Legislative Updates
Arizona: A bill is on Gov. Doug Ducey’s desk to make it a felony to allow someone to register to vote and cast a ballot on Election Day. That however is already not legal in Arizona. Voters cannot cast a ballot if they register less than 29 days before an election. Democratic Sen. Martin Quezada said. “This is just a political platform to expound upon the Big Lie that our elections are not safe and that our voter registration procedures are not legitimate. And this one is just silly. One, we don’t have same-day voter registration in place right now, at all. This doesn’t exist,” Quezada. The bill’s sponsor Republican Rep. Jake Hoffman does not dispute it is already illegal to do so. But signatures are being gathered to change voting laws to allow same day voting.
Ducey has signed the following bills into law:
Under Senate Bill 1108, an automatic recount would occur at the county level if an election count was within 0.5% between the two candidates. House Minority Leader Reginald Bolding of Phoenix supported that bill, leading to a wave of Democratic support. The move from .1% to .5% was lauded by Gov. Ducey’s office in a statement. “As Arizona’s population grows, it is necessary and prudent to continue prioritizing accountability,” Ducey said. “This election result confirmation process puts Arizona more in-line with other states’ procedures.”
Senate Bill 1329 mandates a county recorder to provide a real-time tabulation of ballots on Election Day by counting the number of early ballots returned at voting locations. The county recorder would also post these totals with the latest unofficial election count on its website.
The Senate has rejected a bill offered by Sen. Michelle Ugenti-Rita (R-Scottsdale) that would have required drop boxes to have video monitoring. Ugenti-Rita said drop boxes are rife with possibilities for “ballot harvesting,” a pejorative term for dropping off completed ballots for other people. The Legislature in 2016 made it a felony to return another person’s mail ballots unless it is for a family member or if the person returning the ballot is a caregiver. But GOP Sen. J.D Mesnard noted that banning drop boxes outright would essentially kill the bill, because there’s no support in the House for going as far as Ugenti-Rita was proposing. The original House measure would have completely banned unmonitored drop boxes, but it did not have the votes to pass so it was watered down to allow counties to set up video monitoring where practical.
California: The Senate approved legislation to protect election workers by keeping their home addresses confidential. SB 1131, authored by Senator Josh Newman (D-Fullerton), passed with a 30-8-2 vote. The bill will stymie increasing harassment and violent threats directed at election workers. To offset the growing wave of harassment and violent threats directed at election workers, SB 1131 will allow election workers to enroll in either of the state’s existing address protection programs — the Secretary of State’s Safe at Home program or the state’s address confidentiality program for public officials. Safe at Home, designed to protect survivors of domestic violence and people who work at reproductive healthcare facilities, redirects the mail of victims enrolled in the program to a different mailing address. Alternatively, election workers may enroll in a program that allows state and local agencies to respond to public records requests without disclosing the address of an election worker. To reduce the likelihood that poll workers may be subject to doxing and targeting, SB 1131 also would eliminate the current statutory requirement for posting the names of poll workers at polling places, yet still would require the responsible election official to post the political party preferences of people working at a particular polling place.
Kansas: Lawmakers overrode Gov. Laura Kelly’s veto to enact a law pushed by a conservative Florida organization in response to unfounded claims of election fraud in other states. The measure, approved with a two-thirds majority in the Kansas House and Senate, bars the Kansas governor, secretary of state and attorney general from entering into consent decrees changing election law in the state. The bill was proposed and pushed for by the Florida-based Opportunity Solutions Project. “The Legislature is the one that establishes laws,” Rep. Emil Bergquist, a Park City Republican, said. “There’s not a reason to forego the approval of the Legislature.” But the measure did not respond to any event in Kansas. Proponents pointed to a pre-litigation settlement Gov. Laura Kelly reached with Loud Light, a left-leaning civic engagement group, last year. But that agreement related to federal law on providing voter registration forms to Kansans receiving social services, state not election law. In her veto message, Kelly said the bill tied the hands of executive officials. “There are times when it is necessary or actually better to enter into a consent decree than to require that we litigate an unconstitutional law,” said Rep. Vic Miller, a Topeka Democrat.
Louisiana: By a 57-22 vote, the House has approve House Bill 811 that would ban private funds to pay for election-related expenses. Rep. Blake Miguez, R-Erath. said on that HB 811 simply clarifies the law, and it has the support of both Attorney General Jeff Landry and Secretary of State Kyle Ardoin. The bill states: “No state or local official, including but not limited to a registrar of voters or a clerk of court, or agency responsible for conducting elections shall solicit, accept, use, or dispose of any donation in the form of money, grants, property, or personal services from individuals or profit or nonprofit corporations, for the purpose of paying costs related to conducting elections.” The legislature approved similar bills in the 2020 2nd Extraordinary Session and the 2021 Regular Session, and Gov. Jon Bell Edwards vetoed the legislation on both occasions.
