Legislative Updates
Federal Legislation: The House unanimously passed bipartisan legislation intended to boost research into the security of election infrastructure. The Election Technology Research Act would establish and fund a Center of Excellence in Election Systems at the National Institute of Standards and Technology (NIST) to test the security and accessibility of voting equipment, along with authorizing NIST and the National Science Foundation to carry out research on further securing voting technology. The House Science, Space and Technology Committee approved the bill last year. The timing for consideration of the bill in the Senate is unclear.
Michigan: By a 34-2 vote the Senate has approved Senate Bill 757 that will allow clerks to start processing absentee ballots the day before Election Day. The bill does not allow clerks to start counting absentee ballots. Rather, the bill allows clerks to remove absentee ballots from their outer envelopes and start sorting them for counting on Election Day. The ballots need to remain in their secrecy sleeves until the morning of Election Day; if a ballot is not included in a secrecy sleeve, the bill allows clerks to place these ballots in a sleeve. The bill only allows cities with at least 25,000 residents to start processing ballots the day before the 2020 general election and no other election. The bill still needs to be passed by the state House and be signed by Gov. Gretchen Whitmer to become law.
New Jersey: Assemblywoman Verlina Reynolds-Jackson (D-Trenton) this week introduced a measure that would bar district election boards from requesting law enforcement be stationed at polling places, prevent such officers from being assigned to enforce election laws or help carry ballot boxes and make law enforcement officials ineligible to sit on district boards of elections or as challengers. “We are in unprecedented times in this nation,” Reynolds-Jackson said. “A voter’s right to cast their ballot in person may very well be jeopardized as made clear in the commentary by the President. Voter intimidation tactics and suppression has no place in New Jersey. We’ve seen the punitive effects of these anti-civil rights strategies in other states as well as in New Jersey in the past.”
Ohio: The state’s Controlling Board voted 4-2 to deny a request by Secretary of State Frank LaRose for $3 million in funding to pay for return postage for November general election ballots. “This should be a legislative issue,” said GOP state Sen. Bob Peterson, voicing the key argument that sank the spending appeal. State Sen. Bill Coley, another Republican, said LaRose’s request was going beyond the authority given to his office by lawmakers and asking them to “look the other way.” LaRose appeared personally at their virtual hearing to make his case, arguing strongly that it was within the law. “A no vote today is a no vote that is over the objection of our bipartisan election officials and over my objection as the state’s chief elections officer,” LaRose said.
South Carolina: The House voted 115-1 this week during a special session to approve rule changes for absentee voting. The House agreed with a Senate bill passed earlier this month that allowed anyone to request an absentee ballot without providing a specific excuse. Normally, there is a much narrower list of reasons for voting absentee. The bill still requires a witness signature despite objections from many Democratic lawmakers who said it jeopardizes voters’ health, and could impede the right to vote. The measure has been signed by Gov. Henry McMaster. A spokesperson McMaster said the governor will sign it. “The bill strikes a good balance between protecting South Carolinians and the integrity of the voting process,” said Brian Symmes, McMaster’s Communications Director.
Vermont: After a failed attempt to put ranked-choice voting on the November ballot, the Burlington City Council will revisit the issue in an attempt to put the issue to a vote in March 2021. Three councilors are pushing to put the question on the March 2021 ballot to let voters decide if they want to reinstate ranked-choice voting in city elections. The City Council voted 6-5 in July to put the question on the November ballot, but weeks later, Mayor Miro Weinberger struck it down, saying it’s too expensive to create a separate ballot. He also said ranked-choice voting is too divisive to focus on during a contentious presidential election. The resolution also calls on the city clerk to set public hearings to ensure voters have the information they need to make an educated decision on ranked-choice voting.
Legal Updates
Arizona: The Arizona Supreme Court has ruled that the Maricopa County recorder cannot instruct voters to cross out mistakes on their ballots for the November election. Arizona Public Integrity Alliance, a conservative political nonprofit, sued Maricopa County Recorder Adrian Fontes over a new instruction included with ballots mailed to voters in March and August. A Superior Court judge ruled that Maricopa County had likely violated the law, but said it would be logistically difficult to change the instructions this close to the election. The state Supreme Court disagreed and ordered that the county cannot include the instruction with ballots for the Nov. 3 general election.
U.S. District Court Judge Douglas Rayes has ruled that Arizona voters who forget to sign their early ballots before mailing them get up to five days after the election to fix the problem. The ruling sided with state and federal Democratic groups who argued it was unfair for election officials not to allow voters to “cure” those ballots. They argued that ballots with mismatched signatures should get five days to be fixed. But unsigned ballots are discarded if they are not corrected by 7 p.m. on Election Day.
