Legislative Updates
Federal Legislation: House Democrats have passed legislation that would strengthen a landmark civil rights-era voting law weakened by the Supreme Court over the past decade, a step party leaders tout as progress in their quest to fight back against voting restrictions advanced in Republican-led states. The bill, which is part of a broader Democratic effort to enact a sweeping overhaul of elections, was approved on a 219-212 vote, with no Republican support. The John Lewis Voting Rights Advancement Act, named for the late Georgia congressman who made the issue a defining one of his career, would restore voting rights protections that have been dismantled by the Supreme Court. Under the proposal, the Justice Department would again police new changes to voting laws in states that have racked up a series of “violations,” drawing them into a mandatory review process known as “preclearance.” The practice was first put in place under the Voting Rights Act of 1965. But it was struck down by a conservative majority on the Supreme Court in 2013, which ruled the formula for determining which states needed their laws reviewed was outdated and unfairly punitive. The court did, however, say that Congress could come up with a new formula, which is what the bill does. In many cases, the new bill wouldn’t apply to laws enacted in the years since the court’s 2013 ruling. That likely includes the wave of new Republican-backed restrictions inspired by Donald Trump’s false claims of a stolen 2020 election. One provision in the bill would ban many types of voter ID laws, including those already on the books.
Missouri: A meeting of a Missouri House elections committee was dominated by conspiracy and misinformation, as lawmakers heard hours of testimony about election security that often had little to no basis in truth. Several people speaking to the panel also recommended changes to the Show-Me State’s ballot initiative process, recommending that it be more difficult for voters to directly amend the state’s constitution or pass laws. The bulk of false information surrounding elections came from those who attended or followed a conference in South Dakota hosted by My Pillow CEO Mike Lindell. Trish Vincent, who serves as Ashcroft’s chief of staff, told the committee the state has “a very secure system” with “layers of security.” Greene County Clerk Shane Schoeller, the only county official to testify to the committee Tuesday, said he and other local officials “welcome scrutiny,” but are confident in their ability and security to conduct and certify election results. The only technological hiccups they’ve encountered, Schoeller said, were not with election machines but with registration ones.
Pennsylvania: Three ordinances aimed at amending Allegheny County’s elections policies were introduced at county council this week. All three sought to amend the administration code to “establish a uniform policy” for various election policies, like public observation of voting machine testing procedures, observation of state-mandated election audits and public review of all videos taken within election facilities. These ordinances were proposed “to foster transparency in the election process within Allegheny County,” according to the ordinance documents. The measures were sent to council’s Committee on Government Reform without discussion. Pennsylvania law already permits the county Board of Elections to appoint “watchers at primaries and elections,” however, even with amendments as recent as 2020, it doesn’t expressly allow for public viewing of the pre-election setup or the testing of voting machine hardware.
South Dakota: The South Dakota Board of Elections voted unanimously to propose legislation that would let registered voters in the state update their information online. The measure will be offered in the 2022 session that opens January 11. “A number of states (45) have the ability to do this,” Secretary of State Steve Barnett told other board members. The Legislature blocked his office’s attempt in the 2021 session at online voter registration. The Senate voted 21-13 for a version allowing registered voters to make changes online but specifically prohibiting online registration. The House State Affairs Committee failed 6-7 to pass a more-amended version that allowed online registration in some instances. Barnett said he sensed an appetite among lawmakers for allowing registered voters to make changes online.
Texas: By a 9 to 5 party line vote, a House committee advanced Senate Bill 1. The bill adds an extra hour of required early voting hours, moving it from eight hours to nine, and it increases the number of counties that are required to provide at least 12 hours of early voting each weekday of the second week of early voting. But it also creates a new window for early voting — between 6 a.m. and 10 p.m. — to forbid Harris County’s efforts to provide overnight voting for shift workers and others for whom typical hours don’t work. The bill also makes it a state jail felony for local election officials to distribute unsolicited applications for a mail-in ballot, even to voters 65 and older who automatically qualify to vote by mail, or to provide applications to local groups helping to get out the vote. The legislation grants poll watchers “free movement” at polling places and makes it a criminal offense to obstruct their view or distance the watcher “in a manner that would make observation not reasonably effective.” The bill also says poll watchers cannot be removed from the polling place for violating the law or the election code unless they were previously warned their behavior was illegal. The bill heads to the chamber’s Calendars Committee, which is then expected to place it on an agenda so it can be taken up by the full House as soon as this week.
Legal Updates
Alabama: An attorney for the Libertarian Party of Alabama asked an 11th Circuit panel to overturn a federal judge’s order rejecting the party’s challenge to a law which allows some political parties to get a free copy of the state voter registration list while others are charged a fee. A free electronic copy of Alabama’s voter registration list is provided to every political party that satisfies the ballot access requirements for an election. The list contains information for every legally registered voter in the state, including their name, address and voting history. Parties can meet the access requirement either by achieving at least 20% of the entire vote cast for a state officer in the prior general election or by filing a petition with signatures of at least 3% of qualified voters who cast a ballot in the last gubernatorial election. The political parties that do not qualify for a free copy of the list are charged one cent per voter record. An attorney for the Libertarian Party of Alabama told a three-judge panel of the Atlanta-based appeals court Tuesday that a copy of the complete statewide list would cost nearly $36,000. The party claims the law violates its 14th Amendment equal protection rights and First Amendment free speech rights.
Arizona: The Arizona Court of Appeals said that the state Senate must turn over records from the contractor hired to conduct the review of Maricopa County’s 2020 election. It’s the second consecutive day that a court has ruled against the Arizona Senate in its fight over records related to the audit, including email and other communications. The Court of Appeals said in its order that documents from Cyber Ninjas, the lead contractor on the audit, are public records. A Superior Court judge already ruled the same way, but the Senate appealed the decision. Senate President Karen Fann, R-Prescott, said she would appeal this decision, too. The Senate has argued that it will turn over records in its possession but does not need to provide records held by Cyber Ninjas because they are not covered by the Arizona Public Records Law. The courts have disagreed. “The Senate defendants, as officers and a public body under the (records law), have a duty to maintain and produce public records related to their official duties,” the Appeals Court judges wrote in Thursday’s decision. “This includes the public records created in connection with the audit of a separate governmental agency, authorized by the legislative branch of state government and performed by the Senate’s agents. … The requested records are no less public records simply because they are in the possession of a third party, Cyber Ninjas.”
The Arizona Supreme Court said it will not decide the issue of whether all of the documents in the hands of Cyber Ninjas that show how it has conducted its audit. are subject to public disclosure until at least Sept. 14. The full court kept in place a stay that had been granted by Kathryn King. She had agreed to delay the order from the state Court of Appeals requiring the Senate to immediately produce anything in the hands of the private firm it hired to conduct the review of the 2020 general election.
California: A Los Angeles County Superior Court judge has upheld a tentative ruling denying a Long Beach community group’s request that the court step in and require county election officials to locate and sort Measure A voter ballots free of charge so a hand-recount can continue. Judge Mitchell Beckloff issued a tentative ruling Aug. 13 denying the Long Beach Reform Coalition’s request, and after hearing oral arguments from the county and the coalition’s legal teams, issued a final order upholding his initial decision. Beckloff ruled that the Los Angeles County Registrar-Recorder Clerk Dean Logan acted within the law by passing on recount costs that approached $240,000 to the coalition because the law stipulates that the costs of recounts are to be paid by the requestors. The sum would have been most expensive in county recount history. “The notion respondent complied with the law in connection with the Measure A recount undermines any claim respondent acted arbitrarily,” Beckloff wrote in his final order.
Attorneys filed papers in Los Angeles in opposition to a lawsuit seeking to have the gubernatorial recall election called off or the ballot drastically changed before the Sept. 14 deadline to submit ballots. Lawyers for California voters Carla Endow, Lisa Long and Marllus Gandrud filed the motion in federal court to intervene in litigation brought by two other voters against Secretary of State Shirley Weber, who is conducting the recall election. The Aug. 14 lawsuit filed on behalf of plaintiffs Rex Julian Beaber and A.W. Clark seeks a preliminary injunction to halt the recall election or — falling short of that — to add Gov. Gavin Newsom to the ballot as a candidate. The suit argues that the state’s recall provision violates the equal protection clause of the U.S. Constitution by allowing sitting governors to be replaced by candidates who have received fewer votes. Over 1 million ballots have been received by election officials.
