Thursday, September 2, 2021

Electionline Weekly September-2-2021

Legislative Updates

Colorado: The Denver City Council has approved a ballot measure that, if passed by voters, would move Denver’s municipal elections from May to April to address federal deadlines for mailing ballots to military and overseas voters. The measure was passed unanimously without comment. The measure will now be added to the November 2021 ballot for voter approval. This change was made necessary after Colorado adopted a federal requirement for cities to provide ballots to overseas and military voters 45 days before elections. Currently, Denver’s municipal elections are followed by runoffs only 30 days later, with the top two candidates appearing on the runoff ballot. If passed by voters in November, the date change would begin with the next municipal election in 2023. Denver’s municipal elections are held every four years, appointing the city’s mayor, city council members, auditor and clerk.

Michigan: Michigan Republicans are gearing up to launch a petition drive to enact major changes to voting by circumventing Gov. Gretchen Whitmer’s veto. Many of the proposed changes have already been introduced by GOP state lawmakers. The planned petition from Secure MI Vote, a ballot committee set up in December, proposes a strict photo ID requirement at polling locations and a brand new one for absentee voters, according to a summary of the petition shared by Fred Wszolek, a consultant to the campaign. The petition would set up a $3 million Voter Access Fund to provide personal ID cards free of charge. The petition, if adopted, would also prohibit the secretary of state and clerks from distributing unsolicited applications to request an absentee ballot and bar election officials from accepting funding from third-party groups. In response to the news of the effort, Secretary of State Jocelyn Benson, a Democrat, wrote in a tweet that the effort marks an escalation in “the battle over the future of our democracy.” Michigan’s process for approving voter-initiated legislation stands out as a national outlier in allowing lawmakers to enact changes proposed by a minority of voters whose proposals are not subject to either a popular vote or the governor’s approval. By collecting about 340,000 voter signatures, Secure MI Vote can propose changes to Michigan’s election law that the GOP-controlled Legislature can enact without Whitmer’s signature or placement on the ballot in a statewide election.

Texas: Last week, in a late night vote the House, by a vote of 79-37 approved Senate Bill 1. Over 12 hours, the Democrats offered more than three dozen amendments — trying to scrap portions of the bill, establish automatic voter registration and require a state study on the impact of voting law changes to different demographic groups, among several others — that were pushed to a pile of failed long-shot proposals. This week, Republicans in both the House and Senate signed off on a final version of Senate Bill 1 and sent the legislation to Gov. Greg Abbott (R) who has said he will sign the bill. Briefly, here is what Senate Bill 1 does: Bans drive-thru voting, creates new regulations for early voting hours, including a ban on 24-hour voting, bans the distribution of mail-in ballot applications, creates new ID requirements for voting by mail, creates a correction process for voting by mail, enhances poll watcher protections, establishes monthly citizenship checks and creates new rules for voter assistance.

Legal Updates

California: U.S. District Judge Michael Fitzgerald affirmed in a ruling Aug. 27 that California’s recall process is constitutional, weeks before voting in a recall election against Gov. Gavin Newsom is scheduled to end. “The United States Constitution and its principle of ‘one person, one vote’ does not prevent California from holding its ongoing gubernatorial recall election as scheduled,” Fitzgerald of California’s Central District wrote in the ruling. “There is nothing unconstitutional about placing in one ballot a vote for or against the recall of the Governor and then a vote for a replacement candidate.” Fitzgerald declined suit, noting that the legal challenger “plainly feels disgruntled that a replacement candidate with a small plurality might replace a sitting governor who, based on a robust ‘No’ vote, might well have beaten that same replacement candidate in a general election.” “As that may be,” the judge continued, “such disgruntlement raises no federal constitutional issues and certainly does not give the federal judiciary the right to halt the mammoth undertaking of this gubernatorial recall election.”

Dominion Voting Systems claims they were forced to submit private financial information to Santa Clara County when applying for a contract to supply voting systems. That information is now at risk of being disclosed through the Freedom of Information Act and the California Privacy Rights Act. Dominion ultimately won the contract for up to eight years, with an option to renew for two additional two-year terms, but they now face the possibility that their financials will be splayed across the internet for all to see, according to a complaint. Dominion claims as part of the process that led to their winning the contract, they had to send the county detailed financial documents, along with proprietary information “about the technical and functional components of their voting systems, as well as the personal identifying information of key employees.” That includes 47 pages of audited financial statements produced between 2015 and 2017 — each page of which was marked “Confidential & Proprietary — No Part of this Document May Be Disclosed or Copied,” according to the complaint. According to Dominion, releasing the financial statements would “reveal sensitive information about the present and future state of Dominion’s business” including their areas of investment, debts and their dependence on certain customers, the release of which would directly harm their business.

