October 22, 2024
By: William & Mary Student Contributor
Recently, California has seen trends toward increasing voter participation at both the state and local levels.
The California legislature enacted Chapter 757 in 2016 following the decision in Scott et al. v. Bowen. This lawsuit arose after California’s Secretary of State, Debra Bowen, decided to deny voting to those who participated in community supervision programs under the 2011 Criminal Justice Realignment Act. Bowen’s decision thus limited California’s Constitutional restrictions on voting, which had already denied the right to vote to (1) those imprisoned, on parole, or convicted of a felony or (2) those adjudged mentally incompetent. In Bowen, the court reversed the Secretary’s decision and found that individuals under post-release community and mandatory supervision are eligible to vote. Furthermore, the court held that those serving a term in county jail are free to exercise their right to vote. Later, Resolution Chapter 24, Statutes of 2020 (ACA 6), was enacted to remove California’s Constitutional provision that disqualified voters if they were on parole for felonious convictions. (more…)
October 18, 2024
By: Kristen Adolf
As we enter into a contentious election season, election law is on the forefront of much American political discourse and strife. Debates rage about who should vote, how they should vote, when they should vote, and where they should vote. In South Carolina, one of these questions will be left up to voters directly on the ballot this year.
In the November general election, South Carolina voters will find a proposed state constitutional amendment on their ballots relating to the first question asked in this article: who should enjoy the right to vote in South Carolina? The ballot question regarding the proposed amendment reads as follows:
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October 18, 2024
By: Brooks Alderman
In 1965, the United States Congress passed the Voting Rights Act of 1965 (VRA); this legislation contained many provisions designed to protect the right vote. One of the most important sections of the law was Section 5, which prohibited covered jurisdictions from changing their election laws without those changes first being “precleared” by the US Attorney General or the US District Court for the District of Columbia to ensure that the changes were not discriminatory. In Shelby County v. Holder (2013), the U.S. Supreme Court struck down one of the key provisions of this law, Section 4(b), which outlined the criteria to determine which jurisdictions should be covered by Section 5; this ruling had the impact of rendering section 5 as ineffective. Following Shelby and the end of preclearance, many states have passed laws that can restrict voting access, such as strict voter ID laws, stringent absentee voting processes, and difficult voter registration requirements. However, other states have moved in the opposite direction.
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October 17, 2024
By: William & Mary Student Contributor
Exactly 90-days ahead of the 2024 November general election, Virginia’s Governor Youngkin issued an Executive Order announcing the removal of 6,303 non-citizens from Virginia’s voter rolls. Local Virginia officials “attributed much of the presence of possible noncitizens on the voter rolls to errors made when people fill out paper or online forms or when they respond to a question about citizenship on a touchpad device at the department of motor vehicles.” In the E.O., Governor Youngkin directed the Virginia Department of Elections to make daily updates to the voter list by removing non-citizens should they intentionally or unintentionally attempt to register to vote. Further, the Governor directed the Department of Motor Vehicles to “generate a daily file of all non-citizens transactions, including addresses and document numbers.”
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October 17, 2024
By, Henry Blackburn
As the issue of felony disenfranchisement gains traction in legal circles and the greater public sphere, an important topic for study is Louisiana’s own felony disenfranchisement laws. Louisiana’s Election Code forbids any person who is convicted of a felony from registering to vote if they have been imprisoned within the past five years. However, contrary to other states in the South, Louisiana allows for certain “classes” of convicted felons to regain the right to vote.
For example, Louisiana’s legislature previously voted to lessen restrictions on voter enfranchisement for convicted felons. In 2019, Act 636 went into effect and restored the right to vote to around 36,000 felons who stayed out of prison for five or more years. Further, the law also included felons who had never been imprisoned but were on probation.
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October 17, 2024
Photo: M.B. Russett
Confusion leads to accusations of wrongdoing as mistakes on overseas ballots in Montana make for a tense start to the 2024 election season.
