State of Elections

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Election Law Society

Early Voting is Thriving in Virginia’s 2022 Midterms

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By Noble Pearson

Over the past several years, Virginia has expanded early voting in the state with new legislation. In April 2020, former Governor Ralph Northam signed HB1/SB111 into law, which allows any registered voter to vote up to forty-five days prior to an election by absentee ballot in any election in which that person is qualified to vote with no excuse required. On that same day, Northam also signed HB238/SB455, which allows absentee ballots to be counted if they are postmarked on or before the day of an election and are received by the general registrar by noon on the third day after the election. The next year, in March of 2021, Northam signed HB1968 into law, which permits local election boards to offer absentee voting in person on Sundays during the early voting period leading up to an election. Before these changes, voting by absentee ballot had been restricted to voters meeting specific requirements, such as being an out-of-area student or a member of the armed forces residing temporarily out-of-state. The 2020 and 2021 changes thus expanded access for Virginia voters regarding early voting, particularly in response to the Covid-19 pandemic. 

Since the passage of these new laws expanding early voting, Virginia has held two elections with extremely high turnout in 2020 and 2021. 2020 saw a contentious presidential election, and 2021 included statewide contests for Governor, Lieutenant Governor, and General Assembly seats. We are now approaching the first midterm election since the new laws referenced above have been passed. There are no state elections on the ballot this time, and only a handful of competitive races for U.S. Congress, but turnout is still expected to be high. Some are suggesting that deep political divisions in the state concerning topics such as the economy, abortion, and Donald Trump will motivate increased voter participation in this election, especially early participation. 

While, at the time of writing, we are still two weeks away from election day itself, high numbers of early voters are making news around the Commonwealth. In the 2018 midterm election, the last midterm election before the new laws went into effect, the grand total of early voters was around 345,000. As of October 19, 2022, more than 302,000 votershad already voted early, with nearly three weeks remaining. Suffolk General Registrar Burdette Lawrence claims that Suffolk has received near-presidential race levels of early votes. Reports from around the state, including Roanoke, Richmond, and Prince William County, indicate that early voting is taking place at significant levels. With increased access and strong political motivation, the popularity of early voting and voting by mail seem to be rising.   

With many challenges remaining for election officials, there is also hope that early voting provides an avenue to mitigate other election concerns. Experts are bracing for map-based confusion in this election, as the voting maps in Virginia have changed following post-census redistricting. Additionally, there have been recent reports of printing errors wreaking havoc in northern Virginia, with election officials in Fairfax and Prince William counties reporting that over 31,000 voters received documents indicating incorrect polling locations. The good news is that early voting may help alleviate some of these issues, as county election officials have recommended early voting as a possible way to proactively avoid confusion regarding polling location on election day.

The November 2022 midterm election in Virginia is yet to be complete, but it is clear that Virginia’s recent legal changes to expand access to early voting are leading to increased voter turnout. With the voting numbers already closing in on those of the previous midterm in 2018, all expectations are that there will be a noted increase in midterm voter turnout this election. Prince William County registrar Eric Olsen has said that the state should expect to see even more early voting in the remaining days before the election, with voters often procrastinating until the last few days before the election to cast an early vote. 

It is easy to see why expanded early voting is so popular. Early voting is safer, easier, and more accessible than ever before, and may well lead to enhanced civic engagement. In a time of contentious politics and heightened division, voting is increasingly important to members of both political parties. In fact, support in Virginia for early voting has been largely bipartisan, with Republican Governor Glenn Youngkin’s embrace of early voting playing a part in his 2021 election. Politics aside, the ability to vote is a fundamental part of American civil life. As Virginia is demonstrating, expanded access to voting results in expanded interest in voting, which is good for democratic participation. Long may it continue. 

An Impossible Choice: Large Scale Voter Suppression v. Risking Criminal Prosecution

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By Katie Kitchen

While literacy tests are no longer formally part of the U.S. election process, numerous laws, including a decades old law in Missouri, still result in similar forms of voter suppression. This law, Mo. Rev. Stat. § 115.44.3, has been in effect since 1977 and states, “No person, other than election judges and members of such voters’ immediate families, shall assist more than one voter at one election.” While this single sentence may seem like a small detail in terms of election procedure, in practice, some argue the law infringes on the rights of limited English proficient individuals and people with disabilities to vote.

One such person is Susana Elizarraraz’s mom. Elizarraraz’s mom is deaf, limited English proficient, and relies on Elizarraraz’s assistance to cast her ballot in each election. When Elizarraraz had to go out of town for work during an April 2022 election, her mother was unable to vote, as there was no one available to assist her due to the limitations of Missouri’s Single-Voter Assistance Restriction. 

