Legislative Updates
Alabama: Lawmakers are considering legislation that would require probate judges to tally the ballots after every county and statewide general election in a post-election audit. Mobile County Probate Judge Don Davis believes it’s unnecessary. He says on election day they know exactly how many ballots go to every precinct, how many ballots are cast at each voting machine from the machine’s automated counter and how many voters were processed at each precinct. “And all three of those numbers are supposed to match, and they do. And they always have,” said Davis. Rep. Debbie Woods is proposing legislation that would require probate judges to randomly select one precinct and one race that is not subject to a recount or contest and either manually tally the ballots or run them through a ballot counter not used during the election. A House committee this week discussed the legislation and Davis listened to the live stream. In 2022 legislation authorized a post-election audit pilot program in three counties.
Georgia: Lawmakers advanced a number of election changes on March 26 that would allow officials to reduce the number of voting machines, add watermarks to ballots and put pictures of all ballots online for public review. The bills are part of a Republican package of changes to how the state would conduct elections ahead of this year’s presidential race. These measures and others still need to pass final votes on the last day of this year’s legislative session March 28. State Sen. Max Burns said county election directors asked for flexibility to deploy fewer voting machines on election day to account for the high number of Georgians who cast early or absentee ballots. House Bill 1207 passed along party lines, 33-20, with all Democrats opposed. The legislation also would require election workers to be U.S. citizens, allow candidates to check ballots for accuracy before they’re printed and guarantee access to poll watchers. The Senate also passed House Bill 974, which would put a watermark on all ballots, require audits of at least two statewide races each election and post ballot images online. That bill passed 47-6.
Idaho: The House passed Senate Bill 1377 (S1377) this week after a short debate questioning the constitutionality of the bill. The bill would require any person receiving payment to gather signatures for an initiative process to disclose they are paid. This bill outlines a verbal notice and a visual badge on the petitioner’s clothing to denote their status as a paid worker. Rep. Ilana Rubel (D-Boise) was the only lawmaker to speak other than the floor sponsor Rep. Brandon Mitchell (R-Moscow). Mitchell pitched the bill as a transparency measure against out-of-state money influencing Idaho policy. “If we were so worried about transparency and voters knowing who’s paying for what, we don’t do this for any other political activity. I can spend a million dollars hiring people to knock every door in my district telling everybody that Ilana Rubel is the cat’s meow,” Rubel said. “They wouldn’t have to wear a pin or tell anybody that I’m paying them.” Rubel questioned the constitutionality of the bill; the Idaho State Supreme Court overturned a previous law to regulate the initiative process through Reclaim Idaho v. Denney (2021). The court regarded the initiative process to be a right of the people.
Maryland: A Republican nominee to the State Board of Elections will be recommended for confirmation to the full Senate despite concerns about a social media post and emails attributed to her. The Senate Executive Nominations Committee voted 12-3 to send Diane Butler, an Ellicott City resident, to the full Senate. The floor vote could come later this week. The committee held Butler’s nomination for two weeks over concerns about hyper-partisanship and her views on the integrity of recent state elections. “I think the correspondence, just to me, seems in many ways, to be incongruent to some of the motivations that were actually expressed during the hearings,” said Senate Executive Nominations Vice Chair Clarence K. Lam (D-Howard and Anne Arundel), one of three members of the panel who voted against Butler’s nomination. “I’m just not confident that her motivations previously to really press the county board of elections and some of her prior statements were solely intended to improve the process.”
Minnesota: Joe Champion (D-Minneapolis) is the lead author of the Minnesota Voting Rights Act, which would restore the right of private action for efforts by governmental entities to suppress the votes of protected classes, or dilute their votes through gerrymandering of political boundaries. “This bill would ensure that Minnesota voters once again have the challenge discrimination that they experience. We believe that voting is a part of our democracy.” The bill would bar localities from taking actions that make it harder for persons of color to vote, such as closing a polling places or limiting early voting. Champion’s bill would allow citizens or interest groups to make a claim short of going to court, and then to pursue the court option if that doesn’t work. The Judiciary Committee passed the bill on a voice vote and sent it to the full Senate for consideration at a later date.
