Electionline Weekly March-24-2022

Legislative Updates

Alabama: A bill approved by the House would criminalize pre-filling information on absentee ballot applications and voter registration forms for other voters. HB63, sponsored by Rep. Debby Wood, R-Valley, passed 73 to 28 along party lines. However, Democrats were able to impact the bill, as Rep. Jeremy Gray, D-Opelika, brought forward an amendment downgrading the criminal charges from a Class C felony to a Class A misdemeanor. Wood said the bill is designed to prevent voter fraud and keep elections secure. The bill specifically allows applications and registrations to be pre-filled with the voter’s consent. Wood said this bill is only to stop people and groups from filling out forms unsolicited and sending them out. Democrats have expressed concerns that the bill could result in the criminalization of individuals who are just helping a family member or friend in the voting process. The bill now moves to the Senate for consideration.

Arizona: The Senate Government Committee has approved House Bill 2289. Under the Bill, voters could only cast a ballot in person on Election Day at the polling place in their precinct. Absentee voting would be limited to voters who are going to be outside the state on Election Day, are in a hospital or nursing home, have blindness or are in the armed forces. Currently about 88 percent of Arizona voters cast their ballots early or by mail. “Just because it is convenient to vote by mail doesn’t mean that is our right,” Sen. Wend Rogers (R) told the committee. Opponents, like Democratic Senator Martín Quezada, argued the bill would disenfranchise many voters across the political spectrum. “Requiring people to show up to vote harms the working class, it harms folks who can’t afford to take time off from work and not get paid, it harms people who have no reliable transportation, it harms people who have no reliable day care,” he said. The committee advanced the bill by 4-3 vote along party lines.

The Government Elections Committee passed a bill that would require voting drop boxes to be monitored. Ballots cast at drop boxes that are not watched could not be counted by county recorders. In the absence of a person to monitor the box, the bill would require 24-hour video surveillance. The measure has already passed the House and now goes to the Senate Rules Committee.

Under House Bill 2780 every voter who casts a ballot would have their name and address published online by election officials. The secretary of state would also have to say whether each voter cast their ballot early or in person on Election Day. Under the legislation, county recorders would be required to post a list of the names and addresses of all eligible voters on the county’s website 10 days before primary and general elections. That list would include both active and inactive voters. When the bill was approved last month by the House of Representatives, county election officials would have also been required to publish the names, addresses and method of voting for every voter who cast a ballot after every election. But Republicans on the Government Committee amended the bill to shift that responsibility to the secretary of state, who would publish that information for all Arizona voters after each election. The bill would also require all ballot images to be published, along with a way to link those ballot images to the post-election publication of voters names. The committee approved the bill on a 4-2 party-line vote. Its next stop is the Senate floor, where it will be considered by the full chamber.

Colorado: Colorado’s ‘Vote Without Fear’ act passed the Legislature and moved on to the Governor’s desk this week. The bill, which would prohibit people from “openly” carrying a firearm within 100 feet of a voting center, drop box or counting facility during any election, is meant to further protect Coloradans’ right to vote. “When we protect Colorado voters from intimidation at the ballot box, we protect democracy,” said Jena Griswold, Colorado’s Secretary of State. “I am proud of this important legislation which will safeguard Colorado voters’ right to cast a ballot without intimidation or interference regardless of their zip code, political affiliation, or race.” If it is passed into law, infringement upon this firearm prohibition near voting centers could result in a fine of up to $1,000 and up to 364 days in the county jail, or both, according to the bill’s summary. There are exceptions for first-time offenses.

Connecticut: The Senate has approved a bill that would expand absentee voting. The bill was approved 30-4 after a 41/2-hour debate. Any amendment accepted by the Senate would have sent the legislation back to the House, which passed the bill in a bipartisan 126-16 vote last week. Sen. Rob Sampson (R-Wolcott) made eight attempts to rewrite the bill but all attempts at an amendment failed. The new law would allow voters to apply for absentee ballots even if they were worried about possible sickness or physical disability of others, rather than their individual sickness. Under the bill, qualified voters could also cast mail-in ballots because of their absence from their city or town during part of election days.

