You can’t fight for the future of our democracy unless you know what’s happening. Forward our weekly newsletter to a friend, family member or colleague to help everyone stay engaged. If you received this email from someone else, you can subscribe here. This week, the U.S. Supreme Court released an order regarding a case out of Pennsylvania and mail-in ballots; we break down what it means (and doesn’t mean). Additionally, Hurricane Ian devastated certain portions of Florida — how will that impact the upcoming election? |
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SCOTUS’ Surprise Order Does Not Change Pennsylvania’s Plans |
Within the span of a week in late spring 2022, a federal circuit court and a Pennsylvania state appellate court both concluded that Pennsylvania counties must include undated mail-in ballots in their totals. Not doing so, according to the courts, would violate the Materiality Provision of the Civil Rights Act of 1964. Undated mail-in ballots are those received before Pennsylvania’s 8 p.m. deadline on Election Day, so stamped as timely, and otherwise valid, but missing handwritten dates on the outer envelopes.
The issue appeared settled. The Pennsylvania department of state released updated guidance on Sept. 26 to clarify and reiterate the expectations of all Pennsylvania election officials: “Any ballot-return envelope that is undated or dated with an incorrect date but that has been timely received by the county shall be included in the pre-canvass and canvass.”
On Tuesday, Oct. 11, in an order from the U.S. Supreme Court, a majority of the justices vacated, meaning voided, the 3rd U.S. Circuit Court of Appeal’s decision in Migliori v. Lehigh County Board of Elections, the aforementioned federal court case that required the counting of undated mail-in ballots.
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The Court’s move indicates that the prior decision is no longer authoritative for other states and territories in the 3rd Circuit. However, it does not impact state court rulings and state-issued guidance that has continually made clear that undated mail-in ballots must be counted by Pennsylvania counties.
On Wednesday, a hearing took place in another case that invoked Migliori as a basis to strike down Act 77, Pennsylvania’s 2019 expansion of no-excuse mail-in voting. During the hearing, the judge asked the lawyers if they believed that SCOTUS’ order has any impact on the claims here. The attorney representing the GOP plaintiffs responded: “Not really…The bottom line is the Supreme Court vacated Migliori…but it still has persuasive authority.” The attorney also pointed to the fact that state court decisions and state guidance to count undated mail-in ballots still stands. Find a courtroom recap here.
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The Supreme Court’s latest action has no tangible impact on the expectations for counting valid mail-in ballots come November. The Pennsylvania acting secretary of state also released a statement, noting that the “order from the U.S. Supreme Court…does not affect the prior decision of [the] Commonwealth Court in any way. It provides no justification for counties to exclude ballots based on a minor omission, and we expect that counties will continue to comply with their obligation to count all legal votes.” (Republican state legislative leaders have already asked for revised guidance “given the high likelihood of new litigation.”)
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State officials have made the expectations for county officials crystal clear, even with SCOTUS jumping into the mix this week. Nonetheless, we saw obstinate counties flout the law after the May primary by submitting incomplete totals. It is a looming threat to keep a close watch on come November.
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How Hurricane Ian Will Impact Florida’s Elections |
Yesterday, nearly two weeks after Hurricane Ian made landfall, Florida Gov. Ron DeSantis (R) issued an executive order allowing Charlotte, Lee and Sarasota counties to implement emergency changes. DeSantis’ order: |
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Gives voters in the three counties the ability to request their mail-in ballot by phone and for it to be sent to an address other than the address on their voter registration;
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- Provides for drop boxes to be moved and polling locations to be consolidated as necessary and
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Natural disasters can have a significant impact on elections and can reduce voter turnout. In our latest article, we point to recent examples — Hurricane Sandy in 2012 and Hurricane Michael in 2018 — to show how it’s not just the actual disaster that impacts elections — how government officials respond to disasters matters too. Read more here.
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Pay Attention to the Badger State’s Legal Battles |
The high volume of lawsuits in Wisconsin largely attack the election system itself. The outcome of these cases, which are moving quickly through the courts, will have a real impact on how Wisconsinites can vote this year — and which ballots are counted.
A significant number of the voting rights lawsuits we’re tracking in Wisconsin involve the Wisconsin Elections Commission (WEC), the bipartisan commission responsible for overseeing elections in the state. At issue in these lawsuits are the rules and guidance WEC provides to local election officials on how to interpret and apply state election law. Right-wing efforts over the past years have successfully banned drop boxes and prohibited election officials from filling in missing information on absentee ballot certificate envelopes. These lawsuits over the minutiae of election administration are technical and complicated, yet the impact cannot be understated.
