RNC Election law Update June 14, 2022

Republican National Committee

ELECTION LAW UPDATE

Shared by Peter M. Feaman

National Committeeman for Florida

State Legislation Highlights

States currently in Session: Arizona, California, Delaware, Louisiana, Minnesota, New Hampshire, New Jersey, North Carolina, Ohio, Rhode Island, Vermont, and Wisconsin.

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

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

Arizona

Last week, Governor Ducey signed SB1013, SB1170, SB1260, SB1362, and SB1460.

  • SB1013: requires the AZ Game & Fish Department to aid with voter registration when accepting license applications by providing a link to the Department of Transportation’s voter registration webpage or a voter registration form; directs the Secretary of State to provide the Game & Fish Department with voter registration forms and instructions for applicants to mail completed forms to the Secretary of State; instructs the Secretary of State to forward completed voter registration forms to the appropriate county recorder; specifies that public information derived from this voter registration information must not indicate the source of the registration information; and clarifies that Game & Fish Department representatives who aid with voter registration are not deputy registrars.
  • SB1170: requires the Secretary of State, by December 31, 2022, to submit a request to the U.S. Election Assistance Commission to include Arizona’s state-specific proof of citizenship on the federal voter registration form.
  • SB1260: classifies, as a class 5 felony, knowingly providing a mechanism for another person who is registered in another state to vote. It also requires a county recorder to cancel a person’s registration and remove the person’s name from the county’s Active Early Voting List upon confirmation that a person has registered to vote in another county or upon receipt of a ballot envelope indicating the person has moved.
  • SB1362: allows every county recorder to provide for a method for an elector to have the elector’s completed early ballot tabulated on site at a polling place or voting center according to outlined requirements.
  • SB1460: modifies statutory requirements relating to the issuance of ballots at a polling place to persons that previously received an early ballot, procedures following redistricting, the filing of nomination papers and nomination petitions, the signing of nomination petitions, voter registration information, and vacancies due to the withdrawal of a candidate.

On May 27, Governor Ducey voted HB2617 , which would have required county recorders to cancel the voter registration of a person for whom the county recorder receives and confirms information that the person is not a U.S. citizen, has been issued a driver license or nonoperating license in another state or is otherwise not a qualified elector; and outlined notice requirements prior to cancelling a person’s voter registration. It also would have required the Secretary of State and a county recorder to compare the voter registration database with prescribed databases.

Louisiana

The Louisiana legislature passed and Governor Edwards signed HB359, which prohibits implementation of federal election directives and guidance. HB359 also prohibits the spending of federal money for elections, under certain conditions.

Massachusetts

Last week, four Democrats signed off on SB2924, a compromise that would shorten the time a voter must register prior to an election from 20 days, to 10 days, and permanently codifies the mail-in and expanded early voting options made available during the pandemic. The two Republicans on the Conference Committee did not sign off on the compromise.

Michigan

Last week, Sen. McCann introduced Senate Joint Resolution P, which would allow 17-year-olds vote in a primary election if they will be 18 and eligible to vote by the date of November’s general election.

New York

The New York State Assembly passed SB1046E , the “John R. Lewis Voting Rights Act of New York” or “NYVRA”, which establishes rights of action for denying or abridging the right of any member of a protected class to vote, provides assistance to language-minority groups, requires certain political subdivisions to receive preclearance for potential violations of the NYVRA, and creates civil liability for voter intimidation. The legislation was transmitted to Governor Hochul for signature.

North Carolina

The North Carolina State Senate introduced several election-related legislation, including:

  • SB819: extends the 2022 deadline regarding retention of the 2020 election records and requires the use of container-return envelopes to hold mail-in absentee ballots for a twenty-two month period.
  • SB833: makes the statewide general Election Day an official paid State holiday.
  • SB878: updates election dates in various townships and the Maury Sanitary Land District Board.

Pennsylvania

The Pennsylvania Senate passed SB573, which removes the county residency requirement for poll watchers, allowing Pennsylvania residents from any county to become certified poll watchers anywhere in the state. A House panel advanced a bill barring county officials from soliciting or accepting non-government funding for elections.

Campaign Finance

The Federal Election Commission (FEC) issued an interim final rule removing 11 C.F.R. § 109.10(e)(1)(vi) to conform with the decision in Citizens for Responsibility & Ethics in Wash. v. FEC, 316 F.Supp.3d 349, 423 (D.D.C. 2018), aff’d by Citizens for Responsibility & Ethics in Wash. v. FEC, 971 F.3d 340, 356 (D.C. Cir. 2020). The interim final rule provides further guidance on donor disclosure for groups paying for political advertisements.

FEC Reminder: June is a busy time for primary elections, which can trigger additional reports for quarterly filers and for those making election-related communications. If you make independent expenditures or electioneering communications in connection with primary elections, you may have special reporting obligations.

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 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. A hearing on the defendant’s motion to dismiss was held on June 7.

Two lawsuits were filed challenging HB2492, which requires proof of citizenship for individuals who register using a federal form required by the National Voter Registration Act. Any voter who cannot satisfy the requirement will be ineligible to vote for president or by mail. 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. The Democratic National Committee and the Arizona Democratic Party also plan to file a lawsuit challenging the law.

Florida

In June, the RNC and NRSC were granted intervention in all four lawsuits challenging provisions of SB90, Florida’s 2021 election reform legislation. On March 31, the U.S. District Court permanently enjoined multiple provisions of SB90 including the required registration disclaimers for third party voter registration organizations (§ 97.0575(3)(a)), registration delivery provisions for third party voter registration organizations (id.), drop box regulations (§§ 101.69(2)-(3)), and line warming provisions (§§ 102.031(4)(a)-(b)). 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 considered the plaintiffs’ request for a preliminary injunction at a hearing on June 9 and 10. 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 so-called 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 state began its defense today. 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.

