Legislative Updates
Federal Legislation: U.S. Senator Alex Padilla (D-Calif.), a member of the Senate Rules Committee and California’s former Secretary of State, and Congresswoman Norma Torres (D-Calif.-35) introduced bicameral legislation to improve voter registration efforts at naturalization ceremonies. The Including New Voters In The Electorate (INVITE) Act would designate United States Citizenship and Immigration Services (USCIS) field offices as voter registration agencies under the National Voter Registration Act, requiring USCIS staff to help new U.S. citizens complete their voter registration forms and return them to the appropriate state agency following their naturalization. While USCIS policy states that the agency should provide new U.S. citizens with voter registration forms at their USCIS naturalization ceremonies, the policy does not currently require the agency to assist new U.S. citizens in properly filling out or returning their forms, leaving many newly eligible United States citizens unregistered to vote. New citizens naturalized at judicial ceremonies or without a formal ceremony are at an even greater disadvantage, having no guarantee of even receiving voter registration information. Just 61 percent of all naturalized U.S. citizens were registered to vote during the November 2022 election, compared to 70 percent of citizens born in the United States. The INVITE Act would maintain USCIS’s flexibility to work with state voter registration agencies and nonpartisan voter registration organizations, and it would allow the agency to develop and implement plans with each state to carry out this important work.
Arizona: Prior to 2016, Arizonans could legally collect the early voting ballots of friends, family and community members to return them to be counted, and Democrats want to bring that practice back. Rep. Stephanie Stahl-Hamilton, D-Tucson, told the Arizona Mirror that even though her House Bill 2335 is unlikely to become law, she still believes that introducing it was worthwhile. A similar bill was introduced last year by then-Rep. Athena Salman but was never considered. “It’s important not to be silent,” Stahl Hamilton said. “This is one step in pushing for a strengthened democracy.” If passed, the bill would get rid of ballot collection restrictions that say voted early ballots in Arizona can only be returned by the voter’s family member, a member of their household or their caregiver.
Colorado: Secretary of State Jena Griswold has forwarded legislation to the House of Representatives seeking to regulate the use of artificial intelligence in the state’s electoral processes. Griswold emphasized the threat that AI could pose to American elections, specifically highlighting issues surrounding the creation of deepfakes. These deepfakes, manipulated media content typically created using AI, have the potential to distort the actions and words of candidates and officeholders, leading to the proliferation of misinformation. The proposed legislation, titled “Candidate Election Deepfake Disclosures,” aims to counteract this threat by introducing measures that require clear disclaimers on political communications that have either been generated or substantially altered by AI.
Georgia: The Senate is backing a plan to give the state’s appointed election board the power to investigate Secretary of State Brad Raffensperger’s handling of elections, despite the measure’s sponsor saying that the bill is in “murky water” when it comes to its constitutionality. The Senate voted 30-19 along party lines for Senate Bill 358, sending it to the House for more debate. Raffensperger, also a Republican, says it is unconstitutional for the Senate to give the State Election Board the power to oversee an elected official. “There is no precedent for an unelected board of political appointees to have oversight authority over members of the executive branch,” Raffensperger’s general counsel, Charlene McGowan, wrote Tuesday. But Senate Ethics Committee Chairman Sen. Max Burns disagreed, saying that the measure only alters legal powers that the General Assembly has given to Raffensperger and the election board, and not Raffensperger’s constitutional authority. “The majority of powers of the secretary of state are vested through statute and not through constitutional law,” said Burns, a Sylvania Republican.
