Voter advocacy organizations are asking the Kansas Supreme Court to block a new state law that they argue criminalizes voter registration drives, despite lower courts rejecting the argument.
The justices of the state’s high court indicated in Wednesday’s hearing that their decision could hinge on the fact that legislators did not write a “reasonable person” standard into the law, appearing skeptical of the state’s argument that such a standard should still be applied.
The Supreme Court’s review focuses on a request for an injunction against a provision of HB 2183 that makes it a felony to impersonate an election official. Voter rights advocates say they halted voter registration drives out of fear of prosecution.
Zach Montellaro for Politico:
Swing state voters broadly rejected candidates in last year’s midterms who questioned the results of the 2020 elections. But unfounded accusations of fraud and other malfeasance continue to tear at the machinery of U.S. elections.
The latest example comes from Alabama and its newly elected secretary of state, Wes Allen. His first official act upon taking office earlier this month was unusual: The Republican fulfilled a campaign promise by withdrawing Alabama from an obscure interstate compact that helps states maintain voter rolls, citing data security concerns.
That consortium — known as Electronic Registration Information Center, or ERIC — has been a genuine bipartisan success story, finding buy-in from red states like Florida and Texas and blue states like Colorado and Connecticut to help them remove duplicate voter registrations and catch potential instances of double voting.
But conservative conspiracy sites like The Gateway Pundit and the Thomas More Society, a nonprofit that filed lawsuits that unsuccessfully sought to overturn the 2020 election, have attacked ERIC as part of a liberal plot to control the underpinnings of American elections.
Allen’s abandonment of ERIC illustrates how ideas stemming from the falsehood of a stolen presidential election remain in the bloodstream of the American democratic system, even after its most well-known proponents were shut out from winning key positions in major swing states in the midterms.
It also suggests the era of bipartisan, behind-the-scenes, mundane cooperation on the mechanics of running elections is at risk.
The tug of war over voting rights and rules is playing out with fresh urgency at the state level, as Republicans and Democrats fight to get new laws on the books before the 2024 presidential election.
Republicans have pushed to tighten voting laws with renewed vigor since former President Donald J. Trump made baseless claims of fraud after losing the 2020 election, while Democrats coming off midterm successes are trying to channel their momentum to expand voting access and thwart efforts to undermine elections.
States like Florida, Texas and Georgia, where Republicans control the levers of state government, have already passed sweeping voting restrictions that include criminal oversight initiatives, limits on drop boxes, new identification requirements and more.
While President Biden and Democrats in Congress were unable to pass federal legislation last year that would protect voting access and restore elements of the landmark Voting Rights Act stripped away by the Supreme Court in 2013, not all reform efforts have floundered.
In December, Congress updated the Electoral Count Act, closing a loophole that Mr. Trump’s supporters had sought to exploit to try to get Vice President Mike Pence to overturn the 2020 election results on the day of the Jan. 6, 2021, Capitol riot.
Now the focus has returned to the state level. Here are some of the key voting measures in play this year…
Election lawyer (and candidate for RNC Chair) Harmeet Dhillon:
On the watershed day of January 8, 2021, Ronna McDaniel was elected at an RNC meeting to a third term as RNC chairman. At the time, she promised it would be her final term. Recent years have been a mixed bag for the cause of election integrity. Only a fraction of funds the RNC raised in the name of election integrity issues in 2020 went to that cause; most of it was diverted to fund other initiatives or projects. Republican communications — other than fundraising solicitations — were almost nonexistent. Democrats, led by election lawyer Marc Elias consumed most of the oxygen on this issue. Their gross distortions of venerable civil rights principles to make it easier for Leftists to win elections motivated their own base and likely attracted some low-information swing voters.
During McDaniel’s last RNC term, the party improved its commitment to election integrity litigation. It isn’t exactly the torrent of effort portrayed by the incumbent, but our election litigation output went from negligible to palpable. We intervened in a portion of the lawsuits filed by the Left, both for the RNC and on behalf of state Republican parties. We filed amicus briefs in litigation initiated by others. What we did not do is initiate much of our own litigation, put the Left on its heels, or leave any lasting marks on our opponents. We showed up, which is a good start, but decades of inactivity have left us with a wide gulf to overcome, and a generation of lawyers to find, fund, train, and sustain, even as we must strategize how we go from playing catch-up to winning this battle.
