RNC Election law Update June 1, 2022

Republican National Committee

ELECTION LAW UPDATE

Shared by Peter M. Feaman

National Committeeman for Florida

Below is a high-level summary of important news.

State Legislation Highlights

States currently in Session: Alaska, Arizona, California, Delaware, Kansas, Louisiana, Minnesota, Missouri, New Hampshire, New Jersey, Ohio, Oklahoma, Rhode Island, Vermont, and Wisconsin.

States in Regular Session throughout the year: Massachusetts, Michigan, New York, Pennsylvania.

States Sine die: Alabama, Arkansas, Colorado, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Mississippi, Nebraska, New Mexico, Oregon, South Carolina, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, and Wyoming.

Arizona

Governor Ducey signed SB1008, which raises the threshold to trigger an automatic recount and requires that an automatic recount be conducted when the canvass of returns in a primary or general election shows the margin between two candidates for or against a ballot measure is less than or equal to one-half of one percent. The legislature passed HB2237, which prohibits a state agency from registering a person to vote on Election Day and deeming that person eligible to vote in that election; HB2237 was sent to Governor Ducey last week.

Louisiana

The House of Representatives passed HB811, which prohibits the use of private funds for election-related expenses.

Missouri

The Missouri legislature passed HB1878, a comprehensive election reform package. Highlights of the legislation include:

  • Authorizes the Secretary of State to audit voter registration lists and requires election authorities to remove improper names;
  • Removes obsolete references to ballot cards and requires voting machines to be air gapped as a security measure;
  • Prohibits the state and its political subdivisions from receiving or expending private money for preparing, administering, or conducting an election or registering voters;
  • Removes the one-year voter and residency requirement for election commissioners, but retains the requirements of voter registration and residency at the time of appointment;
  • Exempts board of election commissioners and clerk employees from requirement to reside or register within the jurisdiction in which they serve;
  • Allows appointment of election judges who reside outside the requisite election authority’s jurisdiction without the need for written consent from the election authority in whose jurisdiction the potential judge resides;
  • Authorizes the Department of Revenue to use electronic applications when sending materials to election authorities;
  • Beginning January 1, 2023, requires any person registering to vote to declare a political party affiliation or declare unaffiliation;
  • Restricts voter information released by election authorities by prohibiting the release of the date of birth of voters, instead allowing only the release of the year of birth, as well as prohibiting use of released information for commercial purposes;
  • Prohibits payment for soliciting voter registration applications and requires registration with the Secretary of State’s office for soliciting more than 10 voter registration applications;
  • Beginning January 1, 2023, it requires the use of a paper ballot that is hand-marked by the voter;
  • Specifies photographic identification requirements for voting a regular ballot and for voting by absentee ballot;
  • Prohibits the use of mail-in ballots under executive or administrative order;
  • Requires the Speaker of House and President Pro Tempore receive a copy of any civil action in state of federal court to compromise or settle any action, consent to any condition, or agree to any order in connection with chapters 115 to 128 (Missouri Election Code); and
  • Requires all audits to be conducted by the Secretary of State and paid for by state and federal funding.

Ohio

Republican legislators introduced House Joint Resolution 4 to reinforce that non-citizens cannot vote in local or state elections. The Joint Resolution follows the State’s constitutional amendment process and needs three-fifths of both the House and Senate to vote to approve. If approved, Ohio voters will vote on the Resolution on the November general election ballot, needing only a simple majority of the State’s electorate to amend the Ohio Constitution.

South Carolina

Governor McMaster signed HB4919, which creates a two-week early voting period preceding every general election, requires each county to establish one to seven early voting locations, modifies the absentee voting application and who may vote absentee, creates a new felony for those who intentionally publicly report the absentee ballot tabulation results prior to the close of the polls, establishes procedures to maintain and update the voter registration records statewide, and dictates security protocols and investigation measures during and after elections.

