Category Archives: election administration

“One Colorado Race Will Be About Voters’ Faith in Elections. It’s Not Looking Good.”

Jennifer Oldham (in Politico) writes this long profile of the struggles facing Colorado’s State Secretary of State.

“Election officials overall, 80 percent of whom are women, reported election misinformation makes their jobs more dangerous, according to a Brennan Center survey of nearly 600 workers.

. . . .

Now, Griswold and other secretaries of state find themselves in a quandary; if they push back on these attacks — on themselves and the voting process in their states — with legislation, their responses are often seen as partisan, too.

Griswold’s office backed a slate of measures, including the law enforcement protection bill. For now, she relies on private guards paid for by her department’s cash fund. Her agenda also included bills that fortify security for poll workers, such as a “Vote Without Fear Act.” The measure, signed recently by Democratic Gov. Jared Polis, bans the carry of a concealed weapon within 100 feet of a drop box or voting center.”

For more on Jocelyn Benson’s (Michigan) experience there is this segment from NBC, which opens “President Donald Trump suggested in a White House meeting that she should be arrested for treason and executed.” Here is a profile of the Republican challenging her.

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“What to know about Pennsylvania’s election recount rules”

For those that are curious, this short synopsis in the Philadelphia Inquirer is helpful.

“Pennsylvania election law requires an automatic recount if the difference between the top two candidates for a statewide office is 0.5% of the vote or less. . . . The recount must be scheduled to be held by the third Wednesday following election day, which in this case would be June 1. . . . The second-place candidate can decline a recount.”

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“Printing error affects mailed ballots in Lancaster County”

Philadelphia Inquirer reports that a printing error has caused problems with the processing of a not insignificant number of mail-in ballots in Lancaster County. Too bad, however, that this is being used as an excuse to oppose the 2019 expansion of no-excuse absentee voting in PA–rather than to reconsider the printing companies that are being used.

“An error by a company that prints ballots for several Pennsylvania counties caused thousands of mail-in ballots to be unreadable Tuesday as voters were deciding hotly contested primaries for governor and U.S. Senate in one of the nation’s most important battleground states.

Officials in Lancaster County, the state’s sixth most populous, said the problem involved at least 21,000 mailed ballots, only a third of which were scanning properly. The glitch will force election workers to redo ballots that can’t be read by the machine, a laborious process expected to take several days. Officials in the GOP-controlled county pledged that all the ballots will be counted eventually.”

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“The Twitter account defending Australian democracy”

A must-read story from the Wa. Post on how Australia combats election disinformation:

In a Canberra office covered in computer screens, the alerts began pouring in.

“This needs a #FactCheck,” one person tweeted.

“Is this not illegal?” another asked.

Tagged in the torrent of tweets was the Australian Electoral Commission (AEC). Within minutes, the federal agency responded, calling the video “false” and “disappointing.” The agency’s actions quickly led Twitter to label the cartoon as “misleading,” and Facebook and TikTok took it down completely.

The incident last month reflects the rising tide of misinformation Australia faces as it prepares to go to the polls on Saturday. But it also shows the benefit of a single agency overseeing a country’s electoral process….

“There are a myriad of major and minor differences in how electoral laws and regulations are administered across America,” said Pippa Norris, a professor at Harvard’s Kennedy School of Government. “This violates basic principles of equality and consistency in electoral processes and voting rights, leads to excessively partisan considerations gaming the system, and encourages numerous malpractices.”

Australia’s electoral system, in contrast, is praised by analysts around the world.

Steven J. Mulroy, a professor at the University of Memphis and the author of a book on American election law, called it the “gold standard in election administration.”…

As the challenges have changed, so, too, has the AEC.

When Ekin-Smyth joined in 2011, the AECdidn’t even have a Twitter account. A decade later, half a dozen people now help him tweet at a blistering pace: up to two dozen times per hour. It also has accounts on Facebook, Instagram, LinkedIn and YouTube, has partnered with TikTok on an election guide, and has held an “Ask me Anything” on Reddit….

