Legislative Updates
Georgia: The House of Representative overwhelmingly approved a set of bills that would dissolve the current Floyd County Board of Elections and create a new five-person board. The votes on House Bills 9EX and 8EX passed out of the House, 150-7, on the local legislation calendar and were immediately transmitted to the Senate, said Rep. Katie Dempsey, R-Rome. Under the proposed legislation, the three-member Floyd County Elections Board would be dissolved and replaced with a five-member board. The five members would be appointed by the Floyd County Commission. Commissioners would choose four of the members from lists submitted by county executive committees of the two local political parties whose candidates for Georgia governor received the most votes in the previous election. At this point, that means two members from the Floyd County Republican Party and two from the Floyd County Democratic Party. The fifth member would be selected by the Floyd County commissioners and would serve as chairperson of the board. There also would be an elections supervisor, completely separate from the board, who would be a county employee. The board would make the recommendation to hire but county commissioners would have the last say.
Illinois: Gov. J.B. Pritzker signed a law making voting easier for person with disabilities and creating a group to study removal of further barriers. The law also makes adjustments in deadlines and other technical requirements for candidates in next year’s primary election because it’s later. Pritzker signed a law in June moving the primary from March 15 to June 28 because late-arriving 2020 Census numbers delayed the drawing of new congressional district boundaries. Under the law, which takes effect immediately, any polling place that is accessible to voters with disabilities and elderly voters shall include at least one voting booth that is wheelchair accessible. The Access to Voting for Persons with Disabilities Advisory Task Force will be composed of 15 members, three each appointed by the governor and leaders of the partisan caucuses in House and Senate. The groups must meet at least four times and publish its results. Another change allows voters to designate sex on voter registration forms as “male,” “female” or “non-binary.” The measure was sponsored by Senate President Don Harmon, an Oak Park Democrat, and Democratic Rep. Katie Stuart of Edwardsville.
New Jersey: Proposed legislation that would increase the pay to $400 for poll workers on Election Day has been approved by the Assembly State and Local Government Committee. The bill (S-598/A-1527) would raise the pay of statewide poll workers for each General, Primary, and Special Election to $400 per day from $200 or the State minimum wage, whichever is greater. In June 2021, the Legislature and Governor enacted legislation increasing poll worker pay for the June Primary to $400 and the Governor activated the National Guard to supplement election duties. On Oct. 5, 2021, Governor Murphy issued Executive Order 266 implementing $400 compensation for each poll worker per day.
The Senate State Government, Wagering, Tourism & Historic Preservation Committee cleared two bills related to voting restrictions and access: one which would allow voters to cure mail-in ballots that are missing a certificate, and another which would give New Jersey voters living abroad the right to vote in all state and local elections. Both bills were previously passed by the Assembly over the summer; the ballot-curing bill passed 50-25, and the overseas voter bill 49-25.
North Carolina: With the legislative year nearing an end, Republicans advanced a string of measures that voting rights groups fear would prevent lawfully cast ballots from being counted and discourage participation in the 2022 election. Among the measures Republicans are pursuing is a plan to prevent the counting of absentee ballots that arrive at county elections offices after polls close on Election Day. Republicans are again seeking to require courts to share citizenship data with state elections officials if a potential juror says they are unable to participate because they are not U.S. residents. The move renews an effort that failed in 2019 when Cooper vetoed the plan. Additionally, legislators are looking to pass a bill that would prevent private money from flowing to state and county elections boards. According to WRAL, the bills the GOP moved through the House rules committee are unlikely to become law, as they would almost assuredly lack the support of Democratic Gov. Roy Cooper and enough Democratic state lawmakers to override a possible veto.
