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“The GOP no longer presents voter suppression and election subversion with a wink and a nod. It enthusiastically embraces these anti-democratic tactics. There are no dog whistles left in the GOP; they have been replaced by blaring sirens of authoritarianism,” writes Marc in his latest, “The GOP: Breaking Our Democracy One State at a Time.”
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Voter Intimidation at Arizona Drop Boxes |
In Maricopa County, home to Phoenix, reports of voter intimidation started to emerge soon after early voting began on Oct. 12. Over the course of a week, the Arizona secretary of state’s office has referred six instances of potential intimidation to the Arizona attorney general and the U.S. Department of Justice (DOJ). During an unrelated press conference on Monday, U.S. Attorney General Merrick Garland avoided specifics but vowed that the DOJ “will not permit voters to be intimidated.” On Wednesday, however, the U.S. attorney for the District of Arizona released a statement indicating there are “several election threat-related cases pending federal felony charges” that stem from alleged criminal activity in the state.
In the first reported incident, a voter was followed as they attempted to drop off their ballot at a drop box; video footage later confirmed the story. Other reports show how “election security” vigilantes are monitoring drop boxes, filming voters and photographing license plates. Two armed individuals were spotted at a drop box in Mesa last Friday.
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Two armed individuals dressed in tactical gear on Friday, Oct. 21 at a drop box in Mesa, Arizona. Source: Maricopa County Elections Department |
In light of these incidents, a retirees association and Latino voting organization filed a lawsuit on Oct. 24 against Clean Elections USA, the group recruiting and encouraging individuals to monitor drop boxes in Arizona. The suit argues that the alleged “coordinated campaign of vigilante voter intimidation” violates both the Voting Rights Act and Ku Klux Klan Act. The civic groups request a temporary restraining order to immediately prevent Clean Elections USA from further engaging in intimidation.
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Another lawsuit: On Tuesday, the League of Women Voters (LWV) filed a lawsuit over alleged voter intimidation in Maricopa and Yavapai counties, arguing that these are “textbook” violations of the same two federal statutes. LWV’s lawsuit names Lions of Liberty (“chief organizers of Operation: Dropbox”), the Yavapai County Preparedness Team (“an Arizona spinoff of the extremist organization, the Oathkeepers”) and Clean Elections USA as plaintiffs. The Lions of Liberty and Yavapai County Preparedness Team have already sent their members an “Official Stand Down order” in light of the litigation, writing that “[m]oving forward Operation Drop Box is officially Closed.”
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On Wednesday, during a hearing for the first lawsuit filed against these vigilantes, the lawyer for Clean Elections USA seemed focused on trying to prove that people don't know for sure that they are the group behind the drop box monitoring, rather than trying to refute the intimidation claims. "I am trying not to be intimidated to speak out and be worried about someone coming to my home," testified Saundra Cole, the president of the Arizona Alliance for Retired Americans. The judge said he will try to issue a decision by today.
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Right-wing groups — including GOP nominee for secretary of state Mark Finchem — have called upon volunteers to monitor dropboxes for “mules,” a term from the debunked “2000 Mules” propaganda movie that spread false claims of voter fraud, to describe a shadowy group of individuals who collect fraudulent mail-in ballots for drop boxes. (In Arizona, the term “mule” also has a particularly racist tone, with the state banning community ballot collection in 2016 after a video was presented in legislative hearings that showed an apparently Latino man lawfully returning numerous mail-in ballots to an elections office. The video’s creator, the former head of the Maricopa County Republicans, said he didn’t know if the man was an “illegal alien” but definitely knew he was “a thug.”)
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A new Reuters poll shows that more than 40% of voters are worried about threats of violence or voter intimidation at polling places in the upcoming midterm elections. U.S. attorneys offices’ across the country have reiterated their commitment to protect voting rights, and in many jurisdictions have appointed certain individuals to take lead in the DOJ’s nationwide Election Day program.