Hawaii: The Hawaii Senate Committee on Judiciary amended a bill that would have required state elections officials to compile a voter’s guide that could cost up to $2.5 million. House Bill 124 would have required the guide to be published for this year’s elections. The committee moved the bill’s effective date to Jan. 1, 2023, in time for the 2024 elections. The guide would consist of 150-word statements from candidates running for statewide or federal offices. The candidate statements would be translated into languages covered by the Voting Rights Act, according to written testimony from Scott Nago, the state’s chief election officer. The committee agreed to add a Hawaiian translation. The legislation allows the state elections office to distribute the guide by “whatever means is practical.” Publishing the guide, translating it and mailing it to voters would cost more than $2.5 million for both the primary and general election, according to Nago’s testimony. The cost for publishing the guide online would be more than $119,000 for both elections. The committee removed the references to appropriations from the bill since its effective date would not be until 2023.

Idaho: Republican Sen. Patti Anne Lodge chairs the Senate State Affairs Committee made clear that legislation eliminated drop boxes and similar drop-off locations will not a get a hearing the committee she chairs rendering the legislation, which was approved by the House, dead in the Senate. Lodge said she received thousands of emails opposed to the legislation, “especially from people with disabilities, elderly people, and people with children who couldn’t wait in line.” Lodge, who is retiring this year after serving 11 terms, declined to specifically say the bill won’t get a hearing, but twice said, “I think it’s obvious what’s going to happen with the bill,” when pressed for a definitive answer. Backers of the bill said drop boxes are susceptible to theft and arson. Opponents said drop boxes are especially useful in rural areas, and the measure could eliminate the U.S. Post Office as a place to drop off ballots.

Kansas: The Senate has given tentative approval to Senate Bill 390 that would compel county election workers to account for provisional, spoiled, blank and counted ballots under threat of felony prosecution. The affidavit mandate would supplement existing law guiding transporting, preserving and destroying ballots and election records. A person allegedly providing false information to hinder, prevent or defeat a fair election could be subject to arrest and a sentence ranging from probation to months in jail. Sen. Richard Hilderbrand, who sponsored the bill, said, “There is still the human-error element in everything we do. Any time we can secure and insure fair elections, that every vote legally cast is counted, we owe it to our constituents.” Sen. Ethan Corson (D-Fairway) noted that the bill was not championed by any state or local elections officials. “We are, I think, improperly inserting ourselves into a really complicated system,” Corson said. “We have secure elections. There is not a problem.”

Following several hours of debate, the Senate has voted to limit the use of early voting ballot drop boxes and shorten the amount of time mail-in ballots have to arrive after Election Day. The chamber voted 22 to 17 to approve a bill limiting counties to one ballot drop box per 30,000 people, requiring monitoring of boxes when open and eliminating a 3-day post-election grace period for mail-in ballots to arrive. The measure, which fell five votes short of a veto-proof majority, now heads to the House where lawmakers voted down a similar bill eliminating the grace period in committee. Johnson and Wyandotte Counties would retain their current number of drop boxes under the bill, but they would need to operate only during business hours rather than be open for drop offs around the clock. Furthermore, those boxes, which are placed around the county, would need an election worker manning them at all times.

Maine: House Democrats gave initial approval to a bill that would allow all of Maine’s municipalities to adopt ranked-choice voting. Rep. Seth Berry, D-Bowdoinham, said that currently, only a relatively small number of cities and larger towns have charters that govern election rules, which would allow them to adopt ranked-choice voting. His bill would expand that right to the 413 Maine municipalities that do not have official charters and are instead governed by state law, which requires them to decide elections through a plurality vote. Berry, the bill’s sponsor, said passage of the bill would not force any of the state’s 488 municipalities to adopt ranked-choice voting. He framed the issue as a matter of local control for the vast majority of towns that do not have formal charters. The bill passed in the House on Tuesday by a vote of 75 to 61, with Republicans opposed. It now heads to the Senate.

