Legislative Updates
Maine: A panel of voting and immigration experts told members of Portland’s Charter Commission that extending voting rights to noncitizens is a laudable goal but is fraught with possible unintended consequences. It also could conflict with another objective of some commissioners, holding mayoral elections in high-turnout years, such as presidential and gubernatorial elections. If recommended and approved by voters, Portland would be the first community in Maine to enfranchise noncitizen voters and join more than a dozen other communities nationwide. Advocates have argued that noncitizens should be allowed to vote in municipal elections because they are part of the community, pay local taxes, have children in the schools and are impacted by the school board and city council policies. Opponents, however, argue that voting is a right afforded only to U.S. citizens and should remain that way. Extending voting rights to noncitizens in Portland has surfaced periodically over the last decade, but has failed to move forward. The most recent effort in 2018 was halted after immigrant advocates expressed concerns about the consequences of noncitizens accidentally voting in state or federal elections, which are only opens to citizens, or if separate voter rolls required for noncitizens fell into the wrong hands.
Michigan: A bill that would impose strict ID requirements on voters, as well as restrict election funding and ban election officials from mailing absentee ballot applications unless a voter specifically requests one was on a 56-51 party-line vote. They also voted on a bill that would lay out the steps voters must follow to ensure their ballot counts if they do not comply with the new ID requirements, as well as a third bill that would eliminate the fee to obtain a state ID. Both bills also passed without the support of any Democratic lawmakers. The free ID bill was sent to Whitmer by the House, but the two other bills must undergo a final procedural step in the state Senate before they’re presented to the governor. The bill — SB 303 — would eliminate the option for those voting in person who do not have a photo ID to sign an affidavit affirming their identity and vote normally. Voters requesting an absentee ballot would have to include their driver’s license or state ID number, last four digits of their Social Security number or a copy of a photo ID with their absentee ballot application. Voters who do not comply with the new ID rules would be issued a provisional ballot that would not count unless a voter took additional steps to verify their identity. SB 304 — which is tied to the voter ID bill — lays out the process: Within six days of the election, those issued provisional ballots would have to present an ID, along with a documentation verifying their address. If voters do not have a photo ID, they would have to provide a copy of their birth certificate or Social Security card as well as documentation verifying their address. Gov. Gretchen Whitmer (D) vetoed the legislation.
New Hampshire: After a city councilor proposed nixing Keene’s primary elections due to high cost, low voter turnout and a minimal number candidates eliminated from the general election ballot, officials are taking a closer look at whether this would be the right move for the city. In a Sept. 13 letter to the city council and Mayor George Hansel, Councilor Randy Filiault suggested either eliminating Keene’s municipal primary election or raising the number of candidates needed to trigger one. The city council’s Finance, Organization and Personnel Committee voted unanimously to place the request on more time — a move that allows the committee to continue the discussion at a later date after more information has been collected.
Texas: Despite unusually heavy lobbying from the former president, two elections bills that he pushed Gov. Greg Abbott to enact this fall are all but dead according to the Houston Chronicle. One would have eased up the process for requesting an election audit, and another would have raised the penalty for the crime of illegal voting, a reversal of a provision that top Republican leaders said was accidentally included in a sweeping elections bill Republicans passed in the summer. The former president had zeroed in on the bills in messaging to his supporters, Even so, both bills passed quickly in the Senate in early October, but neither received a committee hearing in the House. The illegal voting bill calls for making the criminal offense for illegal voting a second-degree felony, subject to a year in jail, which would be an increase from its Class A misdemeanor status. It would alter language in the much contested voting rights bill the state legislature ultimately passed in late August after Democrats staged a walkout and fled to Washington, D.C., to deny Republicans a quorum to take up the bill. The elections audit legislation, if passed and signed into law, would have directed county clerks to form an “election review advisory committee” to look into the results of the 2020 presidential election in specific precincts, selected randomly, if a request is made by a state or county party chair, according to the paper. Additionally, the bill called for making the process easier for candidates and other individuals to ask their county clerk or the secretary of state for an audit. The legislative session ended this week.
Legal Updates
Arizona: Maricopa County Superior Court Judge Michael Kemp has rejected broad claims by the Senate that it need not disclose various documents related to its audit of the 2020 election. Kemp chided the Senate for withholding virtually every communication among Senate President Karen Fann; Sen. Warren Petersen, who chairs the Judiciary Committee; and Ken Bennett and Randy Pullen, who served as liaisons with Cyber Ninjas, the firm Fann hired to conduct the audit. It was the second time this week that a judge has ruled against the Senate on the issue. Maricopa County Superior Court Judge John Hannah, hearing a separate lawsuit, said Tuesday he would not accept the arguments by Fann that he should just accept the Senate’s assertions the documents at issue are protected by “legislative privilege.’’ The Senate claims that “legislative privilege” shields communications with anyone associated with Cyber Ninjas and the companies it hired. “Senate defendants’ position is clearly overbroad,” Kemp wrote. He said the interest of the public at large “substantially outweighs” any interest the Senate has in keeping the information secret. That is even more important, the judge said, given the issues at stake here. “It is hard to imagine more serious litigation than the disclosure of documents underlying an audit of the election of the president of the United States and a United States senator in Maricopa County,” Kemp wrote.
