Electionline Weekly January-13-2022

Legislative Updates

Arizona: Republican Sen. Wendy Rogers has introduced SB1133 which would ban cities, towns and school boards from holding all-mail elections. Local government entities have decided to run many of its low turn-out and off-cycle elections this way because it’s cheaper to send ballots to voters than open and staff polling stations and voting cites. Stephen Richer, the Maricopa County Recorder, said he doesn’t see a reason to change state law that gives local governments the option on how they want to run an election. “My perspective on election legislation generally is that it should identify and solve real problems, not just something we have general, vague concerns about, and I’m unaware of any such real problem,” he said Tuesday. Last year, Richer said there were three mail-in voting elections in Maricopa County with no problems. He added that there is no evidence that mail-in voting increases the risk for fraud.

California: A pair of San Jose councilmembers is proposing a measure that would allow immigrants who are not U.S. citizens to participate in local elections. The measure, which requires voter approval, would give more than 200,000 noncitizen residents in San Jose a right to select new lawmakers and weigh in on different policies in future local elections. Councilmembers Magdalena Carrasco and Sylvia Arenas, who are spearheading the efforts, introduced the landmark proposal Friday—just days before the City Council is scheduled to vote on changes to the city’s charter. “This is a novel idea, but not a new idea,” Carrasco said at a news conference Monday, adding it’s unfair that the immigrant community pays taxes and contributes to the economy without having a say on local policies. “We need to make sure that the voice of our noncitizen community is not suppressed or erased… They deserve the right to vote for those in power.”

Florida: Two Florida lawmakers are seeking a change in state law to force governors to set special elections for Congress and state Legislature within six months of vacancies. The effort is aimed at preventing a repeat of moves made in 2021 by Gov. Ron DeSantis. He delayed setting special elections to fill a congressional and three state legislative seats far longer than he and other governors ever have before. The proposed change would require the governor to set special elections within 180 days of the vacancy, but also asks that they be set as soon as is feasible, “so it certainly could be much sooner than six months.” “There was no reason for this to happen. It has never happened before,” Sen. Tina Polsky said. The proposed change would “take away this discretion, the vagueness [in the law] that has allowed this to go on. I don’t want to see this happen again in the future.”

Sen. Travis Hutson, a Palm Coast Republican, has filed an elections package that would, among other things, eliminate ranked-choice voting (RCV) in Florida. “I don’t think you should be numbering and ranking people on the ballot,” Hutson said of SB 524. “One person should win, or if there is a runoff you should go to a top two.” The bill also would also raise a cap on candidate reporting fines and allow for elections supervisors to have two more early voting sites.

Illinois: Gov. J.B. Pritzker signed an amended bill that deals with the primary election in 2022, allowing voters to request vote by mail ballots beginning March 30 and ending June 23, and allowing for a signature collection period from Jan. 13 to March 14. House Bill 1953 as amended would amend the Election Code for 2022 and the Legislative Commission Reorganization Act of 1984, and also provides that in 2022 the period during which newsletters and brochures may not be mailed begins on May 15. The bill is effective immediately.

Maine: In order to ensure that Maine’s elections remain safe and secure, 2 bills are being proposed during this legislative session in Augusta. The bills are LD1821 “An Act To Make Interfering with an Election Official a Class C Crime”, and LD 1779 “An Act To Protect Election Integrity by Regulating Possession of Ballots and Voting Machines and Devices”. “A bill by representative Bruce White, it is a bipartisan piece of legislation to make it a crime to threaten an election worker or attempt to disrupt an election through a violent activity. The second bill is to protect the integrity of ballots and voting equipment,” said Secretary of State Sheena Bellows. At a hearing this week, clerks said they have noticed higher tensions and more confrontations with angry and misinformed voters, and the situation is making it harder to find poll workers.

Missouri: An effort will be launched this week at the Board of Aldermen to repeal the nonpartisan “approval voting” system used for the first time in last year’s city election and to replace it with another new approach. Alderman Sharon Tyus, 1st Ward, plans to introduce two bills to try to do that, according to the tentative agenda released for the meeting. One measure would simply repeal the existing law, under which residents vote for as many nonpartisan candidates for an office in a March primary as they “approve” of — with the top two moving on to a runoff in the April general election. City voters adopted the new system at the November 2020 election after activists got it on the ballot through an initiative petition campaign. The other Tyus bill would return to holding partisan primary and general elections, but add a runoff in situations in which no one gets at least 50% of the vote in a primary with more than two candidates. Under that proposal, the municipal primary would move to February, the new primary runoff would take place in March and an April general election would feature party nominees and any independent candidates who qualify by petition.

