On The Docket 11/04/2022

Thanks for sticking with us throughout this busy fall. Election Day is just around the corner — this coming Tuesday, Nov. 8 — but court activity will likely only ramp up from there. With election deniers running on the GOP ticket throughout the country, voter intimidation on the rise and rampant misinformation, the stakes could not be higher this year. President Joe Biden emphasized these stakes during a speech on Wednesday night. “Too many people have sacrificed too much for too many years for us to walk away from the American project in democracy. Because we've enjoyed our freedoms for so long, it's easy to think they'll always be with us no matter what. That isn't true today. In our bones, we know democracy is at risk,” Biden concluded. “You have the power. It's your choice. It's your decision, the fate of the nation, the fate of the soul of America.” [link removed]

As we head into a potentially contentious post-election period, it’s more important than ever to 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. [link removed]

Three Cases That Could Impact the Election

This week, we saw decisions come down in crucial cases about voter intimidation, absentee voting and the counting of ballots. Since several more outstanding lawsuits deal with voting issues that must be resolved before Election Day, we expect the next few days to be busy. Here’s a rundown of a handful of cases that should have updates before Tuesday: [link removed]

Arizona Cochise County Hand Count Audit Challenge: A lawsuit challenging a plan to perform a full hand count audit of early ballots in Cochise County, Arizona. The county is relying on guidance by the Arizona attorney general, but the lawsuit argues that such an audit violates state law. [link removed]

Illinois Mail-in Ballot Deadline Challenge: A lawsuit filed by three Republicans arguing that Illinois’ mail-in ballot receipt deadline (if postmarked by Election Day, mail-in ballots can be received and counted for up to two weeks after Election Day) violates the federal law that requires Election Day to be held on the first Tuesday in November. [link removed]

Michigan Detroit Absentee Voting Challenge: A fringe lawsuit filed by an election denier candidate for secretary of state that argues that Detroit, Michigan’s processes of administering and counting absentee ballots is illegal. [link removed]

Judge Limits Drop Box Monitoring Activities of Arizona Vigilante Group

On Tuesday, a federal judge issued a temporary restraining order that prevents Clean Elections USA and its supporters from engaging in certain drop box monitoring activities in Arizona. Among other requirements, the defendants may not: go within 75 feet of drop boxes or the entrance where a drop box is located; follow individuals delivering ballots; speak or yell to a voter, unless the voter talks to them first or openly carry firearms or wear body armor within 250 feet of a drop box. [link removed]

Additionally, the judge gave Melody Jennings, the founder of Clean Elections USA, 24 hours to post on Clean Elections USA’s website and her Truth Social page (@TrumperMel) that it is not always illegal to deposit multiple ballots in a drop box. She must accompany that post with a copy of the relevant laws and a link to the judge’s temporary restraining order. The order will be in effect for 14 days.

This order emerged from one of two lawsuits. On Oct. 24, the Arizona Alliance for Retired Americans and Voto Latino sued Clean Elections USA over alleged voter intimidation. Shortly after, the League of Women Voters of Arizona filed a separate lawsuit challenging Clean Elections USA and other groups. The cases were consolidated on Oct. 31. Although the judge denied the first set of plaintiffs’ request for a temporary restraining order and preliminary injunction, the same judge approved the League of Women Voters’ more narrow request. The Arizona Alliance for Retired Americans withdrew its appeal regarding the denial of its motion for injunctive relief before the 9th U.S. Circuit Court of Appeals following Tuesday’s order.

Earlier this week, the U.S. Department of Justice (DOJ) provided its input on the League of Women Voters’ lawsuit with a statement of interest. The DOJ focused on Section 11(b) of the Voting Rights Act (VRA), providing examples of appropriate application of the statute to protect voters from threats and intimidation. “Other vigilante ballot security efforts that threaten to subject voters to adverse consequences, including…baseless allegations of felonious conduct for voting or attempting to vote can run afoul of Section 11(b),” the statement reads. [link removed]

Tomorrow we’re publishing Marc’s latest, a look into the detrimental impacts of election vigilantism on our democracy. Stay tuned!

