Electionline Weekly December-8-2022

Legislative Updates

Boston, Massachusetts: By a 9-4 vote, councilors passed a petition to allow Boston residents aged 16 and 17 to vote in municipal elections, as long as they meet all other legal qualifications. “We have a lot of young people who are working — oftentimes two jobs — just to help support their families, paying taxes and on the front lines protesting and trying to find ways to have their voices heard. And every day we make decisions on their behalf,” said Councilor Julia Mejia, who co-sponsored the petition. Mostly supported by the council’s growing number of progressive members, the docket now makes its way to Mayor Michelle Wu’s desk. If Wu signs off on the home rule petition, it gets passed along to the state Legislature. Mejia expressed some concern about the petition gaining state approval, saying “We know what happens at the State House — most things go there to die.”

New York: Gov. Kathy Hochul (D) has signed a bill into law meant to ensure votes cast by affidavit ballot are still counted, even if the voter appears at the wrong polling place. Votes would still be eligible if the ballot was cast in the correct county and state Assembly district, addressing an issue known as “wrong church, wrong pew” voting. “Access to the ballot box shouldn’t be held up by complicated and unclear voting processes,” Hochul said. “New York continues to lead the nation in taking critical steps forward to protect the fundamental right to vote. My administration is committed to empowering voters and improving the state’s electoral process, which has disenfranchised too many New Yorkers for too long.” The law will require the county and canvassing of affidavit ballots, and not have their vote automatically invalidated.

Ohio: Ohio Republican lawmakers are considering significantly tightening the window by which mail-in ballots must arrive in order to be counted. Under a new version of an elections bill amended by a state Senate committee on Tuesday, mail ballots, also called absentee ballots, would have to arrive by 7:30 p.m. on Election Day in order to be counted. Under current law, absentee ballots can arrive within 10 days after Election Day and still be counted, as long as they are postmarked by the day before the election. The Senate Local Government Committee announced the proposal to end the 10-day acceptance window on Tuesday as it unveiled changes to House Bill 458, which otherwise would largely ban August special elections.

Pennington County, South Dakota: A letter presenting proposed changes to South Dakota election laws was approved by the Pennington County Board of Commissioners this week. The letter, drafted by Pennington County Commissioner Travis Lasseter and addressed to Gov. Kristi Noem, senators and representatives, the South Dakota Secretary of State and the State Board of Elections, proposed establishing a post-election audit, strengthening codified law language pertaining to voting equipment, and tightening residency requirements for voter registrations, among other things. The draft letter was first presented to the board of commissioners at a special meeting on Oct. 26, a meeting called at the request of evangelist and election integrity skeptic Matthew Monfore to address “elections and machines in Pennington County.” The letter’s original draft outlined five points: establishing a post-election audit committee or post-election criteria for the state, strengthening the requirements of SDCL 12-17B-2, strengthening residency requirements for voter registration, improving voter roll updates, and establishing harsh penalties when election laws are broken. The letter also proposed requiring voters to establish residency for 30 days prior when registering to vote. The letter’s fourth point proposed establishing “harsh penalties” when election laws are broken, reading “public trust will be maintained or restored when they see the law has a penalty if not followed.” The fifth point recommended reviewing the South Dakota voter registration form, to add clarity to the form’s Box 12 — an addition to the original draft letter. Box 12 includes the form’s signature box, as well as an explanation of what the voter is attesting to. The updated draft also removed language about voter roll updates.

Texas: Half of the state’s 36 public universities have on-campus voting sites. Two Democratic Texas state senators, Nathan Johnson of Dallas and Jose Menendez of San Antonio have filed Senate Bill 118. It would place at least one polling site for schools with at least 5,000 students, two for universities with 10,000 and one extra site for every additional 10,000 students. Johnson says “we talk all the time about trying to cultivate civic engagement, trying to get young people to vote. Everybody talks about it. Make it easier for them to vote.” He says small cities like La Grange in Fayette County have four polling locations serving about 4,000 people, while the University of Texas at Austin has two polling locations that serve 52,000 people. “A lot of these kids don’t have cars so they can’t drive somewhere else to vote.”

