Legislative Updates
Federal Legislation: House Democrats introduced the latest version of the John Lewis Voting Rights Advancement Act, intent on beefing up a civil rights-era law cut back by a series of Supreme Court decisions. The effort still faces significant Republican opposition, however, and the prospects of a filibuster in the Senate. The bill comes after a series of House committee hearings over the past several months to establish a legislative record for modern efforts to suppress minority groups’ voting power. The bill is designed to respond to several Supreme Court decisions, including the 2013 Shelby County v. Holder decision that invalidated the mechanism for the Justice Department to preclear election law changes and the Brnovich v. DNC decision from July that restricts when an election change that causes a disproportionate impact to minority communities violates the law. The new language would provide a rolling review of preclearance — meaning the Justice Department could review election law changes in a state if it meets a certain threshold of violations. If a state accumulates 15 violations in 25 years, or 10 with one statewide violation, it would be subject to preclearance for a decade, according to the language introduced Tuesday. The bill would also add another category of “practice-based” preclearance, which would give the Justice Department oversight when a jurisdiction takes certain actions like switching from district-based to at-large elections. Sewell said that such practices have been used in the past to dilute minority votes and should be subject to extra scrutiny. Other new provisions in the bill would create a new test for violations after the fact, which Sewell said comes as a response to the Brnovich decision. The language introduced Tuesday includes two new tests: one for vote dilution cases, such as during redistricting, and another for vote denial claims, such as for a voter ID case. Another provision would allow for the Justice Department or other plaintiffs to sue over a law that has been passed but not yet implemented. That comes in response to testimony during hearings where advocates complained that litigation over a law found to be discriminatory could take years to overturn — with multiple elections occurring in the interim.
U.S. Senator Ben Ray Luján (D-NM), a member of the Senate Indian Affairs Committee, led his colleagues in introducing the Frank Harrison, Elizabeth Peratrovich, and Miguel Trujillo Native American Voting Rights Act of 2021 (NAVRA) – landmark voting rights legislation that will protect the sacred right to vote and ensure equal access to the electoral process for Native Americans, Alaska Natives, and voters living on Tribal lands. NAVRA would enact key measures, such as allowing Tribes to specify the number and locations of requested voter registration sites, drop boxes and polling locations on Tribal lands, and authorizing Tribal ID cards for voting purposes. The bill would also help establish state-level Native American voting task forces to address the unique voting issues faced by voters on Tribal lands by authorizing a $10 million Native American Voting Rights Task Force grant program. It would also require prior Tribal notice and consent before States and precincts could remove, consolidate, or otherwise reduce access to voting locations on Tribal lands. “The Native American Voting Rights Act is a key piece of legislation in the ongoing work to protect and expand native voting rights throughout the country,” said New Mexico Secretary of State Maggie Toulouse Oliver. “The Act highlights challenges faced by voters on tribal lands and empowers sovereign tribal governments to find appropriate solutions for their communities. I’m happy to endorse this legislation and I appreciate Senator Ben Ray Luján’s work in bringing it forward and seeking input from my office. I’m especially encouraged that many of the proposals in the Act track current New Mexico law which has some of the most protective voting rights laws in the country.”
Michigan: The Michigan House approved a trio of bills seeking to shore up access to electronic voter information and extend the retention periods for election documents. The bills are among dozens of pieces of Republican-sponsored legislation that have stirred controversy as opponents, especially Democrats, argue they falsely imply there were shortcomings in the security of the 2020 presidential election. One bill introduced by Rep. Sarah Lightner, R-Springport, would change state election law to limit access to the qualified voter file to the Secretary of State’s office and credentialed election officials; county, city and township clerks; and those tasked with maintaining or securing the file. It would remove “designated voter registration agency” from the list of individuals able to access the file. The bill passed 75-33. Another bill introduced by Rep. Phil Green (R-Millington), would prohibit the electronic poll book at precincts or absent voter counting boards from being connected to the internet until all results have been tabulated. The practice already is in place in precincts throughout the state, prompting some opponents to allege the new law would only serve to confuse. The bill passed 77-31. A third bill introduced by Rep. Ken Borton, R-Gaylord, changes election law to extend retention requirements for ballots from 30 days to 22 months for ballots used in a state or federal primary or election. The retention of election returns — such as tally sheets, absent voter records or poll lists — would be reduced from two years to 22 months.
State Rep. Kara Hope (D-Holt) introduce House Bill 5282 which aims to protect election workers from harassment. The bill, if passed, will make it illegal to harass, intimidate or prevent election workers from performing their duties. Those found guilty of doing so will be charged with a misdemeanor and up to 90 days in jail or a $500 fine. “This isn’t a partisan issue; it’s an issue of taking care of those who step up to do this vital but underpaid, temporary “Republican and Democratic election officials alike are being terrorized by conspiracy theorists insisting that the election was stolen despite all evidence to the contrary. This is dangerous to our democracy and to those who work hard to ensure we can exercise our right to vote.”
