Thursday, May 19, 2022

Electionline Weekly May-19-2022

Legislative Updates

Federal Legislation: Senate Rules Committee Chairwoman Amy Klobuchar (D-MN) and Sen. Elizabeth Warren (D-MA) introduced a bill to provide $20 billion in federal funding to help states and localities to administer elections, train poll workers and eliminate barriers to voting. The legislation, which is co-sponsored by nine other Senate Democrats, would secure election infrastructure by upgrading voting equipment and registration systems, help recruit and train nonpartisan election officials and poll workers, protect election officials from threats and increase ballot access for minorities, voters with disabilities and those who live overseas or on Indian lands. “Free and fair elections are the cornerstone of our democracy, but in recent years we have seen a barrage of threats seeking to undermine our elections,” said Klobuchar. “It is critical that we respond to these threats head-on by ensuring that state and local governments have the resources needed to strengthen the administration of our elections, protect election officials on the frontlines, and provide all eligible voters with the opportunity to make their voices heard,” she said.

Arizona: The Arizona House has approved several election bills in bipartisan votes. The measures approved, which have all already passed the Senate, make changes to election procedures. One would raise the threshold for triggering an automatic recount in close elections. Another would require the Game and Fish Department to hand out voter registration links or forms when people sign up for hunting and fishing licenses. A third bill aims to requires court clerks to report new felony convictions monthly so voter registrations can be canceled. And a fifth directs county election officials to count and publicly report the number of uncounted early ballots on election night, if practical. Meanwhile, lawmakers voted down a handful of bills that were universally opposed by Democrats, in part because there weren’t enough Republican lawmakers on hand to pass bills without Democratic votes. One failed bill would allow people to carry their mail ballot to a polling place, show identification and have their ballot tabulated on the spot as if they had voted in person. Democrats said not all counties have the technology to do that, so the bill risks creating disparate procedures across the state. Another failed bill would make it a felony to forward a mail ballot to someone known to be registered to vote in another state.

Missouri: Two years after Missouri’s Supreme Court struck down a similar measure, lawmakers passed a bill requiring residents to have photo identification to cast a ballot. The requirement, part of a larger elections bill, passed the House on a party-line 97-47 vote. In addition to requiring photo ID, the bill allows Secretary of State Jay Ashcroft, a Republican, to review the list of registered voters in any jurisdiction. Electronic voting machines will be banned after 2024, except in cases where a voter with a disability cannot use a paper ballot. Those machines, however, would be required to have a paper trail for a potential election review. In addition, local election authorities can no longer accept funding from outside organizations. Missouri lawmakers also stripped all of the state’s provisions that made it easier for individuals to vote during the early days of the pandemic. Democrats were able to secure some of their election-related priorities, including a two-week window for no-reason absentee voting.

New Hampshire: A bill that would require new voters in the state who register at the polls without identification to use a provisional ballot is headed to the desk of Gov. Chris Sununu. The GOP-led State Senate endorsed the House’s version of SB 418 along party lines. Under the bill, new voters in the state who register without proper identification would use a marked provisional ballot. If those voters failed to then provide proof of identity to the New Hampshire Secretary of State’s office within 7 days, their ballots would be scrubbed and final vote tallies updated. Warren Sen. Bob Giuda, a sponsor of the bill, predicted its effect will be minimal. Sununu had initially signaled opposition to the bill, in part because affidavit ballots could delay final election results by more than a week in a close race. He recently told reporters he is now comfortable with the plan, which has been narrowed to apply only to people who are registering to vote in New Hampshire for the first time. The measure has the support of Sec. of State Dave Scanlan, but has faced criticism from some local election officials and voter advocacy groups as unnecessary. If signed into law, the measure could face a legal challenge.

