Legislative Updates
Federal Legislation: Sen. Patrick Leahy (D-Vermont) has introduced legislation aimed at restoring the power of the Voting Rights Act, reinvigorating their push to protect voting rights against a slew of voting restrictions enacted in Republican-led states. The House of Representatives passed a version of the legislation, named for the late congressman and civil rights icon John Lewis of Georgia, earlier this year. Leahy introduced the bill, saying that “tens of thousands of Americans are being disenfranchised under the guise of state law.” “This tidal wave of voter suppression efforts seeks to bend the arc of equal justice and equal rights backward,” Leahy said on the Senate floor. “We should not allow that to stand. Action in Congress is desperately needed.” The legislation would update the Voting Rights Act to strengthen sections that were gutted by the Supreme Court’s 2013 Shelby County v. Holder decision and 2021 Brnovich v. Democratic National Committee decision. The Shelby County decision gutted Section 5 of the law, which allowed the Justice Department to screen voting changes in states with a history of racial discrimination. The Brnovich decision, which was decided earlier this year, upheld a pair of Arizona voting restrictions that Democrats said threatened to suppress the vote of racial minorities. Advocates decried the ruling as a weakening of Section 2 of the VRA, which barred racially-targeted voting policies.
Massachusetts: Senate Democrats released an elections overhaul bill touted as a way to remove obstacles to the ballot box and to build on changes that suddenly gained momentum during the COVID-19 pandemic. The bill (S 2545) goes beyond enshrining changes already embraced on a temporary basis, allowing prospective voters to register for the first time or update their registration and cast a ballot on the same day, a change known as same-day registration. It would also create new supports for voters with disabilities and impose additional requirements on correctional facilities to ensure the thousands of incarcerated residents still eligible to vote can access ballots. Under the Senate bill, voters would permanently be able to cast early ballots by mail in any election. The secretary of state would be required to launch an online application portal and to send applications for mail-in ballots by July 15 in every even-numbered year, with applicants able to request ballots for the primary and the general elections. Senate Ways and Means Committee Chair Michael Rodrigues said the prepaid postage carries a minimum price tag of about $2 million to $3 million per year. Officials would also need to offer in-person early voting periods — two weeks before general elections, one week before primary elections — ahead of presidential or state primaries, biennial general elections, and municipal elections held on those days. Cities and towns could opt in to offer early voting for municipal elections not held concurrently with a state election. Voters with disabilities could request accommodations including electronic and accessible instructions and an electronic voter affidavit. Sen. Barry Finegold, who co-chairs the Election Laws Committee, said lawmakers continue to consider other online voting options but are “just not there yet.” The bill would also require correctional facilities to help eligible incarcerated residents register to vote, apply for and return mail-in ballots, and understand their voting rights. The secretary would need to enroll Massachusetts in the multi-state Electronic Registration Information Center by July 1, 2022 under the bill. The bill also includes some reforms that direct sheriffs and other correction officials to help incarcerated and eligible voters learn their rights and apply for and cast ballots by mail. The Senate passed the bill by a 36-3 vote.
Michigan: Michigan Senate Republicans passed several House bills as part of the party’s effort to make major changes to the state’s election law following the 2020 presidential election. After Senate lawmakers made small adjustments to four election bills previously passed by the House, they were returned to the lower chamber, which quickly approved the changes. Those bills now head to Gov. Gretchen Whitmer. One bill — HB 4838 — would prohibit the electronic poll book and tabulators from being connected to the internet. The bill passed the Senate 21-15. Another bill — HB 4837 — would limit who can access the state’s voter files, limiting access to the secretary of state, county and local clerks, credentialed election officials and employees who perform system maintenance on the file. The Senate passed the bill 21-15. A third bill — SB 280 — would change the timeline for canvassing signatures on initiative petitions. It passed the Senate on a 20-16 party-line vote. Another bill — HB 4528 — would require the Secretary of State’s office to create comprehensive training for political parties and organizations that appoint election challengers. It passed the House with bipartisan support in June and passed the Senate 21-15. A final bill — HB 4492 — would expand the types of places eligible to serve as polling locations. Privately owned buildings such as an apartment, hotel conference center or recreation clubhouse could serve as a polling location under the bill. Local clerks support the bill and it passed the House with bipartisan support. The Senate approved it 21-15. Gov. Gretchen Whitmer (D) vetoed the bills during a ceremony at an NAACP dinner. I’ve done a lot of ceremonies when I sign bills,” Whitmer said. “Tonight, I’m going to sign the veto letter.”
