At about two weeks before the 2020 election, we continue to see big changes in the voting landscape. There have been lots of setbacks and a few wins. Here are some of the latest happenings.
MICHIGAN
There is an 1895 law on the books in Michigan that prevents the hiring of any transportation to transport another person to a polling place to vote if that voter is capable of walking.[i] This was apparently in response to a 19th century practice of “vote hauling” or paying someone to “haul” themselves to vote for your candidate. In other words, it was form of bribery. Now it acts as a bar to hiring local limousines or taxis or the like, to transport people for free to polling places.[ii]
The law was challenged by liberal super PAC Priorities USA. A Detroit federal judge (appointed by President Trump) blocked the enforcement of the law. Now a 6th Circuit Court of Appeals panel overturned the lower court and allowed the enforcement of the law.[iii]
Several Detroit area funeral homes had planned on providing free limo rides to voting sites on Election Day. Republican lawmakers have succeeded in preventing that.
Michigan is also facing a big issue processing the expected mail in ballots. They can’t begin counting until seven in the morning on Election Day, they are staffed with a large number of volunteers in their 60s and 70s and due to security concerns, they cannot work in shifts, so they are facing 18 hour days processing the ballots. Michigan admits that it cannot and will not have a definitive result on Election Day,[iv]
NORTH CAROLINA
North Carolina law requires that all mail in ballots be postmarked on or before Election Day. The law also required that the ballots be received by the board of elections within 3 days after Election Day.[v]
Considering the larger than usual number of expected mail in ballots and the shambles that the Republicans have made of the Postal Service, many people requesting mail in ballots have not received them and the more populous counties are struggling to respond to all the requests.[vi]
The Board of Elections announced that they would extend the time to receive the ballots from 3 days to 9 days after Election Day. Ballots must still be mailed by Election Day, but the time for the Postal Service to get them to the Board of Elections is extended by six days.
Needless to say, the Republicans challenged this decision immediately. The change was upheld by a federal District Judge and the 4th Circuit Court of Appeals. The Republicans are trying to get the issue to the Supreme Court.[vii]
Justice Roberts took the request and has put it to the full court asking for responses from the Justices by Saturday the 24th at 3:00 pm.[viii]
PENNSYLVANIA
Similar to North Carolina, Pennsylvania extended its mail in voting. Previously the law required that mail in ballots be received by Election Day. Following a lawsuit by the Democrats, the Pennsylvania Supreme Court ruled that mail in ballots could be counted if they are received within 3 days after Election Day, unless there was compelling evidence that the ballot was mailed after Election Day. The Republicans challenged the decision and took it to the US Supreme Court. SCOTUS split 4-4 thus leaving the ruling in effect.[ix]
OHIO
Ohio’s issue is the number of mail in ballot drop boxes allowed. For the primary elections, the state made a decision to authorize on drop box for each county board of elections, to be located outside at the board of elections. It wasn’t clear whether this was to be a permanent rule or just for the primaries. The rule was extended to the general election but then a dispute arose over whether each county could have more than one box and where they could be located.[x]
The argument between Democrats and Republicans has raged back and forth. A Federal Judge blocked the limitation then the 6th Circuit reinstated the limitation. In another suit a judge said that the State could authorize multiple boxes, but didn’t have to.
Yesterday, Plaintiffs dropped their suit, ending the controversy. Ohio will be limited to one box per county.[xi]
CALIFORNIA
In a truly bizarre turn of events, California Republicans have admitted that they are behind the appearance of about 50 fake ballot drop boxes in Los Angeles, Fresno and Orange County that appear to be real. The have words saying “Official Ballot Drop Off Box”.
The Republicans argue that what they are doing is legal, that they can collect the ballots and then deliver them to the Board of Elections. Democrats argue that unofficial boxes just create confusion and lead to the possibility of tampering.
California’s Secretary of State issues a cease and desist order to the groups threatening civil penalties, but the groups indicated that they were going to continue.[xii]
Republicans have agreed to ease off and will not place the boxes outdoors, leave them unattended or refer to them as official.[xiii]
TEXAS
The drop box issue is at the forefront in Texas as well. In early October, Texas Governor Greg Abbot issued an order limiting counties to one drop box. Texas, as we all know, is big. Very populous counties like Harris County (Houston) with 4.6 million residents are limited to one box. Very large counties like Brewster County with over 6,000 square miles and only 9,000 residents is limited to one box. How big a box does Houston need and how far must Brewster residents travel?
A lawsuit by liberal groups resulted in an order from a state judge in Austin striking the limitation saying it overly burdened voters and increased the risk of exposure to the COVID virus.[xiv] A different case in Federal Court led to the 5th Circuit Court of Appeal panel to uphold the limitation.[xv]
The State Court decision has been appealed, but the situation in Texas is in flux and no one knows what to do. For now it appears that counties are playing it safe and keeping their drop boxes to one.
NATIONAL
On the voter intimidation front, it was revealed just recently that foreign powers have gained access to voter registration information and have been using it to threaten and intimidate voters. [xvi] Director of National Intelligence, John Ratcliffe held a press conference confirming that Russia and Iran have obtained information and have been using it to sow confusions and undermine confidence in the election process. Mr. Ratcliffe even said that the information was being used to harm President Trump, when examples show quite the opposite. One example directly threatens harm to the voter and their family should they not vote for Trump.[xvii]
Finally this election will be the first with such a large percentage of mail in votes. A major problem with mail in votes is ballot rejections. When a ballot is received it is reviewed for a few issues, signature, matching signatures, witness signature, time received. The biggest is signature matching. The Board of Elections has the voter’s signature on file and the signature on the ballot must match. This is a decision made by an election official who is subject to bias and inexperience. The signature on file may be decades old and the voter’s signature may have evolved over time. [xviii]
Some states provide a system to correct a signature issue and some don’t. Those that do may not make it easy to even find out if a ballot has been rejected. Will there even be enough time to correct the error?
Ballot rejections are another way to disenfranchise classes of voters. Rejections disproportionately affect the young, the minority and first time mail voters.[xix] Those voters tend to the Democrats and we can see why the Republicans try so hard to make it difficult to vote.
EDIT - LATE BREAKING NEWS
Federal Court has just issued an order requiring the Postal Service to re-install high speed sorting machines that they had removed from their facilities. The order says that any facility that cannot sort its election mail before Election Day must have the sorting machines re-installed. https://thehill.com/homenews/administration/522422-judge-orders-postal-service-to-restore-high-speed-mail-sorting
EDIT - MORE BREAKING NEWS
The Pennsylvania Supreme Court just ruled that mail in ballots cannot be rejected based solely on signature comparison. This is a defeat for Trump supporters who try to use this tactic to reject mail in ballots. https://www.politico.com/news/2020/10/23/pennsylvania-court-ballot-signatures-431794
A Nevada Judge has denied Republican suit for a temporary restraining order seeking to force Clark County (Las Vegas) to stop counting mail in ballots. The Republican plaintiffs claim that there are no adequate procedures for ballot observation. The Judge has set an evidentiary hearing next week. https://thenevadaindependent.com/article/trump-campaign-nevada-republicans-sue-to-stop-clark-county-mail-vote-counting-until-proper-procedures-in-place
[i] https://www.legislature.mi.gov/(S(fwxkh2dq4ldxwzwvw4zg40q0))/mileg.aspx?page=getObject&objectName=mcl-168-931
[ii] https://www.detroitnews.com/story/news/politics/2020/10/22/federal-appeals-panel-upholds-michigans-voter-transportation-ban/3726400001/
[iii] https://law.justia.com/cases/federal/appellate-courts/ca6/20-1931/20-1931-2020-10-21.html
[iv] https://nyti.ms/2H0P2cA
[v] https://www.ncleg.gov/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_163/Article_20.pdf
[vi] https://apnews.com/article/virus-outbreak-north-carolina-elections-raleigh-voting-2020-4037cf93b6d7e12dfe3275778eefac8f
[vii] https://www.nbcnews.com/politics/2020-election/north-carolina-gop-asks-supreme-court-roll-back-extra-time-n1244368
[viii] https://www.scotusblog.com/2020/10/trump-campaign-north-carolina-republicans-ask-justices-to-stop-extension-of-absentee-ballot-deadline/
[ix] https://www.scotusblog.com/2020/10/supreme-court-leaves-in-place-order-requiring-pennsylvania-to-count-absentee-ballots-after-election-day/
[x] https://apnews.com/article/election-2020-virus-outbreak-cleveland-voting-rights-elections-8218c863638d6f13ae453e4a2ccc7494
[xi] https://www.msn.com/en-us/news/politics/voting-rights-groups-end-federal-fight-over-drop-boxes-in-ohio-e2-80-99s-presidential-election/ar-BB1aiRT0
[xii] https://nyti.ms/2IeyNJF
[xiii] https://www.npr.org/2020/10/16/923969669/california-eases-off-legal-threats-over-gop-unauthorized-ballot-drop-boxes
[xiv] https://www.cnn.com/2020/10/15/politics/texas-judge-strikes-down-ballot-drop-box-limits/index.html
[xv] https://www.cnn.com/2020/10/13/us/texas-election-ballot-drop-box-ruling/index.html
[xvi] https://nyti.ms/3obn92O
[xvii] https://nyti.ms/37wFQIx
[xviii] https://www.nytimes.com/interactive/2020/10/19/opinion/election-vote-by-mail-rejections.html
[xix] https://www.nytimes.com/interactive/2020/10/22/opinion/biden-mail-ballots-rejection.html
The author[s] is solely responsible for this blog submission. It does not represent the position of the New York State Bar Association or its Committee.