Electionline Weekly 8-1-2024

Legislation and Rulemaking Updates

Federal Legislation: Embedded inside this year’s Intelligence Authorization Act, which funds intelligence agencies like the CIA, is the Strengthening Election Cybersecurity to Uphold Respect for Elections through Independent Testing (SECURE IT) Act, which would require penetration testing of federally certified voting machines and ballot scanners, and create a pilot program exploring the feasibility of letting independent researchers probe all manner of election systems for flaws. The SECURE IT Act—originally introduced by US senators Mark Warner, a Virginia Democrat, and Susan Collins, a Maine Republican—could significantly improve the security of key election technology in an era when foreign adversaries remain intent on undermining US democracy. “This legislation will empower our researchers to think the way our adversaries do, and expose hidden vulnerabilities by attempting to penetrate our systems with the same tools and methods used by bad actors,” says Warner, who chairs the Senate Intelligence Committee. The first provision would codify the US Election Assistance Commission’s recent addition of penetration testing to its certification process.The bill’s second provision would require the EAC to experiment with a vulnerability disclosure program for election technology—including systems that are not subject to federal testing, such as voter registration databases and election results websites. The bill would require manufacturers to patch or otherwise mitigate serious reported vulnerabilities within 180 days of confirming them. The EAC—which must review all changes to certified voting software—would have 90 days to approve fixes; any fix not approved within that timetable would be “deemed to be certified,” though the commission could review it later. The SECURE IT Act doesn’t authorize any new money for the EAC to run these programs.

Winnebago County, Illinois: Voters in November may get to weigh in on a possible change to how elections are run in Winnebago County. On August 1, the county’s Operations and Administrative Committee is expected to discuss whether to put a referendum on the upcoming ballot. It would ask voters if the Rockford Board of Elections Commissioners should consolidate with the County Clerk’s election division in order to save taxpayers money. Currently, the two bodies operate independently with the Board of Elections handling operations within city limits. It is guided by a bipartisan group of three people who are appointed by the circuit court. Rockford voters approved the commission in 1910. The Winnebago County Clerk oversees voting in the remainder of the county.

Montana: Legislators have taken the first step towards potentially becoming the 44th state to allow online voter registration. In an 8-2 vote on July 31, the State Administration and Veterans’ Affairs Interim Committee voted to have a provisional bill drafted. The committee heard testimony from election experts and Montana’s Motor Vehicle Division about the specifics of how the process works and their options. It comes two months after the group Secure Democracy USA urged the legislators to move forward with the proposal. Although the proposal has bipartisan support, one Republican expressed concern about security. “Granted, I’m a dinosaur and I have trouble understanding all of the electronic processes. But I don’t trust all of them. And especially with the increasing development of artificial intelligence and robotic kind of answers,” said State Sen. Mike Cuffe (R-Eureka). “When we talk to people who are under 40, I’m finding that they are shocked that this is the one thing they can’t do online. Security could easily be dealt with. We deal with it with motor vehicles. We deal with, the bigger threat, if you want to say there’s a threat, is to the voter registration system as opposed to the online piece of it. and that seems to be well, well under control,” said State Rep. Ed Stafman (D-Bozeman), the legislator who brought the motion up for a vote. The bill draft will be presented at their September meeting, and members could then vote to advance it to the 2025 session as a committee bill. The Secretary of State’s office did not participate in the discussion despite being requested to do so, according to Stafman.

Lincoln County, Montana: After Election Administrator Melanie Howell approached them with the idea, the Lincoln County, Montana Commission is considering separating the Election Department from the Clerk and Recorder’s Office. Howell and assistant Sierra Gustin cited many reasons for wanting to split the operations of the offices. Howell also cited state code that the clerk and recorder is the default election administrator unless another is appointed. District 1 Commissioner Brent Teske wanted the proposal run by Lincoln County Attorney Marcia Boris. Howell also mentioned other counties such as Missoula, Glacier, Bighorn and Cascade that she said have separated the election department from the clerk and recorder’s Office with no detriment. District 3 Commissioner Josh Letcher said he understood the drive for secure elections, but also saw the need for cross-training in both offices so Election Department employees can help in the Clerk and Recorder’s Office during the off season. Commissioners are expected to continue discussing the proposal at their Aug. 7 meeting.

