August 28, 2014

I. In Focus This Week

Law & Order: Elections division
A snapshot of the plethora of elections-related litigation

By M. Mindy Moretti

These days, how, when and where people cast a ballot is determined as much by the legal system as it by legislators.

Electionline doesn’t purport to be Rick Hasen’s Election Law Blog or an elections law expert like the folks at the Moritz College of Law at The Ohio State University, shoot, electionline doesn’t even have a law degree (although we wonder whether maybe we should), but one thing we can do is read and summarize the news.

And so here is a snapshot of some of the litigation that is currently pending — or has recently been decided — throughout the country.

Obviously in these litigious times there is a lot more out there that we didn’t include, but this should give you an idea of the current legal landscape.

Alaska: A decision is still pending on voting rights trial in Alaska that pitted Alaska Native organizations against the state over the translation of ballots. According to the Alaska News Dispatch, plaintiffs claim the states failure to provide language help, as required by the U.S. Voting Rights Act, suppresses turnout. They want the judge to force the state to translate a variety of elections materials including ballots into Gwich’in and all the Yup’ik dialects.

Arizona: U.S. District Judge David Campbell halted this week’s election for a seat on the Peoria city council. Ballots for the election were misprinted two times. While the third printing included the missing candidate’s name, the city council voted to only count the first two misprinted ballots. Campbell ruled that instead of an election this week that a special election should be held.

Arkansas: Litigation is still pending in The Natural State over the state’s proposed voter ID law. In May a circuit judge granted a preliminary injunction against the state’s voter ID law, but the judge stayed his order pending an expected appeal so the law was in place for the May primary and June runoff. This month college professors, activist groups and one county clerk sought permission to file friend-of-the-court briefs in support of the plaintiffs who sued to stop the law.

California: A former candidate is suing the Fullerton City council who claims that the city’s at-large voting system violates the California Voting Rights Act of 2001. According to the O.C. Register, the suit alleges that Fullerton’s system “impairs the ability of certain races to election candidates of their choice or influence the outcome of elections…”

Colorado: The small town of Castle Rock recently held a special election on whether or not residents will be allowed to open-carry guns, but the results are still not known due to pending litigation. The latest lawsuit—there have been several—contends that there are problems with the way the mail-in ballots are being processed and that the election should be rendered void.

Also in Colorado, the Town of Montezuma filed suit against every registered voter in the town arguing that the 2013 spring election had numerous errors due to the voters themselves. According to The Denver Post, the suit lists errors that include numbers that don’t add up and mismatched ballots that had to be patched together on the clerk’s sewing machine.

Florida: Late last week Leon County Circuit Judge Terry Lewis approved new congressional voting maps. In July Lewis had ruled the maps unconstitutional and the Florida legislature had to call a special session to redraw the maps. An attorney for a coalition of groups that had originally sued over the district lines told Politico that the groups plan to appeal the ruling.

Hawaii: In addition to a legislative investigation into the August 9 primary in the Aloha State, the American Civil Liberties Union has filed a legal challenge to the election. According to the Honolulu Star-Advertiser the lawsuit asks the court to give any voter affected by Tropical Storm Iselle a chance to vote in person or by absentee before September 20. The 20th is the deadline for tabulating primary results. This week the state asked the Hawaii Supreme Court to dismiss the legal challenge.

Iowa: An attorney representing five people who allegedly voted despite having felony convictions is asking the court to throw out the cases. Public Defender Aaron Hawbaker argued that the state statute banning felons from voting is improper because it oversteps the state constitutions that only bars people convicted of an “infamous crime” from voting. The judge in the case gave Hawbaker two weeks to submit briefs.

Kansas (and Arizona): This week the U.S. Department of Justice argued against Kansas’ proof-of-citizenship law. The 10th Circuit Court of Appeals in Denver heard the arguments. The three-judge panel failed to make a decision instead suggesting that the U.S. Election Assistance Commission did not have the power or authority to reject the states’ request because staff members and not commissioners made the decision. The court indicated that they would not have a decision before the November election.