Michigan: The Senate voted 22-16 to pass House Bills 4127 and 4128, which would require the Secretary of State to remove voters who don’t respond to a letter notifying them they need to update their birthdate or who haven’t voted since 2000 from the state’s Qualified Voter File.

Another bill, Senate Bill 279, also passed with a 22-16 vote and would allow poll watchers to take shifts at polling stations. The bill’s sponsor is the state’s former secretary of state, Sen. Ruth Johnson, R-Holly, who said poll watchers are not allowed back to take a break and exit polling places.

The Joint Committee on Administrative Rules delayed until after the November election rules that will tell Michigan election clerks how to match the signatures of people applying for and submitting absentee ballots. The committee’s maneuver to propose bills keeps the regulations from taking effect for nine months. The rules drafted by the state elections bureau eventually will go into effect because Gov. Gretchen Whitmer, a Democrat, would likely veto Republicans’ alternative legislation.

Dearborn, Michigan: By a 7-0 vote, the Dearborn City Council has approved a resolution requiring that ballots and other election materials be translated into Arabic. The council voted in favor of the resolution introduced by Councilman Mustapha Hammoud that will mandate translation into the Arabic language “all official ballots, notices, absentee ballot applications, registration forms, appropriate signage, and affidavits.” The resolution does not mention Arabic specifically, but says translation will be required for any language that is spoken by at least 5% of the city’s population or 10,000 residents. Arabic is the only language that currently meets that requirement, according to the latest census data.

Montana: Legislators will be polled this spring, to find out whether they want to hold a special session to set up a committee on election integrity. Ten Republican lawmakers sent a letter to Montana Secretary of State Christi Jacobsen, requesting that she ask legislators whether they support or oppose a special session on May 2. The lawmakers want to propose a “Select Special Interim Joint House and Senate Committee of Election Security,” to investigate the state’s election procedures. In their letter, they pointed to “the continuing and widespread belief, among a significant majority of Montana voters, that sufficient irregularities in election security in Montana create serious doubt as to the integrity of elections in our State.” The lawmakers said the committee should have subpoena powers and come with funding for legal staff and frequent meetings. They said a special session should be held in May because the Legislature needs “as much time as possible to determine the integrity of the election system” before the June 7 primary.

Washoe County, Nevada: Washoe County commissioners voted 4-1 to reject a resolution proposing sweeping changes to the county’s election system, including moving to almost all-paper ballots and requiring counting be done by hand, but left the door open for further consideration of the proposals. Legal analyses of Herman’s resolution conducted by Washoe County district attorney’s office staff and Legislative Counsel Bureau staff found several proposed changes — such as ensuring voter registrations expire every five years and ensuring there are “bipartisan teams” approved by the central committees of primary political parties that would oversee various portions of the electoral process, including manning ballot boxes and verifying signatures — would require changes to state law enacted by the Legislature. According to The Nevada Independent, the decision came after about six hours of heated public comment on the election resolution, featuring supporters who claimed the 2020 election was fraudulent and said the changes would improve election security, and opponents who argued the resolution represented a form of voter suppression that would make it more difficult to engage in the county’s elections and who pointed to the high costs of the proposal.

Tennessee: A Senate committee will take up a bill to create a polling place pilot program in Davidson County jails, giving eligible inmates easier access to vote. his bill makes it through the legislature, the pilot program would be a collaboration between Metro Council, the Secretary of State, and the Davidson County sheriff. Here’s what the bill would do: Create a polling place pilot program in Davidson County jails to provide eligible inmates the opportunity to vote. Allow only residents of Davidson County who are in custody at a county jail to be eligible to vote at a satellite voting location. The jail would be required to provide a voter registration application to a person in custody who requests an application and who is determined to be eligible to vote. The jail would be required to make available current resource materials, maintained by the county election commission and secretary of state, containing detailed information regarding the voting rights of a person with a criminal conviction in print. This would require money from the county to pay poll workers and for equipment. Costs estimates according to the bill’s fiscal note is about $110,000 over the two years. The program would run until December 31, 2023.