Georgia: U.S. District Judge J.P. Boulee ruled against a broad ban on photographing voted ballots Friday, throwing out a part of Georgia’s new election law while allowing the rest of it to stand. The decision is the first time a judge has invalidated a section of the 98-page voting law, which also limits ballot drop boxes, requires more ID to vote absentee and allows the state government to take over county elections. Boulee rejected the law’s sweeping prohibition of photographing or recording any filled-out ballot, finding that such far-reaching restrictions violate freedom of speech protections guaranteed by the First Amendment of the U.S. Constitution. Boulee upheld other parts of the law fought in the lawsuit, including a requirement that voters request absentee ballots at least 11 days before election day and a prohibition on election observers communicating information to anyone other than election officials. “The court recognizes that a preliminary injunction is an extraordinary remedy that should be granted sparingly, especially when it enjoins enforcement of a statute, but finds it is appropriate here given the constitutional rights at stake and plaintiffs’ satisfaction of the requisite burden,” Boulee wrote in a 39-page order. Seven other lawsuits opposing the law, including a case by the U.S. Department of Justice, are also pending.
The Georgia Supreme Court upheld a Long County election where seven people cast illegitimate ballots, less than the nine-vote margin in the race. The ruling ends a yearlong case that sought a new election for probate judge after the losing candidate alleged double-voting, nonresident voting and incomplete absentee ballot documents. The Supreme Court affirmed the trial court’s finding that six people voted twice and one person wasn’t a resident of Long County, located in southeast Georgia. But those improper votes fell short of the number needed to overturn the election. “Those seven ballots were not sufficient to place the results of the election in doubt given the nine-vote margin of victory in this case,” Justice Carla Wong McMillan wrote in a 7-0 decision. Former Long County Probate Judge Bobby Harrison Smith lost to Teresa Odum 1,375 to 1,366.
A self-described voting watchdog organization and a Republican state legislator who represents a suburban Atlanta district are suing to prevent the state’s continued use of an electronic voting system that uses a barcode to verify how a ballot is cast. The nonprofit VoterGa and Rep. Philip Singleton argue in the petition filed in Fulton County Superior Court that the current Dominion Voting Systems ballot marking devices violate state law because voters cannot be certain that the scanned QR codes accurately reflect their votes. The paper ballot voters are given to scan into a computer lists printed names of selected candidates that are supposed to be captured by the barcode. “The primary (claim) in this petition is this system is illegal because it accumulates in-person votes that are hidden in QR Code,” VoterGA founder Garland Favorito said. “The QR code is unverifiable to the elector even if you have a code reader.” Secretary of State Brad Raffensperger is dismissive of the lawsuit. “Last year in the largest recount in U.S. history, it was proven that the QR code and the plain text both reflect the voter’s choice,” Raffensperger said in a statement. “An academic study showed that voters do review their ballots. This lawsuit is a waste of time and taxpayer money and will fail.”
Idaho: Idaho Supreme Court justices unanimously ruled the state’s new law on citizen-led ballot initiatives to be unconstitutional and said it infringed on the public’s right to enact laws outside of the Idaho Legislature. The opinion ruled in favor of Reclaim Idaho, the organization that spearheaded the successful Medicaid expansion initiative in 2018 and sued the Idaho Legislature in May. The Committee to Protect and Preserve the Idaho Constitution, a coalition of mostly Idaho attorneys, also joined Reclaim Idaho’s lawsuit. The state’s highest court ruled that the law would have infringed on a fundamental right for a citizen-led initiative. The Legislature and Secretary of State’s Office “failed to present a compelling state interest for limiting that right,” the Supreme Court wrote. “Ultimately, the effect of SB 1110 is to prevent a perceived, yet unsubstantiated fear of the ‘tyranny of the majority,’ by replacing it with an actual ‘tyranny of the minority,’ ” the Supreme Court wrote in its opinion, adding that the law conflicts with “the democratic ideals that form the bedrock of the constitutional republic created by the Idaho Constitution.” The new law is now void. The Idaho Legislature will have to pay Reclaim Idaho and the committee their attorney fees for the lawsuit, on top of the fees paid its own attorney to defend the law.