Colorado: Attorneys for Mesa County Clerk Tina Peters have filed a direct appeal to the Colorado Supreme Court, asking its seven justices to overturn an order by District Judge Valerie Robison barring Peters and her deputy from overseeing this fall’s elections. In his request for appeal, former Secretary of State Scott Gessler, who is representing Peters and Deputy Clerk Belinda Knisley, wrote that Robison overstepped her authority in removing the clerk as the county’s designated election official. Called a Section 113 filing, Robison ruled last week that Peters had “committed a breach and neglect of duty and other wrongful acts.” Gessler said the law doesn’t allow Robison to declare a vacancy in such matters “The lower court did not have authority to declare an absence and remove and replace a clerk or deputy clerk,” Gessler wrote. “No statute gives a lower court this authority, and (declaratory judgment laws) likewise does not constitute sufficient procedural authority for a district court to make a declaration of inability or unwillingness to serve.” The Secretary of State’s Office filed a lawsuit against Peters and Knisley after determining that both played a role in compromising the county’s Dominion Voting System election equipment. While state laws allow for appeal on district court rulings directly to the Supreme Court in certain circumstances, bypassing the Colorado Court of Appeals, there are no laws or rules governing when justices must act, according to the Colorado Judicial Branch. As a result, the county and the Colorado Attorney General’s Office won’t file response briefs unless the court agrees to take the case. It takes a majority of justices to agree to hear an appeal.
Florida: A Florida law passed in 2019 that conditions felons’ voting rights on their payment of fines, fees and restitution does not unconstitutionally discriminate against low-income women of color, the 11th Circuit has ruled. A unanimous three-judge panel of the Atlanta-based appeals court found that two Sunshine State felons failed to show that Florida‘s Republican-controlled Legislature had any “discriminatory intent” in passing Senate Bill 7066, which requires felons to pay all fines and legal fees associated with their conviction before they can vote again. SB 7066 immediately sparked legal challenges from voting rights groups who likened the legislation to a poll tax. The en banc 11th Circuit largely put the issue to rest in a 6-4 decision last year, overturning a Florida federal judge’s injunction against the law and finding it did not violate felons’ 14th Amendment due process rights. Although U.S. District Judge Robert Hinkle had moved to block major portions of SB 7066 with the now-overturned injunction, he also found that the law’s pay-to-vote requirement was not discriminatory on the basis of gender. Southern Poverty Law Center attorney Nancy Abudu, who represents plaintiffs Rosemary McCoy and Sheila Singleton, challenged that finding 11th Circuit. Abudu argued that Hinkle had incorrectly rejected their gender discrimination-based claims alleging that the law is unconstitutional because it places an undue burden on poor Black women. In an 11-page ruling issued Monday, U.S. Circuit Judge Jill Pryor wrote that Hinkle applied the correct legal standard when he ruled against the plaintiffs’ claim that the payment requirement discriminates against women in violation of the 14th Amendment’s equal protection clause and the 19th Amendment, which granted women the right to vote and prohibits the denial of the right to vote based on sex. Pryor, a Barack Obama appointee, wrote that the plaintiffs failed to prove the existence of discriminatory intent in the law. “The equal protection gender discrimination claim McCoy and Singleton advanced can be sustained only upon a showing of discriminatory intent. Because McCoy and Singleton did not attempt to make this showing, their equal protection clause claim fails, and the district court was correct to reject it,” Pryor wrote.
Pennsylvania: Commonwealth Court Judge Kevin P. Brobson ruled a lawsuit to block the use of electronic voting machines used in Northampton County and elsewhere can move forward. Brobson rejected arguments by the state’s top election official that election security advocates and more than a dozen Pennsylvania voters lacked standing and had failed to make valid claims about the ExpressVote XL voting machines used in Northampton and Philadelphia counties. The National Election Defense Coalition and Citizens for Better Elections filed a petition in January 2020 seeking a preliminary injunction requiring the state to decertify the ExpressVote XL electronic voting system for the primary and general election. A spokesperson for the Pennsylvania Department of State said it had no comment on the decision. Brobson, who authored the opinion for the three-judge panel, is the Republican candidate for a seat on the state Supreme Court this November. Brobson wrote that he agrees with the state that the groups and voters must show that the decision to certify the ExpressVote XL machines was “fraudulent, in bad faith, an abuse of discretion or clearly arbitrary,” but it is unclear from the facts alleged in the lawsuit whether that was the case. Further development of the facts in the case is needed to analyze the decision, he said. He also rejected the state’s claim that the voters and advocacy groups lack standing, finding that they have an immediate and direct interest in ensuring that their votes are accurately recorded. Finally, he rejected the state’s claim that the suit must be dismissed because it does not include the counties. Brobson found that because the petitioners are not seeking a remedy from the counties, they need not be named as respondents. Further, he wrote, the counties should be prepared in the event the voting machines they choose are decertified because the secretary of state has the power to do that at any time.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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