Ballot Measures, Legislation and Rulemaking
Federal Legislation: Speaker Mike Johnson postponed a vote on September 11 on a temporary spending bill that would keep federal agencies and programs funded for six months as opposition from both parties thwarted his first attempt at avoiding a partial government shutdown in three weeks. The legislation to continue government funding when the new budget year begins on Oct. 1 includes a requirement that people registering to vote must provide proof of citizenship. Johnson, R-La., signaled that he was not backing off linking the two main components of the bill. “No vote today because we’re in the consensus building business here in Congress. With small majorities, that’s what you do,” Johnson told reporters. “We’re having thoughtful conversations, family conversations within the Republican conference and I believe we’ll get there.” Congress needs to pass a stopgap spending bill before Oct. 1 to avoid a federal shutdown just weeks before the election. The measure had been teed up for a vote on Wednesday afternoon, but Democrats are overwhelmingly opposed and enough Republicans had voiced opposition to raise serious doubts about whether the measure would pass. The House approved a bill with the proof of citizenship mandate back in July. Republicans believe there is value in revisiting the issue and making Democrats in competitive swing districts vote again. Democrats are calling on Johnson to “stop wasting time” on a bill that will not become law and to work with them on a short-term spending measure that has support from both parties. At the end of the day, they say no spending bill can pass without bipartisan support and buy-in from a Democratic-led Senate and White House. “Speaker Johnson, scrap your plan. Don’t just delay the vote. Find a better one that can pass in a bipartisan way,” Senate Majority Leader Chuck Schumer said in response to Johnson’s announcement. But Johnson wasn’t giving up on his proposal yet, saying House leadership would work on building support over the weekend. He said that ensuring that only U.S. citizens vote in federal elections is “the most pressing issue right now and we’re going to get this job done.”
California: A new bill that passed the state Legislature last week would significantly increase the number of registered voters in California by requiring eligible voters be automatically registered when they get a state I.D., driver’s license or change their address at the DMV. Advocates say SB 299, which is now before Gov. Gavin Newsom, would especially impact young people and predominantly Black, Latino and Asian American and Pacific Islander (AAPI) communities. “We recognize that voter registration is a key barrier for our communities to exercise our constitutional rights to vote,” said Sydney Fang, the policy director at Asian, Americans and Pacific Islanders for Civic Empowerment (AAPI Force). “And we know that democracy only works when all eligible citizens have access to the ballot.” The bill aims to reduce that percentage through technology, allowing the agency to check whether a person is eligible to be registered. If their information clears the system and demonstrates they’re an eligible voter, they’d automatically be put on the voter rolls. The bill gives the California Secretary of State authority on the selection and implementation of the technology. Newsom will have until the end of September to sign the bill. If signed, it could go into effect as early as 2030.
Santa Ana, California: When voters go to the polls in November in the Orange County city of Santa Ana, they’ll be deciding if noncitizens should be allowed to vote in some elections? If passed, Measure DD would amend Santa Ana’s municipal charter and allow non-citizen residents of the city, both documented and undocumented, to vote in all local elections. That includes mayoral and city council races, proposed sales tax increases on the ballot and municipal bond measures. Local immigrant rights advocates like Carlos Perea argue that keeping non-citizens from voting takes tax-paying residents out of the political process. “We knew the residents were demanding political representation because we realized that, if we wanted to truly change how City Hall runs, we needed to change who’s allowed to vote,” he said. “This is an issue that will change the game in the city.” But opponents have argued that implementing the measure would cost the cash-strapped city upwards of $10 million. They also say that voting, at all levels of government, should remain a right of citizenship and if non-citizens want a bigger voice in civic affairs, they should work to become naturalized.
New Hampshire: Gov. Chris Sununu has days to decide the fate of a bill that would require proof of voter identification with no exceptions in future New Hampshire elections, after the legislation arrived at his desk September 9. Opponents of the bill are attempting to persuade him to veto it. House Bill 1569, which passed the Legislature in May, would require voters to produce a photo ID on Election Day or be barred from voting. It would eliminate the current law that allows people who show up to vote without photo ID to sign an affidavit attesting to their identity under penalty of perjury. And it would require that people voting in New Hampshire for the first time produce documentary evidence of their U.S. citizenship through a passport, birth certificate, or other document in order to register to vote. The bill will not affect the Nov. 5 general election if Sununu signs it this week. It is written to take effect 60 days after his signature. Sununu has been skeptical of signing the bill, stating that he is not interested in making further changes to state election laws when asked about HB 1569. But voting rights and disability rights groups are now urging Sununu to veto the bill entirely this week.
