The Independent View: Electionline Weekly April-7-2022

Legislative Updates

Alabama: The Senate Governmental Affairs Committee gave a favorable report to a bill that would prohibit the acceptance of private funding for election administration. Critics of the bill say it could also have a chilling effect on grassroots organizations who work alongside elected officials to host voter registration and education events. Members of multiple grassroots organizations and the Secretary of State’s office spoke against the bill during the public hearing before the vote, while a couple of election officials and the Eagle Forum lent support. Kathy Jones, president of the League of Women Voters Alabama, said language in the bill prohibiting the acceptance of personal services is the problem, saying it creates confusion. Hugh Evans, general counsel of the Secretary of State’s office, also spoke out against the bill. Secretary of State John Merrill had drafted a very similar bill to Allen’s that failed to gain the momentum of HB194. Evans said the office agrees with stopping the privatization of elections, but shared similar concerns that the language could affect voter registration programs.

The Senate Fiscal Responsibility and Economic Development Committee advanced two House bills on voter registration. The first bill would prevent poll watchers from helping someone submit their ballot. Supporters say that’s because watchers represent parties or candidates, and poll workers are impartial. The other legislation will help stop confusion around voter registration. The legislation could come up for a floor vote in the final passage before the week is over.

Georgia: The General Assembly approved a bill that would give the GBI stronger police powers over elections by authorizing the statewide agency to launch investigations into allegations of fraud. The legislation is the latest Republican-led change to election rules in Georgia after the close 2020 presidential election. The bill passed along party lines in both the state House and state Senate. The legislation would authorize the GBI to investigate any potential infractions that could have put the results of an election in doubt. The GBI’s law enforcement authority would overlap with election investigators in the secretary of state’s office, which would also continue to look into election infractions. Election officials have repeatedly recounted, investigated and upheld the results of the 2020 election. Under the legislation, Senate Bill 441, the GBI would be empowered to start election fraud inquiries and subpoena records, supplementing the authority of the secretary of state’s office. The GBI previously found no fraud after it assisted in investigations of absentee ballot signatures, counterfeit ballots and ballot collection. Lawmakers backed off other election proposals, including efforts to unseal paper ballots for public inspection, impose strict ballot handling rules and restrict nonprofit election funding.

Kansas: Kansans who vote by mail would still be allowed a three-day grace period for their ballots to arrive, after Republican state legislators abandoned a proposal requiring ballots to arrive on Election Day. The GOP is still pursuing efforts to restrict the use of ballot drop boxes. Republican lawmakers’ latest plans emerged Friday from negotiations between the House and Senate over proposals to tighten state election laws. While the Senate approved the proposal on ballot drop boxes late Friday, the House did not take it up before lawmakers adjourned early Saturday for their annual, three-week spring break. The GOP-controlled Senate also approved a proposal that would cut the number of drop boxes across the state by more than 40% — with some significant decreases in rural, heavily Republican counties. The GOP-controlled House considered neither measure, and a proposal to end the three-day grace period died in a House committee. The proposal on ballot drop boxes was part of a broader agenda for conservatives that also included passing a proposal to make it easier for parents to challenge classroom and library materials in public schools. Lawmakers are scheduled to reconvene April 25 to wrap up their business for the year. The vote in the Senate on the ballot drop box measure was 21-17, with some Republicans who represent rural areas joining Democrats in voting against it. Under the measure, 48 of the state’s 105 counties would lose at least one drop box, and statewide, the number would drop by 80, to 111 from the 191 used in the 2020 elections, according to the Kansas secretary of state’s office.