Nebraska: Nebraska lawmakers have advanced legislation that would restore voting rights to felons immediately upon completion of their sentence. Currently state law bars those with felony convictions from voting for two years after completion of their sentence, including parole. The bill, LB20, advanced through the first round of debate, would eliminate this waiting period. Nebraska is the only state that attaches an “arbitrary” waiting period before voting rights are restored after a person’s sentence is complete, Wayne said. LB20, which Wayne introduced last session, would simply do away with that “additional penalty,” he added. “At the end of the day, when you have completed your sentence – when you are done – you should be able to participate in our society fully and completely,” Wayne said. Chair of the Government, Military and Veterans Affairs Committee, Sen. Tom Brewer of Gordon, agreed. The bill advanced to a second round of debate with bipartisan support from lawmakers 34-3, with 2 present-not voting, and 10 excused-not voting.
New Hampshire: House Bill 1264 would require towns and cities to provide accessible voting systems in local elections that meet the Help America Vote Act of 2002 as well as the Americans With Disabilities Act. Those machines would need to have the capacity to accept the choices of the voter and print out a paper ballot filled in with those choices for the voter to then cast, the bill states. The bill would effectively “enable access to voting for individuals with disabilities during elections by giving them the same degree of privacy that is accorded to nondisabled voters,” a summary from the Secretary of State’s Office reads. Sponsored by Rep. Mark Paige, an Exeter Democrat, the bill creates a mandate for towns but does not explicitly state how they might meet that mandate or acquire the machines. But advocates say they envision two phases. First, the bill creates a pilot program where the Secretary of State’s Office is required to “provide” the machines to the towns for any elections between Jan. 1 and June 30 of 2025. Paige and other supporters say that would likely entail the Secretary of State’s Office sharing the machines it already has and allowing them to be programmed for local elections. Second, Paige and other lawmakers say they will work to set aside money in the state budget next year to pay for cities and towns to acquire the machines themselves. Local officials would then use a vendor to program the machines – without the involvement of the Secretary of State’s Office. The bill received a unanimous recommendation from the House Election Law Committee and passed the full House on a voice vote last week; it heads next to the Senate.
HB 1014, a bill that would bolster voter registration efforts among young people by altering public and private school curricula. While the prime sponsor Rep. Mark Paige, D-Exeter, thinks it’s a fairly straightforward bipartisan, “common sense” bill; concerns have been raised by Republican lawmakers who oppose its passage. The bill itself would not force students to register to vote, but instead requires school districts and private schools to “develop programs to inform high school students about registering to vote.” This education would also include policies to promote student voter registration, such as “collaboration with the town or city clerk and the supervisor of the checklist to conduct voter registration at high schools.” However, completion of voter registration would not be a course requirement or graded assignment for students, according to the bill. The education program would focus on “informing students of state requirements for voter registration” and “providing access to and assistance with filing registration applications.” Paige, a former teacher, wrote this bill with the hope of bolstering the existing civics curriculum at high schools by turning education into action, or at the bare minimum, remove any barriers of confusion about voter registration.
Pennsylvania: Victims of voter intimidation would have legal standing to sue people criminally convicted of interfering with polling places under a bill passed this week by the state House Judiciary Committee. Sponsored by Rep. Stephen Kinsey (D-Philadelphia), House Bill 461 would allow victims to sue for punitive damages and attorney fees. The law would apply to defendants who are convicted of violating the Pennsylvania Election Code’s provisions against voter intimidation. The passed 14-12 in a party line vote, with Republicans in opposition, and now goes to the full House for consideration. Kinsey said during a Judiciary Committee meeting that voter intimidation has been a longstanding problem, as communities of color have faced intimidation since the 19th century and remains an issue today, with extremist groups posting watchers at drop boxes in Arizona last year. Fourteen states have passed laws to protect election officials, staff and volunteers, Kinsey noted.