New York: State Senator Pete Harckham (D, Mount Kisco) is pressing for reforms statewide at boards of election with two new bills that will, respectively, increase structural efficiencies and require BOE officials to comply with the state’s code of ethics for public employees. Harckham introduced a new bill that will categorize all members, officers, and employees of the boards of elections statewide as public employees. This will ensure that all hirings of board of elections employees are based on their performance on a civil service exam instead of the current arrangement, which he said encourages patronage, nepotism and ultra-partisanship. Another bill (S. 6220) Harckham introduced earlier this year requires all board of election employees to adhere to the state’s code of ethics for public employees. The code stipulates employees cannot have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature that is in substantial conflict with the proper discharge of their duties in the public interest.
Ohio: Republicans in the Ohio House of Representatives proposed sweeping voting restrictions last week that would impose new hurdles for voters to register and cast a ballot. The legislation, if passed, would require voters to present state issued photo identification to vote, eliminate no-excuse absentee voting, prohibit the use of ballot drop boxes and more. Some of the key changes under House Bill 387, sponsored by Rep. Bill Dean, R-Xenia: Absentee voting: Current law allows any Ohio voter to obtain an absentee ballot to mail in for any reason. HB 387 would only allow this if a voter is disabled, ill or meets other narrow exceptions. It also blocks the Secretary of State from its practice of mailing absentee ballot applications to all voters. Voter identification: Current law allows Ohioans to use either a driver’s license, utility bill, bank statement, military ID or paycheck as voter identification at the polls. HB 387 would only allow state-issued photo identification, with exemptions for people with religious objections to being photographed. Drop boxes: Prohibits boards of elections from processing and counting any ballots returned to a drop box, usually sited outside a county board of elections. Some voters used them in the 2020 election to avoid crowded precincts amid a COVID-19 surge occurring at the time. Voter machines: Blocks elections officials from approving or certifying voting machines unless they’re made in the U.S.; open up their “object code” and “source code” to public inspection; use blockchain technology along with paper ballots; and are not connected to the internet.
Texas: The Texas state Senate passed Senate Bill 1, an election overhaul bill that would add new restrictions and criminal penalties to the voting process, on a 18-11 party line vote. The final vote was taken fewer than 20 minutes after a 15-hour filibuster of the bill from state Sen. Carol Alvarado concluded. The bill will next head to the House, where Democrats have delayed its passage by vacating the Capitol, though its eventual passage in the Republican-led legislature is virtually assured. SB1 includes broad new protection and access for partisan poll watchers, mail-in ballot restrictions, a drive-thru voting ban, restrictions to the early voting timeframe, video surveillance and assistance restrictions. While the bill does add one extra required hour per day of early voting, it sets a specific timeframe in which voting must be done — banning extended hours and 24-hour voting, a measure used during the pandemic in Harris County that local officials testified was especially popular with voters of color. SB1 also further restricts local election officials, for example, adding criminal penalties for sending unsolicited ballot request forms. Some Democratic amendments, like a cure process for mail-in ballot mistakes, were accepted in the final version of the bill.
Legal Updates
Federal Litigation: New York State Judge David Cohn this week signaled skepticism toward Fox Corp’s bid to dismiss Smartmatic’s $2.7 billion lawsuit that accused Fox News hosts and guests of making defamatory claims about the voting technology firm during the network’s coverage of the 2020 U.S. presidential election. During an oral argument held virtually, Judge David Cohen made comments sympathetic toward Smartmatic, which in February sued Fox here and two of Donald Trump’s former lawyers, Sidney Powell and Rudy Giuliani, after the attorneys falsely accused it of rigging votes against the former president. Smartmatic is a London-headquartered company with a U.S. unit based in Florida. The judge questioned whether there was any basis whatsoever for claims Powell and Giuliani made about Smartmatic during appearances on Fox News and Fox Business, like that the company was banned in Texas. “How is that not defamatory?,” the judge asked. “Did any evidence ever come to light that Smartmatic was banned in Texas?” A lawyer representing Fox Corp. argued that Fox News had a right under the U.S. Constitution’s protection for press freedom to report on newsworthy claims made by Trump’s lawyers. Cohen did not say when he would rule on Fox’s motion to dismiss
Arizona: The Pascua Yaqui Tribe and the Pima County Recorder’s Office announced they’ve reached a settlement in the case to reinstate the tribe’s early voting site. For the last three years, the Pascua Yaqui Tribe has been advocating for the recorder’s office to reinstate an early voting site in its reservation, going so far as to file a lawsuit against the recorder’s office in 2020. According to the settlement that was signed Thursday, for every statewide primary and general election from now till the end of 2024, the tribe will have an early voting site within its reservation. A deadline to keep them on track is in February 2022 — that’s when the tribe and recorder must agree upon a location. When Gabriella Cázares-Kelly won the election for recorder last year, she promised the community that an early voting site for the Pascua Yaqui Tribe would be one of her top priorities. “The closure of the Pascua Yaqui early voting site is a clear, modern day example of how Native American voting rights continue to remain under threat,” Cázares-Kelly said. “It reminds us that we do not all start from the same starting line and some communities have to work harder to exercise our most basic and fundamental right.”
