Virginia’s New Election Integrity Unit and How It Can Learn from the Success, or Lack Thereof, of its Arizona Equivalent
December 2, 2022
By Noble Pearson
On September 9, 2022, Virginia Attorney General Jason Miyares announced the creation of a new Election Integrity Unit (EIU) in the Office of the Attorney General (OAG) to “investigate and prosecute violations of Virginia election law” and “to ensure legality and purity in elections.” This new team, made up of more than 20 attorneys, investigators, and paralegals from the OAG reportedly requires no new funds and aims to increase confidence in Virginia’s elections. While in a vacuum increased election security is desirable, this announcement comes against the backdrop of persistent mistrust of elections, especially from contingents of Republican support, stemming from conspiracy theories surrounding the 2020 presidential election. Democrats in Virginia quickly criticized the move as embracing lies, and Scott Surovell of the Virginia Senate joked that next Miyares would create a “Ghost Busting Unit that will hunt for ghosts and ghouls across the Commonwealth.” Jokes aside, questions remain about how an EIU might function and what, if any, success the people of Virginia can expect. To help answer that question, let us turn our attention to another state, Arizona, which created a similar unit not long ago.
In 2019, the Arizona Legislature appropriated $530,000 to the Arizona Attorney General’s Office to begin an EIU with four full time employees. It was created under similar circumstances to its Virginia counterpart, as it followed 2018 midterm elections that saw major wins for Democrats in Arizona that led then-President Trump to comment that ballots had appeared “out of the wilderness” for Democrat Kyrsten Sinema who beat Trump-endorsed Republican Martha McSally in the U.S. Senate race. Critics claimed the EIU was simply a response by the Republican legislature to Democrat successes and that it was designed to help enforce laws limiting voter participation. The pertinent question for Virginia is, with such a backdrop of partisan disagreement and criticism, has the Arizona EIU been successful in protecting Arizona elections since 2019?
To answer this question, a good place to start is the website for the Arizona OAG, which contains basic information about its EIU, including a link to a full list of AGO criminal prosecutions related to voter fraud since 2010. This list contains thirty-six cases of prosecutions, twenty of which dated 2019 or later. Reasons for these prosecutions vary, from State v. Tracey Kay McKee, which involved illegal mailing of a dead relative’s ballot, to State v. Kenneth Russell Nelson, involving an inmate illegally voting while in Pima County Jail. From a neutral perspective, while there have been some minor cases of voter fraud prosecuted, it is unclear that the Arizona EIU should be considered a success.
Recent critics looking back at the three years of the Arizona EIU suggest that there has been only a minor increase in prosecutions, with sixteen voter fraud cases prosecuted in the six years before the EIU and only twenty prosecuted in the three years since its creation. They point to the fact that after investigating thousands of cases with a renewed focus on voter fraud, only twenty cases have been prosecuted by the OAG in a state of more than four million voters. Supporters, though, point to the fact that the group is fulfilling its mission of supporting a fair election process. But what does this all mean for Virginia?
First, it is clear that Virginia’s EIU is driven by a distrust of elections, particularly in the Republican Party, much like the context that led to Arizona’s EIU. There are differences, though. Arizona’s EIU was legislatively created with its own budget of around $500,000, while the Virginia EIU stems from a decision by AG Miyares and reportedly will require no additional funding. Arizona’s EIU contained only four members, while Virginia’s will be comprised of a group of more than twenty. Without a doubt, questions remain about the implementation of the Virginia EIU. In Arizona, a four-person team managed to prosecute twenty cases in three years on a limited budget; can a bigger team in Virginia that is not receiving any new funding be expected to better that output? Even if it did, are there any discernable benchmarks for success? None seem to have been announced so far. The bottom line from Arizona is that an EIU without measurable goals and only an uncertain vision of making voting fairer has achieved only lackluster results and faint party line support. Regardless of the context behind its creation, the Virginia EIU would do well to learn from the mixed results in Arizona to better enable its own success. Otherwise, Virginia can expect a handful of minor voter fraud prosecutions and no tangible increase in public perception of election security, nothing more.
The Election Debate in the Potato State
November 28, 2022
By Ruth Jones
During the 2022 legislative sessions, Idaho experienced an extensive onslaught of proposed election legislation. In the 2022 legislative session, over 66 election law bills were introduced into the House. For comparison, in the year 2019, only 22 election law bills were introduced. This dramatic increase in proposed election legislation was fueled by growing concern from the state legislature, as well as Idahoans, that elections were not secure and that legislative action was necessary to ensure that the outcomes of elections were accurate and had not been influenced by electoral fraud.
