Thursday, December 16, 2021

Electionline Weekly December-16-2021

Legislative Updates Alaska: The Anchorage city council is considering a proposal that will make several changes to the city’s elections. Among the changes is a registration period for election observers. Candidates for office and political organizations are allowed one poll watcher and one observer at polling locations and up to four observers at a return location — in Anchorage’s case, the election center. Under the proposed changes, people wanting to register to be election observers would need to turn in a form between 62 and 32 days before a regular election, and between 37 and 22 days before a special election. Previously, there was no pre-registration. Other updates in the ordinance include changes to observer requirements and clarifying changes to the code’s language. The Assembly will take in-person public testimony on the ordinance at two meetings this month.

California: The Board of Supervisor voted unanimously to adopt the Voter’s Choice Act which will move the county from a neighborhood-based polling place county to a vote center system. Riverside becomes the 16th county to adopt the Voter’s Choice Act. The county expects to save $7 million on election costs.

Florida: Representative Anna V. Eskamani (Orlando) and Senator Annette Taddeo (Miami-Dade) filed House Bill 903 (HB 903) and Senate Bill 1228 (SB 1228), respectively, in an effort to implement online voter registration programs in public high schools across the state. HB903 and SB1228 would require all Florida public high schools to host bipartisan voter registration presentations, giving eligible students the option to register or pre-register to vote. These presentations, designed by the Division of Elections, would give students the resources to register to vote online. Students could not be forced or persuaded to register to vote or register with a certain party, and teachers would not be involved in the presentation in any capacity. “Our youths are the leaders and changemakers of tomorrow. By providing accessible voter registration in Florida’s public schools we are facilitating a space where these students can contribute to the democratic process of this great nation.”, said Taddeo in a press release. “Many people in our state don’t know that if you turn 18 years old by election time, you can pre-register at the age of 17 years old and these presentations can help inform on just that.”

Georgia: Sen. Butch Miller (R) has introduced legislation that would eliminate absentee ballot drop boxes. In a press release, sent by the Senate Press Office, Miller, who is facing an opponent endorsed by former President Donald Trump, called the banning of drop boxes the “next step in our fight to restore Georgians’ faith in our election systems.” “Drop boxes were introduced as an emergency measure during the pandemic, but many counties did not follow the security guidelines in place, such as the requirement for camera surveillance on every drop box,” Miller said in the release. “Moving forward, we can return to a pre-pandemic normal of voting in person. Removing drop boxes will help rebuild the trust that has been lost..” Georgia’s new voting law allows the drop boxes with tight restrictions: They must be located inside early voting sites, available only during in-person voting hours, and shut down when early voting ends the Friday before an election. Miller’s proposal, Senate Bill 325, would remove the use of election drop boxes completely. An analysis of election data from the secretary of state’s office by The Atlanta Journal-Constitution and Georgia Public Broadcasting found that ballot drop boxes saw heavy usage in mostly Democratic metro Atlanta counties during their rollout last year, far more than in rural Republican areas of Georgia.

Michigan: House Democrats have introduced a package of legislative bills that would allow for ranked choice voting in municipal elections. The legislative package includes: House Bill 5646 to amend the Home Rule City Act to allow cities to authorize the use of ranked-choice voting for local elections; House Bill 5644 to amend the Michigan Election Law by outlining the rules for how a ranked-choice election is conducted; and House Bill 5645 to amend the Michigan Election Law to establish the procedures that local clerks must follow when implementing a ranked-choice election.

