Legal Updates

Alabama: A three-judge panel of the 11th U.S. Circuit Court of Appeals blocked a lower court’s ruling loosening some absentee voting restrictions in Alabama, but let a decision allowing curbside voting to stand. The three-judge panel, consisting of U.S. Circuit judges Adalberto Jordan, Jill Pryor and Barbara Lagoa did not immediately issue an opinion on their ruling. Alabama Secretary of State John Merrill said in a statement that the ruling “maintains the integrity and security of elections in our state,” but said they would appeal the curbside voting decision to the U.S. Supreme Court. “While our office is currently unaware of any county planning to provide curbside voting for the November 3, 2020 General Election, we intend to appeal to the Supreme Court to see that this fraudulent practice is banned in Alabama, as it is not currently allowed by state law.” There is no explicit curbside voting ban in Alabama law, but Merrill has shut down curbside voting operations in the past that he said did not follow the law.

Alaska: The Alaska Supreme Court has ruled that Alaskans do not need to have a second person sign their absentee ballots. A record number of Alaskans are voting absentee this year, and “improper or insufficient witnessing” has consistently been the top reason for rejected absentee ballots during the past few primary elections, according to Division of Elections statistics. State law ordinarily requires absentee voters to sign their ballots and get the signature of a witness who is at least 18 years old, but a group of Alaskans sued last month to pause the witness requirement during the COVID-19 pandemic. The witness requirement will not be enforced this year, though ballots’ written instructions will still say that a second signature is required. The division is planning to release an instructional video about how to properly fill out an absentee ballot, it said after the ruling.

Arizona: The 9th Circuit Court of Appeals on Tuesday night ordered an early end to an extension of Arizona’s voter registration deadline that was ordered by a judge after pandemic restrictions led to a decrease in people signing up to vote. The 9th Circuit Court of Appeals said voter registration will end on Thursday, instead of Oct. 23, concluding the extension posed a significant administrative burden on election officials who are now dealing with early voting. The court also said Democratic Secretary of State Katie Hobbs would likely succeed in her appeal of the court order that extended the deadline. Arizona has recorded more than 43,000 new registrations in the week since the deadline was extended. People who have already completed registrations during the extension period will be allowed to vote in the Nov. 3 general election. The appeals court also gave Arizonans a two-day grace period to complete their registrations.

The Pascua Yaqui Tribe filed a lawsuit against Pima County Recorder F. Ann Rodriguez as it continues its push to reinstate the former early in-person voting site in its reservation. The tribal government’s immediate goal is to reopen the early in-person voting site that the Pima County Recorder’s Office closed in 2018 and a ballot drop-off site to operate October 26 – November 2. According to the lawsuit, the recorder’s office has closed an additional three early voting sites within the Tohono O’odham Nation since 2018. Though the Pascua Yaqui Tribe’s reservation is urban, the Tohono O’odham Nation is rural. It’s approximately the size of Connecticut and has one early in-person voting site in it.

California: The Howard Jarvis Taxpayers Association, a group that represents taxpayer interests, is suing California Secretary of State Alex Padilla in order to stop his office from carrying out a $35 million voter outreach contract the group says unfairly targets certain voters. The suit alleges that Padilla violated the law in executing the contract for a voter outreach campaign. The contract for the campaign, dubbed “Vote Safe California” went to the political consulting firm SKDKnickerbocker. The scope of work from the Secretary of State’s Office said the campaign team “must include a (get-out-the-vote) targeting expert.” In its suit, the taxpayer association claims such a targeted effort could unfairly affect the result of the elections. “By focusing (i.e. ‘targeting’) the voter outreach, the political consulting firm can and will necessarily affect voter turnout of certain types of voters more than others and in some parts of the state more than others,” the suit said. “This can and will affect the outcomes of elections – indeed that is what targeted GOTV is intended to achieve.”

