Thursday, December 9, 2021

Electionline Weekly December-9-2021

Legislative Updates

Massachusetts: A ballot measure that if approved would have required voters to show a photo ID in order to vote is not moving forward after organizers failed to gather enough signatures. The Committee to Bring Voter ID to Massachusetts, a ballot committee behind the initiative, needed to collect at least 80,000 signatures into Secretary of State Bill Galvin’s office — the first of several hurdles to get onto next year’s ballot. But the committee wasn’t able to muster the signatures by the December 1 deadline. A summary of the proposed ballot question, which cleared a legal review by Attorney General Maria Healey, points out that voters who don’t have ID, or forget to bring it with them, would still be allowed to cast a ballot by filling out an affidavit at the polling station certifying their identity. Proponents have also filed several bills in the current legislative session to require voter ID that are pending before the Committee on Election Laws.

Missouri: Sen. Eric Burlison (R-Battlefield) says that he will introduce legislation in the upcoming session that will propose requiring voters to show a photo ID before voting, reforming election judge qualifications, and prohibiting cities from using outside funding for elections. “The 2020 election cycle raised numerous issues regarding mail-in ballots and the systems in place to count those votes. As a result, I have decided to file legislation that will ensure that Missouri has safe, fair, and secure elections,” writes Sen. Burlison. “In order to maintain our system of government and ensure the will of the voters is followed, we must do everything we can to ensure the integrity of our elections. This legislation promotes safe and fair elections, and I am looking forward to discussing these issues further with my colleagues in January.” Legislators were able to pre-file bills in Missouri on December first

New Jersey: A bill that previously passed the state Senate to raise poll-worker pay from $200 per day to $300 per day unanimously passed in the state Assembly on December 2. The Senate version was substituted for the Assembly version, and the legislation now goes to Gov. Phil Murphy for his signature. The bill also appropriates $7 million to the Department of State to reimburse the counties for the costs of implementing it. Under current law, election workers are paid $200 per day each time the primary election, the general election or any special election is held, according to the bill. The state has reimbursed $125 of the payment to election workers while the counties have paid the rest. The bill increases the state’s reimbursement to $225 while keeping the counties’ sum at $75. Murphy temporarily raised poll-worker pay to $300 per day for the Nov. 2 election by executive order.

Assemblyman Christopher DePhillips has introduced a bill that permits county election officials to count mail-in ballots as they are received instead of waiting until Election Day. The bill (A6143) requires county boards of elections that start canvassing vote-by-mail ballots before Election Day to ensure the security of the process and confidentiality of the ballots until polls close.

North Carolina: Gov. Roy Cooper (D) a Republican-backed bill that would force elections officials not to count any mail-in ballots that arrive after polls close. “The legislature ironically named this bill ‘The Election Day Integrity Act’ when it actually does the opposite,” the Democratic governor said in a statement. “Election integrity means counting every legal vote, but this bill virtually guarantees that some will go uncounted.” One of the GOP sponsors of the bill, Sen. Paul Newton of Cabarrus County, said in a press release that he believes moving up the deadline would improve voters’ confidence in elections. The bill lawmakers passed in November, which Cooper has now vetoed, is Senate Bill 326 or the Election Day Integrity Act. It would require that no mail-in ballot delivered to elections leaders after 7:30 p.m. on Election Day can be counted, no matter when it was put in the mail.

Utah: A legislative committee is directing legislative auditors to look into the integrity of the state’s election systems. The committee approved the audit along party lines Tuesday evening. The letter requesting the audit, which was shared with KUER, asks staff to examine “the integrity and accuracy of voter rolls … The legitimacy and security of submitted ballots … [and] the integrity of the systems and processes of election offices.” It does not mention the 2020 election. House Majority Leader Rep. Mike Schultz, R-Hooper, requested the inquiry even though former President Donald Trump won in Utah last year. But Schultz said this isn’t about a particular party. “I don’t understand what we’re afraid of,” he said. “I’m hopeful that the audit that comes back clean and restores confidence or gives the citizens of the state confidence in our election process.” Republican Lt. Gov. Deidre Henderson, who oversees the state’s elections, said she welcomes the audit and feels confident it won’t find widespread fraud. Still, she worries that it contributes to a false narrative that the 2020 election was stolen. “I think that Rep. Schultz is sincere in his desire to increase voter confidence,” Henderson said. “I do worry about the overall narrative and how this may contribute to it … It’s really destructive to people’s public trust and we need to be very cautious about that.” She said her office and county clerks regularly conduct election audits. She also has visited many clerk offices around the state this year to examine their processes and said they were all safe and secure.