Legal Updates

Alabama: The Alabama attorney general’s office described a new ban on providing voters with absentee ballot application assistance as “commonsense ballot integrity,” while lawyers challenging the restrictions said they have halted important civic work in the community. The diverging depictions of the new law were aired during a federal hearing on Alabama’s request to dismiss a lawsuit challenging the statute. U.S. District Judge R. David Proctor did not indicate when he would rule, but said he understood the two sides want a decision before the November general election. The new law, originally known as Senate Bill 1, puts restrictions on who can fill out and return a voter’s application form to receive an absentee ballot. It makes it illegal to distribute an absentee ballot application that is prefilled with information such as the voter’s name, or to return another person’s absentee ballot application. And it is a felony punishable by up to 20 years in prison to give, or receive, a payment or a gift “for distributing, ordering, requesting, collecting, completing, prefilling, obtaining, or delivering a voter’s absentee ballot application.” During the hearing, Alabama Solicitor General Edmund LaCour described the law as a ballot-integrity measure that prevents paid operatives from corralling votes through absentee ballots. “SB1 helps fight fraud and confusion by ensuring that the absentee ballot application process remains in the hands of voters,” LaCour told Proctor. He argued that there are exceptions for disabled voters who need assistance.

Alaska: Supporters of Alaska’s ranked choice election system are asking the Alaska Supreme Court to rule on one final attempt to keep a repeal measure from this November’s ballot. Earlier this month, Anchorage Superior Court Judge Christina Rankin ruled that there was insufficient evidence to disqualify the measure from a statewide vote. While Rankin disqualified some signatures from a petition seeking to force a repeal vote, a recount by the Alaska Division of Elections confirmed that enough signatures remain for that vote to take place. On July 25, opponents of the repeal initiative asked the Alaska Supreme Court to review an element of Rankin’s decision. In a document called a statement of points on appeal, they say Rankin was wrong when she allowed the Alaska Division of Elections to permit signature gatherers the ability to correct minor mistakes with the ballot measure petition after the submission deadline. In June, Rankin wrote that the division has allowed petitioners the ability to correct minor mistakes as far back as 2015 and that it is allowed under a 2006 Alaska Supreme Court decision that said in part “that the right to initiative is not to be defeated by technical rule violations.” If the high court rules against Rankin’s decision, it could leave petitioners with insufficient signatures for a 2024 vote. The Supreme Court has set an accelerated timeline to hear the case, with written arguments scheduled to finish by Aug. 19. The court has scheduled oral arguments for Aug. 22, two days after the statewide primary election. The court must rule quickly: Ballot designs must be ready in time for ballots to be printed and mailed to overseas voters by Sept. 21.

Arizona: Brian Jerry Ogstad, 60, of Cullman, Alabama, pleaded guilty July 25 to sending threatening messages to Arizona election workers during and after the 2022 primaries. Ogstad sent 18 Instagram direct messages to an account run by the Maricopa County Election Department in August 2022, the majority of which contained threats on election workers’ lives. Ogstad was indicted and arrested in February 2024, and at his subsequent arraignment he pleaded not guilty to five felony counts of interstate threats. He decided to change his plea on July 2, pleading guilty to one of the five counts Thursday afternoon before U.S. Magistrate Judge John Boyle. “This guilty plea should send a message to anyone who tries to take the rule of law into their own hands through vigilante justice,” U.S. Attorney Gary Restaino said in an email to Courthouse News. “But it also showcases the resilience of public servants. Thanks to the election professionals in Maricopa County who have worked courageously to maintain free and fair elections in spite of the threats received.” Ogstad pleaded guilty to a class D felony, carrying a maximum sentence of five years in prison and up to $20,000 in restitution to the victims, none of whom appeared in court Thursday afternoon. The four remaining counts will be dropped at sentencing, scheduled for Oct. 1, according to the plea agreement.

The Arizona Free Enterprise Club filed a lawsuit over the constitutionality of the Make Elections Fair Act, a ballot initiative that would institute open primaries in the state. The group says it violates the Arizona Constitution by having several amendments in a single ballot measure. The defendants involved include Secretary of State Adrian Fontes and political committee Make Elections Fair AZ. The Arizona Free Enterprise Club points to the other changes made by the initiative, such as the integration of ranked choice voting in the general election. Earlier this month, Make Elections Fair AZ alleged Republican legislators misled voters about the ballot measure. The Arizona Free Enterprise Club has also filed a lawsuit alleging more than half of petition signatures used to get the open-primary measure on the November ballot are illegal.

