Election Law Society

The Election Debate in the Potato State

Election Law Society · November 28, 2022 ·

By Ruth Jones

During the 2022 legislative sessions, Idaho experienced an extensive onslaught of proposed election legislation. In the 2022 legislative session, over 66 election law bills were introduced into the House. For comparison, in the year 2019, only 22 election law bills were introduced. This dramatic increase in proposed election legislation was fueled by growing concern from the state legislature, as well as Idahoans, that elections were not secure and that legislative action was necessary to ensure that the outcomes of elections were accurate and had not been influenced by electoral fraud.

As the Idaho Legislature debated House Bill 761, Representative Dorothy Moon took to the floor, to stress the need to improve the security of Idaho’s elections based on claims that Canadians have been crossing country lines to illegally participate in Idaho’s elections. However, this proposed example of fraud is completely unsubstantiated. The only recorded concerns regarding individuals crossing country lines to vote involved Americans who had left Idaho to enter Canada, and later returned to Idaho to vote. There, the court found that the Idahoans had not given up their registration and were permitted to vote.

Despite the inaccuracy of Moon’s account, her fears were echoed in other legislation. On the floor of Idaho’s House, the need to secure Idaho’s elections was constantly stressed. This is an important goal; however, it lacks that urgency stressed by the legislature as there have been no instances of voting fraud in Idaho since 2017.

Proposed House Bill 549 was also rooted in the desire to increase election security, and would have limited the approved type of IDs that citizens can use to prove their identity at the polls. It proposed to exclude the use of student ID cards. Many voters who have previously used a student ID will likely have an alternative form of photo identification. However, changing the ID requirements would be a major adjustment to the voting process. Despite any communication efforts, there would likely be individuals whose votes would be excluded because they were not aware of the change to approved types of ID and arrived at the polls unprepared.

The security of elections is an essential aspect of protecting the legitimacy of a democracy. If voter fraud frequently occurs, then individuals will not trust the outcome of elections and the system will fall apart. However, focusing on a potential problem that has not occurred can exasperate this situation by perpetuating misconceptions about the validity of electoral results.

The 2022 Idaho legislative docket is a good illustration of challenges that arise when a potentially serious concern is addressed without taking the time to craft a well-tailored approach to election fraud. Proposed House Bill 692 highlighted these fears.

This bill would have prevented individuals from voting if they have P.O. boxes because the law required voting registration forms to be mailed to a voter’s residence, even if they were unable to accept mail at the location. A regulation that prevented the use of P.O boxes would have an immense impact because Idaho is an incredibly rural state. Idahoans who live in these rural areas tend to use P.O. boxes because their houses are too far from the local town to receive mail. The bill would have implemented a requirement that would have excluded many Idahoans who rely on P.O. boxes for no grounded reason. Bill 692 was eventually pulled from the floor house, but it illustrates the danger of implementing legislation before thoroughly evaluating potential consequences.

Despite the efforts of many in the legislature, none of the above bills were enacted. In fact, out of the sixty-six bills that were proposed, only ten were adopted. The ten successful bills were much milder and included:

House Bill 511 which requires the rotation of names on the ballot to address any perceived advantage that was randomly given through a certain location on the list of candidates;
House Bill 566 which amends definitions in the Public Integrity in Elections act; and
Senate Bill 1341 which releases election results while balancing two time zones.

The election regulations that were approved in Idaho’s 2022 legislation session do not implement any major alterations to the voting process, and they are unlikely to cause significant challenges to voting accessibility.

In this regard, Idaho stands as an example. Despite mass panic regarding the security of elections, the legislative process has the potential to filter out half-baked proposals that unnecessarily exclude voters.

North Dakota Considers the Private Right to Action in Redistricting Litigation

Election Law Society · November 25, 2022 ·

By Jackson Cherner

The North Dakota legislature, which approved a new legislative map in November of 2021, faces pushback from Native American tribes regarding the dilution of their voting rights. In February 2022, members of the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe (as well as individual Native American voters) sued North Dakota’s Secretary of State, Alvin Jaeger, in the U.S. District Court of North Dakota over the state’s map. The tribes claim that the state violated Section 2 of the Voting Rights Act (“VRA”), which protects voters from discrimination on the basis of race, color, or other designation promulgated by law. In its complaint, the tribes stated that the new map “packs” members of the Turtle Mountain Band of Chippewa Indians into subdivided Senate District 9, while it “cracks” members of the Spirit Lake Tribe by placing the majority of their population in Senate District 15. As a remedy, the tribes propose creating a single district compromising a geographic majority of their communities.