Nebraska: Sen. Tom Briese has introduced legislation to enhance penalties for voter fraud in the Corn Husker state. Illegal manipulation of election results through fraud, extortion would be consider a Class II felony. Briese said that he’s not questioning past election results, but that he’s concerned about the perception and sees the legislation as a way to address that. Briese said, “Voter fraud whether real or imagined I believe poses a serious threat to our republic and I believe we need to prevent voter fraud and increase the public’s confidence in the system.” Sen. John Cavanaugh says there’s little to no evidence of voter fraud in Nebraska and he’s concerned about efforts that address a problem that doesn’t exist. “I don’t think it’s the purview of the legislature to regulate people’s perceptions,” Cavanaugh said.

New Jersey: A bill that would allow early and mail-in votes to be canvassed by county election boards prior to Election Day advanced through the Senate Budget and Appropriations Committee. The bill was drafted largely in response to last year’s general election, when slow vote counting in some counties caused election results in several races to remain undetermined for days or weeks after Election Day. “This year’s election results were significantly delayed due to the counting of [absentee and early] ballots,” State Sen. Troy Singleton (D-Delran), one of the bill’s sponsors, said last month when the bill was introduced. “By allowing county boards of elections to begin processing early votes and VBMs before Election Day, we hope to restore timeliness and confidence in the process, while maintaining and upholding election integrity.” Every Democrat on the committee voted in favor, while all four Republicans abstained.

Both chambers of the Legislature have approve a bill that would limit police presence — for plain-clothed or uniformed officers — and would also prohibit any electioneering within 100 feet of a ballot drop box. If signed into law by Gov. Phil Murphy (D) it would become law immediately.

New Mexico: Gov. Michelle Lujan Grisham (D) and Secretary of State Maggie Toulouse Oliver (D) have rolled out a series of election reform proposals that attempt to expand the franchise and make voting easier for New Mexicans. Under the proposal: Extending early voting, making Election Day a holiday, and permitting residents as young as 16 to vote in local elections. Restoring voting rights to those convicted of felonies who are not incarcerated. Creating a voluntary permanent absentee voter list of voters who would automatically receive election ballots by mail. Allowing residents without a state-issued ID to register online using their Social Security number. Mailing ballots to voters 35 days before Election Day and accepting ballots as late as 7 p.m. on the Friday after an election, to accommodate postal service delays. Extending time for indigenous nations, tribes, and pueblos to request alternate voting sites. Allowing automatic voter registration when completing transactions at state Motor Vehicle Division offices. Secure electronic submissions of nominating petition signatures. Enabling straight-party voting on the ballot.

Pennsylvania: House Minority Leader Joanna McClinton introduced the proposal this week. House Bill 2090, known as the K. Leroy Irvis Voting Rights Protection Act, is named after K. Leroy Irvis, a former speaker of the Pennsylvania House who was also the first Black speaker of any state legislature since Reconstruction. The proposal would bring 15 days of early voting and same-day voter registration to Pennsylvania, while giving counties 21 days to pre-canvass mail-in ballots – a provision that counties have been asking for since mail-in voting was enacted in 2019. The bill would also implement the use of electronic poll books, allow voters to fix or “cure” ballots that are defective and require counties to provide at least two ballot collection drop boxes within their borders. HB 2090 currently awaits a vote in the House State Government Committee.

A bill to ensure voting precincts have enough ballots to accommodate in-person voters has been approved by the House State Government Committee. State Rep. Ryan Warner, R-Perryopolis, introduced the legislation after voting precincts in several areas of the state, including Fayette and Westmoreland counties, ran out of ballots in the May 2021 primary election. “It’s unconscionable that a voter would show up to cast his or her ballot only to be told there aren’t any left,” Warner said. “There is no excuse for ballot shortages in any election, and my bill will make sure this never happens again.” House Bill 1614 would require enough ballots to be printed and supplied to each precinct for 50% of all registered voters in that precinct in each party for a primary election, and 100% of all registered voters in that precinct for a general election. Each of these numbers could be reduced by the number of registered voters in an election district that have requested an absentee or mail-in ballot. The measure now goes to the full House for consideration.

Vermont: The House of Representatives has passed a bill allowing towns and school districts to hold town meeting votes by Australian ballot to prevent the further spread of COVID-19. The bill, S. 172, passed by voice vote and was sent back to the Senate for delivery to Gov. Phil Scott. Quick passage was seen as essential to allow town clerks, and town and school boards, to plan for Town Meeting Day, which is March 1 this year. An amendment offered by Rep. Casey Toof, R-Franklin, that would have mandated universal balloting by mail for town meetings, was defeated on voice vote. The bill, which was sponsored by Sen. Jeanette White, D-Windham, and passed through the Senate on Wednesday, allows cities, towns and school districts to hold annual meetings by Australian ballot rather than floor meetings, and move the meeting to a potentially safer date later in the year. The bill also provides for electronic informational meetings to held in advance of Australian ballot voting. But it does not allow towns to permanently replace the floor meeting with polling place voting.