Kentucky: Late last week, the Legislature sent two elections-related bills to Gov. Andy Beshear. One measure adds six days of in-person absentee voting in county clerks’ offices before early voting begins, the secretary of state’s office said. It clarifies that early voting locations must be open for eight hours, including the Saturday before the election. It puts into state law an existing policy of not connecting voting machines to the internet, making such violations a felony. And the measure expands the definition of “election worker” for purposes of protection from intimidation. The other measure moves up the full statewide transition to paper ballots to the start of 2024, in time for the next presidential election. Last year’s election law required counties to move to paper ballots the next time their election machines needed upgrading. The new bill sets a definite time to make the transition, the secretary of state’s office said. The two-year budget passed by lawmakers provides $12.5 million each year to help counties offset the costs of purchasing the new machines. The bill also calls for voting machines to be put under video surveillance when not in operation and it doubles the number of counties subjected to post-election audits. A minimum of 12 counties will be audited if the measure becomes law, compared to six in prior election years. The counties are randomly drawn by the attorney general’s office, which conducts the audit.

Maine: Gov. Janet Mills has signed legislation into law that will clarify the chain of custody of ballots and voting machines in Maine, while also preventing any unauthorized people from gaining access.

The Legislature has approved a bill that will strengthen protections in the law for election workers and volunteers. State Rep. Bruce White, D-Waterville, who introduced the bill, said in addition to making interfering with an election worker a Class D misdemeanor, the bill would add a reporting procedure to document threats. White added that the bill is aimed at not only protecting workers, but protecting democracy and free and fair elections. He noted that if there aren’t enough workers and volunteers, polling places become disorganized and lines can get long. “We really want to provide adequate protections, so that all of us have that right to cast our ballot on Election Day,” he said. “We want the process to go smooth, and are thankful for all the workers out there, too.”

Michigan: Gov. Gretchen Whitmer vetoed a pair of bills that would have required hundreds of thousands of voters to take steps to stay registered. The Secretary of State’s Office initially worked with lawmakers to develop the bills following a 2019 report from the state’s auditor that recommended improvements to Michigan’s voter list maintenance. But Republican lawmakers made changes to the legislation the Secretary of State’s Office said would add unnecessary costs and open the door to errors. The GOP bills passed on a party-line vote in the state Senate while only a handful of Democrats supported the legislation in the state House. The elections bills aimed at cleaning up Michigan’s voter rolls targeted voters with unknown birth dates and those who haven’t cast a ballot in decades. The bills would have required those voters to complete a form mailed out by election officials, undergo signature verification and provide identifying information to ensure they could vote in future elections. Whitmer wrote in her veto letter that the bills “do not advance the goal of improving Michigan elections” and said “they would burden clerks and voters while increasing costs to Michigan residents.”

Mississippi: Gov. Tate Reeves signed House Bill 1365 and it will become law July 1. It says state or local officials who conduct elections cannot solicit or accept donations from any private group for “voter education, voter outreach or voter registration programs.” Reeves said in a video posted to Facebook on Monday that he was “deeply disturbed by big tech’s attempt to influence the 2020 elections.” “Whether it was their attempt to silence conservative voices or suppress information they don’t agree with, California’s technology elites will stop at nothing to push their woke ideology on the American people,” Reeves said. “Our elections cannot be left up to billionaires like Mark Zuckerberg, especially when groups like Facebook systematically silence conservative voices on their platforms.”

The Legislature has passed a bill that changes how naturalized citizens can register to vote in Mississippi. Both chambers recently passed House Bill 1510, which allows Mississippi’s election management system to cross-reference voter registration information with state driver’s license systems at the Mississippi Department of Public Safety to see if a noncitizen is registering to vote. According to the legislation, if a person is flagged by the state system as potentially being a non-U.S. citizen, that person’s name will be checked with the federal immigration database. If both the federal and state database flag the person who registered to vote as a noncitizen, county clerks will notify that person that have 30 days to submit proof of U.S. citizenship. If a person fails to submit proof by that deadline, their voter registration status will be marked as “pending” for the next federal election. If a pending voter does not submit citizenship proof within the 30-day time frame and still attempts to vote, they will be forced to cast an affidavit ballot during the election. The flagged voter then has a five days to present citizenship information to their county clerk’s office for the affidavit vote to count.