New Hampshire: The Granite State’s next legislative session is just weeks away. Here is a look at eight election bills headed to the State House concerning voter fraud, absentee voting, age requirements and more. HB 1153: Prohibits a municipal clerk from mailing an absentee ballot to any person until that person has submitted an absentee ballot application and the clerk has approved their application. HB 1157: Prohibits electronic ballot counting devices from being connected or having access to the internet. This bill is also sponsored by Rep. Torosian. HB 1166: Requires any undeclared voter who wishes to vote in a primary election to declare party affiliation at least 120 days before the primary. The legislation also mandates that a candidate be a member of the party for which they seek a nomination for at least six months before a primary. This bill is sponsored by Rep. David Love, a Derry Republican. HB 1203: Repeals residency and registration changes that were made in two previous bills that were passed in 2017. One bill required all voters living in the state to follow residency laws, such as the requirement to register a car in New Hampshire. The other bill added stricter requirements for voters who register within 30 days of an election but do not present a photo ID or other documentation. For those voters, the law required them to fill out a new set of forms and present the documentation to their local elected officials. HB 1213: Establishes the State Primary Election Day as a legal holiday, and provides that any state office, city, town, school district, and community college or university supported by the state shall not be open for any state holidays. Currently, General Election Day is a holiday, but public schools and public employees do not get the day off. HB 1442: Requires that election and voter information be available in multiple languages. This bill is sponsored by Rep. Manny Espitia, a Nashua Democrat. CACR 15: This constitutional amendment allows 17 year-olds to vote in primary elections, as long as they turn 18 by the time of the general election. CACR 16: This constitutional amendment requires the Attorney General to prosecute “any case of election fraud where there is clear and convincing evidence of such.” This amendment is sponsored by Rep. Max Abramson, a Seabrook Libertarian.

North Carolina: Gov. Roy Cooper (D) has vetoed legislation that would have prohibited local boards of elections from accepting private grant funding to help administer elections. GOP bill sponsors said outside donations to government agencies create the impression of undue influence in elections. They point out that some nationwide grant distributors received large donations from Mark Zuckerberg, the founder of the company formerly known as Facebook, and his wife. But Cooper said in a statement that nonprofit and nonpartisan grants provided masks, pens and other protective equipment “so voters stayed safe during the pandemic.” “The legislature should start properly funding elections boards to ensure accessible, safe, and secure elections every time, which would end the need for grants,” he added. The bill now returns to the General Assembly, which after Friday won’t reconvene to Raleigh until Dec. 30, when veto override attempts are possible. But it’s unlikely GOP bill authors would be successful. The bill was approved along party lines, and Republican majorities are not veto-proof.

Pennsylvania: Legislation to ban private funding of Pennsylvania elections has passed the state House and now moves to the Senate for consideration. House Bill 2044, sponsored by Rep. Eric Nelson, R-Westmoreland, would prohibit county and state elections officials from accepting private donations to administer elections. The move was inspired by millions of dollars in grants to local election offices provided by nonprofits controlled by Facebook CEO Mark Zuckerberg during the last election cycle. “This bill addresses a major concern brought forth during the 2020 election, that the lure of private money has seeped into the election system,” Nelson said. “Email evidence has proven Pennsylvania’s highest election officials notified specific counties of grant opportunities weeks before other counties were made aware. Our state’s highest offices were vulnerable to perversion by deep pockets with private election contracts. It is just plain wrong, and this bill will stop it.” Rep. Scott Conklin, D-Centre, argued on the House floor Tuesday the money pumped into elections in 2020 wasn’t partisan and did not generate fraud. He urged the chamber to reject the legislation and to instead invest more tax dollars into elections to eliminate the need for private funds.

Ohio: The House has voted to end most August special elections, a change that could make it more difficult for schools and other local governments to pass tax levies. House Bill 458 would only allow August special elections to fill vacant congressional seats, which happened twice earlier this year for Ohio’s 11th (Cleveland) and 15th congressional districts (suburban and rural Central Ohio.) That means Ohio largely would shift to only holding two elections a year: the primary, typically in March or May and the general election in November. The House voted 68-24 to approve the bill, with all of the “no” votes coming from Democrats, although some Democrats voted for the bill. The measure now heads to the Senate for consideration. One HB458 sponsor, State Rep. Thomas Hall, a Butler County Republican, previously has said that local governments “game the system” by seeking to approve tax increases during low-turnout special elections when most voters aren’t paying attention. Under the bill, local governments could place tax issues on the ballot during August special congressional elections, but only if the government’s borders are entirely within the congressional district. The bill also would allow local governments to seek tax issues in an August special election if they are designated by the state Auditor’s Office to be in a state of fiscal emergency.

