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Electionline Weekly May-27-2021

Legislative Updates

Alabama: Gov. Kay Ivey (R) has signed a bill into law, a bill banning curbside voting in Alabama. The bill, sponsored by Rep. Wes Allen (R-Troy), passed the House of Representatives 74 to 25 on March 18 and the Senate 25 to 6 on May 17, after several attempts by Democrats to run out the clock on the legislation. Allen’s bill bans the placement of voting machines outside of polling places and the transportation of ballots into or out of voting areas except in establish pre- and post-election voting procedures. Supporters of the legislation said it would ensure ballot security; opponents said it would make it more difficult to vote, particularly for individuals with physical disabilities.

Arizona: The Republican-controlled Legislature passed a measure to strip Secretary of State Katie Hobbs (D), of her ability to defend election lawsuits, a seemingly partisan retaliation for her sharp criticism of the party’s controversial election audit. The bill, which passed both the state’s House and Senate Appropriations committees, puts the attorney general, Republican Mark Brnovich, in charge of defending all lawsuits through January 2, 2023, which is around the end of his and Hobbs’ current terms. “The legislature intends that the attorney general make all strategic decisions regarding election litigation and be allowed to intervene on behalf of this state if the attorney general determines, in the attorney general’s sole discretion, that the intervention is appropriate,” according to the bill. The bill also states that the attorney general cannot represent or provide legal advice to the Secretary of State, which is generally the chief elections administrator, or the Department of State on any matters through June 30, 2023. But it allows the secretary to hire one full-time “equivalent position” to serve as legal advisor to represent them, but blocks the secretary from “spending or incurring indebtedness to employ outside or private attorneys to provide representation or services.”

Lawmakers have tentatively approved a measure — which still awaits a final roll-call vote —that could have voters facing an investigation and possible criminal charges if their ballot signature does not match the signature on file. Currently, when a ballot comes in by mail, election workers compare the signature on the envelope with what they have on file, whether from prior elections or other records. If they appear to match, that’s the end of it and the ballot is tallied. If they don’t match, election workers attempt to contact voters to find out if they actually cast the ballot and any reasons why the signature has changed, with the most common reasons including age or illness. An affirmative response from the voter “cures” the ballot and ends the process. Otherwise the ballot is not counted. Senate Bill 1241 would require all unmatched signatures and “uncured’’ ballots be referred to state or county attorneys who then would launch their own investigation.

By a 31-29 margin, with two Republican senators joining Democrats in opposition, the House rejected a Senate-passed measure that would have added identification requirements for mail-in ballots. Under current law the only thing required on an early ballot envelope is a signature. Senate Bill 1713 sought to add a new requirement that those voting early fill out and submit with their early ballot an affidavit that includes their date of birth and then either their driver’s license number, non-operating state ID number or the last four digits of their Social Security number.

California: A panel of California legislators voted to kill a bill that would have created a statewide holiday on election day, a measure designed to keep voters energized following near-record turnout in the 2020 election. The measure, AB53 by Assembly Member Evan Low, D-Campbell, would have given state workers and public-school children and teachers the day off and encouraged private companies to do the same. It was one of dozens of bills that died Wednesday — without debate — as the Assembly and Senate appropriations committees moved hundreds of bills through a procedural bottleneck for legislation with significant fiscal impacts. Low, however, said he would not stop pushing for the holiday because California should be taking aggressive steps to keep turnout high, particularly as some states pass laws making it harder to vote. Low introduced a similar measure last session, which died over concerns that it would cost about $67 millions to give state workers another holiday. This year, Low proposed to move the President’s Day holiday to election day on even-numbered years to reduce the estimated cost. Still, Low’s office said the bill died largely over fiscal concerns. Some legislators wanted to expand the bill to require private employers to offer the holiday, which could have increased the cost significantly.

The Rancho Mirage city council voted unanimously to move away from April elections when the city was the only city holding an election in Riverside County, to coincide with the California Voter Participation Rights Act. That law, which went into effect on Jan. 1, 2018, prohibits cities from holding a municipal election on a day other than a statewide general election day if there has been a “significant decrease” in voter participation. “Significant decrease” is defined in the law as 25% less than the average voter turnout within the city for the previous four statewide general elections, City Clerk Kristie Ramos said. When the California Voter Participation Rights Act became law, Rancho Mirage’s city clerk and attorney conducted an analysis and found a 22.67% difference in turnout for the city versus the statewide general elections.