New Jersey: The Assembly State and Local Government Committee advanced 10 bills last week. The legislation includes:

A3822 which requires county boards of elections to release a online list of the number of ballots received, the number of ballots counted, and the number of ballots left to be counted, a tabulation which would be updated daily. The Secretary of State’s office would aggregate those numbers and list them on its own website – a significant advancement for a state that has long delegated its election reporting to county governments. Additionally county boards of election would be permitted to begin processing and counting mail-in ballots five days before the election, potentially allowing for a much more efficient counting process. And second, postmarked mail-in ballots would have to be received within three days after Election Day, rather than six. Another shift made by the bill would be to move the deadline for printing mail-in ballots from 50 days before the election to 45 days, which some testifiers noted could conflict with federal law about mailing ballots to overseas voters. Finally, the bill would remove the ability of voters to change their partisan registration at the Motor Vehicle Commission, which has some voter registration systems in place through automatic voter registration, and would allow county boards of election to establish schedules for picking up mail-in ballots from ballot drop boxes.

A3819 under a voter on the permanent vote-by-mail lists who does not vote in four consecutive general elections would be removed from the permanent list and be notified by mail of their removal. (Importantly, the voter would remain on the voter rolls, just not on the mail-in list.) Additionally, if a voter indicates they want their vote-by-mail ballot to be delivered to a secondary address – common among college students, for example – but two mail-in ballots in a row are returned or undeliverable, future mail-in ballots will be sent to the voter’s primary address instead, again with a notification by mail of the change. The bill also includes a $10 million education campaign to inform voters of the new rules.

A3817 would require early and absentee votes to be counted by election district, rather than just by municipality. Currently, all Election Day votes are broken out into highly detailed district-level detail but other votes are lumped together at the municipality level, making it impossible to precisely determine detailed election results in elections with high rates of early and absentee voting. A3820 would require independent voters wishing to vote in closed primaries to to send a separate request for a partisan ballot or go to the polls in-person and cast a provisional ballot. Also included in the bill are provisions to send notifications to those unaffiliated voters informing them of how to affiliate with a party and to require that absentee ballot envelopes be designed so that partisan registration is not visible from the outside.

A3821 would increase the accessibility of early voting and ballot drop box locations. Each county would be required to place at least 50% of its early voting locations and ballot drop boxes in municipalities that had low voter turnout rates, and at least 50% in locations accessible via public transportation.

A3823 would require that municipalities notify statewide voter registration authorities of death records every two weeks in the two months leading up to a statewide election, something designed to increase the security of voter rolls but that several testifiers argued could lead to valid voters being inadvertently purged. The bill would also enter the state into the Electronic Registration Information Center.

A1696 would expand the hours which 16- and 17-year olds are allowed to work at the polls to 5:30am to 9:30pm on Election Day only.

New York: A voter protection bill, the John R. Lewis Voting Rights Act of New York (NYVRA), moved for the first time last week since it was introduced in 2020. The legislation cleared the Senate elections committee and is expected to be heard next in the Senate finance committee – a sign that it may make it to the floor of the State Senate, where it would be virtually assured to pass. But the bill still faces an uphill battle in the Assembly, where supporters are less hopeful. Both chambers are led by Democratic supermajorities. The NYVRA is intended to fill gaps in the federal Voting Rights Act, which the U.S. Supreme Court has largely dismantled over the last decade. The bill would give the New York Attorney General “preclearance” authority over any proposed changes to voting in parts of the state with a history of disenfranchisement (the Bronx, Brooklyn, and Manhattan had previously been covered under the federal VRA). That authority could apply to anything from the placement of poll-sites to the provision of interpreters. The legislation would also make it easier to file lawsuits against the state or counties for violating the voting rights of protected racial, ethnic, or linguistic groups. And it contains provisions to discourage voter intimidation, require language access, and track potential rights violations.