A group of Plaintiffs are currently challenging Mo. Rev. Stat. § 115.44.3 in Missouri Protection & Advocacy Services v. Ashcroft. The Plaintiffs in this matter are Missouri Protection and Advocacy Services (Mo P&A), VozKC, and three individuals who have been directly impacted by Missouri’s Single-Voter Assistance Restriction. One of those individuals is Susana Elizarraraz. Mo P&A is a non-profit public interest law firm focused on protecting the rights of individuals with disabilities. VozKC is a volunteer organization that advocates for Latino communities and works with limited English proficient populations.

In the Complaint, filed June 22, 2022, the Plaintiffs assert that Mo. Rev. Stat. § 115.44.3 violates § 208 of the Voting Rights Act (VRA) and the Supremacy Clause of the United States. Section 208 of the VRA states, “Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice.” Therefore, the Plaintiffs argue that the limitation included in Mo. Rev. Stat. § 115.44.3 hinders the ability of voters who require assistance to choose the individual who assists them, which can lead to an inability to exercise the right to vote entirely. Additionally, because Mo. Rev. Stat. § 115.44.3 is a state law that may infringe upon the VRA (a federal law), the Plaintiffs assert that it violates the Supremacy Clause, which generally states that federal law is the “supreme law of the land”. 

The Plaintiffs make many compelling arguments regarding why challenging an election law from 1977 is prudent today. One reason is that the Latino population grew by nearly 50% across the St. Louis region since 2010, but Missouri does not offer election materials in languages other than English. Additionally, approximately 18.6% of Missouri’s eligible voting population are individuals with disabilities who are projected to be eligible to vote in Missouri in 2020. Thus, voter assistance for populations of limited English proficient voters and voters with disabilities in Missouri has become even more critical as the population changes. The non-profit communities are unable to have one volunteer for every individual who may need assistance, which is what would be required to abide by Mo. Rev. Stat. § 115.44.3. The Plaintiffs describe this situation as a choice between large groups of people being unable to exercise their right to vote versus having individuals risk criminal prosecution by violating the Missouri’s Single-Voter Assistance Restriction. What may seem like a small procedural matter can impact the ability of entire groups of minority populations to exercise their right to vote, which has concerning ramifications for democracy as a whole.

I will delve into the Answers filed by the Defendants as well as the Statement of Interest filed by the Department of Justice in future posts. From a brief glance, issues such as whether there is a private remedy to enforce § 208 of the VRA are likely to be raised. Additionally, it is worth noting that there is similar litigation in Arkansas challenging a law that prohibits individuals from assisting more than six voters in casting a ballot each election. As the cases progress, it will be interesting to see whether courts will invalidate all limitations to § 208, or if they will determine an acceptable threshold of how many voters it is reasonable for one person to assist within the boundaries of the VRA. This distinction may be a determining factor in the equitable ability of individuals with disabilities and/or limited English proficiency to exercise their right to vote.

What on Earth is Going on with Florida? Explaining the Purcell Principle and Ongoing Litigation Over SB 90

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By Emily Baker

There has been significant news coverage on court proceedings covering Florida state election law. Recent articles include titles such as  “Florida appeals court questions ruling on elections law” and “An appeals court questions a rulingagainst parts of Florida’s election law.” The main questions are, what happened and what do these reports mean?

Starting from the beginning: Florida’s Senate Bill 90 was signed by Governor Ron DeSantis, live on Fox News, on May 6th, 2021. It received immense criticism, because its effect would generally make it more difficult to vote by mail. The bill was immediately challenged by multiple sets of plaintiffs—the Harriet Tubman Freedom Fighters, the League of Women Voters, the Florida NAACP, and Florida Rising Together—each bringing slightly different claims. The lawsuits were consolidated into one case by the district court, challenging three colorable issues: 

  1. A provision regulating the use of drop boxes for collecting ballots criminalized dropping off more than two ballots besides those from immediate family members and required monitoring by election personnel. As a result, access to drop boxes was limited to posted hours of operation.
  2. The Registration-Delivery Provision requires third-party voter-registration organizations to deliver voter-registration applications to the county where an applicant resides within fourteen days, and the Registration-Disclaimer Provision specifies information that third-party voter-registration organizations must provide to would-be registrants. Third-party voter-registration organizations can be fined up to $50,000 per year for violating either of these provisions, a stark increase from the previous $1,000 limit per year.
  3. The Solicitation Provision prohibits the solicitation of voters within 150 feet of a drop box or polling place.