Republicans in the House revealed plans to try to force action on a voter ID measure by using a seldom-used parliamentary maneuver that could get the proposal on the ballot for voters to consider in November. House Republicans said at a press conference Monday that they plan to introduce a discharge resolution – a parliamentary tool that allows lawmakers to pull a bill out of committee and bypass a committee vote, in an attempt to secure a vote on House Bill 891. The measure would add a universal voter ID requirement to the state constitution – if voters ultimately approve it in a ballot referendum. Under the current House operating rules, discharge resolutions must receive signatures from 50 members – 25 signatures from the minority party and 25 signatures from the majority party – for the resolution to move forward. A discharge resolution must then receive a majority vote from members of the House for a bill to be considered.
Tennessee: Rep. Bryan Richey (R – Maryville) has introduced a bill that would create a process for Tennesseans to formally declare party affiliation ahead of elections after a lawsuit was dismissed over state laws requiring signs to be posted at polling places telling voters they needed to be “bona fide” party members. Currently, voters are not required to register with a party to vote in a primary election in Tennessee. Instead, they just need to ask for either a Republican or Democrat ballot at their polling location. HB 1616 would let voters choose an affiliation with a political party on voter registration applications. Voters would also be allowed to be designated as “unaffiliated” voters. County election commissions would then need to record voters’ party affiliations, or unaffiliated designations, as part of voters’ permanent registration records. The bill would also let qualified voters change their registration at practically any time election offices are open, except for up to 29 days before an election. The proposal could also bolster the earlier laws that required signs placed at polling locations telling voters they needed to be “bona fide” party members to vote in primary elections. Effectively, voters may need to be formally affiliated with a party to vote in primary elections or have an “unaffiliated” designation. Voters could also vote in any party’s primary election if it is the first primary they participate in after the bill goes into effect. After voting in that election, voter affiliations and designations would need to be added to their permanent record.
Wisconsin: Gov Tony Evers (D) took action on several elections-related bills last week. Evers vetoed a Republican-authored bill that would have required him to call special elections if a state constitutional office becomes vacant before that officeholder’s term expires. Evers vetoed a bill that would have reduced the area between election observers and election workers from three to eight feet to no more than three feet. Violators of the provisions under the bill could face imprisonment for up to 90 days and a fine of up to $1,000. Under a bill Evers signed into law, closing even one polling location within 30 days of an election now requires the support of the clerk and a majority of the city council, town board or village board. Public notices are also now required for those closures, and a person would have to be stationed at the closed site to inform voters of the new site under the law. Under another new law, personal identifying information of election officials is now exempt from public records requests. The law, which takes effect in 2025, also gives election officials whistleblower protections if they report election fraud or irregularities. It also creates a new felony crime of battery to an election official. That penalty would apply if the victim is an election official, election registration official or county or municipal clerk acting in an official capacity. The law also makes changes to the campaign finance system, requiring local candidates to submit their reports to the Wisconsin Ethics Commission, rather than local clerks. Evers vetoed two bills that would have overhauled how residents of nursing homes and other long-term care facilities could cast ballots, and for voters who are determined to be incompetent. Evers also vetoed a bill that would require the state nonpartisan Legislative Audit Bureau to examine the administration of each general election.
Legal Updates
Arizona: Joshua Russell of Bucyrus, Ohio was sentenced to 2 1/2 years in prison for making death threats in voicemails left for then-Secretary of State Katie Hobbs during the 2022 election season. Russell pleaded guilty in late August 2023 to a federal charge of making an interstate threat against Hobbs, a Democrat who, as secretary of state, was Arizona’s chief elections officer in 2022 and now serves as the state’s governor. U.S. District Judge Steven Logan commended Russell for undergoing substance abuse treatment and other counseling since his arrest and getting his life in order, but concluded Russell must spend time in prison, saying he has traumatized people who work in the secretary of state’s office. The judge, who read Russell’s profanity-laden threats aloud in court, said Russell had accused the victim of being a terrorist, while he was threatening her life. He rejected Russell’s characterization of his actions as immature. “None of these people deserved it,” the judge said. Russell’s case is among the cases brought by the U.S. Justice Department’s Election Threats Task Force, which focuses on threats of violence against elected officials, workers and volunteers to ensure they can oversee elections free of harassment.
