Cuomo (D) today signed legislation (S.1277A/A.4257A) that provides a more flexible approach to election worker training, permitting both online and in-person instruction and examination of election inspectors, poll clerks and election coordinators. In-person training may still be required for specialized issues, such as the use of voting machines. Additionally, this legislation removes the requirement that the course of instruction be taken every year. Election inspectors, poll clerks and election coordinators will still be required to pass the annual examination, but they will only need to take the training course once. “Zoom and virtual meetings are not going away in a post-pandemic world and its important that our laws continue to be modernized to fit current and future needs of New Yorkers,” Governor Cuomo said. “Elections are a key component to our democracy and expanding laws to allow for online training will help ensure election workers receive the training they need without antiquated barriers getting in the way.”

Ohio: Rep. Bride Rose Sweeney (D-Cleveland) has introduced a repeal of one new law to prevent collaboration between elections officials and private groups that educate, motivate or advocate for voters. She also wants to repeal the budget’s ban on legal settlements between public officials and third parties that could lead to costly lawsuits. She says both provisions were passed hastily, as part of the state budget, without proper testimony and debate. “That’s not how the process should work. That’s not what the state budget should be about, making vast policy changes in the dead of night,” Sweeney says. Sweeney says she doubts either bill would have passed on their own merits.

Texas: According to Texas Monthly, lawmakers, apparently without most of them realizing it, included a new provision in the election bill that has implications for as many as 1.9 million Texas voters, about 11 percent of the state’s voting population. Why? Because it would beef up ID requirements for absentee ballot applications, requiring voters to provide either a partial Social Security number or a driver’s license number. The county then compares that number to the identification number on file in the voter registration system. But those nearly 2 million Texans only have one of those two numbers in the system, not both. So, if they guess wrong when they apply — easily possible if they registered to vote years before — their application would be immediately rejected with no clear way to appeal. Texas lawmakers were made aware of this problem. Chris Davis, the elections director in Williamson County, testified before the House committee and urged them to address it. “I challenge any person on the committee: Do you remember what you filled out when you got your voter registration?” he asked. “I certainly don’t. And I’m in the business of this. And if they don’t match, we’re rejecting.”

Legal Updates

Colorado: A pair of lawyers scolded by a federal magistrate over their lack of evidence of a stolen presidential election asked for and were denied another hearing. “To be blunt, that train left the station last Friday,” U.S. Magistrate Judge N. Reid Neureiter said in his order denying the request. “The sanctions motions have been argued and submitted.” A class-action lawsuit filed in December by Denver lawyers Gary D. Fielder and Ernest J. Walker sought $1,000 a voter for more about 160 million voters, a total of roughly $160 billion, against Denver-based Dominion Voting Systems, Facebook and elected officials in four states, as well as Facebook founder Mark Zuckerberg and his wife, on the list of 18 defendants plus “Does 1 to 10,000,” meaning yet unnamed defendants. The lawsuit accuses the defendants of conspiring to cost President Donald Trump last November’s election. Neureiter dismissed the original lawsuit in April, less than 24 hours after hearing arguments, citing the same procedural problem as dozens of similar failed voting integrity lawsuits: none of the plaintiffs could demonstrate how they were harmed, a dilemma lawyers call standing. During Friday’s hearing, Neureiter pressed Fielder if he did any independent research on allegations, including that Dominion rigged its voting equipment to throw voters from then-President Donald Trump to Joe Biden.

Connecticut: Michael DeFilippo, 35, a member of the Bridgeport City Council is facing federal election crime charges after he allegedly falsified voter registration applications and forged signatures on absentee ballots to vote him onto the council in 2017 and 2018. DeFilippo is facing one count of conspiracy against rights, four counts of identity theft and 11 counts of fraudulent registration. An indictment said that DeFilippo “conspired to interfere with and obstruct Bridgeport citizens’ right to vote by falsifying his tenants’ voter registration applications and absentee ballots applications, then stealing tenants’ absentee ballots and forging their signatures in order to fraudulently vote for DeFilippo,” a news release from the U.S. Department of Justice said. DeFilippo entered a not guilty plea to the charges, and is free on a $250,000 bond. If found guilty, DeFilippo could face up to 10 years in prison for the conspiracy offense, alongside five years per count of identity theft and fraudulent registration.

Florida: The fight to allow felons who are too poor to pay their court-ordered fines and fees continued in an Atlanta appellate court. Last September, the 11th Circuit Court of Appeals upheld Florida’s requirement that felons must pay all fines, fees and restitution before their voting rights are restored. The court ruled the financial obligations were a punishment for a crime, not a tax. The Southern Poverty Law Center argues that Florida’s financial requirements disproportionately impact women of color and therefore violate the 19th Amendment. The argument provides a rare opportunity for the courts to weigh in on the scope of the 19th Amendment, which has only gone before the U.S. Supreme Court on two previous occasions. Earlier in the case though, a federal judge rejected the 19th Amendment claims made by the Southern Poverty Law Center. In the ruling, the judge argued the law has a greater impact on men, who are incarcerated at much higher rates.