Utah: Gov. Spencer Cox has signed HB313 into law. HB313 creates additional election security measures. The law requires voters to provide a photocopy of their ID when voting by mail, video surveillance at ballot boxes, and yearly voter registration audits, among other things. Although lawmakers presented no evidence of widespread election fraud, the law comes after national debate on election security following the 2020 general election. The new election security measures will be implemented throughout 2022 and 2023.

Legal Updates

Federal Lawsuits: Fox News has filed a counterclaim against voting machine manufacturer Smartmatic, saying the company’s claim that it suffered $2.7 billion in losses is massively inflated. Fox News argues it warrants punishment under rules, known as anti-SLAPP laws, that are designed to protect the media from abusive litigation. The news network seeks payment of its attorneys’ fees and “other and further relief as the Court deems just and proper.” Smartmatic’s lawsuit, filed in February 2021, stemmed from the network’s coverage of fraud claims — which had no basis in fact — by President Donald Trump and his allies following the 2020 election, as well as opinions voiced by some of Fox News hosts. Fox News has maintained that it was within its First Amendment rights to cover the president’s claims “While the recovery of fees and costs will not undo all the damage this First Amendment-defying lawsuit has wrought,” the lawsuit says, “at least it may cause the next plaintiff to think twice before trying to penalize the press to the tune of billions of dollars in nonexistent damages.”

Arkansas: Pulaski County Circuit Judge Wendell Griffen struck down four new voting restrictions passed by Republican lawmakers, finding the measures unconstitutional. Griffen issued a permanent injunction against the new voting laws at the end of a four-day trial in a challenge brought by the League of Women Voters of Arkansas, Arkansas United and five voters over the restrictions. The measures struck down include a change to the state’s voter ID law that removes the option for someone to sign an affidavit affirming their identity if they don’t present a photo identification at the polls. The other measures would prevent anyone other than voters from being within 100 feet of a polling place, require an absentee voter’s signature on a ballot to match the signature on their voter registration application, and move up the deadline for voters to return absentee ballots in person. Griffen, who ruled from the bench, said he planned to issue a more detailed order later. Attorney General Leslie Rutledge said the state will appeal.

Florida: U.S. District Judge Mark Walker has ordered parties to a lawsuit targeting last year’s state election restrictions to explain how a bill the Florida Legislature passed during its recent legislative session might affect the legal challenge. According to the Florida Phoenix, Walker wasn’t happy that neither lawyers for the state nor civil- and voting-rights groups litigating over 2021’s SB 90 had informed him of the recent legislative changes (SB 524). “This court is currently conducting a two-week jury trial while also working to review the voluminous record and drafting a final order on the merits following the bench trial in this case,” Walker wrote in an order posted on Monday. “Yet no lawyer for any party has alerted the court of imminent changes to the laws at issue before this court — though the parties appeared to have been actively monitoring the latest election legislation as it moved through the Florida Legislature these past several weeks.” “Accordingly, the parties must file on or before 5 p.m. (ET), Wednesday, March 23, 2022, an expedited supplemental brief addressing what impact, if any, Florida’s Senate Bill 524 would have on the challenged provisions and claims before this court in the event the governor signs the legislation into law,” Walker wrote.

Illinois: DuPage County Circuit Judge Craig Belford has ruled that Bill White has been declared the winner of the 2020 county auditor race. After months of recounts and court hearings, Belford ruled against most of incumbent Bob Grogan’s requests and declared the final margin of victory in White’s favor was 66 votes, up by eight votes over the full recount tally. White, a Democrat, originally led by 75 votes in fall 2020. The court-ordered full recount of the race in October — a first in DuPage County history — that reduced his margin of victory to 58 votes, 232,710 votes for White and 232,652 for Grogan, a Republican seeking reelection. Belford ordered 10 ballot envelopes that had Xs as initials to be struck from the final vote total, nine from Grogan’s count and one from White. Belford said while an X can be counted as a signature, an X cannot count as an initial. Grogan’s request that 40 disputed ballots be removed from the count was rejected by Belford, arguing Grogan was attempting to shift the burden of finding evidence back to the county. Grogan had not demonstrated “clear and convincing” evidence.