Connecticut: Statutory restrictions on absentee voting that can deny ballot access to Connecticut voters in some circumstances would be repealed under legislation passed on a 117-28 vote by the House of Representatives and sent to the Senate. Absentee ballots are unavailable to some voters with reasonable or even compelling excuses for not going to the polls: firefighters working 24-hour shifts, nurses anticipating overtime and parents home caring for sick or dying children. The Connecticut Constitution empowers the General Assembly to allow absentee ballot voting only in cases of “absence from the city or town of which they are inhabitants or because of sickness, or physical disability or because the tenets of their religion forbid secular activity.” Separate from an effort to amend the state Constitution to allow no-excuse absentee voting, the bill would remove additional limits imposed by state law: Absences must be during “all hours of voting” and sickness and disability are defined as those of the voter. Rep. Dan Fox, D-Stamford, co-chair of the Government Administration and Elections Committee, said the bill makes elections law comport with the Constitution and noted that the state Supreme Court already has taken a broader view of “sickness” by upholding the state’s temporary law allowing anyone to vote by absentee during the pandemic.

A bill approved by the state Senate would make a number of changes to state election laws to ease the process of registering to vote as well as restoring the voting rights of people on parole. The Senate sent the bill to the House for consideration on a 25 to 10 vote after three hours of debate. Proponents hailed the legislation as modernizing Connecticut’s election system and encouraging voter participation. “I think [the bill] reflects a common sense look at our election laws and trying to look at our existing laws in terms of how can we ease voting for as many people in our state as possible,” Sen. Mae Flexer, co-chair of the Government Administration and Election Committee, said. In addition to restoring voting rights to parolees, the legislation attempts to expedite voter registration. The bill requires other state agencies to join the Department of Motor Vehicles in automatically sending voter registration applications for qualified residents to local registrars. The bill would also allow e-signatures for election forms and applications, negating the need for voters to print out forms and mail them. It would allow voters to take up to two hours of unpaid time off from work to cast ballots, and it permits voters with disabilities or reading challenges to have assistance at the polls. Other provisions include making permanent the ballot dropboxes installed last year to accommodate increased use of absentee ballots during the pandemic.

Idaho: The legislation that allowed Idaho to be among the most prompt states reporting its election results in the November election expired Dec. 31, and despite passing the Senate unanimously on Feb. 18, a proposal to make the change permanent died without a hearing in the House this year. Rep. Brent Crane, R-Nampa, who chairs the House State Affairs Committee, said he decided not to hold a hearing on the bill in the panel he chairs during this year’s legislative session, allowing the bill, SB 1070, to die instead. “Ultimately, I made the decision not to,” Crane told the Idaho Press. The bill adjusted some deadlines for county clerks to send out absentee ballots to voters amid a huge surge in absentee ballots, and most importantly, allowed them to open and scan absentee ballots that they received — but not count them — starting seven days before the election. Otherwise, the ballots couldn’t have been opened until Election Day.

Louisiana: Seven bills and one House resolution about voting and elections advanced through the House and Senate committees on governmental affairs. The resolution, sponsored by House Speaker Clay Schexnayder, provides criteria for considering redistricting plans to draw boundaries for seats in Congress and the state Legislature based on 2020 Census information. Senate Bill 224, sponsored by Rep. Heather Cloud, R-Turkey Creek, would mandate that a Louisiana driver’s license number or the last four digits of a Social Security number be included on an absentee ballot. The bill would allow for an absentee ballot to be challenged if information provided at the polls did not match a voter’s registration data. Senate Bill 220, also sponsored by Cloud, would require the Louisiana Legislative Auditor to examine election processes to prevent election fraud. Senate Bill 63, which would clarify that hand delivery of an absentee ballot must occur in a voting registrar’s office, an early voting location during early voting or a mobile voter registration unit. House Bill 138, which would require registrars of voters to conduct a supplemental canvass to identify voters who have moved and need to update their voter registration addresses. House Bill 329, which would allow all minors to accompany a parent or legal guardian into a voting machine to help educate them about voting. House Bill 330, which would allow for an increase in poll commissioners in each voting precinct during the presidential preference primary election to help fix any problems more quickly. House Bill 388, which would extend the time for a parish to prepare and verify absentee mail and early voting ballots before election day to enable parishes to count ballots more quickly.