Oakridge, Oregon Ballot Measure: Voters in Oakridge will decide whether to temporarily adopt a rating-based voting system for city races. Earlier this year, Oakridge’s City Council voted 5 to 1 to place a STAR Voting measure on the ballot. The system would allow voters to rate multiple candidates on a scale of zero to five stars, rather than choosing just one. The two highest score-earners would then advance to an automatic run-off. All ballots would be recounted, and the finalist preferred by more people would win. If the Oakridge measure passes, the city would try out the system for three elections. Afterwards, voters could adopt STAR Voting permanently, or drop it. City Administrator James Cleavenger said Oakridge currently has no primary, and there’s frequently more than two candidates in a race, which leads to vote-splitting. He said STAR Voting could help address this problem.
Luzerne County, Pennsylvania: A proposed Luzerne County “election worker protection ordinance” received the four of 11 council votes required to keep it under consideration this week, and Councilwoman Joanna Bryn Smith, the ordinance author, said she already has submitted a revised version to address some concerns. For the ordinance to pass, a public hearing and majority council approval would be necessary at a future meeting. Bryn Smith sent her colleagues the revision, saying in her email she “made some changes upon reflection and Mr. Chairman’s comments in the press.” Council Chairman John Lombardo and county District Attorney Sam Sanguedolce both criticized the original proposal due to mandates it placed on the county District Attorney’s Office. It lists prohibited actions related to interference, intimidation, retaliation and harassment. Under the interference listing, for example, it states no person shall obstruct, hinder or otherwise interfere with an election official in the performance of their duties. “This includes physical, electronic or psychological barriers that impede election officials’ ability to conduct elections,” it said. The other prohibitions: Intimidation: It is unlawful to threaten, coerce, or attempt to influence an election official through fear, including the use of force, threats of force, or disclosing personal information of election officials online (doxxing). Retaliation: Retaliating against an election official for performing their duties, such as by threatening job security, personal safety, or publicly maligning their character, is prohibited. Harassment: Persistent actions, including verbal or physical conduct designed to disturb or upset an election official, are unlawful. This includes the use of derogatory or threatening language aimed at election officials through any medium. The proposal asserts these prohibitions are “in alignment” with the Pennsylvania Crimes Code, the state Election Code and applicable federal laws. The ordinance would apply to actions committed within the county and harassment or intimidation acts that originate from outside the county, it said. “This ensures that perpetrators cannot evade responsibility due to physical location, emphasizing that protections cover both digital and physical threats,” it said. The ordinance mandates the election bureau to immediately document any applicable incidents. Finally, the proposal imposes a maximum $1,000 fine or up to 90 days in the county jail if a fine is not paid by an offender found guilty. It makes violations subject to summary enforcement proceedings.
Park City, Utah: Park City leaders on September 5 delayed a decision on whether to adopt ranked choice voting for municipal contests. The elected officials indicated they want to wait for the results of a Utah Valley University study about the impacts of ranked choice voting. Mayor Nann Worel and the Park City Council expect to return to the issue once the results are released, which City Hall anticipates within several months.
Wisconsin Rulemaking: The Wisconsin Elections Commission approved the final text on a permanent administrative rule guiding the conduct of election observers at polling places in the state. After two years of work and multiple rounds of public comment, the rule will now be sent to Gov. Tony Evers who can decide to send it to a legislative committee for final approval. While this is the first permanent rule approved by the commission since the agency’s creation in 2016, the rule won’t be in effect for the election in November. The administrative rule guides how election observers are allowed to act in a polling place, where they are allowed to stand and how close to certain activities they’re allowed to be. The rule also lays out how observers can challenge certain activities they witness; when and how election officials can remove observers from the polling place; and what members of the news media are allowed to do, including taking pictures or video inside polling places. The rule was approved 5-1. Republican commissioner Robert Spindell cast the only no vote after a number of speakers during the meeting’s public comment period objected to some of the rule’s provisions and questioned if it would be approved by the Republicans who control the Legislature’s Joint Committee on the Review of Administrative Rules (JCRAR).
