I. In Focus This Week
Law & Order elections style
Election administration lawsuits pile up
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.
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.
“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.
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.
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.)
II. Election News This Week
- Jones County, Miss. has asked the U.S. Dept. of Justice about the legality of removing printers from the county’s voting machines. The county board of supervisors has approved the move, but Clerk Bart Gavin wanted to check with DOJ first to ensure that no laws were being violated. “Our voting machines were not designed to have these printers,” Gavin told the Laurel Leader Call. “The Mississippi Legislature decided we should add the printers after we switched to electronic voting machines.” Gavin said he wants everyone to know that he doesn’t have a problem with printers. He says they are just not functioning the way they were intended to function and are causing more problems during elections.
- A switch to voting centers in Albuquerque got off to a rough start this week with reports of computer trouble and long lines. According to the Alamogordo Daily News, city officials said the problems may have stemmed from interference between the city’s computer network and the one operated by the city’s school system. About half of the voting centers were housed in city schools.
- Primary Update: Following last week’s electionlineWeekly story on the state of primary elections, several states have made moves regarding theirs. In New Jersey, the state made it official and eliminated a stand-alone presidential preference primary and will now have one primary in June. Clerks in Missouri are calling on the state legislature to decide whether or not to hold a primary. After legislation to hold a primary in March was vetoed, the state GOP moved to hold a caucus in September. The problem is that without action from the legislature, clerks will still need to prepare for a primary for both parties in February. As expected, Georgia Secretary of State Brian Kemp scheduled the Peach State’s presidential preference primary for March 6. Florida set the primary world on its head by choosing to schedule it’s primary on January 31. In addition to impacting other states, localities in the Sunshine state are now scrambling to deal with the earlier date. Following the Florida decision, Nevada moved its caucuses to January 14, South Carolina pushed its primary to January 21, and New Hampshire is still trying to figure out what to do. Speaking of South Carolina, it appears there may be a deal in the works to ensure that counties won’t be left holding the bag for the cost of the GOP primary. The state election commission and the South Carolina Republican Party have agreed to reimburse counties for “all legitimate expenses” associated with the primary.
- Personnel News: Congratulations go out to Rutherford County, Tenn. Administrator of Elections Nicole Lester for earning her state certification. Missouri Secretary of State Robin Carnahan announced this week that she will not seek re-election in 2012. Carnahan is currently serving her third term as secretary of state. Seneca County, Ohio’s board of elections swore in three new workers this week: clerks Donna Theis and Lorrie Wolfelt and Andrea Carroll as deputy director.
III. Research and Report Summaries
Election Data Dispatches – Pew Center on the States: The Elections team at the Pew Center on the States has launched Election Data Dispatches, a round-up of the best stories, data, research and analysis that the world of election administration has to offer. The findings are often critical to understanding what data exist, what they say about elections in America and how states and localities use data to increase the efficiency and effectiveness of their election systems. This week’s dispatch focuses on how states update their voter registration lists.
Voting Law Changes in 2012 - Wendy R. Weiser and Lawrence Norden, Brennan Center for Justice at New York University of Law, October 2011: Based on its analysis of 19 laws and two executive actions related to election administration that passed in 14 states in 2011, the Brennan Center states these new rules could make it more difficult for more than five million eligible voters to cast ballots in 2012. The research focuses on changes to photo identification requirements, proof of citizenship requirements to register to vote, when and how people register to vote, time periods for early and absentee voting, and the restoration of voting rights for people with past felony convictions.
Election Law Journal: Rules, Politics, and Policy – Edited by Paul Gronke and Dan Tokaji, Volume 10, Number 3, September 2011: The most recent issue of the Election Law Journal looks at:
- The effect of convenience voting on election outcomes;
- The lessons of the 2008 Minnesota Senate recount;
- Non-precinct place voting
Arizona: Voting process
California: Instant runoff-voting
Maine: Voter registration
New Jersey: Voter turnout
New Mexico: Streamlined voting
Oregon: Voter ID
South Dakota: Military/overseas voting
West Virginia: Special election
V. Job Openings
Electronic Voting System Expert/Examiner, Harrisburg, Pa.—the Pennsylvania department of state has issued an invitation for a bid for an electronic voting system expert/examiner to examine, re-examine, and approve electronic voting systems pursuant to section 1105-A of the Pennsylvania Election Code. Deadline: Oct. 19.