Maryland: The National Federation of the Blind filed suit against the state of Maryland demanding that the state certify online ballot-marking devices to help facilitate voting for those with disabilities. The plaintiffs, that contend that blind voters are denied their voting rights by relying on someone to help them fill out their ballot rested their case on Aug. 15. This week the state presented three days of testimony arguing why officials should not be forced to certify the equipment. At the conclusion of testimony, U.S. District Judge Richard Bennett said that he should have a ruling by the end of the week.

Michigan: Dearborn Heights resident Robert Hadous has filed suit seeking to compel the city council to explain why it is not in contempt of court for failing to replace the town’s clerk who resigned, but then rescinded that resignation.

Mississippi: A date of Sept. 16 has been set to hear arguments in the lawsuit filed by state Sen. Chris McDaniel who is challenging the June 24 Republican primary runoff that he lost to U.S. Sen. Thad Cochran. In the most recent action in the case, Cochran’s attorney argued in filings that the date of the hearing is too late and that therefore the suit should be dismissed. The judge will hear pretrial motions, including the motion to dismiss, on August 28. All of this could be for naught though because Secretary of State Delbert Hosemann has set the November ballot — including Cochran — and said that early voting will begin in September.

At press time, in the latest twist to this case McDaniel subpoenaed all the voting records from 46 counties. According to The Clarion-Ledger, clerks have two days to deliver “original election documentation.” Needless to say, the clerks are none-too-pleased about this. At least one county — Oktibbeha — has filed a motion to quash.

Nevada: According to the Las Vegas Review-Journal, an immigrant living in the country illegally who registered to vote in Washoe County under a false name and cast ballots in the 2008 and 2010 Nevada elections has been sentenced to 103 days in jail after pleading guilty to one gross misdemeanor count of “conspiracy to commit violations concerning registration of voters.”

New Mexico: A lawsuit filed by disgruntled voters in Rio Rancho will proceed after U.S. District Court Judge William Johnson denied the plaintiffs request for a summary judgment. The suit, filed against Sandoval County Bureau of Election Director and Eddie Gutierrez and County Clerk Sally Padilla claims that the by offering only five voting locations in Rio Rancho voters were forced to wait in long lines on election day and some failed to cast ballots.

In other litigation news from The Land of Enchantment, a judge recently denied Rep. Mary Helen Garcia’s (D-Las Cruces) petition to overturn the June primary that she lost by 16 votes. In her petition, Garcia alleged that her los was the result of fraudulent absentee ballots cast in Sunland Park.

North Carolina: The state’s division of the NAACP has appealed U.S. District Judge Thomas D. Schroeder’s ruling that puts new voting restrictions into place. The motion comes two weeks after Schroeder denied a preliminary junction against his initial ruling. The preliminary injunction would have barred the state from limiting early voting days and eliminating same-day voter registration.

Ohio: U.S. District Judge Peter Economus is weighing arguments over the state’s early voting law. In the lawsuit, filed by civil rights groups and voting rights organizations, plaintiffs argue that changes to the state’s “golden week” limits voting for black residents. The plaintiffs are seeking a preliminary injunction to keep the law from being enforced in November. According to the Associated Press, the judge’s decision is expected by the end of the month.

Also in Ohio, a second Supreme Court justice has announced that she will not hear the Lucas County GOP’s challenge to Secretary of State Jon Husted’s refusal to appoint the party’s recommendations to the county BOE.

South Dakota: The Libertarian party has asked a federal judge to halt the printing of ballots for the November general election because their candidate for state public utilities commission does not appear on the ballot. Ryan Gaddy was denied access to the ballot because he changed filed his party affiliation change paperwork too late. Secretary of State Jason Gant told The Associated Press that he has no intention of printing the ballots until the legal issues are resolved.

Tennessee: Former candidate Jessica L. Fallin has filed a complaint in the Chancery Court of Johnson County to overturn the recent election claiming that state election laws were not properly followed with regard to certification and early voting.

Utah: This week state elections officials argued before the Utah Supreme Court to reverse a lower court’s ruling that Millard County hold a new primary runoff election. In the GOP primary, one candidate appeared to win by five votes, but several ballots were challenged and Judge Claudia Laycock ruled that seven ballots were improperly counted and one voter was wrongly denied a vote. Laycock called for a new election, but the state had questions about the order. “It’s become pretty clear to us that we need further direction from the court,” Mark Thomas, state elections director told The Salt Lake Tribune. “So essentially the lieutenant governor’s office is going to the Supreme Court on an emergency appeal to get clarification on this issue.”

In the same election, one of the election challengers has asked a judge to hold the county clerk in contempt of court for not abiding by the judge’s early order to hold a new primary.

Washington: A federal judge ordered the city of Yakima to change its elections system in order to comply with the Voting Rights Act. The court found that Latino voters have not been able to fully participate in city council races.

Wisconsin: On Aug. 21 the 7th Circuit Court of Appeals said that it would not rule on Attorney General J.B. Van Hollen’s request to reinstate the state’s voter ID law while the court is considering the laws overall constitutionality. In a new court filing Van Hollen and Gov. Scott Walker are once again urging the federal court to reinstate the voter ID law.

And because this section is also about order, a Wisconsin man charged with casting multiple votes in multiple elections including five in the 2012 recall election entered an insanity plea. Robert L. Monroe was charged with 13 counts of illegal voting.

 II. Primary Roundup

Arizona: Canceled elections in Peoria aside, primary day in The Copper State was relatively quiet. There were a handful of reports about minor problems, but nothing major during the voting process anyway.

The problems in Cochise County began after the polls closed. Due to a software glitch of some kind — they are still working on it — ballots from Cochise County had to be transported to Graham County, which uses the same system, for the ballots to be counted on election night.

Although there are still ballots to count, Maricopa County is guaranteed an almost 20 percent voter turnout because the county received more than 369,000 vote-by-mail ballots in advance of the deadline.

In Pima County, elections officials used tablets for the first time countywide as a way to cut down on provisional ballots, particularly ballots for those who requested an early ballot but then decided to cast their vote on primary day instead.

There are still 1,700 ballots that remain to be counted in Payson and some of the races are within a 1700 vote margin. It is expected that the votes will be counted by Friday.

Flooding from monsoon rains limited access to one polling place in Douglas. Voters were directed to approach the polling place from a different direction to avoid flooded streets.

Results from Yavapai County were not reported until early morning because there were problems with the new vote-tallying system.

Several races in Tombstone were close enough that candidates were waiting for provisional ballots to be counted.

In the secretary of state race State Sen. Michele Reagan won the GOP nod and will take on Democrat Terry Goddard in November. Reagan spent 12 years in the state legislature and most recently served as the chairman of the Senate Elections Committee.

Florida: Although early voting numbers were down overall in 2014 compared to 2012, they were up compared to 2010. Vote-by-mail seemed to prove increasingly popular in the Sunshine State in the lead-up to the primary election this week. On primary day itself, turnout proved lackluster.

A group of registered voters admitted to the Miami-Herald that they would rather wait in line over night (which they did) for a new IKEA to open up than make their way to the voting booth on Tuesday.

When Hernando County had issues getting elections results posted to the county website, elections officials did the only thing they could…they turned to social media, Facebook specifically, to post the results while they worked to get the issues with the website resolved.

In Pinellas County a fire at the Vietnamese Alliance Church forced the county to find a new polling place just two days before the election. The new polling place, a recreation center, is located about a mile away.

A power outage in Broward County forced poll workers at one polling place to call the supervisor of elections office to verify voter’s ID when the power was cut to the machines used to swipe driver’s licenses. The machines don’t have battery back-ups. One of the precincts at the polling place saw no voters during the outage and the other saw 10.

Early primary day voters ran into problems in Palm Beach County with the mini-iPads the county purchased — for $1.3 million — this year to help check-in voters. About 50 voters’ licenses were rejected due to technical problems and those voters were given provisional ballots. Supervisor of Elections Susan Bucher said the problem was quickly resolved.

In Manatee County, five temporary air conditioners kept voters and poll workers cool at the Kirby Stewart American Legion polling place. The temporary units were brought in after the supervisor of elections office was informed that the building’s HVAC system was being renovated…during the election.

