Legislative Updates
Alaska: The Anchorage Assembly adopted updates to the city’s procedures for handling elections this week. The 9-2 vote occurred in a special Assembly meeting after members were initially set to vote on the matter last week. Such adjustments to city election rules are routine, generally happening each year to improve the process for certifying local votes. Assembly member Felix Rivera characterized such changes as “a regular process” that has happened around two dozen times since 1980. But this year, in the wake of a mayoral runoff that saw “unprecedented harassment” of local officials amid the spread of disproven claims about the 2020 presidential election, the process dragged on after acrimonious testimony from skeptical members of the public. Most of the adjustments are technical. They include provisions like putting 24-hour livestreamed monitoring of the voting center into city code, establishing training requirements for elections observers and clarifying the municipal clerk’s ability to limit in-person observers.
Gov. Mike Dunleavy announced the introduction of a “catch-all” elections bill this week that he said is aimed at improving transparency and confidence in the election process. The text of the elections bill Dunleavy said he plans to introduce isn’t available yet, but Lt. Gov. Kevin Meyer said that one part of the bill would make changes to the automatic voter registration of anyone who gets a Permanent Fund dividend. He said it leaves a lot of people on the rolls who don’t want to vote or who left the state. Another aspect would allow voters a chance to correct their ballot if they make a mistake, such as forgetting to sign the envelope on a mail-in ballot.
Michigan: Gov. Gretchen Whitmer signed bills that will make candidates’ $100 filing fees nonrefundable and direct the fees to the local government’s general fund to be used only for the purchase and maintenance of voting equipment. House bills 4282, 4283, 4284, and 4295 amend the Michigan Election Law. The bipartisan legislation would boost clerk’s offices by depositing the fee in the general fund of the candidate’s county of residence to be used for the purchase and maintenance of voting equipment. “Most candidates didn’t even realize that their $100 filing fee could possibly be returned to them,” said Rep. Terry Sabo, D-Muskegon. “These bills remove that refund and make the jobs of our local clerks easier, while still allowing candidates the choice of gathering the signatures required or paying a now non-refundable filing fee.”
New Hampshire: Undeclared voters have had a say in New Hampshire’s primary elections for over 100 years, but one bill would change that. While the current system allows New Hampshire’s roughly 410,000 undeclared voters to decide on election day which party’s primary they want to vote in, HB 1166 would require voters to declare a party affiliation at least four months in advance. This would do away with the longstanding tradition of having New Hampshire primaries semi-closed — a hybrid type of primary in which previously undeclared voters can participate in the partisan primary of their choice. HB 1166 would restrict New Hampshire primaries to only allow members of each party to vote in their primary elections. This system, called a closed primary, is not uncommon, as bill sponsor Rep. David Love pointed out.
New York: Gov. Kathy Hochul has signed two election administration bills into law. One bill requires absentee ballots to be counted by election night, while the other requires the state to increase the number of early voting sites in each county. The latter aims to cut down the amount of time candidates and the public have to wait to know the results of elections — as more and more races have been called based on absentee votes during the pandemic. The legislation would require local boards of election to count the absentee ballots as they come in, so the full — albeit unofficial — count is released on election night. It takes effect on Jan. 1, 2022. The other bill requires local boards to open at least one early voting place for every 30,000 registered voters in each county. It would nearly double the number of early voting sites across the state and expand hours at each site.
Washington: Rep. April Berg (D-Mill Creek) has drafted a bill that will keep guns out of places where ballots are cast and counted. As written, House Bill 1618 would ban firearms and other dangerous weapons from election offices, ballot counting facilities,, voting centers and student engagement hubs. Law enforcement officers would be exempt. Private security personnel hired by a county would be too, if they’ve completed firearm training. “There are already places in our society where we, based on the potential for intensely emotional situations, do not allow weapons,” Snohomish County Auditor Garth Fell said. “Elections and political perspectives can stir equally intense emotions. This proposed bill is a reasonable step to help ensure official election facilities are safe spaces for voters and election workers.”
Legal Updates
Michigan: Attorneys for the Michigan Secretary of State’s Office asked a judge to dismiss a lawsuit alleging millions in private donations to local election clerks, much of it from Facebook founder Mark Zuckerberg and his wife, damaged the integrity of the 2020 presidential election and violated the law. The lawsuit is one of the last remaining Michigan lawsuits among a plethora filled after former President Donald Trump lost the election that many supporters called fraudulent, although there is no evidence to support that claim. SOS spokeswoman Tracy Wimmer said she couldn’t comment on the lawsuit, but said: “As we’ve seen many times over the past year, lawsuits are often used as (public relations) tools to undermine faith in elections so that they will be easier to overturn in the future. All clerks are officials of local government, and they make public exactly what donations they receive and how those funds are spent.” An MLive investigation into the grant funds revealed they were distributed widely to both Republican and Democrat-leaning communities, but it’s impossible to perform a full analysis, since the Center for Tech and Civic Life didn’t reveal the local grant amounts and the totals weren’t tabulated by state officials. MLive found no evidence that Benson’s office specifically encouraged Democrat-leaning communities to apply for the grants. Her office did notify all clerks in the state that the grant funds existed and provided information on how to apply.