The Senate Ethics Committee moved the state closer to eliminating the use of QR codes for counting votes on paper ballots, a practice that has been criticized by ballot security advocates. Chairman Max Burns said that his Senate Bill 189 intends to restore greater confidence in the accuracy of votes cast in elections statewide. The bill calls for replacing the QR code that tabulates votes recorded on paper ballots with a new method of either readable text or a bubble style mark similar to what is currently used for absentee and provisional ballots. “It’s a voter confidence bill,” Burns said. “If we can achieve the goal of having this legislation adopted, I think it will go a long way to ensuring that all of our voters, from all political perspectives, will have confidence in the election.” Burns said after speaking with state election officials that he’s confident that switching away from the QR code does not require an overhaul of the state’s voting system. In 2019, the state purchased the Dominion Voting Systems electronic machines for $107 million. The bill now moves to the Senate Rules Committee, which sets the agenda on which legislation is brought to the floor of the chamber. Lt. Gov. Burt Jones and House Speaker Jon Burns, both Republicans, have listed the elimination of the QR code on ballots as a priority for the 2024 legislative session.
Voters could see a watermark on their ballot beginning in November, a move Republican supporters said would assure citizens that their ballots are authentic. The House voted 167-1 for House Bill 976, sending it to the Senate for more debate. Georgia ballots are already printed on special security paper, under a law passed in 2021 after Georgia’s disputed 2020 presidential election. But a laser wand is required to detect the paper. And some Trump supporters continue to pursue claims that ballots in 2020 were forged, especially in Fulton County, despite investigators repeatedly failing to find any. Secretary of State Brad Raffensperger supports the measure, with his chief operating officer, Gabe Sterling, telling a House committee earlier this month that a machine to stamp watermarks on the ballot would cost the state about $100,000, and not increase the current cost to counties of 13 cents per ballot.
Evanston, Illinois: Ald. Devon Reid (8th) introduced an ordinance at the Rules Committee meeting that would allow documented residents without U.S. citizenship to vote in local elections. He said the change would increase voter turnout by allowing residents who are civically active to more fully participate in their community. “I believe it has been the march of our nation to allow more and more folks the right to vote in our elections,” Reid told The Daily. “I think that folks who are members of our community, who are documented legal residents but not quite citizens yet, who are paying taxes, their kids are going to our schools, should have the right to participate in our local democracy.” Currently, non-citizens cannot vote in federal or state elections. State Sen. Celina Villanueva (D-Chicago) introduced a bill in 2021 that would allow non-citizens to vote in school board elections. The bill has not been passed. Reid motioned for city staff and an outside law firm to produce a memo on non-citizen voting. They have plans to present that memo at the next Rules Committee meeting on Feb. 5. The motion passed 6-2.
Indiana: Republican lawmakers in Indiana want first-time voters to prove they live in the state and additional verification of all voters’ addresses, prompting accusations from voting advocates that the proposal approved by the House could make it even tougher for some people to vote. Indiana voters are already required to show photo ID when casting a ballot, and a law passed last year that tightened mail-in voting requirements in the state. The bill was passed on party lines this week in the Indiana state House chamber. It’s not clear when the Senate (also held by Republicans) could take it up. Under the bill, residents who are first-time voters in Indiana would have to provide proof of residency when registering in person, unless they submit an Indiana driver’s license or social security number that matches an Indiana record.
Legislation headed to the full Senate aims to protect poll workers while they’re doing their jobs by making a slight expansion to existing law. Current law makes it a Level 6 felony to obstruct, interfere with or injure an election officer while they’re on the job. But that law doesn’t necessarily cover everyone who’s working or volunteering at the polling place. SB 170, unanimously approved by a Senate committee, makes sure all those people are included. Indiana Clerks Association President Nicole Browne said that protection is necessary. “Current and experienced poll workers are experiencing concerns for their personal safety and well-being at a time when we are preparing for what is likely to be history’s biggest election to date,” Browne said.
