Electionline Weekly June-16-2022

Legislative Updates

Federal Legislation: Michigan Congressman Andy Levin (D-Oakland County) has introduced the Enhanced Pay for Election Workers Act in the U.S. House. It would provide states with grants to boost pay for poll workers. Levin says those workers play a key role in the infrastructure of democracy. “Election workers must be compensated adequately for their services and sacrifice,” he said. “And until that happens, we’ll have trouble retaining and attracting enough workers to run our elections properly.” Cheryl Rottmann is the city clerk in Madison Heights. She said most of her poll workers are older people, and they’re paid what amounts to minimum wage for an 18-hour day. “This legislation will also enable clerks such as myself to recruit the next generation of poll workers, and create sustainability in staffing elections,” Rottmann said.

Massachusetts: The Massachusetts Senate approved a compromise voting rights bill that would ensure mail-in ballots and early voting become permanent fixtures in future elections. The voting options proved popular in Massachusetts during the 2020 election at the height of the pandemic. The bill, which was approved by a 37-3 vote in the Senate, would also increase ballot access for voters with disabilities and service members overseas. It would also make sure eligible voters who are incarcerated can request a mail ballot and vote and would take steps to modernize the state’s election administration process. The legislation is a compromise version of separate bills approved earlier by House and Senate lawmakers. The final bill does not include any provisions that would let individuals both register and vote on Election Day.

Michigan: State Sen. Sean McCann (D-Kalamazoo), introduced Senate Joint Resolution P, to let 17-year-olds vote in a primary election if they will be 18 and eligible to vote by the date of November’s general election. “We have seen a discouraging pattern of consistently lower turnout among young voters compared to other age brackets across the country,” McCann said in a statement. “… They deserve to have an active role in our political process, and that’s exactly what this legislation is asking for.” The joint resolution would amend the Michigan Constitution – something done only 36 times since 1963 – to give primary election voting rights to those soon-to-be 18-year-olds who are Michigan residents and U.S. citizens. The legislation mirrors a House joint resolution introduced a year ago that has been in committee since February.

New Hampshire: Gov. Chris Sununu signed a bill last week to require New Hampshire voting machines to alert voters when their ballots include “overvotes,” allowing for corrections. It’s one election law that’s inspired rare agreement between political advocates according to the New Hampshire Bulleting on the left and right. Under the state’s current system for machine-counted ballots, if a voter marks their ballot in such a way that a machine thinks they may have voted for more candidates than allowed, the vote in that race does not count. Overvoting is not uncommon. The bill requires the machines to be programmed to return any ballot deemed to be an overvote to the voter. The voter would then have the opportunity to amend the ballot to make clear the candidate or candidates they wanted. The bill requires election officials to tell the voter to deposit the ballot into a separate box; all ballots in that box would then be hand counted by election officials once the polls had closed.

New Jersey: The Assembly Judiciary Committee today advanced a package of election reform bills spearheaded by Assembly Speaker Craig Coughlin (D-Woodbridge); the seven bills in the package previously cleared the Assembly State and Local Government Committee last month. Bills include: A3817, which would require early and absentee votes to be counted by election district rather than municipality, shorten the deadline for curing absentee ballots, and allow voters to apply for mail-in ballots and update their voter registration online, among other changes; Another bill would allow Boards of Elections to begin processing and counting mail-in ballots five days before election day, which could speed up the release of unofficial election results. The bill would also require mail-in ballots postmarked by election day to arrive within three days of Election Day, instead of six days as is the case under current law.

Washington: The King County Council is expected to vote on a plan that would move county elections to even-numbered years, a change aimed at increasing overall voter turnout. Supporters say the shift could boost participation, particularly among underrepresented groups, such as young people and communities of color. The proposal, from Democratic Council Chair Claudia Balducci, would amend King County’s charter so that elections for County offices happen at the same time as state and national elections, which typically see higher participation. Since 2010, voter turnout in King County has averaged 77% in even-numbered years and just 47% in odd-numbered years. City and other local elections, many of which are currently held in odd-numbered years, would not be impacted by the change.