Missouri: Missouri’s Republican-led House advanced a rival constitutional amendment to block a push for open primaries and ranked-choice voting. Lawmakers gave their ballot measure initial approval in a voice vote. Another vote is needed to send the proposal to the GOP-led Senate, which is moving at a glacial pace this year amid Republican infighting. If passed by both chambers, the measure would go before voters for final consideration. The legislative proposal is in direct opposition to another group’s effort to radically change how Missouri handles elections for statewide candidates, lawmakers and U.S. Congress. The bipartisan Better Elections campaign has proposed a constitutional amendment that would give voters the option to pick from both Republicans and Democrats during primaries. Currently, voters can either choose to nominate one candidate from a pool of either all Republicans or all Democrats. In the general election, voters then could vote for either their No. 1 choice or rank their picks from a pool of the four highest-vote-getting candidates from the primary.

New Hampshire: By a 13-11 vote, the Senate has approved Senate Bill 418. The bill would void ballots of voters who don’t prove domicile. If it becomes law, Senate Bill 418 would create a new kind of ballot called an “affidavit ballot,” requiring voters to mail in a copy of the missing documentation within 10 days of an election in order for their vote to count in the final tally. Right now, to vote without an ID you must sign a legally binding document to verify your identity, a provision used by around 6,000 people in the 2016 election that this bill would eliminate. The version of the bill the Senate passed is pared back from the original, which would have impacted same-day voter registration. The version that passed the Senate would affect only people who come to vote without an ID.

Last week, the Senate approved Senate Bill 418. Under Senate Bill 418, the ballots would be held aside after the election and affidavit voters would have to provide proof of their domicile in New Hampshire for their vote to count. If proof is not provided within 10 days, the ballot gets tossed and the vote subtracted from the totals in the election. Senate Bill 418 is now in the House, but Gov. Chris Sununu, R-NH, indicated that he’s skeptical of the changes the legislation would make. “The problem I have, generally, with provisional ballots is that you may not get a result for days after the election, and that’s a problem,” Sununu said. “New Hampshire has always had a great system where you get the results that night, our system works, it has integrity.”

Tennessee: A new bill making its way through the Senate could help more students get to the polls. The bill would require schools to let their students know they are eligible to vote when they turn 18 years old. Additionally, Senate Bill 2064 will require schools to provide information about how to register to vote, including the date and time of the supplemental voter registration conducted at the student’s high school. If passed, the bill will allow students to use their school ID to verify their identity at the polls. Also, it gets rid of the requirement of a person casting their ballot in person when they vote for the first time.

Legal Updates

Arizona: The Arizona Supreme Court won’t quash the method of voting used by nearly 90% of state residents, at least not now. In a brief order the justices rejected a bid by the Arizona Republican Party to get the justices to declare that early voting is unconstitutional. They rejected arguments by attorneys for the party that the issue is strictly legal and ripe for them to decide. But the order, signed by Chief Justice Robert Brutinel, does not end the matter. He said the challengers are free to refile the case in Maricopa County Superior Court where they can provide some factual basis for their allegations. Only after there is a decision at the trial court — and the judge there makes some findings — would it be appropriate for the high court to review the issue. Central to the fight is the contention by attorney Alexander Kolodin that the only form of voting specifically authorized by the framers of the state constitution is in person, and on Election Day. What that means, he said, is anything else — including the current system of no-excuse early ballots created by the legislature in 1991 — is illegal.

