Thursday, October 14, 2021

Electionline Weekly October-14-2021

Legislative Updates

Florida: Rep. Anthony Sabatini (R-Lake County) has filed a bill ahead of the 2022 legislative session calling for the governor to “appoint an independent third party to conduct a forensic audit of the general election that took place on November 3, 2020.” The investigation would happen in each county with a population of 250,000 or more, which would be 24 out of Florida’s 67 counties, according to the state’s 2020 population estimates. The Lake County Republican Party signed a resolution calling for an audit of the 2020 results even though former President Donald Trump won the state by more than 3%, a veritable landslide in a state known for close elections.

The Clearwater City Council has vote 4 to 1 against holding a referendum on ranked choice voting because, even if residents were to approve it, the city would not be able to be implement the system unless the state recognizes it as a legal method. Council member Kathleen Beckman voted no. Sarasota was the first city in Florida to approve the system in 2007, but 14 years later, the Secretary of State has not acknowledged the system as constitutional. “It’s almost going to take somebody suing the state to make this happen,” council member David Allbritton said. “If you get real about it, it’s not something that’s going to happen for a while.”

Guam: Bills 173-36 and 174-36, both authored by Sen. James Moylan, would amend a number of local election laws, including provisions affecting the names candidates use in official documents, electioneering limits at polling sites, and a timeframe to hold a special election in the event of a vacancy for Washington delegate. The first proposal is how best to cancel certain primary elections. In order to make Bill 173’s parameters “abundantly clear,” Elizabeth Santos, acting director of the Guam election commission, requested senators amend the bill to read: “In any given election year, the Guam Election Commission shall cancel the primary election if equal to or fewer than the maximum number of candidates can advance to the general election for any partisan elected office.” The provision as offered would only cancel elections for individual offices, and only in their entirety – not for just one political party, Elizabeth Santos repeatedly assured lawmakers. The legislation also allows the GEC to no longer keep track of exactly who was supported through write-in votes. To help comply with federal overseas voting laws, the GEC is also supportive of Bill 174, which would push up the dates of the primary election, in addition to the deadlines for candidates to file packets and residents to register as voters. The Legislation proposes to push up the initial vote of an election year to the first, rather than the last, Saturday in August. If adopted, campaigns will need to file official paperwork to appear on a ballot a month earlier than current law allows. The measure also requires voters to register for an election 21 days before it is held, instead of the current 10-day window.

Michigan: GOP lawmakers in Michigan’s Senate passed a bill that would eliminate the fee to obtain a state ID card as part of a broader effort to enact a strict voter ID requirement opposed by Democratic lawmakers and voting rights advocates. In taking up the bill to provide free state IDs — HB 5007 — Republicans rejected a Democratic amendment that would have separated it from SB 303, a sweeping election bill passed by the Senate. That bill would enact a strict ID requirement for in-person voters and a brand new one for absentee voters, as well as prohibit election officials from sending unsolicited absentee ballot applications and accepting private donations. Republicans also rejected a Democratic amendment to appropriate funding for the bill to provide free IDs that passed on a party-line vote, with every Republican backing the measure. It now heads to the House. In addition to eliminating the ID fee, HB 5007 would require the Secretary of State’s Office to provide same-day service for those applying for a state ID card for the purpose of voting in an election, as well as those applying for an ID three days before Election Day, on Election Day or six days after an election.

Pennsylvania: Scott Conklin (D-Centre County) has introduced a bill that would allow pre-canvassing of ballots to begin 21 days before election day, instead of the morning of, to help reduce delays in vote county. The bill would also: Require risk-limiting audits; Provide for early voting; Give county election boards flexibility when establishing ballot return locations; Make the ‘permanent’ vote-by-mail list actually permanent; Create a system of curing for absentee and mail-in ballots; Create a public voter fraud hotline; Establish a voter bill of rights; and Seek to have the state reimburse counties for the costs of voting machines, ballot processing machines, and electronic record systems. “This is common sense, county-led, opportunities for us to strengthen our democracy,” said Centre County Commissioner Michael Pipe. “I think that county commissioners across Pennsylvania should look at this as a model for how we go into the future.”