Colorado: Colorado Secretary of State Jena Griswold filed suit this week to remove Mesa County Clerk and Recorder Tina Peters. “My priority is ensuring that the voters of Mesa County have accessible and secure elections. With the quickly approaching election, I am taking action to ensure that the county’s election office can provide great elections for Mesa voters,” said Secretary of State Jena Griswold in a statement. “As secretary of state, I will continue to provide the support and oversight needed to ensure the integrity of Colorado’s elections.” According to the 13-page complaint, Peters “allowed an unauthorized individual to participate in the secure process for installing an update to the county’s electronic voting system, leading to the public disclosure of state-guarded passwords needed to access the equipment.” “Colorado’s electorate cannot wait for the final resolution of these investigations and any criminal charges that may ultimately be filed. Counties are now preparing for the November 2, 2021 coordinated statewide election, and Mesa County’s participation in that election must be conducted by a chief designated election official who is able to perform the duties required by the Election Code,” the complaint states.

Additionally, Belinda Knisley, deputy clerk in Mesa County is facing charges for alleged burglary and cyber crimes. Kinsley turned herself in on Sept. 1. According to local media outlets, Court documents show Knisley was placed on administrative leave after she was accused of “creating a hostile work environment” and told she was not allowed to be inside her workplace or to access any of Mesa County’s online systems. Two days after her suspension, the arrest affidavit says Knisley was seen at the office and was using the computer and password of County Clerk Tina Peters (R) to attempt to print something. It’s not clear what she was trying to print. Knisley is facing the following charges for accessing a computer or network without authorization and for unlawfully entering a building with the intent to commit a crime, according to the arrest affidavit: Second Degree Burglary (Class 4 Felony) Cybercrime (Class 2 Misdemeanor) She was given a $2,000 Personal Recognizance Bond and ordered not to have contact of any type with the Clerk’s Office or its employees.

Georgia: Georgia Secretary of State Brad Raffensperger is going to court to unseal absentee ballot documents for a study of signature verification in last year’s presidential election. The secretary of state’s office confirmed that it is seeking court orders to retrieve absentee ballot envelopes in at least 17 counties. Other counties have disclosed election materials without requiring a judge’s approval. Raffensperger announced the study after state legislators called for further verification of election 2020 results. An audit of absentee ballot signatures in Cobb County completed later that month found no cases of fraud. Though election officials no longer use signature matching for absentee ballots, the study will evaluate verification methods employed in November’s election, said Trey Hood, a University of Georgia political science professor hired by the secretary of state’s office to conduct the research. Georgia law requires court clerks to maintain election materials under seal “unless otherwise ordered by the superior court.” But some counties turned over absentee ballot envelopes under a statute in the state’s new voting law that gives the secretary of state authority to inspect them within 24 months of an election.

A three-judge panel of the 11th U.S. Circuit Court of Appeals upheld a lower court’s ruling that said requiring voters to provide their own stamps for mail-in ballots and ballot applications does not amount to an unconstitutional poll tax. The American Civil Liberties Union and its Georgia chapter filed a lawsuit in April 2020 saying that Georgia’s postage requirement for absentee ballots and ballot applications effectively imposes a poll tax and is therefore unconstitutional. The challenge was brought on behalf of voters and a group seeking to empower communities of color, the Black Voters Matter Fund. “We hold that the fact that absentee voters in Georgia who decide to vote by mail must pay their own postage is not a ‘tax’ or unconstitutional fee on voting,” Circuit Judge Elizabeth Branch wrote in the opinion for a three-judge panel of the 11th U.S. Circuit Court of Appeals. That affirmed an August 2020 ruling by U.S. District Judge Amy Totenberg in Atlanta. Totenberg had acknowledged the potential difficulties of in-person voting, particularly during the coronavirus pandemic, but she said that the fact that it’s available means that the postage requirement is not tantamount to an unconstitutional poll tax. The 11th Circuit opinion notes that Georgia voters can cast a ballot in two main ways — in person or using the absentee process. They can vote in person on Election Day or during an early voting period. Absentee voters can return their ballots by mail, put them in a drop box or bring them directly to the county election office. “While voting often involves incidental costs like transportation, parking, child care, taking time off work, and —for those who choose to vote absentee by mail — the cost of a postage stamp, those incidental costs do not mean that Georgia has imposed an unconstitutional poll tax or fee on its voters,” the 11th Circuit opinion says.