By Rex Fields
September 24, 2024 – On September 20, 2024, news outlets in Montana reported that presidential candidate Kamala Harris’ name had been left off the ballot on online ballots used by voters overseas. The online system was temporarily taken down as election officials troubleshot the issue. The issue was corrected, and the electronic absentee ballot system was put back up with Harris’s name later that day. However, the news spread rapidly, leading some to surmise that Republican Christi Jacobsen intentionally left Harris off the ballot. In an election cycle where emotions are running high and goodwill is running low, an examination of election laws and how these irregularities are typically handled may serve to soothe some tempers.
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March 17, 2023
By William & Mary Student Contributor
Can legislatures promulgate any election rule or redistricting plan, free of any state institutional checks and balances, subject only to intervention by Congress or the U.S. Supreme Court? That question will be answered by the Supreme Court this term in Moore v. Harper (“Moore”). The argument that the plaintiffs seek to advance is based on the independent state legislature theory (ISLT). Moore, who is Speaker of the North Carolina House of Representatives, and his co-plaintiffs argue that the Elections Clause of Article 1, Section 4 of the U.S. Constitution allocates the authority to draw congressional districts exclusively to state legislatures. Therefore, according to ISLT, the North Carolina Supreme Court cannot exercise any power regarding the time, place, and manner of elections. Furthermore, ISLT would deem the North Carolina Supreme Court’s decision in Harper v. Hall (“Harper”), which held that the legislature’s redistricting maps violated North Carolina’s constitutional guarantee to equal voting power, to be unconstitutional.
Similar to state supreme courts across the nation, the North Carolina Supreme Court had ruled on redistricting prior to 2022. In Harper, the North Carolina Supreme Court principally cited to two cases, where the court held that those maps infringed upon the rights of North Carolinians. Stated bluntly, the court declared, “Our state constitution provides greater protection of voting rights than the federal Constitution,” citing 2009 case Blankenship v. Bartlett and 2002 case Stephenson v. Bartlett. To better understand the role that the North Carolina Supreme Court has historically played in redistricting and what the U.S. Supreme Court restricts it from doing, it is helpful to re-examine Blankenship and Stephenson, as well as past cases in which the state high court has grappled with how maps are drawn and what equality in voting really means.
As early as 1875, the court declared it “too plain for argument” that the General Assembly’s malapportionment of election districts “is a plain violation of fundamental principles.” This line was consistent with the court’s first assertion of duty of judicial review of legislative enactments for compliance with the North Carolina Constitution in 1787. However, the state high court has been historically reticent—like the Supreme Court in Colegrove v. Green—to wade into political waters, and in 1939 held that “[t]he [redistricting] question is a political one, and there is nothing the courts can do about it.” The court followed the revolution of election law in the 1960s with the recognition of equal protection claims in Baker v. Carr and Reynold v. Sims, establishing the one-person, one-vote principle, and the passage of the Voting Rights Act in 1965. North Carolina’s Supreme Court did not enter the thicket in a meaningful manner until Stephenson.
In 2002, North Carolina voters challenged the state legislative redistricting plans adopted by the General Assembly in Stephenson on the basis that the plans violated North Carolina’s constitution. The court specified the criteria that the General Assembly could apply in redistricting, such as, partisan advantage, incumbency protection, and communities of interest. It ultimately found that the 2001 legislative redistricting plans violated the “whole-county provisions” of the state constitution. 51 of 100 counties were divided by the senate redistricting plan and 70 of 100 counties were divided by the house redistricting plan. Whole-county provisions of the state constitution require the formation of single-member districts in legislative redistricting plans, and the boundaries of such single-member districts generally may not cross county lines. The court invoked the state constitution’s equal protection clause to hold that “the right to vote on equal terms is a fundamental right” and that each North Carolinian had the right to “substantially equal voting power.” The court’s holding relied on its findings in 1990 case, Northampton County Drainage Dist. Number One v. Bailey, in which the court reiterated that “the right to vote on equal terms is a fundamental right.” The court’s interpretation of the state equal protection clause varied from the federal Equal Protection clause, which does not subject multi-member districts to strict scrutiny—as the court did in this case—granting North Carolinians greater protection of voting than the U.S. Constitution.