Maryland: The Maryland Court of Appeals ruled that Annapolis may use a vote-by-mail system for upcoming local elections. The court ruled appellants, Herb McMillan and George Gallagher, two Republican candidates who have argued the city’s new election system does not follow City Code, failed to show that their appeal was “desirable and in the public interest,” according to the order signed by Chief Judge Mary Ellen Barbera. “I am happy that the petition was denied. We believe mail-in-voting will be necessary going forward, especially as we focus on public health precautions and navigate our way out of the pandemic,” City Attorney Mike Lyles said in a statement. “Our team has worked to ensure the integrity of this election despite attempts to disrupt it with this legal action.” With the ruling, the city may now proceed with mailing out ballots on Aug. 30 to registered Democratic voters in the three contested primaries in Ward 3, Ward 4 and Ward 8 for the upcoming Sept. 21 primary election.
Michigan: Judge Linda V. Parker of the Federal District Court in Detroit ordered sanctions to be levied against nine pro-Trump lawyers, including Sidney Powell and L. Lin Wood, ruling that a lawsuit laden with conspiracy theories that they filed last year challenging the validity of the presidential election was “a historic and profound abuse of the judicial process.” In her decision, Parker ordered the lawyers to be referred to the local legal authorities in their home states for possible suspension or disbarment. Declaring that the lawsuit should never have been filed, Judge Parker wrote in her 110-page order that it was “one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election,” but another to deceive “a federal court and the American people into believing that rights were infringed.” “This is what happened here,” she wrote. In her decision, Parker accused Powell and Wood of abusing “the well-established rules” of litigation by making claims that were backed by neither the law nor evidence, but were instead marked by “speculation, conjecture and unwarranted suspicion.” “This case was never about fraud,” Parker wrote. “It was about undermining the people’s faith in our democracy and debasing the judicial process to do so.”
Minnesota: U.S. District Judge Patrick Schiltz ordered two lawsuits filed by Mike Lindell and MyPillow against Dominion Voting Systems and Smartmatic transferred to the District of Columbia, where a judge recently ruled that the defamation suit against Lindell over his claims that those companies helped steal the 2020 election can continue. At a hearing conducted last week via teleconference in Minnesota, Schiltz described the “tremendous overlap” between the cases in Minnesota and D.C. Attorneys for Lindell and MyPillow said they preferred to continue litigating in Minnesota but would not stand in the way of a transfer. “Your lawsuit here is basically saying that lawsuit out in D.C. is illegal,” Schiltz said. “I understand you’re alleging it is part of a bigger conspiracy … but the lawsuit in D.C. is the centerpiece of your lawsuit here, and it kind of seems strange that we would take discovery and litigate whether the D.C. lawsuit is a good lawsuit here while you’re out in D.C. taking discovery and litigating whether the D.C. lawsuit is a good lawsuit out there.”
Nebraska: In a 17-page opinion, the Nebraska Supreme Court ruled election commissioners are to be appointed and not elected. The ruling said, “It is apparent that the Legislature did not intend for election commissioners and deputy chief election commissioners to be recognized as county officers.” Instead, the court said, election commissioners and their deputies are to be recognized as county employees. The court case looked at a 1913 law known as the Election Act which allows the governor of a state to appoint an election commissioner in counties with a population over 100,000 people (Douglas, Lancaster and Sarpy Counties). The law also allows an election commissioner to appoint a chief deputy election commissioner of the opposing party. A 2019 opinion by Nebraska Attorney General Doug Peterson questioned the constitutionality of appointing election commissioners and their deputies in Douglas, Lancaster and Sarpy Counties. In response to the opinion, Gov. Pete Ricketts refused to appoint a Douglas County Election Commissioner and Peterson later filed a lawsuit.