Secretary of State Jaeger filed a memorandum in April of 2021, which challenges multiple responses to the tribes ability to raise claims under Section 2. Jaeger questioned the validity of the tribes standing to bring the claims in front of the federal court without particularized injury and in uncertainty regarding tribe members’ status as U.S. citizens. Additionally, Jaeger questioned the tribes’ right to private action under the VRA itself. Jaeger’s memo claims that a private right to action is not recognized by federal courts. In Brnovich v. Democratic Nat’l Comm., Justice Gorsuch’s concurring opinion finds that the Supreme Court has not decided on the issue, and instead defers to the decisions of lower courts to decide the right to action under Section 2. Based on this concurrence, the state believes an order issued by the Eastern District of Arkansas in Ark. State Conf. NAACP v. Ark. Bd. of Apportionment resolves the issue. This court found that Section 2 was silent on the right to action, and other sections of the VRA required claims to be brought by the Attorney General of the United States. This court also reflected on a string of recent Supreme Court precedent that rejected any implied right to action in challenging federal law.

The tribes have issued their own response to Jaeger’s claims, which has been mirrored in part by the U.S. Department of Justice’s amicus brief in support of the tribes and their private right to action under Section 2. The tribes’ response recognizes an alternative solution available to plaintiffs—Section 1983 of the Civil Rights Act of 1871. This section allows individuals to seek recovery against state actors for violating federal civil rights. Since Section 2 does not explicitly or implicitly prohibit private enforcement under this federal statute, the state would bear the burden of proving an exclusionary principle.

Additionally, both the tribes and the Justice Department recognize that binding Supreme Court precedent protects the rights of private plaintiffs under Section 2. Specifically, in Morse v. Republican Party of Virginia, the court held that a private individual has the right to raise claims without the Attorney General under Section 2 of the VRA, relying on precedent in Allen v. State Board of Elections, which authorized enforcement of private claims under other sections of the law. The Court in Morsefound that private individuals could challenge a state’s requirement for candidates to pay a registration fee under Section 10, based on Congress’s intent to effectively protect the right to vote as well as reduce the litigation burden on the Attorney General. This intent extended to Section 2, which carries an implied right to action against discriminatory activities. This implied right is also supported by an Eighth Circuit case, which binds lower courts in North Dakota.

The parties did not receive relief in the June election and are not expected to receive relief in the upcoming November election. However, in July, the tribes won a necessary decision in the District Court when a North Dakota federal judge denied Secretary Jaeger’s motion to dismiss the suit, stating that the tribes can bring claims under Section 2 of the VRA. Chief U.S. District Judge Peter D. Welte, in his ruling, referenced the ability of private organizations, such as the NAACP, to sue on behalf of its members, and does not see any difference concerning tribes recognized by the federal government. Now, the stage is set for the court to rule on the constitutionality of North Dakota’s redistricting, and whether the tribes were deprived of their right to choose their preferred candidates.

The Beholden State: Weighing When Democracy Matters in the Golden State

Election Law Society · November 21, 2022 ·

By Ram Reddy

California—to many—is the shining beacon of what it means to be a progressive, Blue State. Just as Texan politicians and voters tend to take pride in their depiction in popular media as a deep Red State, Californian politicians are beholden to putting up a persona of deep Blue, going so far as to run ads about their values in rival red states.

California has led the charge in introducing and/or passing sweeping new bills about voter registration and vote by mail laws, in an effort to increase turnout in the state that has abysmally low turnout. Cynics saw this as a tactic by state Democrats to increase minority turnout due to the threat some progressive politicians have faced in backlash to crime waves. But whatever the intention, the state is putting its money where its mouth is when it comes to making democracy more accessible and accountable to citizens…except in the area of recalls.

Approaches to popular sovereignty and democracy in California seem to come down to party lines because, though recalls remain broadly popular across party lines, the targets for recalls tend to be Democrats. Recalls empower minority parties in a state where Democrats hold veto proof supermajorities at almost every level. Calls for making reforming recalls and perhaps making them less effective are making the rounds as bills in Sacramento. The Golden State enjoys one of the lowest thresholds for recalls of all western states, and its voters have successfully recalled a governor and various state officials—most recently DA Chesa Boudin. As a result, many Democratic policy makers in Sacramento are calling for a fleet of sweeping new reforms from raising the signature threshold, to constitutional amendments to mandate a cause for recall, or eliminate the recall altogether. While most of these measures are not groundbreaking in the state’s political discourse, there are newer and more controversial measures including preventing local offices where the holder is removed from being filled until the next election and forcing state wide offices subject to recall to remain vacant until the next election or a special election where the recalled officer would still be treated as an incumbent. Opponents see these attempts at leaving the offices empty as efforts to further solidify Democratic Party control over the state, as the supermajority with a vacant governor’s seat merely means what few bills would be vetoed now cannot be vetoed.

