Legislative Updates
Anchorage, Alaska: In a quick vote with very little discussion, the Anchorage Assembly voted 11-1 to make changes to the municipal code, making the creation of a fraudulent public record a Class A misdemeanor. The ordinance was also postponed from the previous Assembly meeting because of concerns about certain language in it. But this week the legislative counsel and municipal attorney agreed the language in it is strong and specific enough to where a person could not be charged for doing something accidentally; intent would have to be proven. This all goes back to October when the Anchorage ombudsman concluded the city’s information technology director created an unofficial IT policy, and then leaked that policy to a campaign activist to challenge the results of last April’s election. The Alaska Court System states a person convicted of a Class A misdemeanor could be sent to jail for as long as a year, and/or have to pay up to $25,000 in fines. The approved ordinance considers interference to include destroying, suppressing, concealing, removing or impairing the legibility or availability of a public record that omits or prevents the making of an accurate, public record. The Assembly also approved proposed amendments to the election observer’s handbook.
Massachusetts: The House passed legislation that would require all employers to give their workers time off to vote in state and local elections. The bill cleared the chamber with no debate, no roll call vote and just a handful of the chamber’s 159 lawmakers present for an information session. Without discussion, lawmakers passed the bill (H 4217) during an informal session, about 90 minutes after the House Ways and Means Committee released it. Employees who don’t have enough time to vote at the polls outside of their working hours can request time off and give their bosses three business days’ notice, according to the bill. Employers cannot force employees to vote by mail or during early voting under the legislation, which is based off a Rep. John Lawn proposal. The bill also gives the attorney general enforcement authority. “The legislation that was advanced by the House today will help to guarantee that every Massachusetts voter has time to vote on Election Day, regardless of the constraints of their job, a critical step towards ensuring that every eligible voter has the chance to make their voice heard at the ballot box,” Speaker Ron Mariano said in a statement. The Joint Committee on Labor and Workforce Development favorably reported a version of the bill last session, but the House Ways and Means Committee took no action on it. Existing state law allows workers in only specific industries — including “in any manufacturing, mechanical or mercantile establishment” — to take time off for voting. But employers have discretion whether they pay their workers or not.
Ohio: A bipartisan pair of Ohio senators want to shield election officials’ addresses from public records requests. Sens. Theresa Gavarone, R-Bowling Green, and Bill DeMora, D-Columbus, would extend a protection already provided to police and court officials to Ohio election workers. The proposal’s changes are very straightforward. An existing public records exemption bars access to information like the residential address or phone number of “designated public service workers.” That exemption extends to their spouses and children as well. The list of such workers is already pretty long. In addition to police, parole, and corrections officers, it includes prosecutors, judges, and other court officials. Firefighters and EMTs are eligible, too. And the same protections even extend to pharmacy board members and psychiatric hospital employees among others. “This bill would simply add our full-time election workers to this list,” DeMora said, going on to note the bill came from a National Conference of State Legislatures meeting. “Election workers are vital to the functioning of our state,” he said. “I think this is the minimum we can do to ensure that their job of (providing) fair and safe elections can continue.” “This is not a red or blue issue — this is a public safety issue,” Gavarone insisted. “The increased political polarization of our country has put our election officials in danger this legislation will give those people the peace of mind they deserve.
Legal Updates
Federal Litigation: Former President Donald Trump asked the U.S. Supreme Court to steer clear of an unprecedented appeal that could resolve whether he is entitled to immunity from criminal charges over his role in attempting to overturn the 2020 election. The extraordinary appeal was filed this month by special counsel Jack Smith, who in August secured a four-count indictment against the former president and 2024 GOP frontrunner for conspiring to steal the 2020 election. Before a lower court could consider those charges, Trump claimed he was immune from prosecution. “The question stands among the most complex, intricate, and momentous issues that this court will be called on to decide,” Trump’s attorneys told the Supreme Court. Given that, they said, the decision should be resolved in a “cautious, deliberative manner − not at breakneck speed.” According to USAToday, if the Supreme Court agrees to take the case now, the decision would have enormous consequences for Trump’s extensive legal woes. The question is one of several pending before the nation’s top court that is thrusting the federal judiciary into the uncomfortable position of deciding questions that could determine Trump’s viability for a second term.