The state will add four days to early voting period for presidential elections, after state senators gave final passage to the proposal with a unanimous, bipartisan vote. The bill by Rep. Frederick Jones, a Democrat from Bastrop, will increase in-person early voting for the presidential elections from seven days to 11 days. The measure heads next to Democratic Gov. John Bel Edwards, who is expected to sign it into law.

Michigan: The Houses has a adopted, by voice vote, a resolution that calls a sweeping voting rights bill in Congress supported by Michigan’s chief election administrator a “massive overreach into state election administration.” The Republican-sponsored resolution adopted Tuesday states that the federal legislation “would force many misguided policies on states” and seeks to “reaffirm states’ rights … to establish election laws.” Speaking on the House floor, Rep. John Damoose, R-Harbor Springs, who introduced the resolution, said that Michigan’s election rules “should not be dictated to us by people from off places serving in Washington, D.C.” Republicans claim that the federal legislation would prevent election officials from maintaining accurate and up-to-date voter rolls, enforcing voter ID standards and regulating ballot harvesting, which would create “chaos in election administration” and “invite voter fraud.”

The Senate tweaked some of the more controversial parts of its election legislation package this week. The Senate Election Committee unanimously approved substitutes to two bills during a May 26 hearing. The first addressed a bill requiring absentee ballot applications to be submitted with a photocopy of personal identification, while the other prevents the secretary of state’s office from mass-mailing absentee applications. The first substitute came with Senate Bill 285, sponsored by Sen. Lana Theis, R-Brighton, which now allows the applicant to verify their identify with either a driver’s license or personal ID number, the last four digits of their social security number, in-person verification with a local clerk or the photocopy option. The other substitute came with Senate Bill 310, sponsored by Sen. Ruth Johnson, R-Holly, a former Secretary of State. The new version of the bill would still restrict the Secretary of State from mass-mailing absentee ballot applications, but makes clear that a link to the application form must be publicly available online.

Nevada: The Assembly Legislative Operations and Elections Committee voted to support passage of a bill making it easier for people with disabilities to register and vote. AB121 essentially makes available to all disabled people the same infrastructure currently used by uniformed military and those serving overseas. The disabled, like those in the military, would be able to register electronically, request an absentee ballot electronically and cast their ballot . AB121 also requires the Secretary of State to set procedures for local election officials for the handling, accepting and counting of absentee ballots received from disabled voters through an electronic system. It further provides that the deadline for receiving, accepting and recording those ballots from those with disabilities is the 7 p.m. closure of the polls on election day, the same as for military voters. The vote in committee to send AB121 to the floor for a vote was unanimous.

Extensive election reform bills supported by Nevada Democrats passed out of their second committee Tuesday night, inching forward as the end of the legislative session looms large. Bills that would make Nevada the first presidential primary in the country, make permanent many of the voting changes put into place during the COVID-19 pandemic, and make changes to the state’s voter registration system were passed out of the money-focused Assembly Committee on Ways and Means. Assembly Bill 321, which would automatically send mail-in ballots to active, registered voters in Nevada, received the most debate over cost. The committee also heard Assembly Bill 126, which would switch Nevada to a first-in-the-nation primary. The bill comes after the chaotic 2020 Iowa caucuses had such a delay in results that many prominent Democrats backed ending caucuses outright. The bill also calls for a presidential primary to replace the caucusing process, where Nevada is one of a handful of states that still tabs its presidential delegates using the caucusing system.

New Hampshire: The Republican-led Senate has voted to back its own versions of House plans to overhaul the state’s campaign finance system, and to add a photo-requirement for people who register at the polls without state-approved identification. The bills are among several GOP-backed bills this year that seek to modify current laws around voting and elections. The photo-requirement bill would force voters who register on Election Day without a photo ID to have their picture taken. The photo would be affixed to an affidavit attesting to the voter’s identity and kept on file. For these bills to reach the desk of Gov. Chris Sununu, the House and Senate must reach agreement on final language.