A state House committee approved legislation that would make illegal the state’s online application form for absentee ballots. HB 5288, sent to the full House by the House Elections and Ethics Committee, after a 5-2 party line vote, requires voters seeking absentee ballots to physically sign their applications and bans the use of digital or electronic signatures. The bill, sponsored by state Rep. Andrew Beeler, R-Fort Gratiot, would prohibit the secretary of state and local election officials from providing an online absentee ballot application that does not require a physical signature. The online application now available on the website of the Department of State allows a digital signature, provided certain other identifying information is provided. The governor has promised to veto the legislation if it is approved by the Republican-controlled Legislature. As approved by the committee, the bill would allow voters to apply for absentee ballot applications by email and fax, in addition to the in-person and regular mail options now available.
The committee also adopted a substitute version of a bill that prohibits the secretary of state from sending unsolicited absentee ballot applications to voters, as Benson has done for recent elections. House Bill 5268, sponsored by state Rep. Julie Calley, R-Portland, also bans local clerks from sending absentee ballot applications to voters who have not requested applications. But the bill was not voted on and remains in committee.
House Republicans passed a bill that would change the timeline for the state’s elections panel to certify petition initiatives. The legislation would require the Board of State Canvassers to deem whether an initiative petition has received enough signatures within 100 days after a petition is filed with the Secretary of State’s office. The timeline would be even shorter for petitions filed at least 160 days before a November general election — those have to be canvassed by the board within 60 days. It passed the House without debate with only Republicans backing the measure. The GOP bill passed the Michigan Senate last week on a party-line vote with every Republican supporting the legislation. The bill now heads to the governor.
The GOP-controlled Senate supported a sweeping bill to change the state’s election laws, setting up a potential confrontation with Gov. Whitmer, who is expected to veto the proposal. The legislation, which was changed on the Senate floor moments before the vote, passed 20-15, along party lines. It would establish stricter requirements for voter identification and would ban election officials from sending out absentee ballot applications unless they are requested by voters. Democratic Secretary of State Jocelyn Benson broadly sent out absentee ballot applications ahead of the 2020 presidential election, citing the COVID-19 pandemic. The Senate bill would mandate that in-person voters present identification for their ballots to count and that those voting absentee submit their driver’s license number, state personal ID number or the last four digits of their Social Security number. The new version of the Senate bill now closely resembles the GOP-backed Secure MI Vote petition initiative, which aims to gather 340,047 petition signatures to put a policy proposal before the state Legislature. Under that scenario, the governor would have no say in whether it becomes law. The bill still has to go to the GOP-controlled House and Whitmer’s desk. It’s unclear whether the House is on board with the new version of the legislation.
New York: State Sen. Zellnor Myrie (D-Brooklyn), has introduced S.7382 to repeal Section 17-140 of the state Election Law, relating to furnishing money or entertainment to induce attendance at polls. Commonly known as the “line warming ban” the legislation prohibits organizations from handing out refreshments, water or other items such as PPE or hand sanitizer while individuals wait in line to vote. Anyone prosecuted under the statute is subject to a Class A misdemeanor, punishable by up to one year in jail or three years’ probation and a fine of up to $1,000 if found guilty. “The statute is antiquated, burdensome, vague, and potentially unconstitutional. Simply put, it does not serve a legitimate purpose in the administration of elections in our state, and as such should be repealed,” Myrie wrote about the legislation.
North Carolina: A bill re-emerged to use jury excuses to kick people off voter registration rolls in North Carolina, targeting people who say they’re not citizens to get out of jury duty. House Bill 259 would also require that any new voting machines purchased in the state be manufactured in the United States by companies based in the United States. The idea is to limit the potential for foreign interference. The jury/citizenship language was added to the bill in the House Election Law and Campaign Finance Reform committee, which sent it straight to the House floor on what appeared to be a party-line voice vote, with Republicans voting for it and Democrats against. Under the bill, clerks of court would note whenever people called for jury duty say they’re not citizens and forward their names to the State Board of Elections. The state board would then use that information to clean the state’s voting rolls, removing potential non-citizens who can’t legally vote. If the board sees the person has voted before, they would forward that name to the local district attorney for potential criminal prosecution.
