Category Archives: The Voting Wars

“WV will NOT accept voter registrations collected by Biden Administration”

election administration, Elections Clause, military voting, NVRA (motor voter), The Voting Wars

Justin here.  The title of this post is the header of the email version of a press release issued earlier this week by the office of WV Secretary of State “Mac” Warner, currently running for governor.

I’m pretty sure the title’s not true. But we’ll get there in a sec.  (It’s not the only piece of inaccurate information in the release.)

The press release is a broadside against a fictional version of Executive Order 14019, the President’s directive that federal agencies review their authorities to “consider ways to expand citizens’ opportunities to register to vote and to obtain information about, and participate in, the electoral process.”  (Disclaimer: I had no part in drafting the EO, but in my role as a federal official, I had a hand in helping to implement it, including listening to state election officials — Secretary Warner among them — during consultative conversations that Secretary Warner asserts didn’t exist.)

The release claims that the EO is an unconstitutional direction to federal agencies to “take over voter registration processes from states.”  It cites, as support, half of the constitutional foundation for the EO, in noting that “Article 1 Section 4 of the U.S. Constitution says the times, places, and manner of holding elections, shall be left to the state legislatures.” 

There are other words after that snippet, of course: Congress may at any time change that default.  And Congress has.  The NVRA directs states to designate specific government offices as one-stop voter registration agencies — including federal recruitment offices for the armed forces, as a means to facilitate electoral participation by servicemembers.  Those recruitment offices are part of the Biden Administration.  And contrary to the Secretary’s email header, it’s hard to imagine that Secretary Warner, himself a veteran, plans to refuse the servicemembers’ voter registrations collected there.

The NVRA also permits states to designate as one-stop registration agencies other state offices, and offices of federal agencies with the agreement of those offices.  And it requires, to the greatest extent practicable, federal executive agencies to cooperate with states in effectuating those designations. 

The heart of the EO is just carrying out this congressional demand.  (There are other bits too, like explaining the proper and improper uses of agency funds, but the heart is effectuating the NVRA’s mandate.) 

Nobody’s taking over voter registration processes from the states.  Several states not attempting to turn customer service into conspiracy theory have worked with agencies to help constituents get registered to vote while they’re doing other government paperwork.  In 30 years of the NVRA’s existence, the first state to designate a federal entity’s office as a voter registration site was Kansas, when it designated Haskell Indian Nations University (operated by the Department of the Interior) in May 2022.  The second was New Mexico, designating the Southwestern Indian Polytechnic Institute (also operated by DOI), two months later.  Kentucky and Michigan and Pennsylvania have announced partnerships with the Department of Veterans Affairs to let veterans more efficiently register to vote.  Those federal agencies are ready to partner with red states and blue states and purple states in part because the executive order told them to be.

VA sites can only be designated as one-stop voter registration agencies if states step forward: without West Virginia’s blessing, no VA site in West Virginia will be acting as a designated site.  I think it’s great that veterans in Kentucky will have more opportunities to smoothly register to vote while they’re already filling out paperwork, and a shame that there’s resistance just over the border to offering other veterans the same — but no matter how politically convenient it may be to conjure into rhetorical existence a strawman federal takeover, EO 14019 in no way limits West Virginia’s continuing choices about how best to serve its would-be voters.  If the press release portends a fight, it’s a fight with nobody on the other side.

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“GOP leaders pursue new lawsuits over 2024 election rules – including attacking methods of voting they want supporters to use”

The Voting Wars

CNN:

Republican leaders are encouraging their supporters to vote by mail in this year’s consequential presidential election, even as their party pursues lawsuits and legislation that would make it harder for those votes to count.

The Republican National Committee and the Mississippi Republican Party are suing the Magnolia State to end its practice of including absentee ballots received up to five business days after the election. In the swing state of Pennsylvania, meanwhile, the RNC and other Republican groups have challenged efforts to count absentee ballot envelopes missing a date – and have won so far. The GOP has also jumped into cases in Ohio, Georgia and Florida to defend restrictions on ballot drop boxes enacted by Republican lawmakers that are now being challenged by groups on the left. And in North Carolina, a new law, advocated by Republican lawmakers and in effect for this year’s elections, eliminates what was once a three-day grace period to accept most mail-in ballots.

But amid the legislative and legal attacks on early voting, the GOP’s leadership is nonetheless vowing a robust program to convince Republicans to turn in ballots early, either via in-person early voting or by mail, with a campaign called “Bank Your Vote.”

