Category Archives: election administration

Cheney-Lofgren Bill to Amend the Electoral Count Act Lists Permissible Bases to Object to Counting Certain Electors, Including that Candidate is Ineligible for President Because of Participation in an Insurrection

I’ve just begun reviewing the draft Cheney-Lofgren bill to reform the Electoral Count Act. It is very much in line with the spirit of the Collins-Manchin bill in the Senate, but differs in some particulars. For example, it has a specific definition of catastrophic events that would justify a state choosing electors after election day. It raises to 1/3 of each house the number of objectors to require debates in each house to objections. (Updated)

But what caught my eye now is a provision that lists the acceptable bases for an objection. And among them is this:

‘(D) One or more of the State’s electoral votes were cast for a candidate who is ineligible for the office of president or vice president pursuant to—

(iii) section 3 of the Fourteenth Amendment to the Constitution of the United States

This appears to explicitly recognize a challenge in Congress to reject votes for Donald Trump in 2024, for example, based on the idea he is ineligible to be elected President in 2024 because he participated in an insurrection in 2020.

This will be an interesting aspect of this debate, and we’ll see what happens with this provision if there are negotiations over the Senate and House billls.

Share this:

“How a rural Colorado county became an epicenter of Donald Trump’s Big Lie”

Steven Rosenfeld:

What happened next in Mesa County gets complex. It also reveals how a rare but recurring trend among a handful of local election officials—mistakes with setting up or using their system’s computers—can be exploited by partisans who claim that invisible forces are secretly stealing votes if their candidates lose.

In every cycle, there are some election officials who do not properly set up or use these computers—errors that usually are caught and corrected, but initially produce incorrect election results. This trend has been overlooked in the press coverage of the interstate plot by Trump’s IT gurus to steal election software and 2020 data.

The operational problems, however, are among the findings by the Independent Media Institute’s Voting Booth project, which has co-written a forthcoming guide about how election systems work. The co-author is Duncan Buell, a computer scientist who has studied voting systems, software, and data for more than a decade, and was an election official in Richland County, South Carolina, home to the state’s capital, Columbia. These errors recurred in each cycle that he studied.

In 2020’s general election, the programming, and operational mistakes were few and far between. Nonetheless, the errors that Trump’s IT squads seized upon—errors that were corroborated by post-election inquiries by other government bodies—helped fuel the lie that the presidential election was stolen.

Moreover, some of the election workers who made these mistakes—such as Mesa County’s Brown—and their elected superior—such as Peters—then fell under the spell of Trump’s conspiratorial IT squad—producing fodder for more false claims.

These trends—mistakes with programming or using election computers and rogue officials who abuse the public trust by making unfounded claims—offer warnings before 2022’s general election. Many 2020 election-deniers are candidates seeking state and federal office this fall. A few already have shown in their primaries that they will attack the process and technology if they fear they may lo

Share this:

“The Fight Against an Age-Old Effort to Block Americans From Voting”

ProPublica:

Even though federal law guaranteed the two women the right to have someone help them vote, Coley-Pearson knew too well that this right was under attack. For all of the recent uproar over voting rights, little attention has been paid to one of the most sustained and brazen suppression campaigns in America: the effort to block help at the voting booth for people who struggle to read — a group that amounts to about 48 million Americans, or more than a fifth of the adult population. ProPublica analyzed the voter turnout in 3,000 counties and found that those with lower estimated literacy rates, on average, had lower turnout.

“How the system is set up, it disenfranchises people,” said Coley-Pearson, who blames Southern political leaders for throwing up hurdles. “It’s by design, I believe, because they want to maintain that power and that control.”

Conservative politicians have long used harsh tactics against voters who can’t read — poor, often Black and Latino Americans who have been failed by the U.S. education system and who conservatives feared would vote for liberal candidates. Some states have required voters who needed help to sign an affidavit explaining why they need assistance; some have prevented voters who couldn’t read from bringing sample ballots to the polls and limited the number of voters that a volunteer could help read a ballot. Time and again, federal courts have struck down such restrictions as illegal and unconstitutional. Inevitably, states just create more.

Over the last two years, the myth of election fraud, supercharged by former President Donald Trump in the wake of his 2020 loss, has fueled a barrage of new restrictions. While they do not all target voters who struggle to read, they make it especially challenging for voters with low literacy skills to get help casting ballots.