Washington: The state Senate unanimously approved a measure that would make it a Class C felony to harass an election worker, with violations potentially resulting in a five-year prison sentence and a $10,000 fine. The measure was sparked by reports of threats to workers across the country following the 2020 presidential election and the misinformation that stemmed from that, and continues to date. Democratic Sen. David Frockt, the bill’s sponsor, said the measure is needed to address “a grievous threat to our democratic system.” It’s the second time the Democratic-led chamber has voted on the measure, first passing it last year. The measure now heads to the House, also led by Democrats, where it died last year.

A bill that would ban guns from election-related locations received a public hearing this week. Violations would be gross misdemeanors punishable by up to a year in jail and a fine of $5,000. “When our ballots and elections workers are under threat, our democracy isn’t safe,” said Democratic state Rep. April Berg in testimony before the House Civil Rights and Judiciary Committee regarding her bill to ban weapons from ballot counting centers and other election-related facilities. “This legislation is about extending the same protections we offer to students, teachers and our courtrooms to the beating heart of our democracy, the very place where our election workers count ballots,” Berg said. Opponents of the proposed new restrictions pushed back forcefully in their own testimony. A common theme was that the bills would abrogate their state and federal constitutional gun rights and unfairly penalize lawful gun owners, without improving public safety.

Wisconsin: A new Republican-backed proposal would put more voting restrictions on people who have been convicted of felonies. Under current law, people who have been convicted of felonies in Wisconsin are not allowed to vote until they complete their term of imprisonment, as well as any court-mandated periods of probation or parole. Under the new proposal, those people would also be barred from voting until they have completed any required community service hours and finished paying off any financial penalties imposed as part of their sentence, including fines and victim restitution. Rep. Shae Sortwell, R-Two Rivers, one of the bill’s sponsors, said the plan is not intended to create more barriers to voting in Wisconsin. “We’re not making it more difficult to vote. We’re making sure justice is fulfilled here,” he said. Sen. Duey Stroebel, R-Saukville, another sponsor, argued it’s appropriate to restrict certain rights until all terms of an individual’s criminal sentence have been met. “I believe the restoration of one’s right to vote should be contingent on all debts to society being paid,” Stroebel said in a prepared statement. However, opponents of the plan equate it to a “poll tax” — a harmful obstacle that prevents people from exercising their constitutional right to vote.

The state legislature’s rule-making panel, the Joint Committee for Review of Administrative Rules has ordered the Wisconsin Elections Commission to finalize its emergency rules for dropboxes, as well as its rules for “curing” ballots within the next 30 days.

Legal Updates

Indiana: Of the three lawsuits filed in 2020 challenging Indiana’s voting laws, one remains on the Southern Indiana District Court’s docket, with plaintiffs now seeking summary judgment to enable any eligible Hoosier, regardless of age, to cast an absentee ballot. The case, Barbara Tully, et al. v. Paul Okeson, et al., 1:20-cv-01271, argues that Indiana’s law limiting mail-in voting to Hoosiers who are 65 or older violates the 26th Amendment, which lowered the voting age to 18. “Construing the Twenty-Sixth Amendment to merely guarantee that citizens age 18 or older shall have the right to vote also ignores the Amendment’s textual and historical context,” the plaintiffs argued in their brief in support of their motion for summary judgment. “In prohibiting both the denial and the abridgment of the right to vote, the Twenty-Sixth Amendment consciously echoes three of the Constitution’s earlier Amendments, which similarly provide that no state shall ‘den[y]’ or ‘abridge[]’ the right of citizens to vote on account of certain criteria: race, color, or previous servitude (Fifteenth); sex (Nineteenth); or ability to pay a poll tax (Twenty-Fourth).”

Montana: Several tribes and Indigenous-rights groups in Montana this week asked Yellowstone District Court Judge Michael G. Moses to put the brakes on new election laws that ended Election Day registration and restricted ballot-collection practices in the state. Arguing that the changes will irreparably harm the voting rights of Native Americans living in Montana, the plaintiffs are asking Moses to issue an injunction blocking the enforcement of the two laws until a ruling is made on their constitutionality. The American Civil Liberties Union filed the request for a preliminary injunction on behalf of a coalition that includes Western Native Voice, Montana Native Vote and the Blackfeet, Confederated Salish and Kootenai, Fort Belknap Indian Community and Northern Cheyenne tribes. The lawsuit was initially filed by the groups as a challenge to two election-related bills signed into law following the 2021 legislative session. Last month it was consolidated with two other cases challenging Republican-led changes to voting laws. Montana Secretary of State Christi Jacobsen is the defendant in the case.