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.

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.

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 . On May 17, the MT Supreme Court granted the defendant’s stay of the preliminary injunction. Update: On June 9, 2022, Restoring Integrity and Trust in Elections (RITE) filed an amicus brief on behalf of state.

Nevada

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. A similar case was brought in Washoe County, but was dismissed by the district court judge.

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. On May 13, the court granted the RNC’s motion to intervene and a preliminary injunction hearing was held on 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 were held on June 7.

Pennsylvania

In January, Republican David Ritter, a candidate for Judge of the Lehigh County Court of Common Pleas, appealed the County Board of Elections 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 county Board to include the 261 mail-in ballots in its canvass. The case was then appealed to the Commonwealth Court which, 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. Both Ritter and the losing candidate in the election intervened. The County Board agreed to not certify the election while the litigation was pending. The lawsuit alleges violations of the Civil Rights Act and the 14th Amendment. On March 16, the district 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 county Board from certifying. On April 1, the U.S. Department of Justice filed a statement of interest in the case. 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 3rd Circuit which would allow him to file a cert petition with the Supreme Court. The Third Circuit denied the stay request and then SCOTUS granted an administrative stay. Update: The stay was vacated by the U.S. Supreme Court in a 6-3 decision with Justices Alito, Thomas, and Gorsuch dissenting. The U.S. District Court accordingly ordered Lehigh County Board of Elections to count the undated ballots in accordance with the 3rd Circuit’s decision.

U.S. Senate candidate David McCormick filed suit in state court seeking an order for all counties to count undated ballots cast in last week’s primary. The PA Commonwealth Court granted the injunction and instructed County Boards to segregate the ballots and report two tallies to the Secretary of the Commonwealth. A King’s Bench application was also made on the same issue to the PA Supreme Court, which denied the suit. After dropping out of the recount, McCormick filed for voluntary discontinuance or dismissal for mootness with the Commonwealth Court. The Court granted the discontinuance but declined to vacate the order. On June 9, the Pennsylvania Supreme Court granted a discontinuance of the PAGOP’s and RNC’s appeal.

In May, Democrat voters filed suit against the Lehigh and Northampton County Boards of Elections alleging the election officials declined to count those ballots due to noncompliance with the Secrecy Envelope Rule or the Election Day Receipt Deadline. The RNC and Republican Party of Pennsylvania have moved to intervene. Update: On June 7, the RNC and Republican Party of Pennsylvania’s motion to intervene was granted.

On March 8, the PA Supreme Court heard oral argument on the challenge to Act 77, which established no excuse absentee voting in PA. This was an appeal of a January 28 Commonwealth Court ruling that struck down Act 77, holding 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.

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.

Tennessee

On June 3, a Nashville court ruled that the Tennessee Republican Party’s executive committee violated the state open meetings act when it removed Robby Starbuck from the ballot for the 5th Congressional Republican primary. The judge ruled that Starbuck should be restored to the ballot. Update: On June 10, 2022, Tennessee Supreme Court ruled the lower court erred in granting Starbuck an injunction that put him back on the ballot.

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. The RNC and other party committees re-filed for intervention, which was granted by the district court on May 13. On May 24, the court denied the plaintiffs’ motion to dismiss.

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. The hearing on the motion to dismiss in the Winooski case is set for June 27.

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

  • National: iVote, a group focused on electing Democrats to Secretary of State offices across the country, plans to launch an eight-figure media campaign supporting Democrat candidates in Georgia, Arizona, Michigan, Nevada, and Minnesota.
  • National: Efforts are underway in several Southern states to restore voting rights to people with felony convictions who have completed their sentences.
  • National: The Bipartisan Policy Center released a study on paper shortages for election materials.
  • AZ: A state court judge ruled Alaska elections officials cannot certify the results of the by-mail special primary for U.S. House until visually impaired voters “are provided a full and fair opportunity to participate” in the election.
  • CT: The State set aside $2 million dollars to counter “misinformation narratives about voting,” which will include hiring the State’s first ever “expert in combatting misinformation.”
  • IA: Last week, Iowa saw its second highest turnout for a primary election since 1994, after the enactment of SB413 in March 2021.
  • NJ: Public Interest Legal Foundation (PILF) discovered more than 8,000 double-registered voters in its analysis of the New Jersey voter rolls.
  • OH: Ohio’s 88 county boards of elections continued conducting post-election audits of the May 3rd Primary Election this week. After every Ohio election, county boards of elections are required to conduct a comprehensive audit of the results to ensure accuracy, during which they compare fidelity between the electronic tabulation and the paper ballots.
  • PA: Former U.S. Congressman Michael “Ozzie” Myers plead guilty to numerous voter fraud charges for ballot stuffing in the Eastern District of Pennsylvania.
  • PA: The Wall Street Journal weighed in on the U.S. Supreme Court’s decision on Pennsylvania’s undated ballots.
  • PA: GoErie has a story on potential legislative solutions to some of the state’s chronic election problems.
  • WV: In response to President Biden’s Executive Order, West Virginia’s Secretary of State asked the Administration to rescind the Executive Order because it is an overreach by the federal government.
  • WI: The Wisconsin Elections Commission elected Don Millis, the body’s newly appointed Republican member, as its next chair in a 5-1 vote.