Legislative Updates/Emergency Rulemaking

New York: Assemblywoman Nily Rozic (D-25th District, Queens) introduced a bill that would allow the voter registration of a domestic violence survivor to be kept confidential based on a written request, cutting out the need for court approval. Current law allows victims of domestic violence who obtain a court order to have their voter registration record sealed from the public. Under a separate section of the law, survivors can also be excused from going to their polling place to vote and get a special ballot if they so choose. No court order is needed to apply for such a ballot. Rozic’s measure would go further by allowing a victim of domestic violence to easily opt-in to voter confidentiality by delivering a signed written statement to their local board of elections swearing or affirming that “because of the threat of physical or emotional harm to themself or to family or household members, they wish for their registration record to be kept confidential.” “New York needs to do everything it can to make sure people register to vote — including breaking down barriers for domestic violence survivors too scared to register because exposing their address puts them in harm’s way,” Rozic said.

North Dakota: Gov. Doug Burgum signed an executive order granting a request from county auditors to allow processing of absentee ballots to begin on Oct. 29th, ensuring that election workers have adequate time to verify voter information and ensure election integrity and timely results on Election Day. Existing state law only allows local election boards to process absentee and mail ballots beginning the day before and the day of Election Day. To avoid a significant delay in reporting election results after the polls close on Election Day, the North Dakota County Auditors Association requested additional time for local election boards to conduct the initial verification and securing of absentee and mail ballots. Executive Order 2020-13.1 gives absentee ballot counting boards more time to complete their duties as prescribed by law but does not alter the process that must be completed. Local election boards may not count votes or generate vote totals or election results until after the polls have closed on Election Day. “This executive order will ensure counties are able to guarantee the highest level of election integrity while ensuring the timeliness of election results, critical to the democratic process,” Burgum said.

Legal Updates

Alaska: The Alaska Supreme Court will not require the Alaska Division of Elections to notify voters before Election Day if their absentee ballots have been rejected. The state’s high court said it will not review a lower-court order that denied a preliminary injunction sought by two progressive groups and a Sitka man. Elections officials had tentatively marked 217 ballots for complete rejection and another 323 for partial rejection, according to a daily count published Friday morning. That’s less than four-tenths of 1% of all absentee ballots returned so far. Rejections will not be confirmed until the state’s absentee ballot review board begins meeting next week. State law requires that the voters of rejected ballots be notified within 30 days after the general election results are certified.

Arizona: U.S. District Judge James Soto refused to order a southern Arizona election official to open an early voting and ballot collection site for the Nov. 3 election on a Native American reservation on the edge of Tucson. Soto rejected an effort by the Pascua Yaqui tribe to force Pima County Recorder F. Ann Rodriguez to open an early voting site. Rodriguez cited low usage and other factors for her decision to stop running a site on the reservation after the 2016 election. The Pascua Yaqui Tribe last week filed a lawsuit seeking an order for Rodriguez to operate early voting and ballot collection sites on its reservation from Oct. 26 through Nov. 2. Soto noted that the tribe waited until just three weeks before Election Day to sue, and he said it had not made a case that any tribal members will be denied the ability to vote without such a site. He also said the tribe has options to help members vote, including taking those without transportation to the nearest site using the tribe’s fleet of vehicles.

Arkansas: U.S. District Judge P.K. Holmes rejected an effort to require Arkansas election officials to give absentee voters a chance to correct their ballots before they’re rejected due to signature issues. Holmes denied the motion for a preliminary injunction in the lawsuit filed by the League of Women Voters of Arkansas. State law requires election officials to reject absentee ballots that are missing a voter’s signature or if there’s a mismatch between the signature, address or date of birth on the absentee ballot and the application materials. The group’s lawsuit said state law regarding absentee ballots disenfranchises voters because they’re not given any notice or chance to cure any deficiencies.

Georgia: A three-judge panel of the 11th U.S. Circuit Court of Appeals ruled against requiring up-to-date paper copies of voter registration and absentee voting information at Georgia polling places on Election Day. The Appeals Court granted a stay of a judge’s order that would have provided a backup copy of voter records in case computers fail on Nov. 3. The panel’s two-page decision didn’t explain its reasoning. One of the judges dissented. Attorneys for Secretary of State Brad Raffensperger had argued that printing paper backups would have been a “Herculean task” on the weekend before Election Day. “We thank the 11th Circuit for recognizing that, with record turnout and the difficulties of conducting an election during a pandemic, local election officials have enough on their plates without last-minute additions from federal judges,” Raffensperger said Saturday.