A group called Secure Vote Utah is promoting a new ballot initiative would require most voting to happen on Election Day at in-person precincts, plus election judges would be required to publicly release the results. It also would allow absentee ballot voting to happen on a limited basis. It would also create emergency ballots for people who wouldn’t be able to make it to their polling locations for unforeseen reasons. The initiative would also let a candidate to start a sample audit after an election. Salt Lake County Clerk Sherrie Swensen says the proposal wouldn’t make voting any more secure than it is now. She believes the initiative would set Utah’s election system back 40 years. Weber County Clerk/Auditor Ricky Hatch agrees the proposal would be significantly more expensive than our current election system. He was asked to work on the fiscal note for the proposed initiative. “I’m not done, but I’m already at $22 million,” Hatch said. The initiative is also being criticized by Utah Division of Indian Affairs Director Dustin Jansen. He says the law would not recognize tribal ID cards as accepted forms of ID. And many Native Americans live far away from their polling locations.

Wyoming: The Joint Corporations, Elections and Political Subdivisions Committee considered the election reform proposal, in a state where the Republican candidate is often all but guaranteed victory. Proponents of runoff elections say they would prevent someone from succeeding with less than a majority vote — a regular occurrence in Wyoming Republican primaries with multiple candidates. The committee indefinitely tabled runoff legislation and voted down a constitutional amendment that would have served as a necessary counterpart to the bill. The committee voted down the amendment first, with five lawmakers in favor, eight against and one excused. Without a constitutional amendment, the runoff bill was essentially moot, and the committee voted in favor of tabling it. If the bill was successfully signed into law, it would not have gone into effect until 2024.

Legal Updates

Redistricting: Courts in states throughout the country are weighing in, or choosing not to, on redistricting proposals. Electionline doesn’t cover redistricting too much other than the practical implications for election administrators but we thought we’d provide you a brief roundup of some of the ongoing legal battles. In Georgia, several lawsuits have been filed over the state’s new maps with plaintiffs arguing that the state’s redrawn districts reduce the voting strength of people of color who accounted for the state’s population growth over the past decade but could lose representation after next year’s elections. In North Carolina, the start of candidate filing for U.S. House and legislative seats was blocked on this by an appeals court panel — only to be restored hours later when most Court of Appeals judges agreed they wanted to decide whether a longer filing delay was warranted. A three-judge panel of the intermediate level appeals court had issued a temporary stay and told state and local officials not to begin accepting candidates for those seats. Their districts are the subject of litigation that argue the lines approved by the Republican-controlled General Assembly last month are illegal partisan gerrymanders. The panel had given Republican legislative leaders and the state until Thursday to respond to the arguments of the North Carolina League of Conservation Voters, which leads a lawsuit. The league’s attorney said the candidate filing period should be suspended for a while so appeals courts can scrutinize the actual maps. An order signed by the court’s clerk late in the day declared a majority of the judges agreed to rehear the matter, and that the temporary delay of the filing period has been vacated. Ten of the 15 Court of Appeals judges are registered Republicans. On Wednesday, the North Carolina Supreme Court suspended candidate filing for the 2022 primary elections and ordered that the primaries be delayed until May 17. The Ohio Supreme Court heard arguments in three cases this week over the state’s new maps. All of the lawsuits question the constitutionality of the maps, especially provisions of the constitution that directed the commission not to draw maps that favor or disfavor one political party over another, and ensuring compliance with the Voting Rights Act. The U.S. Department of Justice has filed suit against Texas’ redistricting plans. Attorney General Merrick Garland said the state’s redistricting maps approved by the Texas Legislature earlier this year effectively dilute the voting strength of people of color. “The right to vote is foundational to our democracy,” Associate Attorney General Vanita Gupta said, adding that the federal government’s complaint claims that Black and Latino voters have been denied an “equal opportunity” to participate in the voting process because of the reconfiguration of state voting districts. “Several of the districts were drawn with discriminatory intent,” Gupta said. The Washington Supreme Court ruled that a plan adopted by the state’s redistricting commission “substantially complied” with statutory deadlines, and declined to adopt a new redistricting plan for the state.