And it was business as usual at one Miami-Dade County polling place on Tuesday. Unfortunately business as usual meant campaign workers lining the sidewalks and shouting at voters in English and Creole, shoving fliers in the windows of passing cars and loud arguments. “This is a large precinct. There’s a lot of voters, there’s approximately 4,000 some odd registered voters. That means this. You know, the little fighting, the bickering comes out,” Alix Desulme, former North Miami city clerk told WLRN.

Oklahoma: There were no major problems reported with Oklahoma’s primary runoff on Tuesday, other than perhaps the cost of actually conducting a primary runoff.

Although turnout numbers weren’t available by press time, based on reports, it doesn’t seem that the voter shaming website did much to boost voter turnout. David Glover, a “self-described political junkie” created the website, that allows anyone to look up any registered voter in Oklahoma’s voting history.

According to the Moore American, the site provides the voters name, city of residence and the number days that have elapsed since the voter last cast a ballot. Glover told the paper the site is meant to put some social pressure on people and hopefully increase Oklahoma’s notoriously low turnout.

Vermont: The biggest news out of Vermont following this week’s election was how the state’s new election reporting system would work. Overall they system seems to have worked and worked fairly well, but there were some issues including that the city of Burlington could not get all of their results loaded and worked until 1:30 in the morning before officials gave up for the night.

 III. Election News This Week

  • A group calling itself the Virginia Voters Alliance has challenged the registrations of 15,000 voters in Fairfax County claiming that the voters are also registered in Maryland. A Republican member of the county’s electoral board told the Richmond Times-Dispatch that the county will reach out to the voters in question. The state’s attorney general’s office is now investigating.
  • According to Kansas Secretary of State Kris Kobach, only one voter in Kansas who registered using the federal voter forms without proof-of-citizenship actually cast a ballot in the August primary. There are 180 residents who used the federal form. Kobach told The Associated Press that his office is will working to determine how many of the more than 18,000 people whose registrations are on hold cast a provisional ballot.
  • It’s one thing to misplace your keys, but how do you misplace more than 100 ballots? That’s the question for officials in Green County, Wisconsin who told the state that following the vote canvass there are 110 ballots missing in a race that was decided by just seven votes. After interviewing poll workers, County Clerk Michael Doyle said it could not be determined where the ballots are so the requested recount will proceed without them.
  • The North Carolina State Board of Elections has put employees and appointed members of the state’s 100 county boards of elections on notice that the SBE will be watching what they do on social media and “liking” a candidate on Facebook could result in the loss of their job. Josh Howard, chairman of the SBE recently sent a memo the county boards warning that Facebook “likes” or retweets could end their job. According to The Salisbury Post, the five-member state board has stressed that it will strictly enforce a state law that bars elections board members and staffers from making written or oral statements intended for the public at large that support or oppose candidates.
  • Bah humbug. In other news out of North Carolina, local craftspeople are upset with the Forsyth County BOE because the BOE is insisting on using the South Fork Recreation Center for early voting which will displace the annual Holly Jolly Craft Show, which will now likely have to be canceled.
  • And with football season upon us (finally!) three cheers to the Johnson County, Iowa auditor’s office that will be bringing it’s votemobile to six high school football games this fall in order to give residents a chance to vote early. “It’s just another way for the Auditor’s Office to reach out and increase voter turnout,” Johnson County Auditor Travis Weipert told the Iowa City Press-Citizen. “For people with kids, they’re busy and it can be hard to vote on Election Day, so now we’re kind of bringing voting to them.”
  • Personnel News: Lucinda Holycross is retiring as director of elections for Logan County, Ohio and her co-director Diana Gamble is also retiring. Charlie White, former Indiana Secretary of State has a new job, as a political blogger. White recently launched The Indy Sentinel, a site about “pols and media who are fair and those who live to serve the elites in both parties to public’s detriment.” Brian Newby, Johnson County, Kansas election commissioner was reappointed for another four-year term this week.

 IV. Research and Report Summaries

electionline provides brief summaries of recent research and reports in the field of election administration. The summaries are courtesy of the research staff of The Pew Charitable Trusts Elections Initiatives. Please email links to research to Sean Greene at Pew.