Proponents of the recall reform measures point to the blowout victories of DA George Gaston and Gavin Newsom and have tried to paint reform as popular amongst the state’s Democratic majority. While generic questions about recall reform tend to poll around 50%, specific reforms fail to garner majority support even amongst Democrats in most polls aside from one conducted by UC Berkeley.

Republicans have weaponized these efforts as attempts by state Democrats to further cement control over opposition, and they’re using voters’ complaints over rising crime and financial woes to do so. They point to what they claim are the state’s lax policy towards verification of absentee ballots and registration drives and the efforts to nitpick and toss out recall signatures to keep measures from the ballot—though opponents of these recall efforts point to the poorly run recall campaigns as the reason for these failures.

The battle over recalls will continue to loom in the Golden State and efforts to change the process shall grow. Even though statewide recalls of officials like Gov. Newsom might have failed, more and more local offices are being targeted,perhaps galvanized by the successful recalls of Chesa Boudin and a trio of school board officials in San Francisco. Los Angeles DA George Gascon is likely to face a third recall in the coming year. For better or for worse recalls will continue to be in the spotlight in California, as will the juxtaposition of efforts by state legislators and politicians to promote democracy while cutting down on threats to their incumbency.

Alabama, Amendment 4, & the 2020 Election

Election Law Society · November 18, 2022 ·

By Devin Carter

On November 8, the state of Alabama asked voters to consider an amendment to its constitution, which the state hopes will protect the integrity of its elections. The amendment in question, known as Amendment 4, would require any changes to the state’s election laws to be enacted at least six months prior to the next election in order for those changes to apply. Amendment 4 was proposed in response to the 2020 presidential elections, which were rife with controversy from the numerous changes to election law and procedure that took effect shortly before voters took to the polls.

According to State Representative Jim Carns (R), the proposed amendment is designed to ensure that the general public can have greater confidence in the integrity of the state’s election system. According to Carns, this sort of measure would favor the state’s minority party, because it would prevent the majority party from altering election rules in their favor in the time immediately preceding an election. Despite Carns’s enthusiasm, other state officials are more skeptical about Amendment 4. Representative Ralph Howard (D), for example, argued against the proposed amendment in the Alabama House of Representatives by claiming that it would limit the state’s ability to modify its election laws in the event of a second pandemic. Another representative, Mary Moore (D), argued that the proposed amendment was one of the numerous bills Republican-controlled states have been attempting to pass following their defeat in the 2020 presidential election, expressing skepticism towards Carns’s claim that the amendment would favor the minority Democratic Party instead of Alabama’s Republican majority.

The underlying rationale of Amendment 4 can be traced back to the Purcell principle, which amounts to an argument that courts should refrain from changing election rules during the time that immediately precedes an election. Federal courts have relied on the Purcell principle when they have stayed decisions made by lower courts, which would have otherwise changed a state’s election laws and procedures shortly before an election.

The 2020 election was rife with Purcell concerns, particularly after multiple states changed their election laws in response to the COVID-19 pandemic. Twenty-nine states ultimately took measures that expanded voting access in the 2020 election, including the expansion of mail-in voting access and early voting. Many of these changes were implemented through executive orders and local election official action, believed to be justified as necessary due to the nationwide pandemic.

There was subsequently a significant amount of litigation targeting these eleventh hour changes to election procedures; one of the more pervasive arguments against those changes was that they usurped the authority of the state legislature to set the manner of elections. Following his defeat, former president Donald Trump filed numerous election challenges that asserted that the 2020 election was fraudulent, using many of the last-minute changes to support his argument. Despite there being no evidence of widespread fraud in the 2020 elections, many Republicans echoed Trump’s rhetoric.

Thus, while Alabama’s proposed amendment might have originated from a sincere desire to strengthen and uphold public confidence in the state’s election outcomes, it is also possible that this amendment would be used to ensure that the Republican Party of Alabama can keep a stranglehold on the electoral system and hold onto the levers of power in the state. Alabama Democrats expressed these concerns when they voiced opposition to the amendment. Regardless of the ultimate motive behind the amendment, there is little doubt that the proposed change to Alabama’s election law is a direct result of the immense tensions that arose from the 2020 election, which continue to cast a long shadow over the country’s electoral systems.

