Legislative Updates
Houston County, Alabama: Poll workers in Houston County will get a bump in pay from proposed local legislation that received support from the Houston County Commission this week. Probate Judge Patrick Davenport, whose office oversees elections, asked commissioners to adopt a resolution in favor of the local legislation, which will now have to be advertised. The pay increase would take effect for the 2024 election. Poll workers currently receive $110 for about 20 to 25 hours of work, Davenport said. The chief inspector at each polling place receives $150. Under the increases, poll workers would be paid $125 and the chief inspector would be paid $200. The local legislation also creates a deputy chief inspector position for each poll site. That individual would serve as second in command to the chief inspector and be paid $150. “We have an amazing group of poll workers that are dedicated election after election after election,” Davenport told county commissioners. “They come and serve and they spend a lot of time in training; and then as you gentlemen know, the Election Day is a long day at the polling location. We have not been able to provide them a compensation increase in some time.”
Boston, Massachusetts: Coming on the heels of legislation to lower the voting in Beantown, the Boston City Council is considering expanding the franchise to yet-to-be-determined categories of immigrants with a hearing. Councilor Kendra Lara, who represents Jamaica Plain and West Roxbury, said she will attempt to clear a path for immigrant voting, though she is still strategizing about the appropriate legal mechanism. “It’s definitely going to come in 2023,” she told GBH News, “whether it be with a home rule petition, a charter referendum or an ordinance.” How the city would define “immigrants with legal status,” Lara said, remains an open question to be solved once a proposal is put forward. A notification a hearing on the issue defined the term with several specific categories of non-citizens including “lawful permanent residents,” also known as green card holders, “visa holders, Temporary Protected Status recipients, and Deferred Actions for Childhood Arrivals recipients.”
Muskegon County, Michigan: A merger of the clerk and register of deeds offices in Muskegon County has passed a preliminary vote by the county board of commissioners. Democratic Commissioner Susie Hughes, who is the board’s vice chair, sided with Republicans in the 5-3 vote in favor of the merger. Republican board Chair Bob Scolnik was absent. Efficiencies and cost savings were cited for the reason to merge. Online options to complete business with both offices have reduced the workload, proponents also argued. During an earlier, required hearing on the matter, the board was warned by clerks and register of deeds from elsewhere in the state – including those running combined offices – not to pursue a merger because there are not cost savings. On a second reading, the bill failed to gain the two-thirds majority necessary to approve the merger, according to state law. Board Chair Bob Scolnik, who cast the deciding vote, said though he believes the offices should be merged, this was not the right time to do so.
New York City: The City Council voted to approve an elections-related bill introduced by Flushing Councilwoman Sandra Ung. The bill would simplify ballots used in ranked-choice voting (RCV) elections and the second bill would facilitate recruitment of top talent to work at city agencies. For ranked-choice voting, Intro 696 would replace the form language that the Board of Elections uses for the instructions on RCV ballots with clearer language using fewer words. The legislation also requires that non-English text be arranged so that it is easily comparable to the corresponding English text. Ung says she looks forward to these common sense ballot changes being implemented in time for the June 2023 primaries. “New Yorkers pulled off the largest ranked-choice voting election in the history of the U.S. when they went to the polls in last year’s June primary,” Ung said. “This new law will simplify the ballot and make it easier to understand, encouraging all voters, especially those with limited English proficiency, to take advantage of the opportunity to rank their preferred candidates and strengthen the democratic process.”
Ohio: A bill originally authored to get rid of certain election days has been expanded to require photo IDs for in-person voting and codifying a limit on ballot drop boxes. House Bill 458 passed the Ohio Senate on December 13 on a 24-6 vote after additions were added by the Senate Local Government and Elections Committee. Additions to the bill included requiring a valid photo ID when a person votes in person on the day of an election, and those voting absentee in person. Those who can’t show a photo ID in person will be required to cast a provisional ballot and return to the local board of elections four days after the election, a change from the previous seven days voters had to “cure” their ballot. The absentee voting period is shortened under the bill as well, with the deadline changing from three days before an election to a week before. Curbside voting will be removed as an option for many voters, according to the bill, unless the voter has a disability rendering them “physically unable to enter a polling place.” The boards of elections will now have shortened deadlines as well, specifically when it comes to counting absentee and provisional ballots. Under the bill, they will be required to start counting late-arriving and “cured” absentee and provisional ballots five days after the election, rather than the current timeline, in which they start the count 11 days after. Drop boxes are limited to one per board of elections site, a point of controversy for voting rights advocates over the years. The original bill, the language for which stayed in the version passed by the Senate, eliminates August special elections, except when a school district in fiscal emergency needs one. At 12:30 a.m. on December 15 — after an earlier break for a holiday party — the House approved the legislation by vote of 55 to 32.
