State of Elections

William & Mary Law School | Election Law Society

Archives for January 2023

The Issue of Issue 2

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By Anna Rhoads

In 2019, the village of Yellow Springs, Ohio, voted to make a small change. That year, Yellow Springs’ 3,800 residents voted on a referendum to allow the tiny minority of the village’s 170 foreign-born residents who were still noncitizens to vote for local offices. The referendum passed with fifty-nine percent of the vote, setting off a chain reaction resulting in a new initiative to amend the state constitution that Ohioans will see on the ballot this November.           

Largely in response to the Yellow Springs referendum and its success, Republican Representatives Jay Edwards and Bill Seitz sponsored H.J.R. 4, a joint resolution to amend Section 1 of Article V, Section III of Article X, and Section III of Article XVIII of Ohio’s constitution. Sponsors introduced the joint resolution on May 17th, and by the end of the month, it passed in the House and came to the Ohio Senate as S.J.R. 6. By June, the joint resolution passed in the Senate, too, becoming ballot initiative Issue 2. Issue 2’s certified ballot language describes the measure as amending the state constitution “to prohibit local government from allowing non-electors to vote.” In practical terms, these amendments would prevent local governments from allowing noncitizens who are legal permanent residents in Ohio to vote in local elections. 

Issue 2’s proponents include Republican lawmakers. The initiative’s supporters argue that the proposed amendments would proactively ensure the clarity of election law in Ohio. Supporters see the initiative as a preventative measure that would avoid policies that have passed in cities in Left-leaning states, like in New York where recent measures allowed noncitizen legal permanent residents to vote locally. They contend that although Ohio and federal law prevent noncitizens from voting, there is a risk that localities will be able to allow noncitizens to vote locally, using the state constitution’s “home rule,” which gives localities ultimate control over local affairs. Supporters, including Ohio Secretary of State Frank LaRose, note that letting noncitizens vote locally could increase administrative burdens. More fundamentally, the initiative’s proponents view American elections as solely for American citizens and believe that allowing noncitizen residents to participate even locally would undermine fundamental American values.

However, Issue 2’s opponents, including the Ohio ACLU, Yellow Springs officials, Ohio’s Democratic lawmakers, and the Ohio Environmental Council Action Fund, take issue with the initiative for several reasons. Issue 2’s opponents note that federal and Ohio law already make citizenship a prerequisite to being eligible to vote and that home rule does not give localities carte blanche to draft laws in conflict with federal and Ohio law. In fact, although Yellow Springs voted to allow noncitizens to vote in local elections, citing home rule as allowing them to make this change, no noncitizens have voted in Yellow Springs (or any other Ohio locality, for that matter) because Secretary LaRose “ordered officials to table the measure.” Secretary LaRose has sent criminal referrals to noncitizens who have allegedly registered to vote, and noncitizens who fail to cancel their registration after a second notice can face felony charges. As such, opponents argue that the initiative is unnecessary and does not serve the prophylactic purposes Republican lawmakers claim. Opponents argue that instead, Republican lawmakers are using the initiative to signal to “Replacement Theory” and “Big Lie” adherents that their violently xenophobic views have merit. As such, opponents view the initiative as a purely political move that “can only add fuel to the wave of fanatical xenophobia.” Opponents argue that this political move is also designed to gin up a wave of Republican voter turnout in November when a United States Senate seat, all five statewide offices, the General Assembly, and control of the Ohio Supreme Court will be up for grabs. Additionally, Issue 2’s opponents say that the initiative’s amendments will change the state constitution’s provisions from a grant of voting rights to a restriction on voting rights. Thus, the initiative stealthily threatens the General Assembly’s power to liberalize voter registration requirements by permitting those who have registered less than thirty days before an election to vote as well as current laws allowing seventeen-year-olds to vote in primaries if they will be eighteen by the general election.

Changing Ohio’s voting laws has been a project of Ohio’s Republican lawmakers since 2020, and Issue 2 continues this trend. However, with measures to allow noncitizen residents to vote locally proving popular in other statesand some of Ohio’s cities, Republicans may need more than a Red wave in November to pass this initiative.

Opinion: Wyoming Secretary of State Nominee Chuck Gray Wants Residents to Cowboy Up and Vote in Person

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By Hunter Hoffler

Wyoming Republican Chuck Gray, the recent nominee for Wyoming Secretary of State, claims he intends to make significant changes when he arrives in the State’s capital of Cheyenne. Like many Trump-backed candidates, Gray believes the 2020 presidential election was a fraud and fears his State is rife with voter fraud as well.

Gray ran on the promise that he would curtail voter fraud despite only three convicted cases of voter fraud in Wyoming since the year 2000. To combat this issue, Gray has openly stated that he wants to ban ballot drop boxes in his State, instead opting for the traditional practice of collecting “all paper ballots.” The presumed Secretary-elect would prefer in-person, paper-ballot voting. In Gray’s words, “The fact that a few counties have moved off of paper ballots . . . is really wrong.”

Despite a heavily Republican constituency in Wyoming, Gray asserts that local elections can still become compromised through nefarious ballot collection practices. As a result, Gray’s campaign for Wyoming Secretary of State fixated on improving election integrity and demonstrating the likely impacts of voter fraud. Hoping to impact his constituency, Gray repeatedly aired the controversial and critically ridiculed documentary “2000 Mules” by Dinesh D’Souza at his campaign stops.

The question remains: what authority will Gray have to implement his election integrity agenda? While in the state legislature, Gray also campaigned on, and promulgated bills to, improve election integrity. In 2021, Gray and his colleagues passed Wyoming’s Voter ID Law, which required residents to possess a valid state or federal form of identification to vote in person. Fortunately for those who oppose Gray’s agenda as Secretary of State, he alone will not be able to implement radical change to Wyoming’s voting procedures. In fact, within the scope of voting and voter registration, the Wyoming Secretary of State’s duties are relegated mainly to the administration and oversight of elections. In other words, to implement sweeping changes to the way Wyoming residents can vote, Gray will need to go through the State’s legislature and adhere to federal voting regulations.

The more immediate concern (should Gray be sworn in as Wyoming’s Secretary of State) is staff turnover in the Secretary of State’s office, particularly amongst those experienced in administering elections. Reducing the collective experience of the group administering elections could lead to trouble in upcoming state and federal election cycles should a hitch in the process occur. To date, one official has vacated her position based on concerns over Gray’s views.

The nation’s voters are broadly divided along party lines regarding the ratification of election security legislation – which is generally a priority of registered Republicans – or election openness legislation – which is usually a priority of registered Democrats. However, Wyoming legislators on both sides of the aisle are concerned enough with Gray’s positions on the 2020 Presidential election and Wyoming election security to propose legislation that would strip his soon-to-be office of its duties to oversee elections.

Opponents of Gray’s proposals fear that the growing number of local and federal candidates running on platforms of election insecurity may spread fear that the election process is flawed. Mistrust in the election system may, in turn, lead to uncertainty, harassment, and lack of participation at the polls.

What is clear is that there should be a bipartisan coalition that works to ensure elections are safe for the people of Wyoming. What remains to be seen is whether Chuck Gray and his principles will be part of that conversation.