At least two federal lawsuits have already been filed challenging voter registration requirements signed into law Wednesday by Arizona Gov. Doug Ducey. The Republican-backed legislation seeks to expand U.S. citizenship voting requirements in the state, but critics warn it violates federal law and will jeopardize the voter registrations of thousands of Arizona residents. The first lawsuit from Mi Familia Vota, a local voter outreach organization, was filed less than 24 hours after the governor signed House Bill 2492. The bill “severely burdens the right to vote and, in many cases, will deny that right entirely, disenfranchising eligible, lawful voters in violation of the First and Fourteenth Amendments,” attorney Roy Herrera wrote. A separate lawsuit filed by Campaign Legal Center on behalf of several Arizona advocacy groups, including Living United for Change in Arizona and the Arizona Students’ Association, makes similar claims that the bill targets Arizonans based on which type of registration form they used to register to vote. “The anti-voter policies in HB 2492, signed into law by Governor Doug Ducey, create new barriers to Arizonans’ freedom to vote and violate long-standing federal law,” said Trevor Potter, founder and president of Campaign Legal Center.

Arkansas: The Arkansas Supreme Court has stayed a judge’s ruling that struck down four new voting laws as unconstitutional. Justices granted the emergency stay Friday requested by Republican Attorney General Leslie Rutledge. It puts on hold a Pulaski County judge’s injunction against the restrictions the GOP-led Legislature passed last year. The new measures include changing the state’s voter ID law to allow those without photo identification to vote if they sign an affidavit. The high court’s one-page order didn’t elaborate on the reason for staying the lower court judge’s decision.

Florida: U.S. District Judge Mark Walker struck down portions of a Florida election law passed last year, saying in a ruling Thursday that the Republican-led government was using subtle tactics to suppress Black voters. The law tightened rules on mailed ballots, drop boxes and other popular election methods — changes that made it more difficult for Black voters who, overall, have more socioeconomic disadvantages than white voters, U.S. District Judge Mark Walker wrote in his ruling. “For the past 20 years, the majority in the Florida Legislature has attacked the voting rights of its Black constituents,” Walker wrote. Given that history, he said, some future election law changes should be subject to court approval. Republican Gov. Ron DeSantis, who made the election bill a priority, said the state will appeal Walker’s decision and win. “In front of certain district judges, we know we will lose no matter what because they are not going to follow the law,” DeSantis said at a news conference in West Palm Beach. He did not say specifically why he believes the ruling is incorrect. Upon appeal, the case would go to the 11th U.S. Circuit Court of Appeals in Atlanta, Georgia, which is seen as being more conservative.

Louisiana: A three judge panel from Louisiana’s 3rd Circuit Court of Appeal reversed a lower court’s dismissal of a lawsuit that Attorney General Jeff Landry filed against a nonprofit organization that tried to help parish clerks and registrars pay for tents, signage, water and other basic supplies they needed for the 2020 presidential election. The appeals court reversed and remanded the St. Martin Parish 16th Judicial District Court’s ruling in the case Louisiana v. Center for Tech and Civic Life (CTCL). The lower court, which dismissed Landry’s claim that state law prohibits parish registrars and clerks of court from accepting donations from private organizations to pay for election-related expenses, will have to rehear the case. The appeals panel found that the lower court erred when it defined parish registrars of voters and clerks of court as parish officials with the constitutional authority of political subdivisions to “acquire property for any public purpose by purchase, donation, expropriation, exchange, or otherwise” as detailed in the Louisiana Constitution. Rather, the appeals panel stated, clerks of court and parish registrars are state officials who operate within a limited geographical jurisdiction. Thus, as state officials, they may not acquire property or funding in the same manner as would a local or parish government. The appeals court noted that seven similar federal lawsuits against CTCL filed in other states have all been dismissed, but the donations at issue in those cases “were offered to and accepted by the counties or cities holding the elections rather than by election officials such as registrars of voters and clerks of court.”