“We’re not blind to the fact that social media moves incredibly swiftly,” Ekin-Smyth said. “And the action that social media organizations can take is brilliant. But the action we can take even quicker by responding on our channels is perhaps going to be even more effective.”…

“A party or candidate talking about another party, their policies, their history — we cannot be the regulators of truth for that,” Ekin-Smyth said. “We don’t have legislation that allows it. But also there would be some practical problems and some perception problems if we were making decisions on those things.”…

With social media stoking tribalism, the AEC requires all its employees — including its 100,000 temporary election workers — to sign a declaration of political neutrality.

“There is a lot of responsibility to it,” Ekin-Smyth said, “because a failed election — real or perceived — as we’ve seen in other jurisdictions, is potentially devastating.”

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“DeSantis taps self-described ‘Florida gun lawyer’ to oversee elections”

CNN:

Florida Gov. Ron DeSantis has put in charge of the state’s election systems a deeply conservative state lawmaker who has championed legislation to ban so-called sanctuary cities and calls himself the “Florida gun lawyer.”

DeSantis announced on Friday the appointment of state Rep. Cord Byrd as the next secretary of state, a day after the current officeholder, Laurel Lee, announced she was resigning. Byrd takes over the Florida Department of State at a critical juncture in the agency’s history: For the first time, the office will oversee a new election security force with unprecedented authority to hunt for election and voting violations in the state. The new election force was a top priority for DeSantis, who signed a law to create the Office of Election Crimes and Security earlier this year.”

Under the leadership of Governor DeSantis, Florida has led the way on election security and preserving freedom for its residents,” Byrd said in a statement. “As Secretary of State, I will make sure Florida continues to have secure elections and that we protect the freedom of our citizens in the face of big-tech censorship and ever-growing cybersecurity threats.”

The change in leadership comes amid a busy midterm election cycle where DeSantis will be on the ballot, and with the Department of State embroiled in multiple lawsuits over Florida’s new congressional map and a 2021 law that put new restrictions on mail-in voting and other election measures. On Thursday, a state judge called the new DeSantis-backed congressional boundaries unconstitutional because they diminish the power of Black voters in northern Florida, but an appellate court on Friday stayed the lower court’s ruling.

Lee, the outgoing secretary of state, has earned praise for being a steady hand from the county election officials who oversee voting across the state. Supporters of former President Donald Trump have at times put immense pressure on Lee and county election officials to conduct an Arizona-style review of the 2020 election, even though Trump won Florida by a healthy margin. Lee rejected those efforts, saying last year that the results in 2020 were “accurate, reliable.”

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“Paper Ballots Helped Secure the 2020 Election — What Will 2022 Look Like?”

Brennan Center:

Nation­wide, we estim­ate that 93 percent of all votes cast during the 2020 elec­tion had a paper record, whether filled out by hand or prin­ted by a machine for the voter to review before cast­ing their ballot (based on data from Veri­fied Voting and the Elec­tion Assist­ance Commis­sion’s 2020 Elec­tion Admin­is­tra­tion and Voting Survey). The increase — up from 82 percent in 2016 — was largely due to states and local juris­dic­tions repla­cing anti­quated paper­less voting machines, often with the help of federal fund­ing. And even where states were not able to replace this equip­ment prior to the 2020 elec­tion, increased mail voting ensured that a higher share of voters were mark­ing their selec­tions on paper ballots.

The trans­ition to paper ballots should continue in upcom­ing elec­tions, as the hand­ful of states that still use paper­less voting machines work to phase out this unse­cure equip­ment. In the past year, Indi­anaKentuckyMissis­sippi, and Texas have all passed laws to require voting systems to produce a paper record of every vote, or moved up the dead­line for doing so. A similar bill recently passed both houses in Tennessee….

Could anything stop this progress? Perhaps. New Jersey serves as a caution­ary tale — while the state has required paper voting systems for over a decade, inad­equate fund­ing for upgrades has preven­ted counties from imple­ment­ing this require­ment. Already, some counties in states with recent paper­less voting bans are respond­ing by retro­fit­ting outdated equip­ment rather than repla­cing it with modern tech­no­logy, due to the high cost of new machines. These short­cuts raise secur­ity concerns of their own, as older equip­ment is more likely to fail, more diffi­cult to main­tain, and less likely to have the secur­ity features we expect of machines today. The Bren­nan Center and Veri­fied Voting estim­ate that it will cost about $105 million to fully replace all remain­ing paper­less voting machines nation­wide. 

At the same time, there is a move­ment in some corners to get states to adopt or expand risky inter­net voting meth­ods that fail to provide a reli­able paper trail. Lead­ing experts in cyber­se­cur­ity, computer science, and elec­tion infra­struc­ture — along with federal cyber­se­cur­ity offi­cials — continue to warn that inter­net voting presents a “signi­fic­ant secur­ity risk,” and that current tech­no­logy cannot guar­an­tee secure and reli­able online voting.

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“Trump allies breach U.S. voting systems in search of 2020 fraud ‘evidence'”

Reuters:

Eighteen months after Donald Trump lost the White House, loyal supporters continue to falsely assert that compromised balloting machines across America robbed him of the 2020 election.

To stand up that bogus claim, some Trump die-hards are taking the law into their own hands – by attempting, with some success, to compromise the voting systems themselves.

Previously unreported surveillance video captured one such effort in August in the rural Colorado town of Kiowa. Footage obtained by Reuters through a public-records request shows Elbert County Clerk Dallas Schroeder, the county’s top election official, fiddling with cables and typing on his phone as he copied computer drives containing sensitive voting information.

Schroeder, a Republican, later testified that he was receiving instructions on how to copy the system’s data from a retired Air Force colonel and political activist bent on proving Trump lost because of fraud.

That day, Aug. 26, Schroeder made a “forensic image of everything on the election server,” according to his testimony, and later gave the cloned hard drives to two lawyers.

Schroeder is now under investigation for possible violation of election laws by the Colorado secretary of state, which has also sued him seeking the return of the data. Schroeder is defying that state demand and has refused to identify one of the lawyers who took possession of the hard drives. The other is a private attorney who works with an activist backed by Mike Lindell, the pillow mogul and election conspiracy theorist.

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The election side of the Florida legislature’s bill to remove Disney’s special tax district

The Wall Street Journal details an interesting wrinkle in the Florida legislature’s effort to end Disney’s special tax district:

Ending the district could be a complicated process, and is likely to provoke a legal battle that could prolong the public dispute between Disney and Mr. DeSantis. According to a bill analysis by legislative committee staff, dissolving the district could require approval by a majority of the resident electors or landowners of the district.

Reedy Creek’s two residential communities, Bay Lake and Lake Buena Vista, have about 50 permanent residents in total, most of them Disney employees. As primary landowner in the district, Disney controls most of the votes to elect Reedy Creek’s board of supervisors, giving the company strong influence over any vote within the community.

The bill analysis points out that existing Florida law requires, “In order for the Legislature to dissolve an active independent special district created and operating pursuant to a special act, the special act dissolving the active independent special district must be approved by a majority of the resident electors of the district or, for districts in which a majority of governing body members are elected by landowners, a majority of the landowners voting in the same manner by which the independent special district’s governing body is elected.”

These special purpose districts allow for an exception to “one person, one vote,” sometimes known as “one acre, one vote,” approved by the Supreme Court in cases like Salyer Land Co. v. Tulare Lake Basin Water Storage Dist. (1973). You can check out the Reedy Creek charter, which provides, “At all elections of supervisors, each landowner shall be entitled to one (1) vote in person or by written proxy for every acre of land and for every major fraction of an acre owned by him in the District.”

The bill’s text, however, opens with the proviso, “Notwithstanding” existing Florida law, any independent special districts created before 1968 and not subsequently reestablished are dissolved as of June 1, 2023. (Five other special districts would also be dissolved.)

I don’t know how the legal debate on this topic will play out, except to note that it’s one component of the future skirmish, highlighted by this exchange reported in the Tampa Bay Times:

Sen. Linda Stewart, D-Orlando, expressed doubt about the legality of the proposal, arguing state law only allows special districts to be dissolved with the consent of the government of the district.

Republicans have said that argument holds little water.

“The bill creates new law,” said Rep. Randy Fine, R-Palm Bay, the House bill sponsor. “If you don’t understand that every bill we pass changes existing statute, I’d be looking for a refund on my law degree.”

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“Occupational Hazard: A Critique of California’s Ballot Designation Statute”

Peter Nemerovksi has posted this draft on SSRN (forthcoming, Journal of Legislation). Here is the abstract:

In 1931, California amended its Political Code to allow candidates for office to list their occupations on the ballot. This ballot designation statute was originally intended to help voters identify candidates and distinguish between candidates with similar or identical names.

Over time, while the language of the ballot designation statute has remained more or less the same, the statute has evolved into a means by which candidates seek to appeal to voters. Candidates, often aided by political consultants, attempt to devise designations that will evoke positive reactions from voters and that suggest qualifications and experience relevant to the office they are seeking, with little regard to whether the designations accurately describe how they earn their living. Thus, incumbent members of Congress serving in Washington, D.C. run for reelection as farmers; an attorney who occasionally mentors young lawyers runs for office as a teacher; and a court commissioner who lectures part-time at a community college runs as a professor.

This article argues that the ballot designation statute should be repealed. It provides little benefit to voters and is far more likely to confuse or mislead them. It is a recurring nightmare for courts and election officials, who must analyze hundreds of proposed designations every two years and determine whether they comport with the myriad guidelines, regulations, and statutory requirements that govern the designations. The time has come for California to join the forty-nine states that do not, as a matter of course, allow candidates to list occupations on the ballot.

Part I of this article traces the history of the ballot designation statute and shows just how far it has strayed from its original purpose. Part II explains how key terms like “profession,” “vocation,” “occupation,” and “principal” are defined in the governing regulations. Part III summarizes some of the controversies that have arisen over candidates’ chosen designations. Part IV analyzes which occupations are most advantageous electorally. Part V presents a number of arguments for doing away with the ballot designation statute. Finally, Part VI discusses several reform proposals that would improve the statute if it cannot be eliminated altogether.

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“Mark Zuckerberg Ends Election Grants”

NYT:

Mark Zuckerberg, who donated nearly half a billion dollars to election offices across the nation in 2020 and drew criticism from conservatives suspicious of his influence on the presidential election, won’t be making additional grants this year, a spokesman for the Facebook founder confirmed on Tuesday.

The spokesman, Ben LaBolt, said the donations by Mr. Zuckerberg, the chief executive of Meta, and his wife, Priscilla Chan, were never intended to be a stream of funding for the administration of elections.

The couple gave $419 million to two nonprofit organizations that disbursed grants in 2020 to more than 2,500 election departments, which were grappling with a shortfall of government funding as they adopted new procedures during the coronavirus pandemic.

The infusion of private donations helped to pay for new ballot-counting equipment, efforts to expand mail-in voting, personal protective equipment and the training of poll workers.

t also sowed seeds of mistrust among supporters of former President Donald J. Trump. Critics referred to the grants as “Zuckerbucks” and some frequently claimed, without evidence, that the money was used to help secure Joseph R. Biden Jr.’s victory. Several states controlled by Republicans banned private donations to election offices in response.

“As Mark and Priscilla made clear previously, their election infrastructure donation to help ensure that Americans could vote during the height of the pandemic was a one-time donation given the unprecedented nature of the crisis,” Mr. LaBolt said in an email on Tuesday. “They have no plans to repeat that donation.”

The Center for Tech and Civic Life, a nonprofit group with liberal ties that became a vessel for $350 million of the contributions from Mr. Zuckerberg and Dr. Chan in 2020, announced on Monday that it was shifting to a different model for supporting the work of local election administrators.

During an appearance on Monday at the TED2022 conference in Vancouver, Tiana Epps-Johnson, the center’s executive director, said that the organization would begin a five-year, $80 million program to help meet the needs of election departments across the country.

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April 14 Webinar: “Best Practices for Election Audits – discussion co-sponsored by Wayne Law’s Voting Rights and Election Law Society”

Levin Center at Wayne Law:

Properly administered election audits are one of the most important tools states can use to improve voter confidence and election security. In 2020, however, state legislatures in multiple states used audits for the opposite goal of undermining the public’s faith in elections and the electoral results themselves. Join us on April 14, as representatives from the Brennan Center for Justice and the R Street Institute discuss the audits that followed the last election cycle and explore options to strengthen oversight of our elections going forward. This virtual panel discussion is hosted by Wayne Law’s Voting Rights and Election Law Society and the Levin Center at Wayne Law.

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“Almost 25,000 mail-in ballots were rejected in Texas for its March 1 primary election”

NPR:

A total of 24,636 mail-in ballots were rejected throughout Texas in the March 1 primary election, the Texas secretary of state’s office said Wednesday.

That’s a 12.38% rejection rate — far higher than in previous contests.

Local election officials, as well as voting rights advocates, have said many voters were tripped up by a GOP-backed law that went into effect late last year.

James Slattery, a senior state attorney at the Texas Civil Rights Project, says these final figures show Texas’ new voting law, known as Senate Bill 1, was “catastrophic for democracy” in the state.

“The rejection rate went up by a factor of 12 since the last election,” he said. “The only reason that the rejection rate soared this high is that Senate Bill 1 imposed this new ID requirement and it is disenfranchising eligible voters.”

Under SB 1, voters have to provide a partial Social Security number or driver’s license number on their mail ballot application — as well as on the return envelope. The ID number they provide has to match what’s on their voter registration record.

Many voters either completely missed the new ID portion of the return envelope or had mismatched IDs, local officials said.

Some county election officials reported that up to 40% of ballots that were returned were initially flagged for rejection. Eventually some voters were able to fix their ballots, but many voters were not.

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With one simple sentence, Congress could (mostly) end the “independent state legislature doctrine”

The Elections Clause provides, “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”

Here, the (hypothetical) Symmetrical Elections Act of 2022:

Except where otherwise inconsistent with the Constitution of the United States or with Federal law, the times, places, and manner of holding elections for Senators and Representatives shall be the same as for the most numerous branch of the state legislature, including the times, places, and manner set forth in the Constitution, laws, and regulations of the state, as authoritatively interpreted by the courts of the state.

Three caveats to this otherwise simple solution.

First, it excludes presidential elections. The Supreme Court has said in the past that the power of Congress over presidential elections is broad. But there does remain a formal textual constitutional difference between the two (even if some laws do extend to regulation of both presidential and congressional elections), and there are additional tricky things about presidential elections (for instance, holding at-large winner-take-all elections for presidential electors; and how primaries interact with the general election, as presidential primaries are different in kind than other primary elections). This proposed statute could still lead to remaining disputes about presidential elections under the Presidential Electors Clause. It would, of course, exert significant pressure on states to conform their presidential elections to match everything else, but exerting power in one area of elections and hoping states follow along elsewhere hasn’t always worked out as expected. But, it would end all redistricting disputes arising under the doctrine, among other things.

Second, while a simple solution, it would entirely upend the election codes of all 50 states. I don’t know any state that has perfect symmetry between congressional and state elections (e.g., signature petition requirements, filing requirements and deadlines, etc.). From Nebraska’s nonpartisan state legislature to Vermont’s primary petition signature requirements, some rules everywhere would change. While there’s a large amount of existing symmetry, it would really require every state to revisit its election code quickly.

Third, it might invite federal courts (including the United States Supreme Court) to review questions of state law. I’m not sure how to puzzle through the jurisdictional questions, and it might some refining. A rule like this would seem to incorporate state law into federal law, and maybe federal courts would simply Erie-guess their way through these problems.

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