According to The Columbus Dispatch, Ohio lawmakers appear to be shelving a controversial proposal that would have made it harder to amend the state constitution − at least for now. House Speaker Bob Cupp said that it’s “doubtful” lawmakers will take up the resolution this week before they adjourn for the rest of the year. The measure, if passed and approved by voters, would have required 60% of voters to enact proposed constitutional amendments, instead of a simple majority of 50% plus one. The resolution, introduced by state Rep. Brian Stewart, R-Ashville, needed to clear the state House and Senate with 60% of the vote to be placed on the ballot. Secretary of State Frank LaRose urged the Legislature to pass it before the end of the year so he could put the ballot question before voters in May.
Pennsylvania: Democratic Rep. Daniel Deasy of Allegheny County’s impending bill would enable county boards of election to establish early voting sites that would open 15 days before primary and general election dates. The sites would have uniform operating days and hours and would be required to be open at least eight hours on each weekday and a total of eight hours on weekends. Deasy said his legislation would require county election board to monitor early voters to ensure they don’t vote again at another early voting site or on Election Day. “Pennsylvania only has early voting by allowing voters to request a mail-in ballot at a county elections office, wait for it to get approved on the spot, fill it out, and turn it back in immediately,” Deasy wrote in a memo to colleagues. “I propose a devoted system of true early voting, at more locations, which will increase voting access for our constituents.”
Texas: According to NBC News, Republicans are laying the groundwork to move quickly on a number of new changes to the state’s voting laws, including a proposal to create an election police force like the one Florida enacted before the 2022 midterms. As of last week, GOP legislators had already prefiled 20 bills in the Texas House and Senate. When the legislative session begins in January, they’re likely to consider many of them seriously. Most of the bills fall into three categories: legislation that would impose harsher penalties for infractions; expand the state attorney general’s authority to prosecute election and voting crimes; and create a new law enforcement unit dedicated exclusively to enforcing and prosecuting election and voting crimes. The new bills “all kind of generally fit under the bucket of criminalizing voters and voting behavior, and just generally turn elections into crime scenes, where there is this presumption that there is some kind of widespread illegal conduct or activity, despite the fact that there is no evidence that’s the case,” said Liz Avore, a senior policy adviser at Voting Rights Lab, a nonpartisan, nonprofit organization that tracks voting and state election bills. Texas Democrats have also been busy, prefiling 42 bills already, all of which, in various ways, aim to ease existing restrictions on voting and voter registration. Advocates note, however, that most aren’t likely to advance in the state, where Republicans hold both chambers of the Legislature as well as the governorship.
Legal Updates
Arizona: Former candidate for governor Kari Lake filed a lawsuit asking the courts to set aside her electoral loss to Democrat Katie Hobbs and declare her the winner instead. If a judge won’t declare her the winner, Lake wants an order requiring Maricopa County to re-do the gubernatorial election. That filing came within a five-day window from certification of the election result that is set in Arizona law, and on the same day that several defeated Republican candidates filed their own challenges. Lake’s 70-page lawsuit includes a laundry list of problems and allegations related to the Nov. 8 election, including echoing many claims she has raised in recent weeks over long lines and printer issues creating “chaos” at voting locations. She claims “hundreds of thousands of illegal ballots infected the election in Maricopa County. The lawsuit also references issues that were raised, and repeatedly debunked, in the aftermath of the 2020 presidential contest and the subsequent Arizona Senate review of the Maricopa County election. Many of the claims in Lake’s lawsuit lacked supporting evidence, or were said to come from eyewitness or “expert” accounts that The Arizona Republic could not independently verify. The lawsuit alleges “intentional misconduct” leading to problems with machines and that ballots were “illegally injected” into the election by county contractors. She claims between 15,600 and 26,200 voters were disenfranchised by “catastrophic failures of tabulators” at Election Day voting sites, though the issues were actually with printers, and she cites an opinion poll of 800 voters as the basis to extrapolate that tens of thousands were disenfranchised.