Indiana: A three-judge panel on the 7th Circuit Court of Appeals ruled that only elections officials may petition to keep the polls open later than closing time. The ruling also said that the U.S. District Court for the Southern District of Indiana executed poor judgment in its original ruling in September against the election law because the court acted too close to the Nov. 3 elections. “Just like voters had many months since the SARS-CoV-2 pandemic ensued in this country this March to adjust to the election rules, plaintiff had more than a year to challenge these amendments,” wrote the judges, referring to voting rights group Common Cause Indiana. “The problems plaintiff alleges with the amendments are not new, yet plaintiff asks that these duly enacted statutes be suspended on the eve of the election.”

Kentucky: DeShawn Bojgere, 30, of Louisville, has been charged with delay or destruction of mail. Bojgere as charged with tossing dozens of absentee ballots and other mail that was found in a dumpster in Kentucky, the U.S. attorney’s office said. The mail included approximately 111 general election absentee ballots that were being mailed form the Jefferson County clerk’s office to voters, as well as 69 mixed class pieces of mail, 320 second-class pieces of mail and two national election campaign flyers from a political party in Florida, the release said.

Louisiana: Judge Lewis Pitman, of the 16th Judicial District in St. Martin Parish has ruled against Attorney General Jeff Landry in his lawsuit seeking to block millions of dollars in free grants to local election officials, which were offered up by a nonprofit backed by Facebook founder Mark Zuckerberg with the stated goal of helping local leaders run elections in a pandemic. “The judge said we had no cause of action,” Landry said. “I just think he was a little confused. These issues can sometimes become complicated. I think he misapplied the procedure.” Landry said in an interview he would appeal the ruling.

Maine: Alyssa Dau, 19 of Orono has been charged with two Class C felonies: voting in the name of another and forging the name of another on an absentee ballot return envelope. Each is punishable by up to 5 years incarceration and a $5,000 fine. Dau is accused of allegedly used a former roommate’s absentee ballot to cast a vote. The case was apparently motivated by “a personal dispute” rather than an effort “to influence the outcome of the election,” said Marc Malon, a spokesperson for Maine Attorney General Aaron Frey. Town election officials in Orono caught the alleged violations before the ballot had been processed and alerted the secretary of state’s office, which relayed it to the attorney general for investigation, according to Malon.

Michigan: Two lawsuits were filed seeking to nullify Secretary of State Jocelyn Benson’s directive to ban the open carry of guns at polling places and other sites on Election Day. Both suits were filed in the Michigan Court of Claims. One suit was filed by gun rights activist Thomas Lambert and three nonprofit organizations: Michigan Open Carry Inc., Michigan Gun Owners and the Michigan Coalition for Responsible Gun Owners. The other suit was filed by Robert Davis, a Wayne County activist and serial litigator. Benson’s directive specifically acknowledges those with a license to carry a concealed weapon must continue to follow the law and guidelines that apply to where they’re allowed to carry. One suit argues that the directive forces Michiganders to choose between two constitutional rights and the other suit argues that Benson’s directive to local clerks is essentially a new rule she has created under state election law, but the rule was not created in accordance with public notice and other requirements of the state Administrative Procedures Act. Court of Claims Judge Christopher Murray has issued a preliminary injunction that stops the ban on open carry guns at the polls. The Michigan Attorney General says she will take the case to the Court of Appeals in this statement: “We intend to immediately appeal the judge’s decision as this issue is of significant public interest and importance to our election process.” Attorney General Dana Nessel and Secretary of State Jocelyn Benson have appealed the decision seeking an expedited relief request. n the brief, they argued that the ban on open carry of firearms on Nov. 3 was to protect every Michigander’s right to vote. “Make no mistake. This is a voting rights case,” reads the opening line of the state’s brief to the Michigan Court of Appeals.

The Michigan Court of Claims declined to issue a preliminary injunction that would have upended online absentee ballot applications in a case brought by the Election Integrity Fund and Glen Sitek. The group in a lawsuit against Secretary of State Jocelyn Benson argued the online absentee ballot applications impermissibly allowed voters to copy the signature from their driver’s license instead of signing with ink. But the request for a preliminary injunction came too late, ruled Court of Claims Judge Cynthia Stephens, who noted that the request came months after the defendant, the Secretary of State, started publicizing the online system in June. It wasn’t until weeks after the August primary that the lawsuit was filed, she said, and a month after that the Election Integrity Fund requested the preliminary injunction. “Plaintiffs have not given the court a compelling reason why it should exercise its discretion to grant preliminary injunctive relief on the eve of an election, given the delay occasioned in bringing this matter,” Stephens wrote in her opinion.