Kansas: Representatives from the Kansas County Clerks and Election Officials Association told legislators last week the membership opposed a Republican-sponsored bill that would prohibit counties from continuing the practice of mailing unsolicited advance ballot applications to registered voters. Harvey County Clerk Rick Piepho said the state shouldn’t interfere with decisions by counties to distribute advance ballot applications. Contents of Senate Bill 366, introduced by Sen. Mike Thompson, R-Shawnee, would mandate individuals request applications for advance ballots. “We believe that individual election offices should continue to have the option, based on the needs of their jurisdiction, to send unsolicited mailings to voters in their jurisdiction that include an advance ballot application,” Piepho said. Piepho told the Senate Federal and State Affairs Committee that the association of county election officials specifically objected to a provision in Thompson’s bill that would forbid the pre-filling of any portion of an advance ballot application. Counties fill name, address and birthdate sections of applications to make certain those parts were legible, given the difficulty of reading handwriting.
Voters would have less time to vote early in person under a bill being considered by state lawmakers. Under current law, early voting is held until noon the Monday before an election. But a bill being discussed by the House Elections Committee would end early voting by 7 p.m. the Sunday before Election Day. Clay Barker, general counsel at the Kansas Secretary of State’s Office, said at a hearing on Wednesday that some county election officials – especially in smaller counties – struggle to staff early voting the day before Election Day. “This can create a problem in counties where people are trying to vote at the same time the county election staff is trying to prepare for Election Day on Tuesday,” he said. But critics say the change could confuse or disenfranchise voters, especially if implemented during an election year.
Kentucky: Kentuckians could no longer use university-issued identification cards as their primary voter ID under a bill that cleared the Republican-controlled Senate Tuesday along party lines. Republican Secretary of State Michael Adams decried the legislation, Senate Bill 80, in an interview with the Kentucky Lantern ahead of the Senate vote. Looking to the upcoming presidential election, Adams said it is important to “have a law that actually is enforceable” and not struck down in court. He said photo ID laws in other states have been upheld if they permit university-issued IDs for proving a voter’s identity. If passed, the bill would prohibit identification cards issued by universities and colleges to students and employees from being accepted as primary proof of identification at the polls.
New Mexico: A bill to ban guns from voting sites has cleared the state Senate by a 26-16 vote. SB 5 would make it a crime to possess a gun within 100 feet of a polling place or 50 feet of a drop box. As a petty misdemeanor, the maximum sentence would be six months in jail, a $500 fine, or both. Law enforcement would be exempt. The bill now heads to the House.
South Dakota: A bill that would allow Native Americans in South Dakota to register to vote using their tribal identification cards passed the Senate State Affairs Committee unanimously on Wednesday in Pierre. Tribal citizens can currently use their tribal ID card as proof of identification when they show up to cast a ballot. But current law does not allow them to register to vote with such identification. When registering, potential voters must provide their driver license number, state-issued non-driver ID number or the last four digits of their Social Security number to register. The bill would allow the use of tribal IDs by members of federally recognized tribes that enter into an agreement with the secretary of state, who is the top election official in South Dakota. The secretary of state supports the bill, as do representatives from the Yankton and Rosebud Sioux tribes. Rosebud tribal member Sen. Shawn Bordeaux, D-Mission, introduced the bill. Since the bill was unanimously approved by the committee, it’ll be placed on the Senate consent calendar, where it won’t be subjected to debate before a vote unless it’s moved to the regular calendar.
West Virginia: Five bills on third reading passed in the House of Delegates this week, including two that fostered some debate over election laws, voting laws and candidate filing periods. Criminal actions regarding registering to vote are key to House Bill 4017, modifying certain election laws, early voting laws, and absentee voting laws. The section under debate notes that finding any person who intentionally coerces or offers payment in exchange for a person to register to vote is guilty of a misdemeanor and could be fined and jailed. House Minority Leader Sean Hornbuckle, D-Cabell, asked that with no specific definition of the terms coerced or payment, could a college campus voter registration table giving away bottled water and cookies, or the Secretary of State’s high school teen voter registration campaign be seen as criminal acts? “This piece of legislation in front of us could potentially not only harm those high school students and the aforementioned college students, this could criminalize our Secretary of State,” Hornbuckle said. “I would urge us, with the language, to slow down and we need to rethink what we’re doing here because it can be problematic.” There was no other debate on the floor. House Bill 4017 passed the House by a 90-7 vote. It will become effective Jan. 1, 2025 if it passes the Senate.
