Thursday, December 2, 2021

Electionline Weekly December-2-2021

Legislative Updates

Georgia: Gov. Brian Kemp officially signed the new Floyd County Elections board bills into law, dissolving the current three-member board and replacing it with a new five-member board. Bill sponsors Rep. Katie Dempsey, R-Rome; Rep. Eddie Lumsden, R-Armuchee; and Rep. Mitchell Scoggins, R-Cartersville, as well as State Senator Chuck Hufstetler, R-Rome, released the following joint statement: “Over the last year, Floyd County residents have made it clear that they want to feel confident that our elections are being run with integrity and efficiency, and revamping our elections board reflects these desires. This legislation will usher in a more robust elections board ahead of the next election cycle. We also recognized the need for increased staff support for the board, so we are grateful that the county will now have a full-time elections supervisor position, who will specialize in carrying out secure and efficient elections.”

House Bills 8EX and 9EX passed the House 150-7 and it passed the Senate 38-1. 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. This legislation also provides greater staff support to the elections board.

Under HB 8EX, commissioners will appoint an election supervisor. The election supervisor will serve as staff support for the board, attend meetings of the board, assist the board in fulfilling its duties of voter registration and the conduct of elections and provide daily supervision of other county employees who assist the board. The election supervisor will be considered a full-time county employee and cannot be a member of the elections board.

Iowa: The Page County Board of Supervisors unanimously approved a resolution regarding the confidentiality of public records related to the election infrastructure of Page County. County Auditor Melissa Wellhausen says the resolution would make security plans and other sensitive information about how elections are run confidential. “At some trainings that we attended, they advised that this is a good idea to put this forward,” said Wellhausen. “We do have a policy in place — a security policy in place — that we set up a while ago. This just protects that information and makes it confidential.” Wellhausen says the security policy in place for elections in the county contains information that hackers or other bad actors could use to hijack voting equipment. Under Iowa Code, most information regarding elections and election administration falls under Iowa Code Chapter 22, which dictates which documents are public record and available for public inspection. Wellhausen says an administrative rule allows county governments in Iowa to hold back certain sensitive information.

Michigan: The Lansing city council has passed a resolution opposing a statewide petition that officials feel would put ballot access at risk in Lansing and across the state. The Secure MI Vote petition, if successful, would toughen in-person voter ID laws, require ID information for absentee ballot applications, restrict the ability of election officials to send out absentee ballot applications and prohibit private election funding. Lansing’s resolution opposing the petition was suggested by the Clerk’s Office and put forward jointly by the entire council. Council members approved the resolution in a 6-0 vote during Monday night’s meeting. “Lansing City Council supports equitable and easier access to the ballot box through federal and state standards around early voting, absentee voting, and voter registration,” the resolution states.

New York: Assemblyman Jeffrey Dinowitz is trying to expand eligibility as the pandemic continues. A temporary measure allowing voters in New York to cite the pandemic as a reason to vote absentee will expire Jan. 1, 2022. The bill passed July 22-23, 2020, and was sponsored by Dinowitz, a Democrat, in the Assembly and Progressive state Sen. Alessandra Biaggi in the Senate. The expanded pandemic-related eligibility was set to expire and align with no-excuse voting being implemented following the general election proposition, according to Dinowitz’s office. But now that the measure failed, “leaving voters who would prefer to cast their ballots from the safety of their own homes to weigh the importance of their health and their vote,” the state lawmaker is introducing a bill that would extend the expanded eligibility through Feb. 1, 2024. “My new legislation is a critical measure so that no New Yorker is forced to put their own health at risk simply to cast a ballot, and I urge my colleagues to support this important measure when we return to Albany in January,” Dinowitz said. A statement from Dinowitz’s office said that if the legislation passes then lawmakers and voters, from 2022-2024, can decide whether to revisit a constitutional amendment about absentee voting. The proposed legislation, which has been filed in Assembly, doesn’t have a bill number or Senate co-sponsor yet.

North Carolina: Absentee ballots would have to be received by the time polls close on Election Day to count, under legislation that cleared the General Assembly. That change and a measure that would prohibit elections officials across North Carolina from accepting donations from private groups are headed to Gov. Roy Cooper, where one or both are likely to be vetoed. The Democratic governor has repeatedly clashed with the Republican-controlled legislature on elections policy and procedures. Senate Bill 326, dubbed the Election Day Integrity Act, which set the night of Election Day as a firm deadline to accept mailed ballots. Only ballots received from deployed military would be accepted after that. Another bill, titled the Election Integrity Act, would require that all new voting equipment and software be made in the U.S. and that courts officials send the names of people who get out of jury duty by claiming that they aren’t citizens to the State Board of Elections so they can be removed from voter rolls. It still needs Senate approval.

The General Assembly voted to keep private donors from covering election costs, cutting out a revenue stream that generated millions of dollars last year for boards of election around the state. Senate Bill 725 passed the House earlier this month on a party-line vote, with Republicans voting for it and Democrats against. It cleared the state Senate Monday by a similar vote and heads to Gov. Roy Cooper, who can sign it into law or block it with a veto. Cooper’s press office didn’t immediately respond to a request for comment.

West Virginia: During a meeting of the Legislature’s Joint Judicial Committee, lawmakers heard about proposed legislation that would give the secretary of state’s office the means to publish election audit data online, line up municipal and levy elections with county elections and potentially establish penalties for county clerks who don’t supply local precinct data to the Census Bureau. Deak Kersey, general counsel with the secretary of state’s office proposed a bill to mandate counties send their post-election audit results to the state, the that the data can be posted online. Kersey said the 2020 election also showed ways officials need to be more stringent in ensuring safety which includes updating existing state law that prevents any electronic voting machines from being connected to the Internet. Other proposed legislation includes: clarifying the voter registration deadline; extending the number of days a county clerk has to mail an absentee ballot; changing the appeals process for challenges to municipal and county election results; extending opportunities for electronic voting; syncing municipal and levy elections; requiring non-public funding sources for public elections be approved by the West Virginia Election Commission; repealing a 50-cent DMV fee that supports automatic voter registration; and establishing a ban on “harassing” voters within 100 feed of polling places.

Legal Updates

Federal Litigation: Magistrate Judge N. Reid Neureiter of the US District Court in Colorado has ordered Attorneys Gary D. Fielder and Ernest John Walker to pay nearly $180,000 to the defendants they sued in a suit the judge said was aimed to “manipulate gullible members of the public and foment public unrest.” Fielder and Walker will have to pay attorneys fees of $50,000 to Facebook (now Meta), about $63,000 to Dominion Voting Systems, about $63,000 to the non-profit Center for Tech and Civic Life, more than $6,000 to the state of Pennsylvania and nearly $5,000 to the state of Michigan. “They need to take responsibility for their misconduct,” Neureiter wrote in his order, adding that the lawsuit defamed the defendants. He continued: “I believe that rather than a legitimate use of the legal system to seek redress for redressable grievances, this lawsuit has been used to manipulate gullible members of the public and foment public unrest. To that extent, this lawsuit has been an abuse of the legal system and an interference with the machinery of government. For all these reasons, I feel that a significant sanctions award is merited.”

Florida: Democratic Florida congressional candidate Dale Holness who lost a special election primary by five votes has filed two lawsuits asking that the result be thrown out, alleging his opponent’s support of a universal income plan amounted to bribing voters. Holness alleges Sheila Cherfilus-McCormick’s support of a proposal that would pay most U.S. adults $1,000 a month was an attempt to illegally bribe voters. His lawsuit also wants 18 mail ballots counted that were received from military members and family members that were rejected by elections officials because they arrived after Election Day. He also says Cherfilus-McCormick should be disqualified because she did not file a financial disclosure form with the U.S. House.

Georgia: U.S. District Judge Steve Jones said in court this week that a two-week trial could begin the week of Feb. 7, over three years after the voting rights organization Fair Fight Action sued in the wake of Democrat Stacey Abrams’ loss to Republican Brian Kemp. It will be the first voting rights case to go to trial in Atlanta’s federal court in at least a decade. The lawsuit initially alleged far-reaching voter suppression, but a series of court rulings eliminated many of the claims made by Fair Fight, which Abrams founded. The trial will focus on “exact match” voter registration policies, allegations of voter roll inaccuracies and inconsistent absentee ballot cancellation practices. “My first goal is to ensure both sides have a fair trial,” Jones said. “We need to bring this case to closure.” The plaintiffs will attempt to prove that the state’s voting practices infringe on fundamental rights guaranteed by the U.S. Constitution and the Voting Rights Act of 1965. If they’re successful, Jones could order changes to voting in Georgia before the 2022 general election.