A Lawsuit is challenging the rules ordered by Secretary of State Jocelyn Benson for partisan poll challengers on Election Day. The complaint filed with the Michigan Court of Claims says distancing and face covering directives will make it too difficult for poll challengers to see what’s going on as voters are checked in at voting sites. “They’re concerned, rightfully so, that recent restrictions that were put in place in regard to COVID and poll site safety, are not going to allow election challengers to perform their duties,” Matthew Gronda an attorney representing a Republican state House candidate and an election day volunteer told WNMU. The case has been assigned to Michigan Court of Claims Judge Cynthia Stephans, who’s been dealing with much of the cyclone of high-stakes litigation with the approach of Election Day next week. On Wednesday the plaintiffs and the state announced in front of Michigan Court of Claims Judge Cynthia Stephens that a deal had been reached that will still require poll challengers and watchers to wear masks, but that they can be closer than 6-ft to voters.

Mississippi: The Hinds County Election Commission has filed a lawsuit against the Hinds County Board of Supervisors over a dispute of a $1.5 million grant. The Election Commission is trying to determine whether or not a Grant with the Center and Tech and Civic Life is a binding contract. They are also seeking to determine if the Hinds Co. Election Commission is an independent body with exclusive statutory authority to handle election matters when seeking and expending grants. They believe that the Hinds County Board of Supervisors should not be able to modify or add vendors that violate the terms of the grant. The Hinds County Board of Supervisors believe they are the ones who should control how the money is spent.

Missouri: The 8th Circuit Court of Appeals ruling upheld a state law that requires mail ballots be returned through the U.S. Postal Service. The court stayed a district court ruling that would have allowed voters to return their mail ballots in person. Mail-in ballots will need to be returned soon because they must be received by election officials by Election Day in order to count. The ruling comes in a federal lawsuit filed by the Organization for Black Struggle, a St. Louis-based nonprofit, against Missouri’s mail-in ballot restrictions. Missouri Attorney General Eric Schmitt, representing Secretary of State Jay Ashcroft, argued in a legal brief that changing the rules for mail-in voting so close to the Nov. 3 election would confuse voters. He noted thousands of Missourians have already received their mail-in ballots, which contain instructions that they must be returned by mail.

Circuit Judge Daniel Green ruled that Missouri’s comparably restrictive mail-in voting laws aren’t unconstitutional because mail-in voting isn’t a fundamental right in the state. The lawsuit, brought by the Washington, D.C.-based American Women organization and three St. Louis County plaintiffs, challenged a number of election laws that advocates say make voting in the state too inaccessible — especially during the COVID-19 pandemic. The lawsuit challenged Missouri’s practice of rejecting any ballot received by local election authorities after the polls close on Election Day, the requirement that all mail-in ballots and some absentee ballots be notarized and that all mail-in ballots be returned through the postal service. “Restrictions placed on mail-in balloting do not violate the fundamental right to vote because mail-in balloting is not a fundamental right under the Missouri Constitution,” Circuit Judge Daniel Green wrote in his decision. “The authority to allow one to vote not in person and not on Election Day is commended to the legislature in our constitution.”

Nevada: Carson City District Judge James Wilson denied the state’s Republican Party’s request for a temporary restraining order that would halt the counting of ballots in Clark County. Wilson made the ruling hours after the lawsuit was filed by the Nevada Republican Party and the campaign for President Donald Trump’s re-election, according to the Las Vegas Sun. Republicans asked for the counting to be stopped until a plan is in place for them to observe the process. Wilson denied the request, but will hold an evidentiary hearing on Wednesday.