Legal Update

Alaska: The Alaska Supreme Court reversed a lower court ruling that would have delayed the certification of U.S. House primary election results until visually impaired voters were given “a full and fair opportunity to vote independently, secretly and privately.” The state appealed the Superior Court’s decision to the Alaska Supreme Court soon after the lower court ruled in favor of a request from the Alaska State Commission for Human Rights to ensure visually impaired voters are given adequate voting access. “Where the Division has — and continues — to discriminate and effectively disenfranchise a population of voters on the basis of their disability, the law requires that it must be ordered to cease such a practice immediately, without regard to the ‘cascading’ consequences,” attorneys for the Alaska State Commission for Human Rights wrote in their filing to the Supreme Court. The commission did not immediately respond to a request for comment on the Supreme Court decision. Attorneys for the state argued that that delaying the certification of election results would have far-reaching consequences on the election. It would require delaying the special general election, currently scheduled on Aug. 16, to a later date, meaning Alaska’s lone U.S. House seat would remain vacant for a longer period. It would also force that election — the state’s first under ranked choice voting — to be held entirely by mail. An explanation for the Supreme Court’s decision “will follow at a later date,” according to the court’s order, issued late Saturday morning.

Arkansas: Republican state House candidate Jody Harris filed a lawsuit to throw out the primary results that show her losing by seven votes. The race in House District 25 took place in three counties: Crawford, Franklin and Washington. The lawsuit disputes the count by the Crawford County Election Commission. The case was filed in Franklin County, citing Arkansas Code 7-5-801(b). The law says an election contest of a district office may be brought in any county in the district. Certified results in all three counties together show Puryear winning 2,211 votes to Harris’ 2,204 in the May 24 primary. The suit disputes the counting of absentee ballots in Crawford County. By law, the suit contends, absentee ballots should have been counted first but weren’t counted until other results were in and until a pro-Harris poll-watcher demanded it. Then they were mishandled while being counted, according to the suit. Those absentee ballots made the difference in the race, the suit contends. The suit asks the court to void the House 25 race results but doesn’t seek specific relief beyond that. What happens if the election is declared void is up to the court now, a spokesman for the Arkansas Secretary of State’s office said Tuesday. The lawsuit notes that the Election Commission’s chairman is Bill Coleman, brother of Rep. Bruce Coleman, R-Mountainburg, who didn’t seek reelection in the district and who declared his support of Puryear. Bruce Coleman donated $1,000 to Puryear’s campaign, finance records show.

Florida: The Fifth Circuit State Attorney’s Office completed its investigation into voter fraud in Lake County during the 2020 general election. The investigation began after Gainesville-based database researcher Mark Glaeser cross-checked Florida voter lists against the FDLE’s public Florida Sexual Offenders database. Through his research, he found that six registered sex offenders in Lake County cast ballots. Ultimately, office decided it would not file charges. “In all of the instances where sex offenders voted, each appear to have been encouraged to vote by various mailings and misinformation,” Jonathan Olson, the office’s division supervisor and an assistant state attorney, wrote in a statement. “Each were given voter registration cards which would lead one to believe they could legally vote in the election. The evidence fails to show willful actions on a part of these individuals. Therefore, the State is unable to file charges.”

A federal appeals court will hear arguments in September in a battle about the constitutionality of a 2021 Florida elections law. Arguments are scheduled during the week of Sept. 12 in Miami, according to a notice issued Friday by the 11th U.S. Circuit Court of Appeals. Attorneys for the state, county elections supervisors and national Republican organizations went to the appeals court in April after Chief U.S. District Judge Mark Walker ruled that the law was unconstitutionally intended to discriminate against Black voters. The appeals court last month put Walker’s ruling on hold while the underlying appeal moves forward. That decision cleared the way for the controversial law to be in place for this year’s elections.