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Conspiracies About Vote Tabulators Could Create Chaos as Rural Counties Turn To Hand Counts |
The election conspiracies gripping rural, red counties could create major issues after Election Day. We already saw how a handful of counties refused to certify election results, certified incomplete results or prolonged and discredited the certification process after primary elections this year. Now, some of the same county commissioners are going rogue — pushing their counties to implement election procedures that are logistically difficult and, sometimes, less accurate and secure — all because of misinformation and conspiracies about voting machines.
In early September, the clerk’s office in Nye County, Nevada announced a plan to use only paper ballots and hand count the results of the midterm elections, along with conducting parallel electronic tabulation. The American Civil Liberties Union (ACLU) of Nevada challenged this procedure and Nye’s other planned changes. Last Friday, the Nevada Supreme Court granted some parts, but denied others, of the ACLU’s request. The court held that Nye County is prohibited from live streaming the vote counting process in which election results are read aloud prior to polls closing on Election Day. The court also found that the county’s strict signature verification procedures violate Nevada law, but the plan for touch screen voting options for voters with disabilities was permissible.
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Then, on Tuesday, the Nevada Supreme Court affirmed a lower court’s decision in a separate but related lawsuit. A civic group challenged guidance from Nevada Secretary of State Barbara Cegavske (R) that permitted county recorders to hand count ballots (as opposed to using an electronic counter) at their discretion. While this guidance remains in place for the upcoming election, fortunately no county submitted a proposal to use hand counting as its primary method. Nye County will continue its plans for a “parallel tabulation” via electronic counters in addition to a hand count, which began on Wednesday.
According to The Nevada Independent, 89% of Nevada’s population live in two counties — Clark and Washoe — that include Reno and Las Vegas. The other 11% are “spread out across Nevada's vast desert landscape in 15 other counties, with county governments typically composed entirely of Republican elected officials.” What’s happening in these 15 sparsely populated areas can’t be discounted — the efforts to move towards hand counting was an attempt to push the rest of the state to follow suit.
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After primary elections this summer, the county commissioners in Esmeralda County, Nevada conducted a hand count of results. Notably, this deep-red county has a population of less than 750, yet it took commissioners over seven hours to hand count the 317 votes cast, ultimately being the last Nevada county to certify its primary results.
Hand counting can be useful for audits, but as a primary vote count method, experts agree that it is significantly less accurate, more expensive and more time consuming than electronic tabulation equipment. Compared to Esmeralda County’s population of 729, Nye County has a population of over 50,000.
A county in Arizona with a population of over 120,000 wanted to jump onto the hand-counting train, too. On Monday, the board of supervisors for Cochise County, Arizona voted to conduct a “100% County wide hand count audit” of the 2022 election. Two days later, after the Arizona secretary of state’s office sent a letter to the board informing them that a full hand count audit would violate Arizona law, the county backtracked on its plans. Instead, the board will conduct an “expanded hand count audit” that’s much more limited than the original “100%” county-wide plan, in compliance with all requirements of Arizona law.
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Nearly 70 Amicus Briefs Submitted to the U.S. Supreme Court in Moore v. Harper |
On Wednesday, the second round of amicus “friend of the court” briefs were submitted in Moore v. Harper, bringing the total number of amicus briefs filed to 69. The case involving North Carolina’s congressional redistricting gives the U.S. Supreme Court the opportunity to consider the fringe independent state legislature (ISL) theory, which argues that state legislatures have special authority to set federal election rules free from interference from other parts of the state government, specifically state courts. Amicus briefs are filed by individuals or organizations that are not parties in the case but have an interest in the outcome. They can often present new data, potential ramifications and legal arguments.
A total of 69 amicus briefs were submitted — 16 in support of Moore that embrace the ISL theory, 48 in support of Harper that repudiate the ISL theory and five in support of neither party. The briefs in support of Moore urge the Court to adopt the ISL theory, to varying degrees of intensity. Some of the notable groups and individuals who submitted such briefs include:
- America First Legal Foundation (a group founded by Stephen Miller and Mark Meadows, high level staffers of former President Donald Trump);
- American Legislative Exchange Council;
- Honest Elections Project (a group linked to Leonard Leo, a longtime Federalist Society leader and right-wing funder);
- Claremont Institute’s Center for Constitutional Jurisprudence (brief written and submitted by John Eastman);
- The Republican National Committee, National Republican Congressional Committee, National Republican Redistricting Trust and North Carolina Republican Party and
- 13 Republican state attorneys general.