Better training for elections workers, allowing the distribution of snacks for voters waiting in line and blocking elections commissioners from holding elected office are among the changes Democratic lawmakers in the state Senate are seeking to the administration of elections in New York state. And key to the package of measures is a plan to overhaul the New York City Board of Elections by reducing its size and giving more power to an executive director chosen through a nationwide search. The measures, approved in the state Senate, are meant to make improvements to local boards of election in New York that have, at times, been criticized as patronage mills for local officials. New York lawmakers in recent years have sought changes to election administration, but have to run into institutional headwinds opposed to the changes. The package of measures includes having the statewide Board of Elections develop a mandatory training plan for election commissioners and key staff at local boards. Elections commissioners would also be barred from holding elected office. Pay raises would also be approved for elections inspectors from $25 to $50.

Ohio: State Rep. Michael Skindell (D-Lakewood) recently introduced House Bill 641 which would create a permanent absentee voter list. To vote absentee under current law, voters must fill out an absentee-ballot request and send it to the board of election before each election. They will then receive a mail-in ballot that must be returned. Skindell said the list would streamline the process, which would increase voter participation. “Instead of having to remember the election and mailing in an application to get a ballot,” said Skindell, “you can be placed on a list and the board of election will send you out a ballot application before every election.” Skindell said a voter would be removed from the permanent absentee list if their registration is canceled, or if they submit a written request to be removed. And he expects any possible opposition to center around false notions that it would weaken election security.

Rhode Island: The House has approve a version a bill to allow online applications for mail ballots and eliminate the current witness/notary signature requirements to verify the identity of those who choose to vote by mail. In lieu of witnesses, the voter will need to state: “I have not and will not vote elsewhere in this election,” and “I hereby attest under the pains and penalty of perjury, that the enclosed voted ballot was cast by me, and that the signature or mark on this certifying envelope was made by me.” The proposed law would also allow early in-person voting 20 days ahead of Election Day. The legislation was approved largely along party lines 52 to 13. The House bill and the matching version in the Senate were born out of Rhode Island’s 2020 mid-pandemic attempt to make voting easier for COVID-leery voters.

South Carolina: Gov. McMaster signed legislation into law that was passed by the General Assembly which establishes early voting in South Carolina. In-person absentee voting has now been replaced with a two-week early voting period. Any voter can visit an early-voting location in their county and vote like they would at their polling place on Election Day. Additionally, the bill would establish a set number of early voting sites in each county and authorize election officials to begin examining and tabulating absentee votes prior to Election Day. The bill was approved after Senators dropped that demand, settling instead for confirmation of the state election director and a process for removing the elections board or its executive director if they fail to enforce and defend or publicly discredit state elections laws. The legislation establishes qualifications for the five commissioners, permits their removal by the governor or through a legal action filed by the House or Senate, and prohibits them from establishing emergency election regulations, like those contemplated during the 2020 election. In addition to appointing a commission chairman, the governor also would appoint a vice chairman who would be ready to take the helm should the chairman be removed, Campsen said. Both the board chairman and vice chairman would serve two-year terms. The bill also sets eligibility requirements for the executive director and limits the director’s term to four years, although a director may be reappointed with approval of the Senate.

Legal Updates

Colorado: District Court Judge Marie Avery Moses denied motions to dismiss a defamation lawsuit filed by an election systems worker against former President Donald Trump’s campaign, two of its lawyers and a handful of conservative media figures and outlets. Moses, in a 136-page decision, rejected various arguments to throw out the lawsuit filed by Eric Coomer, who was security director at the Colorado-based Dominion Voting Systems. Coomer said he faced death threats after he was baselessly accused of trying to rig the 2020 presidential election in favor of President Joe Biden. Moses wrote that “there is overwhelming evidence that an injunction would serve the public interest because the public is harmed by the spread of defamatory information.”