A state Senate committee voted unanimously to approve a bipartisan proposal to move New Hampshire’s state primary election date from the second Tuesday in September to the second Tuesday in August, but the change would not take effect until 2023. The amended bill, if eventually enacted, would mean the state primary election will remain where it is – as a post-Labor Day event – through the 2022 midterm elections. The first statewide election that it would affect would be in 2024. Secretary of State William Gardner has opposed any change in the date. He said Monday after the committee vote that he continues to oppose it because he continues to believe it would hurt turnout to have the primary election in the middle of the summer. Gov. Chris Sununu also continues to oppose a change, his spokesperson told WMUR. The governor made it clear in April that he supports the current date, saying, “If it ain’t broke don’t fix it.” Spokesperson Ben Vihstadt said Sununu has not changed his mind. But members of the Senate Election Law and Municipal Affairs Committee agreed with House proponents that the current date of the primary, on the second Tuesday in September, leaves too little time for a fair general election campaign. House supporters have said the current seven-week period between the primary and the November general election favors incumbents, who, generally, are less likely to have serious primary challenges and can prepare for the general election well in advance while a challenger who survives a hard-fought primary then has to scramble to compete.

The House Election Law Committee approved a proposal that would create separate processes for state and federal elections, in response to federal voting reform currently before the U.S. Congress. In a vote along party lines, the House panel approved the amendment, 11-8. The amendment was added to Senate Bill 89, bipartisan omnibus legislation dealing with election law, which was also approved along party lines. The amendment was introduced last week by Rep. Barbara Griffin, a Goffstown Republican. Wednesday’s public hearing had the most people signed up to testify before the Election Law Committee so far this session. The vote on the amendment was held the same day. Kyri Claflin, a supervisor of the checklist in Concord Ward 5, called the proposal a “nightmare” for election officials. “The amendment doubles the work for election officials because you would have one set of laws and procedures that apply to federal elections and a second set of laws and procedures that apply to local and state elections,” Claflin said during a press conference held by the For the People Act New Hampshire Coalition before the hearing. Claflin said the amendment would create “an unworkable situation” for local election officials. The proposal has the support of the Secretary of State’s Office, which hosted a controversial briefing on the For the People Act last month. Deputy Secretary of State David Scanlan expressed his support for the amendment, testifying on behalf of the office.

New Jersey: The he Assembly unanimously passed a bill (A-3394/S-854/237) to require all New Jersey students in an appropriate middle school grade to complete a civics course beginning in the 2022-2023 school year. The course would address the values and principles of the American system of constitutional democracy, the function and limitations of government, and the role of a citizen in a democratic society. The New Jersey Center for Civic Education at Rutgers University would provide curricula, professional development and technical assistance for both middle and high school civics education. The bill would be known as “Laura Wooten’s Law” in recognition of Mercer County’s longest-serving poll worker, who volunteered a record 79 continuous years before she passed away.

New York: Gov. Andrew Cuomo signed new legislation that makes it easier to establish early voting sites for certain elections. Instead of just using population, sites will now open based on where the most eligible voters are. This applies to special, primary and run-off primary elections. Previously, people may have had to drive to a spot outside their district to vote early. “New Yorkers should have access to early voting in the places where they live, and the law required county boards of elections to put early voting sites during special elections in places where there weren’t actually eligible voters,” Governor Cuomo said in a statement Friday. “This legislation implements a quick and commonsense fix to the law so that New Yorkers who want to vote early have a convenient polling place to do so, not a far-off location they won’t have time to reach. “We’re committed to making voting as easy as possible and giving New Yorkers ample opportunities to vote in ways convenient to them, and this law moves us in the right direction to further expanding voting access and making sure everyone can participate in our democracy.”