Legal Updates
Arizona: Arizona Republicans filed a lawsuit asking a judge to throw out numerous election rules made by Secretary of State Adrian Fontes, including one that forces supervisors to certify their election results without delay or changes and another that could potentially lead to a county’s election results not being counted if county officials don’t finalize them on time. The rules are included in the Elections Procedures Manual approved in December by Fontes, the governor and the attorney general — all Democrats. It says county supervisors have no authority to change vote totals, reject the election results, or delay certifying the results without statutory authority or a court order. And it says if a county doesn’t provide the secretary of state its certified results, known as a canvass, by the time the secretary must certify statewide results under state law, the secretary “must proceed with the state canvass without including the votes of the missing county.” State Senate President Warren Petersen and state House Speaker Ben Toma, both Republicans, filed the lawsuit in Maricopa County Superior Court on Wednesday alleging that state law doesn’t give the secretary of state the authority to make rules about how election results are finalized, and even if Fontes did have this right, these rules are not in alignment with state law.
Arkansas: The full 8th U.S. Circuit Court of Appeals has denied a request to revisit a ruling that could undermine a key tool for enforcing the Voting Rights Act’s protections against racial discrimination in the election process. It’s the latest move in an Arkansas state legislative redistricting case, filed by civil rights groups representing Black voters in the southern state, that could turn into the next U.S. Supreme Court battle that limits the scope of the landmark civil rights law. The Court of Appeals released its decision after attorneys led by the American Civil Liberties Union appealed the ruling by a three-judge panel last year. That panel found that federal law does not allow private groups and individuals — who have for decades brought the majority of lawsuits under Section 2 of the Voting Rights Act — to sue because that law does not explicitly name them. Only the head of the Justice Department, the panel found, can bring these kinds of lawsuits. In the 8th Circuit’s majority opinion, U.S. Circuit Judge David Stras, an appointee of former President Donald Trump who also wrote the panel’s majority opinion, said that the panel’s opinion “mostly speaks for itself.” Three judges, however, said they would grant the request for a rehearing. “The panel’s error is evident, but the court regrettably misses an opportunity to reaffirm its role as a dispassionate arbiter of issues that are properly presented by the parties,” Colloton wrote in a dissenting opinion that was joined by Kelly. According to a statement released by the ACLU, the civil rights groups that brought this Arkansas lawsuit are “exploring next legal steps,” which may include a Supreme Court appeal.
Colorado: Colorado Secretary of State Jena Griswold requested a larger allotted amount of time for oral arguments in former President Trump’s Supreme Court ballot eligibility case in a filing. In the filing, Griswold asks for “enlarged” oral argument time on Feb. 8 so that she can get 15 minutes to “convey Colorado’s interests and provide information about Colorado’s election laws.” “Given the implications this case has on Colorado’s presidential election process, as well as the constitutional protections Colorado’s citizens enjoy, the Secretary provides an important perspective on Colorado’s election laws,” the filing reads. Additionally, 11 secretaries of state filed a brief in the case warning of a “parade of horribles” if they have the power to disqualify in this circumstance, fears of partisan abuse and “tit-for-tat” disqualifications. The brief is asking SCOTUS for direction and a unified ruling for all states. They also argue Secretaries of State do not, and should not, have the power to disqualify federal candidates under Section 3 of the 14th Amendment. According to Stateline, the secretary’s brief is just one of multiple amicus briefs filed in the case.