Kari Lake is asking the court to quickly issue a judgment and to decide how much she will pay Maricopa County Recorder Stephen Richer in the defamation case he brought against her, according to a filing in Maricopa County Superior Court this week. Richer sued Lake — who ran for governor in 2022 and is now running for U.S. Senate — for defamation last year, alleging that Lake made defamatory allegations that he had assisted in rigging the gubernatorial election against Lake. Richer’s legal team is treating Lake’s filing, a motion for default judgment, as an admission of liability. “She has decided she cannot defend herself in this case despite continuously saying she has evidence,” said Ben Berwick, counsel at Protect Democracy, among the firms representing Richer in the lawsuit. Lake’s attorneys do not defend Lake’s claims about Richer in the filing, nor do they challenge any of Richer’s arguments about the facts. Instead, they ask the court for a quick hearing to decide damages.
Illinois: The 7th U.S. Circuit Court of Appeals will hold oral argument on March 28 in a lawsuit challenging an Illinois statute that allows mail-in ballots to be received and counted for up to two weeks after an election as long as they are postmarked or dated on or before Election Day. Led by a GOP representative for the state’s 12th Congressional District, Michael Bost, the Republican plaintiffs allege that the state’s “extended” mail-in ballot receipt deadline effectively “expands” Election Day in violation of the U.S. Constitution and federal law, which requires states to hold Election Day on the Tuesday after the first Monday in November. Bost and his Republican co-plaintiffs — who are represented by Judicial Watch — contend that the two-week receipt deadline for mail-in ballots burdens their right to vote by allowing “illegal ballots” to “dilute the value of timely ballots cast and received on or before Election Day.” District Court Judge John Kness originally tossed out the lawsuit in July 2023, but the Republican plaintiffs appealed the dismissal to the 7th Circuit, where a three-judge panel will ultimately decide whether or not the lawsuit will move forward following this week’s oral argument. The members of the three-judge panel will not be known until oral argument commences. In his 2023 order, district court Kness acknowledged that although federal law sets a “national standard” for Election Day, “states retain significant discretion—frequently exercised—to prescribe the times, places, and manner of conducting elections” under the Elections Clause of the U.S. Constitution. Kness added that the “[p]laintiffs’ votes…are not diluted by other valid, lawfully cast votes” as a result of the challenged deadline.
Mississippi: The secretary of state’s office and two advocacy groups asked a court to dismiss a lawsuit brought by the state Republican and Libertarian parties seeking to limit the number of mail-in absentee ballots during the upcoming presidential and congressional election.The Mississippi Alliance for Retired Americans and Vet Voice Foundation, two groups who intervened in the suit, and Secretary of State Michael Watson’s office argued in separate briefings that the federal litigation should be dismissed because the political parties lack legal standing to bring the suit. “The Mississippi Statute does not harm the plaintiff individuals or political parties in any way,” Special Assistant Attorney General Rex Shannon III wrote on behalf of Watson’s office. “It does not conflict with laws that set the election day for federal offices. And it does not impair the plaintiffs’ rights to vote or to stand for office under the First and/or Fourteenth Amendments.” The statute in question is a 2020 law requiring local election workers to count mail-in absentee ballots for up to five days after the election date. The Mississippi law currently permits election workers to count mail-in votes only if the ballots were postmarked by the election date. To support the Republican Party’s argument, Mississippi GOP Chairman Frank Bordeaux wrote in a signed declaration that the statute dilutes the weight of ballots cast on Election Day and harms conservative candidates running for office. U.S. District Judge Louis Guirola Jr. ordered all of the parties to file all responses to the pending motions by April 9 and file responses to the replies by April 16.
