Thursday, January 20, 2022

Electionline Weekly January-20-2022

Arizona: Navajo Nation President Jonathan Nez spoke to a joint session of the state Legislature last week opposing a bill by Sen. Wendy Rogers (R) that would, if passed, ban use of mail-in ballots in elections. Additionally, the bill would ban ballot drop boxes and most types of drive-through voting. Nez said if voting by mail is outlawed, the result would be hardship for tribal members with no easy access to polls. “Many of our elders and those living in remote communities (would) have to drive hundreds of miles and several hours to cast their ballots,” he said.

Republican state senators and representatives in Arizona — including election conspiracy theorists and newly sworn-in members — have introduced more than two dozen bills that aim to make significant changes in the state’s voting system. Here are some:

Senate Bill 1027 would establish a Bureau of Elections under the Governor’s Office that would investigate election fraud.

Senate Bill 1055 criminalizes the failure of companies or people to perform their duties when they contract with elections departments.

Senate Bill 1056, a person who “misplaces” a ballot subject to possible misdemeanor charges. The bill defines “misplaced” ballots as those “not included in the initial tally at a polling place or counting center.” The misplaced ballots also could not be counted, and the bill authorizes affected voters to file an action for damages.

Senate Bill 1058 would ban drive-through voting and any placement of ballot drop boxes except in official election facilities

House Bill 1023 would make ballot images available and searchable by voting precinct to the public online after an election. The images wouldn’t show information that would identify specific voters.

House Bill 2041 would require a set of new fraud countermeasures built into the paper used for ballots, including “watermarking, secure holographic foil, security links, invisible ultraviolet microtext” and other features.

House Bill 2059 would raise penalties for certain kinds of election violations, such as electioneering within the 75 foot limit or voting in a county where you don’t reside, from a misdemeanor to a low-level felony.

House Bill 2080, which would mandate hand counts of ballots in all primary and general elections. Arizona voters cast 3.4 million ballots in the November 2020 election.

House Bill 2270, which would prohibit an election official from leading or belonging to a political action committee.

Florida: Proposed legislation could make it harder for some outside groups to obtain certain voter application information. St. Johns County Republican State Representative Cyndi Stevenson’s legislation would shield voters’ day of birth, email address, phone number, and party affiliation from public view. Groups like political parties, canvassing boards, and political candidates would still have access to the information. But others would have to seek approval from the Secretary of State to get the information. Stevenson said her bill is intended to prevent bad actors from getting and misusing voters’ personal information. She said she’s been collaborating with the First Amendment Foundation and is working on amendments that may keep political affiliation public and exclude the Secretary of State requirement. Stevenson added that victims of domestic violence or Floridians who have been restraining orders because they’re concerned about their safety can also request that their information be shielded from the public.

Idaho: New emergency legislation introduced by two GOP lawmakers, one of whom is running for Idaho secretary of state, would require unaffiliated voters to affiliate with a party by March 11 to vote in that party’s closed primary in May. Currently, unaffiliated voters have until Election Day to make that change, and only affiliated party members are subject to the March 11 deadline if they decide to switch parties. Sen. Mary Souza, R-Coeur d’Alene, is co-sponsoring the bill with Rep. Caroline Nilsson Troy, R-Genesee. Under current Idaho law, members of a political party must switch affiliations by the end of the candidate filing period before a primary election, or they can’t do it for that election, but unaffiliated voters can switch right up to Election Day. In Idaho’s closed Republican primary, only affiliated party members may cast ballots. Idaho’s Democratic primary election is open. Souza and Troy’s new bill includes an emergency clause, which would make it apply in this year’s primary election. The new bill’s fiscal note says, “There is minimal to no cost associated with this effort, and it will save poll worker time on Election Day by not having to record any change of affiliation at the polls.”

Indiana: Lawmakers want to move up the deadline for counties to add a critical election security measure to their voting machines. Right now, there are about 8,000 DRE machines that can use those backups in Indiana, across dozens of counties. More than 60 percent of them still need the paper trails. Current law says counties have until 2030 to get the paper backups. Now, lawmakers want to move that deadline up to July 2024. HB 1116’s author, Rep. Tim Wesco (R-Osceola), said he’s been assured the state will provide money to counties to get that done. The expected cost is around $12 million.