Delaware: Vice Chancellor Sam Glasscock III rejected a request by the League of Women Voters to override state election law and allow absentee and mail-in ballots received after the state-mandated deadline in November’s election to be counted. Delaware law has long required that absentee ballots be received by the time polls close at 8 p.m. on Election Day. The same deadline applies to ballots cast under a universal vote-by-mail law enacted by the General Assembly specifically for this year’s elections because of the coronavirus. The League of Women Voters, represented by the American Civil Liberties Union and a Wilmington attorney, did not argue that the deadline as applied in past elections was facially unconstitutional. They claimed instead that the new law is unconstitutional as applied to the November election because, even though it makes voting much easier, voting by mail is a burden for some people. “At the time the Vote-by-Mail statute was enacted, the absentee ballot deadline, which the plaintiffs agree was constitutional with respect to the law as it then existed, already required Election-Day ballot receipt,” the judge wrote. “I find nothing about the liberalization of the ability to mail ballots in the Act that created a constitutional violation. Those choosing to mail ballots have always had to vote sufficiently early to ensure delivery by Election Day.”

Florida: U.S. District Court Judge Mark Walker denied a request by voters’ rights groups to extend Florida’s voter registration deadline after the website crashed Monday, but he blasted the state for another election-related failure. “This Court notes that every man who has stepped foot on the Moon launched from the Kennedy Space Center, in Florida,” Walker wrote in his ruling. “Yet, Florida has failed to figure out how to run an election properly — a task simpler than rocket science.” Secretary of State Laurel Lee extended the original Monday deadline to 7 p.m. Tuesday after the online system failed, but a coalition of liberal groups, including Florida New Majority and the Dream Defenders, claimed that wasn’t enough and some people were still unable to register. Walker ruled that it was “an incredibly close call” but “the state’s interest in preventing chaos in its already precarious — and perennially chaotic — election outweighs the substantial burden imposed on the right to vote.” Walker cited testimony from Leon County Supervisor of Elections Mark Earley, who stated in an affidavit that a further extension would “serve to reinforce the confusion and mistrust voters have surrounding this election.” The additional time meant some supervisors would struggle to get new people on the rolls in time, meaning any voter who registered at the last minute would have to cast a provisional ballot when they showed up at the polls. Provisional ballots are not automatically counted, and voters must provide additional proof after the election to show they were eligible to vote.

Georgia: U.S. District Judge Amy Totenberg expressed serious concerns about Georgia’s new election system but declined to order the state to abandon its touchscreen voting machines in favor of hand-marked paper ballots for the November election. The ruling came in a lawsuit filed by voting integrity activists that challenges the election system the state bought last year from Dominion Voting Systems for more than $100 million. The activists argued that the system places an unconstitutional burden on the right to vote because voters cannot be confident their vote is accurately counted. The activists’ challenge “presents serious system security vulnerability and operational issues that may place Plaintiffs and other voters at risk of deprivation of their fundamental right to cast an effective vote that is accurately counted,” Totenberg wrote in a 147-page order issued Sunday night. “The Court’s Order has delved deep into the true risks posed by the new BMD voting system as well as its manner of implementation,” Totenberg wrote. “These risks are neither hypothetical nor remote under the current circumstances.”

U.S. District Judge Michael Brown dismissed a lawsuit over long lines at the polls in Georgia, deciding that election officials — not courts — are responsible for voting equipment, training and backup plans. Brown said he disagreed with the plaintiffs’ contention that lines are “all but certain” to occur Nov. 3 after election officials made improvements since Georgia’s primary election. Brown wrote that election officials have recruited more poll workers, added tech support staff, increased voting locations and improved absentee voting options. “The evidence shows defendants have taken extensive measures to address the issues that caused long lines in the past,” Brown wrote in a 78-page order. “It is possible, of course, these measures will ultimately prove insufficient and long lines will still arise. But that is not the point; no one, including this court, can guarantee short lines.”

Indiana: The 7th U.S. Circuit Court of Appeals reversed a district court’s decision to extend absentee voting in Indiana, reinstating Indiana’s Election Day deadline to receive the mail-in ballots. The decision from the 7th Circuit means absentee ballots must once again be received by noon on Nov. 3 to be counted. U.S. Appeals Court Judge Frank Easterbrook in the decision said that, as long as Indiana allows in-person voting, “there is no constitutional right to vote by mail.” “It is rational to require absentee votes to be received by Election Day, just as in-person voting ends on Election Day,” Easterbrook wrote in the decision. Easterbrook added that “people who worry that mail will be delayed during the pandemic can protect themselves by using early in-person voting or posting their ballots early.” “Deadlines are essential to elections, as to other endeavors such as filing notices of appeal or tax returns,” he said. “That some ballots are bound to arrive after any deadline does not justify judicial extensions of statutory time limits.”