Last year, Georgia passed a law limiting who can return or even touch a completed absentee ballot. Florida expanded the radius around election locations in which volunteers are prohibited from asking people if they need help. Texas passed a law prohibiting voters’ assistants from answering questions or paraphrasing complicated language on the ballot; a federal judge struck down several sections of the law in June. But the court left other provisions in place, including ones that increase penalties for helping voters who don’t qualify and require people who assist voters to fill out more paperwork. Texas did not appeal the decision.

Share this:

“Wisconsin election clerks race to understand absentee ballot ruling”

Associated Press:

Wisconsin’s 1,800-plus election clerks were racing Thursday to understand a judge’s ruling nine weeks before the election that some fear could lead to absentee ballots being counted in parts of the battleground state but rejected in others.

A judge on Wednesday barred the bipartisan Wisconsin Elections Commission from issuing guidance to clerks, in place since 2016, about how to handle absentee ballots in which the accompanying certificates — typically the envelope the ballot is mailed back in — are missing all or parts of the address of the person who witnessed the voter casting the ballot. Clerks say that now means it is up to them to determine which ballots should be counted and which should not.

“What is tricky is: What is an address?” said Dane County Clerk Scott McDonell. “You’re going to get varying interpretations.”

State law requires clerks to either return ballots missing a witness address to the voter to be corrected or not count the ballot. The Elections Commission in 2016 told clerks that they could add information themselves if all or part of an address was missing.

Clerks only address problems on the certificate and not the ballot itself. Republicans did not contest the practice until after Donald Trump’s narrow loss in 2020, when nearly 1.4 million voters cast absentee ballots and COVID-19 vaccines weren’t available yet.

Waukesha County Circuit Judge Michael Aprahamian on Wednesday said state law does not allow clerks to fill in missing information. He granted a request from Republicans, including the GOP-controlled Legislature, to prohibit the Elections Commission from telling clerks they can do that. Aprahamian was appointed by former Republican Gov. Scott Walker.

Share this:

Must Read Michael Wines NYT: “In Voter Fraud, Penalties Often Depend on Who’s Voting”

Michael Wines for the NYT:

After 15 years of scrapes with the police, the last thing that 33-year-old Therris L. Conney needed was another run-in with the law. He got one anyway two years ago, after election officials held a presentation on voting rights for inmates of the county jail in Gainesville, Fla.

Apparently satisfied that he could vote, Mr. Conney registered after the session, and cast a ballot in 2020. In May, he was arrested for breaking a state law banning voting by people serving felony sentences — and he was sentenced to almost another full year in jail.

That show-no-mercy approach to voter fraud is what Gov. Ron DeSantis, a Republican, has encouraged this year during his re-election campaign. “That was against the law,” he said last month about charges against 20 other felons who voted in Florida, “and they’re going to pay a price for it.”

But many of those cases seem to already be falling apart, because, like Mr. Conney, the former felons did not intend to vote illegally. And the more typical kind of voter-fraud case in Florida has long exacted punishment at a steep discount.

Last winter, four residents of the Republican-leaning retirement community The Villages were arrested for voting twice — once in Florida, and again in other states where they had also lived.

Despite being charged with third-degree felonies, the same as Mr. Conney, two of the Villages residents who pleaded guilty escaped having a criminal record entirely by taking a 24-hour civics class. Trials are pending for the other two.

Florida is an exaggerated version of America as a whole. A review by The New York Times of some 400 voting-fraud charges filed nationwide since 2017 underscores what critics of fraud crackdowns have long said: Actual prosecutions are blue-moon events, and often netted people who didn’t realize they were breaking the law.

Punishment can be wildly inconsistent: Most violations draw wrist-slaps, while a few high-profile prosecutions produce draconian sentences. Penalties often fall heaviest on those least able to mount a defense. Those who are poor and Black are more likely to be sent to jail than comfortable retirees facing similar charges.

The high-decibel political rhetoric behind fraud prosecutions drowns out how infrequent — and sometimes how unfair — those prosecutions are, said Richard L. Hasen, an expert on election law and democracy issues at the U.C.L.A. School of Law.

“It’s hard to see felons in Gainesville getting jail terms, and then look at people in The Villages getting no time at all, and see this as a rational system,” he said.