Legal Updates

SCOTUS: The Supreme Court declined to take up a case brought against Dominion Voting Systems and Facebook after the 2020 election by a group of voters who claimed the companies illegally “influenced or interfered with” the contest. Lower courts had previously rejected the case, ruling that the eight voters lacked the procedural threshold – known as standing – needed to bring the suit against parties including the Center for Tech and Civic Life, Meta CEO Mark Zuckerberg and his wife Priscilla Chan. “The court’s refusal to take up this case is no surprise; the lower courts threw it out because the plaintiffs didn’t have standing, and, even if they did, their claims are frivolous,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. “The fact that no justice even asked Dominion or the other defendants to respond to the petition says everything that needs to be said about how seriously they took this appeal – which is to say, not at all,” Vladeck added.

California: In a tentative ruling, Judge James Chalfant granted supporters of the recall of Los Angeles County District Attorney George Gascón greater access to some voter records as part of their review of signatures on their recall petition. Supporters hope to find enough that were improperly invalidated to reverse the decision by Dean Logan, L.A. County’s Registrar-Recorder/County Clerk, to rule their effort failed to qualify for the ballot. Chalfant said he issued the ruling because at the current pace, the recall committee wouldn’t be able to finish its review for another 18 months. “The Committee has the right to timely determine if the Recall Petition merits a recall election. Without a preliminary injunction, the Committee’s review is expected to take until May 2024,” Chalfant wrote. While declining to set specific access requirements, the judge said he wants the two sides to work together to ensure the recall supporters can complete their review by March 31. He did rule that the registrar must provide access to signatures on file of voters whose signatures were invalidated because of a mismatch.

Colorado: Lawful votes are unconstitutionally discarded in Colorado, often because a voter’s signature doesn’t match what’s on file, according to a lawsuit filed in Denver District Court late last week. The signature match requirement is meant to prevent voter fraud, since mail or at-home voting takes place away from a polling site. But, the lawsuit said, fraud is extremely rare, and ballot rejections disproportionately impact diverse communities, disabled people and the youngest and oldest voters. “For the vast majority of Colorado voters who vote by mail this fundamental right is contingent on an arbitrary, deeply flawed signature matching process,” read the lawsuit. “While ostensibly deployed to verify voter identity, signature matching is election integrity theater: it disenfranchises qualified voters by the tens of thousands, all for the appearance — but not the reality — of election integrity.” The lawsuit notes that actual voter fraud is exceedingly rare. A spokesperson for Secretary of State Jena Griswold released a statement: “The Department of State is currently reviewing the lawsuit and will defend Colorado law requiring mail ballot envelopes to be signed. Colorado ensures the constitutional right to cast a ballot, including by giving voters 8 days after an election to fix any signature discrepancy.”

A group of voters has filed an emergency petition with the Colorado Supreme Court over the CD3 automatic recount. The petitions, filed by attorney Gary Fielder on behalf of electors in Mesa, Garfield, Alamosa, Eagle and Pueblo counties, ask the court to determine that Secretary of State Jena Griswold exceeded her rule-making authority and violated election law concerning how pre-recount testing of machines is to take place. The petitioners argue that the logic and accuracy testing of voting devices she ordered to take place for the recount was not the correct method of pre-recount testing. Instead, they said, the law requires a comparison of actual voter-verified paper against a voting machine’s tabulation, which would either validate the machine’s accuracy, or, when there are discrepancies, create the presumption for a recount by hand. Although a recount can be conducted in the same manner as the original election if the comparison between manually counted ballots and the machine’s tabulation is identical, that’s not the case when there are discrepancies, the petitioners argued.