Louisiana: Hours after the New Orleans city council voted to sue the secretary of state’s office over its refusal to allow additional drop-off locations for absentee ballots, a civil court judge issued a temporary restraining order allowing the city to move forward with additional drop-off locations. According to a local news station, on Wednesday morning, councilmembers called a special meeting and described Secretary of State Kyle Ardoin’s decision to noy allow more locations an act of voter suppression. In Orleans Parish, that limits drop-off locations to City Hall and the Algiers courthouse. The Council and Orleans Parish Registrar’s Office planned to add locations across the city that would be staffed by the registrar’s employees. “The law requires the ballots be dropped off at the registrar’s office, so those curbside locations have to be at a registrar’s office,” Ardoin said on Oct. 8. Plaintiffs argued that the law was being interpreted incorrectly because the word “office” is never mentioned in the law.

Minnesota: Judge Wilhelmina Wright has granted an injunction allowing the race for Minnesota’s 2nd Congressional District to return to the November 3 general election. The race had been moved to a February special election under state law, following the sudden death of a candidate. In the ruling Wright questioned the language of the state law triggering the special election, noting it was created following the death of Sen. Paul Wellstone prior to the November 2002 election. In that case, the death of the incumbent also created a vacancy in the seat, as opposed to the death of an unelected nominee. The judge’s ruling also suggested that federal law would preempt the Minnesota statute in this case.

U.S. District Judge Nancy Brasel has upheld a Minnesota state court agreement that allows the counting of absentee ballots received up to seven days after Election Day. Brasel ruled that the plaintiffs in the case — state Rep. Eric Lucero and another Republican who serves as an elector in the presidential election — don’t have standing and denied their motion for a preliminary injunction. She said giving voters conflicting information after absentee ballots have gone out would create confusion. “This is a difficult genie to put back in the lamp,” Brasel ruled.

Missouri: The Missouri Supreme Court has rejected efforts by voting rights groups to make it easier to vote by mail because of the coronavirus pandemic. In an opinion issued Friday, the state’s high court agreed with a lower court judge that a fear of contracting COVID-19 was not the same as being unable to vote because of illness. The ruling has its roots in an April lawsuit filed by the Missouri NAACP and the League of Women Voters. They argued the Missouri law allowing individuals to cast an absentee ballot if they cannot vote in person due to “incapacity or confinement due to illness or physical disability” should apply to individuals who wished to stay home to avoid contracting COVID-19. Individuals who are eligible for an absentee ballot because of illness do not have to have their signature validated by a notary.

In a separate ruling on the same topic, U.S. District Judge Brian Wimes allowed voters using mail-in ballots this fall to return them to election authorities in-person Friday. But then he nixed his own order Saturday afternoon as the state appealed to a higher court. Wimes’ initial ruling on Friday would have tweaked a controversial requirement for casting mail-in ballots by allowing voters to return mail-in ballots for the Nov. 3 election in person. The current statute, enacted earlier this year by the Legislature, required that the ballots be sent by mail and that the ballot envelope be notarized. Wimes’ order did not address the notarization requirement. The state argued in its emergency motion seeking a stay that voting under the current process “is already in full swing,” and that almost 60,000 Missourians had already voted by absentee ballot as of Sept. 30. Local election authorities “lack the staff and resources to implement a new process midway through voting-by-mail,” the state argued. “This attempt to change the rules for voting-by-mail weeks after it started is like asking the Court to change the rules for in-person voting at noon on Election Day, after hundreds of thousands of voters have already cast their ballots. The relief far exceeds the proper role and authority of the federal courts.”