For decades, even as Democrats greased the election machinery with the efforts of highly paid corporate fat cat litigators-turned-progressive-legal-gladiators, Republicans have relied on volunteer election lawyers acting as a ragtag army of free, seasonal law militia. These dutiful attorneys abandoned their workspaces or home offices for a few days, taking their laptops into the field, scrambled to figure out where they might be needed, sourced court forms from buddies, and hoped hotel printers would work. Would parties or campaigns even pay expenses? Often, not. This shambolic seasonal spectacle is no way to run a winning political party’s election integrity operation, and under my leadership, it will be a quaint, nostalgic memory of our hackneyed past.
States routinely make adjustments in their voting laws — some subtle, some dramatic. But experts have never seen an explosion of legislation like that which followed the 2020 presidential election, when more than 3,600 election bills were introduced, according to the Voting Rights Lab, which tracks the legislation.
Liz Avore, senior adviser to the group, said 22 states in the last couple of years expanded access to the ballot, 10 created new restrictions and five expanded access in some ways while creating new barriers in others. This, she said, has created a divide in the U.S. in which “your ZIP code determines your access to our democracy.”
That divide seems likely to grow next year. Legislatures won’t convene until January at the earliest, so it’s unclear how many bills are being drafted and on which subjects. But Texas, where the Legislature meets only once every two years and lawmakers can “pre-file” drafts of legislation for the upcoming session, offers a preview.
The Associated Press has identified nearly 100 election-related legislative proposals already filed in the state, both to increase access to the ballot box and to further restrict it. This includes one that would allow the state’s top lawyer to assign a prosecutor focused on election crimes, testing the boundaries of a court ruling earlier this year that said the attorney general did not have the authority to prosecute election crimes.
Another would assign a group of peace officers to serve as election marshals who investigate claims of election-related missteps. That would follow the lead of Florida, where officers in a special unit assigned to elections have already made a handful of arrests — including of people who mistakenly thought they were eligible to vote under a 2018 constitutional amendment restoring voting rights to some felons. Critics have labeled the unit a political tool of the governor.
Voters are generally confident ballots were counted accurately in this year’s election, yet they express greater confidence in in-person ballots being counted accurately than they do in counts for absentee or mail-in ballots. Republican voters are more skeptical than Democratic voters that votes were counted accurately – particularly for absentee ballots.
Overall, most voters say they are confident that votes cast in person at polling places were counted as voters intended this year: 86% say they are at least somewhat confident that votes cast in person were counted accurately, including about half (49%) who are very confident.
Three-quarters of Republican voters and 97% of Democratic voters say they are at least somewhat confident in-person ballots were counted accurately. Democratic voters are about three times as likely as GOP voters to say they are very confident in these counts (74% vs. 26%).
Republican voters’ confidence in the counting of in-person ballots this year is higher than Trump voters’ confidence in these counts in 2020: Two years ago, 64% of Trump voters were at least somewhat confident that in-person votes were counted accurately.
Nearly all Democratic voters (97%) say they are confident that in-person votes were counted as voters intended, which is little different from the opinions of Biden voters in 2020 (98% were very or somewhat confident).
Voters today are somewhat more confident this year than they were two years ago that absentee or mail-in ballots were counted as voters intended, with Republican voters driving this increase in confidence.
Overall, two-thirds of voters say they are very (35%) or somewhat (31%) confident that absentee or mail-in ballots were counted accurately this year, compared with 59% who said this in 2020.
The share of Republican voters who say they are confident that mail-in ballots were counted as voters intended this year (41%) is about twice the share of Trump voters who said this following the 2020 election (19%).
I wanted to highlight some numbers I put together with my co-authors at Manatt for our amicus brief in the Moore v. Harper case:
The amount of emergency election-related litigation filed in this Court is already high. In the last dozen terms, there have been at least 65 emergency, election-related motions decided by this Court. Because many of these disputes must be resolved, with finality, before an election or just after an election and before a winner is certified, litigants understandably come to this Court as the final arbiter of these questions. These cases are high pressure and often must be resolved on skimpy records given the exigent circumstances.