Read “50 States of Litigation: Wisconsin” to get caught up on the Badger State’s latest legal battles. |
Voter Challenges Are on the Rise |
Early in-person voting starts in Georgia next Monday, just three days away. Yet, thousands of Georgia voters have already had their eligibility challenged by right-wing activists, empowered by a provision in Senate Bill 202, Georgia's 2021 voter suppression law. There was a snafu earlier this week where the Georgia secretary of state had to send clarified guidance to election clerks after initial guidance suggested even more expansive voter challenge options.
Nationwide, groups are stepping up efforts to challenge the eligibility of voters and remove them from the voter rolls in key states. A Pennsylvania-based group announced it has identified 242,000 Pennsylvania voters it deems ineligible, often based off of faulty data and/or matching methods. Similar, potentially disenfranchising attempts are underway in North Carolina, Wisconsin and elsewhere.
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Last Friday, the Delaware Supreme Court struck down two recently enacted pro-voting laws for violating the Delaware Constitution. The two page order struck down Delaware’s same-day registration and no-excuse mail-in voting laws. The decision is a big loss for Delaware voters who would have benefited from increased access to the ballot box via same-day registration and no-excuse mail-in voting.
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Just three days after being sworn into office, Wyoming Interim Secretary of State Karl Allred (R) sent a letter asking clerks to remove all drop boxes in the state, if feasible. “I’m mindful of the fact that there have been no issues reported with the use of the drop boxes in Wyoming, but that does not alleviate the potential for abuse or destruction of ballots through use of fire or other means,” Allred wrote. Allred’s interim term ends on Jan. 2, 2023 when state Rep. Chuck Gray (R) will be sworn in as the new secretary of state. Gray won the GOP primary in August and faces no opponents in the general election, making him the first election denier of the 2022 cycle all but confirmed to office. Gray has made it clear that he intends to ban drop boxes in the state during his term.
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On Wednesday, a Missouri judge dismissed a lawsuit challenging a photo ID provision in Missouri’s new omnibus voter suppression law. The lawsuit alleged that the imposition of a photo ID requirement for all in-person voting — which repeals previously accepted ID options such as voter registration cards, student IDs or copies of a utility bill or bank statement — violates the Missouri Constitution. In 2020, the Missouri Supreme Court struck down a similar photo ID requirement. Yet, on Wednesday, the judge granted the defendants’ motion to dismiss the plaintiffs’ claims, concluding that both sets of plaintiffs behind the lawsuit — two Missouri voters and the League of Women Voters of Missouri and Missouri NAACP — lacked standing (meaning capacity to bring a lawsuit in court).
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On Thursday afternoon, a North Carolina judge ruled from the bench and denied two requests from Republicans. The Republican National Committee (RNC) and other GOP groups had asked to move the state's mail-in ballot receipt deadline from Nov. 14 to Nov. 11 (which was delayed to accommodate Veterans Day) and allow more poll observers at polling places.
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Late Thursday, a Detroit-based civic organization asked to join a lawsuit brought by the RNC and the Michigan Republican Party challenging rules pertaining to partisan elections challengers. The group states it has a “significant interest in ensuring that its members who work as poll watchers can effectively protect the communities they represent at the polls, who are primarily voters of color, immigrants, and other marginalized citizens” and wants to defend the rules in court to ensure “the safe and orderly conduct of elections” in Michigan.
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Candidate Q&A: Mandela Barnes on His Run for U.S. Senate |
In Democracy Docket’s latest candidate Q&A, Wisconsin Lt. Gov. and U.S. Senate candidate Mandela Barnes (D) gives his take on the recent drop box ban in Wisconsin, explains why Republicans have taken issue with the state’s election body and more. His opponent, Republican incumbent Sen. Ron Johnson (R-Wis.), has not only denied the results of the 2020 presidential election, but actively worked to overturn it. Read more ➡️
ICYMI, we published another candidate Q&A last weekend with Chris Jones, a nuclear engineer, urban planner and ordained minister who is now vying for a new position: governor of Arkansas. Read more ➡️ |
SPOTLIGHT: Young People Are Democracy’s Superheroes: Will 2022 Candidates Listen to Them? |
By Dakota Hall, the executive director of Alliance for Youth Action, a national network of local organizations that engages young people as voters, organizers and leaders. Read more ➡️ |
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Have a question? Join Marc and Paige today on Twitter Spaces at 2 p.m. EDT for a discussion and Q&A on the latest democracy news. (Twitter Spaces is like a podcast, but live. You can listen to it without having a Twitter account.) |
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