Michigan: Judge Mark Goldsmith has rejected Perry Johnson’s request to halt ballot printing so the disqualified gubernatorial candidate could argue why he should be included on the August primary ballot. Johnson was disqualified after a review of bureau of elections found nearly 9,400 of this 23,000 signature he submitted were fraudulent. He needed 15,000 in order to appear on the August primary ballot. Goldsmith rebuffed each part of Johnson’s argument, writing the candidate had more than enough time to challenge the decisions, and failed to cast reasonable doubt on the bureau’s approach to checking for falsified signatures. “The BOE staff employed eminently reasonable procedures to give Johnson’s petition a fair and particularized review while operating on a tight timeline to advance important and compelling state interests,” Goldsmith wrote in the order. Ballot printing is already underway for Oakland County, the state second-most populous, said director of elections Joe Rozell. He said being forced to reprint ballots would’ve been impossible as their printer “did not have enough paper on hand to reprint of a county our size.” If Johnson’s request had succeeded, Oakland County Clerk Lisa Brown, a Democrat, said the county would have failed to meet requirements under the law and state constitution. Ballots must be given to local clerks by June 18.

Mississippi: A June 2020 ruling on a petition filed contesting the City of Greenville’s Dec. 9, 2019, municipal elections in Wards 1 and 6 has been affirmed by the Mississippi Supreme Court. “After taking into consideration all of the testimony, petitions, responses, and affidavits, the circuit court granted Brock’s and Wilson’s motions for summary judgment. We affirm,” Justice J. Ishee wrote. Oliver Johnson, who lost to then Ward 1 incumbent Al Brock by nine votes, and Chauncy Wright, to then Ward 6 incumbent James Wilson by 88 votes, consolidated their petitions filed in Washington County Circuit, which claimed multiple voting irregularities. Both parties conducted an examination of the ballot boxes on Dec. 17, 2019 according to court documents. Johnson then filed his petition to contest the election in Ward 1 on Dec. 27, 2019 and Wright filed his election contest on Dec. 30, 2019. Court documents state Johnson and Wright both “made similar claims of alleged voting irregularities, including but not being limited to, procedural violations of election officials of dealing with affidavit ballots, distance limitations, improper poll watcher actions.” After a May 2020 hearing at which the parties were allowed to offer testimony, the circuit court concluded that “Johnson and Wright had failed to provide proof to establish that any of the conduct complained of caused their election losses and that to conclude otherwise would be sheer speculation.” Based on what Justice Ishee stated further, Johnson and Wright needed to exhibit sufficient evidence to establish the essential element of their election contest claim that the alleged voting improprieties that occurred during the election impacted the number of votes each of them received.

New Mexico: Secretary of State Maggie Toulouse Oliver asked the state Supreme Court to order the Republican-led commission of rural Otero County to certify primary election results after it refused to do so over distrust of Dominion vote-tallying machines. Toulouse Oliver’s request came a day after the three-member Otero County commission, in its role as a county canvassing board, voted unanimously against certifying the results of the June 7 primary without raising specific concerns about discrepancies. Under state law, county canvass boards can call on a voting precinct board to address specific discrepancies, but no discrepancies were identified on Monday by the Otero commission. “The post-election canvassing process is a key component of how we maintain our high levels of election integrity in New Mexico and the Otero County Commission is flaunting that process by appeasing unfounded conspiracy theories and potentially nullifying the votes of every Otero County voter who participated in the primary,” Toulouse Oliver said in a statement. She accused the commission of willful violations of the state election code. Otero County Commissioner Vickie Marquardt laughed at the suggestion that a court might intervene in the election dispute. “And so then what? They’re going to send us to the pokey?” she said. Late Wednesday, the Supreme Court ordered the county commission to comply with state law and certify the election. The commission has until Friday to meet and certify the election or presumably face a contempt of court charge. Commissioner Couy Griffin told NM Political Report that he plans to “hold the line.” “What the state is trying to do to us by leveraging us, and taking control, essentially, of our commission board through the courts, I believe, is very unconstitutional and it’s an absolute disgrace.” Toulouse Oliver said the state is already in “uncharted waters” after the commission refused to follow state law, but that she is not sure what would happen if the commission does not follow the court’s order. “At this point, the presumption, of course, is that the board of canvas, aka, the county commission will convene to certify by the deadline,” Toulouse said. “I have no doubt that their attorney is advising them of their mandatory, non-discriminate, non-discretionary duty and the supreme court order. If they don’t, to be very frank, I don’t know what will happen.”