Legal Updates
Georgia: Superior court judge Robert McBurney dismissed a lawsuit by a Fulton County election board member linked to election denialists about whether local elections officials can refuse to certify an election. Fulton County election board member Julie Adams filed a lawsuit in May asking a judge to declare that the county election board members’ duties “are discretionary, not ministerial, in nature”. At issue is a Georgia law that says the county officials “shall” certify results after engaging in a process to make sure they are accurate. McBurney dismissed Adams’s lawsuit, saying that she had failed to name the correct party as a defendant. Under Georgia law, the principle of sovereign immunity protects state and local governments from being sued unless they agree to it. But voters in 2020 approved an amendment to the state constitution to provide a limited waiver for claims where a party is asking a judge to make a declaration on the meaning of a law. That is what Adams was trying to do when she filed her suit against the board she sits on and the county elections director. But McBurney noted in his ruling that the requirements very plainly state that any such complaint must be brought against the state or local government.
The DeKalb County Republican Party has filed a lawsuit against Georgia Secretary of State Brad Raffensperger alleging that the encryption keys for the software used in the state’s Dominion Voting System are not stored securely. The DeKalb GOP wants the Secretary of State’s Office to properly store the encryption keys and “immediately bring the Dominion systems used in Georgia elections into compliance with Georgia law.” The lawsuit alleges that the state’s Dominion system software has been in an “illegal and insecure state since at least 2020,” and that the Secretary of State’s Office has known this since March, 2024. The DeKalb GOP also wants the Secretary of State’s office to make the Dominion system logs, cast-vote records and ballot images available to itself and the public for inspection within 24 hours of polls closing on Nov. 5.
Idaho: District Court Judge Patrick J. Miller has denied Attorney General Raúl Labrador’s latest legal challenge to a ballot issue that seeks to end the state’s closed party primary elections and create ranked-choice voting in the general election. Miller dismissed Labrador’s motion for summary judgment seeking to have the signatures on the ballot initiative declared invalid. “The evidence the Attorney General submits actually negates the idea that the defendants perpetrated false statements to thousands of persons who actually signed the petition,” Miller wrote in Thursday’s ruling. Labrador had alleged that volunteer signature gatherers supporting the Idahoans for Open Primaries coalition misled the public and fraudulently obtained the signatures used to qualify the ballot initiative for the election. But in a ruling issued less than 24 hours after the two sides were in Ada County District Court , Miller wrote that Labrador’s “principal argument is not well taken for numerous reasons.” “First, the record is devoid of any evidence that the required ballot titles were not included on the initiative shown to voters or that the short title was not on every initiative signature page,” Miller wrote. “As pointed out by defendants’ counsel at oral argument, the short title was in large font on the bottom of every page of signature sheets.” In a statement released Thursday, Labrador expressed disappointment with the ruling, disagreed with the judge and reiterated his objections to the initiative. “At least, our legal challenge has raised awareness about the true nature of the initiative,” Labrador wrote in a statement released by a spokesman. “It is now up to Idaho voters to decide whether they want to replace Idaho’s primary system with a top-four primary system and fundamentally alter Idaho’s orderly general elections with an expensive ranked choice voting system that has resulted in confusion, delays and widespread voting errors in other states.”
Iowa: The Iowa Supreme Court heard its first case of the 2024 session at the University of Iowa College of Law. The case centers around Linn County Auditor Joel Miller’s accusation that the Iowa Secretary of State failed to revamp Iowa’s voter registration systems prior to the 2020 presidential election. In 2018, the state’s deputy commissioner of elections notified Iowa counties of their goal to spend roughly $8 million updating Iowa’s voter registration system. After a year, in July 2019, Miller filed a public records request with Iowa Secretary of State Paul Pate. Miller said more than $1 million of that funding should have been spent in fiscal year 2019, and he asked for copies of all correspondence regarding the issue between Pate’s office, public officials, and vendors. When Pate’s office did not issue a response within 10 days, which is the requirement for public record requests under Iowa law, Miller filed a complaint with the Iowa Voter Registration Commission where he alleged Pate did not take action to overhaul the system. In his complaint, Miller argued this failure left Iowa’s voting system vulnerable to hackers. Pate filed a motion requesting the commission dismiss Miller’s complaint, and the commission decided in a 2-1 vote to dismiss Miller’s complaint without a hearing. Miller appealed to the Polk County District Court who also denied his petition. He appealed once again, which elevated the lawsuit to the Iowa Supreme Court. During oral argument, Miller’s attorney James Larew said Miller repeatedly sought information regarding his concern about voter registration in Iowa, to which he received no response. Larew also said if there are violations in the future, they will be difficult to prove without information.
Michigan: A Kalamazoo County canvasser has signed a sworn affidavit pledging to fulfill his legal obligation to certify the November election, in response to a lawsuit brought by the American Civil Liberties Union of Michigan after he originally said he might decline to sign off on the election results. Having reached a satisfactory outcome, the ACLU will voluntarily drop its suit against the canvasser, the organization said. “This is a clear recognition there is no legal defense if you are sued for these things,” said Phil Mayor, senior attorney for the ACLU of Michigan. “This is establishing the principle that if you refuse to certify, you will be held responsible.” The lawsuit stemmed from comments the canvasser, 73-year-old Robert Froman, was reported to have made to The Detroit News last month. Froman, a Republican, said that he believed the 2020 election was stolen from former President Donald Trump, and that if the 2024 election went the same way, he would not certify, the News reported. Trump lost Michigan to now-President Joe Biden by about 150,000 votes.
Montana: Secretary of State Christi Jacobsen wants the U.S. Supreme Court to consider whether the Montana Supreme Court wrongfully struck down two voting laws passed by the 2021 Legislature, saying its request gives the court a chance to weigh in on whether state courts have authority to declare unconstitutional any law passed by a state legislature regarding voting and elections. The filing makes clear Jacobsen is pursuing a version of the “independent state legislature” theory that the high court mostly already dismissed in June 2023. In that case, it rejected claims from North Carolina Republicans who argued the state’s Supreme Court wrongfully struck down the Republicans’ congressional redistricting map, which the North Carolina Supreme Court found to be an unconstitutional partisan gerrymander. “State courts cannot ‘read state law in such a manner as to circumvent federal constitutional provisions,’ and ‘arrogate to themselves the power vested in state legislatures to regulate federal elections,’” Jacobsen’s filing with the court says. “But that’s what happened here.” Jacobsen, represented by the Montana Attorney General’s Office and private Virginia-based law firm Consovoy McCarthy, filed a petition for a writ of certiorari – a request for the Supreme Court to consider the case – on Aug. 26 after receiving an extension from the court earlier this year to file her petition. The initial application for an extension of time to file a writ request contained similar arguments as the petition filed in late August.
Pennsylvania: A state Commonwealth Court panel decided that voters in the presidential battleground of Pennsylvania can cast provisional ballots in place of mail-in ballots that are rejected for a garden-variety mistake they made when they returned it. The three-member panel ruled that nothing in state law prevented Republican-controlled Butler County from counting two voters’ provisional ballots in the April 23 primary election, even if state law is ambiguous. A provisional ballot is typically cast at a polling place on Election Day and is separated from regular ballots in cases when elections workers need more time to determine a voter’s eligibility to vote. The case stems from a lawsuit filed by two Butler County voters who received an automatic email before the primary election telling them that their mail-in ballots had been rejected because they hadn’t put them in a blank “secrecy” envelope that is supposed to go inside the ballot return envelope. Contesting the lawsuit was Butler County as well as the state and national Republican parties. Their lawyers had argued that nothing in state law allows a voter to cast a provisional ballot in place of a rejected mail-in ballot. They have three days to appeal to the state Supreme Court.
Tennessee: Nashville Criminal Court Judge Angelita Dalton has restored the voting rights of four people in Davidson County, dissenting from a contentious state requirement that imposed greater restrictions on formerly incarcerated Tennesseans. The Tennessee State Election Commission had required people with prior felony convictions to restore their gun ownership rights before their voting rights. Since many felony charges bar people from owning a gun, the rule disqualified people who would’ve otherwise been eligible to vote again. Both the state and the petitioners cited State v. Jackson, a Tennessee State Supreme Court case which determined a person may regain full citizenship rights without regaining the right to own a firearm. In her ruling, Nashville Criminal Court Judge Angelita Dalton found that while the petitioners may not be able to regain their rights to own a gun, they should have their full citizenship rights restored. “This Court finds that (the petitioner’s) permanent prohibition on possessing firearms does not render her ineligible from having her full rights of citizenship restored,” one of the four orders said. “While the Court acknowledges that Tenn. Code Ann. § 39-17-1307(b)(1)(B) requires that the lifetime firearms prohibition remain in place, the Court also understands that the Tennessee Supreme Court’s holding in State v. Johnson does not require that (the petitioner’s) gun rights be restored before she may have her full rights of citizenship restored.”
