Legislative Updates
Tennessee: Rep. Bruce Griffey (R-Paris) has submitted HB1662 that would have the state revert to paper ballots for elections. Under the bill, voting machines and ballot marking devices would be banned starting with the 2022 elections. County election commissions would instead be required to use only hand-marked paper ballots to be counted using an optical ballot scanner which uses software open to public inspection. In order to make it affordable, the state would absorb at least 50% of each county’s cost in acquiring the machines. The bill would also allow poll watchers to take video of polling places and create security features used on the paper ballots such as watermarks, fluorescence, digital holograms, or other technology.
Milton, Vermont: The Milton selectboard has unanimously approved a motion that will require residents wishing to vote by mail in the upcoming Town Meeting day to request a ballot by phone, online or in-person. At the last Town Meeting Day, postcards were sent to all voters in Milton, wherein they could request a mail-in ballot. According to the Milton Independent, the discussion at the selectboard meeting on the issue mostly revolved around giving Milton residents the most amount of opportunity to vote, while taking into consideration the time and money needed for mail-in ballots to occur. In the summer of 2021, Gov. Phil Scott signed legislation making mail-in voting a fixture of Vermont general elections. The law, however, does not apply to primaries or local elections. The new law allows towns to determine this for themselves.
Wisconsin: Legislators are expected to take up a bill that seeks to dissolve the Wisconsin Elections Commission and instead put the secretary of state in charge of elections. The Joint Rules Committee will also take up a GOP proposal that forces the Wisconsin Elections Commission to adopt formal rules on absentee ballots and drop boxes.
Legal Updates
Arkansas: Arkansas has submitted a brief to the Arkansas Supreme Court in response to a lawsuit challenging a slate of recently passed election laws. The Arkansas League of Women Voters, immigrant advocacy group Arkansas United and five Arkansas voters sued the state after the General Assembly passed a group of laws that the plaintiffs say make it harder for poor and minority-group citizens to vote. Assistant Attorney General Michael A. Mosley argued in a brief that the four election laws pass constitutional muster and that the lawsuit is not valid because the state has “sovereign immunity.” The four laws — Act 249, Act 728, Act 736 and Act 973 — were passed by the Republican-controlled Legislature during the legislative session in 2021. Act 249 removes the ability of a voter to obtain a provisional ballot without identification by signing a sworn statement. Act 728 limits people standing within 100 feet of the main entrance of a polling site. The law exempts people who are at a voting site for “lawful purposes” such as entering or leaving a building to vote. Act 736 changes how absentee ballots are verified, and Act 973 requires absentee ballots to be dropped off in person to the local county clerk by the close of business on the Friday before election day. In the brief, Mosley representing Arkansas Secretary of State John Thurston and the Arkansas Board of Election Commissioners, said the four laws help address the “principle of integrity in the electoral process. “Rather, at most, the laws at issue involve election mechanics, not the franchise itself,” Mosley wrote. “The United States Supreme Court has clearly made a distinction between laws like the acts challenged here and laws that actually implicate the right to vote.” Attorneys for the state also argued that they can’t be sued because of “sovereign immunity,” something a Pulaski County judge said was “without merit” in an earlier ruling.
Maine: U.S. District Court Judge Lance Walker has ordered Maine Secretary of State Shenna Bellows to put Libertarians back into their party after they were unconstitutionally removed and allow the party to nominate candidates for the 2022 elections. The Maine Libertarian Party has been in protracted lawsuits against the state in an attempt to reform its party membership enrollment laws, which members say disenfranchises their small party. U.S. District Court Judge Lance Walker called the process of un-enrolling members when the party’s numbers fall beneath a certain threshold unconstitutional last fall. The ruling ensures that those members will have a chance to vote under the party’s banner in the upcoming elections. The ruling came just as nominating petitions became available for Maine’s June primaries. The secretary of state’s office must put former Libertarians back in their old party unless they have already chosen another party or request to not be re-added. The office is required to tell members their un-enrollment was unlawful within the next month and give them 45 days to indicate whether they wish to rejoin the party. People can also join the party at their municipal office.
Missouri: Secretary of State John Ashcroft (R) recently filed an amicus brief with the federal court in Texas, defending the Texas Election Integrity Protection Act (Senate Bill 1). “The Texas law made appropriate much-needed changes to improve Texas’ election integrity without infringing on the ability of eligible Texans to vote,” Ashcroft said. “In a partisan move, the legislation was challenged by the Department of Justice, claiming the measure will ‘disenfranchise’ voters. The justice department’s claims are unfounded and baseless.” Ashcroft supports the Texas legislation because it could be a model for other states, including Missouri, on election reform measures.