Montana: A split Montana Supreme Court panel has upheld a block of the four recent election laws that restrict voter access, finding them unconstitutional. The judges affirmed the ruling in a consolidated case brought by groups like the Montana Democratic Party, several Native American tribes and Montana Youth Action seeking to overturn the laws. Chief Justice Mike McGrath in a 63-page ruling issued this week called the Legislature’s pushback of the voter registration deadline from Election Day to noon the day before — while blocking paid absentee ballot collectors and using a Montana university student ID as a voter identification — facially unconstitutional. McGrath found that while the U.S. Constitution contains no explicit protection of the right to vote, the courts have held that the right “is a bulwark for other basic civil and political rights.” He said that eliminating Election Day registration interferes with the fundamental right to vote and disenfranchises more than 70,000 Montanans. “This is like arguing that because absentee voting was once not allowed, it would not interfere with the electorate’s right to vote to eliminate it today — even though three-quarters of voters in Montana now utilize it to vote,” McGrath wrote. He affirmed that House Bill 530 takes away the only option to vote for many Native Americans living on reservations. Richie Melby, representing Montana’s secretary of state, called the majority opinion a result of “faulty constitutional analysis.” “The court’s result-driven approach to judicial activism in striking down common sense voting laws designed to be as highly acceptable and secure as possible defies constitutional norms and will inevitably stand on the wrong side of legal history,” Melby said.
New York: The New York City Council filed a notice of appeal this week to the state’s highest court in support of a 2022 law it passed granting municipal voting privileges to non-citizens with green cards or work authorizations. “Empowering New Yorkers to participate in our local democratic process can only strengthen New York City by increasing civic engagement,” council spokesperson Rendy Desamours said in a statement, adding that the legislative body finds the law consistent with the state constitution, election law and municipal home rule. The legislation was ruled unconstitutional one month ago by the Appellate Division for the Second Judicial Department in New York. It had sought to allow an estimated 800,000 eligible non-citizens to cast ballots in city elections including those for mayor and City Council. But Local Law 11 of 2022 had been challenged by a coalition of right-leaning elected officials, including Staten Island Republicans Vito Fossella, Joe Borelli and Nicole Malliotakis. They argue the right to vote is sacred to U.S. citizens and the legislation is unconstitutional. Mayor Eric Adams’ administration had been defending the law and appealed a lower court’s ruling against it, but representatives did not immediately respond to questions Monday on whether its attorneys would appeal to the New York State Court of Appeals.
Onondaga County filed a lawsuit against the state over the new law that will move many local elections to line up with state and federal elections in even-numbered years. The county legislature has made clear over the last few months its intention to challenge the new law, arguing it conflicts with the county’s charter. Twenty New York counties are chartered, meaning they have a locally drafted and approved laws outlining the structure and authority of county government. The law moves several local elections outside of New York City to even-numbered years, with the exception of some city or village elections, and races for county clerk, sheriff, district attorneys, local judges and others protected in the state Constitution. The state Legislature passed the legislation in June and Gov. Kathy Hochul signed it into law in December. Transitioning elections is scheduled to start in 2025. Advocates argue the change will boost voter turnout in local elections. They also say the state law includes language to supersede any county charter laws. Opponents have also voiced concern with local issues getting overshadowed by races at the top of the ballot.
The town of Newburgh is facing a new lawsuit accusing the town’s at-large voting system of violating New York’s Voting Rights Act. Newburgh is the second municipality in the Hudson Valley to be sued under the 2022 law designed to prevent racial voter suppression and discrimination. The same law firm, Abrams Fensterman, LLP, sued the town of Mount Pleasant in Westchester County back in January for similar accusations of violating the state Voting Rights Act. A group of six town residents, three who are Black and three Hispanic, claims the current method for electing the four council seats prevents Black and Hispanic residents from electing their candidates of choice. According to the lawsuit, a quarter of the town is Black and another 15% is Hispanic but the residents claim every person ever elected to the town board has been white. They added the last time a person of color ran for a town board seat was in 2011.
