Wisconsin Passes Ban on Private Funding to Bolster Election Administration
March 8, 2023
By Blair Page
Since 2016, threats and attacks on poll workers have increased rapidly. Egged on by former President Trump and his supporters, poll workers have been threatened and bullied out of their jobs. States around the country have now found it hard to recruit and retain poll workers.
In response, outside organizations have stepped up, raising money to hire and train poll workers around the country. Most notably, basketball great LeBron James teamed up with other athletes to create, More Than A Vote, a multimillion dollar effort that netted some 10,000 poll workers around the country.
These outside groups place great importance on states that have a history of electing candidates from both parties, swing states as they are known.
Considering the increased scrutiny our elections have faced, swing states like Wisconsin are in greatest need of poll workers to ensure that elections are run smoothly.
In Wisconsin, an evenly divided state where elections are often decided by a few thousand out of millions cast, Republicans in the state legislature have banned state and local governments from soliciting and accepting outside funds for the purpose of election administration.
It appears this is in direct response to the efforts in 2020 by outside groups to make sure that polling places are sufficiently staffed to administer elections. Since 2020, nearly 20 states have passed legislation or enacted regulations that have banned private funding for election administration.
This ban an outside funding is the latest in a long line of undermining confidence in our elections by Wisconsin Republicans. Republicans attacked ballot drop boxes and the process for counting mail-in ballots during the 2020 election.
It should be noted that this GOP sponsored bill was passed over the veto of Democratic Governor Tony Evers. The veto override by the GOP-controlled legislature is in large part due to the aggressive Republican gerrymander of the state’s legislative districts. For example, in 2020 Republican State Assembly candidates received 53.8% of votes yet won 61/99 seats. In 2018, they received 44.8% of the vote yet won 63/99 seats.
While liberal-leaning or connected groups provided most of the funding to support recruiting and paying poll workers, and Republicans have argued that private funds undermine elections, there is no evidence to suggest that these poll workers improperly influenced the outcome in any jurisdiction.
With Wisconsin again facing very competitive elections for the U.S. Senate and governorship, having the elections run smoothly will be essential to ensuring trust in the electoral process.
While the ban is in place, it is unclear if the state will step in and provide adequate funding, and localities will likely struggle to cover the cost. A group of Senate Democrats have proposed a bill that will provide $20 billion in federal funds to states for the purpose of election administration. The bill faces an uphill battle in that chamber.
With the 2022 mid-term elections quickly approaching, and polling suggesting competitive races across the country, it is vital that voters of all political persuasions to trust that elections are run fairly and properly.
D.C. Automatic Voter Registration and Potential Steps Towards Increasing Accessibility in Voting
March 6, 2023
By Julian Miller
In July 2022, Charles Allen, Washington D.C. Councilmember for Ward 6, introduced a new bill. The bill was introduced as the “Automatic Voter Registration Expansion Amendment Act of 2022.” This builds on Allen’s introduction of the Automatic Voter Registration Amendment Act of 2015, which passed unanimously in 2017 (D.C. Law 21-208). This new bill would change automatic voter registration (AVR) from “front-end” opt-out automatic voter registration to “back-end” opt-out automatic voter registration, and it would add any D.C. voter who interacts with source agencies to a “preapproved for registration list.” This change would allow anyone on the “preapproved for registration list” to register to vote by showing up to vote or voting by mail.
AVR automatically registers eligible individuals to vote when they have had an interaction with certain government agencies, most often the Department of Motor Vehicles. As of recently 12 states have included other government agencies in their AVR policies.
AVR grew most rapidly out of the passage of the National Voter Registration Act by Congress in 1993. In doing so, the United States took steps towards making the process of registering to vote easier and more accessible by enacting certain voting registration requirements for offering voting registration opportunities at the state level. As of 2022, according to the National Conference of State Legislature, 22 states and Washington, D.C., have enacted some kind of AVR to increase voter registration.
Front-end opt out AVR allows for an individual at certain government agencies, such as the Department of Motor Vehicles, to register or decline while at the “point of service.” In contrast, back-end opt out AVR, as the name suggests, gives the individual the option to register after “point of service.” Instead, an individual receives a notification that they will be registered to vote after their interaction at the agency. Further, if the individual does not respond to the mail and actively declines registration, the individual is automatically registered.