The dual strategy underscores the tricky balancing act for a party focused on trying to catch up the Democrats’ mail-in voting advantage and, at the same time, appease the party’s presumptive presidential nominee Donald Trump, who still baselessly insists that voting by mail corrupts elections and contributed to his 2020 defeat. Just last week, at a Wisconsin rally, Trump pledged to “secure” the elections with the goal of restricting voting to a single day. And on Friday, Trump and House Speaker Mike Johnson are slated to make what’s billed as a “major” announcement on election integrity at Trump’s Mar-a-Lago club and home….

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“Voter ID and absentee-ballot limits: the South tightens key voting laws ahead of election”

The Voting Wars

USA Today:

Since 2020, states have tightened who can vote absentee and who can turn in absentee ballots. They’ve passed or stiffened voter identification laws. And, under pressure from Republicans who falsely claim the 2020 election was stolen through fraud, they’re adjusting how they remove voters from the rolls.

That could affect which presidential candidate wins the swing states of Georgia and North Carolina, the outcome of key congressional and state legislative races, and which party’s candidate wins a seat on the Alabama court that upended fertility medicine.   

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Must-read WaPo: “Republicans plan blitz of election-related lawsuits, but prospects uncertain”

election administration, The Voting Wars

WaPo:

When Donald Trump installed a new chairman of the Republican Party this month, he explained privately and publicly what he wanted from the GOP: a bigger focus on election-related lawsuits, a more aggressive operation to monitor voting and a vow to make “election integrity” the party’s No. 1 priority.

The party is now striking a more aggressive tone as it recruits poll observers to keep an eye on in-person voting and boasts of positioning thousands of lawyers to challenge ballots and bring lawsuits. The strategy — an outgrowth of the one it used both before the 2020 election and after, when Trump sought to overturn the result — is meant to please Trump, electrify the base and persuade judges to tighten voting rules.

“It’s an extremely high priority for the president,” said the new Republican National Committee chairman, Michael Whatley, referring to Trump.

But the reality of what Republicans can achieve may not match Trump’s desires. Democrats have raised huge sums to fight Republican efforts, even as the GOP remains cash-strapped.

And the legal terrainis more settled now than it was four years ago, when courts had to weigh in on how to conduct voting during the height of the coronavirus pandemic.That leaves fewer opportunities to change the rules through the courts.

“Courts are a lot less tolerant of bringing cases now that could have been brought before,” said Justin Levitt, a Loyola Law School professor who previously advised the Biden White House on voting rights. “A raft of new litigation over the summer is going to run into an awful lot of: ‘The things you’re protesting aren’t new. Where were you a couple of years ago?’”…

Whatley is bringing on board attorneys who have differing views of 2020. Charlie Spies, who has denied claims that voting machines flipped votes from Trump to Biden in 2020, will serve as the RNC’s chief counsel. Bobb, who has promoted false claims about the 2020 election, will be the RNC’s senior counsel for election integrity. Spies did not respond to a request for comment and Bobb said she could not speak publiclyuntil she moves into her post next week.

Bobb worked in front of the camera and behind the scenes to undermine Biden’s win in 2020. In Arizona, she helped Trump attorney Rudy Giuliani arrange a meeting that aired false assertions of mass election fraud and later promoted a review of 1.1 million ballots in the state’s most populous county that election experts widely discredited as unreliable.

Benjamin Ginsberg, a longtime Republican election attorney who represented George W. Bush’s campaign during Florida’s 2000 recount, described Spies as seasoned and reasonable and Bobb as an “unguided missile.”

Ginsberg said the election lawsuits that Republicans and Democrats are filing often are aimed less at winning in court and more at boosting fundraising and getting their supporters to the polls. As a result, the public has less faith in elections, he said.

“If more evidence-free lawsuits are filed based only on the belief that the other side is rigging the election, it will be increasingly difficult for whoever wins to actually govern,” Ginsberg said….

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Pennsylvania: “Push to cut 10s of thousands from Allegheny County voter rolls feeds fears”

The Voting Wars

Public Source:

Clara Osburg has lived in Allegheny County since 2011 and is a regular voter — including in last fall’s municipal election. So it came as a surprise when she received a letter in late January from the county: “Your Allegheny County, Pennsylvania voter registration has been challenged on the basis of residence.”

The letter did not say who challenged her registration, why they did it or what would happen as a consequence.

“At first, I thought perhaps I had done something wrong, like misfiled my taxes or something really concerning like that,” Osburg said. She hadn’t. 