Texas: The Senate has approved Senate Bill 10 along a party-line vote. The bill increases penalties for illegal voting, something that had been decreased by the massive election reform bill passed this summer. Republican senators returned to the sweeping voting bill they championed over the last few months to further restrict the state’s voting process and narrow local control of elections. The bill contained a little-noticed change made by the House that lowered the penalty for illegal voting from a second-degree felony to a Class A misdemeanor. Abbott signed that measure, Senate Bill 1, into law less than a month ago, but last week ordered lawmakers to reverse course. A second-degree felony in Texas is punishable by up to 20 years in prison, while Class A misdemeanors are punishable by up to a year in jail, but can be resolved with a fine. “That [House] amendment came late in the process, and now that the smoke has cleared and everyone has had time to look at all the details … this will maintain the status quo,” said state Sen. Bryan Hughes, the Mineola Republican who authored both the penalty change and the original legislation.
The Senate also approved Senate Bill 47 which gives all state or county party officials the ability to trigger mandatory reviews of the 2020 election. The audit legislation would allow state or county party chairs to mandate a review of the 2020 election by simply submitting a request in writing to a county clerk. That would include a review of actual ballots voted in the election. In future elections, a second part of the bill would allow candidates, county party chairs, presiding polling place judges or heads of political action committees that took a position on a ballot measure to push for audits if they suspect irregularities. That process would begin with a written request to the county clerk for an “explanation and supporting documentation” for alleged irregularities or election code violations. If the person requesting the review is not “satisfied” with the response, they could request “further explanation.” If they are still unhappy, they could turn to the Texas secretary of state to request an audit of the issue. If the secretary of state determines the county’s explanations are inadequate, it must immediately begin an audit of the issue at the expense of the county.
Legal Updates
Arkansas: The legality of a quartet of Republican-backed election measures will be decided by the state Supreme Court following a ruling that sovereign immunity does not shield the measures from a lawsuit filed by the League of Women Voters. Pulaski County Circuit Judge Wendell Griffen rejected all state lawyers’ arguments to dismiss the 4-month-old litigation, ruling that the plaintiffs — the League of Women Voters, immigrant advocates Arkansas United and five Arkansas voters — met the legal standard to overcome the state’s defenses at this stage of the proceedings. The plaintiffs say the new election laws put their voting rights at risk in an unconstitutional attack on poor and minority voters. Griffen’s ruling is not a decision on the merits of those accusations but a ruling on the state’s legal arguments to dismiss the suit. The laws at issue are Act 249, involving voter identification; Act 728, regulating campaigning around the polls during voting; Act 736, affecting how ballots are validated; and Act 973, which sets deadlines for mail-in absentee ballots. Claims by lawyers for defendants Secretary of State John Thurston and the state Board of Election Commissioners that they cannot be sued because of sovereign immunity are “without merit” because of claims that the laws violate both the state and federal constitutions, Griffen ruled. State lawyers are obligated to immediately appeal such a decision or the defense is waived. The judge’s findings will be issued in writing within two weeks.
Florida: Groups challenging the constitutionality of a new Florida elections law are asking a federal judge to force the conservative Heritage Foundation and its lobbying arm to turn over documents about the development of the law. The Florida State Conference of the NAACP, Common Cause and Disability Rights Florida filed an 18-page motion in federal court last week seeking to force the Heritage Foundation and Heritage Action for America to provide documents subpoenaed in the underlying challenge to the law (SB 90). The motion contends that Heritage was “intimately involved in meeting, conferring, and strategizing with key Florida legislators about SB 90″ and that the documents could provide evidence about the law’s purpose and its drafting. The subpoenas focus on information about communications between Heritage and state officials, according to the motion. “Plaintiffs’ subpoenas to Heritage seek a targeted set of highly relevant records bearing directly on plaintiffs’ claims and defendants’ arguments in the litigation,” the motion said. “Heritage was extensively involved in pushing for state legislation to restrict voting rights, including with respect to SB 90. The specifics of its activities and interactions with Florida legislators and Florida’s governor leading up to SB 90′s passage and enactment are thus highly salient.” The motion said Heritage, which is not a party in the lawsuit, had declined to turn over the requested documents. U.S. District Judge Donald Middlebrooks on Friday ordered Heritage to respond to the motion by press time.