Arizona: Lawyers for Kari Lake told Maricopa County Superior Court Judge Jay Adelman that the defamation suit against her by Maricopa County Recorder Stephen Richer should be thrown out because the failed Republican candidate for governor believes her statements about injected ballots and sabotaged voting machines in the 2022 election she lost are true. Jennifer Wright said that Richer, in pursuing his claim, has to prove Lake acted with “actual malice,” meaning that she knew or should have known that her statements were false. “But not only does Kari Lake believe what she said is true, she will testify as such and will defend accordingly,” she told the judge. “But not only does Kari Lake believe what she said is true, she will testify as such and will defend accordingly,” she told. Jessica Banks, an Arizona State University law student who also is on Lake’s team, says her client is protected by the state’s anti-SLAPP law.
Closing arguments were heard this week in a federal voting rights trial that challenged two Arizona laws aimed at reducing the number of non-U.S. citizens voting in Arizona elections. Despite widespread claims of mass voter fraud pushed by Kari Lake and other Arizona politicians, only two cases exist in Arizona in which a non-citizen is accused of voting, according to court records. Neither case has resulted in a conviction and both are under seal. The attorney general has made only 38 prosecutions involving election fraud since 2008, none of which involve non-citizens. State attorney Josh Whitaker agreed that “evidence of non-citizens voting in America is very rare,” but said that doesn’t negate the need to increase voter confidence — something the two laws in question are purported to do. The laws, House Bill 2492 and House Bill 2243, which passed in 2022 but are blocked pending a verdict in the case, would require already registered voters to show proof of citizenship to remain registered to vote in presidential elections or vote in any federal election by mail, and require county recorders to terminate registration of anyone who hasn’t provided the necessary documents. The laws also call for an investigation of anyone whom a county recorder “has reason to believe” is not a citizen. Nearly a dozen voting advocacy groups, backed by the U.S. government and the Democratic National Committee, brought multiple lawsuits in response to the laws before they were consolidated in this case. The collective plaintiffs argue the laws will unnecessarily burden those who are already eligible to vote but don’t have access to the required documents: a birth certificate, passport, driver’s license, tribal identification number or a naturalization number. That group is disproportionately made up of Latino voters and voters born outside of the U.S. The defendants, including the state of Arizona, all 15 county recorders and the Republican National Committee, argue that the requirements will only improve election integrity and voter confidence. U.S. District Judge Susan Bolton said back in she expects she’ll reach a verdict by March. Until then, neither law will take effect.
Amy Martin, a Florida-based lawyer, has filed complaints against more than a dozen judges who presided over cases involving the 2020 and 2022 elections. In Martin’s complaints to the Commission on Judicial Conduct, she says those same judges presided over cases involving election years where they were also on the ballot. However, none of those judges had their own elections challenged. Nor did the litigants in any case at hand raise the issue. Judges are assigned cases at random by a computer algorithm. The commission’s executive director couldn’t recall an instance where a judge was found to have violated rules by not disqualifying themselves.
Colorado: Richard Patton, 32,was accused of tampering with a voting machine at the Pueblo County election office shortly before polls closed during the June 28, 2022, primary. He was arrested Nov. 3 of last year and charged with tampering with voting equipment and computer crime, but his case is now slated to be dismissed in Pueblo District Court. His case was the first in the state to be charged under a law the Colorado Legislature passed in 2022 that strengthened election security and heightened criminal penalties for tampering with election equipment. Judge William Alexander ordered a mental health evaluation of Patton’s competency to stand trial in November 2022, upon request from Patton’s public defender. Patton was found incompetent to stand trial and Alexander ordered Patton to undergo outpatient mental health treatment to restore his competency in early January. Court minutes from a hearing on Dec. 15 show that Patton’s case is being dismissed because the court found his competency is “not restorable in the foreseeable future.” Tenth Judicial District Attorney Jeff Chostner confirmed with the Chieftain that the judge’s latest ruling pertains to Patton’s mental competency. “Our office takes election tampering very seriously and accordingly charged Mr. Patton with this offense under the relevant Colorado statute,” Chostner told the Chieftain in an email.