In general, and also incredibly important when noting the United States history of voter suppression, AVR has proven to be most beneficial for underrepresented and underserved populations in the United States. In D.C., the recently introduced Automatic Voter Registration Expansion Amendment Act of 2022 focuses on the method in which automatic registration occurs. Charles Allen cites to the fact that Back-end opt-out AVR is seen as superior to front-end AVR by election experts.
Proponents of the back-end opt-out AVR argue that it is: 1) more effective, 2) more efficient, and 3) more secure than front-end opt-out AVR. First, concerning effectiveness, by comparing states that employ different AVR systems researchers found that back-end opt-out systems of AVR add more voting-eligible individuals to voter rolls when compared to front-end systems. Proponents argue that the multiple steps that back-end systems employ in order to opt out make it more likely that voting-eligible individuals won’t choose to opt out. Second, the back-end opt-out AVR system is more efficient than the front-end system, as those in charge of carrying out the bulk of this registration process are state officials who have been trained and are paid to do so. Proponents argue that taking this pressure off of an individual makes AVR systems more efficient. Along the same lines, proponents argue that the state is better equipped than an individual, when taking into account language and socio-economic barriers, to know whether an individual is eligible for registration. Proponents argue that this makes United States elections more secure as government agencies have the proper toolbox to decide which individuals are eligible to vote and which are not. Therefore, the onus should be on the state to confirm an individual’s eligibility for registration by using the information they have at their disposal.
Some opposition to AVR in general, and the preferred back-end opt out AVR in particular, is heavily partisan. For instance, those in opposition to AVR feel that its hidden intent is to benefit the Democratic party, based on the idea that individuals who aren’t registered to vote are more likely to vote Democrat. However, a 2022 AVR report by Rachel Funk Fordham found that multiple studies have found that there is no “significant partisan bias” that favors Democrats stemming from state AVR policies. Other opposition to back-end opt-out AVR argues that this could potentially register noncitizens, thereby increasing the likelihood that noncitizens are prosecuted for voter fraud.
If increased registration is what the bill intends to achieve, the empirical data shows that back-end AVR policies increase registration more than front-end policies. For example, a study in 2021 comparing both front-end and back-end AVR policies showed that the latter increased registration by 8.1 percent, as opposed to the former, which increased registration by only 2.9 percent.
The Automatic Voter Registration Expansion Amendment Act introduced in D.C. is a part of a greater effort to introduce voter-friendly legislation, making voting and registration more accessible for constituents in D.C. Most recently, this proposal had a public hearing on September 16, 2022.
Mail-In Voting Survives in Pennsylvania
March 3, 2023
By William & Mary Law Student Contributor
Voting rights advocates secured a major victory in Pennsylvania this summer when the state supreme court upheld key provisions of Act 77, which provides all qualified voters the right to vote by mail.
In order to vote by mail prior to the enactment of Act 77 in 2019, Pennsylvania election law required voters to establish their absentee status (or excuse) by asserting they lived outside their respective municipalities or were unable to vote at the polls due to illness or physical disability. Outside of those “excuses,” voters had to cast their ballots in person in order to participate. This, of course, limited the pool of eligible mail-in (absentee) voters. Act 77’s expansion of mail-in voting from being exclusive to absentee voters to all qualified voters represented an enormous expansion of ballot access.
Act 77, importantly, earned considerable bipartisan support. Both state-house Republicans and Democrats broadly endorsed the bill. Despite this, in the lead up, and in the aftermath of the 2020 election, former President Trump and Pennsylvania Republican lawmakers severely criticized the law and argued that it was unconstitutional.
Since the November 2020 election, both federal and state elected Republicans have sought to strike Act 77’s no excuse mail-in voting as unconstitutional. For instance, immediately after the 2020 election, Rep. Mike Kelly (R-PA) challenged the constitutionality of Act 77 and requested that the court throw out non-absentee mail-in ballots. The Pennsylvania Supreme Court dismissed the case on procedural error. In its ruling, the Court stated: “Petitioners sought to invalidate the ballots of the millions of Pennsylvania voters who utilized the mail-in voting procedures. … Alternatively, Petitioners advocated the extraordinary proposition that the court disenfranchise all 6.9 million Pennsylvanians who voted in the General Election and instead “direct the General Assembly to choose Pennsylvania’s electors.” The Court had to revisit the constitutionality of Act 77 in its recent decision, and the subject of this post, McLinko v. Department of State.