State Litigation Highlights

Arizona

In August, a lawsuit, Mi Familia Vota v. Hobbs, was filed in AZ challenging SB1485, which removes voters from the permanent mail ballot list if a voter does not vote by mail in two straight election cycles; and SB1003, which requires voters to “cure” signature-less ballots by 7PM on Election Day. The RNC and the NRSC have intervened to defend the laws. Defendants filed a motion to dismiss on November 18, and discovery is underway. On March 14, Mi Familia Vota filed a notice with the court stating that it did not intend to seek a preliminary injunction prior to the 2022 midterms.

Two lawsuits were filed challenging HB2492, which requires voters who are only eligible for casting a vote in federal elections to provide documentary proof of citizenship. Any voter who cannot satisfy the requirement will be ineligible to vote in a presidential election or by mail. The Democratic National Committee (DNC) and the Arizona Democratic Party also plan to file a lawsuit challenging the law. Update: On May 12, the RNC, the Republican Party of Arizona, and Mohave and Gila County Republican Parties moved to intervene in the two lawsuits to defend HB249.

Arkansas

In February, the Arkansas Supreme Court affirmed the trial court’s decision not to dismiss a lawsuit challenging Arkansas’ voter integrity laws. A bench trial began on March 15. In a ruling from the bench, the court granted a permanent injunction for all four of the challenged election laws , finding “that defendant’s stated concerns about election integrity and insecurity are based entirely on conjecture and speculation.” On March 24, the Arkansas Attorney General filed an appeal and a motion to stay the trial court’s ruling. The motion to stay was denied by the trial court, but the Arkansas Supreme Court granted an emergency motion to stay on April 1.

Colorado

In December, the Public Interest Legal Foundation (PILF) sued the Colorado Secretary of State for withholding voter registration list maintenance records, in violation of the NVRA. On April 11, the Secretary of State moved to dismiss the claims.

Florida

In June, the RNC and NRSC were granted intervention in all four lawsuits challenging provisions of SB90, Florida’s 2021 election reform legislative package. On March 31, the U.S. District Court permanently enjoined multiple provisions of SB90 including the provisions requiring registration disclaimers for third party voter registration organizations (§ 97.0575(3)(a)), registration delivery provisions for third party voter registration organizations (id. ), drop box restrictions (§§ 101.69(2)-(3)), and line warming provisions (§§ 102.031(4)(a)-(b)). The court also determined the defendants are not entitled to a stay and put Florida under preclearance in regard to any “law or regulation governing 3PVROs, drop boxes, or ‘line warming’ activities, as those terms are defined in [the] Order” for a 10-year period under 52 U.S.C. § 10303(c). Several other provisions of the law were upheld, including the ballot harvesting ban, two-year standing requests for receiving vote-by-mail ballots, and on all ADA claims. Defendants, including the RNC and NRSC filed a notice of appeal on April 7, and a stay request with the 11th Circuit on April 11. On May 6, the 11th Circuit granted the defendants’ stay request, leaving in effect provisions previously struck down by the lower court and rejecting the district court’s order to put Florida under “preclearance” for ten years.

Georgia

In July, the RNC, NRSC, NRCC, and GA GOP were granted intervention in eight lawsuits, including the U.S. Department of Justice’s lawsuit against the state, challenging provisions of SB202 . Previously, the court denied motions to dismiss for lack of standing and on the merits, filed by the RNC, other Republican organizations, and Republican lawmakers in Georgia in eight of the lawsuits. In December, the court denied the motions to dismiss filed by the State, RNC, NRSC, NRCC, and the GA GOP. The court will consider plaintiffs’ request for a preliminary injunction at a hearing on June 9. In the 9th case challenging SB202, the court dismissed the case without prejudice for failure to serve the defendants.

On May 2, a group of liberal organizations sued Georgia’s Election Board regarding absentee ballot applications. In Georgia, an absentee ballot must be signed with pen and ink. The groups seek declaratory and injunctive relief, requesting the court find that the Pen and Ink rule violates the Civil Rights Act and to enjoin its enforcement.