Maryland: The state of Maryland will pay $230,000 to settle a lawsuit brought by visually impaired voters and the National Federation of the Blind that alleged the state’s electronic voting machines compromised voter secrecy and violated the Americans with Disabilities Act. Three voters and the federation sued the state in federal court two years ago, detailing problems with the electronic devices, which are often used by voters with vision impairments or other disabilities. Since 2016, most Maryland voters have used paper ballots marked with a pen. Before that, all voters used touch screen machines. The lawsuit contended that in some instances, election judges were poorly trained or that the voting machines, known as “ballot marking devices,” were inoperable. And the lawsuit noted that the ballot marking device prints out a ballot that’s a different size and shape than the paper ballots used by other voters. That means that if only one voter used the ballot marking devices at a voting location, their ballot could be identified among the rest. Under the settlement, the Maryland State Board of Elections agreed to: improve election judge training, ensure at least half of all polling sites have two ballot marking devices, offer both paper ballots and ballot marking devices “neutrally to all voters” and work to have at least 10 voters at each site use the ballot marking devices. The state also must pay $2,000 to the National Federation of the Blind to produce an educational video about working with blind people at the polls. The video will be posted on the state website and it may be used as supplemental material for election judge training. And the next time that the state works on a new voting system, the state agreed to make sure that hand-filled ballots and those made by ballot marking devices are the same size and shape.

Michigan: A hearing is scheduled in an Antrim County election-related lawsuit in which Michigan’s Secretary of State intervened, despite a judge’s earlier decision dismissing the case. A local man, Bill Bailey, filed suit Nov. 23, accusing the county of voter fraud and of violating his constitutional rights, Antrim County Clerk Sheryl Guy acknowledged her office’s human error, an assertion backed by the state’s Senate Oversight Committee, which in June released a 55-page report rejecting claims of widespread election fraud in Antrim County and in Michigan. Bailey had 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. More than three months have passed since 13th Circuit Court Judge Kevin Elsenheimer dismissed Bailey’s lawsuit, granting a motion for summary disposition filed April 9 by attorneys with Antrim County and the state’s Attorney General’s office. Elsenheimer is scheduled to hear arguments on the objection Sept. 13, at a hearing that will take place in person at the Antrim County Courthouse beginning at 11:45 a.m.

New York: A New York appeals panel affirmed the state attorney general’s injunction against the Rensselaer County Board of Elections requiring it to provide Black and Latino voters in the upstate county with equal access to early voting locations. Attorney General Letitia James sued the county in May, accusing the elections board and its commissioners, Jason Schofield and Edward McDonough, of failing to provide voters with “adequate and equitable access” to early voting poll sites, as required by New York state’s early voting law. On June 7, New York Supreme Court justice Adam W. Silverman tossed out Rensselaer County’s three rural early voting locations for being too far spread out and not providing equitable access. The Rensselaer County Board of Elections instead appealed Silverman’s decision to challenge the annulment of exiting early voting sites. The New York Supreme Court’s 3rd Appellate Division affirmed Silverman’s underlying order Thursday and found that the elections board failed to adhere to the new law about the location of early voting places through choices it made for 2020 and did not make any revisions for 2021. The five-judge panel unanimously ruled that Rensselaer County’s designated sites did not meet state law requirements and said the board failed to conduct a serious assessment of the site or the law. “In attempting to explain their actions after the fact, the commissioners baldly averred that they had considered all the statutory factors as part of a ‘rigorous process’ to establish early voting polling places,” Presiding Justice Elizabeth A. Garry wrote for the court. “Yet, they provided few specifics as to the information they relied upon or how any of the required factors supported their determination.”

