Thursday, September 9, 2021

Electionline Weekly September-8-2021

Legislative Updates

California: The Senate has approved legislation to make vote-by-mail permanent in the Golden State. The state Assembly voted to do that months ago. But because the Senate made some changes to the proposal, the Assembly must vote on it one more time before sending it to Newsom, who will decide whether to sign it into law. Republicans opposed the bill citing a recent incident in Los Angeles County where a man was found sleeping in his car with 300 unopened ballots for the Sept. 14 recall. California’s state government does not print and mail ballots. That job falls to the state’s 58 county governments, which vary in size and funding. Since most of the state’s more than 22 million registered voters already vote by mail, this bill — if it becomes law — would require an additional 2.3 million ballots to be mailed for statewide elections.

Texas: Gov. Greg Abbott (R) has signed SB1 into law. SB 1 is set to take effect three months after the special legislative session, in time for the 2022 primary elections. While SB 1 makes some changes that could expand access — namely increasing early voting hours in smaller, mostly Republican counties — the new law otherwise restricts how and when voters cast ballots. It specifically targets voting initiatives used by diverse, Democratic Harris County, the state’s most populous, by banning overnight early voting hours and drive-thru voting — both of which proved popular among voters of color last year. The new law also will ratchet up voting-by-mail rules in a state where the option is already significantly limited, give partisan poll watchers increased autonomy inside polling places by granting them free movement, and set new rules — and criminal penalties — for voter assistance. It also makes it a state jail felony for local election officials to proactively distribute applications for mail-in ballots, even if they are providing them to voters who automatically qualify to vote by mail or groups helping get out the vote.

In the waning hours of the second special legislative session, by a 17-14 vote the Senate approved Senate Bill 97 that would create a new county-level auditing process for elections and give all state or county party officials the ability to trigger mandatory reviews. It was filed by state Sen. Paul Bettencourt, R-Houston, who has acknowledged the Senate is “operating a little bit at warp speed” to move the legislation in the waning days of the special legislative session. The House never considered it, as time ran out on the special legislative session.

Wyoming: At a meeting of the Joint Corporations, Elections and Political Subdivisions Committee in Sheridan, committee members: Voted to table a bill that would create open primaries in the state; Voted 8-5 against a bill that would have implemented ranked-choice voting. The committee will not sponsor it during the upcoming session, but an individual lawmaker could sponsor it; Voted 11-2 to introduce a bill that would give county clerks more time to process absentee ballots before Election Day; and Advanced two bills related to creating runoff elections to the committee’s next meeting, where members will decide whether it will get committee sponsorship. The draft bill would give county clerks more time to process absentee ballots before an election, allowing them to count absentee ballots beginning on the Thursday or Friday before Election Day, if needed. The votes still would not be made public in any way and would not be incorporated into the total vote count until after polls close on Election Day. Additionally, by a 7-6 vote, the committee voted to advance a bill shift the state’s elections to a runoff system, but not a ranked choice system.

Legal Updates

Georgia: Rep. Philip Singleton (R-Sharpsburg) has joined a lawsuit seeking to bring Georgia’s electronic voting equipment into compliance with Georgia law. Filed by, the suit alleges that the state’s voting machines, purchased in 2019, don’t comply with the 2019 state law that requires machines to produce a voter-verifiable paper trail. The suit asks for a declaratory judgement finding the machines do not comply with state law, as well as temporary and permanent injunctions against their use.

Hawaii: U.S. District Judge Jill Otake denied a motion to dismiss a lawsuit filed by six former residents who claimed they were wrongfully denied their right to vote in the 2020 U.S. election because they moved to Guam and the U.S. Virgin Islands. The plaintiffs in the case argued that had they moved to a foreign country they would have retained their right to vote in U.S. elections, but because they moved to non-state territories, they were wrongfully denied that right. The lawsuit was originally filed on behalf of Air Force veteran Randall Jay Reeves, who moved to Guam in 1996 to work for the Federal Aviation Administration, but lost his ability to vote after being transferred to Hawaii in 2002 before going back to Guam. Another plaintiff, Vicente “Ben” Borja, a Navy veteran who is now the lead plaintiff in the case, lived in Hawaii before moving to Guam in accordance with his wife’s dying wishes. The plaintiffs filed their lawsuit in October 2020 to challenge Hawaii’s Uniform Military and Overseas Voters Act, or UOCAVA, enacted in 1986, which they claim violates their Fifth and Fourteenth Amendment rights under the Constitution. The complaint notes that even citizens who have never set foot on U.S. soil are eligible to vote, yet former Hawaii residents who move to Puerto Rico, Guam, the U.S. Virgin Islands or American Samoa, all legally considered U.S. territory, must currently forfeit that right. The defendants, which includes the federal government and Hawaii’s chief election officer, twice sought to have the case dismissed, claiming the federal court lacks subject matter jurisdiction under Article III of the Constitution

North Carolina: The state Court of Appeals blocked a lower-court ruling that would allow convicted felons who’ve finished their time behind bars but are still on probation or owe fines to register to vote in North Carolina. A divided three-judge panel said about 12 days ago that these people should be able to vote, and it issued a court order to that effect, opening the door for people in that situation to register. With Friday’s decision from the Court of Appeals, the state’s prohibition against felons voting until they have completed their entire sentence remains in place while the lawsuit runs its course. Plaintiffs in the case quickly asked the state Supreme Court to reverse the reversal, filing Friday afternoon for an immediate temporary stay. “Unless this court acts, over 56,000 people who have already been told they can legally vote will be disenfranchised, and the administration of North Carolina’s upcoming municipal elections will be thrown into confusion,” attorneys said in their filing. Here’s the status for now, and going forward unless the N.C. Supreme Court acts: People who have completely finished a felony sentence, including paying fines and finishing any supervised release, can vote in North Carolina, as has been the case for decades. People who have finished their active sentence, but are still on probation or still owe money, cannot vote.

Texas: In separate federal lawsuits filed in Austin and San Antonio, a coalition of groups that serve Texans of color and Texas with disabilities and Harris County sued the state over Senate Bill 1 before it was even signed into law, arguing it creates new hurdles and restrictions that will suppress voters and unconstitutionally discourage public officials and organizations from helping Texans exercise their right to vote. The lawsuits claim the legislation violates a broad range of federal laws — the Voting Rights Act, the Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act of 1973 — and the First, 14th and 15th Amendments. “Egregiously, SB 1 takes particular aim at voters with disabilities, voters with limited English proficiency — who, in Texas, are also overwhelmingly voters of color — and the organizations that represent, assist, and support these voters,” the plaintiffs in the Austin lawsuit wrote in their complaint. The plaintiffs in the San Antonio lawsuit, which includes Harris County, also raise claims that lawmakers intentionally discriminated against voters of color in pushing the legislation. The plaintiffs attack head on the lack of evidence that fraud is a widespread problem in Texas elections. In the San Antonio lawsuit, they argue SB 1’s “additional burdens and restrictions” cannot be justified by invoking “unspecified and unproven voter fraud” when there is no proof that it occurs “beyond the very few examples already identified through Texas’s pre-existing processes and procedures.” “Rather … SB1 is a reaction to Texas’s changing electorate, which is now more racially diverse and younger than ever before,” they wrote in their complaint. The League of United American Citizens has also filed suit against the law in U.S. District Court in Austin. “LULAC strongly opposes this attack on our voting rights and freedoms because they have one and only one purpose: to dilute our voice at the ballot box and continue to stop electoral change in Texas,” LULAC National President Domingo Garcia said in an emailed statement. “Texas voters deserve fair, open, and transparent elections, not a process rigged to deny our communities, whose numbers are growing, the right to vote.”

The 5th U.S. Circuit Court of Appeal has upheld a lower court ruling that the state is on the hook for $6.8M in legal fees — the last vestige of the legal battle over the 2011 restrictions the state set on what forms of photo identification are accepted at the polls. The Texas attorney general’s office had appealed that lower court ruling, which found the plaintiffs in the litigation — Democratic U.S. Rep. Marc Veasey of Fort Worth, individual voters, voting and civil rights groups, the NAACP-Texas and the Texas House’s Mexican American Legislative Caucus, among others — were the “prevailing parties.” “It seems obvious that they are,” the 5th Circuit judges wrote Friday. “Plaintiffs successfully challenged the Texas photo ID requirement before our en banc court, and used that victory to secure a court order permanently preventing its enforcement during the elections in 2016 and 2017.” “The State of Texas obviously cannot go back in time and re-run the 2016 and 2017 elections under a photo ID requirement,” the 5th Circuit judges wrote in their Friday ruling.

Washington: Franklin County admitted this week that county commissioner elections violate a state voting law by discriminating against Latino voters. Now, attorneys for the county are asking for time to fix the system so it complies with the Washington Voting Rights Act, according to court documents filed this week The county has been accused of keeping Latino voters separated by voting districts and silenced by having at-large elections. “The size of the Latino population in Franklin County and the existence of polarized voting among its citizens is factually supported,” they wrote in the court documents. “To argue otherwise, Franklin County would have had to cherry-pick small, outlier precincts that stand contrary to the overall trends of the 105 precincts,” they wrote. While they agreed that the way commissioners are elected needs to change, they are asking for time to get input on how the districts should be redrawn. They are asking to have until Nov. 15 to present a proposal to the court.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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