Electionline Weekly June-3-2022

Legislative Updates

Arizona: Gov. Doug Ducey vetoed legislation which would have required county election officials to cancel the registration of anyone they determine is not qualified to vote. The move, the first of the governor this session, came amid concerns from county officials that what was in HB 2617 could lead to mischief as it would allow individuals to make unsubstantiated claims that some people on the voter registration rolls should be removed. Jennifer Marson, executive director of the Arizona Association of Counties, said that, in turn, would trigger automatic investigations.

California: Ojai is considering becoming California’s first “general law” city to have ranked-choice voting. The City Council on May 24 discussed the possibility of making the change from district-based voting but took no action. In California, only charter cities are authorized to convert to ranked-choice voting, according to an Ojai city staff report. As a general law city, Ojai must follow the state election code requiring candidates to be elected in a traditional plurality voting system. In 2019, the Legislature passed a bill that would have given general law cities, counties and school boards the option to adopt ranked-choice voting, but Gov. Gavin Newsom vetoed it. City Attorney Matthew Summers said Ojai could be sued for even asking voters to consider ranked-choice voting. “Someone might try to pull it off the ballot contending we don’t have the right,” Summers said. “Folks have filed (lawsuits) to stop somebody from even going to the voters so I can’t say that there’s no risk.” Putting the question to voters on the November ballot would cost the city $30,000, he said.

District of Columbia: Earlier this year, Ward 2 Councilmember Brooke Pinto introduced a piece of legislation that would allow for mobile voting in the District. Ward 6 Councilmember Charles Allen, who oversees the committee that would take up the legislation is opposed to the plan and now Bradley Tusk, a venture capitalist and head of Tusk Philanthropies that is pushing the mobile voting option is planning a “significant, five-figure ad campaign to launch next week” pressuring Allen to at least hold a hearing on legislation aiming to let D.C. voters cast their ballots from their phones by 2024, a spokesperson for the group tells The Washington City Paper. Allen spokesperson Erik Salmi previously told the Washington Post that he wouldn’t advance the bill because “he has heard from numerous elections and cybersecurity experts, as well as residents, with serious concerns” about the wisdom of pursuing electronic voting before the technology has matured to allow it to happen securely.

Louisiana: A Senate committee advanced a bill by conservative lawmakers aimed at limiting the right to vote in Louisiana to U.S. citizens. House Bill 178, authored by Rep. Debbie Villio, R-Kenner, proposes a constitutional amendment to make it clear that in Louisiana someone must be a citizen of the United States to register to vote. Without the amendment, local governing authorities have the power to allow non-citizens the right to vote. Louisiana Secretary of State Kyle Ardoin supported the bill. Some argued that the bill is a solution searching for a problem. The House had passed the bill 72-17.

Maryland: Gov. Larry Hogan (R) vetoed several elections-related bills in his final year as governor. One bill Hogan vetoed would have allowed election workers to open ballots and begin processing them up to eight business days before the first day of early voting. And for this summer’s primary only, workers also could have begun tabulating those votes — without releasing the results — before polls closed on primary day, according to an analysis of the bill. Another bill Hogan vetoed was tor a voter who failed to sign the envelope containing their absentee ballot, the elections boards would have been required to notify them and give them up to 10 days to correct the mistake by sending in a picture of their signature by email, mail or coming in person. Starting June 1, 2023, they even would have been able to text a picture of their signature to elections officials. In his veto message, Hogan said he supports the earlier canvassing timeline and allowing voters to correct their signature-less ballots. But he said he was rejecting the bill because it lacked any way to verify the signatures in that process. “[A]s our vote by mail numbers rise, the missing piece in this legislation is that balance — for even the appearance of impropriety or the opportunity for fraud can be enough to undermine citizens’ confidence in their electoral system,” he wrote.

Michigan: The House Elections and Ethics Committee recently approved a plan introduced by Republican State Rep. Ann Bollin that aims to help local communities struggling to find suitable locations to conduct elections. She says the reform has long been a priority for Michigan’s municipal clerks. Bollin, a former Brighton Township clerk, is sponsoring House Bill 6071 to expand their options. Currently, school buildings, fire stations, police stations and other publicly owned buildings must be used as polling locations. If it is not possible or convenient to use a publicly owned building, a township or city may opt to use a building owned by a non-profit entity. House Bill 6071 would expand the options to include a privately owned building such as a banquet center or a recreation clubhouse, as long as the building is not owned by a candidate for office or someone who runs a political action committee. The measure received unanimous approval from the committee last week and advances to the full House for further consideration.