As the Idaho Legislature debated House Bill 761, Representative Dorothy Moon took to the floor, to stress the need to improve the security of Idaho’s elections based on claims that Canadians have been crossing country lines to illegally participate in Idaho’s elections. However, this proposed example of fraud is completely unsubstantiated. The only recorded concerns regarding individuals crossing country lines to vote involved Americans who had left Idaho to enter Canada, and later returned to Idaho to vote. There, the court found that the Idahoans had not given up their registration and were permitted to vote.
Despite the inaccuracy of Moon’s account, her fears were echoed in other legislation. On the floor of Idaho’s House, the need to secure Idaho’s elections was constantly stressed. This is an important goal; however, it lacks that urgency stressed by the legislature as there have been no instances of voting fraud in Idaho since 2017.
Proposed House Bill 549 was also rooted in the desire to increase election security, and would have limited the approved type of IDs that citizens can use to prove their identity at the polls. It proposed to exclude the use of student ID cards. Many voters who have previously used a student ID will likely have an alternative form of photo identification. However, changing the ID requirements would be a major adjustment to the voting process. Despite any communication efforts, there would likely be individuals whose votes would be excluded because they were not aware of the change to approved types of ID and arrived at the polls unprepared.
The security of elections is an essential aspect of protecting the legitimacy of a democracy. If voter fraud frequently occurs, then individuals will not trust the outcome of elections and the system will fall apart. However, focusing on a potential problem that has not occurred can exasperate this situation by perpetuating misconceptions about the validity of electoral results.
The 2022 Idaho legislative docket is a good illustration of challenges that arise when a potentially serious concern is addressed without taking the time to craft a well-tailored approach to election fraud. Proposed House Bill 692 highlighted these fears.
This bill would have prevented individuals from voting if they have P.O. boxes because the law required voting registration forms to be mailed to a voter’s residence, even if they were unable to accept mail at the location. A regulation that prevented the use of P.O boxes would have an immense impact because Idaho is an incredibly rural state. Idahoans who live in these rural areas tend to use P.O. boxes because their houses are too far from the local town to receive mail. The bill would have implemented a requirement that would have excluded many Idahoans who rely on P.O. boxes for no grounded reason. Bill 692 was eventually pulled from the floor house, but it illustrates the danger of implementing legislation before thoroughly evaluating potential consequences.
Despite the efforts of many in the legislature, none of the above bills were enacted. In fact, out of the sixty-six bills that were proposed, only ten were adopted. The ten successful bills were much milder and included:
- House Bill 511 which requires the rotation of names on the ballot to address any perceived advantage that was randomly given through a certain location on the list of candidates;
- House Bill 566 which amends definitions in the Public Integrity in Elections act; and
- Senate Bill 1341 which releases election results while balancing two time zones.
The election regulations that were approved in Idaho’s 2022 legislation session do not implement any major alterations to the voting process, and they are unlikely to cause significant challenges to voting accessibility.
In this regard, Idaho stands as an example. Despite mass panic regarding the security of elections, the legislative process has the potential to filter out half-baked proposals that unnecessarily exclude voters.
North Dakota Considers the Private Right to Action in Redistricting Litigation
November 25, 2022
By Jackson Cherner
The North Dakota legislature, which approved a new legislative map in November of 2021, is facing pushback from Native American tribes over the dilution of their voting rights. In February 2022, members of the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe (as well as individual Native American voters) sued North Dakota’s Secretary of State, Alvin Jaeger, in the U.S. District Court of North Dakota over the state’s map. The tribes claim that the state violated Section 2 of the Voting Rights Act (“VRA”), which protects voters from discrimination on the basis of race, color, or other designation promulgated by law. In its complaint, the tribes stated that the new map “packs” members of the Turtle Mountain Band of Chippewa Indians into subdivided Senate District 9, while it “cracks” members of the Spirit Lake Tribe by placing the majority of their population in Senate District 15. As a remedy, the tribes propose creating a single district compromising a geographic majority of their communities.
Secretary of State Jaeger filed a memorandum in April of 2021, which challenges multiple responses to the tribes ability to raise claims under Section 2. Jaeger questioned the validity of the tribes standing to bring the claims in front of the federal court without particularized injury and in uncertainty regarding tribe members’ status as U.S. citizens. Additionally, Jaeger questioned the tribes’ right to private action under the VRA itself. Jaeger’s memo claims that a private right to action is not recognized by federal courts. In Brnovich v. Democratic Nat’l Comm., Justice Gorsuch’s concurring opinion finds that the Supreme Court has not decided on the issue, and instead defers to the decisions of lower courts to decide the right to action under Section 2. Based on this concurrence, the state believes an order issued by the Eastern District of Arkansas in Ark. State Conf. NAACP v. Ark. Bd. of Apportionment resolves the issue. This court found that Section 2 was silent on the right to action, and other sections of the VRA required claims to be brought by the Attorney General of the United States. This court also reflected on a string of recent Supreme Court precedent that rejected any implied right to action in challenging federal law.