This is especially a concern in election years. In the 2016 term alone, this Court considered eleven emergency election-related petitions, and in the 2020 term there were fifteen. Most recently, there were seven in the 2021 term, a non-presidential election year.
If this Court accepts Petitioners’ expansive theory of the Elections Clause, these already high numbers will undoubtedly continue to grow. The same incentives for increased litigation described in Part I.B, supra, apply especially to this Court. With ample resources for litigation, litigants would have no reason to resist bringing cases to this Court, either directly from state supreme courts or through collateral litigation in lower federal courts, asking this Court to wade into political matters in the heat of disputed and contentious election periods.
The brief’s appendix lists the cases. I don’t think anyone else has put these numbers together before.
Miriam Seifter and Adam Sopko with some interesting data on a shift from federal to state courts in terms of election litigation:
In 2020, election litigation reached a new record high, with hundreds of lawsuits filed around the presidential election.
But experts like law professor Rick Hasen observed that it was too soon to know if the 2020 spike in lawsuits was a trend or an aberration. One potential explanation was that the pandemic and former President Donald Trump’s polarizing candidacy fueled the 2020 spike and that lawsuits would decrease in future years.
Two years later, a different picture is emerging.
The total volume of preelection litigation has dropped somewhat – a smaller drop than one might expect in a nonpandemic, nonpresidential election. Litigation in federal court has dropped precipitously, falling to less than half of its 2020 presence, our research shows.
But in state courts, rather than decreasing, preelection lawsuits have increased. Some of the rise is due to expected conflict surrounding the post-2020 redistricting process. Of greatest interest, we see a continuation or increase in conflict over “electoral mechanics” – lawsuits challenging the who, what, where and how of voting, even when there is no novel virus throwing an unforeseen wrench in those mechanics.
We emphasize that these numbers are provisional as of mid-October, and they are only estimates – and likely undercounts. State courts are notoriously difficult to research; there is no central clearinghouse of state lawsuits or decisions. Our tallies are based on searches in the legal database LexisNexis. Our full methodology and tallies are posted on our website.
Patrick Marley for the NYT:
In the United States, election season has turned into lawsuit season.
One legal challenge in Michigan seeks to remove thousands from the voter rolls. Two lawsuits in Wisconsin seek to have more absentee ballots counted, even if they are missing some information. In Arizona, a judge is reviewing a new law requiring voters to provide proof of citizenship to register to vote. And in Pennsylvania, lawsuits challenge the state’s no-excuse absentee voting law, as well as the policy to count undated mail-in ballots.
Disputes over redistricting, voter IDs, voting hours, recounts and other election-related policies have long run parallel to political campaigns, but the numbers are rising.
The increase began after the Supreme Court decided the 2000 presidential election, and the trend reached a high in 2020, when the coronavirus pandemic prompteda host of new voting rules. The pace quickened after that election, when Donald Trump and his allies brought a slew of lawsuits that unsuccessfully sought to deliver him a second term as president.
Those battles appear to have established a new baselinefor election litigation. Election experts say courts have the power to clarify vague laws or policies and resolve key questions before ballots are cast, but many also contend that the barrage of lawsuits increases the chances of last-minute rulings that can spur voter confusion.
Dozens of disputes are underway and could explode after this fall’smidterm elections because recounts are certain in close races and some Republican candidates have left open the possibility that they won’t accept the results if they lose even by sizable margins. And lawyers are already gearing up for the 2024 presidential election.
“Planning for litigation is now a key part of campaign strategy,” said Joshua Douglas, a professor of law at the University of Kentucky. “You can’t run a campaign without also having your litigation strategy set up as well.”
Over the past 20 years, the rate of election litigation has nearly tripled, according to a tally by law professor Richard L. Hasen of the University of California at Los Angeles. For the 2020 cycle, election litigation increased by more than 25 percent from the previous presidential cycle.