Legal Updates

Arizona: Attorney General Mark Brnovich is asking a federal court to throw out a lawsuit challenging a new law that will kick some people off what has been the “permanent early voting list.” The new law, approved earlier this year, imposes only a “minimal” burden on voters, Assistant Attorney General Drew Ensign, writing on Brnovich’s behalf, argues in new court filings. Ensign does not specifically address statistics presented by challengers that the change will have a disparate impact on minorities. Instead, he told U.S. District Court Judge Dominic Lanza that these claims are irrelevant, saying there is no proof that was the intent of the Republican-controlled legislature — even if that is what the numbers may show. Until now, anyone who has signed up for the permanent early voting list automatically gets a ballot in the mail ahead of all elections. Only when a person is removed from the list of registered voters does that end. The new law spells out that if someone does not return an early ballot in at least one of four prior elections — meaning a primary and a general election in two successive years — that person is dropped from what would no longer be called the permanent early voting list.

Florida: Chief U.S. District Judge Mark Walker will hear arguments on Jan. 7 in a lawsuit filed by University of Florida professors challenging a policy that gives the school discretion in blocking faculty members from testifying against the state in legal cases. Political science professors Sharon Austin, Michael McDonald and Daniel Smith filed the lawsuit after the university denied their requests to serve as plaintiffs’ witnesses in a challenge to a new state elections law (SB 90) that includes making it harder for Floridians to vote by mail. They said school administrators told them that going against the executive branch of the government was “adverse” to the university’s interests. “The public controversy involving the three UF professors who were denied permission to act as paid expert witnesses in litigation against the state of Florida is now over. Indeed, that controversy was over even before this case began. UF approved the professors’ outside activity requests before they filed the lawsuit. They simply refuse to take yes for an answer,” the university’s lawyers wrote in a Dec. 1 motion to dismiss. According to court records, the university told the political science professors that “outside activities that may pose a conflict of interest to the executive branch of the state of Florida create a conflict” for the university. State universities rely on the Legislature for funding, and the governor has the ability to veto line items in the budget.

Georgia: U.S. District Judge J.P. Boulee ruled against motions to dismiss eight pending lawsuits against Georgia’s new voting law. Boulee’s orders allow the cases to move forward as they contest many provisions of the law, including stricter voter ID requirements, ballot drop boxes limitations, shorter absentee ballot request deadlines and a ban on handing out food and water to voters waiting in line. Boulee denied arguments from the state of Georgia that the cases should be thrown out because of legal issues including whether the plaintiffs had a right to sue, suffered an injury or stated a claim for relief. The merits of the cases will be determined after facts and evidence are presented in the case, Boulee wrote. The plaintiffs include several nonprofit organizations and the U.S. Department of Justice, which alleged that the law targeted Black voters by restricting absentee voting. Georgia’s Republican attorney general, Chris Carr, sought to dismiss the case in July, calling it “political posturing” filled with “innuendo and hyperbole.” The cases will now continue to move through the court system as the parties gather evidence and make arguments in court.

Former U.S. Senator David Perdue has filed a lawsuit that recycles claims of fraud already disproven by investigators and rejected by the courts. In court filings, Perdue and a Georgia voter claim that thousands of “unlawfully marked” absentee ballots were counted in Fulton County’s presidential election, despite three separate counts of the results and no evidence of so-called “counterfeit” ballots included in the vote totals. The lawsuit repeats claims of “pristine” ballots observed by a Republican monitor that investigators could not corroborate, includes debunked claims about ballots counted at State Farm Arena on election night and demands an inspection of absentee by mail ballots, after a Henry County judge dismissed a similar suit in October. The legal challenge also wants the court to fire any employees that committed or knew about alleged fraud — something a judge would be unlikely to do — and to command Fulton to “certify the correct vote total to the Secretary of State,” which is impossible to do since the election is already certified. Other claims made in the suit rehash arguments that have been made and fact-checked for months, including most recently in a lawsuit filed by election conspiracist Garland Favorito that was dismissed in October.