Nevada: Raja Mourey, a Republican candidate for state senate, has filed a proposed ballot measure with the Nevada Secretary of State. If successful, the statutory ballot measure would require voters to present valid photo identification when voting in local and federal elections. Voters who don’t have a valid ID could request a “special identification document” with the voter’s photo and signature that could only be used for voting purposes. The ballot initiative is being supported by a political action committee dubbed R.I.S.E. Nevada – Restoring Integrity in State Elections. Signatures for statutory initiatives must be submitted to counties for verification no later than Nov. 23 in order to appear before the 2023 Legislature, which would have 40 days to approve the initiative If the Legislature approves the initiative, it becomes law. If they reject the initiative or fail to take action, the initiative goes before voters at the next general election, which would be in 2024.

New Jersey: A measure that would have allowed election officials to count early votes before the polls close on Election Day failed to advance after opposition from Republicans and a single Democrat. The bill stalled after a 20-16 vote in the upper chamber but was pulled from the agenda without the voting period being closed, a move that allows the bill to return at a future session without being reintroduced. Bills need yes votes from a majority of a chamber’s members — in this case, 21 — to succeed. The measure would allow election officials to begin tallying early in-person votes the day before an election and cleared officials to canvass mail-in ballots up to 10 days before an election. Supporters say it would allow election officials to finalize races sooner.

A measure awaiting action by state lawmakers would combine the election dates for town offices with those for state offices in what supporters call an effort to fuse voter participation. Under the proposal, the elections for town and county offices would be shifted from odd-numbered years to even-numbered years, putting them in sync with elections for state legislative seats and contests for governor, attorney general and state comptroller. The lead sponsor of the legislation, Assemblywoman Amy Paulin, D-Scarsdale, said in the justification section of the measure that New York has experienced a pattern of low voter turnout in local elections. But leaders of the state Republican and Conservative parties argue the proposal is really aimed at making it difficult for non-Democrats to get elected to local offices in a state where the GOP is at a distinct disadvantage when it comes to voter enrollment.

North Carolina: A Republican-sponsored House bill introduced last week would require the N.C. Department of Health and Human Services to send death certificate notices directly to county boards of elections. House Bill 1069 has as its primary sponsor Rep. Lee Zachary, R-Yadkin, whose district includes a portion of western Forsyth County. Another primary sponsor is Jeffrey Elmore, R-Wilkes. The one-page bill has been placed in the House Elections Law and Campaign Finance Reform committee. If recommended by that committee, it would go to House Rules and Operations. It would be effective immediately if it becomes law. Zachary said his legislative office’s research “indicated that the two biggest problems with voter rolls in North Carolina are failure to purge deceased persons and failure to remove folks who have moved.” The death certificate notifications would be sent monthly to the board of elections where the deceased person resided. The monthly list would be based on death certificates reported to DHHS during the preceding month. Upon receiving the death certificate notification, county elections boards would have 30 days to remove the deceased person from the voting rolls, along with certifying the removal with the State Board of Elections.

Ohio: The House has given the green light to a proposed constitutional amendment that, if passed by the Ohio Senate, would allow the state’s voters to cast ballots this November to determine whether to prohibit non-U.S. citizens from voting in all elections held in Ohio. It is already illegal for non-citizens to vote in state and federal elections but it is not as clear cut for local areas. The Ohio Constitution provides home rule authority to municipalities and chartered counties. In 2020, the Ohio village of Yellow Springs adopted an ordinance allowing non-citizens to vote. At that point, Secretary of State Frank LaRose, a Republican, ruled non-citizens in that community could neither register to vote nor vote. Backers of this proposed amendment say the concern is that a future secretary of state might view the issue differently. This proposed constitutional amendment is meant to take local control away from that situation.

Lawmakers are moving to spend $20 million to hold a special primary election on Aug. 2. In a 31-1 vote, the Senate approved the extra funding, sending it to the House for consideration. They added it to an unrelated bill awarding $422 million in federal coronavirus relief funds to townships and other local governments. Ohio is holding a second primary because delays in redistricting, the regular process of redrawing state legislative districts, resulted in new maps not being ready in time for the regular May 3 primary election, when Ohio otherwise held elections for statewide and federal offices.

Legal Updates

Alabama: A losing Republican candidate for governor has sued state officials for using electronic voting machines, saying the machines are vulnerable to manipulation and that their use violates the due process rights of voters. Plaintiff Lindy Blanchard asks the court to block Alabama from using electronic machines in the general election in November. She asked the court to require the state to count paper ballots by hand through a process spelled out in the lawsuit. The lawsuit names as defendants Secretary of State John Merrill, the state’s top election official. Also named as defendants are five officials who are members of the Alabama Electronic Voting Committee, a panel created by the Legislature to evaluate and certify voting systems. “Electronic voting machines cannot be deemed reliably secure and do not meet the constitutional and statutory mandates to guarantee a free and fair election,” the lawsuit claims.

Arizona: The Republican Party has restarted its lawsuit to end early voting, but Attorney General Mark Brnovich has dropped out of the case. The decision not to defend the early voting system came from a mutual agreement between the Republican Party of Arizona, which filed the complaint, and the Attorney General’s Office, court records show. According to the Arizona Republic, it is not clear who initiated the move to leave the lawsuit. In a filing to the Mohave County Superior Court, state Solicitor General Brunn W. Roysden III stated the Attorney General’s Office agrees to be bound by the outcome of the lawsuit, including any appeals. The state GOP moved their lawsuit challenging the constitutionality of early voting to Mohave County after the state Supreme Court last month declined to take up the matter, saying it needed to start in a lower court. A hearing is scheduled for June 3.

California: Superior Court Judge Michelle Williams Court has overturned the results of a Compton city council race that was decided by one vote following an election rigging scandal. Two-term Councilman Isaac Galvan must be replaced by his challenger, Andre Spicer, after a judge determined that four of the votes cast in the election were submitted by people who did not live in the council district that the two men were vying to represent, according to a 10-page ruling. Prosecutors alleged that Galvan conspired with primary opponent Jace Dawson to direct voters from outside the council district to cast ballots for Galvan in the June runoff against Spicer. Galvan was also accused of trying to bribe an elections official with concert tickets, according to the criminal complaint. The official immediately reported the attempt, according to Dean Logan, the county’s top elections official.

Colorado: The federal appeals court based in Denver has agreed with a trial judge’s decision dismissing a lawsuit that claimed the 2020 election was rigged by Dominion Voting Systems, Facebook and others. Eight voters from across the country filed a lawsuit after the 2020 presidential election alleging various types of election interference and seeking $160 billion in damages. In April 2021, U.S. Magistrate Judge N. Reid Neureiter dismissed the case after finding the plaintiffs had no standing, which requires a specific injury attributable to the defendants. A three-judge panel of the U.S. Court of Appeals for the 10th Circuit upheld Neureiter’s dismissal order on Friday, without addressing the specific claims in the lawsuit. “Accordingly, no matter how strongly plaintiffs believe that defendants violated voters’ rights in the 2020 election, they lack standing to pursue this litigation unless they identify an injury to themselves that is distinct or different from the alleged injury to other registered voters,” wrote Judge Timothy M. Tymkovich in the panel’s May 27 order.

Connecticut: The seven-year-old case in which Stamford’s former Democratic Party chief allegedly forged absentee ballots is moving toward trial. John Mallozzi is charged with 14 counts each of filing false statements and second-degree forgery in the 2015 municipal election, when Stamford voters chose candidates to fill seats on the Board of Representatives, Board of Finance and Board of Education. It came to light after a Stamford man went to vote at his polling place in District 8 on Nov. 3, 2015 but was told he’d been recorded as having already voted by absentee ballot. When poll workers checked the man’s signature against the one on his supposed absentee ballot, they found that the handwriting was different. The incident was reported to the State Elections Enforcement Commission, which traced the man’s irregular absentee ballot, and 13 others, to Mallozzi. After a 20-month investigation, SEEC officials reported their findings to the state’s attorney in Stamford. Mallozzi was arrested in January 2019 and pleaded not guilty two months later. The status of the case is listed as “jury trial” on the Connecticut Judicial Branch website, and the next court date is July 26.

Illinois: A lawsuit filed by three Illinois Republicans argues that the state should not count mail-in ballots that arrive after the date of an election. The suit was filed in federal court in Chicago on behalf of Rep. Michael Bost from Carbondale, a state GOP committeeperson Laura Pollastrini and Susan Sweeney who was one of the state’s Republican presidential electors in 2020. A spokesman for the Illinois State Board of Elections said that it does not comment on pending litigation. The suit asks a judge to prevent election authorities from counting mail-in ballots that arrive in the days following in-person voting, arguing that a ballot “is not a legal vote unless it is received by Election Day.” Illinois law directs local election authorities to count ballots postmarked by the date of an election and received within two weeks of the election.

Kentucky: Fayette Circuit Judge Thomas Travis ordered that ballots cast in the Lexington 4th Council District race during the recent primary election be secured in preparation for a recount. Travis set a June 10 hearing to determine when the recount should occur and which ballots will be counted. During the May 17 primary, due to an error with new paper ballots, more than 30 people voted in the wrong council district. The snafu was discovered four hours after voting started and corrected, according to Fayette County Clerk Don Blevins Jr. The unofficial results show the three candidates in the non-partisan race were separated by less than 50 votes.