Maricopa County Superior Court Judge Jennifer Ryan-Touhill said this week that she finds “troubling” some rules enacted by the secretary of state that she says could lead to people being charged with crimes for exercising their First Amendment rights on Election Day. Ryan-Touhill said the wording of the Elections Procedures Manual could be read to make it illegal for someone to wear a T-shirt into a polling place that criticized one of the candidates on the ballot. And she said she also is concerned about prohibitions in the manual against harassment and intimidation. Assistant Attorney General Josh Whitaker told the judge there is no basis for her concerns. He said the manual is designed to be “guidance” for election workers, with no basis to apply its provisions to the general public. Anyway, he said, the manual does not — and cannot — expand the laws approved by the Legislature. Ryan-Touhill was not convinced. “The problem is that the words that were chosen … have very specific meanings and consequences in a legal sense,” she said, words she said that appear to have the provisions apply to all. Add to that, said the judge, is that the manual has the force of law, with violations carrying four months in jail and a $750 fine. On top of that, she said, what the manual appears to criminalize are certain behaviors, complete with examples, like raising one’s voice.

Colorado: The trial of former Mesa County Clerk Tina Peters got underway this week. During opening statements, an attorney for Peters said Peters was trying to prevent voting information from being erased. Under the laws in place in 2021, when Peters allowed a man who prosecutors say was working with MyPillow CEO Mike Lindell to make a copy of a Dominion Voting Systems computer’s hard drive, she was allowed to hire a “consultant” to make such a copy, defense attorney Amy Jones said during opening statements. “She believed she needed to save that data,” said Jones, who did not deny that a copy was made. But prosecutor Robert Shapiro portrayed the man as a “cyber mercenary” who Peters brought in without conducting a background check and committed identity theft by passing him off as another person who had obtained clearance to work for her office. He said Peters contacted the man, who has not been charged, after she met with Douglas Frank, another person working with Lindell, one of the nation’s most prominent election conspiracy theorists. Frank, an Ohio math teacher, had been traveling around the country looking for evidence of voter fraud when he met with Peters and she hatched the plan, he said. The trial began after several delays, Peters’ failed bid to become Colorado’s secretary of state and her decision to change attorneys on the eve of a trial date in February. The jury was seated July 31 after being questioned by lawyers earlier in the day. Peters is charged with three counts of attempting to influence a public servant, criminal impersonation, two counts of conspiracy to commit criminal impersonation, one count of identity theft, first-degree official misconduct, violation of duty and failing to comply with the secretary of state.

Georgia: Judge Kellie Hill ruled on July 25 that Cobb County’s electoral map is unconstitutional, the primary elections conducted in May for County Commission Districts 2 and 4 will have to be redone, and the November general election for those seats must be postponed. Residents of Districts 2 and 4 who just voted in the May primary election, and in the District 2 runoff, will have to do it all over again — likely in 2025. An election do-over, while extremely rare in Georgia, will allow individuals to run for office who were unable to qualify for this year’s election because they lived outside the district lines in the county-passed map. The order is the second case out of Cobb Superior Court tossing out the county’s unprecedented, self-passed map. The first case, filed by voters and a sitting commissioner, was appealed to the Georgia Supreme Court and then dismissed on procedural grounds. Hill ruled in favor of plaintiff Alicia Adams, a candidate who was disqualified from running for office because she did not live in District 2 under the county map. The Cobb Board of Elections is unlikely to appeal the ruling due to its continued neutral stance on the map’s legality. Elections Board Chair Tori Silas said that while still processing the decision, the board is “glad to have finally received guidance from a court.”