Oklahoma: State Sen. Nathan Dahm announced this week that he’s filed a bill in response to what he called “unaddressed concerns with election irregularities” regarding the 2020 election. Dahm, R-Broken Bow, filed Senate Bill 7X, which a news release says calls for a forensic audit. The bill, called the Post-Election Forensic Audit Act of 2021, would order a forensic audit of the November 2020 election results. Senate Bill 7X calls for a third party to perform a forensic audit on the three largest counties in Oklahoma, the three smallest and another three randomly selected counties. The governor, pro tempore of the Senate and the speaker of the House would appoint a third party within 30 days of the passage of the bill. “Oklahoma has one of the best election processes, partially because we have worked over the years to increase accountability measures such as requiring voter identification,” Dahm said. “A forensic audit is another accountability measure we can use to make our system even better. I seriously question those who are opposed to holding the government accountable with transparency measures, and I look forward to having a vote on this bill during special session.”
Pennsylvania: The state House of Representatives is poised to vote this week on legislation aimed at changing the way Pennsylvania runs it elections — although without changes, it appears headed for a gubernatorial veto. The multi-faceted 183-page bill would alter the voter identification rules, impose additional security requirements on ballot drop boxes and limit the number of these boxes to one for every 100,000 residents. It would move up the deadline to register to vote to 30 days before an election from the current 15 days. It would allow county election officials to begin preparing mailed ballots for counting five days before election day. It would introduce early voting to Pennsylvania starting in 2025, when voters would be allowed to cast ballots over a six-day period ending the Wednesday before the election. And, among other changes, it would create a Bureau of Election Audits in the auditor general’s office and install additional auditing requirements to confirm election results. This legislation, dubbed the “Pennsylvania Voting Rights Protect Act,” closely mimics one that was vetoed by Gov. Tom Wolf earlier this year. The House voted 110-90 to include in the bill some deadlines for counties to report their vote tallies or risk not receiving a state reimbursement for the election that the bill would offer. Counties would have until 9 o’clock on election night to count the mail-in and absentee ballots received prior to Election Day. By 2 a.m. the next day, the mail-in and absentee ballots received on Election Day would have to be tallied. Then by 6 o’clock the morning after the election, counties would have to compute all in-person and mailed returns and post the results with exceptions for provisional ballots, those set aside for compliance with the law, and military and overseas ballots. The bill is now in a position to be considered for final passage by the House when it returns to session on Dec. 13.
Utah: A Legislative committee unexpectedly killed a proposal to expand the menu of election options available to cities under a pilot program begun in 2019. A bill adding a new method, known as approval voting, was on the table this week. Lawmakers narrowly rejected the proposal, which stunned groups backing the bill. Lawmakers expressed confusion about the new method and whether it was even necessary. Josh Daniels, Utah County Clerk, says municipal elections are a great place to experiment with new voting methods, which is why the pilot program makes sense for cities that want to try something different. “From a state perspective, oftentimes when they’re going to do something new with their process, they’ll do it during a municipal election year because the election process is a little smaller,” Daniels said. Weber County Clerk Ricky Hatch predicted as many as 30 cities in Utah would jump at the chance to implement approval voting. As it stands, they will not get that chance. The committee narrowly voted against recommending the bill to the full Legislature during the 2022 session, which begins in January.
Vermont: Gov. Phil Scott said that he would consider new legislation to provide protection to election workers who have increasingly received disturbing messages by phone or email. “Election workers are doing their civic duty, and they don’t deserve any of what they are receiving across the nation,” the governor said. Noting the polarization in the country “in all facets of government,” Scott said, “we all just need to step back and realize how fortunate we are to live in the country that we have. And we need, as well, to just remember that we are Americans first, and Vermonters as well, and just treat each other with respect and civility.” State Sen. Dick Sears, D-Bennington aid, “A number of us will be introducing legislation based on the federal standards for criminal threats, which would be a little stronger than the state standard.” But he added that legislation “doesn’t solve all the problems” when “people just get out of control and push the ‘send’ button with no consequences.” Scott said he will consider what the Legislature develops, “and I look forward to having the debate.”