Georgia: Attorney General Chris Carr (R) asked a judge to throw out a federal lawsuit against the state’s new voting law, saying the case by the U.S. Department of Justice is based on “political posturing rather than a serious legal challenge.” The motion to dismiss said Georgia’s voting laws are nondiscriminatory and ensure greater voter access than several Democratic-run states. “DOJ fills its complaint with innuendo and hyperbole. But such rhetoric does not make up for the lack of any factual allegations demonstrating that the General Assembly acted with a discriminatory purpose when it passed SB 202″ during this year’s legislative session, according to the motion. The Department of Justice contends that Georgia’s voting law violated the Voting Rights Act, the landmark civil rights law protecting racial minorities from discrimination. Carr’s filing argued that the federal government didn’t take aim at several Democratic states with less voting access, including Delaware, Maryland, New York, Rhode Island and Wisconsin. The motion cites the U.S. Supreme Court’s recent ruling in an Arizona case that upheld its voting laws despite a challenge alleging they had a disproportionate impact on minority voters. The court decided that “usual burdens of voting” and “mere inconvenience” don’t violate laws barring discrimination.

Kansas: Shawnee County District Judge Teresa Watson is considering whether Kansas’ Republican secretary of state ran afoul of the state’s open records law by ordering the removal of an election database function that generates a statewide report showing which provisional ballots were not counted — a decision civil rights advocates say will have far-reaching implications for government transparency. Watson heard arguments last week in a lawsuit filed by voting rights activist Davis Hammet, who is the president of Loud Light, a nonprofit that strives to increase voter turnout. The group helps voters fix any issues that led them to cast provisional ballots so that their votes are counted. Hammet won a lawsuit last year against Secretary of State Scott Schwab that forced him to turn over to him the names of voters who cast provisional ballots in the 2018 general election, including whether their votes were counted. Schwab complied with the court’s order for the 2018 data, then instructed the outside firm that manages the database the end the secretary of state’s access to the statewide provisional ballot detail report. The state’s 105 counties can still run those reports, but only for their own local data. When Hammet tried to get the same information for the 2020 primary election, the secretary of state’s office informed him that it no longer had the ability to provide the statewide report. Court filings show he was told the technology firm that manages the database could manually pull the data for $522, but could not guarantee he would get it in time for the general election. The American Civil Liberties Union of Kansas again sued Schwab on behalf of Hammet.

Douglas County District Attorney Suzanne Valdez says she won’t prosecute anyone under a new state law that caused nonprofits to halt voter registration efforts at the start of July. The legislation includes a provision that makes it illegal for individuals to engage in conduct that would cause someone to believe they are an election official. Valdez said the law is vague and subjective, and that it is already illegal to impersonate an election official. “This is not a partisan issue,” Valdez said. “This law criminalizes essential efforts by trusted nonpartisan groups like the League of Women Voters to engage Kansans on participation in accessible, accountable and fair elections. It is too vague and too broad and threatens to create felons out of dedicated defenders of democracy.” Jill Jess, a spokeswoman for Valdez, said the district attorney’s office would refuse to prosecute anybody under any other provision of the new law, which also deals with signature matching, tampering with mail-in ballots and obstructing election workers.

Maryland: A hearing is set for next month in a lawsuit brought by two Republican political candidates who are suing to stop Annapolis from mailing ballots to all registered voters in its upcoming primary and general elections. Herb McMillan, a candidate for County Executive, and George Gallagher, a Ward 6 candidate in the city, filed the complaint in Anne Arundel County Circuit Court Thursday seeking to prevent the city from implementing the vote-by-mail system. In an emergency hearing Friday afternoon, Circuit Court Associate Judge William C. Mulford denied a motion by the plaintiffs’ attorney Charles Muskin for a temporary restraining order. A hearing is set for Aug. 2 to consider the legal arguments in the case, Muskin said. At that hearing, the court will hear arguments from Muskin, as well as attorneys for the city and county board of elections, on two legal questions posed in the lawsuit. The first will be over the legality of mailing ballots directly to voters; the second is whether the city is allowed to pay for the postage on the ballots that are returned, Muskin said. The lawsuit claims the system approved by the Annapolis Board of Supervisors of Elections in May, which includes paying for postage of all returned mail-in ballots, violates City Code and is unconstitutional.

Massachusetts: The Lowell City Council voted unanimously at a special meeting to seek a change to the voting consent decree to allow the city’s new election districts to be subdistricted and provide relief from any state laws pertaining to precincts for the upcoming municipal election. The joint motion must now be reviewed by the voting rights lawsuit plaintiffs’ attorneys before being entered in U.S. District Court, where it must be approved by a federal judge to take effect. Once approved, the amendment will allow the Election Commission to create subdistricts as it deems in the best interest of the city for the 2021 election. It will also relieve the city of any state laws relating to the size of precincts, reporting election results by precinct, and “any other provision of the general laws that cannot be reasonably applied because of the delay of the 2020 federal census.”