Osburg didn’t know it, but she was caught up in a push by local Republicans to “clean” the voter rolls of people they think may have moved out of the county. 

An informal group of dozens of activists has filed more than 16,000 challenges since the 2022 election, with plans to file another 10,000 by year’s end, even as county officials from both parties say it’s misguided.

“What I’m doing right now is trying to make these public employees do what they’re required to do by their job description under state statute,” said Anthony Golembiewski, a retired PennDOT employee turned GOP committeeman who has led the effort to challenge voters.

The effort won’t remove any names from the rolls ahead of this year’s presidential election because state law requires that several years pass before inactive voters are removed from the rolls without their consent. But some observers say it could fuel bad-faith election fraud claims during a General Election that’s expected to be rife with misinformation. 

“It’s just feeding into this false narrative that there’s something wrong, that Pennsylvania’s not running its elections well,” said Marian Schneider, the senior voting rights policy counsel at the American Civil Liberties Union Pennsylvania. “I think it’s a much greater risk that voters are illegally removed than they are left on.”…

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“In North Carolina, vote will be a test of new, tighter election laws — and of voters’ faith”

The Voting Wars

USA Today:

On the last Sunday of February, a sea of sharp suits and dresses flowed out of St. Joseph AME Church. Worship was over, but early balloting in North Carolina’s primary election was still open. It was time to vote. 

The congregation had been fired up by a nearly two-hour service, filled not just with gospel music but also sermons about threats to hard-won voting rights from a slate of more restrictive laws that have taken effect in the last year.

New limits on the time to return mail-in ballots. A ban on ballot drop-boxes. A law – once struck down as unconstitutional, then revived by a new conservative majority on the state supreme court – requiring voter ID at the polls. 

Soon the crowd was lined up in cars or had boarded a bus with a paper sign pasted onto the driver-side door that read “Souls to the polls.” They rode in a caravan to a nearby polling site, arriving to music from a live DJ and signs for various candidates.

“We shouldn’t have things that stop people from voting,” said Carla Gilchrist, 52, an elementary school teacher who arrived at the polling place with the church caravan. New barriers, she said, only cemented her desire to vote. 

North Carolina last year was among 14 states to enact laws in the name of election security that will make it more difficult for some to vote in 2024, according to the Brennan Center for Justice, a nonpartisan policy group. The flood of laws in various states emerged following false allegations of voting fraud in the wake of Trump’s 2020 defeat….

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“Red State AGs Keep Trying to Kill Ballot Measures by a Thousand Cuts”

direct democracy, The Voting Wars

Bolts:

When a coalition of voting rights activists in Ohio set out last December to introduce a new ballot initiative to expand voting access, they hardly anticipated that the thing to stop them would be a matter of word choice.

But that’s what Ohio Attorney General Dave Yost took issue with when he reviewed the proposal’s summary language and title, then called “Secure and Fair Elections.” Among other issues, Yost said the title “does not fairly or truthfully summarize or describe the actual content of the proposed amendment.” 

So the group tried again, this time naming their measure “The Ohio Voters Bill of Rights.” Again, Yost rejected them, for the same issue, with the same explanation. After that, activists sued to try and certify their proposal—the first step on the long road toward putting the measure in front of voters on the ballot. 

“AG Yost doesn’t have the authority to comment on our proposed title, let alone the authority to reject our petition altogether based on the title alone,” the group said in a statement announcing their plans to mount a legal challenge. “The latest rejection of our proposed ballot summary from AG Yost’s office is nothing but a shameful abuse of power to stymie the right of Ohio citizens to propose amendments to the Ohio Constitution.”

These Ohio advocates aren’t alone in their struggle to actually use the levers of direct democracy. Already in 2024, several citizen-led attempts to put issues directly to voters are hitting bureaucratic roadblocks early on in the process at the hands of state officials. …

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“GOP backs voting by mail, yet turns to courts to restrict it in battleground states”

absentee ballots, The Voting Wars

Zach Roth:

Fearing that Democrats hold a crucial edge in ballots cast before Election Day, national Republicans are working to convince their voters to take advantage of mail and early voting this year.

“We can’t play catch up. We can’t start from behind. We can’t let Dems get a big head start and think we’re going to win it all on Election Day,” Republican National Committee chair Ronna McDaniel said in November on a conference call aimed at promoting the group’s Bank Your Vote initiative to encourage early and mail voting. “Things happen on Election Day.”

But the party’s army of lawyers is, more quietly, sending a very different message. The RNC is fighting in courtrooms and legal filings in key election battlegrounds across the country to make it harder to cast a mail ballot and to have it counted. 