Montana: Ballots are now officially in the mail after the U.S. Supreme Court refused to take up a case challenging the governor’s authority to allow counties to decide whether or not the 2020 election can be conducted entirely by mail. Justice Elena Kagan rejected the application for injunctive relief from the Ravalli County Republican Central Committee and others without an explanation Thursday afternoon. The Ninth Circuit denied the group’s emergency motion on Tuesday, which would have prevented state election offices from mailing ballots to all registered voters on Friday. In a statement on the Supreme Court’s denial, Montana Governor Steve Bullock, a Democrat, expressed confidence in election officials across the state. “Our local election administrators are well prepared to make sure Montanans can exercise their right to vote and to protect the integrity of our election, while keeping our citizens safe,” he said. “I’m pleased they will be able to move forward with doing just that.”

The Blackfeet Nation announced Wednesday that it settled with Pondera County officials after the county allegedly refused to open a satellite voting office on the reservation. Jacqueline De Leon is a staff attorney for the Colorado-based Native American Rights Fund, which helped the Blackfeet Nation file a case in federal court last week after the tribe requested that Pondera County open a satellite voting office on the reservation. The tribe argued failure to do so would violate federal and state law. De Leon says the county has now agreed to open a satellite office in Heart Butte on Oct. 19, settling the case.

New Jersey: The League of Women Voters of New Jersey and the ACLU-NJ have filed suit seeking to have the same electronic delivery system used to send ballots to overseas and military voters be used for New Jersey voters displaced from their homes due to the pandemic. According to the lawsuit, nearly a third of 138 complaints from New Jersey made during July’s primary election to a national voter-protection hotline involved active, registered voters never receiving their ballots in the mail despite “good faith efforts.” The lawsuit points out a “significant number” of the 40 or so voters had requested their ballots be sent to temporary addresses, including college students whose schools had closed and who instead sought their ballots at family homes. It also notes that other New Jersey voters are displaced and at temporary addresses due to the economic effects of coronavirus.

New York: State Supreme Court Judge Maria Rosa turned down efforts to give Bard College students a better voting location in a decision that noted arguments citing social distancing concerns did not factor in expanded mail-in ballots. Rosa said efforts to have Dutchess County Board of Elections move voting to a better location than Episcopal Church of St. John the Evangelist, at 1114 River Road, should have gone through an administrative review before going to court. “Petitioners commenced this Article 78 proceeding on September 4, 2020 challenging respondents’ March 13, 2020 polling place designation,” she wrote. “Petitioners did not file a declaratory judgment action or articulate a theory … proving grounds upon which the court could direct the Board of Elections to take any specific action based on the COVID19 pandemic.”

North Carolina: U.S. District Court Judge William Osteen ordered more changes Wednesday to absentee voting rules after hundreds of thousands of mail-in ballots have been cast and as early, in-person voting gets underway Thursday. Osteen criticized the NC State Board of Elections, saying it had misconstrued or misinterpreted findings he made in August in a way that changed election rules from what had been decided by the state lawmakers who hold authority under the U.S. Constitution to do so. Osteen told the board of elections Wednesday that it cannot accept ballots without witness signatures. He said the board can still allow voters to fix minor problems like addresses or signatures written on the wrong lines. The two other rule changes made by the settlement allows for the board for elections to continue collecting ballots through Nov. 9 if they are postmarked by 5 p.m. Nov. 3, Election Day. The other allows ballots to be counted if they are left in drop boxes at early-voting sites and elections offices.