Texas: Texas Attorney General Ken Paxton is suing Travis County to block an effort to register more voters before the November election. Paxton’s lawsuit follows a decision by the Travis County commissioners to hire Civic Government Solutions to contact non-registered county residents and encourage them to register. Travis County includes Austin. “We just thought it was nice thing to do,” Ann Howard, a Travis County commissioner, said at The Texas Tribune Festival shortly after news of the lawsuit was made public. Paxton, in a statement, called the decision illegal. “Travis County has blatantly violated Texas law by paying partisan actors to conduct unlawful identification efforts to track down people who are not registered to vote,” Paxton said. “Programs like this invite fraud and reduce public trust in our elections. We will stop them and any other county considering such programs.” A spokesperson for the county said the commissioners stood by their decision. “Travis County is committed to encouraging voter participation and we are proud of our outreach efforts that achieve higher voter registration numbers,” said spokesperson Hector Nieto. “We remain steadfast in our responsibility to uphold the integrity of the voter registration process while ensuring that every eligible person has the opportunity to exercise their right to vote. It is disappointing that any statewide elected official would prefer to sow distrust and discourage participation in the electoral process.”
Washington: The Washington State Republican Party is suing King County claiming the elections department illegally used an online tool that helped voters fix problems with their ballot, and that it affected the outcome in the primary race for public lands commissioner. The state GOP alleges that King County Elections Director Julie Wise did not ensure that voter information transmitted over the app had adequate privacy and security protections because the tool is operated by a private company. The party claims Republican Sue Kuehl Pederson would have defeated Democrat Dave Upthegrove in the primary race if the app hadn’t been used. The party wants the votes that were “cured” through the app to be invalidated. The lawsuit comes one day after state officials certified the results of a hand recount in the race that was prompted by an historically close margin. As the results remained too close to call last month, the Pederson and Upthegrove campaigns worked to help voters cure their ballots before the initial results were certified. Those initial results showed Upthegrove won the second slot on the November ballot by just 51 votes over Pederson. The hand recount showed Pederson narrowly losing to Democrat Dave Upthegrove by 49 votes. The lawsuit was filed in Snohomish County Superior Court.
Wisconsin: The Wisconsin Supreme Court heard arguments this week with whether a Republican had standing to bring a lawsuit that challenges the use of a mobile voting van in 2022 and seeks to ban their use in any future election in the presidential battleground state. Such vans — a single van, actually — were used just once, in Racine in a primary election in 2022. It allowed voters to cast absentee ballots in the two weeks leading up to the election. Racine, the Democratic National Committee and others say nothing in state law prohibits the use of voting vans. Whatever the court decides will not affect the November election, as a ruling isn’t expected until later and no towns or cities asked to use alternative voting locations for this election before the deadline to do so passed. But the ruling will determine whether mobile voting sites can be used in future elections. Much of the oral argument focused on whether the Racine County voter who brought the lawsuit was “aggrieved” under state law and allowed to sue. If the court rules that he didn’t have standing, it could make it more difficult to bring future lawsuits challenging election laws.
The court also heard testimony in a case focusing on whether guardianship records provided to the Wisconsin Elections Commission when a person has been deemed incompetent to vote should be public record. The case was filed by the Wisconsin Voter Alliance, which alleges there are people who have been found incompetent by a court who are still voting in elections. The group was founded by Ron Heuer, who was part of former Conservative Wisconsin Supreme Court Justice Michael Gableman’s widely criticized 2020 review of the presidential election in the state. Alliance attorney Eric Kardaal started his arguments before the court by citing statistics from Dane County. Liberal Justice Jill Karofsky stopped Kardaal and said the case is limited to Walworth County because that was the focus of the group’s suit. “I’m afraid what you are trying to do is to introduce the fear that there is some sort of illegitimacy going on in the election in the state of Wisconsin, and that concerns me deeply,” Karofsky said. But the bulk of the discussion before the court focused on two conflicting orders from Wisconsin appeals courts based in Madison and Waukesha.
Wyoming: Joshua Hayden-Ali pleaded not guilty September 5 to criminal trespass, breach of peace and intimidation. The charges originated from an incident on Aug. 6, when Hayden-Ali entered the Laramie County Governmental Complex, allegedly disrupting an election site and tearing up election materials. As of June 29, 2023, Hayden-Ali has been trespassed from the courthouse until 2033. This means he cannot legally be in the courthouse unless he is there for official business, due to several previous incidents of disruptive and threatening behavior. On the day of the incident, Laramie County Sheriff’s Deputy Ramon Colvert responded to a call from a local coffee shop employee. Upon arriving on the scene, Ramon was able to confirm that Hayden-Ali was in the building and had been asked to leave by election officials, whom he ignored. He had been walking through the building, tapping his staff with each step he took. According to court documents, the situation escalated when Hayden-Ali proceeded into the voting area, even though he was asked to leave. He eventually left the voting area, tearing up printed election materials he had picked up and throwing the remnants on the floor. During the incident in the atrium, at least one voter told elections worker Charles Simineo that they were concerned about the safety of election officials, according to the affidavit of arrest.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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