Florida: Leon County Circuit Judge Layne Smith issued a temporary injunction last week against a congressional redistricting plan pushed through the Legislature by Gov. Ron DeSantis, this week ordered that the ruling remain in effect while the state pursues an appeal. The state had appealed Smith’s temporary-injunction ruling to the 1st District Court of Appeal. That triggered an automatic stay, which put the ruling on hold. But Smith held a hearing Monday and sided with voting-rights groups that requested he lift the stay. With elections supervisors preparing for the Aug. 23 primary elections, Smith pointed to the possibility that an appeal would not be resolved quickly. If the stay were not vacated, that could result in supervisors using the DeSantis-backed map that Smith said violated part of the state Constitution. “It’s crunch time now, and this involves fundamental constitutional rights,” Smith said. The state plans to ask the 1st District Court of Appeal to reimpose the stay

Georgia: Fulton County Superior Court Judge Robert C.I. McBurney has rejected former U.S. Sen. David Perdue’s request to inspect ballots from the November 2020 election, saying his evidence of voting fraud amounts to “conjecture and paranoia.” Perdue’s lawsuit claimed fraud had cost him a chance to defeat Democrat Jon Ossoff in November 2020. Perdue filed the lawsuit against Fulton County officials in December — more than a year after the election and four days after he launched his campaign to unseat Gov. Brian Kemp in the May 24 Republican primary. He has made false election fraud claims a centerpiece of his campaign. McBurney dismissed the lawsuit and Perdue’s request for a “forensic inspection” of absentee ballots. The judge said Perdue’s claims consisted of “speculation, conjecture and paranoia — sufficient fodder for talk shows, op-ed pieces and social media platforms, but far short of what would legally justify a court taking such action.” McBurney ruled that Perdue had failed to state a proper claim for relief. The judge noted that Perdue could have filed a proper election challenge following the vote in November 2020, but he did not. Judges rejected several election challenges filed by Trump and his supporters.

In an order released this week, U.S. District Judge Steve Jones said that he won’t render any judgment until all evidence has been presented in the voting rights case lead by Fair Fight Action. The order is in response to the state’s attempt to dismiss the case after a month of testimony. Jones had been considering the state’s request that he throw out the case. Attorneys for Georgia Secretary of State Brad Raffensperger argued that the plaintiffs, which include voting rights groups and churches, failed to prove their allegations that the state’s voting policies disenfranchise voters. The trial is scheduled to last into June, and then Jones could issue a judgment later this summer.

Idaho: Fourth District Judge Jason Scott has dismissed a lawsuit filed by Rep. Priscilla Giddings (R-White Bird) against secretary of state and various county clerks, alleging they were causing “irreparable electoral damage” by preventing poll watchers from overseeing the processing of absentee and early-voting ballots for the May primary being processed. Giddings petitioned the judge for an ex parte motion, essentially an emergency ruling that would allow her volunteers to begin showing up at early voting locations and ballot collection sites immediately, before allowing those named in the suit a legal chance to respond. “After reviewing the petition and the motion, the Court is unpersuaded that there is any substantial reason to proceed on an ex parte basis, especially not when counsel for Respondents (Idaho Secretary of State Lawerence) Denney and (Chief Deputy Chad) Houck is in place and wishes to participate,” Scott wrote. The judge did not make a determination on whether Giddings or Denney made the correct interpretation of the Idaho statutes on poll watchers. Scott made a verbal ruling dismissing Giddings’ petition, and said he would issue a “short, confirmatory written ruling in the next day or two.”

Kansas: The Kansas Supreme Court issued a ruling declaring the congressional redistricting map approved by the Republican-led Legislature to be in compliance with the Kansas Constitution. The justices conducted oral argument Monday on an appeal by Attorney General Derek Schmidt of a Wyandotte County District Court judge’s May 18 opinion the map transferring liberal-leaning Lawrence from the 2nd District to the 1st District and splitting the Democratic stronghold of Wyandotte County between the 2nd and 3rd districts was unconstitutional. Justice Caleb Stegall, in a two-page ruling, said the majority of the state’s highest court held Senate Bill 355 didn’t violate the state constitution. “Therefore, the judgment of the district court is reversed and the permanent injunction ordered by the district court is lifted,” Stegall said in the order.