Michigan: In a consent decree quickly reached after a lawsuit last month, the city of Hamtramck has agreed to provide Bengali-language ballots and other assistance for the city’s Bangladeshi-American voters. The move comes just weeks before the Aug. 3 primary as the Bangladeshi-American community and other immigrant groups strive for political power. Some candidates who are Bengali speakers are among the candidates, including one running for mayor. U.S. District Judge Mark Goldsmith of the Eastern District of Michigan approved the consent decree on July 13 that requires the city of Hamtramck for four years to accurately translate all election materials and ballots into Bengali; assign bilingual Bengali speakers as poll workers and interpreters at all of the precincts and poll sites; hire a Bengali elections program coordinator; and form a Bengali language advisory group.

Matthew Smith pleaded not guilty in 67th District Court in Genesee County. He is charged with malicious use of a telecommunications device, a six-month misdemeanor. Smith allegedly made a threatening late-night phone call to Houghton County Clerk Jennifer Kelly on behalf of her then-opponent in March 2020. Smith allegedly threatened to “poison (Kelly’s) dogs, kill them and throw them in a dumpster.” He also allegedly directed slurs at her and made derogatory comments about the state of her house. Kelly’s then-opponent, Justin Kasieta, admitted he had been listening to the call, which he said was Smith’s idea, he said in a statement relayed to the Houghton County Sheriff’s Office. However, he did not recall any threats being made. Kelly went on to defeat Kasieta and win re-election in November.

Mississippi: Secretary of State Michael Watson filed suit in Madison County Circuit Court seeking a court order requiring the Canton Municipal Election Commission to certify the June 8 election results. The commission has refused to certify them, pointing to the fact Senior Status Judge Jeff Weill ruled that the committee overseeing the Democratic primary was invalid. Winners from the Democratic primary went on to the general election, and in most cases, were unchallenged. The secretary’s suit represents yet another legal challenge filed in response to the 2021 Canton elections. Three aldermen filed suit previously seeking the results of the Democratic primary to be thrown out. Candidates in two of those races have agreed to have new elections in August. Candidates in the third race, Colby Walker and Rodriquez Brown, are still going to court. Meanwhile, Republican mayoral candidate Chip Matthews is asking the judge to throw out the results of the general election, saying no Democratic candidate qualified to run. Matthews fell to incumbent Mayor William Truly, a Democrat by more than 200 votes. Watson argues he has requested the commission to certify the results multiple times, but to no avail. The secretary’s latest attempt was on July 15, when he sent a letter to the three-member commission “instructing them to certify the results as required by” Mississippi Code. The letter demanded a response by July 19.

Missouri: A three-judge panel of the Eighth Circuit U.S. Court of Appeals has ruled that Missouri must pay a more than $1 million legal bill in lawsuit the state settled in 2019 over its voter registration practices. The fees stem from a 2018 lawsuit filed against the state’s Department of Revenue and Secretary of State Jay Ashcroft by the Kansas City and St. Louis chapters of the League of Women Voters and the A. Phillip Randolph Institute, a Black trade unionists’ organization. A federal judge in Jefferson City ordered the state to send out thousands of registration forms ahead of the 2018 midterm elections. Missouri ultimately settled the suit in November 2019, agreeing to update the Department of Revenue’s website so that residents who change their address are automatically offered to be taken to the Secretary of State’s website to update their voter registration. The judge then awarded the plaintiffs more than $1.1 million in legal fees. Ashcroft and the state appealed, arguing they had been charged excessively and for too many attorneys.

North Carolina: N.C. Superior Court Judge Allen Baddour ruled that a nearly two-year-old lawsuit by a coalition of media organizations against state election officials over records connected to a secretive Trump administration voter fraud probe can continue — at least for now. The public origins of the case date back to the summer of 2018, when the U.S. Attorney’s Office for the Eastern District of North Carolina dropped a set of sweeping subpoenas on state and county election boards demanding documents on every registered voter in the state going back years. Complying with the subpoenas would have required election officials to turn over millions of pages of records just days before the midterm election. Amid pushback, the U.S. Attorney’s Office quickly agreed to extend the deadline for production. But the demand also narrowed in scope with little explanation. Months later, the State Board of Elections quietly issued guidance to county boards to produce a much smaller trove of documents — this time focusing on about 800 specific voters.

Virginia: Rob Schilling a local radio host, filed the lawsuit last month in the U.S. District Court for the Western District of Virginia after he claimed he was briefly prevented from voting during the June 8 primary election in Albemarle County due to a face mask dispute. The lawsuit names as defendants county Registrar Jake Washburne, Election Officer Leo Mallek and two unnamed poll workers. “From the time Schilling entered the precinct until he was finally permitted to vote, approximately six minutes elapsed,” the lawsuit reads. “Had Mr. Schilling been permitted to vote without hindrance as described herein, he would have spent less time at the polling location.” Schilling further claims in the lawsuit that, because the poll workers were willing to make close bodily contact with him despite a dispute over COVID-19 safety precaution, it shows an intent to intimidate him. Schilling claims his right to vote was violated, he was the subject of voter intimidation and that he was the victim of assault, battery and false imprisonment at the hands of the two unnamed poll workers. The lawsuit requests an injunction preventing the defendants from hindering Schilling’s right to vote in future elections due to a refusal to wear a face mask, a judgment declaring that his constitutional rights were violated and compensatory damages and attorney fees.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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