The tribes have issued their own response to Jaeger’s claims, which has been mirrored in part by the U.S. Department of Justice’s amicus brief in support of the tribes and their private right to action under Section 2. The tribes’ response recognizes an alternative solution available to plaintiffs—Section 1983 of the Civil Rights Act of 1871. This section allows individuals to seek recovery against state actors for violating federal civil rights. Since Section 2 does not explicitly or implicitly prohibit private enforcement under this federal statute, the state would bear the burden of proving an exclusionary principle.
Additionally, both the tribes and the Justice Department recognize that binding Supreme Court precedent protects the rights of private plaintiffs under Section 2. Specifically, in Morse v. Republican Party of Virginia, the court held that a private individual has the right to raise claims without the Attorney General under Section 2 of the VRA, relying on precedent in Allen v. State Board of Elections, which authorized enforcement of private claims under other sections of the law. The Court in Morsefound that private individuals could challenge a state’s requirement for candidates to pay a registration fee under Section 10, based on Congress’s intent to effectively protect the right to vote as well as reduce the litigation burden on the Attorney General. This intent extended to Section 2, which carries an implied right to action against discriminatory activities. This implied right is also supported by an Eighth Circuit case, which binds lower courts in North Dakota.
The parties did not receive relief in the June election and are not expected to receive relief in the upcoming November election. However, in July, the tribes won a necessary decision in the District Court when a North Dakota federal judge denied Secretary Jaeger’s motion to dismiss the suit, stating that the tribes can bring claims under Section 2 of the VRA. Chief U.S. District Judge Peter D. Welte, in his ruling, referenced the ability of private organizations, such as the NAACP, to sue on behalf of its members, and does not see any difference concerning tribes recognized by the federal government. Now, the stage is set for the court to rule on the constitutionality of North Dakota’s redistricting, and whether the tribes were deprived of their right to choose their preferred candidates.
The Beholden State: Weighing When Democracy Matters in the Golden State
November 21, 2022
By Ram Reddy
California—to many—is the shining beacon of what it means to be a progressive, Blue State. Just as Texan politicians and voters tend to take pride in their depiction in popular media as a deep Red State, Californian politicians are beholden to putting up a persona of deep Blue, going so far as to run ads about their values in rival red states.
California has led the charge in introducing and/or passing sweeping new bills about voter registration and vote by mail laws, in an effort to increase turnout in the state that has abysmally low turnout. Cynics saw this as a tactic by state Democrats to increase minority turnout due to the threat some progressive politicians have faced in backlash to crime waves. But whatever the intention, the state is putting its money where its mouth is when it comes to making democracy more accessible and accountable to citizens…except in the area of recalls.
Approaches to popular sovereignty and democracy in California seem to come down to party lines because, though recalls remain broadly popular across party lines, the targets for recalls tend to be Democrats. Recalls empower minority parties in a state where Democrats hold veto-proof supermajorities at almost every level. Calls for making reforming recalls and perhaps making them less effective are making the rounds as bills in Sacramento. The Golden State enjoys one of the lowest thresholds for recalls of all western states, and its voters have successfully recalled a governor and various state officials—most recently DA Chesa Boudin. As a result, many Democratic policy makers in Sacramento are calling for a fleet of sweeping new reforms from raising the signature threshold, to constitutional amendments to mandate a cause for recall, or eliminate the recall altogether. While most of these measures are not groundbreaking in the state’s political discourse, there are newer and more controversial measures including preventing local offices where the holder is removed from being filled until the next election and forcing state wide offices subject to recall to remain vacant until the next election or a special election where the recalled officer would still be treated as an incumbent. Opponents see these attempts at leaving the offices empty as efforts to further solidify Democratic Party control over the state, as the supermajority with a vacant governor’s seat merely means what few bills would be vetoed now cannot be vetoed.
Proponents of the recall reform measures point to the blowout victories of Los Angeles County DA George Gascón and Governor Gavin Newsom and have tried to paint reform as popular amongst the state’s Democratic majority. While generic questions about recall reform tend to poll around 50%, specific reforms fail to garner majority support even amongst Democrats in most polls aside from one conducted by UC Berkeley.
Republicans have weaponized these efforts as attempts by state Democrats to further cement control over opposition, and they’re using voters’ complaints over rising crime and financial woes to do so. They point to what they claim are the state’s lax policy towards verification of absentee ballots and registration drives and the efforts to nitpick and toss out recall signatures to keep measures from the ballot—though opponents of these recall efforts point to the poorly run recall campaigns as the reason for these failures.
The battle over recalls will continue to loom in the Golden State and efforts to change the process shall grow. Even though statewide recalls of officials like Gov. Newsom might have failed, more and more local offices are being targeted, perhaps galvanized by the successful recalls of Chesa Boudin and a trio of school board officials in San Francisco. LA County DA George Gascón is likely to face a third recall in the coming year. For better or for worse, recalls will continue to be in the spotlight in California, as will the juxtaposition of efforts by state legislators and politicians to promote democracy while cutting down on threats to their incumbency.
Alabama, Amendment 4, and the 2020 Election
November 18, 2022
By Devin Carter
On November 8, the state of Alabama asked voters to consider an amendment to its constitution, which the state hopes will protect the integrity of its elections. The amendment in question, known as Amendment 4, would require any changes to the state’s election laws to be enacted at least six months prior to the next election in order for those changes to apply. Amendment 4 was proposed in response to the 2020 presidential elections, which were rife with controversy from the numerous changes to election law and procedure that took effect shortly before voters took to the polls.
According to State Representative Jim Carns (R), the proposed amendment is designed to ensure that the general public can have greater confidence in the integrity of the state’s election system. According to Carns, this sort of measure would favor the state’s minority party, because it would prevent the majority party from altering election rules in their favor in the time immediately preceding an election. Despite Carns’s enthusiasm, other state officials are more skeptical about Amendment 4. Representative Ralph Howard (D), for example, argued against the proposed amendment in the Alabama House of Representatives by claiming that it would limit the state’s ability to modify its election laws in the event of a second pandemic. Another representative, Mary Moore (D), argued that the proposed amendment was one of the numerous bills Republican-controlled states have been attempting to pass following their defeat in the 2020 presidential election, expressing skepticism towards Carns’s claim that the amendment would favor the minority Democratic Party instead of Alabama’s Republican majority.
The underlying rationale of Amendment 4 can be traced back to the Purcell principle, which amounts to an argument that courts should refrain from changing election rules during the time that immediately precedes an election. Federal courts have relied on the Purcell principle when they have stayed decisions made by lower courts, which would have otherwise changed a state’s election laws and procedures shortly before an election.
The 2020 election was rife with Purcell concerns, particularly after multiple states changed their election laws in response to the COVID-19 pandemic. Twenty-nine states ultimately took measures that expanded voting access in the 2020 election, including the expansion of mail-in voting access and early voting. Many of these changes were implemented through executive orders and local election official action, believed to be justified as necessary due to the nationwide pandemic.
There was subsequently a significant amount of litigation targeting these eleventh hour changes to election procedures; one of the more pervasive arguments against those changes was that they usurped the authority of the state legislature to set the manner of elections. Following his defeat, former president Donald Trump filed numerous election challenges that asserted that the 2020 election was fraudulent, using many of the last-minute changes to support his argument. Despite there being no evidence of widespread fraud in the 2020 elections, many Republicans echoed Trump’s rhetoric.
Thus, while Alabama’s proposed amendment might have originated from a sincere desire to strengthen and uphold public confidence in the state’s election outcomes, it is also possible that this amendment would be used to ensure that the Republican Party of Alabama can keep a stranglehold on the electoral system and hold onto the levers of power in the state. Alabama Democrats expressed these concerns when they voiced opposition to the amendment. Regardless of the ultimate motive behind the amendment, there is little doubt that the proposed change to Alabama’s election law is a direct result of the immense tensions that arose from the 2020 election, which continue to cast a long shadow over the country’s electoral systems.
Arizona Proposition 309 puts more stringent voter ID and mail-in requirements on ballot
November 7, 2022
By Sarah Bradley
Proposition 309, the “Arizonans for Voter ID Act,” is on the ballot this November. Proposition 309 includes provisions that would affect the state’s voter identification laws and add additional requirements to mail-in voting affidavits. Proponents have stated that it will increase election security, while opponents have expressed worry about its effect on voter participation.
Arizona has allowed no-excuse mail-in voting since 1991, and—until recently—it has had significant bipartisan support. In 2007, the state legislature created the Permanent Early Voting List, which automatically sends a mail-in ballot for every election to every voter who opted in. 75% of Arizona voters are currently on the list. Early voting by mail is the most popular way to vote in Arizona, regularly used by more than 80% of Arizona voters. However, in the aftermath of the 2020 election, there has been a significant push to restrict, or even eliminate, mail-in voting in the state.
Proposition 309 adds additional requirements to the affidavit that mail-in voters must submit with their ballots. The affidavit would require the voter to provide an “early voter identification” number, their date of birth, and their signature. The early voter ID number can be (a) the voter’s driver’s license or nonoperating license ID number, (b) the last four digits of the voter’s social security number, or (c) the voter’s ID number from the statewide voter registration database. Current law only requires the individual to sign the affidavit. Election officials are currently required to confirm the signature and contact the voter regarding any inconsistencies. Proposition 309 would further require confirmation of the early voter ID number and date of birth.
Supporters of Proposition 309’s mail-in voting measures state that the current signature-only requirement is a critical vulnerability in the state’s mail-in voting system, and that the new addition creates parity between in-person and mail-in voters. They argue that the current system is overly permissive, allowing ballot harvesting and trafficking.
Detractors of the mail-in voting measures criticize them as being an invasion of privacy that would eliminate votes and drastically increase the time needed to verify ballots. They point out that the early voter ID number requirement prevents the ability to vote anonymously by linking the individual to their ballot, and that providing personal information increases opportunities for identity theft. Critics also highlight the likelihood that a high number of ballots would be discarded when returned without a completed affidavit, comparing Proposition 309 to a similar Texas law that caused about 13% of ballots—nearly 23,000 votes—to be thrown out in the state’s primary election earlier this year.
The Arizona Advisor Committee to the U.S. Commission on Civil Rights has previously criticized the state’s current in-person voter ID requirements for being unnecessarily restrictive, but Proposition 309 would tighten the laws even further. The current law requires voters to present either a photo ID that includes their name and address, or a combination of two alternate forms of identification without photos, such as utility or credit card bills. Proposition 309 would require all in-person voters to present a photo ID in the form of an Arizona driver’s license or nonoperating identification license, a tribal enrollment card or other form of tribal identification issued by a tribal government, or a US government-issued ID—removing the provision that currently allows voters to present any state or local government-issued photo ID, such as municipal or student IDs, that include the voter’s name, photo, and address. The name and address of the voter on the ID must match the name and address in the voting precinct register. If the address on the photo ID does not match, or if the ID is a US military ID card or a valid passport without an address, the voter must also present an additional document containing the name and address of the voter.
Supporters of the additional photo ID restrictions argue that photo identification is already required in daily life, calling it a commonsense measure that would increase voter confidence. They have also pointed to the provision in the bill that allows a fee waiver for individuals obtaining a nonoperating license to meet photo ID requirements as proof that the requirement will not be overly burdensome.
Critics have stated that the ID requirements in place are already satisfactory, and that Proposition 309’s photo ID requirement only limits access to marginalized communities. Strict voter ID laws have been shown to impede millions of eligible voters nationally from accessing the polls, with a disproportionate impact on minorities, senior citizens, people with disabilities, low-income voters, and students.
Supporters include all Arizona Republican lawmakers, Heritage Action (an affiliate of the Heritage Foundation), the Arizona Free Enterprise Club, and the Republican Liberty Caucus of Arizona.
The Arizona County Recorders have opposed Proposition 309, calling it a solution in search of a problem. Other opponents include the Arizona Education Association, the League of Women Voters of Arizona, and the Alliance of Arizona Nonprofits, which represents more than 1,100 nonprofit organizations.
Early Voting is Thriving in Virginia’s 2022 Midterms
November 4, 2022
By Noble Pearson
Over the past several years, Virginia has expanded early voting in the state with new legislation. In April 2020, former Governor Ralph Northam signed HB1/SB111 into law, which allows any registered voter to vote up to forty-five days prior to an election by absentee ballot in any election in which that person is qualified to vote with no excuse required. On that same day, Northam also signed HB238/SB455, which allows absentee ballots to be counted if they are postmarked on or before the day of an election and are received by the general registrar by noon on the third day after the election. The next year, in March of 2021, Northam signed HB1968 into law, which permits local election boards to offer absentee voting in person on Sundays during the early voting period leading up to an election. Before these changes, voting by absentee ballot had been restricted to voters meeting specific requirements, such as being an out-of-area student or a member of the armed forces residing temporarily out-of-state. The 2020 and 2021 changes thus expanded access for Virginia voters regarding early voting, particularly in response to the Covid-19 pandemic.
Since the passage of these new laws expanding early voting, Virginia has held two elections with extremely high turnout in 2020 and 2021. 2020 saw a contentious presidential election, and 2021 included statewide contests for Governor, Lieutenant Governor, and General Assembly seats. We are now approaching the first midterm election since the new laws referenced above have been passed. There are no state elections on the ballot this time, and only a handful of competitive races for U.S. Congress, but turnout is still expected to be high. Some are suggesting that deep political divisions in the state concerning topics such as the economy, abortion, and Donald Trump will motivate increased voter participation in this election, especially early participation.
While, at the time of writing, we are still two weeks away from election day itself, high numbers of early voters are making news around the Commonwealth. In the 2018 midterm election, the last midterm election before the new laws went into effect, the grand total of early voters was around 345,000. As of October 19, 2022, more than 302,000 votershad already voted early, with nearly three weeks remaining. Suffolk General Registrar Burdette Lawrence claims that Suffolk has received near-presidential race levels of early votes. Reports from around the state, including Roanoke, Richmond, and Prince William County, indicate that early voting is taking place at significant levels. With increased access and strong political motivation, the popularity of early voting and voting by mail seem to be rising.
With many challenges remaining for election officials, there is also hope that early voting provides an avenue to mitigate other election concerns. Experts are bracing for map-based confusion in this election, as the voting maps in Virginia have changed following post-census redistricting. Additionally, there have been recent reports of printing errors wreaking havoc in northern Virginia, with election officials in Fairfax and Prince William counties reporting that over 31,000 voters received documents indicating incorrect polling locations. The good news is that early voting may help alleviate some of these issues, as county election officials have recommended early voting as a possible way to proactively avoid confusion regarding polling location on election day.
The November 2022 midterm election in Virginia is yet to be complete, but it is clear that Virginia’s recent legal changes to expand access to early voting are leading to increased voter turnout. With the voting numbers already closing in on those of the previous midterm in 2018, all expectations are that there will be a noted increase in midterm voter turnout this election. Prince William County registrar Eric Olsen has said that the state should expect to see even more early voting in the remaining days before the election, with voters often procrastinating until the last few days before the election to cast an early vote.
It is easy to see why expanded early voting is so popular. Early voting is safer, easier, and more accessible than ever before, and may well lead to enhanced civic engagement. In a time of contentious politics and heightened division, voting is increasingly important to members of both political parties. In fact, support in Virginia for early voting has been largely bipartisan, with Republican Governor Glenn Youngkin’s embrace of early voting playing a part in his 2021 election. Politics aside, the ability to vote is a fundamental part of American civil life. As Virginia is demonstrating, expanded access to voting results in expanded interest in voting, which is good for democratic participation. Long may it continue.
An Impossible Choice: Large Scale Voter Suppression v. Risking Criminal Prosecution
October 31, 2022
By Katie Kitchen
While literacy tests are no longer formally part of the U.S. election process, numerous laws, including a decades old law in Missouri, still result in similar forms of voter suppression. This law, Mo. Rev. Stat. § 115.44.3, has been in effect since 1977 and states, “No person, other than election judges and members of such voters’ immediate families, shall assist more than one voter at one election.” While this single sentence may seem like a small detail in terms of election procedure, in practice, some argue the law infringes on the rights of limited English proficient individuals and people with disabilities to vote.
One such person is Susana Elizarraraz’s mom. Elizarraraz’s mom is deaf, limited English proficient, and relies on Elizarraraz’s assistance to cast her ballot in each election. When Elizarraraz had to go out of town for work during an April 2022 election, her mother was unable to vote, as there was no one available to assist her due to the limitations of Missouri’s Single-Voter Assistance Restriction.
A group of Plaintiffs are currently challenging Mo. Rev. Stat. § 115.44.3 in Missouri Protection & Advocacy Services v. Ashcroft. The Plaintiffs in this matter are Missouri Protection and Advocacy Services (Mo P&A), VozKC, and three individuals who have been directly impacted by Missouri’s Single-Voter Assistance Restriction. One of those individuals is Susana Elizarraraz. Mo P&A is a non-profit public interest law firm focused on protecting the rights of individuals with disabilities. VozKC is a volunteer organization that advocates for Latino communities and works with limited English proficient populations.
In the Complaint, filed June 22, 2022, the Plaintiffs assert that Mo. Rev. Stat. § 115.44.3 violates § 208 of the Voting Rights Act (VRA) and the Supremacy Clause of the United States. Section 208 of the VRA states, “Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice.” Therefore, the Plaintiffs argue that the limitation included in Mo. Rev. Stat. § 115.44.3 hinders the ability of voters who require assistance to choose the individual who assists them, which can lead to an inability to exercise the right to vote entirely. Additionally, because Mo. Rev. Stat. § 115.44.3 is a state law that may infringe upon the VRA (a federal law), the Plaintiffs assert that it violates the Supremacy Clause, which generally states that federal law is the “supreme law of the land”.
The Plaintiffs make many compelling arguments regarding why challenging an election law from 1977 is prudent today. One reason is that the Latino population grew by nearly 50% across the St. Louis region since 2010, but Missouri does not offer election materials in languages other than English. Additionally, approximately 18.6% of Missouri’s eligible voting population are individuals with disabilities who are projected to be eligible to vote in Missouri in 2020. Thus, voter assistance for populations of limited English proficient voters and voters with disabilities in Missouri has become even more critical as the population changes. The non-profit communities are unable to have one volunteer for every individual who may need assistance, which is what would be required to abide by Mo. Rev. Stat. § 115.44.3. The Plaintiffs describe this situation as a choice between large groups of people being unable to exercise their right to vote versus having individuals risk criminal prosecution by violating the Missouri’s Single-Voter Assistance Restriction. What may seem like a small procedural matter can impact the ability of entire groups of minority populations to exercise their right to vote, which has concerning ramifications for democracy as a whole.
I will delve into the Answers filed by the Defendants as well as the Statement of Interest filed by the Department of Justice in future posts. From a brief glance, issues such as whether there is a private remedy to enforce § 208 of the VRA are likely to be raised. Additionally, it is worth noting that there is similar litigation in Arkansas challenging a law that prohibits individuals from assisting more than six voters in casting a ballot each election. As the cases progress, it will be interesting to see whether courts will invalidate all limitations to § 208, or if they will determine an acceptable threshold of how many voters it is reasonable for one person to assist within the boundaries of the VRA. This distinction may be a determining factor in the equitable ability of individuals with disabilities and/or limited English proficiency to exercise their right to vote.
What on Earth is Going on with Florida? Explaining the Purcell Principle and Ongoing Litigation Over SB 90
October 28, 2022
By Emily Baker
There has been significant news coverage on court proceedings covering Florida state election law. Recent articles include titles such as “Florida appeals court questions ruling on elections law” and “An appeals court questions a ruling against parts of Florida’s election law.” The main questions are, what happened and what do these reports mean?
Starting from the beginning: Florida’s Senate Bill 90 was signed by Governor Ron DeSantis, live on Fox News, on May 6th, 2021. It received immense criticism, because its effect would generally make it more difficult to vote by mail. The bill was immediately challenged by multiple sets of plaintiffs—the Harriet Tubman Freedom Fighters, the League of Women Voters, the Florida NAACP, and Florida Rising Together—each bringing slightly different claims. The lawsuits were consolidated into one case by the district court, challenging three colorable issues:
- A provision regulating the use of drop boxes for collecting ballots criminalized dropping off more than two ballots besides those from immediate family members and required monitoring by election personnel. As a result, access to drop boxes was limited to posted hours of operation.
- The Registration-Delivery Provision requires third-party voter-registration organizations to deliver voter-registration applications to the county where an applicant resides within fourteen days, and the Registration-Disclaimer Provision specifies information that third-party voter-registration organizations must provide to would-be registrants. Third-party voter-registration organizations can be fined up to $50,000 per year for violating either of these provisions, a stark increase from the previous $1,000 limit per year.
- The Solicitation Provision prohibits the solicitation of voters within 150 feet of a drop box or polling place.
Plaintiffs argued that each of these provisions discriminated against voters on the basis of race, in violation of the Fourteenth and Fifteenth Amendments and Section 2 of the Voting Rights Act; specifically that the Registration-Disclaimer Provision compelled speech in violation of the First Amendment and that the Solicitation Provision was unconstitutionally vague or overbroad in Violation of the First and Fourteenth Amendments.
Focusing on the racial discrimination, the lower court held that SB 90 “runs roughshod over the right to vote, unnecessarily making voting harder for all eligible Floridians, unduly burdening disabled voters, and intentionally targeting minority voters—all to improve the electoral prospects of the party in power.” The court found that the challenged provisions were unconstitutional and unenforceable because they limited access to the ballot. For example, people frequently help elderly voters by dropping off their ballots for them and is a common practice in church groups. Additionally, the limited accessibility to ballot drop boxes can favor white-collar voters who have greater flexibility in their jobs. In consequence, the District Court placed the state of Florida on preclearance for ten years, which means that the state would have to seek federal approval to “preclear” any attempt to pass new laws specifically related to drop boxes, line-warming (a commonly employed practice of giving out food and water to voters waiting in line), and voter registration organization activities.
The 11th Circuit Court of Appeals, however, “stayed” the district court’s injunction in May of 2022 on the basis of the “Purcell principle,” which is the idea that courts should not change election rules on the eve of an election because doing so could confuse voters and create problems for officials administering the election. The 11th Circuit employed the principle here, because the lower court’s injunction implicated voter registration, which was currently underway, and required the state to retain poll workers when the next statewide election was nearly four months away.
In addition, the 11th Circuit took issue with the district court’s analysis of the historical background and its conclusion that “Florida has a grotesque history of racial discrimination.” The district court supported the conclusion by the recounting of several acts of violence against Black voters in Florida, notably the massacre of more than thirty Black Floridians on Election Day after a Black voter went to the polls in 1920. The 11th Circuit’s holding was in part based on the principle that “old, outdated intentions of previous generations” should not “taint [a state’s] legislative action forevermore on certain topics” and that the district court ruling failed to take into account the presumption of legislative good faith.
While critical, this was only a temporary stay pending appeal. These new headlines, while flashy, only address questions judges asked in the oral argument and not the merits or the 11th Circuit’s final decision. SB 90 will be in effect (at least) until the 2022 midterm elections are over, likely making it more difficult for many Floridians to vote by mail.
On the Eve of Merrill v. Milligan, a Voting Rights Act Section 2 Case to Watch in Georgia
October 24, 2022
By Rebecca Stekol
Uncertainty clouds the future of the Voting Rights Act Section 2 due to the upcoming vote dilution case before the Supreme Court in October 2022, Merrill v. Milligan. Some worry that the Supreme Court will embrace Alabama’s argument “regarding race-neutral principles in redistricting” and render Section 2 vote dilution claims much more difficult. In the meantime, however, Georgia faces its own Section 2 litigation in Rose v. Raffensperger. The docket already tells a convoluted tale. In the broader context of Georgia’s polarized election climate following the 2020 election, including the passage of the controversial Senate Bill 202 enacted in 2021, the outcome of this case has the potential to fuel more controversy or foreshadow the future of election administration in the state.
The crux of Rose v. Raffensperger is a challenge to the at-large method of electing members of Georgia’s Public Service Commission. The Commission has “exclusive power” to decide fair and reasonable rates for services under its jurisdiction,” including services stemming from the electricity, natural gas and telecommunications industries. Commissioners have been chosen by statewide election since 1906; although elected at large, Commissioners are required to reside in one of five Public Service Commission districts. In their complaint, Plaintiffs contended that “staggered terms, a majority-vote requirement, and unusually large voting districts” enhance the opportunity for discrimination against Black voters. Their main claim is that the at-large method of electing members of the PSC dilutes Black voting strength because the percentage of districts in which Black voters constitute an effective majority is less than the percentage of Georgia’s Black voting-age population. According to the plaintiffs, the results don’t lie: in Georgia’s history, there have only been two Black public service commissioners, and they were appointed by the governor to fill vacancies before being elected.
The District Court addressed what it described as a “novel question” of whether there can be vote dilution when the challenged election is held on a statewide basis. On August 5, 2022, Judge Grimberg held that “this method of election unlawfully dilutes the votes of Black citizens under Section 2 of the Voting Rights Act,” permanently enjoining Secretary Raffensperger from preparing ballots for the November 8, 2022 election that include contests for PSC Districts 2 and 3 and from administering any future elections using the statewide, at-large method. He noted that “while delaying elections … until a later date will regrettably cause disruption to the candidates currently running for those offices, the court does not find that such disruption outweighs the important VRA interests that are implicated.”
As is usually the case for contentious Voting Rights Act issues, the tale did not end there. Secretary Raffensperger moved for a stay pending appeal of the district court’s order, which the Eleventh Circuit granted on August 12. The Court heldthat the district court’s order violated Purcell v. Gonzalez and its progeny, which prohibits district courts from altering the election rules in the period close to an election. The Court concluded that the district court’s issuing of the permanent injunction about three months before the election is “sufficiently close at hand” under recent precedent articulated in League of Women Voters of Florida v. Florida Secretary of State. In addition, the Court noted that postponing the elections for Districts 2 and 3 and keeping the existing Commissioners as “holdovers” until single-member voting is implemented “fundamentally alters the nature” of the upcoming elections under RNC v. DNC.
On August 19, the Supreme Court issued a one-paragraph order reversing the Eleventh Circuit’s judgment and vacating the stay. According to Wiley Rein’s Jeremy Broggi, three points can be drawn from the Court’s reasoning. First, the Supreme Court may agree that a Purcell defense is waivable. Secretary Raffensperger waived a Purcell-based appeal, but the Eleventh Circuit still applied it. Second, the Supreme Court declined to apply Purcell “mechanistically” like the Eleventh Circuit did when it applied Purcell because the election was three months away. Third, the Supreme Court focused on equitable considerations, indicating that Purcell is a “rule of reason reflecting concerns about the potentially disruptive consequences of judicial tinkering with election rules.” For instance, the record as it stands contains no evidence that the injunction would cause voter confusion, calling the necessity of a stay into question. Therefore, the Supreme Court directed the Eleventh Circuit to reconsider whether the stay is appropriate “subject to sound equitable discretion.” That is where the tale ends, for now.
The reactions to the ongoing litigation have been mixed. On one hand, James Woodall, the President of the Georgia NAACP, stated that it is imperative for state regulators to “better address the racial inequity of Black households paying a significantly higher percentage of their income on utilities.” Having more Black-supported Commissioners would change “the way deliberations are had.” However, the state’s attorney Bryan Tyson has stated that socioeconomic factors such as household income are more significant factors in how spending decisions are made than race, and that “political partisanship better explains the pattern of voting dilution” than race does. Moreover, some believe that putting two PSC elections in limbo creates uncertainty and frustration for candidates and voters alike; such a prolonged legal affair might even discourage voter turnout, writes local journalist Marc Hyden.
Of course, at the backdrop to this twisted tale of litigation is how the potential gutting of Section 2 after Merrill v. Milligan will shape claims like these. For now, we are at a cliffhanger as we await more Supreme Court decisions.