Arizona: A three-judge panel of the Ninth Circuit reversed a lower court’s injunction that prohibited the state from throwing out mail-in ballots that have not been signed by Election Day. After Navajo Nation sued Arizona in 2018 over varying dates to correct unverified signatures, the Legislature imposed strict deadlines mandating the ballots be corrected within five days of the election. While not explicitly addressed by the law, Arizona’s secretary of state and attorney general enforced an Election Day deadline on missing signatures. According to the state, the former is an issue of verification, while the later is an error of voter negligence. Rather than letting voters sign their original ballot, Arizona sends a provisional ballot for a second chance to cast their vote. Therefore the state argued it isn’t possible to correct the issue after Election Day. The Arizona Democratic Party sued the state in June 2020 claiming the deadline for missing signatures denied voters due process and violated their First and Fourteenth Amendment rights. After a federal judge ruled in favor of the Democrats, the state appealed to the Ninth Circuit and oral arguments took place in July 2021. “The state had an important regulatory interest in reducing the administrative burden on poll workers, especially during the busy days immediately following an election. In light of the minimal burden on the voter to sign the affidavit or to correct a missing signature by Election Day, the state’s interest sufficiently justified the election-day deadline,” wrote U.S. Circuit Judge Susan P. Graber, a Bill Clinton appointee, for the majority. In the 20-page opinion, Graber described the state’s examination of ballots and efforts to contact voters who forgot to sign them as “a measure of grace.” A voter who learns their ballot signature was missing at 7:01 pm after polls close on Election Day is simply out of luck. While the majority found Arizona’s rule constitutional, Graber clarified the opinion “merely sets a floor. Nothing in our opinion should be construed as dissuading Arizona, or other states, from providing a more generous deadline than the Constitution requires.”

Florida: The U.S. Department of Justice has filed a statement of interest in a lawsuit brought by the Florida State Conference of the NAACP over Florida’s new voting law. In its statement, the DOJ explained “Section 2 of the Voting Rights Act of 1965 prohibits…any voting standard, practice, or procedure that results in the denial or abridgement of the right of any citizen to vote on account of race, color, or membership in a language minority group.” The DOJ is not a party to the case, but filed the brief “to assist the Court in interpreting Sections 2 and 208” of the Voting Rights Act of 1965. The statement argues that attorneys for Florida and Secretary of State Laurel Lee “misconstrue the legal standards governing enforcement of these provisions.” “The DOJ also asserts that the state of Florida misapplied the law,” said Mark Shlakman, professor of law at Florida State University. “So, the DOJ position, and it’s weighing in on a relatively narrow basis, multiple grounds, but it’s really attempting to clarify…that a summary judgment would avoid altogether any focused consideration of the facts.” The DOJ brief also argues that the state of Florida’s motion for summary judgment “rests on a legal error: it fails to recognize that the burdens imposed by SB 90’s provisions can be compounding, as well as individually burdensome.”

Georgia: Two Fulton County elections workers are suing a popular far-right website that repeatedly spread false accusations that the workers committed mass voter fraud, arguing The Gateway Pundit’s claims led to racist threats and real-world harassment. The defamation suit, filed in Missouri where the site’s publishers Jim and Joe Hoft reside, says that The Gateway Pundit wrote a series of articles falsely accusing Ruby Freeman and her daughter, Wandrea “Shaye” Moss of altering election results after former President Donald Trump narrowly lost the state in the 2020 election. Other suits are pending against fellow pro-Trump outlets Newsmax and One America News as well as Fox News for claims made about voting machine vendors and their employees. “With no concern for the truth or the consequences of their willful conduct, Defendants baselessly portrayed Plaintiffs as traitors who participated in a carefully planned conspiracy to steal the presidential election in Georgia,” the lawsuit reads. “Within 24 hours, the claims had been publicly and definitively refuted by Georgia elections officials through a detailed explanation of what the misinterpreted video actually showed: no suitcases; no illegal ballots; no voter fraud.” The lawsuit says after elections officials knocked down the claims made by The Gateway Pundit and other pro-Trump media outlets, Jim and Joe Hoft continued to write false stories about the two election workers while knowing that they were not true. The suit also details harassment the two Black women faced after The Gateway Pundit stories received traction, including at least 400 emails, 75 text messages and countless phone calls. Strangers showed up to their homes, including two occasions where people tried to force their way inside to make a “citizen’s arrest.”

Massachusetts: Ward 4 Springfield City Council candidate Jynai McDonald last week filed a complaint in Hampden Superior Court seeking to void her election loss to Malo Brown based on allegations of a flawed absentee ballot system, election violations and voter intimidation. McDonald asked that a judge consider the case and “declare the election of the defendant void.” The complaint listed the city of Springfield and Brown as defendants. In Framingham, Middlesex Superior Court Judge Chris Barry-Smith has ordered a new election for Framingham District 3 City Council. “I find that: (1) two votes counted for Feeney during the recount should have been counted as blank, leaving Steiner with two more votes than Feeney; (2) Feeney has identified two voting irregularities that place in doubt the results of the District 3 election; such that (3) the election as to District 3 councilor is set aside and a new election is ordered,” wrote the judge in a ruling.