Florida: Circuit Judge Laura Anne Stuzin has tossed out another voter fraud case brought by Gov. Ron DeSantis’ elections police, the third case to fall apart since the governor announced the arrests. Stuzin reached the same conclusion as another Miami judge did in a different voter’s case, saying that statewide prosecutors didn’t have the ability to bring charges against Ronald Lee Miller. Because he was convicted of second-degree murder in 1990, Miller, 58, was ineligible to vote. But after his voter registration application was cleared by the Florida Department of State, Miami-Dade’s supervisor of elections issued him a voter ID card, and he voted in November 2020. Statewide prosecutors said Miller’s alleged crimes happened in multiple jurisdictions because he registered to vote through a third-party voter registration organization, which sent the application to Broward County’s election supervisor, which was then sent to Tallahassee. Stuzin flatly rejected that argument in a brief three-page order, writing that state law governing the statewide prosecutor “is clear on its face and unambiguous.” Miller “never physically entered” Broward or Leon counties and “never mailed or electronically transferred anything” to either of those counties, she ruled.

Georgia: Cobb Superior Court Judge Kellie Hill agreed to approve a consent order to extend the absentee ballot return deadline for Cobb County voters whose applications were received on or before Nov. 26, in response to a lawsuit over alleged delays by the county in mailing out the ballots. Two absentee voters represented by the American Civil Liberties Union of Georgia sued the Cobb County Board of Elections after the department allegedly failed to send out over 3,400 absentee ballots on time for the runoff election. It’s the second time the department has been sued over the same issue — after failing to send out more than 1,000 absentee ballots in the November general election. The election board’s attorney, Daniel White, said the lawsuit is “factually incorrect” and that all the absentee ballots were sent according to the legal deadlines. “We disagree that they were untimely mailed. They’ve all been mailed,” White said. “There’s no statute that’s been violated in terms of the deadlines.” Georgia law requires issuance of absentee ballots within three business days of receiving the application during the advanced voting period. But during the runoff, thousands of ballots marked as issued on Nov. 23 still had not been received by voters in early December, according to the lawsuit.

Kansas: The American Civil Liberties Union of Kansas, the Campaign Legal Center, Loud Light and Elias Law Group are asking the U.S. Supreme Court to reverse the Kansas Supreme Court decision upholding the state’s newly enacted congressional maps. In a filing last month, the groups asked the high court to consider whether the 14th Amendment prohibits racial discrimination in redistricting when a minority group is not large enough to make up the majority of a district. “If the Kansas Supreme Court’s opinion were to stand it would make it basically impossible to raise an intentional discrimination claim under our equal protection laws,” said Sharon Brett, legal director at the ACLU of Kansas. It’s unclear if the court would take on the case or when they will make that decision.

Mississippi: Not every felony conviction in Mississippi involves people losing their voting rights, but 22 of them do. However, some legal groups say that constitutional provisions in the state must be reviewed and struck down. “Mississippi is keeping a provision of the 1890 constitution in place that everyone agrees was racially discriminatory when it was adopted,” described Deputy Director of Impact Litigation for the Mississippi Center for Justice Paloma Wu. The Mississippi Center for Justice is asking that the U.S. Supreme Court take a look at the case involving Mississippi disenfranchising crimes. Other legal groups have filed similar cases that are also still caught up in court. And two of those groups, including the Southern Poverty Law Center, signed a brief last week encouraging the justices to consider this issue. There has been a simultaneous push for lawmakers to get rid of the ban while it’s pending in the judicial system. “You would like to see us take action to do this,” noted the Director of Political Campaigns for the Southern Poverty Law Center Action Fund, Brandon Jones. “But in the absence of that, we would like to see the courts take this way, put us on the same footing that other states have with a reasonable restoration process.”