The Times searched newspapers in all 50 states, internet accounts of fraud and online databases of cases, including one maintained by the conservative Heritage Foundation, to compile a list of prosecutions in the last five years. But there is no comprehensive list of voter fraud cases, and The Times’ list is undoubtedly incomplete.

The number of individuals charged — roughly one and one-half per state per year — is infinitesimal in a country where more than 159.7 million votes were cast in the 2020 general election alone.

For all the fevered rhetoric about crackdowns on illegal voting, what’s most striking about voter fraud prosecutions is how modest the penalties for convictions tend to be.

Most fraud cases fall into one of four categories: falsely filling out absentee ballots, usually to vote in the name of a relative; voting twice, usually in two states; votes cast illegally by felons; or votes cast by noncitizens.

Share this:

“What happens when the president calls you an ‘enemy of the people’? Election officials and public sentiment”

Joelle Gross, Samuel Baltz, and Charles Stewart III have posted this draft on SSRN. Here is the abstract:

False information about the legitimacy of recent American elections has prompted a barrage of harsh rhetoric against the officials who administer them. This spike in negativity, largely occurring through social media, is driving people out of these essential jobs. This article measures the extent of this negativity, how it has trended over time, which state administrations are targeted by it most, and what sorts of accounts are sending it. By collecting every reply to any Twitter account managed by the agency or person officially responsible for administering a state’s elections, we show that the usage of keywords related to election fraud has spiked in recent years, while the sentiments of the replies have grown almost universally harsher. While left-leaning repliers are usually negative towards Republican officials, and vice versa, some officials have begun to receive negative replies from both the left and right, with sustained pile-ons led almost entirely by right-leaning repliers.

Share this:

Two Studies on Political Party Roles in Election Certification from ERN

Via TPM:

After votes are tabulated locally, state election laws designate an individual or board to confirm the totals add up and to certify victory for the winning candidate. A new Election Reformers Network (ERN) analysis finds that in most states, political parties play a major role in selecting the people responsible for certification. That role is now creating a significant risk of subversion.  

At the state level, 39 states give partisan-controlled boards or partisan officials exclusive control over certification, and every state except for Hawaii involves party-nominated or partisan-elected or -appointed figures in some manner in the process. By contrast, a parallel ERN study finds that almost all of our peer democracies limit the role of political parties to observing the process and bringing challenges in court. The finalization of results in these democracies is handled by the same (usually nonpartisan) professionals who run the election itself. 

Already, we’re seeing efforts by U.S. partisans to exploit certification. In 2020, Republican party representatives in Wayne County, the largest in Michigan, refused for several hours to certify results of the presidential election, briefly throwing the contest in a key swing state into turmoil. One of their counterparts at the state level board — the same panel that last week drew charges of political bias when it rejected, on party lines, a proposed ballot measure to protect reproductive rights — threatened to do likewise. A similar skirmish arose in New Mexico earlier this year. And in Pennsylvania, three county electoral boards for months refused to certify primary results that include ballots they argued should be rejected, despite court rulings to the contrary.  

Share this:

“Some Republicans in Washington state cast a wary eye on an election security device”

Miles Parks for NPR:

In northeast Washington state, a remote region nestled against the Canadian border, the politics lean conservative and wariness of government runs high.

Earlier this year, a Republican-led county commission there made a decision that rippled across Washington — triggering alarm at the secretary of state’s office, and now among cybersecurity experts who have worked for the past six years to shore up the security of America’s voting systems.

It happened on Valentine’s Day during the regular weekly meeting of the three-member commission in Ferry County, where Donald Trump received more than 63% of the vote in the 2020 election.

After an agenda that included an update on the county fair and a discussion about a local water and sewer district, the commissioners took up a proposal to disconnect a recently installed cybersecurity device from the county’s computer network.

The device, known as an Albert sensor, was designed to alert local governments to potential hacking attempts against their networks. More than 900 Albert sensors have been deployed across the country, primarily to states and counties, and they have been a key component of the federal government’s cybersecurity response following Russian election interference around the 2016 election.

But the commissioners in Ferry County had come to the conclusion that the sensor, which had been provided by the state at no cost, was more of a liability than an asset.