A federal lawsuit, filed back in 2018 by liberal voting rights groups, is in the middle of its trial in Georgia. The plaintiffs argue the State’s “exact match” registration rules and additional absentee ballot requirements, put in place by SB202, violate the Constitution and the Voting Rights Act. The Judge granted Defendant’s request for a continuance and the trial will continue on June 13, 2022.

Illinois

In 2020, PILF sued the Illinois State Board of Elections for refusing to provide voter registration maintenance records. On March 8, a federal district court granted PILF’s motion for summary judgment and ordered the State to make the records available. On April 4, the Board of Elections filed a motion for reconsideration.

Iowa

The RNC, Iowa GOP, NRCC, and NRSC were granted intervention to defend against a lawsuit challenging provisions of SF413 and SF568. The trial set for March 21 was pushed back in light of discovery disputes between the Iowa legislature and plaintiffs. On March 16, the Iowa Supreme Court granted certiorari to resolve these discovery disputes.

Kansas

On February 25, a federal court entered a permanent injunction and declaratory judgment in a lawsuit challenging HB 2332. The court declared that HB 2232 ’s bans on (1) third parties pre-filling advance ballot applications and (2) out-of-state organizations mailing advance ballot applications are unconstitutional under the First and Fourteenth Amendments, and enjoined the state from enforcing those provisions.

In another case filed last June, activist groups sued over Kansas’s HB 2183, which restricts backdating of ballots and the use of private money by election officials. On April 11, a state trial court dismissed the case, and the activist groups appealed.

Michigan

In 2019, activist groups challenged Michigan elections laws that restrict paid voter transportation services and out-of-state organizations assisting voters with absentee ballot applications. The RNC and MIGOP were granted intervention in the case. The district court initially granted an injunction that prohibited Michigan from enforcing its voter transportation restriction, but the 6th Circuit reversed . On March 21, the RNC and other Republican groups filed a motion for summary judgment and asked the district court to dismiss the suit. On March 29, Uber filed an amicus brief on behalf of the activist groups.

Minnesota

In January, the Minnesota Voters Alliance sued the Secretary of State for a rule that purports to change the signature verification system that exists by statute . The Secretary moved to dismiss the case, and that motion was denied on March 29.

Montana

In April 2021, the Montana Democratic Party and activist groups sued the State over its election integrity measures, which include elimination of Election Day voter registration, types of voter ID permitted, and paid ballot harvesting. On April 6, 2022, a Montana state court temporarily suspended enforcement of these laws. The case has been appealed to the MT Supreme Court. Update: On May 17, the MT Supreme Court granted the defendant’s stay of the preliminary injunction.

Nevada

Two Republican-led ballot initiatives were challenged by Democrat-aligned activists. The Democrat-aligned activists sued in state district court in Carson City to stop the initiatives to implement voter ID requirements and to repeal portions of the state’s absentee ballot law. On April 25, the Carson City district court ruled that the initiatives were argumentative and ordered a new description be written, effectively scrapping all signatures collected at that point.

On April 14, a lawsuit was filed in Clark County alleging that Nevada failed to offer “meaningful observation” during the 2020 election cycle and that the state does not have a plan in place to provide this in the upcoming elections.

New York

The RNC, NRCC, and New York State Republican Committee filed a motion to intervene in a case brought by Democrats challenging NY ballot rejection practices. The DCCC opposed the intervention on April 4. Update: On May 13, the court granted the RNC’s motion to intervene and a preliminary injunction hearing is scheduled for June 27.

In January, the RNC and NY GOP, leading a broad bipartisan coalition of officeholders and concerned citizens, including Congresswoman Malliotakis and naturalized citizen voters, sued Mayor Eric Adams, the New York City Council, and the New York City Board of Elections in state court over the “Non-Citizen Voting Law,” which illegally allows non-citizens to vote in city elections. The complaint is available here. The NYC Board of Elections has since requested that the state review the law and issue an opinion on its legality. The case was assigned to Judge Ralph Porzio. Oral arguments in the case are set for June 7.