New Jersey: U.S. District Judge Michael Shipp dismissed a lawsuit by President Donald Trump’s campaign that had sought to stop New Jersey’s mail-in ballot program. In a court filing last month, the campaign alleged the state’s ballot procedures violated the Constitution and opened the door to widespread voter fraud, including that ballots mailed after Election Day would still be counted. Shipp wrote Thursday that the fraud claims rest on “highly speculative fear.” The GOP sued New Jersey in August, calling the state’s plan “a brazen power grab” by Murphy that created the possibility of widespread voter fraud. The suit named a recent incident in Paterson in which a campaign worker allegedly admitting stealing ballots out of mail boxes in a local election. “It is difficult — and ultimately speculative — to predict future injury from evidence of past injury,” Shipp wrote

New Mexico: The New Mexico GOP and several state legislators and county clerks filed suit with the state’s Supreme Court saying Republican election poll challengers in New Mexico are unfairly being denied oversight of the initial verification process for absentee ballots. The suit alleged that independent oversight is not being allowed in some counties as election officials verify signatures and partial social security numbers on the outside of absentee ballot envelopes. It also says the response to rejected ballots is being left open to interpretation. On Tuesday, the Supreme Court rejected the petition. Three justices including the court’s lone Republican, Judith Nakamura, denied the petition to intervene in the absentee voting process. Two Democratic justices recused themselves as they run for election against Republican challengers

New York: An appeal to the State Supreme Court to reverse a board of elections decision not to offer early in-person voting on the Island has been rejected. Justice David Reilly issued an opinion upholding the BOE’s decision, saying Shelter Island residents could opt to vote prior to Election Day, Nov. 3, on either the North or South forks or vote by absentee ballot if they can’t get to the polls on Nov. 3. Plaintiffs, including many elected officials, argued that the need to use a ferry to get to vote early in person would be a severe hardship to many elderly and/or infirm Islanders. “The court failed to appreciate the unique challenges faced by Island voters separated from early voting by a body of water that can only be traversed by ferry,” Town Information Officer Det. Sgt. Jack Thilberg said.

Judge Maria Rosa has reversed her Oct. 13 ruling saying that a polling place could not be moved from an Episcopal Church to the campus of Bard College. Rosa ordered the polling site moved in response to concerns voters would not be able to adequately social distance at the church. “The basis for this court’s decision and order has now been eliminated since the primary factor identified by Commissioner Haight and relied upon by this court was simply untrue,” she wrote. “Apparently there was, and is, time to move the polling place for District 5 in Red Hook.”

North Carolina: State legislative leaders filed an appeal to the U.S. Supreme Court over the amount of time the N.C. Board of Elections can accept mailed-in ballots after Election Day, Nov. 3. Under state law, ballots postmarked by Nov. 3 can be accepted three days after the election, through Nov. 6. But the 4th U.S. Circuit Court of Appeals ruled earlier this week that ballots could be accepted through Nov. 12, under a policy adopted by the board of elections. The board said concerns about the speed of delivery by the U.S. Postal Service prompted the change. Republican leaders of the state House and Senate sued seeking to force the board to follow the date set by law. “The question now before the U.S. Supreme Court is whether an unelected state panel should be able to change election laws after voting has already started,” Senate Leader Phil Berger said in a news release. “Multiple judges in multiple jurisdictions have already said no, and this case was thrown into further chaos by the shocking behavior of one appeals judge who thwarted the Fourth Circuit’s favorable ruling before they could publish the opinion.” The appeal comes as nearly 700,000 North Carolinians had already cast mailed-in ballots and nearly 1.8 million people had voted early in person. On Wednesday night, the U.S. Supreme Court rejected the request. With three justices dissenting, the court left in place an extension of the deadline for the receipt of mail-in ballots to nine days after the election. The justices turned down the requests without explanation, leaving the extended deadline in place. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch indicated that they would have blocked the extension of the deadline.

Ohio: The NAACP of Ohio, the League of Women Voters and the A. Philip Randolph Institute of Ohio filed a brief notice that dropped all claims against Secretary of State Frank LaRose in U.S. District Court in Cleveland with regard to the suit they had filed over ballot drop boxes. The filing marked the end of a contentious issue that lasted six weeks and bounced between a federal judge in Cleveland and the 6th U.S. Circuit Court of Appeals, which ruled in LaRose’s favor earlier this month and limited the number of drop boxes across the state. “We believe the appeals’ decision was wrong, but we didn’t have any other options,” said Jon Greenbaum, an attorney representing the organizations. “We weren’t going to make it better by appealing that decision.