“Let’s get rid of it,” Commissioner Nathan Davis said before making his motion to remove the device.

The vote in support of the motion was unanimous.

“Bye bye, Albert sensor,” one of the commissioners quipped.

Another county in Washington state also disconnected its sensor, and a third decided not to install one. It’s an isolated trend in Washington at this point, but one that represents a stark example of how Republican mistrust in elections and government systems more broadly threatens to dismantle bipartisan progress made over the past decade to improve election security.

Share this:

“Michigan election officials demanded change after 2020. Their calls so far have gone unmet.”

Detroit Free Press:

As voters across the country prepare for the upcoming midterm elections, many will contend with a whole new set of election rules from lawmakers who ushered in major changes in the wake of 2020. But in Michigan, the landscape remains largely unchanged.

Divided government in the state killed Republican proposals enacted elsewhere as Democratic Gov. Gretchen Whitmer repeatedly wielded her veto pen to strike down GOP-sponsored bills, including strict voter ID requirements and a ban on private donations for election offices.  

But even changes favored by lawmakers and election officials from both parties were sidelined by the governor or stalled in the state Legislature ahead of the August primary. 

Clerks who administer elections have pushed for changes they say will improve voter access and confidence such as time to process ballots before Election Day, training requirements for election challengers and allowing military voters to return ballots electronically. But inaction has left election officials scratching their heads.

“Both sides are saying we want to make commonsense voting reforms,” said Harrison Township Clerk Adam Wit, a Republican who was recently elected as president of Michigan’s municipal clerks association. 

“Everyone’s saying they want the same thing. They want to improve elections and I don’t think there’s been a meaningful piece of legislation that’s passed,” Wit said. 

Share this:

Injunctive relief granted, mandamus denied in Pennsylvania county certification dispute

About six weeks ago, I highlighted the dispute in Pennsylvania over whether to include some absentee ballots that lacked a date in the county’s certified results. I noted that mandamus struck me as inappropriate and that media or commentary comparisons to, say, Otero County, New Mexico were off base:

Now, that’s fine, because mandamus isn’t magic. It applies to narrow cases. And there are other solutions here. The state leads with mandamus, but it includes a second cause of action, seeking declaratory and injunctive relief, and it devotes the bulk of its brief to that. That strikes me as the more likely place to go (with, perhaps, a ride-along mandamus order directing the county boards to comply with the newly-issued injunctive relief).

With some complexity, a Pennsylvania court has issued a decision: it granted injunctive relief but denied mandamus relief, ordering inclusion of disputed ballots in the certified results. The opinion is here. Post-Gazette coverage is here.

Three thoughts.

First, the court emphasizes again why mandamus was inappropriate given the procedural posture of the case and the precedents that came before:

In granting a preliminary injunction, the Court analyzed the legal issue of whether such ballots should be counted under the standard for granting preliminary injunctive relief. This standard required the Court to determine whether the petitioners were “likely to prevail on the merits.” Importantly, the grant of a preliminary relief “[does not] serve as a judgment on the merits” because “it is a temporary remedy granted until that time when the party’s dispute can be completely resolved.” Thus, the Court’s determination was not a final decision on the merits. Given the procedural posture, the Court could not make a final determination that these ballots were lawfully cast, but determined that the petitioners in McCormick were likely to succeed on that argument under Pennsylvania and federal law.

The Court’s June 2, 2022 order in McCormick also did not reference the certification of election results. That order granted the preliminary injunction and directed county boards [to segregate ballots and include two tallies]. Petitioners interpret the Court’s direction that these ballots be canvassed, and to report a total vote tally as requiring the Boards to certify those results under Section 1308(g)(4), which requires that all canvassed ballots must be included in the results. However, viewed in light of the Court’s legal analysis, which did not finally resolve the issue of whether these ballots were lawfully cast, and the procedural posture of the case, this direction is more appropriately understood as directing canvassing of the ballots in anticipation of a final determination. Because McCormick involved the grant of preliminary relief, the results of which could change pending final resolution of the legal issue, the Court would not have had the authority to require the Boards to certify their election results to include the ballots without handwritten dates on the return envelope. Accordingly, the Court will not interpret the June 2, 2022 order in McCormick to require such certification, and, therefore, Petitioners have not met their burden of proving their entitlement to summary relief on their mandamus claim.

