Thursday, April 28, 2022

Electionline Weekly April-28-2022

Legislative Updates

Florida: Gov. Ron DeSantis (R) has signed a bill into law that creates a statewide voter fraud force to respond to allegations of illegal election activity reported by citizens, despite the state’s successful management of the 2020 election and no evidence of widespread voter fraud in Florida. The bill, which was passed by the House and Senate along party lines, creates the Office of Election Crimes and Security, which Democrats said was redundant and an unjustified expenditure of state tax dollars. Democrats, the ACLU, League of Women Voters and other civic groups have objected that the bill creates more voter suppression and that voter fraud is an excuse to make it harder, not easier, for people to vote. The Legislature has put $1.15 million in the budget to create the Office with 15 new hires. The budget also contains a little over $1 million for 15 new positions in the Division of Elections “specifically related to voter registration activities.” And the Criminal Justice and Corrections budget has $2 million for 17 positions for campaign finance and election fraud enforcement.

Kansas: The House approved a multifaceted elections reform bill this week by an 82-40 vote. It was approved by the Senate earlier in April by a 28-8 vote. Under the legislation, counties would have to use ballots printed on watermark paper. The bill would prohibit counties from using voting equipment with the capability of being connected to the internet. County election officers would have to provide precinct-level election results electronically within 30 days for federal, statewide, legislative and local races. Counties would be able to issue bonds to finance the purchase, lease or rental of electronic poll books for use at voting sites and for advance voting. After July 1, counties wouldn’t be able to purchase electronic poll books unless the system was certified by Secretary of State Scott Schwab. The bill would create a mechanism for people to be removed from voter registration lists. The protocol would be triggered if an address confirmation notice was returned “undeliverable” and the intended recipient had no voting activity in two subsequent federal election cycles. Additionally, the bill headed would create an election audit procedure performed by the secretary of state that would randomly select four counties for post-election examinations. One county would have a population greater than 90,000 and one county would have a population between 20,000 and 90,000. Two smaller counties with less than 20,000 people would be audited. No additional funds were included with the legislation and the implementation of the watermark portion of the bill is expected to cost counties about $1 per ballot.

Mississippi: Gov. Tate Reeves vetoed a bill intended to make it easier for some people who lost their voting rights as a result of a Jim Crow-era provision of the state’s 1890 Constitution to regain their right to vote. The constitutional provision prohibits those convicted of certain felonies from being able to vote unless their suffrage rights are restored by a two-thirds vote of both chambers of the Legislature or by a gubernatorial pardon. House Judiciary B Chair Nick Bain, a Republican from Corinth who drafted the language that was vetoed, said during the session many courts already are restoring voting rights to those whose crimes are expunged. He said he believes that was the original intent of the legislation, and the bill he offered during the 2022 session, simply “clarified” that all judges should be granting the rights to vote to those whose crimes are expunged. But Reeves vetoed the “clarifying” language. “Felony disenfranchisement is an animating principle of the social contract at the heart of every great republic dating back to the founding of ancient Greece and Rome,” the Republican Reeves wrote in his veto message, which was filed with the Legislature on Friday.

New Hampshire: A bill that would create “affidavit ballots” passed the House in a 180-154 vote. If the measure is signed into law, it would change same-day voter registration, but it could face a significant barrier: Gov. Chris Sununu has said he opposes the provisional ballot system, which he said could jeopardize the state’s first-in-the-nation primary. The governor stopped short of saying whether he would veto the bill. The version of Senate Bill 418 passed by the House would require people registering to vote for the first time in New Hampshire on Election Day without an ID to use a separate, new kind of ballot – the so-called affidavit ballot. After voting, they would have to mail documentation proving their identity to the Secretary of State’s Office. If they failed to do so, their votes would be voided – which means the results of the election might not be finalized for up to 14 days after the election, according to the bill. Republicans in both chambers have backed the bill as a measure to ensure election integrity and close what they call the no-ID loophole, while Democrats have criticized it as voter suppression.

Rhode Island: By a 28 to 6, mostly party-line vote, the Senate has approved a bill allows voters to cast ballots 20 days ahead of an election, and to apply for absentee ballots online, using a driver’s license or state identification card number as their ID. It eliminates the required confirmation of two witnesses or a notary to the signing of a mail ballot. It also calls for the creation of a permanent list of nursing home residents — and others who are disabled “for an indefinite period” — to whom mail ballot applications would be sent automatically in every election. This would stop only if a local elections clerk received “reliable information that a voter no longer qualifies for the service” for whatever reason, including death. The Senate bill and a matching version in the House were born out of Rhode Island’s 2020, mid-pandemic attempt to make voting easier for COVID-leery voters.