Mississippi: U.S. District Judge Carlton Reeves dismissed a lawsuit accusing Mississippi of using a discriminatory proof-of-citizenship requirement for some new voters under a law dating back to the Jim Crow era. The dismissal came weeks after the state repealed a 1924 law that required naturalized citizens, but not people born in the U.S., to provide proof of citizenship when registering to vote. Two groups, Lawyers Committee for Civil Rights Under Law and the Mississippi Center for Justice, sued the state in 2019 on behalf of the Mississippi Immigrants Rights Alliance and the League of Women Voters of Mississippi. “No state in the United States other than Mississippi subjects naturalized citizens to a higher proof-of-citizenship requirement for voter registration than U.S.-born citizens,” the lawsuit said. This week, the plaintiffs and the defendants, including the secretary of state’s office, both asked U.S. District Judge Carlton Reeves to dismiss the suit. He quickly granted the request.

New Jersey: Superior Court Judge Michael O’Neill upheld a decision by the Hunterdon County Board of Elections to reject Julia S. Kerr’s mail-in ballot because her signature didn’t match others on file. At 93, Kerr cast her final vote by mail in the November 2021 election just a month before her death. Because her signature on her ballot didn’t match the one on file and because she was no longer alive to verify the signature, the county board of elections rejected the ballot. “There was one on file from October of 2019, which you know was a very unsteady handwriting — that particular signature — and then the certification voters signed … has a very, very smooth and clear signature,” O’Neill said. “The defendants point out that clearly these signatures don’t match, and I agree.” O’Neill pointed to testimony from Kerr’s grandson, Ryan, who said the signature was too neat to be his grandmother’s and that “somebody may have signed for her.” “Unfortunately, Mrs. Kerr passed away on December 5, 2021, so she wasn’t available here at the time of trial to come in and either confirm or not confirm that she intended to vote for the referendum or that that was her signature on the ballot,” O’Neill said. “We don’t know at this point how she would have voted, but we certainly don’t know for sure at any event because the cure procedure set forth in the statute was not complied with.”

Superior Court Judge Robert Gardner refused to issue an order compelling the Essex County board of elections to make all Newark polling places handicapped accessible for the June 7 statewide primary and three city council runoffs on June 14. Newark’s top lawyer, Corporation Counsel Kenyatta Stewart, said the judge told the parties he expected the Board of Elections to fulfill its obligations to uphold the voting rights of Newark residents, and he would allow the board to do so voluntarily. If there is an accessibility issue or other problem on election day, Stewart said Gardner informed the parties that he would be the judge on duty to address them.

Pennsylvania: The U.S. Supreme Court temporarily blocked a lower court order on the counting of undated mail ballots in the Senate GOP recount. The two-sentence order — issued by Justice Samuel A. Alito Jr., who oversees emergency matters arising from Pennsylvania for the court — threw a new variable into the high-stakes contest by blocking undated ballots from being counted in an unrelated election from Lehigh County last November. According to the Philadelphia Inquirer, the immediate impact of Alito’s order on the Senate race remains to be seen. It focused solely on the counting of votes in a contested 2021 judicial race in Lehigh County. But much like the lower court ruling that prompted Alito’s intervention Tuesday, its repercussions could reverberate widely.

While action was taking place on undated ballots in Washington, D.C., the Commonwealth Court was hearing a case brought by GOP Senate Candidate Dave McCormick to count the votes. McCormick is currently trailing by 922 votes as the state is set to begin a recount. According to elections officials, there are about 800 ballots that arrived on time, but with no date. For about 3 1/5 hours, the McCormick campaign and Dr. Oz campaign argued about whether the ballots should or should not count. The state also argued for the ballots to count, but the state GOP argued against it. After the arguments and rebuttals, the judge adjourned without deciding.

Ohio: A divided three-judge panel of the U.S. District Court for the Southern District of Ohio ordered Ohio to hold an Aug. 2 primary using the third set of Statehouse maps approved by the Ohio Redistricting Commission, despite a rebuke of the plan by the state’s high court. That deadline will be missed, as the GOP-controlled commission did not schedule any meetings. “We recognized from the outset that choosing a remedy would be challenging,” Circuit Judge Amul Thapar said in the 2-1 majority opinion. “And between the standoff among state officials and the delay in getting the case, our options were limited,” Thapar wrote. “So we chose the best of our bad options.” Federal Judge Algenon Marbley dissented in Friday’s ruling, pointing out that the state Supreme Court reiterated this week that the third map remains unconstitutional. The best option remained the map drawn by two experts, one selected by Republicans, one by Democrats, Marbley said.

South Dakota: Judge Lawrence Piersol, of the United States District Court for the District of South Dakota ruled that the South Dakota Secretary of State’s Office is not following federal laws requiring state agencies to make it easier to register to vote. Piersol issued a wide-ranging opinion that sided with two South Dakota tribes, the Rosebud Sioux and the Oglala Sioux. The tribes brought suit in 2020, arguing that the Secretary of State’s Office was not adequately addressing federal law. The National Voter Registration Act requires state agencies to help voters register to vote when they interact with government agencies for other services. Licensing and public benefits are under the auspices of the Department of Public Safety and the Department of Social Services. Piersol found that the Secretary of State’s Office was not providing enough oversight to ensure those offices were fulfilling their responsibility under the act. Piersol also found that the Department of Public Safety was responsible for transmitting voter registrations to the county auditor, but numerous errors were stopping that process from happening. Piersol also ruled that when the Department of Public Safety contracts with other government agencies to provide licensing services, the department is still obligated to comply with federal voter registration requirements. Such so-called “issue sites” include the office in Dupree, South Dakota in the Cheyenne River Sioux Reservation. “To the extent an issue site provides driver’s licenses services, it must comply with NVRA, and the state cannot avoid this responsibility because the ‘issue site’ is run by an agency other than DPS,” Piersol wrote.

The Lower Brule Sioux Tribe has filed suit over the timeframe of a redistricting map that would change the way candidates are elected to the Lyman County Commission. The lawsuit, filed May 18 in federal court, alleges that a delay leaves Native Americans unrepresented in county government for the next two years and under-represented for another two years thereafter. Historically, the commissioners in Lyman County have been elected by district, but since the 1990 census, the county has instead selected their commissioners on an at-large basis. Since the release of 2020’s census data, the Lyman County Commission seeks to revert to a district-style election, adopting a new plan where members will be elected from two multi-member districts. Despite an effective date of June 4, 2022, the county said they need more time to update voter registration software, and will run this year’s election as an at-large race. “The current at-large method of electing members of the Lyman County Board of Commissioners dilutes Native American voting strength,” the lawsuit reads. “… [In addition,] the Board’s decision to delay implementation of its new redistricting plan was adopted with a discriminatory purpose.”

Texas: The U.S. Supreme Court rejected a request from three Texas lawmakers to put off their depositions in lawsuits seeking to block redistricting legislation in that state. There were no dissents noted from the brief order, which clears the way for the depositions to go forward next month. The order came in a dispute that arose after the Texas legislature’s October 2021 adoption of new maps for congressional and state elections. Ten different lawsuits followed, filed by individual voters, civil rights groups, and the U.S. Department of Justice, alleging that the maps violated Section 2 of the Voting Rights Act, which bars racial discrimination in election policies. As part of their case before a three-judge district court, the challengers want to depose Texas legislators about the process that led to the new maps and the legislators’ motives in adopting them. The district court denied the legislators’ motion to put the depositions on hold, and the U.S. Court of Appeals for the 5th Circuit on May 20 turned down a request to postpone the depositions.

Washington: Attorney General Bob Ferguson said this week that his office won court sanctions against an attorney behind a post-2020 presidential election lawsuit alleging state officials were illegally registering non-citizens to vote, and said he will also ask bar officials to discipline the lawyer. Ferguson said the Washington Supreme Court last month ordered lawyer Virginia Shogren to pay nearly $19,000 in attorney’s fees for violating a rule against frivolous appeals. The court also directed Shogren’s client in the lawsuit, the Washington Election Integrity Coalition United, to pay about $9,500 in costs. Five of the court’s justices last month granted a request from Ferguson’s office to grant sanctions against the plaintiffs, after the state attorney general argued the lawsuit violated the rule against frivolous appeals.

Wisconsin: Dane County Circuit Judge Stephen Ehlke ruled this week that there was nothing illegal in the grants provided to local elections by the Center for Tech and Civic Life during the 2020 election cycle. “Certainly nothing in (state law) prohibits clerks from using private grant money or working with outside consultants in the performance of their duties. … The bottom line is that the (Wisconsin Elections) Commission correctly concluded that there was no probable cause to believe any Wisconsin law has been violated,” Ehlke ruled from the bench. Other courts, including the Wisconsin Supreme Court and a federal court in Washington, DC have thrown out similar cases.










NYC Wins When Everyone Can Vote! Michael H. Drucker