Connecticut: Federal prosecutors have decided not to appeal a ruling by a federal judge dismissing the major charge against a former city councilman accused of absentee ballot fraud. U.S. Attorney Vanessa Robert Avery on Tuesday filed notice with the U.S. Second Circuit Court of Appeals that she is withdrawing her appeal of an earlier ruling by U.S. District Judge Victor Bolden. That ruling dismissed the first count of the indictment against Michael DeFilippo charging DeFilippo with engaging in a conspiracy against constitutional rights by interfering with qualified voters’ right to vote and have their undiluted votes counted in his election to the Bridgeport City Council. The appeal had put a halt to DeFilippo’s trial which had been scheduled to begin before a jury on Sept. 18. The U.S. Attorney’s Office declined comment on its decision to withdraw its appeal.
Georgia: A jury awarded $148 million in damages to two former Georgia election workers who sued Rudy Giuliani for defamation over lies he spread about them in 2020 that upended their lives with racist threats and harassment. The damages verdict follows emotional testimony from Wandrea “Shaye” Moss and her mother, Ruby Freeman, who tearfully described becoming the target of a false conspiracy theory pushed by Giuliani and other Republicans as they tried to keep then-President Donald Trump in power after he lost the 2020 election. According to the Associated Press, there was an audible gasp in the courtroom when the jury foreperson read aloud the $75 million award in punitive damages for the women. Moss and Freeman were each awarded another roughly $36 million in other damages. “Money will never solve all my problems,” Freeman told reporters outside Washington’s federal courthouse after the verdict. “I can never move back into the house that I call home. I will always have to be careful about where I go and who I choose to share my name with. I miss my home. I miss my neighbors and I miss my name.” District Judge Beryl Howell ruled this week that Giuliani must immediately pay the sum an eight-person jury awarded last week.
Ruby Freeman and Shaye Moss have again sued the former New York City mayor seeking to “permanent bar” him from making additional defamatory comments about them. In a 134-page complaint filed this week, attorneys for the two women wrote that Giuliani “continues to spread the very same lies for which he has already been held liable,” citing comments made last week to ABC News’ Terry Moran outside of court, in which Giuliani insisted that Freeman and Moss were “changing votes.” The two women asked the court to prevent Giuliani from “making or publishing … further statements repeating any and all false claims that plaintiffs engaged in election fraud, illegal activity, or misconduct of any kind during or related to the 2020 presidential election.” In a separate court filing in their initial defamation case, attorneys for Freeman and Moss warned a federal judge that “there is a substantial risk” that Giuliani will attempt to avoid paying the women, and asked the judge to “permit immediate enforcement” of the $148 million judgment for fear that Giuliani could attempt to “find a way to dissipate [his] assets before plaintiffs are able to recover.”
A federal appeals court in Georgia has rejected a bid by former Trump Chief of Staff Mark Meadows to remove his Fulton County election interference case into federal court, affirming a lower court’s decision that left it in state court. In its opinion, the appeals court found that “the events giving rise to this criminal action were not related to Meadows’s official duties.” The decision said that “even if Meadows were an ‘officer,’ his participation in an alleged conspiracy to overturn a presidential election was not related to his official duties.” Meadows was seeking to remove the case based on a law that calls for the removal of criminal proceedings when someone is charged for actions they allegedly took as a federal official acting “under color” of their office.
Kansas: The Kansas Supreme Court reinstated a lawsuit by four voter turnout organizations seeking to invalidate a state law that makes it a felony to impersonate an election official. The state’s top court overturned a 2022 appellate court finding that the organizations didn’t have standing to pursue their challenge of the statute because they don’t engage in deceptive practices and didn’t face a credible threat of prosecution. This was incorrect, according to the high court, because the organizations’ volunteers are frequently mistaken for election officials when they try to register voters. This is not because they try to impersonate election officials but is the result of “innocent listener mistake,” which is usually quickly cleared up if the people they seek to register ask them. Still, the organizations claim they have had to curtail their activities because they fear they could face prosecution based on such innocent listener mistakes. And the Kansas Supreme Court agreed the statute’s language is too ambiguous to infer that the organizations have nothing to worry about. “The statute simply does not provide clarity that truthful speech which generates an innocent or unreasonable listener mistake is outside of its scope,” the high court wrote. “And this is sufficient to confer pre-enforcement standing.”