Massachusetts: The state’s Appeals Court held hearings on the appeal of the city’s 2019 Ward 6 election, where current Ward 6 Councilor Megan Riccardi beat out candidate Jerry Ryan by a single vote. A Superior Court trial that concluded in January 2020 upheld the election results and subsequent recount, and focused on a series of individual challenges that each had the potential to tip the race’s outcome by a single vote, either doubling the margin of victory or eliminating it. That included three absentee ballots the city accepted that Manning argues it shouldn’t have, ballots that were rejected but Manning argues should’ve been reviewed by the court, and a single last-minute voter who lacked proof of residency and was therefore denied access to a ballot. Ultimately, the trial ended in the city’s favor and Riccardi was sworn in days later. Ryan appealed the case to the Appeals Court, however, and the process slowly played out as Riccardi finished the term and won a new term last November to continue serving Ward 6. “Does that mean the challenges to the individual voters are moot?” asked Associate Judge Gabrielle Wolohojian. “If the contest itself is moot… which I think it has to be because the term is over, then whether the three people should’ve been counted, couldn’t have… that seems to me to all be moot.” The issues remain alive, Manning argued, because the city’s elections office made errors in 2019 that could be repeated going forward.

Montana: Yellowstone County District Judge Michael Moses has issued an injunction, temporarily blocking four recently passed election laws which would have, according to plaintiffs, made it more difficult to vote for students, Native Americans and other groups. In his 58-page ruling, Moses wrote that the plaintiffs had effectively made the case that the four laws may be unconstitutional. The ruling comes from a consolidation of different cases in which a number of groups, including the Montana Democratic Party, Western Native Voice, a few Native American tribes and Montana Youth Action filed lawsuits to overturn four recently passed state laws: HB 506, SB 169, HB 176, and HB 530. Lawmakers said the four laws were intended to combat voter fraud and “ensure voter integrity.” Perhaps the most impactful law, HB 176, would have ended same-day voter registration in the state, which has been in place since 2005, and has been used by thousands of voters in each election since. The new law would have pushed the deadline to register to vote back to noon on the day before Election Day. In his ruling, Moses said the plaintiffs had made a reasonably strong case that “HB 176 unconstitutionally burdens the right to vote because HB 176 eliminates an important voting option for Native Americans and will make it harder, if not impossible, for some Montanans to vote.”

North Carolina: The N.C. Court of Appeals has issued a temporary stay in a case dealing with felon voting in North Carolina. The stay blocks any felons from registering to vote until appeals in the case are resolved. “The motion [for a] temporary stay is allowed,” according to an Appeals Court order. “The ‘Final Judgment and Order’ entered by a divided three-judge panel of Wake County Superior Court on 28 March 2022 is hereby stayed pending this Court’s ruling on the petition for writ of supersedeas.” A writ of superseadas blocks a lower court order from taking effect until appeals are resolved. “The North Carolina State Board of Elections shall not order the denial of felon voter registration applications received pursuant to the ‘Final Judgment and Order’ but shall order such applications to be held and not acted on until further order of this Court,” the Appeals Court order continued. Action from the Appeals Court might not represent the final word in the dispute. On Monday plaintiffs in the case titled Community Success Initiative v. Moore asked the state Supreme Court to take the case. If the state’s highest court steps in, it could overrule the Appeals Court’s action. The ruling could affect 56,000 felons who have completed active prison time. That includes felons on probation, parole, or post-release supervision.

Tennessee: The Shelby County Election Commission is being sued by three Memphis groups that say the commission’s early voting plan for the upcoming county primary will disenfranchise minority voters. The Shelby County primary is May 3. Early voting starts in less than two weeks on April 13. And on the first two days of early voting only one location will be open and the plaintiffs say that’s just wrong. “There’s really no logical reason all precincts can’t be open every day of early voting,” Memphis NAACP President Van Turner told Action News 5. Turner says his organization joined UpTheVote901 and the Black Clergy Collaborative in filing a lawsuit against the Shelby County Election Commission on Thursday, March 31, because only one early voting location will be open the first two days of early voting April 13 and 14. That location is the downtown Election Commission office at 157 Poplar. The suit also accuses the Election Commission of violating the state constitution, the federal Voting Rights Act of 1965 and the Tennessee Open Meetings Act for holding what the lawsuit calls “secret meetings.”