Kansas: According to The Associated Press, Kansas is no longer enforcing a 3-year-old law making it a felony to impersonate election officials as it faces a legal challenge from critics who argue that the law has hindered efforts to register new voters. Attorneys for the state and groups suing over the law agreed on stopping its enforcement, and District Judge Teresa Watson in Shawnee County, issued an order earlier this week ratifying their agreement. Her order will remain in effect at least until another court hearing after the November election. The law made “falsely representing” an elections official punishable by up to 13 months in prison for a first-time offender, though two years’ probation would have been the most likely sentence. The crime includes causing someone to believe another person is an election official. The Republican-controlled Legislature enacted the law in 2021 by overriding a veto by Democratic Gov. Laura Kelly. The groups challenging the law argue it’s so vague that volunteers who register voters could face criminal charges if someone mistakenly believes they are election officials, even if those volunteers are clear that they aren’t verbally, in writing or on signs. Watson initially refused in 2021 to block the law’s enforcement and a state Court of Appeals panel later dismissed the case. But in December, the Kansas Supreme Court revived it, saying the law is vague enough for the groups to contest it.

Maryland: The 4th U.S. Circuit Court of Appeals in Richmond has denied a request to expedite a hearing in a case involving the Maryland State Board of Elections and two groups – Maryland Election Integrity LLC and Missouri-based United Sovereign Americans. The groups asked the Court of Appeals for an expedited hearing on July 16, just one week after appealing a district court judge’s rejection of their election security claims. In a one-page order issued July 25, the court declined to fast-track the case. It gave no reason for denying the request. It was the latest in a series of courtroom filings and arguments between the two groups and the elections board. The case began in March when Maryland Election Integrity LLC and Missouri-based United Sovereign Americans sued the Maryland State Board of Elections in the U.S. District Court for Maryland, alleging a number of violations of federal election law. The group claimed that through “meticulous analysis” it found at least 79,392 voter registration violations that allegedly included duplicate registrations, “registrants with questionable inactive status,” and more than 40,000 with “instances of a questionable registration date.” Their complaint also claimed that “voting system error rates are exponentially above the maximum allowable error rates. Inaccuracy and the specter of fraud have irretrievably damaged the reliability and credibility of results.” And the groups said the elections board denied their requests for election reports made under the Maryland Public Information Act. The lawsuit asked U.S. District Court Judge Stephanie A. Gallagher to order the board not to certify the primary election results until the errors were corrected. But Gallagher, in a May decision, dismissed the lawsuit without considering the allegations.

Mississippi: U.S. District Judge Louis Guirola Jr. dismissed a lawsuit by the Republican National Committee that sought to block Mississippi from counting absentee ballots that are postmarked by Election Day but received up to five days after it. Guirola handed down his ruling July 28, becoming the second federal judge in recent weeks to dismiss such a lawsuit. “Mississippi’s statutory procedure for counting lawfully cast absentee ballots, postmarked on or before election day, and received no more than five business days after election day is consistent with federal law and does not conflict with the Elections Clause, the Electors’ Clause, or the election-day statutes,” Guirola wrote. Another federal judge recently dismissed a similar lawsuit in Nevada, rejecting Republicans’ assertions that counting absentee ballots that are postmarked by Election Day but received days later was unconstitutional and violated federal law. In dismissing the suits, Guirola wrote that “no ‘final selection’ is made after the federal election day under Mississippi’s law. All that occurs after election day is the delivery and counting of ballots cast on or before election day.”

Nebraska: Voting rights advocates sued Nebraska Secretary of State Bob Evnen on July 29, arguing that he unconstitutionally instructed county election officials to ignore a new state law letting people convicted of felonies vote after serving their sentence. The lawsuit, bound for the Nebraska Supreme Court, clarified arguments that supporters of felon voting rights made two weeks ago, stating that only courts can stop a law, that the will of voters and lawmakers is being ignored, and that Evnen’s action threatens people’s freshly restored rights. On July 17, Evnen announced he had consulted Attorney General Mike Hilgers about concerns Evnen and Gov. Jim Pillen shared that only the executive branch and the Pardons Board could restore the voting rights of people with felony convictions, not the Legislature. Evnen said he based his decision on an informal attorney general’s opinion from Hilgers arguing that the Legislature had overstepped its constitutional authority, raising legal questions about separation of powers. The two laws at the core of the conflict are Legislative Bill 20, which eliminates a two-year waiting period to restore felon voting rights, and LB 53 from 2005, which established that two-year waiting period. The lawsuit argues that Evnen, through his actions, usurped the Legislature’s authority by invalidating a new statute, LB 20, and that he did the same by now refusing to carry out the previous statute, LB 53. “That remarkable, unprecedented, and unlawful action prompts this lawsuit,” the lawsuit explained. The lawsuit echoed the argument that years of practice by state officials and court precedent indicate the Legislature has its own authority to restore voting rights in statute without running afoul of others’ constitutional powers.