Attorney General Kris Kobach issued a nonbinding legal opinion arguing state law required officials engaged in post-election audits to rely on original paper ballots instead of making use of optically scanned images of those ballots. Kobach, who previously served as secretary of state, published the assessment in response to concern expressed by Republican state legislators and election fraud conspiracy theorists. The issue emerged because officials in Kansas counties with substantial populations sought efficiencies by turning to electronically stored copies of ballots when engaged in spot audits. The attorney general said in the opinion that election clerks performing post-election audits weren’t at liberty to substitute printed copies of ballot images. “Reasonable people may disagree on how audits should be conducted, but the Legislature was quite clear in its language,” Kobach said. “The original paper ballots must be used.” Clay Barker, general counsel to Secretary of State Scott Schwab, said optical scans of ballots were generated by a few counties with large populations to speed processing of votes, but a paper version of every Kansas ballot was retained. He has suggested the Legislature consider amending state law to affirm counties had the option of deploying computer technology in support of post-election audits.
Louisiana: The U.S. 5th Circuit Court of Appeals has denied the state’s petition to try to halt a redistricting lawsuit based on an unusual argument that says private individuals don’t have the right to sue over voting rights. Other aspects of the Robinson v. Ardoin lawsuit remain pending in the 5th Circuit, but Friday’s ruling is a win for the Black voters who brought the case in early 2022 after Republican lawmakers adopted a congressional map with just one Black district out of six despite the state having a population that is one-third Black. Louisiana Secretary of State Kyle Ardoin is the lead defendant in the case. He and other state Republican leaders appealed a lower federal court ruling that ordered lawmakers to redraw the districts. The defendants grounded one of their arguments in a recent 8th Circuit Court of Appeals ruling that advocates and court watchers have called radical in the way it circumvents the Voting Rights Act. The 8th Circuit panel held that only the U.S. attorney general — not private individuals or organizations — can challenge redistricting maps. An overwhelming majority of voting rights lawsuits have come from private organizations such as the NAACP and American Civil Liberties Union. After the state filed that petition, the U.S. Department of Justice joined the case on the side of the Black voters, effectively neutralizing the state’s argument. The Louisiana Legislature has until Jan. 30, 2024, to draw a new congressional map with two majority-Black districts or else go to trial in a federal court that has previously ruled GOP lawmakers likely gerrymandered the districts to dilute the voting rights of Black residents.
Lawrence, Massachusetts: An elected official and another woman have been indicted on voter fraud charges following last month’s municipal election in Lawrence, Massachusetts. The office of Essex County District Attorney Paul Tucker said Wednesday that a grand jury had indicted City Councilor-elect Fidelina Santiago and Jennifer Lopez. Each faces the same 16 charges, including four counts each of illegal voting or attempt to vote; conspiracy to vote or attempt to vote illegally; unlawful interference with voters; and obstruction of voting. Santiago won her race in District A on Nov. 7, according to the city’s official election results, receiving 537 votes while her opponent, Vladimir Acevado, received 385. Prosecutors did not immediately share details of the allegations against Santiago and Lopez, but noted that they investigated after a referral from the office of Secretary of State William Galvin regarding “concerning allegations of fraudulent voting associated with the November 2023 local election.”
Minnesota: Anoka County Judge Thomas Lehmann as thrown out a lawsuit that challenged the quicker restoration of voting rights to Minnesotans convicted of felonies. Lehmann’s 11-page order dismissed the case on multiple grounds. It was an attempt to scuttle a new law approved this year and that allowed some previously ineligible voters to cast ballots in the municipal elections. Lehmann ruled that the plaintiffs do not have legal standing to sue, and they failed to prove that lawmakers acted outside their authority. “The major premise of this argument is fundamentally flawed,” the judge wrote in his order. He cited a 2023 Minnesota Supreme Court ruling that deferred to the Legislature to determine when voting rights were renewed. The voters alliance plans to appeal. A lawyer for the group, James Dickey, said it would try to skip one appellate court along the way. “We are disappointed with the Court’s decision, but we intend to appeal as soon as possible and seek accelerated review from the Minnesota Supreme Court,” said UMLC Senior Counsel James Dickey. “We think this is an important issue of constitutional interpretation, and the people of Minnesota deserve to know what their constitution means before the 2024 election.” Minnesota Attorney General Keith Ellison says he is happy the efforts were rejected.