Secretary of State Brad Raffensperger (R) has sued the U.S. Department of Justice over its response to his request for documents he believes could show political motivations behind a federal lawsuit against the state’s new voting law. Raffensperger said his lawsuit seeks to compel the government to turn over any communications, if they exist, between the Department of Justice and dozens of his political and legal opponents. Raffensperger had filed a Freedom of Information Act request in August for communications between the Justice Department and 62 individuals and organizations. The Justice Department acknowledged the records request but said it needed more time to respond given its scope and the need to consult with various government offices.

Kansas: U.S. District Court Judge Kathryn Vratil temporarily blocked enforcement of a controversial election law passed earlier this year that makes it illegal for out-of-state groups to send Kansas residents advance ballot applications, among other provisions. HB 2332, which took effect in July, also barred advance ballot applications from being sent if information is already filled out on them. Both provisions were the subject of a lawsuit from national voting rights groups, which argued it violates the First and Fourteenth Amendments, as well as the Commerce Clause of the U.S. Constitution. The groups, Vote America and the Voter Participation Center, said in the lawsuit that the newly enacted law effectively halts their work in Kansas and keeps them from “employing their most effective means of persuading voters to engage in the democratic process.” Vratil denied a request from the state to dismiss the case and instead blocked the law from being enforced. The ruling merely halts the law’s enforcement until the case is resolved, with the judge saying “delayed implementation is not likely to cause material harm, even if it is eventually found to be constitutional and enforceable.” In her opinion, Vratil said the law “will have the inevitable effect of reducing the total quantum of speech on an important public issue” and agreed with the voting rights group that a more demanding level of legal review was required.

Minnesota: The Minnesota Supreme Court heard arguments this week in a case that affects the voting rights of more than 50,000 Minnesotans with active felony records. The challenge involves a constitutional clause and its interaction with a 1963 law that requires felons to complete time in custody, on supervised release or on probation before they can vote again. The people and groups behind the lawsuit argue the system disproportionately hurts communities of color because their punishments tend to trail them longer. They want voting eligibility to automatically be restored upon release from incarceration. Plaintiffs argue that it’s the court’s role to fix the problem since lawmakers haven’t. Attorneys for Secretary of State Steve Simon argue that it is the role of the Legislature to change the law. Whether rights should be restored earlier is certainly up for debate,” Angela Behrens, an attorney for the states aid. “And if this were a hearing in front of a legislative committee, the parties would likely be aligned.” According to Minnesota Public Radio, the justices were heavily engaged in the hearing, lobbing question after question at the attorneys. Six of the seven justices spoke at some point. A decision from the court is expected sometime next year.

North Carolina: The U.S. Supreme Court has agreed to hear a case brought by Republican legislators who are seeking to defend the state’s strict voter ID law because they think the Democratic state attorney general is not adequately representing their interests. North Carolina Senate Bill 824 requires a photo ID to vote. It was immediately challenged by the North Carolina State Conference of the NAACP, which argues that the law disproportionately impacts African American and Latino voters. The Supreme Court is not planning to take up the issue of N.C.’s voter ID law. The question is whether lawmakers have the right to defend the laws they make, independent of the executive-branch attorney general. The dispute raises questions about who can act as an agent of the state to defend a law in a divided government. Under the state constitution, the attorney general represents the state in court. North Carolina Attorney General Josh Stein is a Democrat. Republican politicians Phil Berger, the president pro tempore of the state Senate, and Tim Moore, the speaker of the state House of Representatives, seek the right to intervene to defend the law. They argued in court papers that the case raises issues that are of “particular importance in the context of divided government and litigation involving controversial matters.”

Pennsylvania: Judge Edward Reibman with the Lehigh County Court of Common Pleas has ruled that Lehigh County does have to count more than 250 undated mail-in ballots in a Lehigh County judicial race. The ballots in question arrived on time, but either didn’t have dates or had dates in the wrong places. The Lehigh County election board ruled the ballots should be counted. That decision was challenged by Republican David Ritter, who held a narrow lead in a judge race. Reibman ruled that the board had the authority to make the decision on the votes. In his ruling, he said the law should be interpreted as though it “favors the fundamental right to vote, and enfranchises, rather than disenfranchises, the electorate.” Reibman has denied an appeal and plaintiffs have appealed to the Commonwealth Court.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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