McLinko, a member of the Bradford County Board of Elections, challenged the constitutionality of the Act 77, just as Rep. Mike Kelly did. Relying on past state Supreme Court precedent, McLinko argued that the Pennsylvania Supreme Court should strike down the law because the constitution states that qualified voters must establish residency sixty days before an election “in the election district where he or she shall ‘offer to vote’.” McLinko argued that the term “offer to vote” should continue to be understood as casting one’s ballot in person. Although Mclinko acknowledged clearly defined exceptions to in-person voting as guaranteed in the state constitution (as in absentee voting)[NK4] , he contended that the state legislature exceeded its authority by granting qualified voters, other than absentee voters, the right to “offer their vote” by mail, instead of in-person.
Weeks after McLinko brought suit, Pennsylvania state Rep. Bonner and thirteen other members also challenged the law on the same grounds. Pennsylvania courts consolidated these actions, as they all argued that the state legislature exceeded their scope of authority. And in January of 2022, Republican lawmakers won the initial round. The lower court concluded that the phrase “offer to vote” required voters to cast their ballot in person unless they could establish their absentee status. The state Supreme court rejected this argument, however.
The Court concluded that the phrase “offer to vote” does not require in person participation. Instead, the Court stated the phrase “where he or she shall offer to vote” is a descriptive clause that modifies the object of the prepositional phrase “in the election district.” It does no more than identify the district in which the elector is eligible to vote, which is the interpretation supported by the recorded history. Rejecting McLinko’s argument, the Court found that the legislature had authorization to expand mail-in voting pursuant to section four of the constitution, which permits the assembly to establish “other methods” for elections.
As the Dissent declared, this monumental decision overturned 160 years of court precedent that required in-person voting without “requisite special justification.”
Despite an early victory for Republican challengers, this decision represents a profound victory for voting right activists in Pennsylvania and cements the government’s ability to expand mail-in voting access.
The Arizonans for Fair Elections Initiative: Democrats’ Turn to Direct Democracy
March 1, 2023
By Wade Erwin
In a state that some refer to as the “center of the fight to make voting harder,” the Arizona Supreme Court recently barred a ballot initiative that would have struck down GOP-backed election laws and practices. The court found that the Arizonans for Fair Elections ballot initiative, also known as the Arizonans for Free and Fair Elections Act, fell 1,458 signatures short of the threshold requirement for the general election ballot. Although the failed proposal cannot appear on the November 2022 ballot, the Arizonans for Fair Elections initiative evinces the tensions between Republican legislators pushing for more restrictive voting laws and the progressive interest groups who oppose these sweeping changes to Arizona’s election laws.
The Arizonans for Free and Fair Elections initiative typifies the divide between grassroots progressive organizations in Arizona and the state’s Republican General Assembly. Created as “a direct response to the Legislature,” the initiative illustrates Democrats’ turn to direct democracy to counteract the torrent of conservative voting laws. Republican members in the General Assembly viewed the initiative as such, with a Scottsdale representative arguing that “[t]hey can’t win at the Legislature so they’re going to go to the ballot and mislead the public.”
Proposed by organizations like the Arizona Democracy Resource Center, the Arizonans for Fair Elections initiative contained a variety of provisions designed to substantially alter Arizona’s election and campaign finance laws. The changes proposed under the Act included:
- adopting same-day registration at polling places;
- automatically registering those who obtain state identification cards to vote;
- substantially reducing contribution limits from $6,250 to $1,000 for local or legislative offices or $2,500 for those running for statewide office; and
- outlawing unofficial election audits.
The initiative represented an attempt by Democrats to push back against the flood of restrictive voting laws passed by the Arizona legislature in the wake of the 2020 election. More election interference bills were introduced by the state’s general assembly in 2022 than anywhere else in the country. While Arizona’s newest voter identification law garnered most of the national attention, legislators also introduced bills to limit the availability of mail ballot drop boxes and to expand faulty purge practices. The volume and breadth of these electoral regulations have made Arizona the epicenter for the debate over voting regulations today.