Nebraska: A Legislature candidate has sued Secretary of State Bob Evnen to force a hand recount in the race. Russ Barger, a candidate for the District 26 legislative seat, which represents northeast Lincoln, filed the lawsuit on Monday. His opponent, George Dungan, won by 224 votes, which is just over the margin needed to require an automatic recount. In the lawsuit, Barger said he filed a petition for a hand recount to Evnen last Friday but was denied the request. Instead, Evnen said the recount would be done by a vote-counting device on Thursday, according to court documents. Barger then filed the lawsuit, hoping a court would force the state to do a hand recount of the legislative race. Barger’s lawyer, David Begley, has asked the court to make a decision by Dec. 20. “The Secretary of State is required to certify the election results by December 20. His interpretation of the relevant statute renders many parts of the statute meaningless,” Barger said in a press release. “Clarification of the rights of candidates is important for this race and future races. An election contest lawsuit should not be necessary to secure a hand count. But that will be the only possibility for a hand count, if the court adopts the Secretary of State’s interpretation.”

New Hampshire: Michael Drouin, 30, of Merrimack has been indicted on one felony count of interference with election communications related to the April 13, 2021, Hillsborough District 21 special election. The indictment alleges violation of RSA 659:40-a, interference with communications, a Class B felony. The charge alleges that on election day Drouin knowingly blocked the phone of Republican House candidate Bill Boyd, who ultimately won that day, with the intent of interfering with campaign activity. The class B felony carries a penalty range of 3½ to seven years in prison and a fine of up $2,000 and if convicted, Drouin will lose his right to vote.

New Jersey: Mercer County Assignment Judge Robert Lougy has ruled that Trenton must hold runoff elections for three at-large city council seats after none of the candidates reached the 50% + 1 threshold in last month’s election. Lougy has ordered a runoff election for January 24 and ordered the runoffs for the North and South Ward council seats, which had not been part of the lawsuit seeking an at-large runoff, to be held on the same day. Voting in already underway in the North and South Ward contests after election officials began mailing vote-by-mail ballots earlier this week. It’s not immediately clear if those ballots will be counted, although Lougy ordered a new ballot draw and the preparation of ballots that include the at-large seats. Trenton City Clerk Brandon Garcia had certified the results of the November 8 non-partisan municipal election based on numbers provided to him by Mercer County election officials. But on Thursday afternoon, just two hours before a court hearing was set to begin, County Counsel Paul Adezio filed a revised certification showing that the county was able to establish the total number of voters in the at-large race. “Per the clearest statutory command, petitioners are entitled to a runoff,” Lougy wrote in his decision. “The delating of the runoff election affords enough time for election officials that voters across the city have fair and equal access to the right to vote.”

Pennsylvania: Judge James Lillis tossed recount petitions filed by the Berks County Republican Committee. The petitions, which were filed last month on behalf of 94 voters who alleged that voting machines were changing votes cast for Republican candidates to Democrats on the ballot, delayed the certification. The GOP claimed some voters had pressed the button for one candidate and the machine lit up another, forcing them to re-select their pick. The party sought a recount in 30 of the county’s precincts. County officials said it was possible to miss the button, but they were confident nobody’s vote was changed.

Two voters identifying themselves as members of the conservative Lycoming County Patriots organization want the court to order a third-party forensic audit of the November 2020 election results in the county. Richard Houser and Catherine Burns in a suit filed this week in county court claim they have shown the county commissioners over the past 14 months evidence of fraud, irregularities and violations of the Election Code. Their suit names as defendants the county, its three commissioners, board of elections and elections director Forest Lehman. Houser and Burns in their suit seek a court order requiring the Elections Board to report all suspicious activity uncovered by the forensic audit to the district attorney.

Virginia: Prince William County Judge Carroll A. Weimer, Jr. dismissed lawsuits two local Republican election integrity activists brought against Eric Olsen, the county’s director of elections, and the county Electoral Board. The suits urged the court to undo the certification of the county’s Nov. 8 election results, direct that hand recounts be conducted in certain precincts and order that all equipment used in the election be secured and analyzed by a third-party to ensure “full transparency.” Following a nearly 3-hour hearing, Weimer ruled that the lawsuits were without merit and dismissed them “with prejudice,” meaning they can’t be refiled.










NYC Wins When Everyone Can Vote! Michael H. Drucker