A bill that will strengthen security around digital absentee ballot requests passed through the Indiana House elections committee. Under the proposal, the bill requires Indiana voters to submit either their driver’s license number or the last four digits of their social security number when requesting an absentee ballot digitally. This comes after Indiana saw a huge jump in digital absentee ballot applications in 2020, with nearly 250,000 submitted electronically.

Mississippi: State Rep. Orlando Paden (D-Bolivar), and Rep. Zakiya Summers (D-Hinds), have introduced the Early Voting Act, House Bill 22, which would establish early voting measures and enforcements in the state for all elections. The bill has been referred to the House Apportionment and Elections Committee. Passage requires a majority vote and would go into effect July 1, 2024. “Democracy cannot work unless everyone has the power to use their voice at the ballot box,” Summers said. “Our government must be transparent and accountable to the people it represents. I will fight for measures that make it easier, not harder for people to vote, including online voter registration, no-excuse early voting, and voter registration.” According to the bill, if passed, it would establish early voting six days before the date of the election and would continue through the last regular business day preceding the election.

Nebraska: A proposed constitutional amendment requiring Nebraska voters to show photo identification before they cast a vote won’t be debated by the Legislature this year.The measure (LR3CA) from Sen. Julie Slama of Sterling failed to obtain the five votes necessary from the Government, Military and Veterans Affairs Committee to advance to the floor. LR3CA had the support of Secretary of State Bob Evnen, who campaigned on enacting a voter ID law, and other conservative lawmakers in the officially nonpartisan Legislature, who said it would bring Nebraska in line with 35 other states that have similar provisions in their law. But opponents labeled it as a solution in search of a problem, saying there was no evidence of voter impersonation in Nebraska. They also said requiring voters to obtain a photo ID card would create additional barriers for Nebraskans who are low income, older, non-white or live with disabilities before they could exercise a constitutional right to vote. The committee took no action on LR3CA last year after its Feb. 17, 2021, hearing.

New Hampshire: A bill unveiled last week would require voters who register to vote on Election Day without sufficient documents to mail copies of those documents to the Secretary of State’s Office within 10 days of Election Day – or have their votes invalidated by the state. Sponsored by Sen. Bob Giuda and supported by Senate Majority Leader Jeb Bradley, Senate Bill 418 has a clearly stated purpose, Giuda says: to prevent a ballot cast by a voter who doesn’t live in the town from counting in the election. “Every vote that’s unqualified that counts X’s out a legitimately qualified voter’s vote,” the Warren Republican said in an interview Friday. “And with the close margin we see in so many of our elections, that’s potentially changing the outcome of the election.” Giuda said he had been working with former secretary of state Bill Gardner and the current secretary, Dave Scanlan, since March 2021 to craft the legislation.

North Carolina: Primary elections would move from May to June under a bill advanced by state Republicans in a pair of party-line votes. Gov. Roy Cooper has expressed concern with the bill and may veto it. And with Democrats already voting against the measure en masse, he’d likely be able to sustain that veto, rendering the planned changes moot. But for now House Bill 605 lays out this proposed schedule for the primaries: Candidate filing would run from March 24 to April 1. The primaries would be June 7. If Cooper vetoes the bill, and if the veto is sustained, the primaries would go back to May 17. The idea behind the delay is to leave more time for an ongoing court fight over North Carolina’s congressional, state House and state Senate election districts.

South Dakota: South Dakota voters can use the internet to check the accuracy of their voter registration information, but they have to go through county auditor offices to actually register or change it. The state Board of Elections wants the Legislature to update the law, so that people could also adjust their data online. The Senate State Affairs Committee gave its unanimous recommendation for the online approach this week. SB 69 would let a registered voter, with a valid South Dakota driver license or ID card, electronically submit changes to the South Dakota Secretary of State office. The changes would then go to the voter’s county auditor. Secretary of State Steve Barnett supports the legislation. “This legislation was drafted with security as the main focus,” Barnett said.

Utah: House Bill 178, which was introduced by Rep. Mike Winder (R-West Valley City), and sponsored in the Senate by Curt Bramble, R-Provo, is entitled “Ranked Choice Voting Amendments.” This bill would require ranked-choice voting to be used in multi-candidate primary and general election races statewide. Along with multiple cities in Salt Lake County, the Utah County cities of Elk Ridge, Genola, Lehi, Springville, Vineyard, and Woodland Hills utilized ranked-choice voting during the 2021 election. While the bill has only been introduced thus far, if enacted, it would be a significant change for much of the state’s voters. It would eliminate the Municipal Alternate Voting Methods Pilot Project, which the Utah County cities are operating under. The bill also defines the various thresholds that would need to be met for a recount, depending on the number of total votes in a race. Under the proposed legislation, ranked choice voting would be used for both general and primary elections.