However, voters needed to qualify the initiative before they could vote for it on election day. Arizona state law requires that proposed initiatives amass 237,645 valid signatures by early July to earn a spot on the November ballot. Coalition groups aligned with Democrats collected an estimated 475,000 signatures before submitting it to the Maricopa County Superior Court. Although the trial court initially ruled that the initiative satisfied the signature requirement, conservative groups challenged the lower court’s methodology. The Arizona Supreme Court stated that it couldn’t verify the signature total and issued an order requiring the Superior Court to re-evaluate the count. After removing invalid and duplicate signatures, the Superior Court found that the initiative fell 1,458 signatures short of the statutory threshold. The Arizona Supreme Court affirmed the decision and barred the initiative from appearing on election day.
While voters won’t have a chance to weigh in on the Arizonans for Fair Elections initiative in November, the general election carries significant implications for voting rights in Arizona. With restrictive voter identification initiatives on the ballot, interested parties should continue to monitor November’s election.
Suits Against Texas’s 2021 Voting Law Move Forward, Promise Lengthy and Complex Legal Battle
February 27, 2023
By Kate Dopkin
Fueled by conspiracy theories and former President Donald Trump’s claims that the 2020 election was rigged, last year, conservative states moved to pass legislation to restrict voting. The Republican-dominated Texas Legislature was no exception. In September of 2021, the Texas Legislature passed S.B. 1, a voting law that attempted to restrict how and when Texas voters can cast ballots. The far-reaching legislation banned drive-thru and 24-hour voting, protected partisan poll watchers, and imposed new requirements for assisting voters who need help filling out their ballots. The law also banned the distribution of mail-in ballot applications, created new ID requirements for voting by mail, and provided a correction process for mail-in voting. The ACLU of Texas described the legislation as “Omnibus Voter Suppression.”
Civil and voting rights groups have challenged S.B. 1 under the U.S. Constitution, the Voting Rights Act, and the Americans with Disabilities Act (ADA). The private plaintiffs included La Union del Pueblo Entero, Friendship-West Baptist Church, The Anti-Defamation League, and Texas Impact, among others. At least five different cases have been consolidated into a single lawsuit in the Western District of Texas. The U.S. Department of Justice filed a statement of interest in the case, arguing that the plaintiffs had sufficiently stated a claim of intentional discrimination under Section 2 of the Voting Rights Act.
Additionally, in November 2021, the U.S. Attorney General filed a lawsuit against the State of Texas and the Texas Secretary of State, alleging that SB 1 violates Section 208 of the Voting Rights Act by improperly restricting assistance in the polling booth for voters with disabilities that make it difficult for them to read or write. The lawsuit further alleged that the law violated Section 101 of the Civil Rights Act by requiring rejection of mail ballots and mail ballot request forms because of certain paperwork errors or omissions that are not material to establishing a voter’s eligibility to cast a ballot. In May of 2022, Judge Xavier Rodriguez, denied the State’s motion to dismiss and allowed the Attorney General’s lawsuit to move forward.
Attempts to dismiss the private plaintiffs’ complaints have largely been unsuccessful. The defendants asked the court to dismiss claims raised by various voter advocacy organizations, including those filed by LULAC, Voto Latino, Texas Alliance for Retired Americans, and Texas AFT. On July 12, 2022, the district court allowed the majority of the claims to move forward, holding that the State defendants could not claim sovereign immunity; some of the plaintiffs had associational standing; all plaintiffs had organizational standing; and the plaintiffs had stated a claim upon which relief could be granted. The district court has also granted LULAC’s motion to compel documents and communications from the state legislators concerning claims of criminal conduct in Texas elections, the anticipated effects of S.B. 1, and communications with third-party organizations concerning S.B. 1. Texas legislators have appealed this order to the 5th Circuit.
On August 2, 2022, the District Court allowed most of the LUPE Plaintiffs’ claims to proceed, dismissing without prejudice certain claims under the 14th and 15th Amendments, sections 276.016, 276.017, and 276.019 of the State Election Code, and the ADA. State defendants have appealed that decision to the 5th Circuit, as well. The litigation is ongoing, and promises to be a lengthy and complex legal battle. The trial is currently scheduled for the summer of 2023.