South Carolina: There’s a chance a bill that would establish early voting, and passed both the South Carolina House and Senate unanimously, won’t become law this year. H.4919 makes other changes to state election laws, like expanding state-run audits and increasing voter fraud penalties. The bill received wide bipartisan support at the State House. Before passing the Senate, Senators made changes to the legislation House leadership and the Governor said they can’t sign off on. Senators inserted proposals from another elections bill. The sticking point is a provision that requires the Senate to confirm the Governor’s appointments to the State Election Commission. Senator Shane Massey (R-Edgefield) said this was necessary following the changes the commission made before the 2020 elections. These include the consideration of the use of drop boxes and waiving the witness signature for absentee ballots. Governor Henry McMaster has also been very critical of the Senate’s version of the bill. He said, “Unfortunately some Senators want to get into managing the election commission which is not their job. It’s not a legislative function but an executive function. This puts a poison pill in that bill.” The bill now heads back to the House.

Legal Updates

Redistricting Legal Battles: The League of Women Voters of Florida and Black Voters Matter joined several other voting rights groups and individual Floridians in challenging Florida’s new congressional map, saying it unfairly diluted the voting power of Black residents to benefit Republicans. The new map is backed by Florida Governor Ron DeSantis, a Republican, who signed it into law. Wyandotte County, Kansas District Judge Bill Klapper struck down a new Republican-backed congressional map that would likely make it harder for the only Democrat in the state’s delegation to win reelection this year. It was the first time a court has declared that the Kansas Constitution prohibits political gerrymandering. The state attorney general’s office notified the Kansas Supreme Court almost immediately to expect an appeal of the decision. Klapper ordered legislators to draft another map after declaring that the challenged one not only was too partisan but diluted minority voters’ political clout. The voting districts to elect judges to the Mississippi Supreme Court are drawn in a way that denies Black voters an equal chance to participate in the political process, according to a lawsuit challenging the voting maps. The lawsuit filed by individual Black civic leaders calls for the state to draw new boundaries for three districts, which has not been done since 1987. The leaders the districts need to be redrawn to provide fair representation for Black voters and comply with the Voting Rights Act and the United States Constitution.

Arizona: Attorney General Mark Brnovich asked the Yavapai County Superior Court to force Secretary of State Katie Hobbs to produce an updated and “lawful” Elections Procedures Manual for the 2022 election. In his filing, Brnovich, who is seeking the GOP nomination for U.S. Senate, said Hobbs, a Democrat who is running for governor, failed to produce the manual as required by law. He wants an updated manual that would include a number of provisions, many of which appear to have arisen out of his office’s investigation of the 2020 election, including concerns about unmonitored drop boxes. A preliminary report on that probe was released earlier this month to the state Senate. Hobbs’ communications director called the lawsuit a “blatantly political move” by Brnovich. “It is unbelievable that he is venue shopping and colluding with a political party to sue another state official,” C. Murphy Hebert, said in a statement. “And it is most definitely the opposite of what we need to do to ensure free and fair elections this year.” According to the Arizona Republic, The lack of an updated manual is the result of a standoff between Hobbs and Brnovich. Late last year, Hobbs submitted a draft version of the manual, which must be updated every odd-numbered year, to Brnovich’s office for approval. He sent back a demand to remove more than 100 provisions, according to the complaint filed with the Yavapai court. Hobbs at the time accepted some of his deletions, but objected to others, arguing Brnovich sought to remove nearly one-third of the manual’s provisions without providing any legal justification.

Two Republicans seeking statewide office are asking a federal judge to block the use of machines to tabulate the votes in Arizona in the 2022 election. The machines are unreliable because they are subject to hacking, contend Kari Lake, a gubernatorial hopeful, and Mark Finchem, who is running for secretary of state. And the use of components in computers from other countries makes them vulnerable, they say. The is an even more basic problem, says Andrew Parker, the attorney who filed the lawsuit on their behalf. The tabulation of votes is an inherently governmental function, he said. Yet by using machines built and programmed by private companies the state has effectively farmed that out that obligation. It seeks a court order to have the 2022 election conducted with paper ballots which would be counted by hand, calling it “the most effective and presently the only secure election method.

Colorado: District Judge Matthew Barrett denied numerous motions by Mesa County Clerk Tina Peters to alter the conditions of her bond over a grand jury indictment on multiple charges of criminal misconduct and tampering with election equipment. Barrett issued three orders denying several requests from Peters’ attorney, Harvey Steinberg, asking for those bond conditions to be relaxed on grounds that they were excessive. Peters’ $25,000 surety bond bars her from leaving the state or going to her office, including preventing her from having any contact with the employees who work there. “As this court is aware, Ms. Peters is the elected clerk and recorder for Mesa County,” Steinberg wrote in one motion. “But the conditions of her bond make it impossible for her to serve in that role. By imposing those bond conditions, the court has de facto removed Ms. Peters from office.” Barrett said the conditions he ordered earlier this month are the least restrictive he could have imposed. He wrote that Peters’ actions in this case, and other pending court matters, justifies those conditions. “The allegations here, combined with defendant’s conduct in allegedly lying to the court previously (the contempt allegation) and allegedly obstructing law enforcement in their efforts to serve a search warrant reflect an unwillingness of defendant to comply with the judicial process,” Barrett wrote.

