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electionlineWeekly — November 3, 2016

Table of Contents

 VII. Legal Updates

Federal Lawsuits: U.S. District Court Judge John Vazques has ruled that the Republican National Committee must explain any agreements it has made with the campaign of Donald J. Trump in an attempt to ensure “ballot security”.

Arizona: U.S. District Judge Steven Logan is considering a request from the state Democratic Party to allow about 2,000 people who missed the voter registration deadline because of the Columbus Day holiday to vote on November. On Monday he ordered Secretary of State Michele Reagan to explain comments she made in a news release that seem to contradict her official position.

Also in Arizona, in a 2-1 opinion, the 9th U.S. Circuit Court of Appeals has rejected a challenge that would have required elections officials to count ballots cast out-of-precinct. "We find that the precinct vote rule, as administered by Arizona, probably does not impermissibly burden minority voters by giving them less opportunity than non-minorities to participate in the political process," Circuit Court Judge Carlos Bea wrote. "Similarly, the district court correctly found that the constitutional violation claims failed because the precinct vote rule, when considered together with other options available to Arizona voters, imposes only a minimal burden upon minority and majority voters." Chief Appeals Court Judge Sidney Thomas dissented

In other Appeals Court news, the 9th U.S. Circuity Court of Appeals voted to reconsider a ruling by a 3-judge panel kept in place the new state law banning ballot harvesting.

Arkansas: Faulkner County Circuit Judge David Clark said he doesn’t want his court to have an impact on voter turnout so he ruled that the election commission should count votes for both candidates in the county clerk’s race but not certify the election.

Also in Arkansas, a member of the Jefferson County Elections Commission has been sued by a voter accusing Stu Soffer of voter intimidation. In addition to being an election commissioner, Soffer is also a registered poll watcher. The voter alleges that Soffer told him to “shut up and go home.”

California: According to the Siskiyou Daily, the county has asked filed a motion to have a voting rights lawsuit against it dismissed. Plaintiffs sued earlier this year claiming that the county targeted Siskiyou residents of Hmong descent to prevent them from voting. The defendants have countered that their constitutional right to freedom of speech is imperiled by the lawsuit, as detailed in a motion to strike the plaintiffs’ complaint.

Also in California, a tentative legal ruling says that San Diego County must manually count a full one percent of vote-by-mail ballots when verifying the accuracy of the full tally, but it does not have to likewise include provisional ballots.

And in even more California (and ballot selfie) legal news, the American Civil Liberties Union filed suit this week seeking to have the state’s outgoing law on the ban on ballot selfies overturned. The General Assembly already approved new legislation legalizing the practice, but that does not go into effect until January 1. U.S. District Court Judge William Alsup ruled that the ban will remain in place for the November election.

Florida: A Florida judge has ruled that Broward County Supervisor of Elections Brenda Snipes has taken the necessary measures to ensure that those receiving ballots with a missing amendment question will be able to vote on the question.

Illinois: Judge Joan B. Gottschall rejected the argument that the Illinois Military Overseas Voter Empowerment Act violates the equal protection clause by treating former Illinois voters differently depending on their current residence. Illinois’ MOVE Act bars former state residents living in Puerto Rico, Guam or the U.S. Virgin Islands from voting by Illinois absentee ballot in federal elections, but allows their counterparts in American Samoa and the Northern Mariana Islands to do so.

Massachusetts: The American Civil Liberties Union has sued the state over the state’s voter registration deadline. State law bars citizens from voting unless they register at least 20 days before an election and the ACLU challenges that it should be closer to the election. The hearing is set for Monday.

Michigan: By a 2 to 1 decision, the 6th Circuit U.S. Court of Appeals struck down a lower court ruling and ballot selfies are once again illegal in Michigan. The justices cited timing as the reason for their decision. "Timing is everything," the Friday, Oct. 28, order authored by Jeffrey S. Sutton and joined by Ralph B. Guy Jr. states. "Crookston's motion and complaint raise interesting First Amendment issues, and he will have an opportunity to litigate them in full—after this election." "With just ten days before the November 2016 election, however, we will not accept his invitation to suddenly alter Michigan's venerable voting protocols, especially when he could have filed this lawsuit long ago," the order states. An attorney for the plaintiff has filed an emergency motion seeking a re-hearing.

Minnesota: Two election judges — one from Ramsey County and one from St. Louis County — have sued the secretary of state claiming his office is allowing ineligible felons, wards and noncitizens to self-proclaim that they are eligible to vote on Election Day. In the 18-page petitions, both judges claim state officials are requiring them to provide a ballot to ineligible felons, wards and noncitizens who "self-certify." A ward is someone placed under the protection of a legal guardian, like a child or an incapacitated person. They claim that under the guidelines, election judges cross out "challenged felony" if the ineligible registered voter self-certifies. They say this allows ineligible registered voters to cast a ballot in Minnesota. The case will be heard today.

New York: Add New York to the growing list of states being sued by voters and other organizations so voters can have the right to take a ballot selfie on Election Day. The suit, filed by three New York City voters claims that ballot selfies have become a common manner of political expression. The defendants include the state, the New York City Board of Elections and the district attorneys of Manhattan and Brooklyn.

North Carolina: U.S. District Judge Loretta Biggs issued a 78-page order ruling that the state Department of Motor Vehicles failed to meet the guidelines of the National Voter Registration Act and that the state must count provisional ballots of those who tried to register at the DMV, but whose names do not appear on the voter rolls.

An emergency hearing was held this week in a suit filed by the NAACP alleging that counties are violating federal law by removing voters less than 90 days before an election. State officials say the process complements federal law and preserves due-process. Although she did not rule, U.S. District Judge Loretta Biggs said the process sounds “insane” and"This sounds like something that was put together in 1901."

Ohio: On Monday, the U.S. Supreme Court dismissed a suit that would have required the state to count votes with errors. Justice Elena Kagan dismissed the matter after consulting with the other seven members of the high court, her one-sentence decision indicated. “This case has been ongoing in Ohio, taking many forms, under the administration of three secretaries of state, both Democratic and Republican, and it is time for the chaos and waste of taxpayer money to come to an end," said Secretary of State Jon Husted in a statement Monday night.

Virginia: Chesterfield Registrar Larry Haake has been sued by the Public Interest Legal Foundation. The group claims Haake refused to disclose “election records showing foreigners improperly registered to vote in Virginia.” "Under Section 8 of the National Voter Registration Act (or Motor Voter), the public has the right to physically inspect election records related to maintaining accurate voter rolls," the group says.

Wisconsin: U.S. District Judge James Paterson has ordered the state Department of Motor Vehicles to track down about 50 people who had their voting credentials returned as undeliverable. “The DMV must attempt to contact family members or associates of the petitioner using whatever contact information is available,” he wrote. “Heroic measures are not required, but the DMV must at least attempt to contact the family or friends of those petitioners who are entitled to a voting credential but have not received them.”