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electionlineWeekly--October 6, 2011

Table of Contents

I. In Focus This Week

Law & Order elections style
Election administration lawsuits pile up

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As the U.S. Supreme Court gets back to work this week, the lower courts have been busy adjudicating numerous elections administration-related cases ranging from the Voting Rights Act to ballot access.

What follows is just a snapshot of some of the many elections-related legal cases either pending or that have recently been decided throughout the country.

Voting Rights Act
Earlier this year, Shelby County, Ala. sued the federal government challenging Sections 4(b) and 5 of the Voting Rights Act. These provisions prohibit localities in nine states from making any changes to their voting procedures without first receiving approval from the U.S. Dept. of Justice.

The Justice Dept. and the American Civil Liberties Union argued that sections 4(b) and 5 should remain in place and The Lawyers’ Committee for Civil Rights Under Law intervened on behalf of Section 5.

In the ruling, U.S. District Judge John Bates cited the ample evidence available that minority rights need continued protection for Congress to extend the Voting Rights Act for another 25 years in 2006.

"Understanding the preeminent constitutional role of Congress under the Fifteenth Amendment to determine the legislation needed to enforce it, and the caution required of the federal courts when undertaking the 'grave' and 'delicate' responsibility of judging the constitutionality of such legislation -- particularly where the right to vote and racial discrimination intersect -- this court declines to overturn Congress's carefully considered judgment," Bates wrote.

An attorney for the county filed a notice the day after the ruling that the county would be appealing.

Public access to ballots
The Colorado Court of Appeals recently ruled that electronic images of ballots that have been cast should be open for public inspection as long as the voter’s identity cannot be garnered from the ballot.

“The content of a ballot is not protected, however, when the identity of the voter cannot be discerned from the face of that ballot,” Judge James B. Boyd wrote for the court.

The case stems from suit filed by Marilyn Marks, a Pitkin County elections advocate who ran for mayor of Aspen in the city’s first instant-runoff race. More than a week after the results were announced the Aspen clerk announced that there had been a discrepancy between the paper ballots and the electronic images created by the new voting system.

Through an open-records request, Marks asked to see the ballots in question. When the clerk refused, Marks filed a lawsuit.

The lawsuit pitted Secretary of State Scott Gessler, who advocated for the public availability of the ballots against the Colorado Clerks Association (CCCA) who argued that even though names were not revealed, voter’s privacy was at risk.

In a statement released to the media following the ruling, the CCCA contended that public viewing of cast ballots—whether a voter’s identity is available or not—could lead to voter intimidation.

"Today's ruling has removed the curtain from our voting booths," the CCCA said in its statement. "It turns our private decisions into political footballs that can, and will, be sought by advocates and election strategists."

The city of Aspen has decided to appeal the decision.

Voter privacy
When Keith Hamaker went to the polls in Pulaski County, Ark. in 2008, he was concerned when saw voters casting their ballots at community tables casting their ballots for all the world to see.

Eighteen months later, Hamaker sued the Pulaski County election commission contending that having voters use a “community table” violated the public trust. He asked the court to bar the county from allowing open voting.

The Pulaski County Circuit Court ordered that the county to comply with state law and set up one voting booth for every 50 registered voters. In addition, the court ruled that poll workers must be trained to direct voters to the voting booth, but that it cannot prevent voters from using a publicly in view “community table” if they choose to.

Last week, the Arkansas Supreme Court upheld the lower court’s ruling referring to Arkansas Code 7-5-309(a)(2).

“Thus, pursuant to subsection (a)(2), the commission must provide the opportunity for a voter to prepare his or her ballot in a voting booth. (The law) does not, however, require the commission to force a voter to prepare his or her ballot in a voting booth,” wrote Chief Justice Jim Hannah.

This week, Nevada Secretary of State Ross Miller asked the state Supreme Court to enter the Silver State’s redistricting battle because, according to the filing, the judge in charge of the lawsuit has “impermissibly abdicated” his duty to decide the issue.

A judge in Texas recently blocked that state from implementing new redistricting maps which buys time for county election officials to make changes in election precinct boundaries and to send out new voter registration cards.

The Idaho Supreme Court refused to get involved in that state’s redistricting woes tossing out lawsuits filed by both the secretary of state’s office and the state GOP. At issue was the state redistricting committee that failed to come up with new maps by the Sept. 6 deadline. The court did say that Secretary of State of Ben Ysursa could organize a new commission.

The U.S. Department of Justice asked a federal judge to force New York to move it’s primary date in an effort to comply with the federal Military and Overseas Voter Empowerment Act (MOVE).

In its filings with court, the department argued that New York should hold it’s primary at least 80 days before the November 6 general election. This would put the states primary in mid-August.

Voter ID
A lot of controversy has swirled around states with new voter ID laws, however, there has been less litigation than rhetoric.

In Oklahoma, a lawsuit filed against the state election board is advancing through the court system. The lawsuit was filed in Tulsa County and in the most recent court proceedings, the stat Attorney General’s office argued that the county was not the proper place for the case. District Judge Jefferson Sellers denied the motion.

This is the second lawsuit regarding voter ID in Oklahoma. The first suit filed earlier this year was eventually dismissed based not on the merits of the case or law, but on where the suit was filed.

Although nothing has been filed at press time, the League of Women Voters in Wisconsin has stated that they are working on a lawsuit against the state’s new voter ID law.

U.S. Supreme Court
Although much of the election administration legal action has been taking place in the lower courts, in their first day back at work, the U.S. Supreme Court addressed two lawsuits over the administration of elections.

The Court chose not to get involved in a Massachusetts-based lawsuit about whether election officials were allowed to block a minor party candidate from the ballot in 2008.

Without comment, the high court also “declared moot” an appeal of a ruling in Texas that pitted Dallas County against the Texas Democratic Party over the use of iVotronic voting machines. The state Dems said that the straight-party voting aspect of the machines was not pre-cleared by the Department of Justice when the department approved the machines themselves.

(Information for this report was obtained through court records and local and national media outlets.)

Editor’s Note: Electionline.org is putting the finishing touches on a new calendar that will be viewable by state or date. In addition to upcoming elections, our plan is to include other items such as conferences, symposiums, hearings, etc. so please feel free to send us your upcoming event information to: This email address is being protected from spambots. You need JavaScript enabled to view it.">This email address is being protected from spambots. You need JavaScript enabled to view it..