Georgia: Two election workers who were the target of vote-rigging conspiracy theories have reached a settlement agreement with the far-right One America News Network in their defamation lawsuit against the outlet, according to court papers. Wandrea “Shaye” Moss, a voter registration officer in Fulton County, and Ruby Freeman, Moss’s mother and a temp worker for the 2020 election, sued OAN officials along with former U.S. President Donald Trump’s ex-lawyer Rudy Giuliani for allegedly spreading lies about them in their efforts to overturn Trump’s election loss. April 21 (Reuters) – Two Georgia election workers who were the target of vote-rigging conspiracy theories have reached a settlement agreement with the far-right One America News Network in their defamation lawsuit against the outlet, according to court papers. The agreement announced in U.S. District Court in Washington will result in Moss and Freeman’s asking Chief Judge Beryl Howell to dismiss the OAN defendants from the litigation. In addition to the network itself, those defendants are OAN Chief Executive Robert Herring, President Charles Herring and reporter Chanel Rion. Terms of the settlement were not disclosed in a joint status report filed with the court.

The State Election Board has issued subpoenas to find out whether there’s substance behind accusations of a ballot collection scheme in the 2020 election in Georgia. The subpoenas seek evidence of allegations that unnamed organizations paid unnamed individuals $10 per absentee ballot delivered to drop boxes across metro Atlanta. The subpoenas followed a Nov. 30 complaint by True the Vote, a conservative election organization, which didn’t provide details supporting its allegations. The State Election Board voted last month to issue the subpoenas. The subpoenas compel True the Vote to turn over documents, recordings and names allegedly connected to ballot harvesting. The subpoenas also require depositions of True the Vote founder Catherine Englebrecht and her colleague Gregg Phillips. The True the Vote complaint repeated several allegations that the GBI previously reviewed in the fall before declining to open an investigation.

Michigan: The Michigan Court of Appeals has unanimously dismissed most of the arguments made by lawyer and Republican attorney general candidate Matthew DePerno in a case involving election conspiracy and Antrim County. The three-judge panel issued an order indicating it agreed that a lower court was right to dismiss DePerno’s lawsuit, pointing to a series of issues with both DePerno’s legal tactics and pleadings in a case that drew national attention. “(DePerno’s client) merely raised a series of questions about the election without making any specific factual allegations as required. Because plaintiff ‘failed to disclose sufficient facts and grounds and sufficient apparent merit to justify further inquiry …’ the trial court properly granted summary disposition,” the judges wrote in the unanimous opinion. Michigan Attorney General Dana Nessel and Secretary of State Jocelyn Benson heralded the decision. Nessel’s office argued against DePerno on behalf of the state, telling the appellate judges the trial court correctly dismissed DePerno’s lawsuit. Benson has repeatedly defended the efforts of the Antrim County clerk and others who’ve faced unsubstantiated allegations of fraud or misconduct. “This dismissal once again affirms not only the integrity and accuracy of the 2020 election results, but that those claiming otherwise will not be able to use our legal system as a vehicle for furthering their misinformation and conspiracy theories,” Benson said in a statement. The appeals court did determine the trial court dismissed the case for the wrong reason, saying even though DePerno’s case was doomed and he could not get the relief he wanted, that the lower court improperly decided his claims were moot. But the appeals court determined, “we will not reverse a trial court’s decision when it reaches the right result, even if for the wrong reason.”

New York: Luz Pena, 58, a poll worker in Buffalo, is facing a felony charge for allegedly stamping Mayor Byron Brown’s name on a number of ballots from this past mayoral election. Pena has been accused of unlawful use of pasters upon ballot and an unspecified violation of election law. The first charge is a felony. Prosecutors said Pena stamped Brown’s name on numerous ballots this past Election Day. Brown was running as a write-in candidate after losing the Democratic primary to India Walton. Voters needed to write down his name on their ballot – or stamp it, using stamps his campaign handed out. Brown ended up winning the election by more than 10,000 votes. After her arraignment, Pena was released on her own recognizance. She’ll be back in court on May 16. If convicted, Pena could spend up to four years in prison.

Tennessee: Prosecutors are no longer pursuing illegal voter registration charges against Black Lives Matter activist Pamela Moses, 44. Charges against Moses were being dismissed and she will no longer face a second trial “in the interest of judicial economy,” Shelby County district attorney Amy Weirich said in a statement. Moses, who had prior felonies, was convicted in November of registering to vote illegally in Memphis in 2019 and was sentenced Jan. 31 to six years and one day in prison. She has said she was unaware that she was ineligible to vote. At the time, legal experts said her sentence was excessive. Moses filed a motion asking for a new trial. In February, Criminal Court Judge Mark Ward overturned her conviction and granted Moses a second trial — which now won’t take place. In all, Moses has spent 82 days in custody on the case, “which is sufficient,” Weirich said in her statement.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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