Lawmakers have commissioned a task force to study the expansion of voting rights for people with disabilities. House Concurrent Resolution 14, sponsored by Rep. Matthew Willard, D-New Orleans, received final passage Monday with a unanimous vote in the Senate. The task force will examine amenities and procedures currently available for disabled voters and any impediments that might exist. Its members will then make recommendations that could be included in future legislation. The proposal received bipartisan support only after House Republicans removed the phrase “curbside voting” from the legislation. The original version included curbside voting as a topic to study for people who use wheelchairs or cannot physically enter a polling place, but it received heavy pushback from GOP lawmakers in the House and Governmental Affairs Committee. The final version instead directs the task force to study, at a minimum, ways to streamline how disabled voters receive “assistance when voting.”
Vermont: Gov. Phil Scott allowed a bill changing the Burlington city charter to become law without his signature and makes way for ranked choice voting. The enactment of H.744 reinstates a voting system that Burlingtonians repealed after a controversial mayoral race more than a decade ago. This time, only city councilors will be chosen by the voting system, which allows voters to rank candidates in order of preference. If no candidate receives a majority of votes, lesser-ranked choices come into play to determine a winner. In a letter to lawmakers, Scott said he allowed the bill to become law because of its limited scope. But he wouldn’t sign it because he’s opposed to instituting ranked-choice voting statewide. “I believe one person should get one vote,” Scott wrote, “and candidates who get the most votes should win elections.”
Legal Updates
Federal Litigation: U.S. District Judge Carl Nichols ordered MyPillow CEO Mike Lindell to pay some of voting machine company Smartmatic’s court costs and fees, saying in a ruling that some of Lindell’s claims against Smartmatic fall “on the frivolous side of the line.” “The Court agrees with Smartmatic that Lindell has asserted at least some groundless claims,” Nichols wrote in his ruling. “In particular, the Court concludes that at the very least Lindell’s claim against Smartmatic under the Support or Advocacy Clause falls on the frivolous side of the line (other claims do too). As a result, the Court orders Lindell and his previous counsel to pay some of the fees and costs Smartmatic has incurred defending itself and moving for sanctions,” he added. Nichols also granted motions from Smartmatic, Dominion Voting Systems and Hamilton Place to dismiss the lawsuits against them.
Arizona: After losing a bid to end early voting by going straight to the state Supreme Court, the Arizona Republican party has started a similar suit before a trial judge. In legal papers filed in Mohave County Superior court, attorney Alexander Kolodin contends the state’s Constitution requires ballots to be cast in person on Election Day. While the original lawsuit sought to completely eliminate early voting, this new one would allow for specific exceptions, such as being elderly or plans to be away on Election Day. Though arguing for some exceptions could undermine the basic arguments that the Legislature cannot allow for early voting in all cases. In the last general election, nearly 90% of all ballots were cast early.
In a tentative ruling, U.S. District Court Judge Dominic Lanza rejected claims by Mi Familia Vota and others that the 2021 law eliminating the state’s permanent early voting list unconstitutionally interferes with the right to vote. Lanza said that the statute, approved by the Republican-controlled legislature, imposes only a minimal burden. And he said the state has presented legitimate reasons, including reducing costs of having to send out early ballots to people who may not be interested in using them. But the judge said that evidence presented by challengers shows the law will have a disparate impact on different racial groups. And it’s that effect — coupled with the comments of Rep. John Kavanagh, R-Fountain Hills, that has Lanza telling the lawyers in the case that he’s inclined to let the case go forward. The law spells out that if someone does not return an early ballot in at least one of four prior elections — meaning a primary and a general election in two successive years — that person is dropped from what would no longer be called the permanent early voting list.
Nevada: Washoe County District Court Judge Egan Walker rejected a lawsuit seeking heightened observation of Washoe County’s vote-counting process. It was brought by Robert Beadles, a Washoe County Republicans central committee member and funder of opposition efforts against a number of local officials and candidates. The suit’s stated intent was to get the court to provide more clarity to legislative edicts allowing the public to meaningfully observe ballot tabulation. Defendants in the case were the Nevada Secretary of State’s office and the Washoe County Registrar of Voters, with the Progressive Leadership Alliance of Nevada signing on as an “intervenor” opposing the lawsuit. Walker said it was “clear to me” the lawsuit was not about observation but about participation because it asks the court to allow the vote counting process to be stopped at the say-so of an observer. He said the plaintiffs — Beadles and 25 additional Washoe County registered voters — seemed to want to audit the vote count rather than merely observe. “What I have is multiple plaintiffs who filed an unsworn, unverified complaint,” Walker said from the bench after a one-hour hearing, adding “I have in front of me, in fact, no competent evidence which supports the claims.”