In a 5-1 ruling, the Ohio Supreme Court ruled that Secretary of State Frank LaRose was justified in rejecting a Democratic appointment to the Ashtabula County Board of Elections for alleged election misconduct. The ruling means county Democrats must now act quickly to put forward a new nominee to fill the open seat by next Tuesday’s general election. Republicans have held a 2-1 majority on the county elections board, rather than the usual 2-2 split between Republicans and Democrats. La Rose had argued that appointee Ashtabula County Democratic Party Chair Eli Kalil “would not be a competent member” of the elections board because Kalil was investigated in 2016 for allegedly altering the dates on voter registration forms and encouraging a constituent to forge the signature of another person on a voter registration form.

Pennsylvania: The Pennsylvania Supreme Court ruled unanimously on a key concern surrounding an avalanche of mail-in ballots in the presidential battleground state, prohibiting counties from rejecting ballots because the voter’s signature on it may not resemble their signature on their registration form. Two Republican justices joined five Democratic justices in the decision. “County boards of elections are prohibited from rejecting absentee or mail-in ballots based on signature comparison conducted by county election officials or employees, or as the result of third-party challenges based on signature analysis and comparisons,” the justices wrote.

A Pennsylvania appeals court has upheld a decision denying President Donald Trump’s campaign access to satellite voter offices in the Philadelphia. The campaign had sued the Philadelphia Board of Elections, claiming that it should be allowed to have poll watchers at the offices where voters were applying for and casting mail-in ballots. Judge Gary Glazer agreed with city and state elections officials, who argued the offices were not polling places, where watchers are allowed, but extensions of Election Board offices, where they are not. “Given their scope, timing, and purpose, the satellite offices do not constitute polling places where watchers have a right to be present under the Election Code,” Glazer wrote. In a short opinion, the three-judge panel said Glazer’s ruling “thoroughly discusses, and correctly disposes of, the legal issues before this Court” and therefore was upheld.

Plaintiffs — including four registered voters from Somerset County and a Republican congressional candidate — asked a federal judge in Pittsburgh to block the deadline extension from going into effect. The state Supreme Court last month ordered county election officials to receive and count mailed-in ballots that arrive up to three days after the Nov. 3 election, until Nov. 6, even if they don’t have a clear postmark, as long as there is no proof it was mailed after the polls closed. Thursday’s lawsuit came 12 days before the election and three days after the U.S. Supreme Court, divided 4-4, rejected a Republican plea making a slightly different argument than Thursday’s lawsuit. The new lawsuit said the court’s deadline extension and the lack of a postmark requirement “will allow for late and otherwise unlawful ballots to be counted.” That is unconstitutionally unfair to in-person voters and exceeded the court’s authority by exercising a power that is constitutionally vested in Congress and the Legislature, it said. The Pennsylvania GOP asked the U.S. Supreme Court to fast-track a formal review of a major ruling by the state Supreme Court, which held that mailed ballots sent by Election Day and received up to three days later must be counted. The Luzerne County Board of Elections filed a motion seeking to have newly installed Justice Amy Coney Barrett to recuse herself. Citing federal ethics laws that require a judge to recuse herself if her impartiality might reasonably be questioned, the elections board contends that the nomination and confirmation of a Supreme Court justice right before a presidential election is not only “unprecedented,” but “even more troubling” is President Trump’s own statements linking Barrett’s nomination “directly to … his own current re-election,” should the results of the election be challenged in court. Late on Oct. 29, the U.S. Supreme Court refused to fast-track the request. The unsigned order means that for now, ballots received by Nov. 6 will be counted. But ballots received after polls close on Tuesday will be segregated from those received earlier, and if the state turns out to be pivotal, the high court could consider the state GOP’s challenge after the election.

South Carolina: U.S. District Judge Richard Gergel has ordered South Carolina counties to stop rejecting absentee ballots on the basis of voter signatures appearing not to match signatures on file and ordered a review of any ballots thrown out so far for that reason. Gergel said any county election boards that wish to employ signature matching techniques going forward must first seek and receive permission from the court and provide voters an opportunity to correct any perceived signature mismatch issues before discounting their votes. The ruling applies only to voter signature mismatches. The court order comes a day after the South Carolina Election Commission directed all counties to immediately stop using signature matching procedures for absentee ballots after learning that at least 10 counties had been employing or planning to employ the practice to reject otherwise legitimate ballots.