Judge Murray Snow denied a request by Trump’s re-election campaign to argue against a lawsuit seeking to ensure mail ballots from the Navajo Nation are counted even if they arrive late. The campaign and various local and national Republican Party entities argued that they can’t count on Democratic Secretary of State Katie Hobbs to represent their interests in the case. But Snow ruled that the campaign, the GOP and Hobbs have all taken the same position against allowing more time to count ballots from the Navajo Nation. He also denied a request by a liberal group, the Arizona Advocacy Network, to join the case. The group had hoped to argue in favor of counting all late-arriving ballots statewide.
Iowa: Judge Ian Thornhill has ruled that thousands of Johnson County absentee ballot applications that were sent out with much of the information already populated, are invalid. The decision requires Johnson County Auditor Travis Weipert to void any absentee ballot application with pre-filled information returned to his office and notify voters that their request is not valid. Voters must resend a new request form in order to vote absentee by mail in November. At least 15,000 request forms pre-populated with voter’s personal information, including voter PIN numbers, were returned to the Johnson County auditor’s office last week. Voter’s four-digit PIN numbers, driver’s license numbers or other valid ID numbers are required on these forms as part of Iowa’s Voter ID law.
Louisiana: U.S. Chief District Judge Shelly Dick of Louisiana’s Middle District Court in Baton Rouge granted expanded use of mail-in ballots for the November election, ruling Wednesday that Louisiana must allow voters to cast ballots by mail if they certify they are quarantining for COVID-19 or at risk because of underlying health conditions. The ruling will allow Louisiana’s voters to request absentee ballots for the Nov. 3 general election and Dec. 5 runoff if they personally certify they are COVID-positive, quarantining pending COVID-19 test results, at greater risk because of comorbidities or caring for someone who fits those criteria. It will also require early voting for the Nov. 3 election to be held 10 days from Oct. 16, through Oct. 27, excluding Sundays, after prior plans limited early voting to a standard seven-day period.
Michigan: Genesee Circuit Judge Celeste Bell granted the Flint’s motion for summary disposition of a lawsuit brought by the American Civil Liberties Union and Flint residents, despite a request to keep the case open to handle potential election issues in the next several weeks. “I don’t see how trying to connect the November election to the August election helps anyone,” Bell said during a hearing in the case Monday. In late July, Bell had ordered Flint Clerk Inez Brown to carry out state election law related to absentee voting, including clearing a backlog of more than 1,000 requests for absentee ballots in 72 hours in response to the ACLU lawsuit.
This week, a state appeals court upheld a lower court ruling that said Secretary of State Jocelyn Benson has the right to send unsolicited absentee ballot applications to all of the state’s registered voters.
North Carolina: North Carolina’s elections board won’t try to stop enforcement of a court ruling that would allow more convicted felons to vote this fall, state Attorney General Josh Stein announced Thursday. Legislators still could appeal last week’s decision, however. Stein said in a news release that the state elections board is identifying the qualifying individuals and ultimately would provide information to them on how to register. People who want to vote on Election Day or receive a mail-in ballot must register by Oct. 9. Others can register and vote at the same time at early in-person voting sites open Oct. 15-31.
The N.C. Court of Appeals ruled this week that the state legislature had the authority in 2018 to place two Constitutional amendments on the ballot, one capping income tax and the other calling for voter ID. However, the ruling doesn’t mean that people will have to show a photo ID when they vote this yearer. There are two other ongoing lawsuits where judges have found North Carolina’s voter ID law appears to be unconstitutional, one in state court and one in federal court. As long as those other lawsuits and legal rulings continue to block voter ID from going into place, people will be able to vote without having to show ID first. The new ruling Tuesday — which dealt with the process by which the two amendments were passed, not their actual substance — can’t override those other court cases.
Republican members of the Watauga County board of elections have filed suit in Wake County over the state board of elections decision to approve an early voting site on the campus of Appalachian State University. Watauga Board members Eric Eller and Nancy Owen re arguing that Watauga County BOE Chair Jane Hodges was not acting on behalf of the full board when she notified App State that they would request the Blue Ridge Ballroom as an early voting site. “The general statute requires that the local board of elections request the use of a building 90 days in advance of the time of voting, the time of voting being Oct. 15,” said Nathan Miller, the lawyer representing Eller and Owen. “Since the board didn’t do it, the state board has zero statutory authority to essentially seize the building and take control from ASU.”
