The Issue of Issue 2

January 9, 2023

By Anna Rhoads

In 2019, the village of Yellow Springs, Ohio, voted to make a small change. That year, Yellow Springs’ 3,800 residents voted on a referendum to allow the tiny minority of the village’s 170 foreign-born residents who were still noncitizens to vote for local offices. The referendum passed with fifty-nine percent of the vote, setting off a chain reaction resulting in a new initiative to amend the state constitution that Ohioans will see on the ballot this November.

Largely in response to the Yellow Springs referendum and its success, Republican Representatives Jay Edwards and Bill Seitz sponsored H.J.R. 4, a joint resolution to amend Section 1 of Article V, Section III of Article X, and Section III of Article XVIII of Ohio’s constitution. Sponsors introduced the joint resolution on May 17th, and by the end of the month, it passed in the House and came to the Ohio Senate as S.J.R. 6. By June, the joint resolution passed in the Senate, too, becoming ballot initiative Issue 2. Issue 2’s certified ballot language describes the measure as amending the state constitution “to prohibit local government from allowing non-electors to vote.” In practical terms, these amendments would prevent local governments from allowing noncitizens who are legal permanent residents in Ohio to vote in local elections.

Issue 2’s proponents include Republican lawmakers. The initiative’s supporters argue that the proposed amendments would proactively ensure the clarity of election law in Ohio. Supporters see the initiative as a preventative measure that would avoid policies that have passed in cities in Left-leaning states, like in New York where recent measures allowed noncitizen legal permanent residents to vote locally. They contend that although Ohio and federal law prevent noncitizens from voting, there is a risk that localities will be able to allow noncitizens to vote locally, using the state constitution’s “home rule,” which gives localities ultimate control over local affairs. Supporters, including Ohio Secretary of State Frank LaRose, note that letting noncitizens vote locally could increase administrative burdens. More fundamentally, the initiative’s proponents view American elections as solely for American citizens and believe that allowing noncitizen residents to participate even locally would undermine fundamental American values.

However, Issue 2’s opponents, including the Ohio ACLU, Yellow Springs officials, Ohio’s Democratic lawmakers, and the Ohio Environmental Council Action Fund, take issue with the initiative for several reasons. Issue 2’s opponents note that federal and Ohio law already make citizenship a prerequisite to being eligible to vote and that home rule does not give localities carte blanche to draft laws in conflict with federal and Ohio law. In fact, although Yellow Springs voted to allow noncitizens to vote in local elections, citing home rule as allowing them to make this change, no noncitizens have voted in Yellow Springs (or any other Ohio locality, for that matter) because Secretary LaRose “ordered officials to table the measure.” Secretary LaRose has sent criminal referrals to noncitizens who have allegedly registered to vote, and noncitizens who fail to cancel their registration after a second notice can face felony charges. As such, opponents argue that the initiative is unnecessary and does not serve the prophylactic purposes Republican lawmakers claim. Opponents argue that instead, Republican lawmakers are using the initiative to signal to “Replacement Theory” and “Big Lie” adherents that their violently xenophobic views have merit. As such, opponents view the initiative as a purely political move that “can only add fuel to the wave of fanatical xenophobia.” Opponents argue that this political move is also designed to gin up a wave of Republican voter turnout in November when a United States Senate seat, all five statewide offices, the General Assembly, and control of the Ohio Supreme Court will be up for grabs. Additionally, Issue 2’s opponents say that the initiative’s amendments will change the state constitution’s provisions from a grant of voting rights to a restriction on voting rights. Thus, the initiative stealthily threatens the General Assembly’s power to liberalize voter registration requirements by permitting those who have registered less than thirty days before an election to vote as well as current laws allowing seventeen-year-olds to vote in primaries if they will be eighteen by the general election.

Changing Ohio’s voting laws has been a project of Ohio’s Republican lawmakers since 2020, and Issue 2 continues this trend. However, with measures to allow noncitizen residents to vote locally proving popular in other states and some of Ohio’s cities, Republicans may need more than a Red wave in November to pass this initiative.

Opinion: Wyoming Secretary of State Nominee Chuck Gray Wants Residents to Cowboy Up and Vote in Person

January 2, 2023

By Hunter Hoffler

Wyoming Republican Chuck Gray, the recent Republican nominee for Wyoming Secretary of State, claims that he intends to make significant changes when he arrives in the State’s capital of Cheyenne. Like many Trump-backed candidates, Gray believes the 2020 presidential election was fraudulent and fears his State is rife with voter fraud as well.

Gray ran on the promise that he would curtail voter fraud despite only three convicted cases of voter fraud in Wyoming since the year 2000. To combat this issue, Gray has openly stated that he wants to ban ballot drop boxes in his State, instead opting for the traditional practice of collecting “all paper ballots.” The presumed Secretary-elect would prefer in-person, paper-ballot voting. In Gray’s words, “The fact that a few counties have moved off of paper ballots . . . is really wrong.”

Despite a heavily Republican constituency in Wyoming, Gray asserts that local elections can still become compromised through nefarious ballot collection practices. As a result, Gray’s campaign for Wyoming Secretary of State fixated on improving election integrity and demonstrating the likely impacts of voter fraud. Hoping to impact his constituency, Gray repeatedly aired the controversial and critically ridiculed documentary “2000 Mules” by Dinesh D’Souza at his campaign stops.

The question remains: what authority will Gray have to implement his election integrity agenda? While in the state legislature, Gray also campaigned on, and promulgated bills to, improve election integrity. In 2021, Gray and his colleagues passed Wyoming’s Voter ID Law, which required residents to possess a valid state or federal form of identification to vote in person. Fortunately for those who oppose Gray’s agenda as Secretary of State, he alone will not be able to implement radical change to Wyoming’s voting procedures. In fact, within the scope of voting and voter registration, the Wyoming Secretary of State’s duties are relegated mainly to the administration and oversight of elections. In other words, to implement sweeping changes to the way Wyoming residents can vote, Gray will need to go through the State’s legislature and adhere to federal voting regulations.

The more immediate concern (should Gray be sworn in as Wyoming’s Secretary of State) is staff turnover in the Secretary of State’s office, particularly amongst those experienced in administering elections. Reducing the collective experience of the group administering elections could lead to trouble in upcoming state and federal election cycles should a hitch in the process occur. To date, one official has vacated her position based on concerns over Gray’s views.

The nation’s voters are broadly divided along party lines regarding the ratification of election security legislation – which is generally a priority of registered Republicans – or election openness legislation – which is usually a priority of registered Democrats. However, Wyoming legislators on both sides of the aisle are concerned enough with Gray’s positions on the 2020 Presidential election and Wyoming election security to propose legislation that would strip his soon-to-be office of its duties to oversee elections.

Opponents of Gray’s proposals fear that the growing number of local and federal candidates running on platforms of election insecurity may spread fear that the election process is flawed. Mistrust in the election system may, in turn, lead to uncertainty, harassment, and lack of participation at the polls.

What is clear is that there should be a bipartisan coalition that works to ensure elections are safe for the people of Wyoming. What remains to be seen is whether Chuck Gray and his principles will be part of that conversation.

Accessibility vs. Security: Online Voting in Puerto Rico

December 30, 2022

By Shannon Schmidt

While the United States’ partisan battle between election accessibility and election security continues to rage, one US territory has quietly set in motion a plan that places the latter at risk to the benefit of the former.

In the spring of 2020, the Senate of Puerto Rico passed Senate Project 1314, a bill that would reform the territory’s electoral code. The bill contained an online voting plan which would call for the Puerto Rico State Commission on Elections to create an internet voting program accessible to all Puerto Rican voters by the 2024 gubernatorial election. Under the plan, Puerto Rico’s election commission would later be called to consider implementing exclusively-online voting in 2028. In response to this plan, groups like the ACLU, the Brennan Center, and Verified Voting urged then-governor of Puerto Rico Wanda Vázquez Garced to veto the bill.

According to these groups, internet voting cannot be accomplished securely. In a letter to the governor, members of Verified Voting–a nonpartisan collective of computer scientists and cybersecurity experts–described internet voting as the most vulnerable method of voting. The letter listed the types of attacks that would pose credible threats to internet voting, such as voter authentication attacks, malware on voters’ devices, server penetration attacks, and spoofing attacks. It also highlighted that the prevalence of these attacks could not be reliably detected. Even an online voting system that seemed to be working as intended could be subject to interference from undetected cyber-attacks.

Nevertheless, in June of 2020 Governor Wanda Vázquez Garced signed the new version of the electoral code into law, thus setting in motion the election commission’s task to create an internet voting plan. If the plan is successful, the Puerto Rican vote will be 100% online-cast by 2028.

Puerto Rico was not the first jurisdiction in the United States to adopt an online voting system, but its plan may be the most ambitious. In an article from 2020, Politico’s Eric Geller lays out three basic ‘flavors’ of internet voting that have permeated United States elections: electronic delivery, where voters receive a digital copy of a blank ballot by either email or download; electronic ballot marking, where voters can fill out their ballot over their personal electronic device, but must still mail it in or cast it in person; and electronic ballot return, where voters return their completed ballot online. As of 2020, three states–West Virginia, New Jersey, and Delaware–had adopted fully-electronic ballot completion and return for certain voters, including voters with disabilities. In their report “Email and Internet Voting: The Overlooked Threat to Election Security,” watchdog group Common Cause and several other advocacy organizations highlighted military voters as a demographic that has become routinely subject to fully-online voting. Even so, voters within this demographic are only subjected to online voting for as long as they are deployed overseas.

By 2028, Puerto Ricans could be the only constituency in the United States for whom voting online is the only option. And this reality may only implicate the election of Puerto Rico’s territory-wide leadership in the short-term; if Puerto Rico gains statehood by 2028, at least about 4,083,332 voters would receive and cast their votes in the 2028 U.S. presidential election fully electronically.

Proponents of online voting, like West Virginia Secretary of State Mac Warner, believe that online voting is a useful tool for specialty groups–such as service members and people with disabilities–who have been disenfranchised by alternative systems. Similarly, could Puerto Rican voters benefit from these systems in light of their unique obstacles to voting?

In 2017, Puerto Rico’s electorate was reduced after thousands of Puerto Ricans moved to the mainland (especially south and central Florida) following the devastation of Hurricane Maria. In the 2020 primaries, Puerto Ricans faced such long lines at the polls that polling locations were forced to remain open past their official closing times. Even worse, some voters who did reach the polls in 2020 were unable to cast their vote after paper ballots failed to reach voting precincts, further damaging Puerto Ricans’ faith in their electoral system.

Online voting would likely make voting easier and more accessible to many Puerto Ricans. However, voters’ access to online voting raises several logistical concerns specific to the Puerto Rican landscape. For example, approximately 35.7% of households in Puerto Rico do not have computers with access to broadband internet. Ongoing problems with Puerto Rico’s electricity grid, paired with the island’s vulnerability to natural disaster, could prevent Puerto Ricans from casting their vote in the aftermath of utility-disruptive events like hurricanes and tropical storms. Still, online voting would likely extend the window within which Puerto Ricans could cast their votes, and its implementation would not preclude the continued installation of polling locations for voters without home-access to the internet.

But heightened accessibility alone may not justify the security threats to online voting. By 2028, Puerto Rico could demonstrate the success of online voting in several ways; for example, general voter turnout and turnout among historically-disenfranchised groups may have significantly increased. But while the successes of online voting may be clear and demonstrable, its failures could still lurk beneath the surface, undetected.

Is the Montana Disclose Act in the Supreme Court’s Crosshairs?

December 28, 2022

By Lucas Della Ventura

From George Washington’s warnings of the danger of corruption to “drain the swamp,” the influence of large sums of money in the pockets of politicians and their campaigns have concerned Americans throughout the nation’s history. In Citizens United v. FEC, the Court breathed life into Thomas Jefferson’s forewarning that the judiciary would enable corruption: “The engine of consolidation will be the federal judiciary; the two other branches the corrupting and corrupted instruments.” With the removal of limitations on corporate “independent” expenditures, the Court tied the state governments’ hands in enacting and enforcing state laws restricting campaign contributions. The modern era of unlimited corporate campaign spending was birthed, seeing a 900% increase in campaign spending by corporations and other outside groups. From 2010 to 2018, Super PACs, also offspring of Citizens United, were estimated to have spent $2.9 billion on federal elections. According to OpenSecrets.org, the leading website tracking money in politics, so-called “dark money” groups (organizations that spend money from undisclosed sources) have spent roughly $1 billion — mainly on television and online ads and mailers — since Citizens United was decided.

Although the Court in Citizens United struck down limitations on “independent” expenditures, all of the Justices, save Thomas, approved of strong disclosure regulations. Justice Kennedy stated, “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” In reaction to Citizens United and the flood of corporate and dark money entering into not only presidential elections, but also local elections, states like Montana enacted comprehensive disclosure regimes. These state disclosure regimes have remained largely unscathed in the election law context, but not in others. The Supreme Court recently struck down a California regulation that required charities known for their conservative political activism and campaign financing, to disclose to the California Attorney General’s Office IRS forms containing the names and addresses of their major donors. Notwithstanding that the case focused on a state’s governmental interests in investigating charitable misconduct and the state’s lack of narrow tailoring, the decision put on alert states like Montana that have strong campaign finance disclosure regimes.

Montana, the frontier state heralding the motto “Oro y Plata” (Spanish for “Gold and Silver”), sees itself at the frontier of legal challenges seeking to reshape how the wealth of the nation is treated by campaign finance and disclosure regimes across the country. Since 2015, the Montana Disclose Act has withstood several such tests.  In 2018, Montanans for Community Development v. Mangan, Montanans for Community Development (MCD), a 501(c)(4) that sought to send electioneering communications (issue advertisements, also known as “mailers”) refused to disclose its donors in accordance with Montana law. MCD’s two mailers at issue attacked environmentalists and encouraged fossil fuel industry promotion, mentioning candidates in upcoming Montana elections. The 9^th Circuit upheld the district court’s finding that the disclosure requirements survive exacting scrutiny by serving a sufficiently important informational interest and being substantially related to the state’s interest.

The 9th Circuit elaborated on its stance regarding disclosure laws in NAGR v. Mangan, another challenge to Montana’s state disclosure requirements. The court cited to Citizens United in championing the information enhancing role disclosure laws play by stating, “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” The court added, “Far from restricting speech, electioneering disclosure requirements reinforce democratic decision making by ensuring that voters have access to information about the speakers competing for their attention and attempting to win their support.”

Even though the U.S. Supreme Court denied cert in both Montana cases, the Supreme Court’s lurch to the right and recent decision in AFP v. Bonta may spell danger to state efforts to achieve transparency in elections and protect the compelling informational interests provided by electioneering disclosures.

Once Thought Secure, Utah Implements Further Election Security Measures

December 26, 2022

By Anonymous

Not many things in the world are monitored 24 hours a day, 7 days a week. Bank vaults, hospitals, and military installations are the few that come to mind. However, in this Fall’s midterm elections, Utah’s ballot boxes will be as well.

24/7 video surveillance of unattended ballot boxes are among the several measures Utah’s state legislature has approved as a part of H.B. 313 to secure the state of Utah’s elections prior to the impending 2022 midterms.

House Bill 313, passed in the most recent general session, includes a bevy of changes for Utah voters. Voters are now required to provide proof of identity before voting if they did not provide proof of identification when they registered to vote. Utah is one of eight states that are “all-mail”–they conduct all elections by mail. In 2020, 94% of Utah voters voted by mail. Utah is the only Republican-leaning state that allows all elections to be conducted by mail. Because of H.B. 313, many of these voters will now need to submit a copy of their Utah drivers license or identification.

The legislation, primarily released by Republican Rep. Jon Hawkins, also requires a yearly audit of the voter registration database, limits who may access the election equipment, and reiterates requirements that election equipment may never be connected to the internet. The bill would also require the lieutenant governor to develop requirements for Utah election officials regarding the handling and documentation of “custody” for ballots.

Utah’s legislature passed these increased security measures despite voter fraud being an incredibly rare occurrence in Utah. According to The Heritage Foundation, a conservative think tank, Utah has only had one case of documented voter fraud—in 2008. Utah has allowed voting by mail since 2004. The most common reason ballots are rejected, in fact, do not come from nefarious parties, but instead, from simple mistakes, such as signature issues or unsigned affidavits. Sources have even found that, often times, fraud in Utah may stem from the parents of Latter-day Saints whose children are away on missions.

Despite the security of Utah’s elections prior to the 2020 election and the staggering popularity of voting by mail, the state has been swept up in election misinformation perpetuated by former President Donald Trump’s false claims that the 2020 Presidential Election was fraudulent.

Utah’s state legislature considered 35 proposals in 2022’s general session regarding its election practices—including H.B. 371, which would have removed ballot drop boxes and removed voting by mail as Utah’s primary voting method. The legislation, sponsored by Rep. Phil Lyman failed in committee. While Rep. Lyman alleged voter fraud when speaking in support of H.B. 371, he was unable to produce any evidence of his allegations.

Utah’s Governor and Lieutenant Governor, Spencer Cox and Deidre Henderson, both Republicans, have repeatedly defended the security of Utah’s elections and denounced allegations to the contrary as “absolute falsehoods [that] run counter to Utah law and the foundation of our constitutional republic.”

County Clerks have expressed frustration with H.B. 313’s new requirements. Sherrie Swenson, Salt Lake County’s Clerk, said that the constant surveillance represented an intrusion of privacy, and the new mandate regarding voter identification left her office scrambling to collect the required information from voters. 

The security of Utah’s vote is not the only concern in 2022–election officials said that voters will see armed police officers patrolling election sites in response to a recent increase in political tensions and threats towards election workers.

Changes in Tennessee: New Post-Election Audit Procedures

December 19, 2022

By Marc Sloan

Tennessee has enacted a new law revamping its current post-election audit requirements and adding new ones to the list. The new legislation institutes a framework for the state to double-check elections run by Tennessee’s 95 counties on a broader scale and in a more comprehensive way through a slate of both consistent and random audits. According to the Brennan Center, post-election audits can help ensure votes are tallied correctly and restore public trust in elections. The bill was passed unanimously in both chambers with bipartisan support, but the Voting Rights Lab says the law will restrict voter access and interferes with election administration through taking away power from local officials and giving it to the state.

Enacted into law in summer of 2022, Tennessee SB2675/HB2585 changes post-election procedures to require a new, additional audit process for select county election commissions. The commissions subject to these new audits will be selected randomly by the secretary of state, who must choose three to audit after each August election and six to audit after each November election. These new audits will begin with the first election in 2024. In the meantime, the law includes a provision requiring Williamson County, home to the Senate sponsor of the legislation, to undergo an audit following each election in 2022, in an effort to test the audit process. The original bill called this a “pilot program,” but this language was amended out.

Current law requires that county commissions who use precinct-based optical scanners must conduct automatic audits of the voter-verified paper ballots cast for the top race on the ballot; this new law retains that requirement, even if those election commissions are not otherwise selected for an audit. These audits must take place prior to the certification of the election. Finally, the law requires that all county election commissions not otherwise selected for an audit or required to complete one as part of the law must conduct a performance audit following the certification of each November election.

The law specifies that the secretary of state shall select the methodology for the random audits. The legislation provides for the secretary to choose from a risk limiting audit, a traditional tabulation audit, or a performance audit. According to the National Conference of State Legislatures, traditional tabulation audits are usually conducted by hand and compare the paper records with the records tabulated by the voting machines. These audits count every vote, whereas risk limiting audits involve counting a sample of votes and analyzing them using statistical methods determined to limit the risk of certifying an incorrect election outcome. A performance audit, also known as a procedural audit, designates a person or group to review the procedures followed during the election and analyze them for compliance and irregularity.

In addition to the audit requirements, the law provides that for elections in 2022 and 2024, the costs of the audits will be paid by the state. Specifically, county election commissions will be reimbursed for their actual costs, which cannot exceed $50 for the audit setup per machine and 35 cents per ballot audited. The fiscal note for the bill indicates the cost to the state to implement these new audit requirements will exceed $500,000 over the next four years. Part of this expense will be to hire a new certified public accountant to keep up with the changes in audit procedures this law requires. With the rollout of this law set for the November 2022 elections, the state and county elections commissions must prepare to comply with this new legislation.

Ranked Choice Double Header: Alaska’s Move to Rank Choice Voting and the Summer Special Election

December 12, 2022

By Margaret Dupree

Alaska’s new ranked choice voting system is experiencing a double-header in 2022. In 2020, Alaskans passed Ballot Measure 2, which created the ranked choice system for general elections, while maintaining a single choice system for primaries. Alaskans still vote for the one candidate of choice in primaries, but in general elections they rank the candidates on their ballots. If one candidate receives more than 50% of the vote in the first round of calculations (i.e., they were the “First Choice” candidate for more 50% of voters) the vote tabulation stops and does not move to a second round. If no candidate receives more than 50% of the vote after round one, the candidate with the least votes is eliminated, and the ballots of the voters who chose that losing candidate are recounted using their second choice. This process repeats until a candidate has more than 50% of the vote.

Alaskans voted for the measure during the 2020 presidential election by a margin of 50.55% to 49.45%; turnout for the 2020 election in Alaska was 60.67%. Despite litigation challenging the implementation of the voting system, the Alaska Supreme Court upheld the narrowly-passed ballot measure in early 2022, making it the voting system for the 2022 midterms. However, due to the death of Rep. Don Young in March 2022, ranked choice voting was implemented even earlier than the midterms to fill the at-large seat in August for the remainder of his term.

While many other municipalities across the United States use ranked choice voting, Alaska is only the second state in the nation to implement it; Maine implemented ranked choice voting beginning in 2018. Advocates of ranked choice voting argue that the system results in more representative outcomes, and helps decrease negativity in election cycles. Another benefit of ranked choice voting systems is that it prevents a candidate winning with only a plurality of voters, as opposed to a typical first-past-the-post system which can result in the winning candidate having a minority of the vote in contentious or crowded elections. However, there are critiques that arise, principally that the system is complicated, and that in a polarized political climate, voters will not want to rank candidates. Especially in the current political climate where some Americans and political candidates deny the 2020 election results, the roll out of a new voting system in Alaska over two elections could highlight whether changing voting systems will help temper partisanship and increase voter trust, or whether voting changes will be vulnerable to election denial and distrust.

The Alaska special election results seem to demonstrate both how a change in voting systems can result in surprising victories and be vulnerable to partisan motivations. At the end of August, Democrat Mary Peltola won the special election after voting moved into a second round. At the end of the first round, Republican Nick Begich was in third and was cut from the race. His voters’ second choices were then tabulated, and while Republican Sarah Palin had more of those than Peltola did, enough of Begich’s voters ranked Peltola second, pushing her past the 50% threshold. Peltola is the first Democrat to represent the state since 1972, a state that has voted for the Republican presidential candidate 93.8% of the time since 1960, and 100% of the time since 2000.

While a sizable majority of Alaskans supported the voting system, and 66% of voters actually ranked candidates in the election, prominent politicians have called into question the legitimacy of the voting system, claiming that it is a system that benefits the Democratic Party. Notably, Arkansas Senator Tom Cotton tweeted that “60% of Alaska voters voted for a Republican, but thanks to a convoluted process and ballot exhaustion—which disenfranchises voters—a Democrat ‘won.’” This kind of political criticism could hardly be unexpected, especially in the current political climate. However, the criticisms come at a vulnerable time for the electoral system in Alaska; if voters believe these claims are accurate, their trust that their vote counts or that their election laws are fair will decrease. Voters across the U.S. show a decrease in confidence in the democratic system. Distrust in the fairness of election laws and systems is dangerous for democracy, and new changes like those in Alaska are perhaps the most vulnerable.

The 2022 Alaska midterm election in November is the same cast of candidates as the special election. It will be interesting to see if the attacks and critiques on the system will result in fewer Alaskans participating or adhering to a system that is theoretically meant to boost confidence in their election system. If fewer voters rank candidates on their ballots (i.e., opt to pick only one candidate like a traditional ballot), or even decide not to vote at all, it could indicate that partisanship is still a strong factor in voter choice, and that the efforts to ameliorate polarization and distrust are up for a difficult battle.

Discrimination in Washington State Redistricting

December 5, 2022

By Megan Bodenhamer

Washington State has rather progressive and cutting-edge voting and election laws. For example, Washington State was one of the pioneers for statewide mail-in voting, long before the COVID-19 pandemic. In fact, voter turnout in the state is consistently above the national average. Washington State also has one of the nation’s few bi-partisan redistricting committees. However, despite these policies—that, on the surface, may seem modern and equitable—there are problems plaguing Washington State’s elections that are far from idyllic. Specifically, Washington State has faced many allegations of voting discrimination against its Latino population.

On January 19th of this year, a lawsuit was filed in the United States District Court for the Western District of Washington alleging intentional discrimination against Latino voters by the Washington State Legislature and the Washington State Redistricting Commission. The UCLA Voting Rights Project, the Campaign Legal Center, and residents of Yakima (hereafter “Plaintiffs”) filed the lawsuit against the Washington State Secretary of State, the Speaker of the Washington State House of Representatives, and the Majority Leader of the Washington State Senate. The Plaintiffs allegethat “[t]he Washington State Redistricting Commission . . . selected redistricting plans for Washington’s state legislative districts that dilute Hispanic and/or Latino voters’ ability to elect candidates of choice.” The allegations arise out of Yakima, Franklin, Adams, and Grant counties. The lawsuit alleges that the Washington State Redistricting Commission intentionally “cracked” these Latino populations and mixed them with a heavily white population, thus diluting their votes. Lines were drawn through the City of Yakima cutting across the areas where Latino populations live, while still including blocs of white voters that often vote against Latino-preferred candidates. Further exacerbating the problem, Latino voters in the included area have a low turnout rate, while those excluded have a higher rate. This case has not yet been tried, but it will certainly be a pivotal decision for the longevity of the newly created districts in Washington.

Gerrymandering is not the only place where Latino voters in Washington State face challenges. Due to its long-time mail-in voting system, Washington State employs a signature matching system to deter voter fraud. Unfortunately, in high-Hispanic counties, Latinos were four times more likely to have their mail-in ballots rejected for signature issues. As a result of these signature denial disparities, the League of United Latin American Citizens and the Latino Community Fund of Washington have filed suit against Benton, Chelan, and Yakima counties for violating the 14th and 15th Amendments. The lawsuit claims that the signature-matching policies are flawed because they are subject to the discretion of local election workers and have inconsistent results over time, harming Latino voters in Washington State.

However, there has also been successful litigation in Washington to defend Latino rights. In 2022, the UCLA Voting Rights Project settled a claim against Franklin County under the Washington Voting Rights Act, a recently passed state provision. Franklin County admitted fault in the settlement, conceding that they were in violation of the Act. Franklin County previously had an at-large voting system where a Latino-preferred candidate had never won. Under the settlement, Franklin County Commissioner elections will be required to use single-member districts beginning in 2024. While this may be a win for Latino voters in Franklin County, there is much work to be done in other counties, across the state of Washington, and across the United States.

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.