New York: Five out of six defendants surrendered to authorities July 25 to face charges in an election fraud case linked to last year’s New York City Council primary in Flushing, Queens. All six are being charged with absentee ballot fraud. They were all volunteers for the campaign of Yu-Ching James Pai, a candidate in the June 2023 Primary for City County District 20. “As alleged in this case, the defendants went to the Board of Elections and filed fraudulent absentee ballot applications on behalf of 23 voters they had never met,” said District Attorney Melinda Katz. The six face charges including criminal possession of a forged instrument, falsifying business records and illegal voting were. The arrests are the result of a long-term investigation which began after fellow Republican Dany Chen alleged Pai committed voter fraud on his way to winning the district’s primary, and after 23 complainants claimed to prosecutors that they were disenfranchised. Prosecutors say they cast 23 absentee ballots for Pai without the voters’ permission. The voters complained after they were told at a polling place that they had already voted.

South Carolina: The League of Women Voters is asking South Carolina’s highest court to order lawmakers to redraw the state’s U.S. House districts because they lean too far Republican. South Carolina’s congressional map was upheld two months ago in a 6-3 U.S. Supreme Court decision that said the state General Assembly did not use race to draw districts based on the 2020 Census. Those new maps cemented Republicans 6-1 U.S. House advantage after Democrats surprisingly flipped a seat two years earlier. The lawsuit by the League is using testimony and evidence from that case to argue that the U.S. House districts violate the South Carolina constitution’s requirement for free and open elections and that all people are protected equally under the law.

Wisconsin: Door County Circuit Judge David Weber dismissed a lawsuit July 29 that challenged absentee voting procedures, preventing administrative headaches for local election clerks and hundreds of thousands of voters in the politically volatile swing state ahead of fall elections. The ruling stems from a lawsuit Thomas Oldenberg, a voter from Amberg, Wisconsin, filed in February. Oldenberg argued that the state Elections Commission hasn’t been following a state law that requires voters who electronically request absentee ballots to place a physical copy of the request in the ballot return envelope. Absentee ballots without the request copy shouldn’t count, he maintained. Commission attorneys countered in May that language on the envelope that voters sign indicating they requested the ballot serves as a copy of the request. Making changes now would disrupt long-standing absentee voting procedures on the eve of multiple elections and new envelopes can’t be designed and reprinted in time for the Aug. 13 primary and Nov. 5 general election, the commission maintained. Jeffrey Mandell, an attorney representing Disability Rights of Wisconsin, one of several groups that joined the lawsuit, said in an email to The Associated Press that Weber determined that Oldenberg waited too long to file the action. Commission attorneys noted in their May arguments that the envelope sign-off has been in play since electronic ballot requests began in 2006 and Oldenberg could have brought challenged the practice anytime after that.

The Republican-controlled Wisconsin Legislature asked Dane County Judge Everett Mitchell to stay his temporary injunction granting voters with disabilities the ability to cast absentee ballots electronically so the order can be appealed. The lawsuit, brought by Disability Rights Wisconsin, the League of Women Voters of Wisconsin and four voters with disabilities, alleges that the current absentee voting system discriminates against voters with disabilities such as blindness because they can’t cast their ballots without assistance under the current rules, violating the right to cast a secret ballot. In June, Mitchell issued a temporary injunction siding with the voters, ordering the Wisconsin Elections Commission to “facilitate the availability of electronically delivered (i.e., emailed) accessible absentee ballots for the November 2024 general election for absent electors who self-certify to having a print disability and who request from their municipal clerk an electronically delivered absentee ballot in lieu of mailing.” The emailed ballots must be able to be read and marked electronically using assistive technology such as a screen reader. Despite a request from the groups bringing the lawsuit that ballots be allowed to be returned electronically as well, the completed absentee ballots will still need to be printed and mailed back to voters’ municipal clerks, with Mitchell writing that the order “shall not be construed to permit electronic return of a marked absentee ballot.”









NYC Wins When Everyone Can Vote! Michael H. Drucker