Tennessee: Davidson County Chancellor Ellen Hobbs Lyle has dismissed a case filed by two Tennesseans with previous out-of-state felony convictions on their records, pushed for the state to modify its policies on how it restores voting rights. Her dismissal means Tennessee is not required to change its post-felony voting rights access laws to match those in other states. The state does offer paths to voting restoration after felony convictions, but because the plaintiffs’ were convicted out of state, they found that even though they had completed most of the process, they were unable to fully become re-eligible to vote. “Until the Plaintiffs meet the same requirements as Tennessee felons seeking reinstatement of their right to vote, Tennessee law does not require that Tennessee reach the same result as Virginia’s Governor or North Carolina’s Legislature — nor does the Tennessee Constitution,” Lyle wrote. “Because Tennessee is constitutionally permitted to legislate different standards than other states for restoration of the right to vote and Plaintiffs do not allege that they meet these standards, their challenges necessarily fail.”

Texas: The Texas Supreme Court has rejected a last-minute challenge by the Texas and Harris County Republican parties to limit drive-thru voting. The court rejected the challenge without an order or opinion, though Justice John Devine dissented from the decision. The justices had already ruled against another challenge to expanded voting access this month because they said the lawsuit was filed too late, noting that altering voting procedures during an election could cause voter confusion.

The Texas 3rd Court of Appeals has ruled that voters who get sick shortly before Election Day and can’t go to the polls will still need a doctor’s note before they can get an emergency absentee ballot. The ruling, overriding a state district court order, said implementing the lower court’s ruling “would change the longstanding requirements governing late mail-in ballots and risk voter confusion.” The case will still be reviewed further after the election. Voting rights group MOVE Texas will not appeal the temporary ruling further. Instead, as a fallback, the group has established a free telehealth service with volunteer physicians to provide the necessary documentation for sick voters seeking absentee ballots

District Judge Amos Mazzant denied a group’s request for a temporary restraining order preventing Dallas, Harris, Hays and Hopkins counties from accepting $25 million in grants from the Center for Tech and Civic Life saying the group will not be injured if more people vote because of the private election funding. “That is not a harm. That is democracy,” he said. The case is still open according to the U.S. District Court, Eastern District of Texas and Judge Ruben Becerra. “It is an active lawsuit until I am told otherwise,” Becerra said.

A State Appeals Court on Friday upheld a Travis County State district court order allowing Texas counties to have multiple drop-off locations for hand delivery of absentee ballots, undercutting Gov. Greg Abbott’s recent directive limiting counties to one drop-off site. But the intermediate court’s decision will not yet lead to the reopening of ballot drop-off locations that were shut down in Harris and Travis counties after Abbott’s order. Abbott and Texas Secretary of State Ruth Hughs immediately appealed the ruling to the Texas Supreme Court, which at least temporarily blocked the order from taking effect Saturday morning. On Tuesday the state Supreme Court upheld Abbott’s order. In their opinion, the justices wrote that Abbott’s order “provides Texas voters more ways to vote in the November 3 election than does the Election Code. It does not disenfranchise anyone.

Two GOP candidates and a Republican member of the Texas House filed suit asking the state Supreme Court to void ballots cast at Harris county drive-thru vote sites. That could put more than 100,000 ballots at risk, drawing sharp criticism from Democrats and raising fears among voters, including those with disabilities and others who were directed into drive-thru lanes as a faster method of voting. The new petition asks the all-Republican Supreme Court to confiscate memory cards from voting machines at drive-thru locations and reject any votes cast in violation of state election laws. The petition argues that drive-thru voting is an illegal expansion of curbside voting, which state law reserves for voters who submit a sworn application saying they have an illness or disability that could put them at risk if forced to enter a polling place.

A three-judge appellate panel stopped, at least for now, a district judge’s Tuesday ruling that invalidated an exemption for polling places included in Gov. Greg Abbott’s statewide mask mandate. The panel granted what’s known as an administrative stay, which only stops the ruling from taking effect while the court considers whether it will issue an order to nullify it during the entire appeals process. In his temporary ruling issued Tuesday night, U.S. District Judge Jason Pulliam said the exemption “creates a discriminatory burden on Black and Latino voters.” Abbott and Texas Secretary of State Ruth Hughs immediately sought an appeal at the 5th U.S. Circuit Court of Appeals, which granted the administrative stay Wednesday evening

Vermont: U.S. Supreme Court Justice Brett Kavanaugh edited a line in his controversial opinion on Wisconsin mail-in voting this week, after he received criticism for incorrectly saying Vermont had not changed its election rules due to the Covid-19 pandemic. Vermont Secretary of State Jim Condos sent Kavanaugh a letter requesting the change after Kavanaugh incorrectly opined that Vermont had made no changes to its election procedures due to the pandemic. Condos pointed out in his letter that the state had in fact made changes including sending mail-in ballots to every registered voter and also counting votes earlier than in previous years. Late Wednesday, without comment or explanation, Kavanaugh issued a revised opinion, changing the phrase “ordinary election rules” to “ordinary election-deadline rules.”