Ohio: The legal seesaw over the use of drop boxes in Ohio has tipped this way and that. U.S. District Judge Dan Polster blocked Ohio Secretary of State Frank LaRose’s order, which prohibited off-site drop boxes. Polster found that limiting each county to one drop box location had a “disproportionate effect on people of color” living in more populous counties, imposing a “significant burden” on their right to vote. “While it may be said that the 7,903 registered voters in Noble County may find a single drop box location sufficient, the record demonstrates that the 858,041 registered voters in Cuyahoga County will likely not,” wrote Polster, who was appointed by former President Bill Clinton. Polster pointed out that limiting “outside” collection to board premises would ban Hamilton County election officials from doing what they did during the primary: going out with plastic trays to collect ballots from voters in vehicles waiting to deposit their ballots. LaRose appealed Polster’s ruling to the U.S. Sixth Circuit Court of Appeals which agreed to temporarily reinstate the limits. Judges Richard Griffin and Amul Thapar in an order Friday night sharply criticized Polster’s ruling. Griffin and Thapar said Secretary of State Frank LaRose’s decision to limit ballot drop boxes, used to store completed absentee ballots, to one site per county was reasonable, and sided with LaRose’s arguments that making a change during an election would pose a security risk. They also said legal precedent weighs against making late-stage changes to election procedures through the courts. “And these state interests, taken together, justify the burden that it places on this one method of voting in Ohio. Accordingly, we conclude that LaRose has made a strong showing that he is likely to succeed on appeal,” they wrote.

Pennsylvania: Common Pleas Judge Gary Glazer rejected the president’s campaign’s request to have poll watchers at satellite election offices. The campaign sued earlier this month so poll watchers could be allowed inside Philly’s satellite election centers, like at City Hall. But the judge essentially said in his opinion these centers really are offices and not polling places, so the judge decided poll watchers should not be allowed. In his opinion, Common Pleas Judge Gary Glazer wrote: “The satellite offices where these activities, and only these activities, occur are true offices of the Board of Elections and are not polling places.” The campaign has appealed the ruling.

U.S. District Court Judge J. Nicholas Ranjan has thrown out a lawsuit by the president’s campaign that tried to limit the swing state’s use of drop boxes in the current presidential election. The lawsuit also challenged the Pennsylvania secretary of state’s guidance that mail-in ballots shouldn’t be rejected if the voter’s signature doesn’t match the one on file, and a state restriction that poll watchers be residents of the county where they are assigned. Ranjan, who wrote the opinion, was reluctant to second-guess the judgment of the state legislature and election officials. “Perhaps Plaintiffs are right that guards should be placed near drop boxes, signature-analysis experts should examine every mail-in ballot, poll watchers should be able to man any poll regardless of location, and other security improvements should be made,” Ranjan wrote. “But the job of an unelected federal judge isn’t to suggest election improvements, especially when those improvements contradict the reasoned judgment of democratically elected officials.” In his 138-page ruling, the also noted that the campaign had offered no hard evidence that voter fraud would actually occur. Instead, Ranjan wrote, the campaign had simply provided a series of “speculative” assumptions: They assume that “potential fraudsters” might try to fill drop boxes with forged ballots, and that the election security measures in place won’t work to prevent that fraud.

Tennessee: The Davidson County Election Commission filed a lawsuit to seek guidance on the petition by 4GoodGoverment calling for a charter amendment related to limiting increases of the county property tax. The election commission is asking the court to define the scope of the commission’s authority and to decide whether the petition satisfies the legal requirements for a ballot measure. According to WSMV, The comments at a public hearing made it clear that the legality of the petition would be tested in court. After the public comments, members of the Election Commission decided that the interests of the taxpayers and the city would be best served by seeking judicial guidance before voting on whether to place the referendum on the ballot.

Texas: On Friday U.S. District Judge Robert Pitman block Gov. Gregg Abbott’s order preventing counties from having more than one ballot drop-off sites. On Saturday, the U.S. 5th Circuit Court of Appeals issued a temporary stay of Pittman’s order meaning counties are currently still limited to one ballot drop-off site. In his ruling, Pitman said the governor’s directive confused voters and restricted voter access. “By limiting ballot return centers to one per county,” Pitman wrote, “older and disabled voters living in Texas’s largest and most populous counties must travel further distances to more crowded ballot return centers where they would be at an increased risk of being infected by the coronavirus in order to exercise their right to vote and have it counted.” In the appeal, Attorney General Ken Paxton argued that Abbott’s order applied to a “small subset of voters who are eligible to vote by mail and could rely on the postal service yet simply prefer to hand-deliver their marked ballot.” On Monday the 5th Circuit ruled that the state can limit the drop-off sites to one per county. “These methods for remote voting outstrip what Texas law previously permitted in a pre-COVID world,” the court said. “The October 1 Proclamation abridges no one’s right to vote.” The court agreed with the state’s assertion that Abbott’s rule is a refinement of an expansion of voting options, not a restriction of rights.