New York: An intermediate level court rejected a lawsuit filed by the League of Women Voters to consolidate New York’s party primaries to a single Aug. 23 date. The legal challenge to the duel primaries was filed last month by the good-government organization against the state Board of Elections after New York’s top court tossed out the state lawmaker-drawn district lines for the U.S. House seats in New York as well as the state Senate. Because of the looming primary, a lower court moved the vote for those races to August, severing them from the already scheduled June 28 for the races unaffected by the redistricting ruling. The League of Women Voters had argued the two primaries would be a costly burden for taxpayers and local elections officials. But the state Board of Elections argued the case would make the elections even more expensive given the ballots had already been printed, and staffing already planned. A five-judge panel ultimately agreed the legal challenge was filed too late. “Such delay was entirely avoidable and undertaken without any reasonable explanation,” the court found. The state Court of Appeals rejected an appeal of the lower court’s ruling. The Court of Appeals did not give a reason for denying an appeal.

Ohio: The Geauga County Board of Elections has sued the county commission over whether or not it must pay for critical logistical and design issues the board says have still not been resolved. In the filing to Geauga County Common Pleas Court Judge Carolyn Paschke, the BOE claims commissioners failed to account for several critical aspects of the administration of elections in the design of the new county building on Ravenwood Drive. The BOE believes is a complicated and unfit layout for early voting and other election business, and has inadequate storage space for “100 DS-200 voting machines, 40 Express Vote machines, 372 privacy booths, 79 ballot boxes and a very large supply of tables, A-frame signs, cabinets, cones, poles and pole bases, flags, carts, work lights, yard signs, among other equipment and supplies necessary to conduct a county-wide election.” Additionally, the BOE is requesting the court force payment for a chemical fire suppressant system that would not damage the board’s voting machines in case of an emergency.

Pennsylvania: The U.S. Supreme Court cleared the way Lehigh County to count mail-in ballots that do not comply with a state law requiring voters to write the date on the ballot’s envelope. Although the case arose from a single local judicial race, it raised broader issues about how federal voting-rights protections apply when voters fail to meet state clerical requirements — a conflict that may crop up again in this year’s midterm elections. In an unsigned and unexplained order, the justices rejected an emergency appeal from a Republican candidate who currently holds a narrow lead in a 2021 race for a judgeship on a Lehigh County trial court. The candidate, David Ritter, wanted the justices to block the local board of elections from counting ballots that were received by Election Day but arrived in undated envelopes. Justice Samuel Alito dissented from the ruling, in a five-page opinion that was joined by Justices Clarence Thomas and Neil Gorsuch. He urged the court to take up the case on the merits and fast-track it for an argument in October so that it can resolve the issue before the November elections.

Lehigh Valley state Senate primary finally has a winner, now that a mail-in ballot lawsuit is settled. Tara Zrinski conceded to Nick Miller in the Democratic primary race for the 14th District. Only 40 votes separated them. Zrinski conceded after it became clear a lawsuit to count 260 improperly submitted mail-in ballots would not save her campaign. “Today we secured a huge victory for the voters of Lehigh and Northampton County. While the results of the May election will not be affected by this settlement, these new measures will help protect future elections from being called into question due to uncounted ballots, and help ensure voters understand what they need to do to comply with the law. This settlement does not solve all of the issues with Pennsylvania’s voting laws. However, we believe this is a huge step in the right direction and hopefully the General Assembly will use the recent voter lawsuits as the impetus for major voting reform in Harrisburg,” Attorney Matthew Mobilio said. The federal lawsuit had said mail-in ballots mailed in without the secrecy envelope and those not received by Election Day in the May primary election should be counted immediately. The suit was filed on behalf of nine voters, who the suit says are among the more than 260 voters in the 14th Senate District whose ballots were deemed invalid for those reasons. The settlement means the primary election results will be certified, without the 260 improper mail-in ballots.