In Blankenship, the North Carolina Supreme Court again interpreted the state equal protection clause to afford greater protection to voters. At issue were districts for elected judgeships, in which voters in a new district had four to five times more voting power than North Carolinians in other districts. Recognizing the tension in electing judges as representatives, while not representing people, the court held “that the right to vote in superior court elections on substantially equal terms is a quasi-fundamental right which is subject to a heightened level of scrutiny.” The court cemented the “right to vote on equal terms” and one person, one-vote in North Carolina, even though federal courts have held the one-person, one-vote standard of the federal Equal Protections clause is inapplicable to state judicial elections.
In Harper, the court applied the principles of Stephenson, Bartlett, and its jurisprudence, spanning to its very beginnings, to hold that excessive partisan gerrymandering does not conform to the state constitution. The ISLT challenges the court’s ability to uphold its interpretation and application of North Carolina law. While the U.S. Supreme Court ruled in Rucho v. Common Cause that partisan gerrymandering claims are non-justiciable, the North Carolina Supreme Court has historically conferred greater protections of North Carolinians’ voting rights, and the Court further endorsed its role in 2018 via Rucho. Four years later, Moore’s petition to the U.S. Supreme Court to strip the state high court of its ability to uphold “a right to vote on equal terms” and find partisan gerrymandered maps unconstitutional will be heard this term, in one of the most consequential cases for democracy and representative government, not only for North Carolina, but for every state in the Union.
March 15, 2023
This summer, Missouri state legislators approved wide-ranging legislation that imposes new requirements on registering to vote and casting a ballot, alters presidential primaries, and expands absentee voting ahead of Election Day. The new law, popularly referred to as HB 1878, was passed in the wake of the 2020 election to address unsubstantiated claims of election fraud. As with many overhauls to state election codes, HB 1878 has been the subject of significant criticism, namely for provisions that heighten voter ID requirements and limit civic engagement organizations from encouraging and assisting with voter registration. Each of these components is being challenged in state court.
The complaint against restrictions on voter registration activity presents an interesting challenge under the Missouri Constitution.
In League of Women Voters of Missouri v. Missouri, the plaintiffs, which include the Missouri NAACP, have challenged four HB 1878 requirements affecting nonpartisan advocacy groups that engage in voter registration activity. The four provisions:
- Prohibit individuals from being paid or compensated “for soliciting voter registration applications”;
- Require individuals, regardless of compensation, to register with the state as “voter registration solicitors” if they solicit more than 10 registration applications;
- Require such registration solicitors to be registered Missouri voters; and
- Prohibit individuals and organizations from soliciting voters to complete absentee ballot applications.
The plaintiffs allege these provisions violate protections of free speech, free association, and due process of law guaranteed under the state constitution. Primarily, they claim that by targeting dissemination of information about and advocacy for voter registration, the state regulated speech based on its content, and because this constitutes political speech, the state infringed on “core protected expression.” This infringement is exacerbated by the unclear definitions of “compensation” and “solicitation” used in the statute, which they allege fail to provide fair notice to the public of what conduct would violate the law.
They further claim the law’s ambiguity creates severe administrative burdens and jeopardizes their “organizational mission[s].” Both organizations conduct significant voter registration activity throughout the state by employing a small number of salaried administrative staff and recruiting a large volunteer force. These volunteers are typically reimbursed for gas mileage and supplies, treated to food and snacks, and given organizationally branded materials like T-shirts, pencils, and clipboards to keep. In their suit, the League of Women Voters and the NAACP purport that the statute’s language of “compensation” may encompass these reimbursements and gifts, exposing all their volunteers to liability or depriving the organizations of basic volunteer recruitment incentives.