Amicus briefs in favor of the Harper parties were due Wednesday, Oct. 26. These briefs argue in favor of upholding the North Carolina Supreme Court’s decisions to strike down the state’s gerrymandered congressional map and redraw it and against any embrace of the ISL theory. Some of the notable groups and individuals who submitted amicus briefs include: - Civic engagement and racial justice groups;
- U.S. Sen. Sheldon Whitehouse (D-R.I.) and Rep. Hank Johnson (D-Ga.), as well as a group of 20 senators led by U.S. Sen. Amy Klobuchar (D-Minn.);
- 13 Democratic secretaries of state;
- 22 Democratic state attorneys general;
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The DOJ writing on behalf of the United States;
- Former California Gov. Arnold Schwarzenegger (R);
- Current and former election administrators and
- Numerous professors and legal scholars.
The number of amicus briefs and the frequency of U.S. Supreme Court justices citing them in final decisions has increased over the past few decades. In a 2021 law review article, Whitehouse discussed this phenomenon and concluded that the “amicus brief is now a powerful lobbying tool for interest groups.” |
New York Democrats Sue Over County’s Noncompliance |
Today, Gov. Kathy Hochul (D), U.S. Sen. Chuck Schumer (D-N.Y.) and other New York Democrats filed a petition in court to compel the Albany County Board of Elections to process absentee ballots for counting on Oct. 28, as required by New York law. The board and its Republican commissioner are currently refusing to do so.
Notably, the law on which the petitioners’ claims rest, which requires the early processing and counting of absentee ballots among other provisions, was struck down by a state trial court on Oct. 21 after Republicans filed a lawsuit challenging the statute. However, this trial court order was paused by an appellate court on Oct. 25. The law is back in effect and county boards of elections must comply with it. As of the morning of Oct. 27, approximately 17 other Republican county commissioners have not answered the inquiries of their Democratic counterparts and are presumed to not be willing to resume their canvassing duties.
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Bad news: On Wednesday, the 5th U.S. Circuit Court of Appeals upheld strict residency requirements for voter registration in Texas’ Senate Bill 1111, reversing a lower court’s decision and reinstating the law in full. A lower federal court had previously blocked the challenged provisions for violating the First and 14th Amendments, but the decision was appealed by several Texas officials, including Texas Attorney General Ken Paxton (R). After holding oral argument a few weeks ago, the 5th Circuit found that the two organizations that filed the lawsuit lack standing (the capacity to bring a lawsuit in court).
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Now, the good news: Also on Wednesday, a North Carolina judge largely rejected a Republican request to block guidance from the North Carolina State Board of Elections. The board had previously decided to extend the state’s absentee ballot receipt deadline from Nov. 11, which is Veterans Day, to the next business day, Nov. 14, and impose certain restrictions on poll observers. This week, the judge let a poll observer requirement stay in place, while striking down another. Most importantly, the judge denied the Republican National Committee’s request regarding the absentee ballot receipt deadline, meaning North Carolinians will have their absentee ballots counted so long as they are postmarked on or before Election Day and received by mail no later than Monday, Nov. 14.
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Candidate Q&A: Rochelle Garza on Her Run for Texas Attorney General |
In our latest candidate Q&A, former ACLU civil rights lawyer Rochelle Garza talks about the importance of the attorney general’s office in protecting democracy and taking on current Texas Attorney General Ken Paxton (R), a full-on election denier who led the failed legal effort to overturn 2020 election results in four swing states. Read more ➡️
As we near Election Day, we’ve been busy highlighting candidates running in crucial races across the country. If you missed these two gubernatorial candidates, make sure to hear from Arizona Secretary of State Katie Hobbs (D) on her run for governor of the Grand Canyon State and Nevada Gov. Steve Sisolak (D) on his re-election bid.
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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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