If You Want Something Done, Do It Yourself – New York Passes Landmark State Voting Rights Protections
February 24, 2023
By Haley Rosenspire
In the wake of Supreme Court cases like Shelby v. Holder striking down key provisions of the 1965 Voting Rights Act, Alabama Representative Terri A. Sewell introduced the John R. Lewis Voting Rights Advancement Act in August 2021. The Act, which has passed the House several times but has never had the votes to pass the Senate, would establish new criteria for determining which states and precincts must obtain Section 5 “preclearance” prior to changes to voting practices taking effect. Preclearance is the process of predetermined states and precincts being required to receive pre-approval from the Department of Justice before making legal changes that would impact voters’ rights, a mechanism which became necessary during the Civil Rights Movement to ensure that Black citizens were able exercise their voting rights.
Despite, or possibly because of, the bill’s failure to clear the Senate, the State of New York took matters into its own hands in June of 2022 by passing its own “John R. Lewis Voting Rights Act of New York.” While the laws share a name, they do differ in some substantial ways. While the federal John R. Lewis Voting Rights Advancement Act focuses more on updating key provisions to the 1965 law, the New York Act brings that vision to the state level by launching its own preclearance program, providing new legal tools to fight discriminatory voting practices, creating protections against voter intimidation or obstruction, and providing specific assistance in elections to language-minority groups.
The Act, which bears the name of Civil Rights giant and former congressman John Lewis was signed into law by Governor Hochul at Medgar Evers College in Brooklyn on June 20, 2022. It makes its legislative and public policy purpose clear in its first section, stating:
In recognition of the protections for the right to vote provided by the constitution of the state of New York […] it is the public policy of the state of New York to:
1. Encourage participation in the elective franchise by all eligible voters to the maximum extent; and
2. Ensure that eligible voters who are members of racial, color, and language-minority groups shall have an equal opportunity to participate in the political processes of the state of New York, and especially to exercise the elective franchise. N.Y. Elec. Law § 17-200 (McKinney)
The second section of the Act further proscribes that “the authority to prescribe or maintain voting or elections policies and practices cannot be so exercised as to unnecessarily deny or abridge the right to vote.” N.Y. Elec. Law § 17-202.
These lofty legislative and policy goals are animated by a new, robust preclearance law that regulates the following: methods of election, the annexation of political subdivisions, the consolidation or division of political subdivisions, the removal of voters from enrollment lists, the dates of elections or the election calendar, the registration of voters, the assignment of election districts, the assistance offered to members of a language-minority group, as well as any other topics designated by the civil rights bureau. N.Y. Elec. Law § 17-210. The law also includes explicit prohibition against voter intimidation and obstruction, as well as expedited pretrial and trial proceedings for actions brought pursuant to the Act.
With next term’s Merrill v. Milligan poised to challenge even more of the substantiative law of the Voting Rights Act of 1965 and federal voting rights legislation dead in the water with the current composition of the Senate, New York is not the only state that has moved to shore up voting rights at the state level. The Brennan Center for Justice reports that in 2022, Arizona, Connecticut, and Oregon have also enacted laws that “expand access to the vote,” and another “48 bills with expansive provisions are moving through 16 state legislatures”. Other states yet move to impose more restrictive voting regulations— though still intended to protect democratic processes— particularly those aimed at combatting voter interference. Despite the type of regulations imposed, the trend continues to point to robust debate and activity for election law at the state level—the Empire State, as per usual, leading the crusade.
A Tale of Two Cities: The Recall Efforts of the San Francisco and Los Angeles District Attorneys
February 20, 2023
By Caleb McClain
Earlier in the year, I wrote an article for this blog on the recall election laws of my home state of California. I was inspired to write the article by to the persistent efforts to recall my county’s District Attorney, George Gascón, and the recent special election that tried to recall Governor Gavin Newsom. Shortly after I finished writing the article, there was a successful recall of District Attorney Chesa Boudin in San Francisco and a failed attempt to recall Gascón in Los Angeles County. Considering these events, I wish to take a closer look at both elections and see if any of the critiques of the California recall system apply.
As I have previously given a history and overview of recall election, I will give only a brief summary. Recall elections emerged out of the progressive movement as way to give power back to the people to remove corrupt officials but in practice have had a mixed effect. California has held over 11 recall elections, with the most famous being the successful recall of Governor Grey Davis in 2003 and the failed attempt to recall Governor Newsom in 2021. The election occurs when a recall petition is circulated in the required jurisdiction to gain signatures. If the required number of signatures is met, it triggers an election to decide if the official will be recalled, and, depending on the office, who will replace them. For countywide elections, the number of required signatures is determined by a percentage of the number of registered voters in that county, with larger counties needing smaller percentages.