A last-minute attempt by Texas Republicans to limit drive-thru voting in Harris County was dismissed by the Appeals court. The state GOP had filed suit Monday night asking the court to place limits on curbside voting and halt drive-thru voting. The appellate judges said the party and a voter who filed the suit did so too late, and did not show how they specifically might be injured by the voting practices. The lawsuit was filed just hours before early voting polls opened and more than a month after the Harris County Clerk announced his plan for drive-thru voting. “The election is currently in progress and the relators delayed filing this mandamus until over a month after learning of the actions of the Harris County Clerk’s Office,” the panel of three judges on Texas’ 14th Court of Appeals wrote in their ruling dismissing the case.

District Judge Karen Pozza has ruled the Bexar County Elections Department must open additional Election Day polling sites. Pozza said the county must add 18 voting centers and publicize the Election Day sites 21 days before the election, according to the Texas Civil Rights Project. The order has not been formally signed as of Wednesday afternoon. The lawsuit was filed by progressive organizations MOVE Texas and the Texas Organizing Project. The order requires that Bexar County must increase its number of Election Day voting centers from 284 sites to 302 — the same number used in the 2018 midterm elections. The plaintiffs had asked for 311 voting sites but amended their request.

Virginia: After a fiber optic cable was accidentally cut taking the state’s online voter registration system offline on deadline day, advocates sued to extend the voter registration deadline. U.S. District Judge John A. Gibney, Jr. extended the deadline through Oct. 15. Lawyers for a trio of voter advocacy groups who sought the deadline extension argued that people who wait until the last day to register tend to be minorities and younger adults. Gov. Ralph Northam (D), Virginia Attorney General Mark R. Herring (D) and several state lawmakers readily agreed to the deadline extension. During Wednesday’s hearing, the judge gently chastised the workers who failed to take preventive measures that would have kept the fiber-optic cable safe. He also noted that Virginians who were most affected by the accident had waited until the last day to register. “Maybe people will learn two lessons from this case,” Gibney said. “One is to call Mr. Utility, and the other is to not let things go until the last minute.”

Wisconsin: In a 2-1 decision, the 7th US Circuit Court of Appeals sided with the Wisconsin legislature and the Republican National Committee to stop a lower federal court order on the ballot deadlines. A district court last month had ruled for the Democratic National Committee in extending online voter registration until October 21 and extending the deadline for absentee ballots to be received from the night of Election Day to up until November 9 — as long as they are postmarked before Election Day. “The State Legislature offers two principal arguments in support of a stay: first, that a federal court should not change the rules so close to an election; second, that political rather than judicial officials are entitled to decide when a pandemic justifies changes to rules that are otherwise valid. We agree with both of those arguments, which means that a stay is appropriate,” the two judges said. Plaintiffs have appealed the case to the U.S. Supreme Court.

Judge William Griesbach has denied a petition from the Wisconsin Voters Alliance that argued that grants from The Center for Tech and Civic Life to five cities totaling $6.3 violated federal law. “Plaintiffs have presented at most a policy argument for prohibiting municipalities from accepting funds from private parties to help pay the increased costs of conducting safe and efficient elections. The risk of skewing an election by providing additional private funding for conducting the election in certain areas of the State may be real. The record before the Court, however, does not provide the support needed for the Court to make such a determination, especially in light of the fact that over 100 additional Wisconsin municipalities received grants as well. These are all matters that may merit a legislative response but the Court finds nothing in the statutes Plaintiffs cite, either directly or indirectly, that can be fairly construed as prohibiting the defendant Cities from accepting funds from CTCL. Absent such a prohibition, the Court lacks the authority to enjoin them from accepting such assistance. To do so would also run afoul of the Supreme Court’s admonition that courts should not change electoral rules close to an election date.” Griesbach wrote. The case remains open. The judge has not ruled on the municipalities’ request for the case to be dismissed.










NYC Wins When Everyone Can Vote! Michael H. Drucker