On Feb. 20, attorneys for the RNC were in a federal courtroom in Philadelphia, in a bid to require that Pennsylvania throw out mail ballots with missing or incorrect dates. 

Eleven days earlier, they filed a lawsuit challenging several provisions of Arizona’s newly adopted election rules, including a rule allowing voters who have not shown proof of citizenship to cast a mail ballot. 

And that same day, they asked a court in Georgia to uphold a state law that imposes stricter rules on mail voting. 

Separately, in recent months the RNC has asked courts to let it join the defense of laws in Ohio, Wisconsin, and North Carolina that similarly impose tighter rules on mail voting (judges in the latter two states denied the requests, while the Ohio motion was approved). 

The party also has sued to block a New York law that lets people vote by mail without an excuse (the state’s Supreme Court this month dismissed the complaint). And it has formally weighed in against proposed changes to Nevada’s election rules, including one that makes it easier for election officials to prevent volunteer observers from disrupting the counting of mail ballots. 

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My New Piece in Politico: “Opinion: The 2024 Election Will Be Fair. People Still Won’t Believe It.”

election subversion risk, Real Right to Vote, The Voting Wars

I have written this piece for Politico. A snippet:

The current backdrop for the 2024 election may seem bleak: Many of those who helped to ensure a fair election and a peaceful transition of power in 2020 have been silenced, replaced or intimidated. Researchers who studied and reported on disinformation have been unfairly attacked as engaging in election interference in collusion with the government. Conservative states have passed new laws barring the use of private funds to help support election administration, derisively calling such money “Zuckerbucks” after Mark Zuckerberg and Priscilla Chan’s foundation provided hundreds of millions in crucial 2020 funding. Lawsuits and congressional hearings by the Orwellian-named House committee on the “weaponization of government” may be deterring some government agencies from reporting election disinformation and foreign interference to social media companies and others. The social media platforms that had deplatformed Trump after he encouraged the violence at the Capitol have restored his accounts.

Some Republican officials have been booted out of the party or out of power, including Aaron Van Langevelde, the Michigan state member of the board of canvassers who confirmed Biden’s 2020 victory in the state, and Republican members of the U.S. House, including Liz Cheney and Adam Kinzinger, who lost primaries or chose not to run for reelection. Attrition rates among election officials, who have faced relentless threats and intimidation while earning relatively low pay, are substantial.

And yet there is reason for hope.

Efforts have been made to ensure the 2024 election will be mostly fair. Congress amended the set of rules used for its counting of Electoral College votes to close off some of the shenanigans with alternative slates of electors that Trump and his allies tried in 2020. The Supreme Court last year in Moore v. Harper rejected an extreme theory that would have empowered legislatures to overcome even their own state constitutions and state courts in constricting voting rights. Election deniers who ran for chief election officer in swing states lost in 2022. People are now hypervigilant about attempts to subvert election results and are on guard against new forms of manipulation. Trump, no longer in government, has fewer tools to try to manipulate results. The 2022 elections, without Trump on the ballot, went off smoothly. (Of course, there is much more that can and should be done in law, politics, media and tech to assure a fair and safe election, as a group of us explained in a recently issued report, “24 for ’24.”)

But things look less promising when it comes to voter confidence in the fairness of election results — on both sides of the aisle.

Trump is already laying the seeds for claiming voter fraud in the 2024 elections should he lose, positing without evidence that Democrats are allowing illegal immigration into the United States so that these new arrivals can vote for Biden in the 2024 elections. (Noncitizens are ineligible to vote in U.S. presidential elections.) One of the mistakes I made in the run-up to the 2020 elections was believing that if the U.S. could pull off a free and fair election, it would take the oxygen out of false and outlandish claims of voter fraud. In fact, Trump has been able to manufacture doubt out of absolutely nothing; fraud claims untethered to reality still captivate millions of people looking for an excuse as to why their adored candidate may have lost. The upshot, of course, was an insurrection on Jan. 6. We should be deeply concerned about a sequel, even if Trump is not in the Oval Office this time…..

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Indispensable Resource from Federal Judicial Center: “Emergency Election Litigation in Federal Courts: From Bush v. Gore to Covid-19”

election administration, The Voting Wars

It’s hard to overstate how rich a resource this Federal Judicial Center book is going to be. It is totally free online; a hard copy will be available for sale soon:

Robert Timothy Reagan, Margaret S. Williams, Marie Leary, Catherine R. Borden, Jessica L. Snowden, Patricia D. Breen, Jason A. Cantone

December 4, 2023

This collection of case studies illustrates how federal judges managed the time pressures of emergency election litigation in the years 2000 through 2020. The case studies are based on reviews of the court records and interviews with more than one hundred judges. The 513 case studies cover 717 emergency cases and an additional 151 related cases.