Improving California’s Vote-by-Mail Process: A Three-County Study – California Voter Foundation, August 19, 2004: This study about vote by mail in three California counties over four elections from 2008 – 2012 finds three main reasons why these ballots go uncounted:

  • Late-arriving ballots, which make up 61 percent of uncounted ballots;
  • Ballots with no signature make up 20 percent of uncounted ballots; and
  • Ballots with a signature that does not adequately match the one on file make up 18 percent of uncounted ballots.

The report offers recommendations including allowing ballots postmarked by election day to be counted, providing more funding to counties to administer vote by mail, alert voters if their mail ballot isn’t counted, and require the Secretary of State to report the number of mail ballots not counted and the reasons why they were not counted.

 V. Legislation Update

California: By a 49-20 vote the state Assembly approve SB29 that will allow elections officials to count mail-in ballots that are received up to three days after an election as opposed to by the close of polls on election day as is currently the case.

Florida: Rep. Alan Williams (D-Tallahassee) said this week that he plans to introduce legislation later this year that will move the Sunshine State to a system of online voter registration. “Let’s face it. We are no longer in a typewriter generation. We are an iPad world,” Williams told WBBH.

Kentucky: Legislation allowing voters to decide whether or not ex-felons voting rights should be restore has been pre-filed in advance of the 2015 legislative session. There are several potential bills that would place a constitutional amendment on the ballot.

New York: Like a dinner guest who just won’t leave, lever voting machines are back in the mix again in The Empire State. Gov. Andrew Cuomo signed legislation into law that allows village, school and special districts to use lever-voting machines until the end of 2015.

 VI. Tech Thursday

Sacramento County, California: The California State Association of Counties recently recognized Sacramento County’s registrar of voter’s office for the development of the SacVote mobile app. The county’s IT staff had no app development experience so they took classes on their own time to learn the skills necessary to create SacVote which currently provides polling place information and sample ballots. The app is available for Apple and Android.

Rhode Island: The Rhode Island Secretary of State’s Office recently introduced RI VIC, a free mobile app that allows Rhode Island voter to use mobile devices to access voting information including polling place location, check their voter registration status and get directions to said polling places. The app is available for Apple and Android devices.

Wilson County, Tennessee: The county has launched a new mobile app that allows voters to check their registration status, locate their polling location, view the election commission’s website and keep up with the wait times at early voting sites. Jeff Westbrook, who is a student at Vol State and an intern with the election commission, built the app, which is available for Apple and Android products.

VII. Opinions

National Opinions: Voting rights, II, III | Voter ID | Voter fraud

Arizona: Proof-of-citizenship

Arkansas: Early voting

California: Voter turnout, II, III

Connecticut: Primary date | Voting law changes

Florida: Voting excuses | St. John’s County

Illinois: Election reform | Election-day registration

Iowa: Voter turnout

Kansas: Proof-of-citizenship, II | Voting rights, II

New Mexico: Secretary of state race | Voter ID

New York: Voter fraud

North Carolina: Voter registration | Forsyth County

Ohio: Absentee ballots

Rhode Island: Provisional ballots

Texas: Voter ID

Virginia: Voting rights

Washington: Voting rights, II, III, IV

Wisconsin: Voter ID, II

 VIII. Upcoming Events

National Voter Registration Day — The 3rd annual National Voter Registration Day is scheduled for September 23. In its first two years, more than 1,000 groups and 10,000 volunteers registered over 360,000 people to vote. When: September 23. For more information, click here.

EVOTE2014: Verifying the Vote — The Competence Center for Electronic Voting and Participation is hosting a 6th annual conference on electronic voting. This conference is one of the leading international events for e-voting experts from all over the world. One of its major objectives is provide a forum for interdisciplinary and open discussion of all issues relating to electronic voting. The format of the conference is a three-day meeting that deals with the topics from a both a theoretical perspective and a practical one. Practical papers should use case studies. No parallel sessions will be held, and sufficient space will be given for informal communication. Where: Lochau/Bregenz, Austria. When: October 29-31, 2014. For more information, click here.

National Student/Parent Mock Election — Now in it’s 34th year, the National Student/Parent Mock Election invites you to join the world’s largest national mock election and nation’s larges civic education project. Since 1980, students have learned what it means to be informed voters, casting votes for Presidential, U.S. Congressional and gubernatorial candidates. What’s more, students continue to demonstrate the value of civic engagement – from organizing their own debates and campaign activities to holding student rallies. When: October 30, 2014. For more information and to register, please click here.