Oregon: Voters who mail their ballot in Oregon would no longer need to guess whether it will arrive in time for Election Day, under a bill that passed the state House. Instead, House Bill 3291 would ensure ballots are accepted as long as they’re postmarked on or before Election Day, and reach elections officials by one week following the election. The bill also would allow county clerks to begin counting ballots when they’re received, rather than waiting until a week before an election, and change some elections-related dates. HB 3291 passed the House on a 39-21 vote, with two Republicans joining unanimous Democrats in support. The bill now moves to the Senate. Advocates for the bill say it gives voters an easy rule to go by: they need to either mail or drop off their ballot by Election Day to ensure it’s counted. That’s a change from Oregon’s current process, in which elections officials typically warn voters to mail their ballots roughly a week before Election Day to ensure they’re received in time. The state’s county clerks, who would see changes to the way they conduct elections, could not reach agreement on HB 3291.

Rhode Island: The House of Representatives has approved legislation introduced by Rep. Evan P. Shanley (D-Dist. 24, Warwick) that would allow for the early certification of mail ballots. The bill (2021-H 5890A) would also establish a new and more comprehensive mail ballot voter signature verification process. “This legislation establishes a transparent review process by requiring two people to review and compare each voter’s signature with the signature found in the Central Voter Registration System,” explained Shanley in a release. “The CVRS is a statewide database that includes the signatures that are found on voter registration cards, making it easy for officials to verify those signatures on mail ballots.” The legislation would also allow the Board of Elections to begin the certification of mail ballots 20 days prior to Election Day and require notice of such certification sessions. The measure now moves to the Senate, where similar legislation (2021-S 0623) has been introduced by Sen. Cynthia A. Coyne (D-Dist. 32, Barrington, Bristol, East Providence).

Legal Updates

Georgia: Henry County Superior Court Judge Brian Amero agreed to unseal more than 145,000 Fulton County absentee ballots. The details and timing of the review must still be determined. But the plaintiffs in a lawsuit against the county want to scan and examine the ballots to determine whether they are legitimate. Amero made clear the ballots must remain in the custody of Fulton election officials. The latest Georgia review cannot change the election results, which were certified months ago and have already been confirmed by multiple recounts. But the plaintiffs say an examination of ballots would get to the bottom of what they see as suspicious activity by election officials at State Farm Arena in November. Fulton County Commission Chairman Robb Pitts, a Democrat, blasted the review in a statement. “It is outrageous that Fulton County continues to be a target of those who cannot accept the results from last year’s election,” Pitts said. “The votes have been counted multiple times, including a hand recount, and no evidence of fraud has been found. “The fact remains that Fulton County safely and securely carried out an election in the midst of a public health crisis,” Pitts said. Amero made it clear the ballots must remain in the possession of county officials, citing federal and state law. But he left the details of the review to be sorted out in a future order. He said he wants to protect the integrity of the ballots and the anonymity of the voters who cast them. Amero said he intends to order the absentee ballots to be scanned by county officials to produce high-resolution images. The plaintiffs want to examine those images to determine whether they are fraudulent. For example, the high-resolution images could be used to determine whether ballots were filled out by hand or mass produced by a copy machine, they say.

Maine: Voters with disabilities have reached a settlement agreement with the state over a 2020 lawsuit filed against the state and municipalities for not providing an electronic alternative for paper absentee ballots. The settlement agreement, which is technically pending as the court has yet to act on a motion to dismiss, marks a step in voter rights and compliance with the American Disabilities Act. The agreement requires the state and municipalities to provide electronic absentee ballots to those with print disabilities. According to the agreement, “‘print disabilities’” are those that interfere with the effective reading, writing, or use of printed material. By way of example, this definition includes, but is not limited to, those persons who are blind or visually impaired, those with cognitive or learning disabilities, as well as those with a physical disability that interferes with holding and manipulating paper or a pen or pencil. The four towns in the suit are required to pay $2,500 each as part of a Joint Stipulation of Dismissal with Prejudice, which was filed in U.S. District Court on Friday, according to court documents. All settlement agreements are required to have an endpoint. The settlement agreement technically ends Nov. 30, 2024, but the state and municipalities have expressed their intent to remain in compliance in perpetuity.