Legal Updates
Arkansas: Federal Judge P.K. Holmes refused Secretary of State John Thurston’s request that a League of Women Voters lawsuit over Arkansas absentee voting procedures should be dismissed. He said the state could not claim immunity from lawsuit over a voting rights issue and he said the lawsuit made a sufficient argument for the case to proceed to discovery and trial. He said he would not order a preliminary injunction because, even if plaintiffs can prove constitutional rights are violated by state procedures, the state would have an opportunity to correct them before the next election. The judge looked with apparent favor on the argument that absentee votes could be disqualified for errors or omissions not material to qualifications to vote. Under rules in place when the lawsuit was filed (since made even stricter by the Republican-controlled legislature), Holmes wrote: Where absentee voters have only one opportunity to provide information reflecting their citizenship, residency, age, registration status, or photo identification, it would be difficult to find that rejection of their ballots because of an error or omission concerning this information violates the materiality provision. However, where State law requires absentee voters to provide some of that information several times and, as Plaintiffs allege, they have correctly provided that information at least once, but absentee voters’ ballots are nonetheless rejected on the basis of a mismatch or omission in one of the multiple documents they have provided, they have plausibly alleged a denial of the right to vote on the basis of immaterial errors or omissions. As Defendants recognize the materiality provision is intended to address those state election practices that increase the number of errors or omissions on papers or records related to voting and provide an excuse to disenfranchise otherwise qualified voters. Discovery may yield evidence demonstrating the materiality of requiring this information to be provided on multiple forms, but at this stage of litigation the Court draws reasonable inferences in Plaintiffs’ favor, and the motion to dismiss these claims will be denied.
Connecticut: Barry Lee Cohen, Republican challenger for mayor of West Haven has filed suit against democratic incumbent, Mayor Nancy Rossi, along with the city over those election results. Rossi officially secured another term after a recount separated her and Cohen by just 32 votes. Town officials, including the city clerk and the democratic and republican registrar of voters, were named in the suit. The GOP challenger claims statutory procedures were ignored, and now his team is asking the City Clerk to give them access to all materials related to the election. “Although I have been denied access to public records related to the municipal election, from what we have seen, and from what we have learned from people, there are significant irregularities with the absentee ballots cast in the election,” Cohen said in a statement Cohen also argued that some of those ballots should have been rejected if they did not meet state requirements.
Georgia: A court settlement requires the Georgia secretary of state’s office to improve its responsiveness to records requests after a government watchdog organization alleged it failed to turn over public election documents. The agreement resolves a lawsuit filed by American Oversight that said state election officials stalled or ignored requests for information about an absentee ballot fraud task force, communications with the Republican National Committee, coronavirus response and election operations. Secretary of State Brad Raffensperger’s office must produce readily available records within three business days of open records requests, improve training, require prepayment only when records retrieval costs exceed $500 and make a $35,000 payment to American Oversight, according to the Oct. 20 settlement agreement in Fulton County Superior Court. “The secretary of state’s office cannot ignore Georgia’s robust open records law,” said Austin Evers, executive director of American Oversight. “This agreement includes much-needed reforms designed to remedy the inconsistencies, delays and breakdowns in communication that prevent records requesters from accessing what is rightfully theirs.” State election officials said last year that responses to open records requests were at times delayed because American Oversight didn’t accept estimated charges in a timely manner. “We hold ourselves to the principles of transparency,” Deputy Secretary of State Jordan Fuchs said. “Our team will continue to answer requests as quickly as possible and believe that we would have won this case if the state had chosen to expend its limited resources to fight this frivolous lawsuit.”
Nevada: Donald “Kirk” Hartle of Las Vegas plead guilty to a misdemeanor — voting more than once in the same election — and told Clark County District Court Judge Carli Kierny he accepted full responsibility for his actions and regrets them. Hartle’s attorney, David Chesnoff, prevented his client from having to describe publicly how he voted early using a ballot that had been mailed to his dead wife. Rosemarie Hartle died in 2017 but her name remained on the voter rolls. Chesnoff told the judge that state Attorney General Aaron Ford’s office agreed to reduce two felony charges against Hartle to the misdemeanor. Kierny made it clear she was unhappy with the deal but accepted it. Hartle was fined $2,000 and has to stay out of trouble for one year. The judge set a Nov. 17, 2022, date to review the result. “This seems to me to be a cheap political stunt that kind of backfired,” Kierny said, “and shows that our voting system actually works because you were ultimately caught.”
