The trial judge in this opinion found no misconduct or illegal conduct in signature verification of absentee ballots. Kari Lake loses her election contest against Katie Hobbs for Arizona’s gubernatorial race on her final remaining issues.
She can appeal, but an appeal is unlikely to succeed given these factual findings.
Last fall, I highlighted two lawsuits in Arizona, one that failed for its overbreadth and one that ultimately succeeded. The successful case was brought by the League of Women Voters, and they secured a temporary restraining order as to voter intimidation occurring around drop boxes and other related activity. (The other lawsuit had an appeal to the Ninth Circuit that was ultimately abandoned.)
The League of Women Voters has now announced a settlement in its case:
The parties have now settled the case. In so doing, the League and Ms. Jennings agreed to publicly condemn intimidation of any kind in connection with the exercise of the right to vote. The terms and obligations of the settlement are confidential.
As her lawyers frame it, Kari Lake’s effort urging a judge to set aside her November loss to Democratic Gov. Katie Hobbs comes down to a matter of seconds.
Specifically, whether a Maricopa County election worker could verify in just two or three seconds that a voter’s signature on their green ballot affidavit envelope was consistent with those already in their record.
The lede in the Arizona Republic:
The first witness in the opening day of former gubernatorial candidate Kari Lake’s trial, in which the Republican alleges Maricopa County didn’t verify signatures on ballot envelopes, was a woman who spent days verifying signatures.
Former Republican gubernatorial candidate Kari Lake is headed for a second trial in her election challenge, a case that has lasted nearly seven months beyond her loss to Arizona Gov. Katie Hobbs in November.
In a ruling issued late Monday, Maricopa County Superior Court Judge Peter Thompson said Lake should have the chance to present testimony on the one remaining issue in her case, about whether Maricopa County properly verified signatures on ballot affidavit envelopes.
. . .
The judge clearly set the parameters for Lake: To be successful at her trial, she must prove “Maricopa County’s higher level signature reviewers conducted no signature verification or curing and in so doing had systematically failed to materially comply with the law.”
Lake must also prove that the county’s failure “resulted in a change in the outcome” of the election and be proven by a “competent mathematical basis” and with clear and convincing evidence.
And from Arizona’s Family, “Kari Lake election lawsuit moves forward after ruling.”
Henry Berger, of the New York City Bar’s Election Law Committee and the state’s Commission on Judicial Conduct, and Kathy Boockvar, former Secretary of the Commonwealth of Pennsylvania, urge New York to return no-excuse mail balloting to the permanent policy menu (the state had the system as a COVID-19 emergency measure but it expired at the end of 2022).
New from Paul Herrnson and Charles Stewart:
The COVID-19 pandemic had the potential to wreak havoc on elections. Democracies initiated varied policies to minimize health risks to voters and election workers. This study assesses the impact of voting policies, personal exposure to COVID, and partisanship on voter behavior in the 2020 U.S. general election. Using a comparative state-politics approach and new data, we demonstrate that exposure to COVID substantially influenced voter turnout, and election policies had a major effect on whether a voter cast a ballot by mail, early in-person, or in-person on Election Day. Unique circumstances, including the emergence of voting policies as a polarizing issue, also spawned a new partisan voting gap that is especially prominent among heavy news consumers. Compared to 2018, many more Democrats than Republicans abandoned Election Day voting in favor of mail voting.
This is an intriguing decision, analogizing the challenge to cases protecting advocacy groups’ right to circulate petitions without undue regulation.
Michigan Live notes the new grace period for receiving military and overseas absentee ballots – the first part of an effort to implement Prop 2 from last year.
The “materiality” provision of the Civil Rights Act of 1964 is as follows:
No person acting under color of law shall . . . deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election . . . .
This provision has been at issue in recent cases like Ritter v. Migliori before the United States Supreme Court, and surely in the near future the Court will confront the question about what kinds of provisions are “material” (and what things are an “act requisite to voting”), especially when it comes to signature and other requirements for absentee ballots.
But another question has arisen in federal courts: whether private litigants may sue in federal court to enforce this provision, or whether only the Attorney General of the United States initiate such claims. From the denial of the motion to dismiss earlier this month in Vote.org v. Georgia State Election Board, one of the cases litigating SB202 in Georgia:
Defendants argue that the Materiality Provision does not create a private right of action. The Court recognizes that courts in other circuits are divided as to whether the Materiality Provision can be enforced via a private right of action. Compare Migliori v. Cohen, 36 F.4th 153 (3d Cir. 2022) (holding that private plaintiffs may enforce the Materiality Provision via 42 U.S.C. § 1983), with McKay v. Thompson, 226 F.3d 752, 756 (6th Cir. 2000) (holding otherwise). Significantly, the Eleventh Circuit has already directly addressed this issue in Schwier v. Cox and concluded that the Materiality Provision can be enforced by a private right of action under § 1983. 340 F.3d 1284, 1297 (11th Cir. 2003). Given this binding precedent, the Court finds that the Materiality Provision can be enforced by a private right of action. To the extent that Defendants seek dismissal on this ground, the motion is DENIED.