First to be examined is the successful campaign against SF DA Boudin. For a successful countywide recall in San Francisco county, a petitioner must collect over 50,000 valid signatures from among San Francisco’s 496,000 registered voters. Supporters of the recall managed to gather more than 80,000 valid signatures ensuring it would go to a vote. The vote ultimately resulted in 122, 000 voting for the recall compared to 100,00 voting to keep Boudin, successfully recalling the DA by more than 20,000 votes and making SF Mayor London Breed pick the next DA.
Next, we examine the failed campaign to recall DA Gascón. For a successful countywide recall in Los Angeles County a petitioner must collect over 570,000 valid signatures from the county’s 5.6 million registered voters. Supporters of the recall fell short by over 50,000 votes when they only managed to get 520,000 valid signatures leaving Gascón safe until he is up for reelection in 2024. This was the second failed attempt to recall Gascón.
In my previous article I pointed out several issues with the way California’s recall elections were set-up particularly at the state level. Now these two recall attempts, despite their different outcomes, offer useful examples of these flaws at the local level. The first and greatest among these is the low bar of signatures needed to trigger a recall election with only 10% needed to trigger a recall election in a county with over 100,000 registered voters. Currently California has over 30 counties with registered voter populations over 100,000 out of 52 total counties. Looking at San Francisco in particular, it is not a great challenge to round up 50,000 voters out of just under 500,000 total. As California Secretary of State Shirley Webber puts it “There’s always 10 to 15% who do not like somebody.”
A second, and broader, critique is the overall effectiveness of recall elections. At the state level, I pointed out how recalling governors was due less to perceived corruption than to external forces they had little control over or internal partisan squabbling. This same issue still holds true at the local level, with the San Francisco and Los Angeles recalls both being marked by similar forces despite their different outcomes. Both cities were on the front lines of the progressive prosecutor movement in California, with Gascón serving as Boudin’s predecessor in SF. Further, both recall attempts emerged as a reaction to a national spike in crime amplified by a series of viral smash and grab robberies. However, the crime spike occurred across the nation during the pandemic regardless of the ‘tough’ or ‘soft’ policies of the county District Attorney and holding a local official solely responsible for a national problem severely undercuts that rationale for a recall. These issues and others with the recall process have been noted by activists and politicians alike and movement is underway to bring a suite of reforms before the voters and the state legislature, which a classmate has written at length about.
A Bipartisan Effort to Change Election Law in South Carolina
January 20, 2023
By Susanna Clark
This past May, the governor of South Carolina signed a new bill into law that made changes to early voting, both in-person and absentee, and election crimes. The bill was a compromise between Republicans and Democrats. After some back and forth between the House and Senate and the two parties, the bill passed unanimously. It should be noted that both the South Carolina House and Senate are controlled by Republicans by a significant margin, 80-43 and 30-16, respectively, so more moderate Republicans may have been standing with Democrats in enacting a less restrictive law—effectively forcing a bipartisan effort. Either way, when compared to other Republican-controlled states, this law appears to be much less restrictive.
Lawmakers have stated that the goal of the bill was to increase election integrity in the state. House Speaker Jay Lucas said the bill would “make it easier to vote and harder to cheat in South Carolina.” The bill was signed into law less than a month before the primary election on June 14, and due to the new early-voting provisions, voters were able to cast their ballots just two weeks after the bill passed. It is unclear whether this created confusion for voters or election officials, since the bill was passed so close to an election; the lack of news reports related to voter confusion caused by the bill suggest that it was not likely an issue. Confusion can likely be avoided by making the new provisions widely available to the public, and ensuring that election officials are properly briefed on the new legislation.