Nevada: A voter represented has filed a lawsuit seeking to block a nascent ballot initiative aimed at transforming the state’s election system to open primaries with a ranked-choice general election. The suit claims the proposed initiative violates three state constitutional requirements: the single-subject rule, addition of a cost without a funding source, and a deficient “description of effect,” the 200-word summary that accompanies the signature form for the petition. It states that the initiative’s replacement of traditional closed party primaries along with the switch to a ranked-choice general election would violate the requirement that voter-filed initiatives stick to a single subject. “Though sweeping in scope, each of these changes is a discrete, independent modification of present election law that neither depends upon the other for its operation nor even references it in its voluminous text,” the complaint states. The lawsuit also claims the proposed initiative violates requirements against ballot questions that require an appropriation or spending of money without some kind of included tax or funding source.

New York: John O. Jacoby Jr. has been awarded the victory in a close election for a Lewiston Town, New York board seat, and the reason has everything to do with the letter between “John” and “Jacoby.” State Supreme Court Justice Frank A. Sedita III ordered the counting of ballots from 43 Lewiston voters who filled in the “O” in Jacoby’s name, instead of the oval for voting on their paper ballots. The computerized scanner that counts Niagara County votes missed those 43 votes because they are programmed to register marks in the oval. The scanner did count 21 ballots for Jacoby on which the voter filled in both the oval and the O. Acting Republican Election Commissioner Michael P. Carney sought to disallow those 21 votes because of the double marking, but Sedita refused. The result of the court ruling was to turn what seemed to be a 18-vote defeat for Jacoby into a 25-vote victory. “I’m pretty familiar with the election process, but this was a fluke,” said Jacoby, an incumbent board member who was county Democratic Party chairman for almost a year before stepping down this summer.

Texas: In an 8-1 decision, the Texas Court of Criminal Appeals—the state’s highest court for criminal cases—struck down a law that allows the attorney general to unilaterally prosecute election cases. The court issued an opinion saying a provision of the law violates the separation of powers clause in the Texas Constitution, representing an intrusion by the executive branch into the judicial branch. The attorney general can only get involved in a case when asked to by a district or county attorney, the court said. In its opinion, the Court of Criminal Appeals overturned a lower-court ruling that said the election code provision “clearly and unambiguously gives the Attorney General power to prosecute criminal laws prescribed by election laws generally whether those laws are inside or outside the Code.” Rather, the Court of Criminal Appeals said, “the Attorney General can prosecute with the permission of the local prosecutor but cannot initiate prosecution unilaterally.”

Attorneys for the Crystal Mason filed briefs with the Texas Court of Criminal Appeals that points to a provision under the controversial election law Senate Bill 1 they believe will undo her conviction. Her lawyers with the American Civil Liberties Union this week filed a brief with the Texas Court of Criminal of Appeals citing the state’s new election law that took effect earlier this month in asking for her conviction to be overturned. Tucked within SB 1 that was passed by the Texas Legislature in this year’s second special session is a section erasing criminal penalties for felons who attempt to vote without knowing that they were committing a crime. That portion of the law came about with Mason’s conviction in mind. “SB 1 is a repudiation of Ms. Mason’s conviction and five-year sentence of incarceration,” the brief states. Her case has been on appeal since she was convicted in 2018. It led Mason to spend 10 months in federal prison because her conviction amounted to a violation of her parole agreement with federal authorities. She is free while her case is on appeal. Her conviction was upheld in lower courts, but has been pending in Texas’ highest criminal appeals court since 2020.