Former president Donald Trump’s campaign team asked the Colorado Court of Appeals to overturn a lower court’s order and dismiss a defamation lawsuit filed by a former employee of Dominion Voting who found himself publicly — and wrongly — accused of rigging the 2020 election. “The plaintiff in this case has failed to meet the burden of actual malice by clear and convincing evidence,” argued Andrew Nickel, on behalf of Donald J. Trump for President Inc. “The district court erred in applying a negligence standard.” In his 2020 lawsuit, Eric Coomer, a director of product strategy and security at Dominion Voting Systems in Denver identified more than a dozen individuals and companies that collectively made him the villain in the narrative of unbased claims of election fraud. Coomer has since filed additional lawsuits against Denver-based conservative radio host Randy Corporon and My Pillow CEO Mike Lindell.
Florida: Lawyers for the State of Florida asked the 11th Circuit Court of Appeals to reverse a July 2023 court decision by U.S. District Court Judge Mark Walker enjoining the enforcement of two amendments to Florida’s statute regulating third-party voter registration organizations. Walker found the provisions were discriminatory based on alienage, but the state, led by Republican secretary of state Cord Byrd, says the restrictions further the state’s goal of election integrity and are protected by a “political function exception.” During oral arguments, Florida attorneys argued that the exclusion was meant to ensure voter registration applications can be delivered in a timely manner. Putting the applications in the hands of those with illegal or temporary status decreases the odds of that happening, attorney Mohammad Jazil, said because they may leave the county suddenly, at any time. The three-judge circuit panel pondered how to address the constitutionality of the statue, which doesn’t differentiate between noncitizens who are legally residing in the U.S. and those who are illegal residents. Jazil argued that the Equal Protection clause doesn’t require a distinction between “citizens and aliens,” and that the inequities of singling out legal resident aliens “simply aren’t applicable when registering voters just as they aren’t applicable when teachers and cops are concerned.” U.S. Circuit Judge Britt Grant, a Donald Trump appointee, appeared to be persuaded by this argument. He asked the plaintiff groups why their work shouldn’t fall under the political function exception if it’s as crucial to the democratic process as they claim. Representing the Florida State Conference of Branches and Youth Units of the NAACP, attorney Abha Khanna argued that such an exception applies only to those in charge of policymaking decisions or who have “routine exercise of authority.” Individuals working for a voter registration organization, Khanna said, merely “deliver a form from one place to another — and that’s it.”
Stevie Taylor Elizabeth Baker, 33, of Wildwood has been sentenced in a voter fraud case following a complaint by the Sumter County supervisor of elections. Baker pleaded no contest this past week in Sumter County Court to a charge of voter fraud. She has been placed on probation for one year and ordered to perform 100 hours of community service. Baker was arrested Aug. 31 following a complaint filed by Sumter County Supervisor of Elections William Keen. Baker had filled out a voter registration application on Aug. 16. She is a convicted felon with a history of arrests dating back to 2010.
Indiana: The plaintiffs in a redistricting case against the Anderson City Council have filed a motion in federal court for summary judgment – a decision based on evidence and statements without a full trial. Common Cause Indiana, the League of Women Voters of Indiana and the Madison County NAACP filed the motion. The lawsuit, which was filed in June, said the Anderson City Council violated state and federal law and went against the “one person, one vote” idea of districting by voting not to redraw districts based on the 2020 Census. The groups have said the statistical deviation between the smallest and largest current districts in the Anderson Council is 45 percent, with other court cases previously ruling 10 percent violates the “one person, one vote” idea. The plaintiffs filed the lawsuit and a motion for a preliminary injunction ahead of the November 2023 municipal elections – hoping to declare the current districts unconstitutional.
Mississippi: The Republican National Committee and Mississippi Republican Party sued state officials in federal court to prevent election workers from counting some mail-in absentee ballots during the state’s upcoming presidential and congressional election. The national and state GOP plaintiffs argue that a 2020 state law allowing local election workers to count mail-in absentee ballots for up to five days after the election date violates federal law because only Congress sets the timeframe for when votes can be processed. The Mississippi law currently permits election workers to count mail-in votes if the ballots were postmarked by the election date. In 2020, the Republican supermajority state House passed the bill in question by a vote of 97-14, and the Republican supermajority Senate passed the bill by a vote of 31-14. It was then signed into law by Republican Gov. Tate Reeves. The plaintiffs, represented by former state GOP director Spencer Ritchie, argue that the five-day window should be suspended for all federal elections and only count mail-in absentee votes that arrive by Election Day.