Ohio: Common Pleas Judge Stephen L. McIntosh has ruled that elections officials must allow voters to apply for absentee ballots online. The current system allows voters to request an absentee ballot application online, but the actual application itself must be printed off and filled out in ink before being physically delivered to a county elections office. McIntosh’s Friday ruling says the state must allow voters to fill out a physical form and email an image or fax it to their county elections office. “In reviewing the plain language of the statute, absentee ballot applications must be in writing and need not be in any particular form,” McIntosh wrote. “The statute does not address in what form the boards of elections are to receive absentee ballot applications. The statute only requires that the applications be made in writing.” On Friday, an appeals court halted McIntosh’s order and called for both sides to submit responses by Sept. 23.
Common Pleas Judge Richard Frye has ruled that Ohio’s county boards of elections have the authority to have multiple drop boxes for placement of absentee ballots by voters. “This restriction blocks individual county boards of elections from even considering the use of more than one drop box, or placing boxes at locations separate from board offices,” the judge wrote. “Given the ambiguity [of state law], this is not required by law. “Instead, every board of elections is legally permitted to consider enhancing safe and convenient delivery of absentee ballots, and may tailor ballot drop box locations or conceivably other secure options to the needs of their individual county,” he wrote.
South Dakota: The Rosebud and Oglala Sioux tribes have partnered with Four Direction, Inc. a voting rights and advocacy group have sued the state claiming that the state violated the National Voter Registration Act by failing to provide opportunities to register voters and update voters’ registration information at motor vehicle agencies as well as public assistance offices. The tribes claim it is the duty of these state agencies to provide services to “citizens who engage in common interactions with the offices. Because of these violations of the NVRA, South Dakota is depriving thousands of tribal members and other citizens of their federally guaranteed opportunities to register to vote and to change their voter registration addresses when these citizens interact with state agencies,” the 42-page complaint states.
Texas: A three-judge panel of the 5th U.S. Circuit Court of Appeals ruled that Texas can keep its strict eligibility rules for voting by mail. Siding with the state’s Republican leadership, the appellate judges rejected the Texas Democratic Party’s effort to expand eligibility for voting by mail to all registered voters based on their argument that the state’s age restrictions for such voting violate the 26th Amendment’s protections against voting rules that discriminate based on age. The panel of appellate judges ultimately found that “conferring a privilege” to some voters — in this case the option of voting by mail to voters 65 and older — does not alone violate the 26th Amendment.
Judge R.K. Sandill ruled that Harris County can move forward with its plan to send every registered voter an application to request a mail-in ballot for the November general election. Sandill rejected the Texas attorney general’s request for a temporary injunction blocking the plan. In his ruling, Sandill shot down the state’s claim that Harris County Clerk Chris Hollins was acting outside of his authority by sending out the applications and that the move would harm voters. “The Legislature has spoken at length on the mechanisms for mail-in voting. There are no fewer than 42 Election Code provisions on the subject,” Sandill wrote. “In those provisions, the Legislature has made clear that in order to vote by mail a voter first ‘must make an application for an early voting ballot.’ But, as to how the voter is to obtain the application, the Election Code is silent.” The state has appealed the ruling. And on Tuesday, the state Supreme Court granted the Texas attorney general’s request to temporarily halt the county’s mailing of applications while the case is appealed.
A Texas Supreme Court ruling returning Green Party candidates to the November ballot will cost McLennan County some green, as more than 8,000 absentee ballots ready for distribution will have to be scrapped and re-produced with the candidates included. The county could spend thousands extra, just for mail-in ballot materials and postage to comply with the last-minute wrangling in the courts, based on a breakdown provided by McLennan County Elections Administrator Kathy Van Wolfe showing 25 cents to produce each ballot, 10 cents each for envelopes and labels, and 65 cents each for postage. That is in addition to days of already complete staff work that will have to be repeated. “We have to start over,” Van Wolfe said. “We may have to work around the clock, but we will get it done. We had 8,100 mail-in ballots sitting in a car, ready to be carried to the Post Office, when we were notified of what happened. We’ve already been getting calls from people wanting to know about their ballot, asking, ‘When am I going to get it?’ Well, it’s going to be a little longer now, probably the end of the month.”
Vermont: U.S. District Court Judge Geoffrey Crawford rejected a challenge to Vermont’s plan to mail ballots to all of the state’s active voters so they can cast ballots by mail or in person for the November election. In a one-page judgment filed this week, Crawford denied the motion for a preliminary injunction to block the system and he dismissed the lawsuit filed by five Vermonters. Crawford did tell the people challenging the vote-by-mail system, including a town clerk and a former Republican state representative, they had 30 days to file a notice of appeal.
Wisconsin: Late last week, the Wisconsin Supreme Court put a halt to ballot mailing as it considered whether or not have ballots reprinted to include a Green Party candidate for president. On Monday the court ruled that the candidate will not appear on the November ballot thus greenlighting the sending of absentee ballots.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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