One of the major changes is that an in-person two-week early voting period replaces an in-person absentee voting, which is now done by mail. This means that there is an in-person voting period prior to Election Day and absentee voting by mail for those who cannot vote during the available time. This would operate like Election Day voting–voters can only vote in their respective counties and must bring a form of photo identification This ID requirement dates back to 2013. The hours and locations differ slightly, based on whether it is for a general, primary, or runoff election. Absentee voting is still available, but it is now done through the mail. Requested ballots will be received by mail, but completed ballots can be dropped off in-person to a county election office or mailed in. Voters must meet at least one of the requirements listed in order to receive an absentee ballot and must request an absentee ballot. They are not automatically sent to voters who meet one of the requirements unless they are active military personnel, are disabled, or are over 65. Voters also must be absent from their residence for the entire 12-day early voting period in order to obtain an absentee ballot. The bill also bans ballot drop boxes, which had been proposed in 2020 as a response to the pandemic, but never implemented.
The early voting measures intend to make it easier to vote, but there is also a significant provision intended to enhance election integrity. The bill effectively increases five election law violations to felonies. Punishments include a fine of up to $5,000 and up to five years in prison, which are increased from the punishments before this new law. Some of these violations include fraudulently voting, aiding in fraudulent voting, and requesting or returning more than five absentee ballots in addition to your own. While those convicted of a misdemeanor cannot vote while incarcerated, this measure is significant because those convicted of felonies in South Carolina cannot vote while incarcerated, on probation, or on parole. These punishments do not necessarily make it more difficult to cheat, but they likely deter people from cheating and effectively decrease rates of fraud. Based on an assessment done by Bloomberg News, which takes into account the new law, South Carolina does not score particularly well in the “ease of voting” category, but it does score well in the “ballot security” category, which is the major goal of the bill.
Overall, South Carolina’s new law does not appear overly restrictive, but it definitely is part of a recent trend by states to amend their voting laws in response to the 2020 election, whether by making voting easier, or more difficult, usually depending on which political party is in control. So far, there have not been any legal challenges to the new law, but there has been criticism that it unnecessarily restricts access to voting.
Delegation and Deprivation: The Struggle Over Judicial Reallocation in Alabama
January 18, 2023
By Devin Carter
A fight for racial justice has erupted in Alabama. In July 2022, the American Civil Liberties Union of Alabama (ACLU-AL), alongside the Southern Poverty Law Center (SPLC), filed a lawsuit on behalf of Tiara Hudson challenging the constitutionality of a decision by the Alabama Judicial Resources Allocation Commission (JRAC) to move a judgeship from the racially diverse Jefferson County to the majority-white Madison County. The JRAC’s vote to move the judgeship happened on the heels of Tiara Hudson’s victory in the Democratic primary election for the office. With no opponent in the general election, Hudson was slated to succeed Judge Clyde Jones to the bench. After Hudson’s primary victory but before the general election, Judge Jones announced his immediate retirement, creating a vacancy in the seat that Hudson hoped to fill. But rather than fill the vacancy in Jefferson County, the JRAC decided to exercise powers delegated to it by the Alabama legislature to relocate the judgeship to Madison County, thus depriving Hudson of a judgeship and the people of Jefferson County of a judgeship position.
The JRAC’s vote to move the judgeship was split along racial lines, with exclusively white members voting for the relocation and Black members voting unanimously in opposition. Once the decision was made public, it was met with backlash, as members of the public expressed frustration that a county with a substantial Black population would lose a valuable resource to a majority-white county. The decision also received biting criticism from voting rights advocates, who similarly decried the relocation for depriving the citizens of Jefferson County of fair representation in the judiciary. Hudson released a statement declaring that the rights of people of color to serve their communities must be protected and explained that the sorts of barriers that have been erected to prevent her, and others, from doing so must be eliminated.
Hudson’s words stretch beyond the facts of her own dispute and are applicable to much of the state’s historical voter suppression tactics: the now-unconstitutional Jim Crow-era literacy tests and poll taxes, as well as current controversies such as the state’s voter ID requirement, felony disenfranchisement, and a lack of early voting. These laws have had a disproportionately negative impact on the ability of minority voters to have their political voices heard. This controversy surrounding the transfer of the judgeship could be viewed as a continuation of efforts to dilute the political power of minority voters. Bolstering this view is the fact that, despite the JRAC having possessed the authority to reallocate judgeships since its inception in 2017, it had not exercised this power until now, which stripped a racially mixed jurisdiction of a judgeship shortly before a Black woman was due to fill the seat. In response to these allegations, the JRAC has argued that Jefferson County had an excess of judges, and that the transfer would provide Madison County with a judgeship that it needed.
Hudson’s complaint argued that the power to reallocate vacant judgeships was an unconstitutional delegation of authority from Alabama’s legislature to the commission, and that the governor’s subsequent appointment of a new judge in Madison County was, therefore, unconstitutional. Despite Hudson’s efforts, as well as those of the ACLU-AL and SPLC, an Alabama judge dismissed the case in August 2022. The judge justified the dismissal by claiming that Hudson lacked the standing to sue; the judge further determined that the Alabama legislature had properly delegated its authority when it gave the JRAC the power to reallocate vacant judgeships. Hudson, the ACLU-AL, and SLPC have filed a notice of appeal. ACLU-AL’s legal director, Tish Gotell Faulks, explained that she was seeking clarification regarding the way that judicial resources would be distributed across each of the state’s jurisdictions so that every person in Alabama had access to judges and other legal resources.
As Pandemic Voting Laws Lapse, Connecticut Broadens Absentee Voting Laws – But Not Too Much
January 16, 2023
By Jana Jedrych
When urgency about the spread of Covid-19 began to pick up speed in the early months of 2020, many states scrambled to determine what effect the pandemic would have on voter turnout, which is depressingly low in America at the best of times. Many states made temporary changes to their election laws to allow a drastic expansion in the number of absentee voters in 2020 and 2021, including Connecticut, where—despite usually having some of the most restrictive absentee voting laws—all registered voters had the option to vote by absentee ballot.
But, as with many Covid-caused restrictions that loosened or lifted in 2022, Connecticut’s absentee voting qualifications are returning to a state more similar to their pre-2020 requirements, with some changes indicative of the ongoing considerations of Covid-19. Both restrictions and allowances have been made to absentee voters in Connecticut—possible excuses for absentee voting have been expanded, but provisions that would ensure more effective exercise of absentee voting power have been rejected.
Governor Ned Lamont signed CT H 5262 on April 8th, 2022. The bill expands the excuses a voter can employ to be eligible for absentee voting in a way that reflects the current state of election law post-2020’s pandemic voting challenges. Previously, absentee voting because of sickness was only allowed if the voter applying for the absentee designation was ill. This bill allows for absentee voting in the event of the broader definition of “sickness,” which includes taking care of other sick individuals. Exposure to a disease, even if the individual is not currently sick, also qualifies as “sickness” under this bill. Similarly, the bill also expands the ability of voters to qualify as absentee on the grounds of a disability. Before, only those who personally had a disability were able to vote absentee on the grounds of disability, but in this bill the definition of “disability” as an excuse has been expanded to include being the caregiver of a disabled person, frailty from a medical condition, and limited mobility from old age.
However, CT H 5262 and another recently-passed Connecticut election law bill, CT S 470, included components that limited the eligibility of Connecticut voters to vote absentee. CT H 5262 expands the requirement for unavailability on Election Day; instead of only being unavailable during voting hours on Election Day, voters must now be unavailable for the entirety of Election Day.
CT S 470 was signed into effect on May 10th, 2022 and allowed for the disclosure of unique voter identification numbers, removing them from the list of confidential voter registration information that cannot be disclosed. But the bill previously contained provisions intended to ensure the efficacy of absentee voters’ ballots, and those provisions were amended out of the version of the bill signed by the governor. In an earlier form, the bill outlined procedures that would require local election committees to notify a voter if his absentee ballot had been rejected and educate him on his right to vote in person. The current law does not speak to whether or not a voter has to be notified if his absentee ballot is rejected. The earlier version of the bill also included a provision requiring local election officials to count ballots throughout Election Day instead of at a single time on Election Day, which is what the current law provides for.
Connecticut’s current changes to the requirements for absentee ballots are an interesting look at how election law might be irrevocably changed by the pandemic. In many ways, it’s back to business as usual—the state is not eager to discontinue being one of 17 states that requires an excuse to vote absentee. But broadened definitions of sickness and disability in some ways reflect how attitudes towards sickness have changed as a result of Covid-19. In any case, it could be argued that the usefulness of allowing individuals to vote absentee is dampened when the state refuses to put practices in place to ensure that all absentee voters’ votes count. Not requiring that voters be informed when their absentee ballot is rejected and not requiring that absentee ballots be counted the whole of Election Day means that there are voters who still will not have their voices heard, despite loosened restrictions on who is able to vote absentee.