Nebraska: Chief U.S. District Judge Robert Rossiter Jr. said a federal appeals court decision may have “thrown a wrench in the works” of a proposed settlement of a voting rights lawsuit filed by two Indian tribes and individual tribal members against Thurston County. The Winnebago and Omaha tribes and the individuals last month reached an agreement with the county on a map with redrawn county board of supervisors districts that would give Native Americans a majority of voters in five of the seven districts. All that remained was a judge’s approval. Rossiter was inclined to accept the settlement, but a November ruling by the 8th U.S. Circuit Court of Appeals in which the court said Congress did not give private plaintiffs the ability to sue under Section 2 of the Voting Rights Act could affect the proposed settlement. The tribes’ lawsuit and the settlement rely heavily, but not exclusively, on Section 2, Rossiter said. “In light of that groundbreaking ruling and the questions left open by that case, the court would like the parties to weigh in on the continued viability of their joint motion and the proposed consent decree in its current form,” Rossiter wrote in an order filed in U.S. District Court in Omaha. The judge asked both parties to file briefs by Dec. 27, and he would then decide after reviewing them if a hearing is needed.
North Carolina: Voting rights groups sued the North Carolina Board of Elections in federal court this week claiming that the three new election maps drawn by GOP lawmakers in October is a racial gerrymander. The suit is the third that claims new voting districts violate the Voting Rights Act. According to Courthouse News Service, the most comprehensive lawsuit over the maps so far, the North Carolina NAACP, along with NC Common Cause and eight Black residents say that the General Assembly targeted Black voting precincts to hinder Black voters’ ability to elect candidates of their choice. In the suit, the plaintiffs note the extreme lack of transparency in the drawing of the election maps. When the 2023 North Carolina budget passed, it contained a provision that removed redistricting records from public record, reversing four decades of tradition. In previous years, election maps were publicly drawn on live streams and available for public viewing; the new election maps currently in place were drawn with very little opportunity for public input. The plaintiffs claim the new congressional, state Senate and House election maps violate the 14th and 15th amendments and Voting Rights Act by diluting the voting power of Black voters, which is consistent with North Carolina’s history of racial gerrymandering. “Discriminatory election laws in North Carolina have largely been and continue to be successful in suppressing Black votes,” the plaintiffs say in the lawsuit. “Statewide, the candidates of choice of Black voters have had less electoral success, especially in the last decade.” They want a three-judge panel to hear the case.
Ohio: In a new federal lawsuit, voting rights groups say that a recently passed Ohio law which makes it a felony for someone other than a postal worker or a close relative to handle someone’s absentee ballot illegally discriminates against disabled people. The ACLU of Ohio and the Ohio League of Women Voters want a federal judge to strike down the absentee ballot restriction, contained in House Bill 458, a sweeping elections law signed by Gov. Mike DeWine in January that made other changes like requiring voters to show a photo ID to vote in person. The lawsuit was filed this week with the Northern District of Ohio, court records show. It said there are disabled voters who lack nearby close relatives as defined by state law — these include parents, siblings, spouses, step-parents, uncles and aunts, while the law excludes cousins and grandchildren — and who also lack access to a mailbox or transportation to get to their polling place. The lawsuit says the requirement violates the Voting Rights Act and makes it a crime for groups like the League of Women Voters to help voters who need assistance to vote. “Ohioans with disabilities often rely on support from their communities to ensure their voices are heard in elections,” Jen Miller, executive director for the League of Women Voters of Ohio, said in a statement. “To make it a crime to help your grandparent or neighbor exercise their right to vote is antithetical to democracy.”
Pennsylvania: Delaware County Common Pleas Judge James P. Bradley has ruled that a Democratic-led county council can’t pick whoever members want to represent the Republicans on the county Board of Elections. Bradley issued an order this week granting a preliminary injunction against Delaware County Council from enforcing any provision from Ordinance 2023.1 that would allow Delaware County Council from rejecting nominees for the minority member of the county Board of Elections. It also prevents council from selecting a member of the member of the minority party they so choose if certain deadlines are not met by the minority party chairman. In fact, Bradley’s order declared Ordinance 2023.1 void and invalid. His order noted that the purpose of the Pennsylvania Election Code is to guarantee minority representation on the county Board of Elections. His order stated that “the current Ordinance impermissibly affords Delaware County Council a veto power over the minority party chair’s nomination to the Board of Elections which unduly expands the powers conferred upon Council by the Election Code.”
NYC Wins When Everyone Can Vote! Michael H. Drucker
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