New Jersey: Superior Court Judge Thomas Brogan has enjoined the Paterson City Clerk from printing and mailing ballots for the May 10 municipal election pending the outcome of a challenge to mayoral candidate Alex Mendez’s nominating petitions. A supporter of Mayor Andre Sayegh says that enough of the signatures on Mendez’s petition – as many as 150 signatures – would take the controversial councilman below the 867 signatures he needs to be on the ballot. Brogan has set an April 1 hearing. “How fitting,” he said of the date. The city clerk, Sonia Gordon, rejected the challenge from Vincent Iannaccone. That caused his lawyers to file in Superior Court. “No ballots are to be sent prior to the resolution,” Brogan said in a brief hearing on Wednesday.

North Carolina: The U.S. Supreme Court heard oral arguments this week in a case involved the state’s voter ID law. The arguments the justices heard weren’t on the merits of the 2018 voter ID law itself, but rather on the more basic question of who should be allowed to defend that law in the lawsuit filed by the NAACP soon after it was passed. The state has been defending the lawsuit so far with lawyers from the N.C. Department of Justice, which is led by Democratic Attorney General Josh Stein. But Republican legislative leaders have asked to intervene. That would let them have more say over the legal strategy, plus hire their own private lawyers to work on the case. Sarah Boyce, an attorney from Stein’s DOJ, told the Supreme Court justices Monday that she and her colleagues have been winning this new case so far and that the legislature “cannot plausibly argue that the attorney general and state board are not adequately defending the voter ID law.”

Ohio: A motion filed by the two Democrats on the Ohio Redistricting Commission looks to move the primary election date because there are currently no districts for Ohio Senate and House of Representatives. The motion, filed by State Senator Vernon Sykes and Ohio House Minority Leader Allison Russo, seeks to move the primary election to June 28, nearly two months from its currently scheduled May 3 date. The motion looks to “ensure that this Court can continue working with the Commission to make progress on adopting and implementing a plan that satisfies both state and federal constitutional requirements.” While June 28 is highlighted as the date to move the primary, the motion states that any other date works as well that would “allow sufficient time for the Commission to adopt and implement a new, constitutional set of maps.” In addition, the motion states that moving the date would allow the commission to complete its duty without the interruption of federal litigation, particularly a lawsuit filed by Ohio republicans asking the court to institute the second set of maps the commission approved. That suit is set for a conference this Friday.

Pennsylvania: A Lehigh County judge’s race is being held up, again, by legal action. Over the weekend, a federal appeals court granted an injunction that halts the certification of the results for the third and final seat on the Lehigh County Court of Common Pleas. At issue are 257 mail-in ballots that were submitted without dates on the return envelope. The courts have been back and forth about whether those ballots should be counted or disqualified. A federal court says it will consider the latest appeal on an expedited basis.

Dominion Voting Systems won an appeal in Pennsylvania’s highest court in a bid to ensure that any inspection of its voting machines as part of Republican lawmakers’ inquiry into Pennsylvania’s 2020 election be done by a laboratory that has specific credentials. The Democratic-majority state Supreme Court ruled 5-2, along party lines, to overturn a January decision by a Republican judge on the lower Commonwealth Court. That judge ruled that Dominion could not intervene in a wider case involving an inspection of its equipment used by heavily Republican Fulton County in 2020’s election. The decision revives Dominion’s request that any inspection of its equipment be conducted by a federally accredited voting system test lab or a national laboratory used by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency.

Utah: The League of Women Voters and Mormon Women for Ethical Government sued the state of Utah seeking to block new redistricting maps they say unfairly solidify one-party GOP control and ignore a voter-approved independent commission. “Unfair maps and gerrymandering dilute the voices of communities and consequently hurt voters of all parties,” said Catherine Weller, President of League of Women Voters of Utah, in a statement. “Transparency is critical to the election process; we call on the court to block these unfair maps and let the voters of Utah choose who best represents them.” Utah Gov. Spencer Cox, a Republican, declined to comment directly on the lawsuit but said he supports the maps he signed. Asked during his monthly news conference on PBS Utah, he said he clarified that he believes the maps were not “illegal gerrymandering.” The case filed in state court also was backed by Better Boundaries, the group that sponsored the ballot initiative that created the commission. The commission members worked or three years to draw nonpartisan maps for congressional districts as well as state Legislature and school board.