Michigan: The Michigan Court Administrative Office approved transferring Genesee County Clerk John Gleason’s casese out of Genesee County to avoid a conflict of interest. The case against him will be heard in Livingston County instead. Gleason, 67, was arrested on April 8 after the Tuscola County Prosecutor’s Office filed charges of witness bribing/intimidating/ interfering and willful neglect of duty against him. Tuscola County Prosecutor Mark Reene said members of Gleason’s staff raised concerns about the clerk’s actions, which led to the investigation and the charges. The Michigan Secretary of State’s Office has ordered Gleason to avoid any work on elections until further notice due to the charges against him and Genesee County Elections Supervisor Kathy Funk.

Missouri: A Jasper County judge granted a vote recount sought by a candidate who was narrowly edged out of a five-way race for three seats on the Joplin City Council. Candidate Brian Evans, who came up short by 13 votes according to official election returns, filed a petition in Jasper County Circuit Court days after the election asking for a recount. State law allows a recount if there is a difference of less than 1% in the vote between candidates. Financial adviser Josh DeTar was the closest with 2,339 votes to Evans’ count of 2,326. DeTar received 20.16% of the vote while Evans received 20.03%, which put the difference at less than 1%. The judge said that there was agreement among the attorneys who filed responses to the recount petition on behalf of Jasper and Newton counties, the city of Joplin and DeTar that Evans was entitled to the recount because of the narrow vote difference.

Montana: Three weeks before the primary election, the state Supreme Court restored a pair of 2021 election laws that ended Election Day registration and created stricter identification requirements for in-person voting. In a 4-1 decision, the court reversed an injunction granted in April by a district court judge who had ruled in favor of the Democratic Party, Native American organizations and a coalition of youth advocacy groups that are suing to overturn several laws enacted by Republicans in 2021. As a result, voters must now be registered to vote by noon on June 6, the day before the upcoming primary election. And voters casting their ballots in person can’t do so by relying solely on their student ID, as was the case before the laws were passed in 2021. Stand-alone forms of ID that will allow Montanans to vote in person include: Montana driver’s licenses, Montana state ID, a military ID, tribal photo ID, U.S. passport or a Montana concealed carry permit. The order was signed by justices Dirk Sandefur, Jim Shea, Beth Baker and Jim Rice. Chief Justice Mike McGrath “would deny the motion,” the order states. The plaintiffs have argued that the new laws are unconstitutional because they disproportionately burden voters from certain groups, including college students, Native Americans, elderly and disabled voters. Jacobsen, a Republican, has sought to uphold the new laws, arguing that they were designed to bolster the state’s election security and were within the Legislature’s authority to determine the state’s election processes. One of the plaintiffs in the case, Montana Youth Action, argued that reversing the injunction would create more confusion for voters, as it would effectively be the third time the rules have changed. “However, we place greater weight on the fact that elections have actually been conducted under the statutes as enacted … elections that a large portion of Montana voters participated in,” the justices wrote. They added that “the purpose of equitable injunctive relief is to preserve the status quo and minimize the harm to all parties pending final resolution on the merits,” the justices wrote, defining the “status quo” as the “last actual, peaceable, noncontested condition which proceeded” the lawsuit.

New Mexico: A conservative-backed foundation that aims to post online registration records for voters across the country urged a federal judge Tuesday to override objections by New Mexico election regulators who say the initiative violates state law and would discourage people from registering to vote out of privacy concerns. The website does not list details of how people voted regarding candidates or initiatives. Eddie Greim, an attorney for Voter Reference Foundation, urged a federal judge to intervene and ensure voter rolls can be published online to provide direct accountability and allow people to vet the accuracy of most registration records submitted by others. New Mexico election regulators say the unprecedented efforts flouts state statutes that limit the acquisition and sharing of voter registration rolls to governmental activities and political campaigns. An attorney representing the secretary of state’s office warned that many residents will be reluctant or unwilling to register to vote if they know that required personal information is distributed openly. “People will simply not register if they think we will sell their data or make it available to the world,” said Olga Serafimova, an attorney for the state attorney general and secretary of state. “The system will unravel.” She said election regulators in several states see flaws in the foundation’s methodology for highlighting “discrepancies” between voting tallies on Election Day and registration records that are updated continually.