New Jersey: The City of Newark is suing local and county election officials, demanding that all polling places be made handicapped accessible for next month’s Congressional primaries and city council runoffs, after the mayor and others said some frail or elderly voters could not cast ballots in the May 10 non-partisan municipal election. The suit, which was filed in state Superior Court in Newark on Friday, charges that the Essex County Board of Elections and other officials violated the federal Americans with Disabilities Act and a state statute requiring accessibility of polling places. It seeks an order from a judge “requiring that the Board provide handicapped accessible polling sites throughout the city.” A hearing is scheduled for May 31 before Judge Robert Gardner in Newark.
North Dakota: The Biden administration has waded into a redistricting fight in North Dakota, backing the right of two Native American tribes and several of their members to sue the state’s top election official over their claims that its new legislative districts illegally dilute Native voting power. In an amicus brief filed Friday, the U.S. Department of Justice said federal courts — including the Supreme Court — have repeatedly upheld individual citizens’ ability to challenge racially discriminatory policies and practices under Section 2 of the Voting Rights Act. By throwing its weight behind the North Dakota case, which the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe filed in February, the administration seeks to rebuke a growing view among conservatives that private parties cannot allege a Section 2 violation. North Dakota Secretary of State Alvin Jaeger took that stance in a bid to dismiss the tribes’ lawsuit last month, noting that Justice Neil M. Gorsuch has said lower courts are treating the issue “as an open question.” But the Justice Department hit back, saying it has a “substantial interest in ensuring the proper interpretation of Section 2” and arguing that the Supreme Court has twice made clear that a private right of action exists under that statute.
Pennsylvania: The U.S. Court of Appeals for the Third Circuit ruled that Pennsylvania mail ballots submitted without a date on the envelope last year should be counted. The full extent of the decision’s impact is unclear, because the court issued a judgment and said an opinion would come later. But based on the order, lawyers from both parties said, the path was suddenly cleared for counties to count the undated mail ballots they had been preparing to reject this election. The question before the three-judge panel in Philadelphia was whether to count 257 undated mail ballots in Lehigh County from last November’s general election. State law requires voters to sign and date the outside mailing envelope when they return their mail ballots, and state courts have held that the requirement means undated ballots must be rejected. But throwing out those votes violates the federal Civil Rights Act, the ACLU argued, because the date isn’t actually used in determining the legitimacy of a vote. The group brought the case, Migliori v. Lehigh County Board of Elections, on behalf of five voters whose undated ballots were to be rejected after a separate case wound through state courts. The judges agreed, declaring the date requirement in state law is immaterial under the Civil Rights Act — meaning it can’t be used as a reason to reject ballots. “Accordingly, there is no basis on this record to refuse to count undated ballots that have been set aside in the November 2, 2021, election for Judge of the Common Pleas of Lehigh County,” the judgment reads. The judges returned the case to the federal district court, “and that court is hereby directed to … enter an order that the undated ballots be counted.”
Following the Friday ruling on the 2021 ballots, Republican Senate candidate Dave McCormick filed a lawsuit in a bid to ensure certain mail-in ballots aren’t disqualified from last week’s Pennsylvania primary, in which his fight against Mehmet Oz remains too close to call. McCormick, in papers filed in the Commonwealth Court of Pennsylvania, said a number of county boards of election are refusing to count ballots that arrived in time for the primary but were missing handwritten dates on the envelopes. “These ballots were indisputably submitted on time—they were date-stamped upon receipt—and no fraud or irregularity has been alleged,” the suit says, adding that boards are refusing to count them because of the technicality.
The Commonwealth Court of Pennsylvania overturned the Secretary of the Commonwealth’s decertification of Fulton County’s voting machines and granted all counties the authority to inspect electronic voting equipment. President Judge Emerita Mary Hannah Leavitt overruled the preliminary objection, citing that “Whether prevention thereof is the responsibility of the Secretary or of the county boards of elections, or both, is not clear. Both are government agencies created by the General Assembly with discrete and separate roles to fulfill toward the end of honest elections in Pennsylvania. The county boards of elections are not bureaus within the Department of State subject to management by the Secretary of the Commonwealth. They are separate and standalone government agencies.”
Texas: U.S. District Court Judge Xavier Rodriguez has ruled that U.S. Attorney General Merrick Garland can proceed with voting and civil rights claims against Texas over a state law passed last year to address purported voter fraud. State officials had asked Rodriguez to dismiss the case, arguing that federal officials did not have standing to sue them. They argued that local election officials — not state ones — were charged with implementing the new law. Rodriguez disagreed in an order, finding the U.S. attorney general has “broad constitutional power to protect the right to vote” and is “congressionally authorized” to go after voting rights violations. The federal government had a “significant stake” in protecting “the general welfare of its citizenry,” Rodriguez wrote. He found the U.S. government had plausibly alleged that Texas law would “disenfranchise eligible Texas citizens who seek to exercise their vote,” including those with disabilities, limited knowledge of English and “members of the military deployed away from home.”
NYC Wins When Everyone Can Vote! Michael H. Drucker
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