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electionlineWeekly — August 28, 2014

Table of Contents

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.