Pennsylvania: Mail-in ballots that are not dated on the outside envelope by the voter should not be counted even if they arrive at a county election office on time, a three-judge appeals court panel ruled this week. The 2-1 decision from the U.S. 3rd Circuit Court of Appeals strikes down a lower court ruling and sets up a potential Supreme Court battle over Pennsylvania’s mail-ballots that began in 2020, and will almost certainly affect how the swing state’s ballots are handled in the upcoming presidential election. At issue is the materiality provision of the Civil Rights Act of 1964, which prohibits officials from denying anyone from voting because of an error or omission “on any record or paper relating to any application, registration, or other act requisite to voting,” unless it is material to the person’s qualification to vote. “Because the date decision is irrelevant to whether a vote is received timely, the blink response is to believe a voter’s failure to date a return envelope should not cause his ballot to be disqualified,” Senior U.S. Circuit Judge Thomas Ambro wrote in the decision Wednesday. But the provision only applies when the state is determining who may vote, Ambro added, “and does not apply to rules, like the date requirement, that govern how a qualified voter must cast his ballot for it to be counted.” Ambro noted that the date requirement “serves little apparent purpose,” but since the state’s Supreme Court ruled that dating of envelopes was mandatory, “undated or misdated ballots are invalid under state law and must be set aside.” Pennsylvania redesigned its mail in ballots for this year. Circuit Judge Patty Shwartz wrote in a dissenting opinion Wednesday that the ruling was a reminder to voters to carefully review all instructions. “If they do not, they risk having their otherwise valid votes discounted based on even the most inconsequential mistake,” Shwartz wrote. “One can only hope that election officials do not capitalize on the Majority’s narrow interpretation of the Materiality Provision by enacting unduly technical and immaterial post-registration paperwork requirements that could silence the voices of qualified voters.”
U.S. District Judge Jennifer P. Wilson has dismissed a lawsuit by two dozen conservative state lawmakers that claimed ballot access initiatives by President Joe Biden and Gov. Josh Shapiro usurped the state Legislature’s authority to direct federal elections in the commonwealth. Wilson’s one-page order grants motions by state and federal officials to dismiss the case. The order also denies a request by two dozen conservative lawmakers for a preliminary injunction to block the ballot access initiatives, including Shapiro’s executive order implementing automatic voter registration for driver’s license applicants. In a statement, Shapiro said automatic voter registration is safe, secure, efficient, and entirely within his administration’s authority. Shapiro said that in 2020, when he was attorney general, he defeated Donald Trump and “his conspiracy theorist allies” in court to defend Pennsylvania residents’ votes and access to the ballot box.
Vermont: A lawsuit alleging voter fraud in a controversial vote to close Windham Elementary School in 2021 has been dismissed. “A court cannot grant relief in an election contest unless there were errors committed in the conduct of the election ‘sufficient to change the ultimate result,’ there was fraud in the electoral process ‘sufficient to change the ultimate result,’ or for another reason, ‘the result of the election’ was compromised,” Judge Dickson Corbett wrote in a decision issued March 11, citing Vermont law. In a ballot vote in September 2021, Windham residents voted to close the elementary school and pay tuition for pre-K-6 education to other schools. Afterwards, a successful petition led to a new vote on the question in November 2021. In a 142-139 vote, the article was rejected and the school stayed open. Two Windham residents filed a lawsuit against the town and three voters in December 2021, alleging that the three people participated in the vote even though they were not residents of the town. However, Corbett wrote, “even if these three votes were set aside, the result of the public question would be the same: there would be 139 votes cast in favor of the article, and 139 votes cast against the article. As a result, the article would not have received ‘a majority of the votes . . . in favor of the proposition,’ and so the article would not be approved, and the result of the public question would be the same: that the school should not be closed.” “The Town is pleased with the decision as it confirmed what the Town has been arguing throughout the matter,” Town Attorney Bob Fisher said Thursday in an email response to the Reformer. In a statement, Crystal Corriveau said she and fellow plaintiff Erin Kehoe do not agree with the court’s decision. Corriveau said the point raised in a motion for dismissal was denied in the Windham County court before the case was moved to Windsor County.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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