In 2020, political parties spent $66 million on election lawsuits, more than quadrupling the $15 million they spent in 2016, according to a review by University of Iowa law professor Derek Muller. And in the 18 months after the 2020 presidential election, the parties raised a record $121 million for litigation, he found.
In a recent law review article, Muller called for reducing litigation by making election laws more uniform and ending a policy that allows donors to give far more money to political parties if they earmark the funds for litigation.
“The notion that it’s really the lawyers rather than the voters who are sort of dictating the rules of the game I think is just a negative,” Muller said in an interview….
More litigation is not necessarily bad, particularly if it is filed well before voting occurs, said Rebecca Green, an associate professor of law at William & Mary.
“I actually think that the more litigation before elections, the better in the sense that everybody can bring out their concerns about laws or policies or practices,” she said. “The more that that can happen before elections, the better. Let’s resolve all of those problems in the lead-up to 2024 so that we all know what the rules are and those conflicts are resolved prior to the election.”
On August 29, eight cartons of notarized paperwork challenging 25,000 voter registrations were delivered by pro-Donald Trump “election integrity” activists to Gwinnett County’s election offices in suburban Atlanta. They were accompanied by additional paperwork claiming that 15,000 absentee ballots had been illegally mailed to voters before the county’s 2020 presidential election.
Two days later, the activists held a briefing on the filings. It was led by Garland Favorito, a soft-spoken retired information technology professional who has been agitating in Georgia election circles for 20 years and heads a non-profit called VoterGA. Favorito began by citing six lawsuits the group has filed against state and county officials – claiming counterfeit ballots, untrustworthy or illegal voting systems, and corrupt 2022 primary results. Then he turned to Gwinnett County.
“We are delivering today 37,500 affidavits challenging voter rolls and handling of the 2020 election,” said Favorito. “As a reminder, the presidential spread for the entire state of Georgia was 11,000 and change, not quite 12,000 [votes]. And we have 20,000 [allegedly improper voter registrations] just in Gwinnett alone. This number will increase as our analysis is ongoing.”
The Gwinnett challenges are not unique. In Georgia’s Democratic epicenters, Trump backers have been filing voter roll challenges since last winter targeting upwards of 65,000 voters. The state’s post-2020 election “reform” bill, S.B. 202, authored by its GOP-led legislature, allows an unlimited number of challenges.
While most of the claims put forth by Voter GA are easily refuted, the challenges individually targeting voters could have an impact in suppressing some number of votes this fall in Georgia, where polls find some statewide contests are very close.
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.
Why has it gotten harder rather than easier to vote in the United States over the past decade?
What can be done about the risk of stolen elections in the United States?
How have the Supreme Court’s decisions on redistricting, voting rights, and gerrymandering affected the quality of American democracy?
On season 3, Episode 8 of the ELB podcast, we speak with Wendy Weiser, Vice President for the Democracy Program at the Brennan Center for Justice at NYU Law School.
[This the final episode of Season 3 of the podcast.]
A pair of Carson City judges struck what appeared to be fatal blows to proposed GOP-backed voting initiatives on Monday, invalidating efforts to roll back the Democrat-backed universal vote by mail law passed in 2021 and a measure implementing voter identification requirements.
In separate rulings, Senior Judge Frances Doherty blocked the effort to file a referendum against AB321, the measure passed by lawmakers in 2021 to permanently implement universal mail-in ballot. In a separate case, Senior Judge William Maddox ruled that the voter ID initiative’s description of effect — a 200-word summary — was argumentative and ordered a new description be written, effectively scrapping all signatures collected at this point.
“On both proposed initiatives, the courts agreed with us that the descriptions provided to potential Nevada voters were deceptive and inaccurate, and could not go forward,” Wolf Rifkin attorney Bradley Schrager, who represented the plantiffs, said in a statement. “In both instances, people with agendas undermining confidence in our elections were found to be misleading the voters about their ballot measures. Today the justice system made clear that such tactics are not tolerable.”
Both measures were sponsored by Repair the Vote, a political action committee led by former Nevada Republican Club President David Gibbs. In a brief interview Monday, Gibbs said there was virtually no chance of getting the signatures needed to qualify the measures for the ballot by a deadline in the next few weeks.