Perhaps more consequentially, the vagueness of “solicitation” leaves the organizations’ voter registration and absentee voting outreach programs in uncertainty. The plaintiffs contend it is unclear what constitutes a solicitation to register to vote or to vote absentee. While some interactions involve directly asking voters to register or vote absentee, the majority of outreach involves conventional voter registration drives where the public approaches a table or booth, asks a few basic questions, and completes a registration application. During the course of this interaction, volunteers often end up informing voters that they may be eligible to vote absentee based on what the voter says to them. The plaintiffs fear that solicitation, broadly defined, could ensnare all of these exchanges, which would require all volunteers to have to register with the state as “voter registration solicitors” and further expose volunteers to criminal liability.
The plaintiffs argue the requirement that solicitors be registered Missouri voters creates additional administrative burdens. Generally, it would require voter outreach groups to conduct a screening process for volunteers and prevent former felons, noncitizens, and anyone under 18 from being able to participate. It also would impede volunteers who may travel across state lines to support registration efforts, which may impact border cities like St. Louis and Kansas City. The plaintiffs claim these limits go to the heart of their organizations’ missions of involving the whole community in their advocacy and create logistical challenges that seem tailored to hampering their organizations’ functioning.
Regardless of the impacts of HB 1878, the plaintiffs’ case is striking because they are bringing claims under the state constitution’s voting rights guarantee, which the Missouri Supreme Court has previously said is “more expansive and concrete” than federal protections. Broadly speaking, the litigants’ hope that the combined rights of free speech and voting contained in the state constitution will render the law unconstitutional. While this approach will be necessarily limited to Missouri, it may reflect the broader call for voting rights groups to adopt a state-based approach to securing protections under the various voting provisions in state constitutions.
As the federal judiciary continues its relative disinterest in strengthening voting rights nationally, spectators are likely to see increased litigation at the state level. League of Women Voters may become one of the first of many such state battles, and a victory for the plaintiffs in a state dominated by election-skeptics may demonstrate how this strategy can bear fruit.
March 13, 2023
By Marcel Massarani
Everyone has heard of cryptocurrency or blockchain technology in some fashion, but few have taken it as seriously as a regulatory, economic, and democratic tool as the State of Wyoming. The Legislature made headlines last year when it became the first state to recognize decentralized autonomous organizations (DAOs) and provide them with a specialized LLC business structure. DAOs are democratically controlled entities that exist on the blockchain, governed by a form of “digital constitution” executing rules and user commands through smart contracts. DAOs range from as simple as a shared bank account to as complex as an entire business hierarchy or political action committee, purely existing in the form of code. Former Presidential Candidate Andrew Yang famously launched the Lobby3 DAO last year which is designed to be just that: a decentralized members-based lobbying organization, implementing a one-token one-vote system to distribute funds, selecting recipients, and directing policy. Wyoming is also the site of “CityDAO,” an experimental 40-acre parcel in Wyoming that is owned and operated via a DAO with over 10,000 “citizens.”
Despite Wyoming’s forward-thinking policies on technology and finance, its election procedures are far from perfect. Based on independent analysis, Wyoming scores poorly for ease of voting and has less than stellar scores for ballot security. In a state with less than 600,000 people, even small inaccuracies or voter suppression can greatly sway the outcome of elections. Wyoming limits voting registration to the DMV, offers no online registration, does not offer permanent mail voter lists, or online ballot tracking. Furthermore, the state added a voter ID requirement after the 2020 elections, requiring requisite documents and a trip to the DMV to obtain them, and lacks reasonable accommodations for those who forget them. Lastly, the state does not conduct regular election-wide audits. Currently, Wyoming legislators are seeking to strip the Secretary of the State’s powers to oversee elections, because the Republican nominee is a firm denier of the 2020 election results. Thus, an electoral system that is provably secure and promotes social trust and efficient participation has never been more important in the state of Wyoming. I propose that a blockchain-enabled voting system is perhaps the best solution, although it will be an evolving experiment.
During the 2020 elections the influx of mail-in ballots resulted in delayed counting and reporting of ballots which, in turn, led to agitation of partisan groups and increased distrust in the process, including from members of the State’s legislature and political candidates. Amid the chaos, discussion of digital voting was renewed, but quickly ignored, in favor of mail in voting. There is no shortage of stories detailing faulty voting machines or malicious hackers attempting to influence elections, and few were comfortable with the idea that a web portal or biometrically secured login would suffice to dispel these concerns. Meanwhile, those in the blockchain community were left wondering why the rest of the world didn’t see the solution hiding in plain sight.
Blockchains, while generally associated with cryptocurrencies, are truly just digital ledgers of data that can record anything from financial transactions to votes, authenticate each entry, and execute automated commands based on that data. They provide a form of “digital constitution” or rules that manage the system and constrain human actors. This ledger is distributed and simultaneously stored on every device connected to it, making it inclusively accountable and transparent. This provides a sense of trust in the inherently trustless environment of digital systems. Each user may audit the entire history of the system, checking that each recorded piece of data is authentic and non-duplicative. The system is processed without a central party, thus relieving concerns of mishandling votes. As Jacob Beckett says in his Law Review Article Blockchain Voting: WY Not, “[i]mplementing a transparent, secure, and faster manner of casting and counting votes seems to be the only option in avoiding a repeat of what will surely come to be known as one of the most tumultuous voting cycles in history.”
The use of technological advancements in voting is not a novel concept. The Help America Vote Act of 2002 (HAVA) grants federal funds to states that modernize voting equipment, given compliance with several requirements (omitted for brevity), none of which are precluded by a blockchain-enabled system. The most relevant requirement here is that each state must adopt uniform standards for what constitutes a vote within the system. Wyoming’s Election Code does not directly define what constitutes a “vote.” However, Wyoming is one of several states that requires certification from the Election Assistance Commission (EAC), established under HAVA, which certifies the hardware and software of voting systems. The EAC guidelines define a “valid vote” as being “from a ballot or ballot image that is legally acceptable according to state law.” In Wyoming, a “ballot” is defined as “the cardboard, paper or other material upon which a voter marks his votes.” While the Wyoming definition of “electronic voting system” is viewed to permit recording, tabulating, and counting of non-physical votes, the definition for a “voting device” is constrained to those devices or methods that record votes on ballots, as defined above. Therefore, while there is legal validity to the proposed blockchain-enabled system, clarifications should be made to include votes cast explicitly on a digital ballot from a blockchain-enabled system.
Despite the certification process under the EAC, Wyoming has spent considerable effort chasing down errors and bugs in their voting system. In 2020, Wyoming received a significant sum of funding from the HAVA Grant Program to “improve the administration of elections for Federal office . . .” and nearly a third of the allocated funds were directed at identifying cyber vulnerabilities within the State’s system. Half of the grant was set aside for improving the voter registration system, specifically citing data encryption and secure functionality—both aspects of the system that a blockchain-enabled system would not only improve, but definitively solve. Despite these funds and the goal of improving voter registration, no online registration system has been made.
Currently, Wyoming utilizes paper ballots and automatic tabulating equipment that provides a paper record. However, based on a lack of post-election audits, among other factors, the State received a “C” grade from the Center for American Progress. Specifically, the procedure was found to have left the State open to undetected hacking and other errors on election day. As for auditability, while all ballots are accounted for at the precinct level, counties are not required to compare and reconcile precinct totals with countywide composite results. Blockchains are not only “hack proof” when properly designed, they could be programmed to automatically perform functions like audits or population checks. Regardless of one’s views on auditing, the lack of it creates distrust in the electoral process.
To make matters worse, Wyoming uses voting hardware and software from ES&S, the company that provides over 60% of the voting systems throughout the country. ES&S thus arguably serves as a centralized point of failure, the elimination of which is one of the most apparent benefits of a blockchain-enabled system. The decentralized nature of blockchain technology improves the security of the system by precluding any centralized decision-making or collusion. A centralized privately managed system also creates the perception of corruption or manipulation, harming social trust in elections. Collectively, these inefficiencies or security flaws, coupled with Wyoming’s in-state expertise on blockchain, demonstrate that it is a perfect jurisdiction to experiment with blockchain-enabled voting systems, which very well could lead to greater social trust and decreased cost, as well as more secure elections. While the majority of constituents may need time to trust or understand the technology, the same can be said for the current electoral process which not only relies on centralized computerized systems, but also fallible partisan actors to secure elections and determine results. The simple fact of the matter is that nobody in the history of this country has ever been able to verify for themselves that their vote was cast and counted as they intended. With a blockchain based solution, the immediate ability to self-verify, correct, and immortalize a vote will be so apparent that trust will inevitably follow. Each voter, from their cell phone, can see their entire electoral history as well as the pseudonymous votes cast by the entire electorate. Additionally, there will be zero information asymmetries such that no partisan actor can claim superior knowledge or access to data than the public, thereby reducing the partisan incentive to cast doubt on election results.
March 10, 2023
By Kate Pollard
On September 21, 2022, the Montana Supreme Court upheld a preliminary injunction prohibiting Montana Secretary of State Christi Jacobsen from enforcing two election laws enacted during the 2021 Montana Legislative Session. The first, Senate Bill 169 (SB 169), eliminated student identification as a sufficient form of identification for voting purposes without additional supporting documentation. The second, House Bill 176 (HB 176), eliminated Election Day Registration in Montana, moving the deadline to noon the day before. The Plaintiffs in the case included the Montana Democratic Party, Western Native Voice, Montana Public Interest Research Group, Montana Youth Action, and four tribal governments.
The Montana Supreme Court declined to rule on the proper way to balance the fundamental right to vote with the legislature’s power to administer elections because the issues appeared in the context of upholding or vacating a preliminary injunction. The Court found that because an argument on the merits was not before them, such a ruling was premature. Instead, the Court focused their inquiry on whether the plaintiffs made a prima facie case that SB 169 and HB 176 would cause them irreparable harm by unconstitutionally burdening their fundamental right to vote. In reaching their conclusion, the Montana Supreme Court looked at the evidence before the District Court to determine it did not abuse its discretion in issuing the preliminary injunction.
In regards to SB 169, Plaintiffs presented expert testimony that the measure imposed a burden on college students and out-of-state students, as these groups are less likely to possess the requisite supplemental forms of identification. The District Court did not find the Secretary’s argument persuasive that the use of student identification contributed to instances of voter fraud, as none of the instances pointed to involved the use of such identification. The Supreme Court upheld the injunction because the District Court properly found, at this stage in the litigation and given the evidence before it, that SB 169 targets one class of voters—young people, and students from out-of-state in particular—and would disproportionately impact and violate their right to vote.
As for HB 176, which eliminated the option for voters to register on Election Day, the Montana Supreme Court similarly considered the evidence before the District Court in upholding its preliminary injunction on the enforcement of the statute. Substantial testimony was presented on the importance of Election Day voter registration, particularly amongst Native American voters. Native Americans living on reservations face significant barriers to voting such as long distance and limited access to transportation. The Plaintiffs presented expert testimony that, because of such barriers, Native Americans living on reservations are particularly reliant on election day registration and use it at a consistently higher percentage than other voting groups. The elimination of this option, therefore, would disproportionally impact them negatively.
The main counterargument from the Secretary was that Election Day Registration posed a burden on election staff and resulted in longer lines at the polls. However, testimony was presented on both sides as to this point, with the District Court ultimately concluding that based on the evidence of voter reliance on registering on Election Day, HB 176 would eliminate an important voting option for Native Americans. Consequently, HB 176 would cause plaintiffs irreparable harm by unconstitutionally burdening their right to vote. After considering the evidence before it, the Supreme Court did not find the Secretary demonstrated the requisite clear error in the District Court’s conclusion HB 176 would unconstitutionally burden the fundamental right to vote by eliminating this popular and relied upon voting option—especially by Native Americans. As a result, the preliminary injunction was upheld on this statute as well.
Finally, it is important to note that this decision just pertained to whether the District Court erred in issuing a preliminary injunction against enforcement of these two statutes while the District Court judge deliberates as to a permanent one. Attorneys for both sides argued the merits of the case in front of the lower court during a two-week long trial in August. The judge is expected to issue a final ruling soon, at which point either side will likely appeal the case once more to the Montana Supreme Court.