New Jersey: Teaneck Town Clerk Doug Ruccione has once again rejected petitioners for the One Town One Vote initiative in their efforts to move the township’s local elections from May to November. The petitioners have, in return, filed suit to force a referendum onto the ballot. On July 29, Ruccione rejected the first petition from the group of organizers, citing what he said was an insufficient number of signatures and other deficiencies in the petition. His rejection letter gave the petitioners ten days to collect more signatures and resubmit. In the following ten days, the organizers collected another 2,100 signatures, bringing the total to 3,450, and submitted them to Ruccione on August 9. They also indicated they would sue if the petition was rejected once again. Ruccione said he would review the new petition by August 13, but soon afterwards pushed his own deadline back to August 18. On Friday Ruccione said that while his office has still only reviewed 655 of the 2,100 new signatures, he is rejecting the petition once again, on the grounds that it did not sufficiently correct other the errors present in the first petition.
North Carolina: A North Carolina Appellate court has restored voting rights to an estimated 55,000 North Carolinians on parole or probation for a felony. GOP state lawmakers, who were defending the law in court, plan to appeal Monday’s ruling to a higher court. But if the ruling is upheld on appeal, then people convicted of felonies in North Carolina will regain their right to vote once they leave prison. “Everyone on felony probation, parole or post-supervision release can now register and vote, starting today,” the challengers’ lawyer, Stanton Jones, said in a text message after the ruling came down. It’s the biggest expansion of voting rights in North Carolina since the 1960s, said Daryl Atkinson, co-director of Durham civil rights group Forward Justice and a lawyer for the challengers in this case. The law’s challengers argued that felon disenfranchisement laws were explicitly created to stop Black people from voting in the years after the Civil War and coincided with a widespread campaign to accuse newly freed Black people of felonies — troubling trends, they said, which have continued into the current day. If the ruling survives on appeal, North Carolina will be the only state in the South to automatically restore voting rights to people after they leave prison. Legislative leaders have replaced state government attorneys with a private lawyer to defend them in litigation challenging the rules on when felony offenders can get their voting rights restored.
Ohio: Common Pleas Judge Taryn Heath has dismissed Dominion Voter Systems as party to a lawsuit filed by a Washington D.C.-based nonprofit seeking to reverse the county’s procurement of the company’s machines. The lawsuit, filed in May by Look Ahead America LLC, steers clear of any explicit allegation that Dominion voting machines were used to defraud the 2020 presidential election. Look Ahead accused the Stark County Board of Elections of violating open meetings laws as it considered its eventual recommendation that the County Commission (which was also dismissed from the lawsuit Friday) buy new machines from Dominion. Heath wrote in an order of dismissal that the law “does not extend nearly as far” as Look Ahead seeks. She said Ohio’s Open Meeting Act laws don’t give courts the power to “invalidate” decisions of a body that may have violated the act. It also doesn’t allow them to invalidate a decision by the county commission, which isn’t even accused of violating any open meetings law, Heath determined. “Plaintiffs further do not explain how the Open Meetings Act can in any way restrain the commercial activity of a private company [Dominion] several degrees removed from the initial decision of the BOE,” she wrote.
Pennsylvania: JoAnn Sebastiani, former director of the Westmoreland County Election Bureau, claimed in a federal lawsuit against all three county commissioners that she was “scapegoated,” belittled and discriminated against before she was fired without adequate cause. Sebastiani, 63, had been on the job for 10 months when she was fired in June for what commissioners said was a series of errors and office leadership failures that plagued the election bureau during the November 2020 presidential election and the May 2021 primary. According to the four-count lawsuit filed in U.S. District Court in Pittsburgh, Sebastiani claimed commissioners routinely criticized her work, blamed her for staff mistakes and refused to take responsibility for their roles in creating problems that arose both before and after the elections. Sebastiani also accused commissioners of political coercion and claimed the secretary for Commissioner Sean Kertes ordered her to switch her voter registration from Democrat to Republican.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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