Legal Updates

California: Dominion Voting Systems is seeking to block Santa Clara County from releasing the firm’s financial documents, arguing they contain trade secrets that make them exempt from public records laws. Santa Clara County Superior Court Judge Helen Williams said she would like to first take a look at the documents in question before making a ruling. In August, Santa Clara County received six public records requests that sought Dominion’s financial statements. As part of an agreement between the county and Dominion, the county notified the company about the records request and that they intended to fulfill it. After Dominion raised concerns about the release of the documents, the county directed them to make their case in court rather than the county making the determination. In their suit seeking to block the records from release, attorneys for Dominion argue that the company’s interest in preventing their release “outweighs” the public’s interest in receiving them. They also state that “across the nation,” individuals who are “fueled” by “false claims” that the company rigged the 2020 election have filed public records requests seeking information that intends to harm Dominion. In addition, attorneys for Dominion contend that it is in Santa Clara County’s own interest to not release the financial documents. If the documents were to be released, they argue, future vendors may be “reluctant” to work with the county.

Colorado: District Court Judge Valerie J. Robison has ruled that Mesa County Clerk and Recorder Tina Peters cannot be involved in the administration of her county’s November election. Robison sided with the Democratic Secretary of State Jena Griswold, who in late August filed a lawsuit seeking to block Peters and Deputy Clerk and Recorder Belinda Knisley from handling the next election. That lawsuit “met the burden of showing that Peters and Knisley have committed a breach and neglect of duty and other wrongful acts. As such, Peters and Knisley are unable or unwilling to appropriately perform the duties of the Mesa County Designated Election Official,” the judge wrote in a 22-page ruling. This means that former Republican Secretary of State Wayne Williams will oversee Mesa County elections this year. He was appointed by the Mesa County commissioners, under a temporary agreement that pays him $180 an hour. The commissioners supported Griswold’s suit. Wrote Robison, “Peters failed to follow the rules and orders of the Secretary by facilitating and allowing a non-employee … without a disclosed background check to have access to a secured area via a Mesa County access card. Knisley aided Peters in her wrongful acts by requesting that the cameras be disabled. In doing so, Knisley ensured that the wrongful behavior of Peters could not be viewed.”

Attorneys representing the One America News Network and Donald J. Trump for President Inc. asked Denver Judge Marie Avery Moses to dismiss defamation claims filed by a voting machine employee they falsely accused of rigging the 2020 election. Following the 2020 election, podcaster Joseph Oltmann claimed he heard a man on a call identified as “Eric from Dominion” say he was going to make sure Trump lost. Through internet research, Oltmann said he concluded this referred to Eric Coomer, a director of product strategy and security at Dominion Voting Systems. The spark caught and spread like wildfire, as it was picked up by the OAN, and repeated by the Trump campaign and attorneys Rudi Giuliani and Sydney Powell. In his 2020 lawsuit, Coomer identified 16 individuals and companies that collectively made him the villain in the narrative of unbased claims of election fraud. Threats and harassment drove Coomer into hiding. Moses did not indicate when or how she will decide the motions in question, but issued decorum and civilities orders before the hearings started.

Florida: Chief U.S. District Judge Mark Walker allowed a series of challenges to a new state elections law to move forward, setting the stage for a showdown over Republican legislators’ efforts to make it more difficult for Floridians to vote by mail and for organizations to conduct voter-registration drives. The Florida Conference of the NAACP, Disability Rights Florida, the League of Women Voters of Florida, UnidosUS and a number of other organizations allege that the changes approved by the Legislature this spring could curtail voting by Black, Latino and disabled residents. The lawsuits focus on several parts of the law that deal with voting by mail, as well as a requirement that third-party voter registration groups provide a disclaimer to people signing up to vote. The lawsuits contend that the restrictions will have a negative impact on people who work during the day and voters with disabilities, who might be forced to bring ballots into early voting sites if supervisors don’t provide drop boxes outside. Walker said Secretary of State Laurel Lee, Attorney General Ashley Moody and supervisors of elections should remain as defendants in the cases, though he dismissed the officials from some parts of the challenges. Lee argued that the case should be dismissed because the vote-by-mail restrictions do not place undue burdens on the right to vote and that the plaintiffs’ claims fail because they focus on burdens placed on “vulnerable” voters instead of on the electorate as a whole. “She is wrong on both points,” Walker wrote in a 62-page order. “In sum, defendant Lee’s arguments that restrictions on mail-in ballots do not implicate the right to vote is unsound and unsupported by precedent.”