Minnesota: According to Crow Wing County Attorney Don Ryan, county commissioners have no authority under the law to conduct a forensic audit of the county’s 2020 election results. That legal opinion prompted the board to unanimously support a motion from Commissioner Rosemary Franzen directing staff to prepare a resolution urging Secretary of State Steve Simon to perform an audit of the county’s results. Although the 5-0 vote was met by applause from the gallery of about 70 forensic audit supporters, the board would still vote on whether to approve such a resolution at a future meeting. Ryan — who outlined every statute, rule and court case he believed relevant to the legal questions the county board asked him to explore — said his interpretation of the law finds the authority to reopen sealed ballots after this much time rests with the Office of the Minnesota Secretary of State, not local authorities.
New Jersey: Superior Court Judge Daniel McCloseky will decide by the end of the year how to handle a contested Old Bridge Township Council race where a Republican incumbent who lost by 11 votes says the Middlesex County Clerk mailed ballots to the wrong voters. McCloskey promised a written decision on a request by Councilman Mark Razzoli to invalidate the election results, a motion by Democratic Councilwoman-elect Jill DeCaro to dismiss the complaint, or whether to take the matter to trial. The issue is whether Nancy Pinkin, the county’s top election official, followed boundaries set in the 2011 ward redistricting map put voters from the odd numbered homes on one side of Cymbeline Drive in Ward 2, and the even numbered homes on the opposite side of Cymbeline Drive residing in the Ward 4. The Middlesex County Counsel’s office, representing Pinkin, is blaming the mistake on the New Jersey Secretary of State’s office, saying the information in the Statewide Voter Registration System was incorrect.
Texas: Isabel Longoria, elections administrator for Harris County, and Cathy Morgan, a deputy registrar in Williamson and Travis counties asked a federal court in Texas for a preliminary injunction in their lawsuit seeking to block provisions of a new elections law in the state that prohibits public officials from soliciting vote by mail ballot applications. Longoria and Morgan argue in their 24-page motion that the mail-in voting provisions violate their First Amendment right to free speech. The motion comes 18 days after the plaintiffs filed their federal lawsuit against Texas Attorney General Ken Paxton and district attorneys in Harris, Williamson and Travis Counties, seeking to block provisions of Senate Bill 1 that created criminal and civil penalties for soliciting vote by mail applications. A person found to have violated the vote by mail solicitation rules faces a mandatory minimum of six months in jail and up to $10,000 in fines. Longoria and Morgan argue that the law — passed during a special legislative session in September — creates a content-based restriction on their right to discuss vote by mail applications. In the complaint, the plaintiffs argue that they are not allowed to encourage or direct eligible voters to request an application to vote by mail because that could be seen as soliciting. But discouraging voters from applying to vote by mail is not prohibited. The officials assert that the restriction does not protect a specific state interest worthy of suppressing speech. “Senate Bill 1 subjects me to criminal prosecution for encouraging eligible voters to vote by mail so they may participate in our democracy, an option they have under Texas law,” said Longoria in a statement.
Washington: Kittitas County Superior Court Judge Candace Hooper has ruled that Yakima County must pay nearly $272,000 in legal fees and other costs in a settlement over alleged Voting Rights Act violations. Plaintiffs — Seattle-based immigrant rights group OneAmerica and Campaign Legal Center—had sought $2.1M but Hooper ruled that amount was unreasonable and reduced attorney hours claimed by more than 60% and denied other expenses, including $3,480.90 in bar admission fees for seven attorneys so they could practice law in Washington state. In the ruling, Hooper said awarding fees encourages election systems be corrected, but they “should not hamstring or injure the very representative government which the statute was meant to improve, or present local jurisdictions with overwhelming debts and the now properly representative officials with an impossible financial burden from the start of their terms.”
Wisconsin: Dane County Circuit Court Judge Rhonda Lanford heard arguments over the subpoena authorities of a former state Supreme Court justice investigating the 2020 election on behalf of a legislative committee controlled by Republicans. Former Wisconsin Supreme Court Justice Michael Gableman Gableman has issued multiple subpoenas for documents and testimony. Wisconsin Attorney General Josh Kaul, a Democrat, sued on behalf of Elections Commissioner Meagan Wolfe and the WEC in October, claiming the subpoenas are overbroad, serve no valid legislative purpose and unlawfully demand testimony in private rather than publicly, among other reasons. Assistant Attorney General Gabe Johnson-Karp argued last week that the subpoenas pose “grave due process issues” because they demand private depositions at Gableman’s Brookfield office beyond statutory authority and carry the threat of imprisonment if the subpoenaed person does not comply. Lanford said at the close of proceedings she would issue a written decision on the plaintiffs’ injunction motion and the defendants’ motion to dismiss on or before Jan. 10.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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