Ohio: Attorney General Dave Yost has once again rejected petition language submitted for a proposed constitutional amendment on voting rights. Yost found the amendment’s title — “Ohio Voters Bill of Rights” — was “highly misleading and misrepresentative” of the measure’s contents, even as he acknowledged that his office had previously certified identical language. It certified a Nursing Facility Patients’ Bill of Rights in 2021 and another Ohio Voters Bill of Rights in 2014. The Ohio Voters Bill of Rights calls for enshrining the right for all Ohioans to vote safely and securely in the state constitution. The proposed amendment includes automatic voter registration, same-day voter registration and expanded early voting options and locations. The push for the amendment follows Ohio’s enactment last year of sweeping new election restrictions, including a strict photo ID requirement and shortened windows after Election Day for returning and curing ballots. “In the past, this Office has not always rigorously evaluated whether the title fairly or truthfully summarized a given proposed amendment,” Yost wrote the coalition’s attorney. “But recent authority from the Ohio Supreme Court has confirmed that the title for a ballot initiative is material to voters.” Members of the voting rights coalition — which includes the NAACP’s Ohio chapter, the Ohio Unity Coalition, the A. Philip Randolph Institute and the Ohio Organizing Collaborative — said in a statement that they were dismayed by Yost’s decision. They said he had rejected their revised language “despite our dutiful compliance with his previous objections.”
Pennsylvania: A group of conservative state lawmakers filed a federal lawsuit challenging three voting-related executive branch actions designed to boost voter registration, including a 2021 executive order by President Joe Biden. The lawsuit is expected to be one of many to litigate voting and election rules in a battleground state that is critical to 2024’s presidential contest. In the 2020 election, Trump’s campaign, state officials, the Democratic Party and others fought over the rules for mail-in voting, and Trump later baselessly smeared the election as rife with fraud and tried unsuccessfully to overturn it. The lawsuit, filed by 24 Republican state lawmakers, challenges the legality of a 2021 executive order by Biden that orders federal agencies to consider ways to expand access to registering to vote and information about voting. It also challenges two state-level actions. One is last fall’s introduction of automatic voter registration in Pennsylvania by Democratic Gov. Josh Shapiro. The other is a 2018 state directive under then-Democratic Gov. Tom Wolf. That directive said that counties cannot reject a voter registration application solely on the basis of finding that the applicant submitted a driver’s license number or Social Security number digits that don’t match what is in a government agency database.
Wisconsin: Dane County Judge Ryan Nilsestuen ordered the state elections commission to implement his ruling allowing election clerks to accept absentee ballots that have partial witness addresses, a decision that is expected to expand the number of ballots that will be counted in the battleground state. Since 2020, Republicans have been fighting in court to tighten the rules to limit how many absentee ballots can be accepted. State law requires absentee ballots to be submitted with a witness’ signature and address on the outside envelope that contains the ballot. Three separate lawsuits were filed related to those rules. Nilsestuen earlier this month ruled, in two cases brought by liberals, that a ballot can still be accepted even if a witness address omits municipalities and ZIP codes, or simply say “same” or “ditto” if the witness lives with the voter. The Republican Legislature fought to have the case dismissed. Nilsestuen this week ordered the elections commission to approve guidance no later than Feb. 9 that would direct clerks on what ballots can be accepted. Nilsestuen stressed that he wanted to move quickly given the upcoming Feb. 20 primary for local elections. Wisconsin’s presidential primary and spring general election is April 2. The Republican-dominated Legislature’s attorney, Kevin LeRoy, said he planned to ask for the ruling to be put on hold pending an appeal. The judge scheduled a Friday hearing on that. The case is expected to go to the Wisconsin Supreme Court.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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