Arizona Proposition 309 puts more stringent voter ID and mail-in requirements on ballot

Election Law Society · November 7, 2022 ·

By Sarah Bradley

Proposition 309, the “Arizonans for Voter ID Act,” is on the ballot this November. Proposition 309 includes provisionsthat would affect the state’s voter identification laws and add additional requirements to mail-in voting affidavits. Proponents have stated that it will increase election security, while opponents have expressed worry about its effect on voter participation.

Arizona has allowed no-excuse mail-in voting since 1991, and—until recently—it has had significant bipartisan support. In 2007, the state legislature created the Permanent Early Voting List, which automatically sends a mail-in ballot for every election to every voter who opted in. 75% of Arizona voters are currently on the list. Early voting by mail is the most popular way to vote in Arizona, regularly used by more than 80% of Arizona voters. However, in the aftermath of the 2020 election, there has been a significant push to restrict, or even eliminate, mail-in voting in the state.

Proposition 309 adds additional requirements to the affidavit that mail-in voters must submit with their ballots. The affidavit would require the voter to provide an “early voter identification” number, their date of birth, and their signature. The early voter ID number can be (a) the voter’s driver’s license or nonoperating license ID number, (b) the last four digits of the voter’s social security number, or (c) the voter’s ID number from the statewide voter registration database. Current law only requires the individual to sign the affidavit. Election officials are currently required to confirm the signature and contact the voter regarding any inconsistencies. Proposition 309 would further require confirmation of the early voter ID number and date of birth.

Supporters of Proposition 309’s mail-in voting measures state that the current signature-only requirement is a critical vulnerability in the state’s mail-in voting system, and that the new addition creates parity between in-person and mail-in voters. They argue that the current system is overly permissive, allowing ballot harvesting and trafficking.

Detractors of the mail-in voting measures criticize them as being an invasion of privacy that would eliminate votes and drastically increase the time needed to verify ballots. They point out that the early voter ID number requirement prevents the ability to vote anonymously by linking the individual to their ballot, and that providing personal information increases opportunities for identity theft. Critics also highlight the likelihood that a high number of ballots would be discarded when returned without a completed affidavit, comparing Proposition 309 to a similar Texas law that caused about 13% of ballots—nearly 23,000 votes—to be thrown out in the state’s primary election earlier this year.

The Arizona Advisor Committee to the U.S. Commission on Civil Rights has previously criticized the state’s current in-person voter ID requirements for being unnecessarily restrictive, but Proposition 309 would tighten the laws even further. The current law requires voters to present either a photo ID that includes their name and address, or a combination of two alternate forms of identification without photos, such as utility or credit card bills. Proposition 309 would require all in-person voters to present a photo ID in the form of an Arizona driver’s license or nonoperating identification license, a tribal enrollment card or other form of tribal identification issued by a tribal government, or a US government-issued ID—removing the provision that currently allows voters to present any state or local government-issued photo ID, such as municipal or student IDs, that include the voter’s name, photo, and address. The name and address of the voter on the ID must match the name and address in the voting precinct register. If the address on the photo ID does not match, or if the ID is a US military ID card or a valid passport without an address, the voter must also present an additional document containing the name and address of the voter.

Supporters of the additional photo ID restrictions argue that photo identification is already required in daily life, calling it a commonsense measure that would increase voter confidence. They have also pointed to the provision in the bill that allows a fee waiver for individuals obtaining a nonoperating license to meet photo ID requirements as proof that the requirement will not be overly burdensome.

Critics have stated that the ID requirements in place are already satisfactory, and that Proposition 309’s photo ID requirement only limits access to marginalized communities. Strict voter ID laws have been shown to impede millions of eligible voters nationally from accessing the polls, with a disproportionate impact on minorities, senior citizens, people with disabilities, low-income voters, and students.

Supporters include all Arizona Republican lawmakers, Heritage Action (an affiliate of the Heritage Foundation), the Arizona Free Enterprise Club, and the Republican Liberty Caucus of Arizona.

The Arizona County Recorders have opposed Proposition 309, calling it a solution in search of a problem. Other opponents include the Arizona Education Association, the League of Women Voters of Arizona, and the Alliance of Arizona Nonprofits, which represents more than 1,100 nonprofit organizations.