New York’s Absentee Voting Laws Stand Despite GOP Challenges

On Tuesday, a New York state court rejected two Republican lawsuits challenging two absentee voting laws: [link removed]
Senate Bill 7565-B permits people to vote absentee if they are concerned about contracting an illness, such as COVID-19.
Senate Bill 1027-A allows for the counting and canvassing of absentee ballots on an expedited basis and prevents legal challenges to already counted ballots.

Both laws now remain in effect in New York. Tuesday’s decision by an appellate court comes after a lower court issued a ruling in one of the lawsuits that allowed the absentee excuse law to stand while striking down the absentee ballot counting law. Following a hearing held earlier in the day, the court ruled that the lawsuits should be dismissed because the “petitioners delayed too long in bringing this proceeding,” which violates the laches doctrine, a legal principle that states that legal claims must be made within a reasonable time frame. In this case, the challenged laws were enacted in 2020, yet New York Republicans waited two years to file these lawsuits — first on July 20, 2022 and then on Sept. 27, 2022, just over one month from Election Day. By the end of October, over 120,000 absentee ballots had already been returned and hundreds of thousands more mailed to voters. [link removed]

Pennsylvania Supreme Court Blocks Counting of Certain Mail-in Ballots

The Pennsylvania Supreme Court finally weighed in this week on the ongoing skirmish over the counting of undated mail-in ballots (ballots that are timely cast and valid but missing a date on their outer return envelopes) and wrongly dated mail-in ballots (ballots that are timely cast and valid but have an incorrect date, such as the voter’s birthday, on their outer return envelopes).

On Tuesday, the court ruled that county boards of elections must “refrain from counting any absentee and mail-in ballots received for the November 8, 2022…election that are contained in undated or incorrectly dated outer envelopes.” The court also ordered the county boards to “segregate and preserve any ballots contained in undated or incorrectly dated outer envelopes.” [link removed]

Notably, the state Supreme Court’s six current justices were evenly divided as to whether not counting undated or wrongly dated mail-in ballots would violate the Materiality Provision of the Civil Rights Act. After the sudden passing of former Chief Justice Max Baer in early October, there are an even number of justices on the court. Despite this deadlock, the court ruled that counting these ballots would violate state law and thus directed counties not to count them. [link removed]

Given the stalemate on federal claims before the state Supreme Court, it may be left to federal courts to decide this seemingly never-ending issue once and for all.

What To Expect When the Election Doesn’t End on Election Day

Last week, U.S. Sen. Ted Cruz (R-Texas) tweeted: “Why is it only Democrat blue cities that take ‘days’ to count their votes? The rest of the country manages to get it done on election night.” [link removed]

Unsurprisingly, Cruz’s statement is simply not true. Not only is this tweet inaccurate, Cruz is setting up something more nefarious — turning a routine process into a basis to cry “voter fraud.” The truth is long wait times for results are a manifestation of democracy at work. The results we see on TV before going to sleep on election night are, and always have been, unofficial results and media projections. It takes election workers days or weeks to count, canvass and certify results. The increased use in mail-in voting is another factor. Some states will accept and count ballots postmarked by Election Day, even if they are delivered within a certain window afterwards. Since state law varies, other states are precluded from processing and/or counting ballots before the polls close on Election Day.

This year, we could also see more intentional delays that derail the certification process. Voting machine conspiracies are pushing a handful of counties in Nevada and Arizona to adopt hand counting procedures that are less accurate and efficient — often in defiance of state law. This week, Pinal County, the third most populous county in Arizona, held a meeting to discuss options for a slightly expanded hand count audit in the county of 450,000. Fortunately, the board of supervisors rejected this change, adhering to the requirements outlined in Arizona law. [link removed]

In doing so, Pinal County avoided the legal troubles that officials in Cochise County, Arizona find themselves in. Cochise County plans to conduct an expanded hand count audit that impermissibly includes early ballots in that audit. Additionally, given its population of 125,000, it may be impossible for Cochise to complete its audit prior to the state’s certification deadline. States cannot certify their state-level results until all jurisdictions have certified and submitted results, meaning a single county — or, in the highly decentralized New England states, a single precinct — can derail the certification process.