Minnesota: The Minnesota Court of Appeals upheld the state’s ban on voting for people serving felony sentences, disappointing civil rights and racial justice organizations who argued the restriction contradicts the state’s constitutional guarantee of voting rights. Judge Matthew Johnson, appointed by former Republican Governor Tim Pawlenty in 2008, penned an opinion detailing the court’s findings. In it, Johnson wrote that the ability of the state to cut off felons’ voting rights as part of their sentence was baked into its constitution, and that the fact that four plaintiffs were out of prison on probation or supervised release did not mean their civil rights had been violated or needed to be restored. “There is no language in [Article VII of Minnesota’s Constitution] that reasonably could be understood to mean that a felon’s civil rights are restored by his or her release from incarceration or by being placed on probation without any incarceration,” Johnson wrote. “Appellants’ argument effectively would require this court to add words to article VII, section 1, which we are unwilling to do.” The Legislature, he found, had the right to determine when and how felons’ civil rights are restored, and had done so by establishing that they are restored when a sentence is discharged, either by court order or by its expiration. Johnson was joined in his opinion by Judges Carol Hooten and Randall Slieter, both appointees of former Democratic Governor Mark Dayton.

Ohio: The Ohio Supreme Court in a 6-1 ruling said that state law requires the Stark County commissioners to fund the purchase of Dominion voting machines. The court granted the Stark County Board of Elections its request in April for a court order mandating the commissioners appropriate county funds, about $1.5 million, for the purchase. The court’s opinion stated that contrary to what the commissioners argued, a state provision requiring payment of expenses to come from money appropriated by the commissioners did not apply to the purchase of the voting machines. “I’m very pleased and happy that they saw the law the same way we did,” said Samuel Ferruccio, the chairman of the Stark County Board of Elections. “I think it’s now in the county commissioners’ lap for them to pay for the voting machines.” Jeff Matthews, the director of the elections board, said in a prepared statement: “We look forward to the County Commissioners moving per the Court’s order to expeditiously acquire the new voting equipment so that it will be in place for the November election. The system has been fully certified as reliable and secure by the bipartisan U.S. Election Assistance Commission and the bipartisan Ohio Board of Voting Machine Examiners.”

Washington: A lawsuit filed by plaintiffs Marissa Reyes, League of United Latin American Citizens (LULAC) and the Latino Community Fund of Washington against Benton, Chelan, and Yakima counties cites violation of the 14th and 15th Amendment stating their ballot system “discriminates against Latino voters and other racial minorities.” Amongst several voter disenfranchisement that voting and human rights attorney Molly Matter and LULAC President Domingo Garcia cited, they said mail-in-ballots are usually rejected for three reasons. Late ballots, ballots without any signature, or ballots with mismatched signatures. In 2020, mismatched signatures was the most common reason in Washington state why a ballot was discounted. Latinos made up most of that demographic. In Benton County, ballots by Latino voters and those with Spanish surnames were 3 times more likely to have their ballots rejected. The defendants include those involved in handling the mail-in ballots which are Benton County Auditor Brenda Chilton, Prosecutor Andy Miller and Commission Chairman Jerome Delvin – all who make up the Benton County Canvassing Review Board. The defendants also include Yakima County’s Auditor Charles Ross, Prosecutor Joe Brusic and Commissioner Ron Anderson; as well as Chelan County, Auditor Skip Moore, Prosecutor Douglas Shae and Commissioner Bob Bugert. The lawsuit states that the county auditors, prosecutors, and commissioner’s have not communicate clear standards to voters on how their handwriting must match in addition to the fact that Latinos in Eastern Washington and nationwide have much higher rates of having their ballot rejected because of handwriting compared to non-Latino voters stating it is racially biased discrimination. The lawsuit goes on to write it is a “flawed system,” saying no two signatures by the same person are the same. Their claim is that giving the county board of canvassers, who have authority over counting ballot signatures, violates due process because it denies Latino voters ballots based on the board’s own discretion and doesn’t give Latino voters due process to explain themselves. In the lawsuit, the plaintiff’s ask that the defendants declare that their system violates the Constitutional Amendments and Federal Voting Rights Act and adopt a better standard of determining matching signatures amongst other “prayers for relief” which include, declaring that the defendants have violated the United States Constitution, as well as section 2 of the Federal Voting Rights Act, design a process that does not discriminate/allows a person to cure their ballot (fix their signature) upon issue, and publish the number of rejected ballots for the general public. The lawsuit was filed May 7th and defendants have until the 28th to respond.

NYC Wins When Everyone Can Vote! Michael H. Drucker


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Electionline Weekly May-27-2021


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