Democratic Secretary of State-elect Adrian Fontes and Secretary of State Katie Hobbs have filed motions to dismiss Republican Mark Finchem’s lawsuit seeking to overturn his loss in the secretary of state race. Last week, Finchem and failed congressional candidate Jeff Zink filed a suit demanding the courts overturn Fontes’ and Rueben Gallego’s midterm election wins, and making sprawling claims of election malfeasance at the hands of Maricopa County and Hobbs. The lawsuit includes no evidence that ballot tabulators malfunctioned anywhere in Arizona — the issues in Maricopa County were caused by malfunctioning ballot printers — or that voters were disenfranchised. This week Finchem filed a new amended lawsuit which did not include Zink, who lost his election to Gallego, an incumbent Democratic congressman, by more than 50 percentage points. Finchem wants his election loss to Fontes overturned, a statewide hand-recount of all ballots and a court order that the attorney general investigate Hobbs for what he claims was self-dealing and threatening public officials.
California: The Kern County Elections office filed a petition with the Kern County Superior Court on Monday after discovering unopened 10 mail-in ballots they say are eligible for counting. “The Kern County Auditor-Controller-County Clerk’s office remains dedicated to counting every eligible vote cast in the November 8, 2022 General Election,” Kern County Registrar of Voters Mary Bedard wrote in a news release. “Once the ballots were determined to be eligible, we had to determine what our legal options were,” Bedard explained in a later email. “The petition was filed and press release sent out once we knew what we could legally do to remedy the situation.” The 2022 midterm election ballots were certified on Thursday and recognized at a 9 a.m. county Board of Supervisors meeting that convened a special session. The California Secretary of State will certify results on Dec. 16. The petition asks for an extension to the certification deadline, to allow the ballots to be included as “a supplement to the certification of the results.”
Colorado: A U.S. appeals court upheld nearly $187,000 in monetary sanctions against two lawyers who filed and lost an “utterly baseless” lawsuit challenging Democrat Joe Biden’s 2020 presidential win over his Republican rival Donald Trump. The unanimous ruling by a three-judge panel of the 10th U.S. Circuit Court of Appeals in Colorado said Denver attorneys Gary Fielder and Ernest Walker must pay the legal fees of election equipment maker Dominion Voting Systems Inc, Facebook parent Meta Platforms Inc and other defendants accused in the lawsuit of meddling in the election. The Denver-based appeals court affirmed the sanction based on the “inherent power” of judges and also a federal law that says a lawyer can be liable for costs for “unreasonably and vexatiously” extending a court case. “An attorney is expected to exercise judgment, and must ‘regularly re-evaluate the merits’ of claims and ‘avoid prolonging meritless claims,'” 10th Circuit Chief Judge Jerome Holmes, sitting with Circuit Judges Timothy Tymkovich and Veronica Rossman, wrote in their unsigned order. The panel called the legal arguments underpinning the case “utterly baseless.”
Michigan: The Michigan Supreme Court closed Kalamazoo lawyer and former attorney general candidate Matthew DePerno’s nationally watched lawsuit alleging Antrim County’s 2020 election was mishandled and fraudulent. A Michigan Supreme Court order denied DePerno’s final appeal after a state appeals court and a lower court dismissed the suit: “(W)e are not persuaded that the questions presented should be reviewed by this Court.” DePerno, representing plaintiff and Antrim County resident Bill Bailey, argued to the Michigan Court of Appeals that Bailey has a right to conduct an independent audit of election results. Conservative Supreme Court Justice David Viviano agreed with his colleagues in a concurring opinion Friday, although he added the high court should address proper interpretation of a citizen’s audit right. “But whatever (that right) means,” Viviano wrote, “it surely cannot be that each qualified elector can undertake his or her own separate audit of an election.”
Nebraska: The declared loser in an election for Nebraska state legislature argued in court that a machine count of ballots cast is unreliable. He is demanding state election officials stage a recount by hand; maintaining state law provides him that opportunity. Attorneys for the State of Nebraska dispute state law specifies a hand recount as an option in contested elections. Hearing the case, Lancaster District Court Judge Kevin McManaman raised questions that reflected his skepticism about the unusual request. Russ Barger of Lincoln lost the general election in Legislative District 26 to George Dungan by 224 votes, or a difference of more than 1% of the ballots cast. State law only allows for an automatic recount if the margin falls under the 1% threshold. Barger’s race does not meet that threshold, but he wants to pay for the recount with his own money. Barger’s attorney, David Begley, told the judge, “the human eyeball can catch something the machines might miss.” In an attempt to force a recount, Barger filed a “writ of mandamus,” which asks a judge to force a segment of the government to perform its duties properly. In this case, Barger argued, Nebraska Secretary of State Bob Evnen, a Republican, failed to proceed with a recount as requested. Evnen’s office oversees elections at the state level.