Georgia: According to the Atlanta Journal-Constitution, plaintiffs in a lawsuit seeking to review Fulton County absentee ballots asked a judge to dismiss the three Democrats who were on the county’s election board last year, leaving two Republicans as defendants who support the investigation. The plaintiffs argue that if they can see original paper ballots, they’ll be able to find counterfeits — or at least raise further suspicions about the election, similar to a recently concluded ballot review in Arizona that ended up adding to Biden’s margin of victory. “They want to proceed without an adversary challenging the legitimacy of the complaints,” states a court filing by three Democrats who have served on Fulton’s elections board. “This proceeding has devolved into nothing other than political theatrics.” It’s unlikely the legal tactic will be successful, said Bryan Sells, an election law attorney who isn’t involved in the Fulton case Judges usually disfavor “collusive” lawsuits, in which plaintiffs try to manipulate the legal system by suing their allies, Sells said.
Michigan: A group of former 2020 Michigan poll challengers are suing Dominion Voting System for allegedly harming them with cease and desist letter. The eight plaintiffs in the case argue that Dominion sent them harmful cease and desist letters warning them against “defaming Dominion” after the plaintiffs voiced their concerns about the voting process in affidavits, but allegedly did not mention Dominion. The notices they received from Dominion left them “consumed with a sense of fear,” the lawsuit reads, and “clearly damaged.” The new lawsuit against Dominion alleges that the company violated the civil provision of the Racketeer Influenced and Corrupt Organizations Act, engaged in a civil conspiracy and deprived the litigants of numerous constitutional rights.
North Carolina: A North Carolina appeals court ruled that former Republican Governor Pat McCrory’s supporters can be sued for allegedly defaming four residents who were falsely accused of voting twice in the 2016 gubernatorial election, the Associated Press reported. The unanimous ruling from the three judges allows a trial court to hear the case against the Pat McCrory Committee Legal Defense Fund and the Virginia-based Holtzman Vogel Josefiak Torchinsky law firm. The Southern Coalition for Social Justice lodged a complaint in 2017, concerned with how lawmakers and their supporters should be penalized for making inaccurate voter fraud claims. The lawsuit accuses McCrory supporters of participating in a “civil conspiracy” that harmed four Brunswick and Guilford County voters’ reputations. The voters are seeking damage compensation in excess of $25,000. The judges also decided that William Clark Porter, a GOP official in Greensboro whose signature was on one of the election protests that was filed, is entitled to a legal defense that would likely clear him of defamation claims because he participated in a “quasi-judicial election protest proceeding.”
Tennessee: Shelby County Chancellor Gadson W. Perry has denied the request of the Shelby County Election Commission to force the Shelby County Commission to fund its call for the purchase of ES&S electronic voting machines to replace the county’s existing election machinery. Both bodies agree that the old voting machines must be replaced, but have disagreed on what should replace them, with the county commission maintaining that, as the entity empowered to pay for and to “adopt” the replacement devices, its twice-expressed official preference for devices employing paper ballots should prevail over the Election Commission’s choice of the $5.4 million ES&S ballot-marking devices, as recommended by Election Administrator Linda Phillips. After a hearing Perry denied the Election Commission’s petition for a writ of mandamus, which would have forced the issue in the EC’s favor. The judge cited contradictions in specific Tennessee statutes, with one of the several laws discussed in the hearing concretely giving the EC the right to select election machinery, while another, just as firmly, supported the county commission’s contention that its control of funding precluded a “duty” to rubber-stamp the EC’s choice. The bottom line, said Perry in denying the writ of mandamus, is that the warring statutes in effect endowed the differing parties with a “push-pull” relationship on the voting-machine matter, with an implicit imperative to work out some agreement between themselves.
Texas: U.S. District Judge George Hanks struck down two state laws prohibiting people from wearing clothing with political messages on them in or near polling locations. The statutes violate voters’ First Amendment right to free speech, the judge found, and fail to set an objective standard for the laws’ enforcement. Arguing against the Texas laws, the plaintiffs referenced Minnesota Voters Alliance v. Mansky, a 2018 Supreme Court case that set the precedent for the constitutionality of such laws. In that case, a Minnesota law prohibiting people from wearing political buttons or insignias at polling locations was under fire from voters who were turned away at the polls. The high court struck down the law for failing to have an “objective, workable standard” of what items were considered political and should be banned. Hanks rendered the court’s final judgment, issuing a two-page order adopting Edison’s recommendations and rendering the statutes unconstitutional for violating the First Amendment.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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