New Jersey: Superior Court Judge Thomas Daniel McCloskey voided a November 2021 election for the Old Bridge Township Council after finding the number of voters who received the wrong ballot exceeded DeCaro’s 11-vote victory over Republican incumbent Mark Razzoli. McCloskey ordered a do-over election to be held on a still-undetermined date in 2022. An attorney for Democrat Jill DeCaro has asked McCloskey to stay his ruling pending appeal. That would allow DeCaro to be sworn in to the council seat within the next week. McCloskey found that the Statewide Voter Registration System didn’t properly follow boundaries set in the 2011 ward redistricting map put voters from the odd numbered homes on one side of Cymbeline Drive in Ward 2, and the even numbered homes on the opposite side of Cymbeline Drive residing in the Ward 4. Discovery found that 27 voters were assigned the wrong ward and that 17 of those voters cast ballots in last month’s election. “The Court must also consider the public interest at stake,” Antonelli wrote in his brief. “It would be contrary to the public interest for the candidates to spend time and money campaigning for a new election, and to force Middlesex County and its taxpayers to expend its resources, which are already strained because of the ongoing COVID-19 pandemic, in preparing and executing an election that may not be necessary depending on the results of the appeal.”
North Carolina: A recent order by the state’s highest court on recusals means that the case against the state’s voter ID law should be moving forward soon. The state Supreme Court has declared there are two paths that an individual justice can take when weighing a request to be removed from hearing a case due to an alleged conflict of interest. It allows a justice to either decide on their own or ask the rest of the court to act on a recusal or disqualification motion. Whichever option is used, the ensuing ruling is final, the order said. According to the AP, resetting of recusal procedures resulted from one of several pending legal challenges to North Carolina’s photo voter identification law. The order should allow that case, delayed in the summer and while the Supreme Court grappled with whether to alter its recusal standards, to resume soon. Two of the seven justices are the subjects of a motion from lawyers seeking to block voter ID by having them disqualified from the case.
Oregon: The Oregon Supreme Court has upheld a 2016 decision by the secretary of state that only active voters, excluding people who remain on county registration rolls but are considered inactive, are eligible to sign petitions for ballot initiatives and referendums. The court upheld the secretary of state, who declined to place an initiative on the 2016 statewide ballot because it relied on signatures from inactive voters to qualify it. Judge J. Channing Bennett upheld the state’s action in mid-2020 in Marion County Circuit Court. But a three-judge panel of the Oregon Court of Appeals overturned it in a 2-1 decision released on Dec. 30, 2020. Exactly one year later, on the final business day of 2021, the Supreme Court upheld the original 2016 decision by then-Secretary of State Jeanne Atkins to exclude signatures from inactive voters. Justice Thomas Balmer, who wrote for the court, said that voter registration for elections has been required by state law since 1920 and by the Oregon Constitution since 1927. He wrote: “Defining and regulating voter registration and verification of registrations has been within the purview of the legislative branch. And this court has issued several decisions squarely holding that voters may sign initiative petitions only if they could legally vote in an election at the time of signing. “We conclude that voters with inactive registration, who statutorily may not vote, may not have their signatures counted on initiative petitions either.”
Pennsylvania: The Commonwealth Court—a Pennsylvania appeals court—has ruled that Lehigh County may not count 257 undated mail-in ballots from the November 2021 election. If upheld, the court’s decision would settle the race for a local court where two candidates are separated by 74 votes. Voters casting ballots by mail are instructed to date the return envelope. Following the ruling, an attorney Democrat Zachary Cohen said it would be appealed to the state’s Supreme Court. Monday’s ruling only dealt with undated mail-in ballots. Four more had dates in the wrong place but were considered moot since the court figured they will not affect the outcome.
Texas: Attorney General Ken Paxton has filed an appeal to a December court decision that prohibits his office from prosecuting election cases. “The Texas Attorney General has had the authority to prosecute certain election law violations for 70 years,” the motion said. “The Court’s decision misinterprets constitutional text, breaks with Supreme Court precedent, is inconsistent with its own precedent, and creates a complicated structure in which the type of case and court determine whether representing the State is an executive- or judicial-branch duty,” it added. “Last year’s election cycle shows us that officials in our most problematic counties will simply let election fraud run rampant. I will continue to oppose this decision that diminishes our democracy and misconstrues the Texas Constitution,” Paxton said in a statement. “The Court’s decision to suddenly remove our authority to prosecute election fraud can only empower dishonest campaigns to silence voters across the state,” he continued.
NYC Wins When Everyone Can Vote! Michael H. Drucker