Vermont: A judge says Burlington City Councilor Ali Dieng won and will keep his seat. That ends a legal fight over the narrow victory. The balance of power on the City Council will remain the same after a challenge from Democrat Aleczander Stith against independent incumbent Ali Dieng for the Ward 7 seat. Stith lost on Election Day by just two votes. A recount affirmed that margin. But Stith took the case to court over four mail-in ballots which were never counted because they were either not signed properly or mailed incorrectly. Stith questioned whether election officials had taken all of the proper steps to notify the owners of the ballots so that they might have been counted. The judge ruled election officials did all that was necessary by law to contact the ballot owners via voter registration records which mostly just have an address and phone number.

Virginia: Judge David J. Novak of the U.S. Eastern District Court of Virginia accused former Attorney General Mark Herring’s office of mishandling a closely watched lawsuit seeking to force new House of Delegates elections this year, saying the state didn’t take Democratic activist Paul Goldman’s claims seriously enough last year and has forced arcane legal wrangling to go on for “way too long.” “This case has been a mess from your predecessors,” Judge David J. Novak of the U.S. Eastern District Court of Virginia told attorneys working on behalf of new Attorney General Jason Miyares. “It was totally handled wrong.” Herring’s office sought to have the lawsuit dismissed on largely technical grounds. But Novak said Monday the state failed to adequately respond to Goldman’s legal arguments and threw the case into procedural confusion. Acknowledging he was “venting” from the bench, the judge said Goldman, while at times taking “artful” detours into unrelated matters, is making a substantive argument. Novak gave the two sides until mid-April to file new briefs addressing the standing issue, including whether it should be heard by Novak alone or a three-judge panel also involved in the case.

In June 2021, radio talk show host Rob Schilling filed suit in the U.S. District Court for the Western District of Virginia that his rights were violated when he was briefly prevented from voting during the June 8 primary in Albemarle County due to a face mask dispute. Albemarle County Registrar Jake Washburne was initially named as a defendant alongside Election Officer Leo Mallek and two then-unnamed poll workers, but Washburne was later dropped. According to the lawsuit, Schilling was able to cast his ballot after a poll worker not named in the lawsuit placed a call to Washburne. The whole altercation is alleged to have lasted six minutes. Schilling claims his right to vote was violated, that he was the subject of voter intimidation and that he was the victim of assault, battery and false imprisonment at the hands of the two unnamed poll workers. In July 2021 lawyers for Mallek filed a motion to dismiss. Last week, U.S. District Judge Norman K. Moon issued a memorandum opinion, largely denying Mallek’s attempt to dismiss the lawsuit. Mallek argued that even should Schilling’s allegations prove true, Mallek did not commit a federal rights violation or a tort. Moon did grant a dismissal of Schilling’s putative Voting Rights Act claim because the provision Schilling invokes does not create a private cause of action, meaning Schilling as an individual is without the legal right to raise the issue on his own behalf.

Washington: According to the Tri-City Herald, Franklin County is getting a reprieve from a looming deadline as a Latino voting rights case heads to a trial. The attorneys pushing to strengthen Latinos’ voices in commissioner elections were hoping for a trial before April 22 — the one-year anniversary of when the case was filed. Judge Jackie Shea Brown sided with Franklin County’s attorneys and pushed the hearing into the middle of May. Three local members of the League of United Latin American Citizens are suing Franklin County under the Washington State Voting Rights Act. The suit claims the commissioner’s district boundaries and at-large elections dilute Latino votes. The Washington State Voting Rights Act requires any trial on an alleged violation must be held a year after “a complaint” is filed.










NYC Wins When Everyone Can Vote! Michael H. Drucker