National Conference of State Legislatures Forum— Mark your calendars now for NCSL’s fall forum. More information will be available in September, but make sure to get this in ink on your calendar now. Where: Washington, D.C. When: December 9-12.

 IX. Job Openings

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 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.

Director or Deputy Director, Wayne County, Ohio — pursuant to Directive 2012-23 from the Ohio Secretary of State, notice is given that the Wayne County Board of Elections is currently accepting applications for the position of Director or Deputy Director. A candidate for Director or Deputy Director will be required to lead the fulfillment of the following minimum duties: Prepare and conduct all primary, general and special elections held in the county; process, evaluate and report election results; recruit and train precinct election officials; supervise the processing of voter records; keep a full and true record of the proceedings of the board and all moneys received and expended; file and preserve in the board office all orders, records, and reports pertaining to the administration of voter registrations and elections; prepare the minutes of board meetings; audit campaign finance reports; calculate charge backs to political subdivisions; receive and have custody of all books, papers, and property belonging to the board; perform such other duties in connection with the office of director and the proper conduct of elections as the Secretary of State and Board determine; review all Directives, Advisories, Memoranda, correspondence and materials issued by the Secretary of State and take action as required by those communications; supervise and instruct board employees, assign work, coordinate activities, make recommendations concerning hiring, responsibilities, compensation, discipline, and discharge of board employees; and develop a proposed annual budget to be submitted to the county commissioners, upon approval of the board of elections, and monitor the board’s budget and payroll relative to current year appropriations. Qualifications: A candidate for Director or Deputy Director of a board of must have a baseline understanding of the rules, processes, procedures and equipment used in local election administration, including: operating voting machines used in the county and other automated office equipment; managing a successful and efficient database; using, understanding and applying election law terminology; knowing the basics of Ohio’s “sunshine laws” governing open meetings and public records; and receiving and implementing assignments and instructions from board members and Secretary of State’s office. Candidate must, to the satisfaction of the board, have the experience and capability to manage the day-to-day operations of that county’s board of election. To this end, the candidate must possess: effective written and interpersonal communication abilities; strong organizational skills and attention to detail; familiarity with relevant state and federal human resources policies and practices; familiarity with the handling of budgets and public appropriation of funds; ability to perform duties as assigned by the law, the county board of election, and/or the Secretary of State; ability to convey or exchange information, including giving and managing assignments or direction to board personnel; ability to be adept and to perform in a professional manner under stressful or emergency situations; ability to comprehend a variety of informational documents; and ability to conduct self at all times in a professional and courteous manner. Education: must have a high school diploma or have attained the equivalency of a high school diploma (GED). College level education is desired. Deadline: September 4. Application: Candidates should submit a cover letter and current resume confidentially to: Attention: B. Jean Mohr, Chair; Wayne County Board of Elections; 200 Vanover St., Suite #1; Wooster, OH 44691.

Voting Systems Manager, Colorado Secretary of State — the position manages the voting systems team to ensure certification of voting systems, county support for technical issues, and implementation of the Election Night Reporting, Uniform Voting Systems, Post-Election Audit, Risk-Limiting Audit, and Ballot on Demand programs. Responsibilities include: Supervision of the voting system team, oversees certification of voting systems and verification or reinstallation of trusted build on county systems, ensures timely reporting of election night results on statewide basis, plans and implement Uniform Voting System when approved and funded, assists counties with technical issues relating to pre-election voting system testing, coordinates statutory post-election audits and plans for and implements risk-limiting audits on statewide basis, provides assistance to counties with ballot-on-demand, ensures that county voting systems are periodically audited and used in compliance with all applicable legal requirements, assists counties and vendors in resolving technological issues related to voting systems. Qualifications: Graduation from an accredited college or university with a bachelor’s degree in Public Administration, Business Management, Information Systems, Information Technology, or Engineering and three years of professional experience in election administration, large scale project implementation, program management or supervision. Salary: $4,764.00 – $6,973.00 Monthly. Application: For complete job posting and to apply click here. Deadline: Sunday, September 14, 2014 at 11:59pm MT.