Mi Familia Vota, Arizona Coalition for Change, Living United for Change in Arizona and Chispa Arizona filed suit in the U.S. District in Arizona this week challenging two new state election laws claims the policies are unnecessary and designed to make it harder for Arizonans to vote. Those new laws, adopted earlier this year by Republican lawmakers, would remove an estimated 150,000 voters who don’t vote frequently from Arizona’s early ballot mailing list and give voters who forget to sign their early ballot envelopes less time to fix the issue and ensure their vote is counted. They’re asking a judge to prohibit state election officials from enforcing the law on the grounds that they violate the U.S. Constitution and parts of the Voting Rights Act because of the policies’ “discriminatory intent” and, they argue, a lack of a legitimate state interest to change the way the elections are run.
Maricopa County Superior Court Judge Michael Kemp ordered the Arizona Senate to turn over thousands of outstanding documents related to the Maricopa County election review by Aug. 31, even as the legal battle over some records held by the private contractor running the effort lingers. The Senate’s attorney, Kory Langhofer, said the Senate is preparing about 10,000 documents, including emails about the audit, to release in an online reading room where records from the audit are posted. Kemp ordered their release in two weeks. A nonprofit group called American Oversight sued the Senate for records from the audit, as did The Arizona Republic. Both cases are ongoing. The Senate has said it will produce records that are in its possession, but not records held by its contractor, Cyber Ninjas.
California: Los Angeles County Superior Court Judge Mitchell Beckloff tentatively denied a petition that was filed against Los Angeles County election officials over the high costs of the Measure A recount last year, stating that the projected $240,000 cost of the recount did not violate anyone’s constitutional voting rights. Beckloff denied the Long Beach Reform Coalition’s request for the court to order county election officials to pick up the tab for collecting the roughly 100,000 ballots cast in the March 2020 election so they could be counted at a “reasonable” cost, which the coalition contended was outlined in the county’s estimated recount fee schedule. A final ruling is expected soon. In his tentative ruling, Beckloff said that while some voting laws, like those that restrict access to voting, are subject to strict scrutiny, the cost of a recount is not one of those rules. “The right to vote is separate and distinct from the right to request and obtain a recount,” Beckloff wrote in his tentative ruling. “Similarly, a right to obtain a vote recount is separate and distinct from the right to ensure one’s vote is properly counted in the first instance.” Beckloff added that the county did not deny the group’s statutory rights to conduct a recount, instead it was the cost that led the coalition to end its recount efforts. Beckloff said that state law allows for election officials to pass on the cost of a recount to the requesters and added that the coalition failed to draw a clear line in which the cost of a recount becomes unconstitutional.
Maryland: Two Republican political candidates are asking Maryland’s highest court to reverse the decision by a Circuit Court judge to throw out their lawsuit intended to block Annapolis from mailing ballots to registered voters in its upcoming elections. The appeal filed to the Maryland Court of Appeals repeats the arguments made in an initial filing to the Anne Arundel County Circuit Court in late July that the Annapolis Board of Supervisors of Elections — along with the county elections board, which helps administer the city’s elections — violated City Code by offering a vote-by-mail option to all registered voters and paying for the return postage. The high court granted that request for an expedited response on whether the court will consider hearing the appeal. Annapolis is set to begin mailing ballots for the Sept. 21 primary elections on or about Aug. 30.
North Carolina: A trial is underway this week in Wake County Superior Court of the future of ex-felon voting rights in the Tarheel State. According to the News & Observer, lawyers for both the Republican-led Legislature and for a group of challengers argued that the state’s law stripping voting rights from convicted felons has shameful roots in racial discrimination. However, two sides disagree strongly on the motivations behind the current version of the law — and specifically as it applies to people who have already finished serving their time in prison, and have rejoined society, but nevertheless remain forbidden from voting. Felons in North Carolina aren’t forever banned from voting, but they are banned as long as they remain on probation or parole. And that post-prison prohibition is the focus of a lawsuit whose trial began this week.
Texas: The Texas Supreme Court ruled this week that House Democrats who refuse to show up to the state Capitol in their bid to prevent Republican lawmakers from passing a voting restrictions bill can be arrested and brought to the lower chamber. The all-Republican court sided with Gov. Greg Abbott and House Speaker Dade Phelan — and ordered a Travis County district judge to revoke his temporary restraining order blocking the civil arrest of Democratic lawmakers whose absences have denied the chamber the number of present members needed to move any legislation. “The legal question before this Court concerns only whether the Texas Constitution gives the House of Representatives the authority to physically compel the attendance of absent members,” Justice Jimmy Blacklock wrote in the court’s opinion. “We conclude that it does, and we therefore direct the district court to withdraw the TRO.”
NYC Wins When Everyone Can Vote! Michael H. Drucker
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