North Carolina: A panel of state trial judges refused to halt its order restoring voting rights for tens of thousands of North Carolina residents convicted of felonies whose current punishments don’t include prison time. The three judges denied the delay sought by attorneys for top Republican lawmakers on the same day the panel’s majority filed an explanation about why they authorized voting access for potentially 56,000 offenders in North Carolina otherwise unable to cast ballots. One of the judges announced that decision earlier this week, in advance of a written order. GOP lawmakers wanted the temporary delay while they appeal the ruling. A trial concluded last week in a lawsuit filed in 2019 by several civil rights groups and ex-offenders challenging state law on the restoration of voting rights. The two Superior Court judges — Lisa Bell and Keith Gregory — who agreed to issue the preliminary injunction wrote that the harm the offenders alleged they would experience by having to wait another election without voting was “both substantial and irreparable.” The order, however, said that election officials can’t deny voter registration to any convicted felon who is on probation, parole or post-release supervision. The two judges pointed to evidence presented at last week’s trial that felony disenfranchisement had origins from a Reconstruction-era effort to intentionally prevent Black residents from voting. The plaintiffs’ lawyers argued the rules in place today still violated the state constitution on free speech and equal protection requirements. “There is no denying the insidious, discriminatory history surrounding voter disenfranchisement and efforts for voting rights restoration in North Carolina,” Bell and Gregory’s order read. Their order amended an injunction from last September that ruled outstanding restitution, fees or other court-imposed monetary obligations couldn’t prevent convicted felons from voting if they’ve completed all other portions of their sentence. The expanded injunction took effect earlier this week, as State Board of Elections workers finalized registration forms for this fall’s municipal elections.

Pennsylvania: Fourteen Republican state lawmakers have filed a new lawsuit challenging Pennsylvania’s mail-in voting law, calling it unconstitutional and asking for it to be thrown out. The legal challenge was filed in the state Commonwealth Court. It is the latest attempt by Republicans to invalidate the 2019 law that Republican lawmakers almost unanimously supported. The central claim of the lawsuit is that the law — which allowed no-excuse voting by mail — is unconstitutional under a constitutional provision that requires lawmakers to provide a way for people to vote if they are unable to vote in person for specific reasons. The lawsuit says the law allows people to vote by mail even if they do not qualify for one of the exemptions, which include being out of town on business, illness, physical disability, election day duties or a religious observance. The Constitution does not explicitly say that the Legislature cannot extend absentee voting to others. Just over 2.5 million people voted under the law in 2020′s presidential election, most of them Democrats, out of 6.9 million total cast.

Virginia: In an official opinion, Attorney General Mark Herring says guns are banned near early voting locations when they are being used as a polling place. Herring concludes that a new law prohibiting firearms within 40 feet of all polling places in Virginia applies to early voting locations. But the attorney general contends the rule only applies “to the 40-foot boundary around the discrete portion of that building that is used as the polling place,” not the whole building. “No Virginian should ever feel unsafe when they are voting whether they are voting in person on Election Day or whether they are voting in person early,” Herring said in a statement. Albemarle County Electoral Board Chairman Peter Wurzer requested the formal opinion from Herring’s office. Wurzer asked whether central absentee voter precincts, voter satellite offices and offices of general registrars are considered as polling places during the early voting period, if the law applies to those locations and whether it includes the polling areas or the entire building.

Washington: Yakima County commissioners have agreed to settle a lawsuit alleging violations of the Voting Rights Act, an immigrant rights group announced. The lawsuit by OneAmerica claims Yakima County’s voting system disenfranchises Latino voters. The Yakima County Commission is divided into three districts and candidates are selected by voters only in their respective district in primary elections. But that changes in general elections, when all three commission seats become at-large and subject to countywide selection. Several years ago, the Yakima City Council was hit with a similar lawsuit and was ordered by a federal judge to redraw districts and hold elections in all council districts, which led to the election of three Latinas to the council. According to 2020 census data, Latinos now make up more than half of Yakima County’s population.

Wisconsin: A lawsuit reportedly filed aims to have documents and thousands of emails requested related to the administration of the 2020 produced. However, as of Wednesday, City Attorney Scott Letteney indicated “that none of these requestors have contacted the City regarding insufficiencies to those responses, nor have they submitted follow-up requests,” according to the city. The plaintiffs in the lawsuit claim this is false, and that requests for the documents were made “months ago.” However, emails shared by the city with The Journal Times on Thursday show that nearly 200 emails were given to the attorney leading the lawsuit last month. The plaintiffs argue that more emails need to be shared.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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