Category Archives: election administration

“North Carolina is quickly losing local elections directors”

From WFAE in Charlotte: “With Election Day approaching, North Carolina has a problem. The state is rapidly losing county elections directors. In the past five years, the state says North Carolina’s 100 counties have seen 61 election director changes. That turnover could have an impact on voters when they go to cast their ballots.” The great resignation of election officials isn’t limited to North Carolina, but has been happening across the country.

Share this:

“Nevada county reverses controversial vote and certifies two recounts while legal action looms”

AP: “The 4-1 decision overturns last week’s vote against certifying election recount results from June’s primary in the politically mixed swath of northern Nevada [Washoe County], which includes Reno. The rare move had potential implications for how the November elections could play out in one of the nation’s most important swing counties.”

Share this:

CMD on Wyoming Voting Restriction Efforts

Center for Media and Democracy:

A right-wing think tank in Florida put its thumb on the scales of Wyoming’s election reform efforts, an investigation by the Center for Media and Democracy (CMD) reveals.

Emails obtained by CMD show that the Foundation for Government Accountability (FGA), based in Naples, Florida, has had extensive communication with Wyoming’s secretary of state in its pursuit of severely curtailing voting access across the country.

Share this:

“Inside the private pressure campaign to force hand-counting of Arizona ballots”

Votebeat:

Republican lawmakers in Arizona privately pressured county leaders across the state to count ballots by hand instead of using machines, according to previously unreported text messages.

The messages, obtained by Votebeat through public record requests, are a window into how state lawmakers are trying to leverage relationships with Republican county supervisors — who decide how to count ballots in their counties — to promote a practice that state officials have repeatedly said would be illegal.

And it highlights how lawmakers have turned to counties to try to change how ballots are counted, after failing to change state laws.

Share this:

“Complaint asks Kemp to remove three State Election Board members”

AJC:

A Fulton County election official has asked Gov. Brian Kemp to remove three members of the State Election Board and its executive director over actions that may have violated Georgia’s open meetings law.

On Friday, three Republican members of the state board — Janelle King, Rick Jeffares and Janice Johnston — and the board’s executive director, former GOP lawmaker Mike Coan, held an impromptu meeting to approve new election rules in advance of November’s hotly contested presidential election. The move came after the state attorney general’s office warned the board that the meeting could violate the Georgia Open Meetings Act.

On Monday, Fulton County Election Board Chair Cathy Woolard asked Kemp to remove the three state board members and Coan, citing alleged violations of the state ethics code and meetings law. Woolard said she filed the complaint in a personal capacity, not as chair of the election board.

Share this:

“Wisconsin election officials tell clerks best ways to operate absentee ballot drop boxes”

AP reports on the bipartisan Wisconsin Election Commission’s guidance to local election officials. This follows last Friday’s 4-3 decision from the Wisconsin Supreme Court allowing drop boxes and overruling its prior decision to the contrary. According to AP: “The commission opted not to adopt an emergency rule, which carries the weight of law, and instead issued the guidance to clerks which is in response to questions that came in the wake of the court’s ruling last week.”

Share this:

Brennan Center on Georgia Challenge Law

From the analysis by Andrew Garber:

A new law went into effect in Georgia this month that makes it easier for people to attempt to kick their neighbors off the rolls through voter challenges. Georgia already made voter challenges far too easy. Now, voters in the state face increased risk of losing their right to vote or being forced to defend it at public hearings, and election deniers have wide latitude to spread disinformation and waste election official time. These challenges are fueled by false claims about the 2020 election being “stolen,” including allegations that ineligible people voted, even though all evidence shows there was no widespread fraud in that election.

The effects of the new law, Senate Bill 189, are already being felt. On July 1, the Bibb County party chair challenged 243 voters; the local board put 45 of those voters into “challenged status,” meaning they will have to take extra steps to have their ballots counted this fall.

Share this:

Divided Wisconsin Supreme Court reverses its 2022 decision, holds drop boxes are permissible under state law

The 4-3 decision in Priorities USA v. Wisconsin Elections Commission is here. Part III-A of the opinion focuses on the statutory interpretation issue. Part III-B focuses on the stare decisis issue, including these paragraphs (lightly revised):

We have previously stated a general principle that “stare decisis concerns are paramount where a court has authoritatively interpreted a statute because the legislature remains free to alter its construction.” Assuming such a principle applies here, stare decisis does not require us to uphold Teigen in this instance.

An underlying purpose of strong adherence to stare decisis where a statute is involved is to protect reliance interests attendant to a precedential opinion. Here, no such reliance interests counsel in favor of upholding an erroneous interpretation of Wis. Stat. § 6.87(4)(b)1. Teigen has neither fostered reliance nor created a settled body of law.

Accordingly, we determine that the court’s conclusion in Teigen, that the subject statutes prohibit ballot drop boxes was unsound in principle, and as a consequence, we overrule it. Because the complaint sets forth allegations, which if true, would entitle the plaintiff to relief, the motion to dismiss the drop-box claim was wrongly denied.

Share this:

“GOP recruits poll monitors from suburban areas to monitor the vote in Democratic cities”

NBC News:

Republicans have made suburban areas a recruiting ground for their army of Election Day poll monitors, with plans to deploy some into urban, Democratic epicenters that have remained the focus of conservatives’ erroneous claims of voter fraud.

The strategy has the potential to be uniquely disruptive to voters and election staff this fall, nonpartisan elections experts say, given that the volunteers would be dispatched to monitor areas with different political and demographic makeups than their own — and potentially different protocols for casting and counting ballots.

“In addition to voter intimidation risks, I think that the strategy also poses the potential to be just disruptive to the election process in general,” said Jonathan Diaz, the director of voting advocacy at the nonpartisan Campaign Legal Center.

Share this:

Bottini: “Is there still a judge in Paris? French legislative elections proceed with minimal constitutional check”

The following is a guest post from Eleonora Bottini, Professor of Public Law, University of Caen Normandy:

On June 20th and 26th, 2024, the French Constitutional Council, unsurprisingly, authorized the legislative snap elections in France to proceed as planned. Following the unexpected dissolution of the National Assembly on June 9th after the polarized results of European elections, President Emmanuel Macron’s decisions faced a significant number of constitutional complaints – a total of 25 to date. Complaints challenged the two presidential decrees—one for the dissolution and one for organizing the election—based on Article 12 of the Constitution, which grants the President the authority to dissolve the National Assembly under certain conditions and mandates that elections be held within 20 to 40 days following dissolution.

Regarding the former, the Constitution requires the President to “consult” the Prime Minister and the Presidents of the two chambers before dissolving the lower chamber. According to various press articles, President Macron merely informed the President of the Senate and the National Assembly, and the Prime Minister discovered the dissolution only a few moments before it was announced. Without addressing the merits of the significance of the required consultation, the Constitutional Council reaffirmed a well-established precedent: no constitutional review can be performed due to lack of jurisdiction over the presidential power of dissolution. Similarly, the supreme administrative court, the Council of State, concluded that the dissolution decree is “an act related to the relationship between the President and the National Assembly,” and thus outside the court’s jurisdiction, following a doctrine similar to the political question doctrine known as the “government’s acts theory.” While the actual decisions are in line with past precedents, they provoked a somewhat astonishing thought for constitutional lawyers: if any of the other rules about the powers of the President in case of political crisis, such as the prohibition to dissolve the Assembly twice in one year, are broken, no judge would be able to control and sanction such a violation.

On the other hand, the Constitutional Council has jurisdiction over the elections decree, as it is considered a preliminary act to a national election. Under Article 59 of the Constitution, the Council serves as the election judge, a role that is parallel to but distinct from its function as a constitutional review body. Complaints argued that the minimum delay of 20 days between the dissolution and the first round of elections was not respected since the dissolution would only enter into force the day after its pronunciation (therefore on June 10th) and since some overseas territories would start voting earlier than mainland France, on June 29th. In its decision, the Council concluded for an opposite interpretation: the specific timing of snap elections should be interpreted not as 20 full days but as the possibility for elections to be organized on the 20th day, which applies to the early elections in overseas territories, since the dissolution entered into force on the same day as the presidential decision was announced (at 9pm on a Sunday night).

Beyond the technical aspects of the Council’s decision, one must consider what else this body, which is neither an actual constitutional court nor a fourth branch institution, could have done given the advanced state of the political campaign and the time constraints on the President. The dates of the vote were influenced by French national holiday weekend (July 14th) which risked increasing voter abstention, and the upcoming Olympic Games in Paris (starting July 26th). Critics tried to argue that such a hasty election process violates the broader principle of voting sincerity and fairness, guaranteed by both the French Constitution (Article 3) and the European Convention on Human Rights (Article 3 of addition Protocol 1). However, once the Constitutional Council had interpreted the constitutional time-frame in the way it did, there was no chance that such timing could be considered anything but respectful of voting rights. Still, by rejecting these arguments with minimal explanation, stating only that “since the sole purpose of Article 1 of this decree is to set the date for convening the electorate within the framework provided by Article 12 of the Constitution, the complaint alleging disregard for the freedom and sincerity of the vote must be dismissed,” the Council left unclear why a decree setting the election date could not by itself impact the fairness of the vote. This is especially pertinent when the short preparation time for national legislative elections was the core of the complaints. But it was also an important part of the President’s political strategy to provoke the consolidation of an anti-extremes vote, one that no judge felt legitimate enough to discuss.

Share this:

On the Fulton County certification lawsuit

Rick H. posts the Washington Post story about the lawsuit from an official trying to guarantee the right to refuse to certify election results in Fulton County, Georgia. I confess, I have a somewhat different reaction to the litigation, a little different from the concerns about what the litigation might yield.

When I spoke to Rolling Stone about this litigation earlier this month, here was my take:

Adams’ lawsuit could also backfire and prove that the certification process — a previously mundane and “ministerial” task that election deniers have hijacked in recent years — is not up to the discretion of officials like Adams, says Derek Muller, a professor at Notre Dame Law School who has written about the issue of local certification of elections.

“[Adams] had no basis in law to refuse to certify the results,” Muller tells Rolling Stone and American Doom. “If anything, this lawsuit is likely to result in a legal decision that shuts down claims like hers well before the election in Georgia.”

You can see the complaint here. The complaint rightly notes that one portion of the Election Code empowers the Board to “inspect systematically and thoroughly the conduct of primaries and elections . . . to the end that primaries and elections may be honestly, efficiently, and uniformly conducted.” The complaint also rightly notes elsewhere that the Code allows refusal to certify in some circumstances: “If, upon consideration by the superintendent of the returns and certificates before him or her from any precinct, it shall appear that the total vote returned for any candidate or candidates for the same office or nomination or on any question exceeds the number of electors in such precinct or exceeds the total number of persons who voted in such precinct or the total number of ballots cast therein, such excess shall be deemed a discrepancy and palpable error and shall be investigated by the superintendent.”

But the complaint tries to conflate the two things. It asserts that if there is some dispute about the ability to “inspect” the election, then the board is empowered to refuse to certify and investigate. That’s not what the Code allows. The board might have power in other circumstances (e.g., in the months and years ahead of an election) to develop procedures about how to inspect conduct. But when it comes to certification, the scope of discretion is quite limited. To borrow an analogy I used in Election Subversion and the Writ of Mandamus:

Certifying an election is something like an automotive worker at the end of an assembly line, affixing windshield wiper blades to a vehicle. That worker might be able to stop the assembly line if the car has only three tires or if the doors are missing. But the worker is not permitted to stop the assembly line to investigate whether the inmost parts of the engine were fitted together to that worker’s satisfaction. Other workers are responsible for other stages in the process. There are other checks in the process—other managers and other supervisors tasked with those responsibilities; workers must know their roles and what responsibilities reside with someone else.

This complaint, filed well before Election Day, may actually serve to establish the kind of precedent that would help expedite certification in the event that disputes later arose, because I view it as exceedingly unlikely that a court grants the relief the plaintiff here seeks. And if there’s an affirmative order from Georgia courts well before Election Day that certification is a largely ministerial task and that refusal to certify can only occur under limited, enumerated terms, it would make any disputes this fall less likely and any resolution much faster. Perhaps I’m wrong, of course, and a court issues relief for the plaintiff or an adverse judgment doesn’t deter later actors. But I wanted to suggest it as a possible alternative way forward.

Share this: