On The Docket 09/30/2022

A Note From Marc on Reforms to the Electoral Count Act

It is no secret that I have been skeptical of recent efforts to reform the Electoral Count Act of 1887 (ECA) — the archaic law that sets the rules for how presidential electors are certified and counted by Congress. In July, I opposed the passage of the bill championed by a group of 14 U.S. senators because I believed it risked doing more harm than good. As I wrote then, the ECA reform bill “in its current form…is not ready for enactment. Lacking precision in critical areas, the bill feels less like the product of legislative compromise and more like something constructed in a law school faculty lounge. And it is impractical in ways that practicing lawyers would recognize, but Washington think tanks might ignore.”
[link removed]

Since then, under the leadership of Sen. Amy Klobuchar (D-Minn.), the Senate Committee on Rules and Administration — after listening to practitioners and experts — made critical changes to the bill. The result is new bill language that addresses the three concerns I had with the prior text.

First, the prior version could have been read to severely limit the ability of courts to overturn a false certification by a partisan governor. The new Klobuchar text makes clear that a governor’s determination of who won their state’s election is subject to broad judicial review.

Second, the previous version of the bill placed an odd emphasis on the role of federal courts, virtually excluding state courts. As many of you who regularly read this newsletter know, state courts play a significant role in protecting voting rights. That role is under attack by Republicans and I felt strongly that a new election bill needed to directly reflect the importance of state court review in election disputes. Once again, Klobuchar’s bill does just that.

Finally, I was concerned about the federal court process whereby cases would be heard by a three-judge panel and then, if appealed, would be automatically reviewed by the U.S. Supreme Court. I noted that, in 2020, “the Supreme Court wisely chose not to accept for review a single case brought by former President Donald Trump or his allies. The new bill would require the 6-3 conservative majority on the Supreme Court to decide the merits of every future challenge that involves presidential certification whether they want to or not.” The language approved under Klobuchar’s leadership changes this process to make the Supreme Court review discretionary.

To some, these changes may seem small. But, in practice, these changes make it a bill worth passing. I’m thrilled that the Senate Rules Committee voted 14-1 to advance the bill to the floor for a vote and I urge both chambers of Congress to swiftly adopt the current version.

Let’s keep up the fight,
Marc

…

To catch you up, just a few days after the U.S. House passed its version of ECA reform, Klobuchar, along with Sen. Roy Blunt (R-Mo.), introduced an amendment to the Senate version. While the amendment leaves most of the underlying Senate bill unchanged, it makes a few key updates — you can find a breakdown of all three versions and catch up on the Senate markup on the amendment.
[link removed]
[link removed]
[link removed]

The Senate is expected to take up the bill for passage during its lame-duck session (after the November midterm elections, before January 2023).

U.S. Supreme Court Term Kicks off With Crucial Alabama Case

The U.S. Supreme Court begins its term on the first Monday in October, which is already next week! On their second day of the term, the nine justices will hear Merrill v. Milligan, the case about Alabama’s congressional map and Section 2 of the Voting Rights Act (VRA).

In our latest Case Watch, we explain in great detail how the case wound up before the nation’s highest court, what each side is arguing and what’s at stake. Read “Section 2 of the VRA Could Be Next on SCOTUS’ Chopping Block” on Democracy Docket now. [link removed]

On Tuesday, Oct. 4 at 10 a.m. EDT, the oral argument will take place. During the hearing, the state of Alabama will receive 35 minutes in total for its argument; the Milligan appellees will receive 10 minutes; the Caster respondents will receive 10 minutes and the U.S. solicitor general representing the United States will receive 15 minutes (the United States is often granted permission to participate in oral argument when it has a vested interest in upholding federal laws, even when it’s not a party to the lawsuit). Democracy Docket will be listening closely and keeping you updated in real time — follow along for updates. And, be on the lookout for a post-oral argument Twitter Space with Marc, Paige and special guests Marina Jenkins of the National Democratic Redistricting Committee and Abha Khanna of Elias Law Group. [link removed]

In advance of the case at SCOTUS, listen to our latest Twitter Space recorded yesterday, “What to Know About This SCOTUS Term with Eric Holder & Marc Elias” and review the Case Watch, the Voter Testimony piece on the voices behind the case and a review of the amicus briefs submitted. [link removed]
[link removed]
[link removed]
[link removed]

Where There’s WILL, There’s a Way to Disenfranchise Voters

Two lawsuits filed in Wisconsin this past week, and multiple interventions, represent diverging priorities ahead of the election: The conservative legal movement wants to make it harder for voters to cast an absentee ballot and pro-voting lawsuits are trying to ensure every valid ballot is counted.

First, the Wisconsin Institute for Law and Liberty (WILL) continued its anti-voter legal crusade across the Badger State. Last Friday, the conservative legal group filed its latest lawsuit against the Wisconsin Elections Commission (WEC), this time challenging guidance regarding “spoiled absentee ballots.” Currently, WEC guidance allows for voters to request to spoil (meaning destroy) their absentee ballots and either vote in person or receive a new one if the voter made a mistake or changed their mind. WILL alleges that this practice violates Wisconsin law and “opens the door to increased risk of chaos, fraud, or other illegalities in the absentee voting process.” WILL argues that allowing voters to spoil their absentee ballots and either vote in person or with new absentee ballots “​​dilutes or otherwise diminishes the value of her vote and/or other lawful votes.” Rise — a student-led nonprofit focused on empowering and mobilizing college students and youth voters — filed a motion to intervene yesterday evening, asserting that WILL’s lawsuit to nullify the guidance would cause “sudden and significant confusion…if it were granted at this late date.” [link removed]

This is the fourth lawsuit filed by WILL prior to the 2022 midterm elections that attacks the mail-in voting process in Wisconsin. This year alone, WILL has sued to end the use of a mobile voting van in Racine, challenged the use of a national voter registration form and successfully ended the use of drop boxes in the state. Just this week, Vote.org filed a motion to intervene to defend the use of the national voter registration form. Vote.org, America’s largest nonprofit, nonpartisan voting registration and get-out-the-vote technology platform, asserts that WILL’s “suit threatens Vote.org’s ability to help register these prospective Wisconsin voters—many of whom are unable to register online—and could limit voter registration for Wisconsinites going forward.” [link removed]

WEC faced another lawsuit on Tuesday — this time, trying to clarify guidance for voters to make it easier for valid ballots to count. The new lawsuit filed by Rise, the student-led organization hoping to intervene in the other lawsuit, seeks clarification about what qualifies as a complete absentee ballot witness certificate address. (Under Wisconsin law, a witness must attest to a voter’s eligibility to vote absentee, so absentee ballots must be accompanied with a witness certificate, which includes an address for that witness.) [link removed]

On Sept. 7, a judge temporarily blocked guidance issued by WEC in 2016 allowing election officials and clerks to fill in any missing address information on witness certificates without contacting voters or witnesses, so long as they could find reliable information to fill in (this often included readily available information, such as zip codes or state abbreviation). Following the Sept. 7 decision, WEC withdrew this guidance. In the complaint filed Tuesday, the Rise plaintiffs argue that election officials now face confusion as to how to deal with incomplete witness addresses, thereby putting voters at risk of having their “ballots thrown out.” [link removed]

The plaintiffs claim that this potential ballot rejection “risks violating” Wisconsin law and the Civil Rights Act’s Materiality Provision since this missing information is irrelevant to an individual’s eligibility to vote.

Arizona’s Problematic Law in Effect for Two Days, Then Blocked

On Monday, a federal judge temporarily blocked Senate Bill 1260, an Arizona law that makes it easier for the state to disenfranchise eligible voters, just two days after it went into effect. Voting rights groups argued that provisions of S.B. 1260 impose “severe restrictions” on Arizonans and burden their right to vote. Monday’s order temporarily halted the enforcement of two provisions.
[link removed]

The “felony provision” in S.B. 1260 makes it a felony to forward a mail-in ballot to a voter who may be registered in another state. Maybe that sounds okay at first glance, but here’s the issue: Many people move around the country, re-register and never cancel their past voter registration files in other states, even though they have no intention of voting there. S.B. 1260’s felony provision does two things: First, it threatens to disenfranchise individuals who have recently moved to the state if election officials are frightened by threat of criminal conviction and won’t send them a mail-in ballot. Second, it encourages a type of vigilantism in elections that is being spurred on by Republican laws across the country, making it easier to challenge the eligibility of certain classes of voters, in this case, new Arizona residents.