The Fifth Circuit last year acknowledged the split but concluded it did not need to resolve the issue at that time. In oral argument earlier this month, the issue did not attract much attention, but briefing from the United States came out in favor of a private right of action. It described the Sixth Circuit’s holding in this way: “The only other circuit to address this issue never discussed Section 1983, merely stating without elaboration that the Materiality Provision ‘is enforceable by the Attorney General, not by private citizens.'”
It’s not clear what the Fifth Circuit will do and whether it deepens the circuit split, but it’s an issue I’m watching ahead of 2024.
After years of assailing early voting, Donald Trump is having a change of heart.
The 2024 presidential candidate remains critical of various forms of early voting, advisers say, but his campaign is nonetheless mounting an effort to pursue such votes after Democrats excelled at doing so in recent elections. His team is studying state laws governing absentee and mail-in voting as well as ballot collection, called “ballot harvesting” by critics, in which third parties gather and turn in votes, people familiar with the effort said.
It amounts to a significant shift for Mr. Trump and comes as GOP rivals, including Florida Gov. Ron DeSantis and former South Carolina Gov. Nikki Haley, say the party squandered chances in recent elections by focusing too much on Election Day turnout.
Mr. Trump highlighted the move in a fundraising email this week, saying, “The radical Democrats have used ballot harvesting to cancel out YOUR vote and walk away with elections that they NEVER should have won. But I’m doing something HUGE to fight back.”
The email added, “Our path forward is to MASTER the Democrats’ own game of harvesting ballots in every state we can. But that also means we need to start laying the foundation for victory RIGHT NOW.”
In December, Mr. Trump told Breitbart News that the GOP has no choice but to “live with the system that stinks,” while maintaining “a mail-in ballot will always be corrupt” and that Republicans should seek to change laws.
His criticism of mail-in voting, before and since his 2020 loss, helped chip away at GOP faith in early voting, polls show, and party strategists say that has contributed to election defeats, including in gubernatorial and Senate races in Arizona and Pennsylvania last November.
Arizona’s mail-in voting system is not unconstitutional, the Court of Appeals ruled today, blasting a lawsuit filed last year by the Arizona Republican Party and Chairwoman Kelli Ward. The unanimous decision upholds the previous dismissal of the case.
New legislator Alexander Kolodin had filed the case for the AZGOP, along with nationally-known law professor Alan Dershowitz. They were claiming that mail-in ballots violated the Arizona Constitution’s Secrecy Clause. Today’s decision notes that Kolodin tried to back off of their original position during both briefing and oral arguments, suggesting now that the Secrecy Clause requires a “secure restricted zone around a voter who fills in a mail-in ballot.”
The 11-page decision then blasts through three arguments made by Kolodin and Dershowitz*: (1) a 1992 U.S. Supreme Court decision upholding a Tennessee law allowing a 100-foot no electioneering zone outside polling places (“That holding does not suggest – let alone direct – how we interpret the Arizona Constitution’s Secrecy Clause…. (I)ts suggestions are dicta and unpersuasive in this case.”); (2) the AZ law prohibiting so-called ballot selfies taken at polling places but not in voters’ homes; and (3) a previous AZ Supreme Court observation that mail-in ballots cannot be possessed by anyone other than the intended voter.
Hundreds of thousands of mail ballots were rejected across the country during the 2022 general election, according to a state-by-state analysis by NPR. That’s about 1% of ballots that were returned to election officials, a rate similar to prior years.
The analysis, which drew primarily from states that track ballot rejections on a statewide basis, provides an incomplete picture. That’s because many states don’t track this information at the state level, and other states that do track ballot rejections statewide told NPR that their data were not ready to be shared.
For example, Illinois had shared data with NPR that showed a far higher rejection rate than other states’. When asked about it, Illinois officials retracted the data and said they needed more time for the final numbers….
In some cases, however, these new rules did lead to a sharp rise in ballot rejections. For example, after new ID requirements went into effect in Texas, the state had an unprecedented share of mail ballots rejected in the following election. During the state’s March primary last year, more than 12% of mail ballots were rejected. The overwhelming share of those ballots were tossed out because voters completely missed the part of the return envelope that required a driver’s license number or partial Social Security number. This was a stark increase from previous elections. In 2020, Texas had a 0.8% mail ballot rejection rate; in 2018 it was 1.7%.
During the 2022 general election, though, the statewide mail ballot rejection rate in Texas was 2.7% — higher than other states but far lower than the primaries. State officials attribute the drop to design changes to the ballot and efforts to educate voters.
The wife of an Iowa Republican who ran for Congress in 2020 was arrested Thursday and accused of casting 23 fraudulent votes on behalf of her husband.
In an 11-page indictment, prosecutors allege that Kim Phuong Taylor “visited numerous households within the Vietnamese community in Woodbury County,” where she collected absentee ballots for people who were not present at the time. Taylor, who was born in Vietnam, then filled out and cast those ballots herself, the indictment alleges, “causing the casting of votes in the names of residents who had no knowledge of and had not consented to the casting of their ballots.”
Taylor is also accused of signing voter registration forms on behalf of residents who were not present. In all, prosecutors allege, she engaged in 26 counts of providing false information and voting, three counts of fraudulent registration, and 23 counts of fraudulent voting. Each charge carries a maximum 5-year prison sentence.
The aim, prosecutors allege, was to get her husband, Republican politician Jeremy Taylor, elected to public office.