Georgia: Superior Court Judge Brian Amero dismissed a lawsuit by Donald Trump supporters who sought to inspect absentee ballots from last year’s presidential election, a decision that came a day after Georgia investigators told the court they were unable to find any counterfeit ballots. Amero’s ruling ended the last remaining major lawsuit over Georgia’s 2020 election and prevented an outside review of Fulton County’s 147,000 original absentee ballots. Though Amero’s decision was based on the legal principle of standing — the plaintiffs hadn’t suffered a specific injury that would give them a right to sue — he reviewed the evidence before making his ruling. There was no indication of “pristine” ballots with perfectly filled-in ovals and no creases, as alleged in the lawsuit. All ballots in those batches appeared to be authentic. “While no election is perfect, there was no widespread fraud or illegal voting large enough to overturn the election,” Secretary of State Brad Raffensperger said. “The results were, as we reported, that President Trump came up short in the state of Georgia.”

Kansas: Shawnee County District Court Judge Teresa Watson has ruled that Secretary of State Scott Schwab’s office was within its rights to remove a function generating a statewide report showing which provisional ballots weren’t counted. The case, brought by Davis Hammet and the ACLU of Kansas, director of the civic engagement group Loud Light, argued Schwab’s move to ask the contractor managing the state’s voter registration database to dump a feature creating the report was a bid to circumvent the state’s open records laws. Watson ruled there was nothing compelling Schwab’s office from maintaining the ability to create the report, only that they must make the report available for inspection if the document exists. Under the Kansas Open Records Act, an entity can’t be required to create a record which doesn’t otherwise exist While Watson wrote Hammet “understandably” raises concerns about why Schwab’s office eliminated the ability to produce the report, she said that had no bearing on the lawsuit’s success. “There is no statute within or apart from KORA that requires the Secretary of State to create a statewide provisional ballot detail report either by hand or electronically,” Watson’s ruling said. “There is no statute that dictates how the Secretary of State must program the databases it uses to store information.

Michigan: Circuit Court Judge Kevin Elsenheimer denied a motion from Secretary of State Jocelyn Benson seeking to lift a stay order in a dismissed Antrim County election-related lawsuit to assess whether court-protected images from Antrim County’s voting equipment were shared during a “cyber symposium” hosted by Donald Trump supporter and My Pillow CEO Mike Lindell. Elsenheimer, responding to Benson’s motion, said that Bailey’s lawsuit — dismissed in May — had been referred to the Michigan Court of Appeals and until that court decided whether to hear the case, he was denying the motion. “I think that frankly having a two-track process in this case is not in the best interest of the public, not in the best interest of the parties,” Elsenheimer said, following a hearing Monday morning conducted over Zoom. “I can understand the position of the defense, but I believe that this matter should be resolved by the court of appeals before we take it back up for enforcement or any other purposes here in circuit court,” Elsenheimer said. “I look forward to the direction of the court of appeals, if any.”

Montana: Montana Democratic Party, Montanans for Tester, and University of Montana student Macee Patritti filed suit this week challenging a new Montana law banning voter registration and get-out-the-vote efforts in certain areas of college campuses. The plaintiffs argue the law is suppressing the vote of young people who typically favor Democratic candidates. The law prohibits political committees including student organizations from conducting voter registration drives and other political activities inside certain high-traffic public university spaces including residence halls, dining facilities and athletic facilities. The lawsuit filed in U.S. District Court in Missoula argues that the law contained in Senate Bill 319 “imposes arbitrary, vague, and onerous restrictions on the rights of college students” to participate fully in the political process. According to the lawsuit, Montanans for Tester along with the Montana Democratic Party registered over 3,000 new voters on college campuses by focusing on high traffic areas such as dorms and dining halls prior to the 2018 election. The lawsuit names Montana Secretary of State Christi Jacobsen, a Republican, and Commissioner of Political Practices Jeff Mangan as defendants in the lawsuit, and asks the court to ban them from enforcing the law.

Pennsylvania: The Democratic National Committee is seeking to intervene in a lawsuit brought by Pennsylvania Republicans aimed at curbing the use of mail voting, according to a copy of the filing shared with NBC News. Fourteen Pennsylvania Republican legislators filed a lawsuit against the commonwealth on Aug. 31, arguing that a 2019 law that expanded access to mail voting to all eligible voters was unconstitutional, according to The Associated Press. Most of the plaintiffs voted to pass the law two years ago — but since then, many Republicans have followed former President Donald Trump’s lead in attacking the method of voting. The DNC and the Pennsylvania Democratic Party filed the motion to intervene, arguing that the mail voting law is valid and constitutional. They are intervening in part because the lawsuit has been expedited by the court, and is expected to move rapidly through the legal process this fall, an attorney representing the DNC said.

Virginia: U.S. District Judge David Nova is urging Virginia Attorney General Mark Herring to issue a formal opinion on the state’s election calendar after U.S. census delays forced members of the General Assembly to run in outdated districts this year. Herring has steadfastly declined to weigh in despite receiving a formal request for an opinion five months ago from Del. Lee Carter, D-Manassas. “Maybe the attorney general wants to opine — he may want to,” said Novak during a hearing, suggesting that some clear legal direction from Herring might resolve the need for the lawsuit. “I want him to do his job, but I’m not ordering it.” After Novak proposed a three-day deadline for additional filings, the attorney general’s office protested, calling the timing unreasonable. Novak snapped back: “I wouldn’t be in this position if you had done your job the first time.”

Washington: Attorneys for the Washington Democratic Party filed motions to intervene in the lawsuits filed by Republican voters in eight counties including Snohomish, King, Pierce, Thurston, Clark, Whatcom, Lincoln and Franklin, The Daily Herald reported. They want all the cases tossed out. “This lawsuit is entirely unfounded and appears to be little more than a coordinated political attack on the integrity of Washington elections,” lawyers for the Democrats wrote in a motion filed in the Snohomish County case. “Plaintiffs stand before the Court with nothing but speculation, fueled by conspiracy theories, asking for breathtaking and entirely unwarranted ‘relief.’” The original lawsuits allege that auditors used uncertified voting equipment and manipulated thousands of ballots in an unspecified statewide race. Each lawsuit seeks a “full forensic audit” conducted in the same manner as one carried out in Arizona which found no evidence of fraud. U.S. District Court Judge Richard Jones notified the election integrity coalition that it cannot appear pro se and must get counsel by Nov. 1. Borrelli, in an email, said the group wants those cases — and any others that land in federal court — remanded to Superior Court.

Franklin County Judge Sam Swanberg is allowing Franklin County another chance to argue that Latinos are being fairly represented in county commissioner elections. Swanberg allowed the county to cancel an agreement that required the county to come up with new district maps and change to district-only elections. His decision resets the case to where it was a little more than a month ago, and sets the county and the League of United Latin American Citizens up for a trial. Swanberg suggested that should happen before the end of the year. The judge pointed out that he wasn’t making any decision about whether the county was violating the Washington Voting Rights Act. He also found merit to the argument that the county sat on its hands and was not working to defend itself. In the end, Swanberg agreed that the decision in the lawsuit affects everyone in the county, and was concerned that it appeared that the elected officials didn’t agree with the decision. “I think it’s in the best interest that the public at large (for the case) to be heard on the merits,” he said. “I think it provides a greater assurance to the community.” Swanberg said they should expedite the case, since it should have been decided on Sept. 13 as part of the court hearing where the two sides entered into the agreement.

Wisconsin: Dane County Valerie Bailey-Rihn ordered Assembly Speaker Robin Vos, R-Rochester, to immediately release records about the investigation previously requested by American Oversight, a national nonprofit group that, according to its website, “uses public records requests backed by litigation to fight corruption, drive accountability, and defend democracy.” The judge’s order said Vos has “unjustifiably withheld and refused to release the contractor records to which Petitioner is entitled.” If Vos refuses to immediately release the documents, the order calls on him to appear in court on Nov. 5. In a prepared statement, Austin Evers, executive director of American Oversight, lauded the court’s action. “Wisconsin has a right to know how this taxpayer-funded investigation is being orchestrated,” Evers said. Vos could appeal the decision. According to Wisconsin Public Radio, his office didn’t immediately respond to a request for comment.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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