Nevada: Carson City District Court Judge James Wilson has ruled in favor of backers of a proposed ballot question calling for open primaries and a ranked-choice general election in a lawsuit aimed at keeping the initiative off the ballot. Wilson’s ruling was issued following a roughly hour-long hearing. The ruling rejected all three claims raised against the initiative, and the judge concluded that changes to both primary and general elections did not violate the single-subject rule for ballot initiatives. “Every initiative presents voters with policy choices, some of which voters may prefer more than others,” the ruling stated. “But so long as those provisions relate to a single subject, it is for the initiative’s proponents to propose those policy changes. The law allows Nevada voters to propose to change the manner in which specified officeholders are chosen.” The ruling could be appealed to the State Supreme Court.

New Jersey: Superior Court Judge Thomas Daniel McCloskey has set March 22 for a do-over city council election in Old Bridge. McCloskey threw out the election in late December 2021after finding that election officials didn’t properly follow 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 original ruling is being appealed with a hearing set for Jan. 21.

North Carolina: Associate Justices Phil Berger Jr. and Tamara Barringer have said they won’t step away from hearing a case that challenges a pair of constitutional amendments, one of which mandates photo voter identification. Berger and Barringer wrote separately that each believes they “can and will be fair and impartial” in hearing the lawsuit brought by the state NAACP. Both justices cited in part the will of the voters who elected them in 2020 to resolve judicial questions. Lawyers for the civil rights group asked last summer that the two justices be disqualified from participating in the deliberations, citing conflicts. The attorneys pointed to Berger as the son of Republican state Senate leader Phil Berger, who is a defendant in the lawsuit that challenges in part the legality of a 2018 statewide referendum that enshrines a voter ID mandate in the North Carolina Constitution. And as a senator, Barringer voted in favor of holding the referendum on the voter ID amendment.

Pennsylvania: The ACLU filed a lawsuit claiming that Fulton County in Pennsylvania has refused to comply with a Right To Know request for documents related to a third-party review of the 2020 election. In July 2021, ACLU Legal Director Witold Walczak formally asked for all documents related to the request of Sen. Doug Mastriano of Franklin County to review the county’s voting machines and election results by private company Wake Technology Services Inc. (Wake TSI), which was involved for a time in the Arizona election review. The review ultimately led the state to decertify the machines because the review violated state law. Fulton County originally denied the ACLU’s request, but on appeal the Office of Open Records ordered the county to comply in September. In the new lawsuit, the ACLU recognizes that the county released 691 documents but says there are materials missing from the collection. The lawsuit identifies several categories of documents that should have been released but were not. Specifically, the ACLU was looking for contracts and email communications with Wake TSI that are discussed and referenced in other records, including a contractual document signed by Wake TSI co-founder Gene Kern and Fulton County Director of Elections Patti Hess that was referenced in an email released by the county.

A lawyer for Democratic candidate Zachary Cohen has filed a petition with the Pennsylvania Supreme Court appealing a ruling by the state appeals court that 261 undated mail ballot from the November 2021 election should not be counted. That ruling was in favor of Republican candidate David Ritter. It overturned a lower court’s ruling that the ballots should be counted. No word on when the latest petition will be taken up.

The statewide Commonwealth Court declined to block an entire subpoena to state election officials in what Republican state lawmakers call a “forensic investigation” of 2020’s presidential election, fueled by former President Donald Trump’s baseless claims that Democrats stole the election. But the court did not immediately greenlight the release of some information that Democratic state Attorney General Josh Shapiro challenged as being protected by privacy laws. In the unsigned order, the court said state officials and Democratic lawmakers did not persuade it that the subpoena issued in September by a Republican-controlled Senate committee had no legitimate legislative purpose. The subpoena had requested a 17 categories of records, much of it public, but also wanted information the state attorney general’s office said is protected by privacy laws — namely voters’ partial Social Security numbers and driver’s license numbers and details about election systems that are barred from public disclosure by federal law governing critical infrastructure. The court also declined to debate whether the subpoena was issued appropriately under internal Senate rules, saying it would leave that matter to the Senate. It did not issue a hearing schedule or instructions on how it will handle the release of information potentially protected by privacy laws, including the partial Social Security and driver’s license numbers of roughly 9 million registered voters.










NYC Wins When Everyone Can Vote! Michael H. Drucker