Virginia: A handful of Republican bills aimed at tightening voting restrictions died on this week in a meeting of a state Senate committee controlled by Democrats. The panel voted down bills that sought to require voters to present photo ID at the polls, require local registrars to verify Social Security numbers and other information before registering applicants as voters, and do away with same-day voter registration, which allows a voter to both register and cast a ballot on Election Day. Democrats expanded access to voting in 2020, when they enjoyed control of the House, Senate and Executive Mansion for the first time in a generation. Republicans have been hoping to repeal some of those measures since taking control of the Executive Mansion and House of Delegates in November’s elections. Dozens of similar Republican-sponsored bills have been filed in the House. Among them are multiple measures to require a photo ID to vote and limiting in-person absentee voting to no more than two weeks before an election. Current law allows 45 days.

Legal Update

Arkansas: The American Civil Liberties Union of Arkansas filed a federal lawsuit against members of the Pulaski County Board of Election Commissioners for what they say was a violation against an election official’s first amendment rights. According to court filings, Kristi Stahr in her capacity as Chairwoman of the Pulaski County Board of Election Commissioners, and Commissioners David Scott and Susan Inman are specifically cited in the lawsuit. The lawsuit claims that Barry Haas’ free-speech rights were disregarded when he was denied an appointed position for the September 2021 special Little Rock tax election due to his political and ideological views. The lawsuit alleges that he was denied the appointment after a meeting where Chairwoman Stahr claimed he was refusing in-person and on social media to follow Arkansas photo I.S. requirement as an elected official. “I previously challenged Arkansas’s voter-identification laws requiring photo I.D. in court, because I believed the laws were unconstitutional and bad policy,” Haas said. The case was filed in U.S. District Court for the Eastern District of Arkansas.

Colorado: A Mesa County grand jury will investigate the allegations of official misconduct and tampering with county election equipment amid an ongoing investigation into accusations that an elections clerk was involved in a security breach of the equipment in 2021. The 21st Judicial District Attorney’s Office made the announcement last week. In the announcement Thursday morning, Mesa County District Attorney Dan Rubinstein and Colorado Attorney General Phil Weiser said the grand jury investigation will be “thorough and guided by the facts and the law.” Their statement did not name anybody in particular. In a brief news conference, Peters said she would not renege on her unsubstantiated election claims and said the grand jury would find she had not committed any crimes.

Colorado Secretary of State Jena Griswold has filed a lawsuit to bar Mesa County Clerk Tina Peters from overseeing the 2022 elections, after Peters refused to agree to close state monitoring of her work. Peters is under a federal and state investigation for a security breach of the county’s election equipment last year during an annual upgrade to its voting machines. Last year, a Mesa county district court judge banned Peters from having any role in administering the 2021 election, but that order will soon expire. Griswold had asked Peters to sign an agreement allowing significant state supervision in order for her to manage the upcoming midterm election. It would have required Peters to submit all of her written communication related to elections to the state, as well as providing logs of everyone who entered secured areas in the elections division. Peters would also only have been allowed near the voting machines with supervision, among other stipulations. Peters declared there was no way she’d sign the order or agree to any of Griswold’s terms. Griswold is requesting the court name Mesa’s current director of elections, Brandi Bantz, to take on the clerk’s election duties. “I am taking action to ensure that Mesa County voters have the elections they deserve,” Griswold said in a written statement announcing the lawsuit. “I will continue to provide the support and oversight needed to ensure the integrity of Colorado’s elections.”

New Jersey: A do-over election in Old Bridge, where a Superior Court Judge invalidated the results of a 2021 council race because some voters received the wrong ballot, is on hold for now. Appellate Court Judge Carmen Messano issued a stay of Judge Thomas Daniel McCloskey’s order that voters return to the polls on March 22 to determine the outcome of the Ward 4 council race as it considers an appeal filed by Democrat Jill DeCaro. Messano ordered DeCaro’s attorney, Daniel Antonelli, to file an emergent motion by 4 PM tomorrow. Tim Howes, an attorney for Razzoli, must file his opposition motion by noon on Friday. It’s not clear how long it will take Messano and another appellate judge, Lisa Rose, to rule on the appeal. Anything more than a week could delay the date of the new election. Vote-by-mail ballots are due to go out on February 5.