Michigan: U.S. District Judge Linda Parker ordered a group of pro-Trump lawyers who sued to block President Biden’s 2020 electoral win in Michigan to pay $175,000 in sanctions. The nine sanctioned attorneys, who were ordered to divide the costs equally, included Sidney Powell and Lin Wood, two of the more prominent promoters of the former president’s false claims about the 2020 election results being tainted by voter fraud and irregularities. The order is a follow up to Parker’s decision in August that the attorneys would be required to pay the legal fees of the city of Detroit and state elections officials involved in the case, with the amount to be determined later. Parker also referred them at that time for further disciplinary action, including possible disbarment, saying their lawsuit targeting Michigan’s voting results represented “a historic and profound abuse of the judicial process.” Parker ordered that payment be made to Michigan Gov. Gretchen Whitmer (D) and Secretary of State Jocelyn Benson (D) in the amount of roughly $22,000, with the remaining $153,000 to be paid to the city of Detroit. Parker agreed to pause enforcement of the payments if her ruling in the sanctions case is appealed.

Mississippi: Senior Status Judge Jeff Weill has ordered Canton’s Municipal Election Commission (CMEC) to certify the 2021 general election results. Secretary of State Michael Watson had filed suit after the election commission refused to certify the results 10 days following the election. “CMEC is required to either certify the winners of the general election or to order a new election after holding a hearing to determine if the facts warrant doing so,” Weill wrote. “Since the latter was not done – and, frankly was not a realistic possibility given the facts of the case – the CMEC’s only option per statute is to certify the election results.” Under the order, the commission must certify the results of the mayor’s race, as well as the council races for Wards 3, 4, 6 and 7 within seven days. The commission did not sign off on the results, saying that a judge had declared the actions of the group that oversaw the Democratic primary invalid. Weill says state statute allows the commission to call new elections at individual precincts in certain circumstances, such as candidates or candidate surrogates campaigning within 150 feet of a voting precinct. The statute limits commissioners’ power to call for new election specific to ballot boxes, not all boxes in a multi-precinct election, Weill wrote.

New Jersey: More than a year after an election for South Toms River Borough Council ended in a tie, a state appellate court ordered a special election to fill a seat that’s been vacant since April. The 2020 election initially resulted in a 772 to 772 tie between Democrat George Rutzler and incumbent Sandford Ross, a Republican. But a challenge by Democrats led to the Ocean County Board of Elections invalidating ballots cast in the vote-by-mail election by two elderly voters who apparently misunderstood the instructions and signed both the outer ballot envelope and the actual ballot. That led to Rutzler being certified as the winner and sworn into office. In April, Superior Court Judge Arnold Goldman removed Rutzler from office and ordered a June special election. By a 3-1 vote, the Ocean County Board of Elections challenged Goldman’s order. Frank Holman, the GOP county chairman, voted against the appeal, but the two Democrats – including Matthew Sage, whose job as South Toms River municipal attorney was on the line – were joined by Republican Israel Schenkolewski, a Lakewood rabbi who has served on the board for decades. In their appeal, the deputy state attorney general Dominic Giova argued that Goldman erred by reinstating the ballots cast by F.D. and D.C., saying the signed ballots ought to have nullified them. The appellate panel disagreed with Giova. “We construe the statute to direct that ballots with markings or signatures are to be counted, ‘unless’ the Board or a court finds the voter ‘intended’ to mark or sign the ballot ‘to identify or distinguish’ the ballot,” the judges wrote. “The factual question is what the two voters intended by signing their ballot.” “We interpret that statute to create a presumption in favor of counting the ballot unless a fact finder determines that the marking or signature on the ballot was intended to identify or distinguish the ballot.,” the judges said. The trial court’s findings concerning the intent of F.D. and D.C. are supported by credible evidence in the record.

Tennessee: U.S. District Judge Eli Richardson has ruled that a law that blocks sharing absentee ballot application forms will remain in effect. Tennessee voters must apply for a vote-by-mail or absentee ballot by completing and submitting an application to their local election commission, who will then handle the process of sending out ballots to those eligible voters. But state law imposes a felony charge for anyone who shares those applications with another person if they’re not an employee of an election commission. Voting rights activists last summer sued the state in an attempt to overturn the law. They argue handing out the application is an effective part of get-out-the-vote campaigns to put the tools in people’s hands more easily. Richardson denied a motion for an injunction against the law in September, ahead of the presidential election last fall. He reiterated most of the same arguments in Tuesday’s ruling. “The Court must decide for itself what the Law does and does not prohibit. And as the Court explained at considerable length in its Preliminary Injunction Opinion, the Law simply does not prohibit any conduct that is expressive,” he wrote. “Accordingly, the Court concludes that the Law does not restrict expressive conduct and thus is not within the scope of the First Amendment.”

NYC Wins When Everyone Can Vote! Michael H. Drucker

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