Downloadable file:

PDF icon Emergency Election Litigation in Federal Courts: From Bush v. Gore to Covid-19(link is external) 1302 pages

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“Voter advocates, conservative activists brace for 2024 election showdown”

The Voting Wars

Reuters:

A year before voters choose the next U.S. president, groups of all stripes are already working to prepare for what they see as the greatest threat to the 2024 election: attacks on voters’ rights for some, potential electoral fraud for others.

A coalition of non-partisan voter advocacy groups is planning to recruit its biggest-ever “election protection” pool of volunteers – more than 20,000 – to answer voters’ questions, help poll workers handle problems and bring in legal assistance where needed.

Meanwhile, the Republican National Committee said it aims to train tens of thousands of poll watchers who can be deployed in 2024, and has launched a full-time “Election Integrity Department” that has hired more than 15 staff across the United States.

The committee said these steps would be independent of the campaign of former President Donald Trump, the frontrunner for the party’s nomination to run against Democratic President Joe Biden.

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“Top Wisconsin Republicans give mixed reviews on abolishing elections commission”

election administration, The Voting Wars

Milwaukee Journal Sentinel:

Wisconsin’s top Republican on Capitol Hill this week indicated support for a new proposal to dissolve the state’s bipartisan elections commission and give its powers to the secretary of state’s office with oversight from the GOP-controlled legislature. 

But others in his party have been skeptical of the plan to abolish the Wisconsin Elections Commission, and Senate Majority Leader Devin LeMahieu told the Milwaukee Journal Sentinel Wednesday he did not support it, casting doubt on the effort’s prospects.

“I’ve been consistent since the 2020 election saying I think the state legislature needs to reclaim its constitutional authority over federal elections,” U.S. Sen. Ron Johnson, Wisconsin’s highest-ranking Republican, said in a brief interview Tuesday. “How they do that, I’ll leave it up to them. But I think WEC is out of control.”

The proposal, released Monday by Senate elections committee chairman Dan Knodl and 10 other Assembly Republicans, would require Democratic Secretary of State Sarah Godlewski to take over the elections commission’s administration duties by June 30 — about five months before the 2024 presidential election. Under the measure, Godlewski’s actions would require the approval of the Republican-controlled legislative committees on elections.

It is the latest attempt from Republicans to overhaul how Wisconsin runs its elections ahead of the 2024 election. And it comes as the Wisconsin Elections Commission has faced continued criticism fueled by false claims by former President Donald Trump about Wisconsin’s system of elections and for policies election commissioners approved to navigate hurdles presented by the coronavirus pandemic….

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“In win for Cooper and Democrats, NC judges block GOP-backed elections law ahead of 2024”

The Voting Wars

WRAL:

A panel of judges on Thursday granted Democratic Gov. Roy Cooper’s request to block a new elections law before voters head to the polls in 2024.

The ruling from the three judges — two Republicans and one Democrat — was unanimous. They ruled that the law, passed by the Republican-controlled legislature last month, is likely an unconstitutional power grab. It’s just a temporary ruling pending a full trial, likely to be held in early 2024….

In addition to changing who has the power to appoint election board members, the law would also make the board have an even number of seats for both parties, instead of giving a majority to whichever party holds the governor’s office.

Republicans have said that’s needed to improve election integrity. But critics, who include Democrats as well as professional election workers and experts, say it would lead to chaos in elections administration — and possibly even spell the end of early voting and other political issues that would presumably result in tie votes and inaction….

On Cooper’s challenge to SB 749, Republican lawmakers have acknowledged that the previous law it’s based on was ruled unconstitutional.

A similar change to the elections board was also later shot down by voters when proposed as a constitutional amendment in 2018, after every living governor — Democratic and Republican — publicly campaigned against it, as well as another similar amendment proposal, as overreaching power grabs.

A lawyer for the state government agreed with Cooper in court Thursday. Senior Deputy Attorney General Amar Majmundar said blocking it from taking effect would be “not just appropriate, but necessary.”

But legislative leaders have said that since the GOP flipped control of the North Carolina Supreme Court in last year’s elections, they believe they have a better chance of winning in court this time and getting the past precedent overturned.

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