(Citations omitted.)

Second, there’s an extensive and comparative look at the relationship between state law and the federal “materiality” standard that’s worth a read. That said, the work of the “materiality” portion of the Civil Rights Act of 1964 is quickly becoming an attractive source of litigation. It is likely the Supreme Court weighs in soon–but, spoiler alert, I doubt it will end the way many plaintiffs’ groups hope.

Third, Pennsylvania remains one of the most problematic jurisdictions in terms of election administration. It has a deeply decentralized system. Its certification of one set of results in 66 counties here, but a different set in another county, is a walking Equal Protection violation. I wrote earlier this month, “The state legislature and the state executive are at loggerheads with one another, yielding a sclerotic legislative process for any tool that could resolve ambiguities or increase centralization. Absent some breakthrough, it is probably the single most likely source of election dysfunction ahead of the 2022 and 2024 elections.” It remains true.

Share this:

Pennsylvania error prompts meeting with judge over Lancaster County mail-in ballot case

Last month, I blogged about the mail-in ballot dispute in Pennsylvania. I noted that mandamus was not appropriate and the case was nothing like the recent Otero County, New Mexico case. That dispute took about 48 hours to resolve. Here we are, a month into the dispute, a second judicial hearing (the first one was a lengthy information-gathering one), and still no resolution–which, I think, shows my original take was right.

But there’s a new wrinkle, as reported in the LNP Lancaster Online (and the origin of this blog title). The Department of State argued that 3 of the 67 counties failed to include undated ballots in their certified vote totals. It certified the other 64 counties. But in a recent filing, Pennsylvania acknowledged that 1 of those other 64 counties also did not include undated ballots in the certified totals. Pennsylvania has no plans to “decertify” the results (not a great headline in 2022), and the court will now have to decide what to do with these other 3 counties. The State has already approved two different sets of results from the counties, so it becomes harder to claim the other 3 are doing something inappropriate. But the State still believes that it has the law on its side from the previous disputes (check out the original blog post to see the framing) and wants the remaining 3 counties to do what it wants.

This is extraordinarily messy. Pennsylvania has a deeply decentralized election system and a Secretary of State trying (so far, unsuccessfully) to exert more centralized control. The state legislature and the state executive are at loggerheads with one another, yielding a sclerotic legislative process for any tool that could resolve ambiguities or increase centralization. Absent some breakthrough, it is probably the single most likely source of election dysfunction ahead of the 2022 and 2024 elections. We’ll see how this process plays out and if it offers any clues for the near future.

Share this:

“Michigan secretary of state: Attempts to block election certification will be ‘futile'”

Detroit News:

Michigan Secretary of State Jocelyn Benson says her office will not tolerate any effort to obstruct the certification of Tuesday’s primary election based on “partisan games” or “baseless lies.”

“Any attempts to block the certification of our elections, regardless of the results, will be futile,” Benson said during an interview with The Detroit News. “We are confident that the courts will swiftly enforce the law and that at the end of the day, the will of the people will stand.”

Benson, a Democrat, made the comments just days before the first statewide vote since November 2020, when supporters of then-President Donald Trump attempted to overturn Michigan’s results based on unproven claims of widespread fraud.

About 5.5 million ballots were cast in Michigan’s November 2020 presidential election. In the last gubernatorial primary in August 2018, about 2.1 million voters participated when there were contested Republican and Democratic primaries for governor.Benson said turnout in Tuesday’s primary, which features a hotly contested five-candidate GOP primary for governor, might generate somewhere from about 2 million to 2.5 million voters.

As of July 25, 589,813 absentee ballots had been returned statewide, according to the Secretary of State’s office.

“We’re ready for anything at this point,” Benson said.

Benson and election officials from Wayne to Antrim counties have faced intense scrutiny since the November 2020 election when Trump, a Republican, lost Michigan to Democrat Joe Biden by 154,000 votes or 3 percentage points.

In the 20 months since that election, Republican Party leaders in the battleground state have replaced incumbent GOP members of county canvassing boards — the panels in charge of certifying results — in multiple counties. The Detroit News first reported the trend in October.

The changes have prompted some to worry that newly appointed members of canvassing boards who agree with Trump’s claims of past election fraud could attempt to deny certification on the local level.

Share this: