electionline Weekly

Defending Digital Democracy

Defending Digital Democracy
Data set details factors affecting timelines for tabulation and reporting

Between concerted influence operations by those who seek to undermine the election and the immense challenges of voting in person and by mail amid a public health crisis, this November’s elections could pose enormous challenges. Exacerbating the difficulty is a lack of public awareness of how this year’s conditions may affect the tempo of Election Night, the time it takes to tabulate ballots, and when results can be declared.

These realities provide fodder for disinformation to cast doubt on the legitimacy of the election process and results. We know influence operations are occurring before, during, and after election day. 

Consistent with our overall mission to help safeguard the integrity of democratic elections from cyber and information attacks, D3P is continuing to share resources and recommendations on how to prepare for and counter evolving threats.

D3P Election Data Set
The Defending Digital Democracy project has developed a data set that details – on a state-by-state basis – the most relevant factors affecting timelines for tabulating and reporting election results.

The data set currently provides information on, and analysis for, state-specific regulations regarding:

• Getting a ballot
• Return timing for ballots
• Ease of voting by mail factors 
• Processing and counting mail-in ballots
• Early voting
• Provisional ballots

Amid sustained disinformation attacks, we all want and need accurate, trustworthy election results. Our hope is that this data set can help journalists and voters alike better grasp the realities of voting – and vote-counting – during this challenging period.

This is a living document that we are updating on a regular basis to reflect underlying regulations and factors that are changing in real time. To be sure, state and local election officials are always the best source of critical information about the how, when, and where of voting. Given the dynamic information environment, we always recommend verifying with officials.

We invite your questions, comments, and ideas to make this resource as accurate and relevant as possible. Please get in touch with us at connect@d3p.org.

Election News This Week

Early Voting News: Early voting kicked off in more states this week including Georgia, Kentucky, Rhode Island, Tennessee and Texas. Turnout numbers have been huge, even record-breaking in some places. Lines have been long in many places. But other than volume there have been relatively few issues. In Fort Bend County, Texas, things got off to a rocky start after a voting system programming problem left all the polling places closed for a couple of hours on the first day of early voting. The county kept polls open till 7pm that day and increased early voting times through the week. In Tarrant County, Texas, the county was forced to temporarily shutter three early voting sites after a poll worker tested positive for COVID-19. All the poll workers who had trained with the affected poll worker had to be replaced and it took time to find those replacements.  In Georgia officials are citing the statewide voter check-in system for causing some of the long lines witnessed throughout the state. Some early voting sites reported checking in just 10 voters per hour at each poll book. Secretary of State Brad Raffensperger initially attributed the lines to high turnout, which is part of the reason for delays. But it became clear from interviews with poll workers, election officials and voters this week that technical difficulties contributed to severe waits. Raffensperger said Wednesday that he’s working with the state’s election software company to improve speeds and process voters more quickly. We’ve had our first reports dustups among people at the polls. In Muscogee County, Georgia police had to be called after two voters with disabilities got into a tussle that began as a verbal altercation became physical and both of them ended up tussling on the ground, one of them with a cane. No charges were filed and both people ended up voting. And law enforcement are now monitoring early voting in Belmont County, Ohio after some people casting ballots exhibited “aggressive” behavior toward poll workers over the requirement to wear face masks. “Unfortunately, our staff is experiencing incidents in which people are presenting in an angry, disrespectful, and, at times, aggressive manner,” the Belmont County BOE said in a statement released after the meeting. “Our staff works diligently as public servants to see that the election is undertaken fairly, accurately, and in a professional manner. Our staff is trained to address the needs of the public and to provide good public service. We as a Board cannot let people disrupt this process nor create an unsafe atmosphere at the Board and/or for other potential voters.”

In this year of bombshell news, The Washington Post dropped a doozy on Oct. 9 when it reported a private security company is recruiting former U.S. military Special Operations personnel to guard polling sites in Minnesota on Election Day, an effort the chairman of the company said is intended to prevent left-wing activists from disrupting the election. Company chairman, Anthony Caudle, posted a message through a defense industry jobs site this week calling for former Special Operations forces to staff “security positions in Minnesota during the November Election and beyond to protect election polls, local businesses and residences from looting and destruction.” He said in an interview with The Washington Post he is planning to send a “large contingent” to Minnesota but did not specify the numbers. Minnesota Attorney General Keith Ellison (D) said in a statement Friday that he joined election officials in “strongly discouraging this unnecessary interference in Minnesota’s elections, which we have not asked for and do not welcome.” “Federal law and state law are both clear: No one may interfere with or intimidate a voter at a polling place,” he said. “The presence of armed outside contractors at polling places would constitute intimidation and violate the law. I request this company cease and desist any planning and stop making any statements about engaging in this activity.” In a statement, Secretary of State Steve Simon said, in part, “Any outside effort to supplement election judges or local law enforcement is counterproductive, unwelcome, and possibly unlawful.” Between this and the president’s call for an “army” of poll watchers to show up on Election Day, elections officials across the country are preparing for potential problems on Election Day. “My biggest concern, and both sides do this, is undermining confidence in elections across the board,” Trey Grayson,  former Kentucky secretary of state, told USA Today. “We’ve got to have people trust the outcome. The losers have to believe it was a fair fight.” While the North Carolina State Board of Elections has come out and said explicitly that police are not allowed to patrol polling places, King County, Washington has said it will use plain-clothes security officers to monitor drop boxes.

Juneau, Alaska recently held its first all vote-by-mail local election and KTOO has a really interesting story what went into getting those ballots counted. Voted ballots were shipped to the Anchorage election center which provided more room for social distancing to get them processed and because Anchorage, which has conducted several elections by mail, had equipment to help with processing that Juneau did not. City Clerk Beth McEwen and assistant Lacy Davis even flew to Anchorage with two “suitcases” filled with more than a thousand ballots after voting had ended. McEwen said the city does plan to buy some of the equipment Anchorage has, like ballot scanners. The money has already been set aside for that. But there wasn’t enough time to buy them and set them up before the election. 

Not all heroes wear capes. Depending on where you live, not everyone who votes by mail will get an “I Voted” sticker this year and even some folks who are voting in-person won’t get one either. Just chalk it up to one more thing 2020 has ruined. But into every darkness comes light and this week that light is Greg Sarafan, who will send you an “I Voted” sticker if you don’t get one. “People have been saying the first time in 20 years I wasn’t going to get a sticker, or this is my first election and I was so disappointed that I had to do it by mail because I was excited to get a sticker,” Sarafan told CBS. So Sarafan created the Voting Sticker Project and if you message him after you vote he’ll send you a sticker. And not only do you get a sticker, but you also get some GOTV advocacy tools. “When I send a sticker, I send it with a letter. It has a QR code on it and it brings them to a voting resources website, that encourages them to get their friends and family to the polls,” Sarafan said. “The Voter Sticker Project is not about who you vote for, it’s about that you vote, and that you’re engaged.” Hats off to you Greg! And thank you for your service!

Sticker News: Speaking of “I Voted” stickers, Alaska, long known for its strong sticker game  is out with their new stickers for 2020 the stickers and once again the are on point. This year’s stickers celebrate the diversity, strength and power of Alaska women. The stickers were designed by Alaska Artist Barbara Lavallee. “I’ve always loved the artwork of Barbara Lavallee,” said Gail Fenumiai, director of Division of Elections. “So, we reached out to Ms. Lavallee and never in my wildest dreams did I think she would say yes but she did. The division is proud of the stickers and hope that the voters of Alaska enjoy them.” The stickers will be available in English, Spanish, Koyukon, Gwich’in, Aleut, Tagalog, Alutiiq, Northern Inupiaq, Nunivak Cup’ig and Yup’ik. For those who are voting by mail and still would like a sticker, digital versions are available on the Department of Elections web site. We’re not gonna lie, we LOVE them.

Personnel News: Doña Ana County, New Mexico Clerk Amanda López Askin will take a step back from the county clerk’s office in an effort to honor the spirit of existing county policies that regulate the office’s employees when they are running opposed in an election. Chief Deputy Clerk Lindsey Bachman will remain in the office to manage the administration of the ongoing election until the conclusion of the county canvass. Michael Behrent has been sworn onto the Watauga County, North Carolina board of elections. He replaces Jane Ann Hodges who resigned. Jan Odell has been hired as interim director of the Rockingham County, North Carolina board of elections. Dean L. Smith, chairman of the Georgetown, South Carolina  board of voter registration and elections has resigned.

Election Security News

Botnet: According to The Washington Post,  Microsoft has taken legal steps to dismantle one of the world’s largest botnets, an effort it says is aimed at thwarting criminal hackers who might seek to snarl state and local computer systems used to maintain voter rolls or report on election results. The company obtained an order from a federal judge in the Eastern District of Virginia last week that gave Microsoft control of the Trickbot botnet, a global network it describes as the largest in the world. The company wants to disrupt hackers’ ability to operate with the election barely three weeks away. Run by Russian-speaking criminals, the botnet poses a “theoretical but real” threat to election integrity by launching ransomware attacks, in which data is rendered inaccessible unless the victim pays a ransom, said Tom Burt, Microsoft’s vice president of customer security and trust. While there is little fear that a botnet could alter the results, it could further erode voter confidence.

Legislative Updates

New Jersey: The State Senate Labor Committee advanced a bill on that nearly doubles the current limit on how much time a minor can serve as an Election Day poll worker. The bill, sponsored by State Sens. Pat Diegnan (D-South Plainfield) and Linda Greenstein (D-Plainsboro), creates a carve out allowing minors between the ages of 16 and 18 to work from 5:30 a.m. to 9 PM on the day of an election. The current state law allows 16 and 17-year-old to work eight-hours on Election Day, with the consent of a parent and a school official.

Pennsylvania: House Republicans dropped plans to fast-track an 11th-hour effort to set up a Republican-majority election panel with subpoena power, officials said Friday, amid accusations that it was an effort to steal the election. In an email to House Republicans, Majority Leader Kerry Benninghoff, R-Centre, said “the muddied waters and misunderstanding” about the intent of the Select Committee on Election Integrity made it clear “this is the wrong time to run the proposal.”

Legal Updates

Alabama: A three-judge panel of the 11th U.S. Circuit Court of Appeals blocked a lower court’s ruling loosening some absentee voting restrictions in Alabama, but let a decision allowing curbside voting to stand.  The three-judge panel, consisting of U.S. Circuit judges Adalberto Jordan, Jill Pryor and Barbara Lagoa did not immediately issue an opinion on their ruling.  Alabama Secretary of State John Merrill said in a statement that the ruling “maintains the integrity and security of elections in our state,” but said they would appeal the curbside voting decision to the U.S. Supreme Court. “While our office is currently unaware of any county planning to provide curbside voting for the November 3, 2020 General Election, we intend to appeal to the Supreme Court to see that this fraudulent practice is banned in Alabama, as it is not currently allowed by state law.” There is no explicit curbside voting ban in Alabama law, but Merrill has shut down curbside voting operations in the past that he said did not follow the law. 

Alaska: The Alaska Supreme Court has ruled that  Alaskans do not need to have a second person sign their absentee ballots. A record number of Alaskans are voting absentee this year, and “improper or insufficient witnessing” has consistently been the top reason for rejected absentee ballots during the past few primary elections, according to Division of Elections statistics. State law ordinarily requires absentee voters to sign their ballots and get the signature of a witness who is at least 18 years old, but a group of Alaskans sued last month to pause the witness requirement during the COVID-19 pandemic. The witness requirement will not be enforced this year, though ballots’ written instructions will still say that a second signature is required. The division is planning to release an instructional video about how to properly fill out an absentee ballot, it said after the ruling.

Arizona: The 9th Circuit Court of Appeals on Tuesday night ordered an early end to an extension of Arizona’s voter registration deadline that was ordered by a judge after pandemic restrictions led to a decrease in people signing up to vote. The 9th Circuit Court of Appeals said voter registration will end on Thursday, instead of Oct. 23, concluding the extension posed a significant administrative burden on election officials who are now dealing with early voting. The court also said Democratic Secretary of State Katie Hobbs would likely succeed in her appeal of the court order that extended the deadline. Arizona has recorded more than 43,000 new registrations in the week since the deadline was extended. People who have already completed registrations during the extension period will be allowed to vote in the Nov. 3 general election. The appeals court also gave Arizonans a two-day grace period to complete their registrations.

The Pascua Yaqui Tribe filed a lawsuit against Pima County Recorder F. Ann Rodriguez as it continues its push to reinstate the former early in-person voting site in its reservation. The tribal government’s immediate goal is to reopen the early in-person voting site that the Pima County Recorder’s Office closed in 2018 and a ballot drop-off site to operate October 26 – November 2. According to the lawsuit, the recorder’s office has closed an additional three early voting sites within the Tohono O’odham Nation since 2018. Though the Pascua Yaqui Tribe’s reservation is urban, the Tohono O’odham Nation is rural. It’s approximately the size of Connecticut and has one early in-person voting site in it.

California: The Howard Jarvis Taxpayers Association, a group that represents taxpayer interests, is suing California Secretary of State Alex Padilla in order to stop his office from carrying out a $35 million voter outreach contract the group says unfairly targets certain voters. The suit alleges that Padilla violated the law in executing the contract for a voter outreach campaign. The contract for the campaign, dubbed “Vote Safe California” went to the political consulting firm SKDKnickerbocker. The scope of work from the Secretary of State’s Office said the campaign team “must include a (get-out-the-vote) targeting expert.” In its suit, the taxpayer association claims such a targeted effort could unfairly affect the result of the elections. “By focusing (i.e. ‘targeting’) the voter outreach, the political consulting firm can and will necessarily affect voter turnout of certain types of voters more than others and in some parts of the state more than others,” the suit said. “This can and will affect the outcomes of elections – indeed that is what targeted GOTV is intended to achieve.”

Delaware: Vice Chancellor Sam Glasscock III rejected a request by the League of Women Voters to override state election law and allow absentee and mail-in ballots received after the state-mandated deadline in November’s election to be counted. Delaware law has long required that absentee ballots be received by the time polls close at 8 p.m. on Election Day. The same deadline applies to ballots cast under a universal vote-by-mail law enacted by the General Assembly specifically for this year’s elections because of the coronavirus. The League of Women Voters, represented by the American Civil Liberties Union and a Wilmington attorney, did not argue that the deadline as applied in past elections was facially unconstitutional. They claimed instead that the new law is unconstitutional as applied to the November election because, even though it makes voting much easier, voting by mail is a burden for some people. “At the time the Vote-by-Mail statute was enacted, the absentee ballot deadline, which the plaintiffs agree was constitutional with respect to the law as it then existed, already required Election-Day ballot receipt,” the judge wrote. “I find nothing about the liberalization of the ability to mail ballots in the Act that created a constitutional violation. Those choosing to mail ballots have always had to vote sufficiently early to ensure delivery by Election Day.”

Florida:  U.S. District Court Judge Mark Walker denied a request by voters’ rights groups to extend Florida’s voter registration deadline after the website crashed Monday, but he blasted the state for another election-related failure. “This Court notes that every man who has stepped foot on the Moon launched from the Kennedy Space Center, in Florida,” Walker wrote in his ruling. “Yet, Florida has failed to figure out how to run an election properly — a task simpler than rocket science.” Secretary of State Laurel Lee extended the original Monday deadline to 7 p.m. Tuesday after the online system failed, but a coalition of liberal groups, including Florida New Majority and the Dream Defenders, claimed that wasn’t enough and some people were still unable to register. Walker ruled that it was “an incredibly close call” but “the state’s interest in preventing chaos in its already precarious — and perennially chaotic — election outweighs the substantial burden imposed on the right to vote.” Walker cited testimony from Leon County Supervisor of Elections Mark Earley, who stated in an affidavit that a further extension would “serve to reinforce the confusion and mistrust voters have surrounding this election.” The additional time meant some supervisors would struggle to get new people on the rolls in time, meaning any voter who registered at the last minute would have to cast a provisional ballot when they showed up at the polls. Provisional ballots are not automatically counted, and voters must provide additional proof after the election to show they were eligible to vote.

Georgia: U.S. District Judge Amy Totenberg expressed serious concerns about Georgia’s new election system but declined to order the state to abandon its touchscreen voting machines in favor of hand-marked paper ballots for the November election.  The ruling came in a lawsuit filed by voting integrity activists that challenges the election system the state bought last year from Dominion Voting Systems for more than $100 million. The activists argued that the system places an unconstitutional burden on the right to vote because voters cannot be confident their vote is accurately counted. The activists’ challenge “presents serious system security vulnerability and operational issues that may place Plaintiffs and other voters at risk of deprivation of their fundamental right to cast an effective vote that is accurately counted,” Totenberg wrote in a 147-page order issued Sunday night. “The Court’s Order has delved deep into the true risks posed by the new BMD voting system as well as its manner of implementation,” Totenberg wrote. “These risks are neither hypothetical nor remote under the current circumstances.”

U.S. District Judge Michael Brown dismissed a lawsuit over long lines at the polls in Georgia, deciding that election officials — not courts — are responsible for voting equipment, training and backup plans. Brown said he disagreed with the plaintiffs’ contention that lines are “all but certain” to occur Nov. 3 after election officials made improvements since Georgia’s primary election. Brown wrote that election officials have recruited more poll workers, added tech support staff, increased voting locations and improved absentee voting options. “The evidence shows defendants have taken extensive measures to address the issues that caused long lines in the past,” Brown wrote in a 78-page order. “It is possible, of course, these measures will ultimately prove insufficient and long lines will still arise. But that is not the point; no one, including this court, can guarantee short lines.”

Hawaii: Former Hawaii residents have sued the state and federal government over laws they say discriminate against their right to participate in federal elections. Veterans, lawyers and a radio talk-show host living in Guam and the U.S. Virgin Islands filed a lawsuit Thursday because they can’t get access to absentee ballots for the Nov. 3 general election. “Disparate treatment with respect to voting is an especially grievous constitutional violation because voting is a fundamental right,” the lawsuit says. Lawyers for the plaintiffs are challenging the federal Uniformed and Overseas Citizens Absentee Voting Act as well as a similar Hawaii law called the Uniform Military and Overseas Voters Act. They argue that provisions in the UOCAVA and UMOVA, as the laws are known, violate the Equal Protection Clause of the 14th Amendment. If not for their current place of residence, the plaintiffs would otherwise be eligible to vote under the overseas voting laws. The lawsuit asks that the former Hawaii residents be allowed to participate in the presidential election by absentee ballot.  

Indiana: The 7th U.S. Circuit Court of Appeals reversed a district court’s decision to extend absentee voting in Indiana, reinstating Indiana’s Election Day deadline to receive the mail-in ballots. The decision from the 7th Circuit  means absentee ballots must once again be received by noon on Nov. 3 to be counted. U.S. Appeals Court Judge Frank Easterbrook in the decision said that, as long as Indiana allows in-person voting, “there is no constitutional right to vote by mail.” “It is rational to require absentee votes to be received by Election Day, just as in-person voting ends on Election Day,” Easterbrook wrote in the decision. Easterbrook added that “people who worry that mail will be delayed during the pandemic can protect themselves by using early in-person voting or posting their ballots early.” “Deadlines are essential to elections, as to other endeavors such as filing notices of appeal or tax returns,” he said. “That some ballots are bound to arrive after any deadline does not justify judicial extensions of statutory time limits.”

Louisiana: Hours after the New Orleans city council voted to sue the secretary of state’s office over its refusal to allow additional drop-off locations for absentee ballots, a civil court judge issued a temporary restraining order allowing the city to move forward with additional drop-off locations. According to a local news station, on Wednesday morning, councilmembers called a special meeting and described Secretary of State Kyle Ardoin’s decision to noy allow more locations an act of voter suppression. In Orleans Parish, that limits drop-off locations to City Hall and the Algiers courthouse. The Council and Orleans Parish Registrar’s Office planned to add locations across the city that would be staffed by the registrar’s employees. “The law requires the ballots be dropped off at the registrar’s office, so those curbside locations have to be at a registrar’s office,” Ardoin said on Oct. 8. Plaintiffs argued that the law was being interpreted incorrectly because the word “office” is never mentioned in the law.

Minnesota: Judge Wilhelmina Wright  has granted an injunction allowing the race for Minnesota’s 2nd Congressional District to return to the November 3 general election. The race had been moved to a February special election under state law, following the sudden death of a candidate. In the ruling Wright questioned the language of the state law triggering the special election, noting it was created following the death of Sen. Paul Wellstone prior to the November 2002 election. In that case, the death of the incumbent also created a vacancy in the seat, as opposed to the death of an unelected nominee. The judge’s ruling also suggested that federal law would preempt the Minnesota statute in this case.

U.S. District Judge Nancy Brasel has upheld a Minnesota state court agreement that allows the counting of absentee ballots received up to seven days after Election Day. Brasel ruled that the plaintiffs in the case — state Rep. Eric Lucero and another Republican who serves as an elector in the presidential election — don’t have standing and denied their motion for a preliminary injunction. She said giving voters conflicting information after absentee ballots have gone out would create confusion. “This is a difficult genie to put back in the lamp,” Brasel ruled.

Missouri: The Missouri Supreme Court has rejected efforts by voting rights groups to make it easier to vote by mail because of the coronavirus pandemic. In an opinion issued Friday, the state’s high court agreed with a lower court judge that a fear of contracting COVID-19 was not the same as being unable to vote because of illness. The ruling has its roots in an April lawsuit filed by the Missouri NAACP and the League of Women Voters. They argued the Missouri law allowing individuals to cast an absentee ballot if they cannot vote in person due to “incapacity or confinement due to illness or physical disability” should apply to individuals who wished to stay home to avoid contracting COVID-19. Individuals who are eligible for an absentee ballot because of illness do not have to have their signature validated by a notary.

In a separate ruling on the same topic, U.S. District Judge Brian Wimes allowed voters using mail-in ballots this fall to return them to election authorities in-person Friday. But then he nixed his own order Saturday afternoon as the state appealed to a higher court. Wimes’ initial ruling on Friday would have tweaked a controversial requirement for casting mail-in ballots by allowing voters to return mail-in ballots for the Nov. 3 election in person. The current statute, enacted earlier this year by the Legislature, required that the ballots be sent by mail and that the ballot envelope be notarized. Wimes’ order did not address the notarization requirement. The state argued in its emergency motion seeking a stay that voting under the current process “is already in full swing,” and that almost 60,000 Missourians had already voted by absentee ballot as of Sept. 30. Local election authorities “lack the staff and resources to implement a new process midway through voting-by-mail,” the state argued. “This attempt to change the rules for voting-by-mail weeks after it started is like asking the Court to change the rules for in-person voting at noon on Election Day, after hundreds of thousands of voters have already cast their ballots. The relief far exceeds the proper role and authority of the federal courts.”

Montana: Ballots are now officially in the mail after the U.S. Supreme Court refused to take up a case challenging the governor’s authority to allow counties to decide whether or not the 2020 election can be conducted entirely by  mail.  Justice Elena Kagan rejected the application for injunctive relief from the Ravalli County Republican Central Committee and others without an explanation Thursday afternoon. The Ninth Circuit denied the group’s emergency motion on Tuesday, which would have prevented state election offices from mailing ballots to all registered voters on Friday. In a statement on the Supreme Court’s denial, Montana Governor Steve Bullock, a Democrat, expressed confidence in election officials across the state. “Our local election administrators are well prepared to make sure Montanans can exercise their right to vote and to protect the integrity of our election, while keeping our citizens safe,” he said. “I’m pleased they will be able to move forward with doing just that.”

The Blackfeet Nation announced  Wednesday that it settled with Pondera County officials after the county allegedly refused to open a satellite voting office on the reservation. Jacqueline De Leon is a staff attorney for the Colorado-based Native American Rights Fund, which helped the Blackfeet Nation file a case in federal court last week after the tribe requested that Pondera County open a satellite voting office on the reservation. The tribe argued failure to do so would violate federal and state law.  De Leon says the county has now agreed to open a satellite office in Heart Butte on Oct. 19, settling the case. 

New Jersey: The League of Women Voters of New Jersey and the ACLU-NJ have filed suit seeking to have the same electronic delivery system used to send ballots to overseas and military voters be used for New Jersey voters displaced from their homes due to the pandemic. According to the lawsuit, nearly a third of 138 complaints from New Jersey made during July’s primary election to a national voter-protection hotline involved active, registered voters never receiving their ballots in the mail despite “good faith efforts.” The lawsuit points out a “significant number” of the 40 or so voters had requested their ballots be sent to temporary addresses, including college students whose schools had closed and who instead sought their ballots at family homes. It also notes that other New Jersey voters are displaced and at temporary addresses due to the economic effects of coronavirus.

New York: State Supreme Court Judge Maria Rosa down efforts to give Bard College students a better voting location in a decision that noted arguments citing social distancing concerns did not factor in expanded mail-in ballots. Rosa said efforts to have Dutchess County Board of Elections move voting to a better location than Episcopal Church of St. John the Evangelist, at 1114 River Road, should have gone through an administrative review before going to court. “Petitioners commenced this Article 78 proceeding on September 4, 2020 challenging respondents’ March 13, 2020 polling place designation,” she wrote. “Petitioners did not file a declaratory judgment action or articulate a theory … proving grounds upon which the court could direct the Board of Elections to take any specific action based on the COVID19 pandemic.”

North Carolina: U.S. District Court Judge William Osteen ordered more changes Wednesday to absentee voting rules after hundreds of thousands of mail-in ballots have been cast and as early, in-person voting gets underway Thursday. Osteen criticized the NC State Board of Elections, saying it had misconstrued or misinterpreted findings he made in August in a way that changed election rules from what had been decided by the state lawmakers who hold authority under the U.S. Constitution to do so. Osteen told the board of elections Wednesday that it cannot accept ballots without witness signatures. He said the board can still allow voters to fix minor problems like addresses or signatures written on the wrong lines. The two other rule changes made by the settlement allows for the board for elections to continue collecting ballots through Nov. 9 if they are postmarked by 5 p.m. Nov. 3, Election Day. The other allows ballots to be counted if they are left in drop boxes at early-voting sites and elections offices.

Ohio: Since we last met, the legal seesaw over the use of drop boxes in Ohio has tipped this way and that. U.S. District Judge Dan Polster blocked Ohio Secretary of State Frank LaRose’s order, which prohibited off-site drop boxes.   Polster found that limiting each county to one drop box location had a “disproportionate effect on people of color” living in more populous counties, imposing a “significant burden” on their right to vote.  “While it may be said that the 7,903 registered voters in Noble County may find a single drop box location sufficient, the record demonstrates that the 858,041 registered voters in Cuyahoga County will likely not,” wrote Polster, who was appointed by former President Bill Clinton. Polster pointed out that limiting “outside” collection to board premises would ban Hamilton County election officials from doing what they did during the primary: going out with plastic trays to collect ballots from voters in vehicles waiting to deposit their ballots. LaRose appealed Polster’s ruling to the U.S. Sixth Circuit Court of Appeals which agreed to temporarily reinstate the limits. Judges Richard Griffin and Amul Thapar in an order Friday night sharply criticized Polster’s ruling. Griffin and Thapar said Secretary of State Frank LaRose’s decision to limit ballot drop boxes, used to store completed absentee ballots, to one site per county was reasonable, and sided with LaRose’s arguments that making a change during an election would pose a security risk. They also said legal precedent weighs against making late-stage changes to election procedures through the courts. “And these state interests, taken together, justify the burden that it places on this one method of voting in Ohio. Accordingly, we conclude that LaRose has made a strong showing that he is likely to succeed on appeal,” they wrote. (Scroll to the bottom of this post to read the full ruling.)

Pennsylvania: Common Pleas Judge Gary Glazer rejected the president’s campaign’s request to have poll watchers at satellite election offices. The campaign sued earlier this month so poll watchers could be allowed inside Philly’s satellite election centers, like at City Hall. But the judge essentially said in his opinion these centers really are offices and not polling places, so the judge decided poll watchers should not be allowed. In his opinion, Common Pleas Judge Gary Glazer wrote: “The satellite offices where these activities, and only these activities, occur are true offices of the Board of Elections and are not polling places.” The campaign has appealed the ruling.

U.S. District Court Judge J. Nicholas Ranjan has thrown out a lawsuit by the president’s campaign that tried to limit the swing state’s use of drop boxes in the current presidential election. The lawsuit also challenged the Pennsylvania secretary of state’s guidance that mail-in ballots shouldn’t be rejected if the voter’s signature doesn’t match the one on file, and a state restriction that poll watchers be residents of the county where they are assigned. Ranjan, who wrote the opinion, was reluctant to second-guess the judgment of the state legislature and election officials. “Perhaps Plaintiffs are right that guards should be placed near drop boxes, signature-analysis experts should examine every mail-in ballot, poll watchers should be able to man any poll regardless of location, and other security improvements should be made,” Ranjan wrote. “But the job of an unelected federal judge isn’t to suggest election improvements, especially when those improvements contradict the reasoned judgment of democratically elected officials.” In his 138-page ruling, the also noted that the campaign had offered no hard evidence that voter fraud would actually occur. Instead, Ranjan wrote, the campaign had simply provided a series of “speculative” assumptions: They assume that “potential fraudsters” might try to fill drop boxes with forged ballots, and that the election security measures in place won’t work to prevent that fraud.

Tennessee: The Davidson County Election Commission filed a lawsuit to seek guidance on the petition by 4GoodGoverment calling for a charter amendment related to limiting increases of the county property tax. The election commission is asking the court to define the scope of the commission’s authority and to decide whether the petition satisfies the legal requirements for a ballot measure. According to WSMV, The comments at a public hearing made it clear that the legality of the petition would be tested in court. After the public comments, members of the Election Commission decided that the interests of the taxpayers and the city would be best served by seeking judicial guidance before voting on whether to place the referendum on the ballot.

Texas: On Friday U.S. District Judge Robert Pitman block Gov. Gregg Abbott’s order preventing counties from having more than one ballot drop-off sites. On Saturday, the U.S. 5th Circuit Court of Appeals issued a temporary stay of Pittman’s order meaning counties are currently still limited to one ballot drop-off site. In his ruling, Pitman said the governor’s directive confused voters and restricted voter access. “By limiting ballot return centers to one per county,” Pitman wrote, “older and disabled voters living in Texas’s largest and most populous counties must travel further distances to more crowded ballot return centers where they would be at an increased risk of being infected by the coronavirus in order to exercise their right to vote and have it counted.” In the appeal, Attorney General Ken Paxton argued that Abbott’s order applied to a “small subset of voters who are eligible to vote by mail and could rely on the postal service yet simply prefer to hand-deliver their marked ballot.” On Monday the 5th Circuit ruled that the state can limit the drop-off sites to one per county. “These methods for remote voting outstrip what Texas law previously permitted in a pre-COVID world,” the court said. “The October 1 Proclamation abridges no one’s right to vote.” The court agreed with the state’s assertion that Abbott’s rule is a refinement of an expansion of voting options, not a restriction of rights.

A last-minute attempt by Texas Republicans to limit drive-thru voting in Harris County was dismissed by the Appeals court. The state GOP had filed suit Monday night asking the court to place limits on curbside voting and halt drive-thru voting. The appellate judges said the party and a voter who filed the suit did so too late, and did not show how they specifically might be injured by the voting practices. The lawsuit was filed just hours before early voting polls opened and more than a month after the Harris County Clerk announced his plan for drive-thru voting. “The election is currently in progress and the relators delayed filing this mandamus until over a month after learning of the actions of the Harris County Clerk’s Office,” the panel of three judges on Texas’ 14th Court of Appeals wrote in their ruling dismissing the case.

District Judge Karen Pozza has ruled the Bexar County Elections Department must open additional Election Day polling sites. Pozza said the county must add 18 voting centers and publicize the Election Day sites 21 days before the election, according to the Texas Civil Rights Project. The order has not been formally signed as of Wednesday afternoon. The lawsuit was filed by progressive organizations MOVE Texas and the Texas Organizing Project. The order requires that Bexar County must increase its number of Election Day voting centers from 284 sites to 302 — the same number used in the 2018 midterm elections. The plaintiffs had asked for 311 voting sites but amended their request.

Virginia: After a fiber optic cable was accidentally cut taking the state’s online voter registration system offline on deadline day, advocates sued to extend the voter registration deadline. U.S. District Judge John A. Gibney, Jr. extended the deadline through Oct. 15. Lawyers for a trio of voter advocacy groups who sought the deadline extension argued that people who wait until the last day to register tend to be minorities and younger adults. Gov. Ralph Northam (D), Virginia Attorney General Mark R. Herring (D) and several state lawmakers readily agreed to the deadline extension. During Wednesday’s hearing, the judge gently chastised the workers who failed to take preventive measures that would have kept the fiber-optic cable safe. He also noted that Virginians who were most affected by the accident had waited until the last day to register. “Maybe people will learn two lessons from this case,” Gibney said. “One is to call Mr. Utility, and the other is to not let things go until the last minute.”

Wisconsin: In a 2-1 decision, the 7th US Circuit Court of Appeals sided with the Wisconsin legislature and the Republican National Committee to stop a lower federal court order on the ballot deadlines. A district court last month had ruled for the Democratic National Committee in extending online voter registration until October 21 and extending the deadline for absentee ballots to be received from the night of Election Day to up until November 9 — as long as they are postmarked before Election Day. “The State Legislature offers two principal arguments in support of a stay: first, that a federal court should not change the rules so close to an election; second, that political rather than judicial officials are entitled to decide when a pandemic justifies changes to rules that are otherwise valid. We agree with both of those arguments, which means that a stay is appropriate,” the two judges said. Plaintiffs have appealed the case to the U.S. Supreme Court.

Judge William Griesbach has denied a petition from the Wisconsin Voters Alliance that argued that grants from The Center for Tech and Civic Life to five cities totaling $6.3 violated federal law. “Plaintiffs have presented at most a policy argument for prohibiting municipalities from accepting funds from private parties to help pay the increased costs of conducting safe and efficient elections. The risk of skewing an election by providing additional private funding for conducting the election in certain areas of the State may be real. The record before the Court, however, does not provide the support needed for the Court to make such a determination, especially in light of the fact that over 100 additional Wisconsin municipalities received grants as well. These are all matters that may merit a legislative response but the Court finds nothing in the statutes Plaintiffs cite, either directly or indirectly, that can be fairly construed as prohibiting the defendant Cities from accepting funds from CTCL. Absent such a prohibition, the Court lacks the authority to enjoin them from accepting such assistance. To do so would also run afoul of the Supreme Court’s admonition that courts should not change electoral rules close to an election date.” Griesbach wrote. The case remains open. The judge has not ruled on the municipalities’ request for the case to be dismissed.

Opinions This Week

National Opinions: Election night | Access to voting | General election | Election Day | International observers | U.S. Supreme Court, II | Vote by mail, II, III | Voting safety | Trustworthy elections | Media coverage | Native American voting rights | Elderly voters | Courts

Alaska: Ballot measure 2

Arizona: Pima County

California: Santa Clara County | Marin County | Suffrage

Florida: Ex-felon voting rights | Online voter registration | Seminole County, II | Drop boxes

Georgia: Glitches

Kentucky: Voting questions

Louisiana: Mega voting centers

Massachusetts: Ranked choice voting, II

Minnesota: Voter confidence

Montana: Secretary of state, II

New Jersey: Errors

North Dakota: Election preparation

Ohio: Drop boxes | Ballot mistakes

Pennsylvania: Voting anxiety | Secretary of state | Drop boxes

Rhode Island: Early voting

South Carolina: Get out the vote

Texas: Election security | Voting restrictions | Early voting

Virginia: Voting reforms

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Job Postings This Week

electionlineWeekly publishes election administration job postings each week as a free service to our readers. To have your job listed in the newsletter, please send a copy of the job description, including a web link to mmoretti@electionline.org.  Job postings must be received by 5pm on Wednesday in order to appear in the Thursday newsletter. Listings will run for three weeks or till the deadline listed in the posting.

Chief Counsel, California Citizens Redistricting Commission— The California Citizens Redistricting Commission (Commission) seeks a Chief Counsel with demonstrated experience and expertise in implementation and enforcement of federal Voting Rights Act of 1965 combined with the background and knowledge to support the Commission’s redistricting mission. The applicant should be a creative problem-solver with strong communication, negotiation, and relationship building skills. A strong candidate for this position will have a background in the Bagley-Keene Open Meeting Act requirements and experience advising public commissions, boards, agencies or departments. The Commission is a 14-member body created by the passage of the Voters FIRST Act, in 2008. It is charged with redrawing the California State Senate and Assembly, State Board of Equalization, and Congressional districts based on information gathered during the 2020 census. The Commission must draw the districts in conformity with strict, nonpartisan rules designed to create districts of reasonably equal population that will provide fair representation for all Californians. It is a further mandate that this process be conducted in an open and transparent manner, allowing for participation by the public. The commission is required to approve final maps by December 15, 2021. Salary: $12,824-$14,800 per month. Deadline: Interviews begin 10/13 and the job is open until filled. Application: For the complete job listing and to apply, click here 

Clerk, Douglas County, Colorado— This position (4 openings) serves as office support for the Elections Division of the Clerk and Recorder’s Office.  The Election Clerk provides customer service, assists with clerical functions, and performs data entry for voter registration.  Other duties in support of the conduct of elections or mail ballot processing may be assigned. Must be detail oriented, well organized, productive, and able to adapt in a high change environment. This role requires both independent judgment and the ability to work well as a part of a team. Professional representation of the Clerk and Recorder’s Office to the public is required to include standards outlined in the Vision, Mission, and Core Values of the Office. Provides daily customer service; answers phones; greets and serves in person customers; Performs general scanning, typing, filing, and collating functions; Performs complex data entry for new, changed, and canceled voter registrations; Performs verification and tracking of data entry; Assists with election judge coordination; Assists with processing incoming and outgoing mail; Administers state election laws and rules, and federal election laws to provide successful voting experience to staff and public; Maintains confidentiality of information consistent with applicable federal, state and county rules, and regulations; Provides support to election coordination, including deployment of materials to coordinating entities and Voter Service and Polling Center. This task may require operation of a motor vehicle; Assists with various special projects; Lives out the Vision, Mission, and Core Values of the Clerk and Recorder’s Office, maintains a supportive environment conducive to teamwork. Salary: 13.50 – 16.90 per hour. Application: For the complete job listing and to apply, click here.

Customer Success Manager, Dominion Voting Systems, Denver— The Customer Success Manager role started on a simple promise of transforming customer engagement from ‘reactive’ to ‘proactive’. Our CSM’s know that when our elections customers purchase Dominion Voting products that this is only the start of a meaningful exchange between Dominion Voting and our customers. Our CSM’s build value over time by balancing customer benefits and company profits. As the CSM, you will be the first voice of the customer and you will be responsible for the customer’s overall success, as defined by the customer. You will be successful in this role if you have superb people leadership skills, customer empathy, elections knowledge and experience, Dominion Voting product knowledge, and excellent project management skills. Application: For the complete job listing and to apply, click here.

HAVA Administrator, Nevada Secretary of State— The Nevada secretary of state’s office is seeking a HAVA Administrator. The incumbent in this position will manage the Help America Vote Act (HAVA) grant and in this capacity will work with members of the State Elections Division, county registrar of voters, and other elections related positions in the federal, state, and county governments to manage the application of the HAVA grant and support the conduct of state and federal elections. This position will be a key member of the State elections team and will be primarily responsible for the analysis and interpretation of federal and state elections law. This position will supervise up to six other elections-related employees. State employee Benefits – Medical, dental, vision care, life and disability insurance programs are available; eleven paid holidays per year; three weeks of annual leave; three weeks of sick leave; state defined benefit retirement plan; tax-sheltered deferred compensation plan available. State employees do not contribute to Social Security; however, a small Medicare deduction is required. Salary: $66,628.08 – $100,161.36. The Secretary of State’s Office is located in downtown Carson City, near beautiful Lake Tahoe in Northern Nevada, which offers a destination location to live, work and play. Application: For the complete job listing and to apply, click here.

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