New Jersey: Superior Court Judge Ernest Caposela ordered Passaic County Superintendent of Elections Shona Mack-Pollock to release a partial list of voters who cast provisional ballots in the November 2 general election over the objection of the deputy attorney general. The order came just hours before the Passaic County Board of Elections begins counting votes for the first time since last Wednesday for countywide contests with razor-thin margins, including an incumbent county commissioner who trails his GOP challenge by just 11 votes out of more than 100,000 cast. Deputy attorney general George N. Cohen defending Mack-Pollock’s decision not to release the list last week. “It’s not in their workload,” Cohen said. “They’ve been working non-stop.” Caposela saw the release of the list as “preventive medicine vs. surgery” in the event that races for county commissioner and surrogate wind up back in court as part of a recount. Caposela challenged Cohen on the ability to remove votes from the tally once they are counted, in the event that the loser in the race is able to successfully challenge the provisional vote. Cohen said there was a remedy: that voters could be subpoenaed as witnesses and under oath, be forced to say who they voted for. Caposela didn’t like that option, pointing to the reluctance of voters to appear in court and publicly declare who they voted for on a secret ballot. There are about 4,000 vote-provisional ballots – and at least a dozen vote-by-mail ballots – still uncounted in Passaic County.
North Carolina: McCrae Dowless, who has been accused of running an absentee ballot scheme to fraudulently boost Republican politicians in 2016 and 2018 rejected a plea deal in court this week. He appears set to fight the charges and could go to trial next summer according to the News & Observer. Wake County District Attorney Lorrin Freeman has charged Dowless with 13 felonies. Most are related to the 2018 election in which Dowless was hired to help Mark Harris, a Baptist preacher from Charlotte who was running for Congress as a Republican in the 9th Congressional District, which at the time stretched from the Charlotte suburbs east to Bladen County. Freeman said she offered Dowless a plea deal in which he would agree not to work on elections in the future, but receive little prison time, if he pleads guilty to all but one of the charges he’s facing. Freeman said Monday her offer included a year in prison that would run concurrently to Dowless’ federal sentence — meaning if he took the deal, he would only spend an extra six months behind bars in addition to the six-month sentence he is about to begin for the disability fraud. Dowless shot it down.
Pennsylvania: The Montgomery County and Bucks County boards of elections have filed a lawsuit against the Pennsylvania Department of State secretary seeking to clarify the rules for mail-in and absentee ballots. At issue is whether ballots where voters do not include a date with their signature as instructed can still be counted. “The Pennsylvania Supreme Court held that a county board of elections must have a compelling reason for refusing to canvass a ballot due to minor irregularities,” the suit said. And it added, “The legislature has failed to provide any clarification for voters or county boards of election regarding the voter’s declaration.” Rep. Seth Grove (R-York) said the legislature is filing a brief to intervene in the case, which is pending in Commonwealth Court. According to the docket, state lawyers asked for more time to respond to the suit, which was filed Oct. 1.
Wisconsin: GOP candidate for governor Rebecca Kleefisch filed a lawsuit against the Wisconsin Elections Commission, calling on the state Supreme Court to suspend guidance the commission issued to local election officials ahead of the 2020 election. The lawsuit asks the state’s highest court to take the case immediately, bypassing lower courts that would typically handle such matters first. It argues guidance related to absentee ballot drop boxes, polling place locations and voting in nursing homes violated state laws on the subjects and should be changed ahead of the state’s 2022 election. Related to absentee ballot drop boxes, Kleefisch’s lawsuit argues the elections commission illegally allowed their use in 2020, because there is no provision in state law that allows ballots to be returned other than by an in-person drop off to a clerk’s office or by mail. Regarding voting in nursing homes, the lawsuit contends that March 2020 elections commission guidance directing nursing homes to have residents vote by mail with the help of facility staff, rather than with the help of in-person “special voting deputies,” violated state law. Finally, related to polling places, Kleefisch’s lawsuit argues the elections commission illegally allowed local election officials to consolidate or move polling places in 2020 without required approvals.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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