The judge held that the wording of the felony provision is “too vague to give people of ordinary intelligence notice of whether knowingly registering out-of-state voters is a crime.”

The “cancellation provision” requires county recorders to cancel a voter’s registration if they receive confirmation that the voter is registered to vote in another Arizona county. The judge concluded that allowing county recorders to cancel voter registrations without communicating with voters is in direct violation of the National Voter Registration Act. The judge pointed to other court opinions that “rejected the notion that re-registration amounts to a request to be removed from the voter rolls.” (A third provision of S.B. 1260 regarding removing voters from the state’s permanent vote-by-mail list was not blocked and remains in effect.)

A Defeat for the RNC Is a Victory for Pennsylvania Voters

A whirlwind GOP case against mail-in voting had a positive development this week. On Sept. 1, just 68 days before Election Day and 20 days before Pennsylvania counties released mail-in ballots, the Republican National Committee (RNC) and other national and state Republicans filed a lawsuit to block the authority of county boards of elections to develop and implement mail-in ballot cure procedures. Curing is the process by which a voter may be notified of a technical mistake with their mail-in ballot and attempt to rectify that mistake. In their complaint, the Republican groups invoke the right-wing independent state legislature theory to claim that “neither Boards nor any other organ or instrumentality of the State government may regulate” cure procedures. [link removed]

Yesterday, a Pennsylvania judge denied this request. The judge emphasized that mail-in voting is already underway in Pennsylvania for the upcoming midterm elections and that blocking county-level procedures would result “in almost certain disenfranchisement of voters.” The decision means that county boards will be able to implement cure procedures for the 2022 midterm elections, a victory for voters who will be able to fix technical mistakes. [link removed]

Asking for a 2020 “Re-run,” Two Years Later

The latest trend in new lawsuits? Trying to “undo” an election that took place nearly two years ago. Over the past few weeks, right-wing activists have filed lawsuits in Arizona, Kansas and Michigan arguing that the use of “uncertified” voting machines requires decertification (not a real nor possible process) and a “re-run” of the 2020 election. (Thankfully the Arizona Supreme Court already rejected the request in the Grand Canyon State and hopefully the Kansas and Michigan lawsuits will soon be thrown out.)

It can’t be understated how concerning (and incorrect) the misinformation about electronic voting machines is. When electronic voting machines maintain no paper record, that technology opens up the process to potential vulnerabilities. However, an estimated 93% of Americans used some type of paper ballot in 2020 and an increasing number of electronic marking machines now maintain a paper audit trail, rectifying earlier concerns. The individuals and organizations filing lawsuits over electronic voting machines (who should have no business using the legal system to meddle with elections) are raising differing claims — sometimes against the electronic machines used to mark a ballot called direct recording electronic devices, sometimes against the process of counting paper ballots with a machine called an optical scan. The bottom line is those filing conspiratorial lawsuits don’t know what they are talking about. [link removed]

There are currently pending lawsuits challenging the reliability of electronic voting machines in Arizona, Kansas, Michigan, New Hampshire and Oregon. Another case in Alabama that argued that the state’s technology “subject[ed] voters to cast votes on an illegal and unreliable system” has already been tossed.