As we approach Election Day, it’s important to be patient for final results and push back against disinformation and attempts to sow doubt in the electoral process.

More News

Some of the most extreme, anti-democratic candidates running for elected office have made their way into courtrooms across the country. For example, Kari Lake and Mark Finchem, the GOP nominees for Arizona governor and secretary of state, launched a (so far) failed lawsuit to ban electronic voting machines in the state. The latest effort is by Michigan secretary of state candidate Kristina Karamo (R), who filed a lawsuit on Oct. 26 challenging absentee voting methods used in Detroit. Karamo spent weeks after the 2020 election as a poll challenger in Detroit, after which she took a media tour of right-wing news outlets to discuss the alleged irregularities she witnessed in the city. Among other outlandish claims, Karamo’s new lawsuit argues that absentee ballots should only be requested in person at an election clerk’s office, as opposed to online or by mail, and that individuals casting an absentee ballot must verify their identity in person.

Elsewhere in Michigan, the Republican National Committee (RNC) and Michigan Republican Party tried to sue the city of Flint over an alleged shortage of Republican poll workers; the suit was dismissed just a few days after it was filed. This is part of a growing trend of lawsuits filed by the Republican Party against guidelines governing poll observers or the partisan composition of election workers. This week we had three updates in response to such lawsuits:
First, in Virginia, a judge ordered Prince William County to appoint more Republican chief or assistant chief election officers. [link removed]

Second, in Michigan, the state Supreme Court paused a lower court's decision to block Michigan Secretary of State Jocelyn Benson's (D) rules regulating the behavior of partisan election challengers so Benson's guidance is back in effect. [link removed]

Third, in Nevada, a judge denied a request from the RNC to compel the Clark County Board of Elections to add more Republicans to its poll worker roster. [link removed]

Yesterday, a judge approved an agreement between CASA, a nonprofit civil rights organization focused on Pennsylvania’s immigrant and Latino communities, and the board of elections in York County, Pennsylvania. CASA sued York County for only providing election materials in English in alleged violation of Section 4(e) of the VRA. The agreement will ensure voters who speak Spanish have equal access to the ballot box. [link removed]

Also yesterday, a judge ordered Dutchess County, New York to open a polling place on Vassar College's campus for the 2022 midterm elections after a lawsuit argued that the county failed to comply with its legal duty to designate an on-campus polling location. [link removed]

ROUNDUP: These Candidates Are Running To Save Democracy

Throughout the fall, we’ve profiled dozens of Democrats running for federal and statewide office, asking for their views on threats to democracy, voter suppression laws and how to make it easier to vote. (Don’t worry — we also asked them fun questions!) With Election Day only days away, catch up on all of our Q&As to learn more about the candidates running on key positions in key states. [link removed]

In our final candidate Q&A of the 2022 cycle, we spoke to longtime judge and former North Carolina Supreme Court Chief Justice Cheri Beasley, who is aiming to make history with her run for U.S. Senate in North Carolina. Beasley outlines how her time on the bench will influence her work in the Senate, discusses the state’s ongoing redistricting process and stays neutral in the long-standing east-west barbecue debate. Read more ➡️ [link removed]

What We’re Doing

This week, we have a simple ask for you: vote.

Find someone in your network who wasn’t planning to vote and encourage them to do so. Track your ballot and make sure it is counted. If your ballot is rejected, call your local election office to correct any mistake. [link removed] [link removed]

In dozens of states, you can continue to vote early in person throughout the weekend. Or, go on Election Day itself, on Tuesday, Nov. 8. If you face any issue at the polls, call or text 866-OUR-VOTE (866-687-8683) to speak with a trained Election Protection volunteer. [link removed]

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.) [link removed]

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



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