Democrats are attempting to piggyback a 2012 court ruling protecting military and overseas voters to avoid using fair redistricting maps this November. The court denied plaintiffs’ request for a temporary restraining order in their attempt to have the State’s prior congressional map, which was struck down in court, reinstated. After the court denied plaintiffs’ request, the plaintiffs voluntarily dismissed the suit.

North Carolina

The North Carolina legislature petitioned the U.S. Supreme Court to hear an appeal on a challenge to the state’s congressional and state legislative maps.

The trial in the federal NC voter ID case was put on hold until the U.S. Supreme Court decides if GOP legislators can intervene in the case. The U.S. Supreme Court granted a writ of certiorari to determine whether NC GOP legislators have a right to intervene in a case to defend SB824, which requires in-person voters to show photo identification. Oral argument took place on March 21.

Previously, in June, a 4th Circuit en banc panel affirmed the lower court’s order denying intervention, holding that the lower court did not abuse its discretion by denying permissive intervention or intervention as of right. The en banc court was nearly evenly divided.

There is also pending litigation in state court challenging the photo ID law. The RNC filed an amicus in support of the GOP legislators. A copy can be found here. The NC GOP filed an amicus brief in that case arguing the trial court erred in concluding that the voter ID sections of SB824 were not severable from Section 3.3, which provides for statewide poll observers. The amicus can be found here. The NC Supreme Court also granted a motion to bypass the appellate court and hear the case.

Pennsylvania

On March 31, a federal court ruled that PILF is entitled to documents under the NVRA regarding a programming “glitch” that allowed foreign nationals to register to vote in PA. On April 14, the Secretary of State filed a motion for reconsideration.

On February 11, the RNC sued PA’s Bucks County Board of Elections for its refusal to provide records related to how it counts absentee ballots.

On March 8, the PA Supreme Court heard oral argument on the challenge to Act 77, which established no excuse absentee voting in PA. The PA Supreme Court heard an appeal from a January 28 Commonwealth Court ruling that struck down Act 77, holding that it violated the PA Constitution. Under PA law, the Commonwealth Court ruling was automatically stayed but the court subsequently terminated the stay effective March 15. The termination of the stay was appealed to the PA Supreme Court, which reinstated the stay, effective until the conclusion of the case. A link to the oral arguments can be found here.

In January, Republican David Ritter, a candidate for Judge of the Court of Common Pleas of Lehigh County, appealed the County Board of Election’s 3-0 decision to count 261 challenged mail-in ballots that were undated or improperly dated. On November 30, 2021, the Court of Common Pleas of Lehigh County denied Ritter’s appeal and ordered the Lehigh County Board of Elections to include the 261 mail-in ballots in its canvass. The case was then appealed to the Commonwealth Court who, in a 2-1 decision, reversed and remanded the case concluding that the 257 ballots that do not contain a date must be set aside and not counted in the Municipal Election. Democrat candidate Zachary Cohen filed an appeal with the PA Supreme Court. The PA Supreme Court denied the appeal.

In January, five voters who failed to date their ballot sued the Lehigh County Board of Elections in federal court to have their undated votes counted. The County Board agreed to not certify the election until the litigation has been resolved. The lawsuit alleges violations of the Civil Rights Act and the 14th Amendment. Republican candidate David Ritter was granted intervention in the case. On March 16, the court granted Ritter’s motion for summary judgment and ordered that the undated ballots should not be counted. Plaintiffs appealed. After the district court declined to delay certification, the 3rd Circuit issued a temporary injunction preventing the Lehigh County Board of Elections from certifying the results of the election. On April 1, the U.S. Department of Justice filed a statement of interest in the case. Oral argument is scheduled for May 18. Update: On May 20, the 3rd Circuit ruled that the date requirement was immaterial and ordered that the undated ballots be counted. On May 23, Ritter filed a stay request with the Third Circuit which will allow him to file a cert petition with the Supreme Court.