Virginia: The Virginia Democrats are negotiating an agreement with Richmond’s registrar of voters following a lawsuit filed this week over absentee ballot issues. According to Susan Swecker, the plaintiff and the chairwoman for the Democratic Party of Virginia (DPVA), the General Registrar violated the Virginia Freedom of Information Act by failing to provide requested records related to voters whose ballots contain errors. Court documents say these records were requested so that the DPVA could notify and assist registered Virginia voters in Richmond with fixing any material errors and omissions in their ballots before the election so their ballots are counted. Seventeen days after the request was made by the plaintiff, the complaint says the General Registrar denied the plaintiff had any responsive records and produced limited information, which she characterized as “inaccurate.” The lawsuit says the plaintiff seeks a temporary injunction and ‘writ of mandamus’ to prevent irreparable harm to herself, the DPVA and the Richmond voters who tried to vote absentee for the upcoming election. A hearing scheduled was pushed after the Richmond Registrar provided a partial list and sources now say the two parties are working to negotiate an agreement, with the Virginia Democrats asking for daily updates on absentee issues.

Frederick Circuit Court, Judge William Warner Eldridge IV ruled that absentee ballots without postmarks will not be counted if the barcode does not indicate whether the ballot was mailed by Election Day. He ruled that if the postmark on a ballot is illegible, the ballot can still be counted if the voter signed the ballot by Election Day. The Public Interest Legal Foundation sued the Virginia Department of Elections and members of the Virginia State Board of Elections earlier this month, challenging a regulation that instructed local election officials to count absentee ballots with missing or illegible postmarks — as long as the ballots are received by noon on the Friday after Election Day, Nov. 3. The lawsuit alleged that the regulation violates a 2020 state election law that says absentee ballots postmarked by Nov. 3 and received by Nov. 6 will be counted.

Wisconsin: The U.S. Supreme Court upheld Wisconsin’s voting laws, rejecting an effort to require the counting of absentee ballots that are sent back to election officials on or just before Election Day. The court’s 5-3 ruling means that absentee ballots will be counted only if they are in the hands of municipal clerks by the time polls close on Nov. 3. The justices determined the courts shouldn’t be the ones to decide the election rules amid the coronavirus pandemic that is surging in Wisconsin and across the world. “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Justice Neil Gorsuch wrote in a concurring opinion. In dissent, Justice Elena Kagan gave that notion short shrift, noting Wisconsin’s Republican-run Legislature hasn’t met since April. Extending the deadline for absentee ballots should have been allowed, she wrote. “On the scales of both constitutional justice and electoral accuracy, protecting the right to vote in a health crisis outweighs conforming to a deadline created in safer days,” Kagan wrote.

Circuit Judge Mario White dismissed a lawsuit that sought a judgment protecting the city of Madison’s Democracy in the Park event, writing that he has nothing to rule on because a group of local voters and the city Board of Canvassers don’t disagree about the event’s legality. White wrote he wasn’t ruling on the merits of the lawsuit but had to determine whether the lawsuit presented an issue on which he could rule. He said none exists because there is no controversy between the voter group and the Board of Canvassers. “The defendants have not taken any action in opposition to the plaintiffs,” White wrote. “No brief opposing the plaintiffs’ motion was filed. No argument contrary to the plaintiffs’ argument was provided.”

Outagamie County has filed an emergency petition seeking declaratory relief regarding defective ballots. A “technical ballot misprint” is said to likely delay the counting of some absentee ballots in Outagamie County according to the clerk. The county said its asking the court to rule on the appropriate remedy and said while it has been working with the Wisconsin Elections Commission and the municipal attorneys, their positions are diverging. The 32-page petition states the county and the municipalities believe they need to have the court declare the most protective remedy for this issue. The counties (including Outagamie and Calumet Countries) believe they should comply with statutory duplication requirements under Wis. Stat. §5.85. Outagamie County said the Municipalities are hoping to have the most practical and efficient remedy of filing in the timing mark.










NYC Wins When Everyone Can Vote! Michael H. Drucker