Pennsylvania: An inspection of voting machines in Fulton County had been poised to go forward on January 14 until an 11th-hour appeal to the state Supreme Court by lawyers for Democratic Gov. Tom Wolf put it on hold. The high court decision came hours after a state judge rejected attempts by the Wolf administration to block the inspection — inspired by former President Donald Trump’s baseless claims about fraud in the 2020 election — without certain agreements in place. The justices overruled the lower court by granting an emergency request by the governor’s lawyers to stop it for now. The machines in question were about to be wheeled in and a special meeting of the Fulton County Board of Commissioners and Elections had just gotten underway at 1 p.m. Friday when a lawyer for the county, Tom Breth, announced that the Supreme Court’s filing office had just notified him the stay was granted. “Stay tuned. That’s the court,” Breth said to reporters after he learned the filing. The Supreme Court said that the request was granted on a temporary basis until the full court can consider it, and that no inspection can take place until the justices issue an order.

In more Fulton County litigation news, American Oversight—a Washington, D.C.-based government watchdog is the latest organization to sue the county over information related to an off-the-books 2020 election review and has asked a court to order the release of all information requested as part of an open records request. In the suit, American Oversight says Fulton County has released some information requested as part of a Right-to-Know Law request, but not records of government-related communication conducted by county officials on their personal email accounts. American Oversight also claims the county has not turned over communications between local officials and Sen. Doug Mastriano, R-Franklin, an ally of former President Donald Trump who spread false claims of a stolen election.

Wisconsin: Waukesha County Circuit Court Judge Michael Bohren ordered the state elections board to withdraw guidance greenlighting absentee ballot drop boxes and the return of absentee ballots by someone other than the voter, siding with conservatives who questioned the legality of both practices weeks before local spring elections and months ahead of hugely consequential elections for Wisconsin’s governorship and a U.S. Senate seat. The underlying lawsuit contested guidance memos from the Wisconsin Elections Commission, or WEC, in March and August of 2020 allowing third parties to return someone else’s absentee ballot and absentee ballots to be returned to unstaffed drop boxes in a voter’s municipality instead of being mailed or returned in person to a municipal clerk. Concluding a three-and-a-half-hour proceeding, Bohren said Wisconsin election laws are very specific and felt both the disputed practices, which he said were “major policy decisions that alter how our absentee ballot process operates,” were contrary to the law. Bohren compared them to in-person voting on Election Day and said statutes are unambiguous that an elector must be personally involved in casting their ballot, regardless of informal rules issued to clerks by the WEC. In an order from the bench, he granted summary judgment to the plaintiffs, entered an injunction giving the WEC two weeks to issue a memo withdrawing its promotion of both absentee voting options and said such future guidance must go through statutory rulemaking procedures.

A Democrat running for U.S. Senate filed a pair of lawsuits alleging Wisconsin election officials aren’t keeping ballots secret in some cases and are not properly vetting voting machines. In one case, Peter Peckarsky asked a Milwaukee County judge to order the state Elections Commission to bar Milwaukee and other cities from marking absentee ballots with numbers that could reveal how individual voters cast their ballots. Peckarsky is seeking to invalidate the law requiring election officials to write poll list numbers on absentee ballots. That would ensure no one’s votes are publicly disclosed, he argued in one of his lawsuits. In the other case, Peckarsky is seeking to force the commission to more thoroughly scrutinize voting machine software.The lawsuit argues the commission is not following a state law that requires the commission to keep copies of voting machine software. The lawsuit says the state keeps the software with an escrow company instead of retaining it itself.

Immigrant rights group Voces de la Frontera Action filed a legal challenge to Assembly Republicans’ review of the 2020 election after disclosing it had received a subpoena. The Milwaukee-based group is seeking to intervene in a lawsuit Democratic Attorney General Josh Kaul brought in October to try to knock down subpoenas that were issued to the state Elections Commission. “Gableman’s subpoena is modern-day McCarthyite political theater designed to perpetuate lies about the 2020 election and silence and intimidate voters of color from exercising their right to free speech and their right to vote,” said a statement from the group’s executive director, Christine Neumann-Ortiz.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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