More News

In August, the Nevada secretary of state issued a temporary regulation that allows county recorders to hand count ballots (as opposed to using an electronic counter) at their discretion; the guidance does not mandate a uniform method of hand counting across counties. A lawsuit was filed, arguing that the temporary regulation will create chaos in the tabulation process across Nevada. This week, a Nevada state court unfortunately declined to block the guidance for the upcoming elections, but an appeal was filed soon after. [link removed]

The state of Georgia will replace election equipment in Coffee County after the local election supervisor gave improper access to outside individuals, hoping they would find proof that the 2020 election “was not done true and correct.” These individuals, working for former President Donald Trump’s attorney Sidney Powell, copied nearly all of the software in the voting system. Once again, conspiracy theories can have a very real impact on election security. [link removed]

In July, a county commission in Texas voted to move the early voting site at Texas A&M University’s student center to a location off campus. Now, students at the largest campus in the state will have to travel up to 30 minutes off campus in order to vote during Texas’ early voting period. This week, the county commission officially took no action to reopen the center despite backlash from students. (In contrast, California Gov. Gavin Newsom (D) signed a law this week that requires an additional drop box to be placed on each California State University or University of California campus that requests one.) [link removed]

On Wednesday, the 8th U.S. Circuit Court of Appeals paused a lower court’s ruling that expanded voter assistance in Arkansas. A lower court had struck down Arkansas laws that made it a crime to help more than six voters in one election for violating Section 208 of the VRA. In the appellate court’s ruling, the judge cited the Purcell principle, the idea that courts should not change voting rules too close to an election. Because the order is only one paragraph with no explanation, the judge does not explain why allowing for a more robust voter assistance program will confuse or disenfranchise voters. [link removed]

The courtrooms are going to be busy next week. Here’s what we are watching:
Monday (10/3): a hearing in a case challenging North Carolina’s ID law to vote, which we’ll live tweet, and a trial begins over whether South Carolina’s congressional map violates the U.S. Constitution

Tuesday (10/4): oral argument in the U.S. Supreme Court over Alabama’s congressional map, which we’ll live tweet, and oral argument in the North Carolina Supreme Court over the state’s court-adopted maps (a case that is also pending before SCOTUS)

Wednesday (10/5): a hearing in the recently filed Wisconsin case over “spoiled ballots”

Thursday (10/6): oral argument over appealed decisions in the 5th U.S. Circuit Court of Appeals regarding Texas residency requirements to register to vote and in the Delaware Supreme Court regarding no-excuse mail-in voting — we’ll live tweet both, so be sure to follow along on Twitter

Friday (10/7): a hearing on a conservative challenge regarding how Lehigh County, Pennsylvania operates drop boxes

Candidate Q&A: Tony Evers on His Re-election Bid for Governor of Wisconsin

“Every time a Republican candidate like Tim Michels embraces radical and untrue conspiracy theories about our elections, it undermines the very foundation of our democracy and erodes trust in our election system,” Wisconsin Gov. Tony Evers (D) told Democracy Docket. “Our leaders should be fighting to strengthen our democracy, not dismantle it.”

Evers’ veto power has been instrumental in blocking voter suppression laws passed by Wisconsin’s Republican-controlled Legislature. In our latest candidate Q&A, Evers discusses the startling attacks on WEC, the importance of election certification in this crucial swing state and his bobblehead collection. Read more ➡️ [link removed]

What We’re Doing

We might be more than a month away from the midterm elections, but that’s not a lot of time for Americans living overseas. Visit votefromabroad.org, the nonpartisan tool developed by Democrats Abroad, to learn how to register to vote and request a ballot while out of the country.

Here are the five things to read before the U.S. Supreme Court term starts next Monday:
Case Watch: “Section 2 of the VRA Could Be Next on SCOTUS’ Chopping Block” [link removed]
Analysis: “Two Voting Rights Cases on SCOTUS’ Horizon” [link removed]
Analysis: “The Fringe Legal Theory Heading to the U.S. Supreme Court” [link removed]
Explainer: “What To Expect in the Courtroom” [link removed]
Guest Essay: “Conservatives Have Been Packing the Courts for Years” [link removed]

Also, check out this preview of the other cases coming up on the Court’s docket and listen to “What to Know About This SCOTUS Term with Eric Holder & Marc Elias” on the consequential case heading to SCOTUS on Tuesday.
[link removed]
[link removed]

Can’t join the conversation? Listen to recent recordings here. [link removed]

Democracy Docket
PO Box 733
Great Falls, VA 22066
United States
If you believe you received this message in error or wish to no longer receive email from us, please unsubscribe: [link removed] .