New York: A panel of Appellate Division, Second Department justices ruled that nearly 100 previously rejected absentee ballots cast in the race for Assembly District 23 will be sent back to the individual voters to be “cured.” The ruling opens the door for 94 ballots to be re-entered into a race where only one vote separates candidates Thomas Sullivan and Stacey Pheffer Amato, who currently holds the lead. The decision, issued after the parties argued the case on Monday, alters but doesn’t outright reject a decision issued by Queens Supreme Court Justice Joseph Risi earlier this month. Risi ordered the city’s Board of Elections to count the ballots as is, citing time concerns – it’s been well over a month since the votes have been cast. At the heart of both the appellate justice and Risi’s ruling was the fact the Board of Elections failed to notify the 94 voters that their ballots had been rejected, as they are required to do by law. “The Board failed to perform its duty under the Election Law,” the justices said in the decision. “Accordingly, the Supreme Court should have granted the petition to the extent of directing the Board to comply with [the law] by notifying each of the 94 voters whose absentee ballots were invalidated…of the invalidation of his or her absentee ballot, the reason for such invalidation, and the opportunity and procedure to cure the defect by filing a cure affirmation.” As per decision, the BOE will now be required to notify the 94 voters, and give them an opportunity to fix their ballots and finally make their voice heard in the closest race in recent New York City electoral history.
Ohio: Joshua Russell, 44 of Bucyrus was charged in federal court with making interstate threats. Russell was arrested last week and made his first appearance December 12 in Cleveland. U.S. District Magistrate Judge Jonathan Greenberg ordered Russell jailed until a hearing on his detention Thursday. His case will be likely transferred to federal court in Arizona. The charges listed in court records do not name Hobbs specifically, but quoted material in an FBI affidavit matches verbatim a threatening voicemail left at Hobbs’ Secretary of State office. Russell sent three threats to Hobbs’ Secretary of State office, the first coming on Aug. 2, according to court records. He called Hobbs a traitor and said she did nothing to protect the integrity of the 2020 election. “You better put your sh—, your f—–g affairs in order, ‘cause your days are extremely numbered,” Russell said on the voicemail, according to court records. “America’s coming for you, and you will pay with your life, you communist f—–g traitor b—h.” On Sept. 9, Russell left another message, calling Hobbs a terrorist and saying that she’s lucky she’s “still walking around on this planet,” court records say. Russell left another voicemail on Nov. 15, the day after Hobbs won the governor’s election, in which he said: “A war is coming for you. And we will stop, at no end, until you are in the ground.” He added that she’d “signed her own death warrant.”
Pennsylvania: President Judge Edward Guido has dismissed a petition to recount of votes cast at the northwestern Cumberland County polling place in the Nov. 8 election. In rejecting the petition, Guido wrote that the residents did not allege any act of fraud or error to justify a recount under the law.
Chester County Common Pleas Court Judge Jeffrey Sommer has denied the request to open ballot boxes in almost a dozen precincts across the county where Democratic candidates were overwhelming successful by voters who said they believed that election fraud had occurred there. In a withering 17-page decision, Sommer tuned aside the contentions by the voters that they should get access to the ballots to prove that there had been some sort of skulduggery in the election, evidence of which the attorney representing them said existed but which he refused to produce. Sommer filed his order denying the request “with prejudice,” meaning the litigants are legally prohibited from re-filing their demands in Common Pleas Court.
Two members of the Lycoming County Patriots group filed a suit against Lycoming County officials on Dec. 6 for failing to conduct a forensic audit of the 2020 election after they presented officials with alleged evidence of fraud. The lawsuit says the plaintiffs had shown the commissioners “evidence of fraud, numerous irregularities, and violations of the Election Code.” However, the commissioners have not done the forensic audit of the election as the group requested, nor have they investigated the fraud claims, they said. The plaintiffs are asking that the forensic audit be done by an independent third-party.
The top-ranking Republican in the Pennsylvania House of Representatives asked a court late last week to prevent voters from filling three vacant seats in February that will determine majority control of the chamber. Rep. Bryan Cutler of Lancaster, who served as speaker until Nov. 30, asked Commonwealth Court to issue an injunction, naming the Department of State, acting Secretary of State Leigh Chapman and the Allegheny County Elections Board as defendants. Cutler’s filing came days after his Democratic counterpart as floor leader, Rep. Joanna McClinton of Philadelphia, claimed the mantle of the chamber’s presiding officer and sent the state orders scheduling the elections for Feb. 7.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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