Rhode Island: The commissioner of education has agreed to create a civics task force as part of an agreement to end a federal lawsuit brought by students across the state. The federal lawsuit, filed by 14 students nearly four years ago, argued that the state had violated their rights under the U.S. Constitution by failing to provide them with an adequate civics education. Although the suit was ultimately unsuccessful in federal court, the plaintiffs achieved similar results by working with the state Department of Education. Education Commissioner Angélica Infante-Green announced the creation of a civics readiness task force that will study whether to add a half-credit course in civics in grades eight and high school, encourage students to have respectful conversations on difficult topics, provide instruction on voter registration, and add a seal of civics readiness to the high-school diploma. Although both parties disagreed on the constitutional issues raised by the lawsuit, they never differed on the value of offering a rich civics education to all students.

Texas: The Texas Supreme Court issued a ruling on the term “solicit” as it pertains to the state’s new election code. In Senate Bill 1 passed last August, a new Texas election code provision states that it is a civil and felony crime for public and elected officials to “solicit” voters to request a mail-in ballot if the voter did not request it, punishable by six months in prison and fines up to $10,000. The U.S. Fifth Circuit of Appeals sent a series of questions to the Texas Supreme Court ahead of issuing its final ruling on the case. Of three main issues, one raised several questions pertaining to the definition of “solicit.” The questions arose after the plaintiff, Harris County Elections Administrator Isabel Longoria, argued the vagueness of the term. In one argument, Longoria’s attorneys requested that the term “solicit” be tethered only to vote-by-mail applications sent to those ineligible voters. State justices rejected that request. “The statute does not prohibit solicitation merely of those ineligible to vote by mail. Its text leaves no doubt that the prohibition extends more broadly to the larger universe of persons who ‘did not request an application,’” the opinion read. In a second request, Longoria’s team argued that “solicitation” in its broad definition could include terms that are less forceful in nature, including “encourage” or “request. While justices refrained from defining “solicit,” stating they were not requested to, they agreed with Paxton that “solicit” is not limited to demands that a person submit an application to vote by mail, but includes statements such as “please fill out this application to vote by mail.” But justices did find that telling potential voters they have the opportunity to apply for mail-in ballots does not constitute solicitation. “The Legislature intended to distinguish between merely informing Texans of the option to vote by mail and soliciting them to submit an application to vote by mail when they have not requested one,” the opinion read. “Without expressing an opinion as to any particular statement plaintiffs may wish to make, we conclude that (the law) does not include broad statements such as telling potential voters that they have the opportunity to apply for mail-in ballots.”

Virginia: U.S. District Judge David Novak agreed to an accelerated schedule for a new lawsuit that seeks to force members of Virginia’s Republican-controlled House of Delegates to face unscheduled elections this fall. House elections in 2021 were supposed to be the first held under constitutionally required redistricting based on the 2020 census. But because census results were delayed by the COVID-19 pandemic, the state held elections under old legislative boundaries. A lawsuit filed by a Democratic Party activist a year ago was dismissed last week by a three-judge panel that found Goldman did not have standing as a voter or a potential candidate to file the lawsuit. Days later, Jeff Thomas, an author who has written extensively about Virginia government and politics, filed a similar lawsuit. Thomas alleges that the 2021 House elections were invalid and asks the court to order new elections this year under the updated districts. WRIC-TV reports that during a hearing, Novak ordered an expedited schedule for Thomas’ lawsuit and criticized former Attorney General Mark Herring’s office for delaying the earlier lawsuit with appeals before the issue of Goldman’s standing was decided. “It is really just not appropriate, the way they handled this case,” Novak said of Herring’s office.










NYC Wins When Everyone Can Vote! Michael H. Drucker