Pennsylvania: Judge Leonard Brown has ordered that a ballot drop box be temporarily restored at a Lancaster County government building. The ACLU of Pennsylvania had sued the county after the drop box was removed saying the decision to remove it was made at a meeting that was not open to the public and therefore the county was in violation of Sunshine laws. In his preliminary injunction, Brown stated the commissioners’ decision was an official action, and therefore needed to comply with the Sunshine Act, which states that a government agency needs to provide the public with at least 24 hours’ notice of any official action by posting its agenda on its website. He also rejected the argument from the county that removing the drop box was a “de minimis” action. “The number of public comments related to the drop box and the amount of time the Board itself spent discussing the issue establishes to the satisfaction of the court that the removal of a ballot drop box is not ‘so minor as to merit disregard’ and accordingly is not de minimis,” Brown wrote in his ruling. “Notably, Board Member D’Agostino suggested at the April 13, 2022 meeting that the matter of the drop box be addressed at a Board meeting the following week, which would have likely satisfied the (state law); however, Board Member Parsons suggested that a consensus existed, and the matter was finalized without a vote.”

South Dakota: U.S. District Judge Lawrence Piersol ruled this week that two South Dakota Sioux tribes and a voting rights group have standing to bring a lawsuit against the state over claims that state agencies did not offer voter registration services. The tribes claim several South Dakota agencies violated the National Voter Registration Act (NVRA) — also known as the “Motor Voter Law” — when they failed to update voters’ registration information at the Department of Motor Vehicles and public assistance offices. Defendants argue the Sioux tribal plaintiffs and the voting rights organization failed to state a claim for relief and moved for dismissal. “The language of this provision is clear in that ‘all offices in the state that provide public assistance’ must provide the voter registration services described in the NVRA,” Piersol wrote. “Plaintiffs have alleged the Department of Labor and Regulation provides such services and there is evidence to support the allegation.”

Washington: The state of Washington has been added as a defendant in a lawsuit over Yakima Valley voting boundaries after an order from a judge. The lawsuit, filed by a group of Latino voters and civil rights organizations, alleges violations of the federal Voting Rights Act and an intentional dilution of Latino voters’ influence. It is one of two lawsuits filed over redistricting in the Yakima Valley’s state legislative District 15. The state’s participation in the voting rights lawsuit is necessary to ensure the court could provide relief if needed, U.S. District Judge Robert S. Lasnik said in his May 6 order. The UCLA Voting Rights Project, Mexican American Legal Defense and Educational Fund and Campaign Legal Center, plaintiffs in the voting rights case, have requested that the court prohibit defendants from using the map and order the use of a new plan that does not dilute the strength of area Latino voters in the Yakima Valley.

Wisconsin: Dane County Circuit Judge Stephen Ehlke voiced skepticism about a lawsuit challenging the legality of private grant money awarded to Madison to help run the 2020 election, calling some of the arguments “ridiculous,” a “stretch” and “close to preposterous.” The lawsuit argues that private grants given to Madison from a group funded by Facebook founder Mark Zuckerberg amounted to illegal bribery. The Wisconsin Elections Commission in December rejected that complaint, and this lawsuit is an appeal of that decision. Four nearly identical lawsuits are also pending in Milwaukee, Green Bay, Racine and Kenosha. The case in Madison was the first to hold arguments. Three Wisconsin courts have previously rejected similar lawsuits arguing that the grants were illegal. Similar lawsuits filed in other swing states have also been rejected. “It’s sort of a bit like whack-a-mole,” the judge said of the complaint. “This case, my concern is, it just seems like it’s endless. There’s going to be some new allegation.” The judge promised to issue a ruling by the middle of June.

NYC Wins When Everyone Can Vote! Michael H. Drucker

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