A Harris County grand jury indicted a former Houston police captain for assault, after he was accused of running a man off the road and pointing a gun at his head in an attempt to prove a bogus voter fraud conspiracy. Mark Aguirre is charged with aggravated assault with a deadly weapon and could face up to 20 years in prison. Aguirre was arrested last December after prosecutors say he ran his SUV into the back of the truck of an air conditioning technician. Aguirre allegedly told police he believed the victim was behind a massive voter fraud scheme and that there were 750,000 fraudulent ballots in his truck.

Virginia: The Office of Attorney General Mark Herring has filed a brief seeking to throw out a lawsuit arguing the Commonwealth should conduct elections for the House of Delegates again, since the districts vary greatly in population. In June, Paul Goldman sued the Board of Elections saying the 2021 House of Delegates elections were going to be on out of date districts. Some districts have nearly twice as many people as others. Goldman says that violates the equal protection clause: that one person gets one vote. The case, before Federal District Court, is currently on appeal before The US Court of Appeals for the Fourth Circuit. Herring’s office appealed the case after the judge overseeing the district court case removed a number of defendants from the case, including Governor Ralph Northam, but kept members of the State Board of Elections in their official capacities. The Attorney General’s office brief was in an appeal lawyers wrote the case should be argued in state rather than Federal Court in order to sue state officials. They also wrote Goldman was disguising his state law claims in federal court, but conceded the case “may raise important questions of Virginia law.” “Mine is based on the equal protection clause of the 14th amendment. They don’t seem to be able to comprehend that,” Goldman said. “There is also a very good state constitutional argument that you could make: I’m making the federal constitutional argument.”

Washington: Judge Cameron Mitchell ruled this week against the Washington Integrity Coalition United in its pursuit of having local auditors turn over ballots so that they could be examined and to stop using the voting system to count the ballots. The lawsuit, filed in Snohomish County, wanted to have a “forensic audit” of the ballots. Mitchell ruled this week that the nonprofit needed to have an attorney file the case. Instead the nonprofit’s director, Tamborine Borrelli, and two Franklin County men, Ethan Carlson and Fred Carpenter, signed the complaint. While individuals can represent themselves in court, nonprofits don’t have the same ability, said Callie A. Castillo, the attorney representing Franklin County. Mitchell also pointed out the two Franklin County men didn’t sue within the time frame required by state law. Even outside of the procedural elements, Mitchell said ballots are protected from public records requests. “Those are confidential and they’re not to be disclosed,” he said. “The court also denies the complaint on that basis.”

Wisconsin: U.S. District Judge James Peterson upheld the way Wisconsin’s decade-old voter ID law treats college students. In 2019, the liberal group Common Cause Wisconsin filed a lawsuit arguing the law treats students unfairly because college IDs must have elements that other types of IDs don’t have to have. Specifically, the college IDs can be used for voting only if the IDs expire within two years of being issued and include a signature. IDs from five of the state’s institutions of higher learning don’t meet those criteria, according to the lawsuit. Peterson threw out the lawsuit, ruling that it was reasonable for the state to spell out what must be included on college IDs. “It would be rational for the legislature to conclude that making student IDs more uniform enhances their reliability, makes them more difficult to falsify, and makes it easier for poll workers to recognize a valid student ID,” Peterson wrote. Peterson, who was nominated to the bench by President Barack Obama, has ruled against the voter ID law in the past.

Waukesha County Circuit Judge Ralph Ramirez delayed until at least next month any action in a lawsuit that seeks to force the mayors of Madison and Green Bay to face jail or sit for depositions with the attorney hired by Republicans to investigate the 2020 election. Ramirez set the next hearing in the case after a Dane County judge hears arguments in a separate case filed by Democratic Attorney General Josh Kaul. A ruling in that case would likely affect the lawsuit targeting the mayors, leading the judge on Friday to delay any action until after that Dec. 23 hearing. Attorneys for the mayors and Michael Gableman, the lead investigator, did not object to the delay.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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