U.S. Senate Candidate David McCormick has filed suit in state court seeking an order for all counties to count undated ballots cast in last week’s primary.

Texas

The U.S. Department of Justice sued the State of Texas and the Texas Secretary of State, challenging certain provisions in the recently enacted election integrity bill: SB1. The DOJ claims the law violates Section 208 of the Voting Rights Act and Section 101 of the Civil Rights Act. The RNC, NRCC, NRSC, and Dallas and Harris County Republican Parties moved to intervene in the DOJ suit and others challenging SB1. The court denied the party committees’ motion to intervene, and the party committees promptly appealed the ruling to the 5th Circuit. The U.S. Department of Justice actively opposed the party committees’ intervention. On March 25, the 5th Circuit ruled that the Republican committees were entitled to intervention as of right and ordered the district court to grant intervention to the committees. Update: The RNC and other party committees re-filed for intervention, which was granted by the district court on May 13.

In one of the cases challenging SB1, the court granted a preliminary injunction on the provisions that make it a crime for election officials to send a vote-by-mail application to registered voters who hadn’t requested one. The 5th Circuit heard oral argument on March 8, and subsequently certified questions to the Supreme Court of Texas.

In May 2020, activists sued the Texas Secretary of State over a 2017 election bill, HB 25. The district court declined to dismiss the case, and the Secretary of State appealed. On March 16, the 5th Circuit reversed and ordered the district court to dismiss the case.

The 5th Circuit, in two similar cases challenging various provisions of the Texas election code, directed the lower court to dismiss the Secretary of State from the case because he was not a proper defendant.

Vermont

In September, the RNC sued the cities of Montpelier and Winooski over their new town charters that allow non-citizens to vote in their municipal elections. The lawsuit also raises important concerns about how the laws will be implemented and whether non-citizens will end up on the same voter registration lists used for state-level and federal elections. The RNC is joined in the suit by the Vermont Republican Party and several concerned Vermont voters. A hearing on the motion to dismiss in the Montpelier litigation was held on March 31. On April 1, the Montpelier court granted the defendants’ motion to dismiss, finding the plaintiffs have standing, but under its interpretation of Vermont Supreme Court precedent, was required to dismiss the case. The RNC and other plaintiffs filed a notice of appeal on April 29.

Wisconsin

In Teigen v. WEC, the WI Circuit Court ruled that absentee ballot drop boxes are not permitted under Wisconsin law and ordered the Wisconsin Elections Commission (WEC) to retract its instructions on the use of drop boxes. WEC appealed the ruling. The court also denied a request to stay the ruling for the February 15 primary while the defendants pursue an appeal. The Court of Appeals granted petition to bypass; thus, the WI Supreme Court will hear argument on the case. The WI Supreme Court denied a stay motion that would have allowed absentee drop boxes through the April 5 election; accordingly, drop boxes located outside of local clerks’ offices will be illegal and no one other than the voter will be allowed to return an absentee ballot. On March 23, the RNC, NRSC, and Republican Party of Wisconsin moved to file an amicus brief in support of Teigen. The WI Supreme Court heard merits arguments on the case on April 13.

Other News

  • Federal: Last Thursday, the Senate Rules and Administration Committee held a hearing on “Administration of Upcoming Elections.” Watch the full hearing HERE.
  • Federal: On Wednesday, the House Committee on House Administration will hold a field hearing in Tallahassee, FL on “Voting in America: Access to the Ballot in Florida.” Watch the hearing HERE.
  • Federal: President Biden’s executive order directs federal agencies to develop plans to increase voter registration and civic engagement across the country.
  • National: Power the Polls is recruiting poll workers for the primaries throughout the country amid a drop in workers this year.
  • National: Discussion on the new US Alliance for Election Excellence, a nonpartisan group of election officials and voting system experts, working together with the goal of improving voting systems across the country.