Plaintiffs argued that each of these provisions discriminated against voters on the basis of race, in violation of the Fourteenth and Fifteenth Amendments and Section 2 of the Voting Rights Act; specifically that the Registration-Disclaimer Provision compelled speech in violation of the First Amendment and that the Solicitation Provision was unconstitutionally vague or overbroad in Violation of the First and Fourteenth Amendments.

Focusing on the racial discrimination, the lower court held that SB 90 “runs roughshod over the right to vote, unnecessarily making voting harder for all eligible Floridians, unduly burdening disabled voters, and intentionally targeting minority voters—all to improve the electoral prospects of the party in power.” The court found that the challenged provisions were unconstitutional and unenforceable because they limited access to the ballot. For example, people frequently help elderly voters by dropping off their ballots for them and is a common practice in church groups. Additionally, the limited accessibility to ballot drop boxes can favor white-collar voters who have greater flexibility in their jobs. In consequence, the District Court placed the state of Florida on preclearance for ten years, which means that the state would have to seek federal approval to “preclear” any attempt to pass new laws specifically related to drop boxes, line-warming (a commonly employed practice of giving out food and water to voters waiting in line), and voter registration organization activities.

The 11th Circuit Court of Appeals, however, “stayed” the district court’s injunction in May of 2022 on the basis of the “Purcell principle,” which is the idea that courts should not change election rules on the eve of an election because doing so could confuse voters and create problems for officials administering the election. The 11th Circuit employed the principle here, because the lower court’s injunction implicated voter registration, which was currently underway, and required the state to retain poll workers when the next statewide election was nearly four months away. 

In addition, the 11th Circuit took issue with the district court’s analysis of the historical background and its conclusion that “Florida has a grotesque history of racial discrimination.” The district court supported the conclusion by the recounting of several acts of violence against Black voters in Florida, notably the massacre of more than thirty Black Floridians on Election Day after a Black voter went to the polls in 1920. The 11th Circuit’s holding was in part based on the principle that “old, outdated intentions of previous generations” should not “taint [a state’s] legislative action forevermore on certain topics” and that the district court ruling failed to take into account the presumption of legislative good faith. 

While critical, this was only a temporary stay pending appeal. These new headlines, while flashy, only address questions judges asked in the oral argument and not the merits or the 11th Circuit’s final decision. SB 90 will be in effect (at least) until the 2022 midterm elections are over, likely making it more difficult for many Floridians to vote by mail. 

On the Eve of Merrill v. Milligan, a Voting Rights Act Section 2 Case to Watch in Georgia

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By Rebecca Stekol

Uncertainty clouds the future of the Voting Rights Act Section 2 due the upcoming vote dilution case before the Supreme Court in October 2022, Merrill v. Milligan. Some worry that the Supreme Court will embrace Alabama’s argument“regarding race-neutral principles in redistricting” and render Section 2 vote dilution claims much more difficult. In the meantime, however, Georgia faces its own Section 2 litigation in Rose v. Raffensperger. The docket already tells a convoluted tale. In the broader context of Georgia’s polarized election climate following the 2020 election, including the passage of the controversial Senate Bill 202 enacted in 2021, the outcome of this case has the potential to fuel more controversy or foreshadow the future of election administration in the state.

The crux of Rose v. Raffensperger is a challenge to the at-large method of electing members of Georgia’s Public Service Commission. The Commission has “exclusive power” to decide fair and reasonable rates for services under its jurisdiction,” including services stemming from the electricity, natural gas and telecommunications industries. Commissioners have been chosen by statewide election since 1906; although elected at large, Commissioners are required to reside in one of five Public Service Commission districts. In their complaint, Plaintiffs contended that “staggered terms, a majority-vote requirement, and unusually large voting districts” enhance the opportunity for discrimination against Black voters. Their main claim is that the at-large method of electing members of the PSC dilutes Black voting strength because the percentage of districts in which Black voters constitute an effective majority is less than the percentage of Georgia’s Black voting-age population. According to the plaintiffs, the results don’t lie: in Georgia’s history, there have only been two Black public service commissioners, and they were appointed by the governor to fill vacancies before being elected.

The District Court addressed what it described as a “novel question” of whether there can be vote dilution when the challenged election is held on a statewide basis. On August 5, 2022, Judge Grimberg held that “this method of election unlawfully dilutes the votes of Black citizens under Section 2 of the Voting Rights Act,” permanently enjoining Secretary Raffensperger from preparing ballots for the November 8, 2022 election that include contests for PSC Districts 2 and 3 and from administering any future elections using the statewide, at-large method. He noted that “while delaying elections … until a later date will regrettably cause disruption to the candidates currently running for those offices, the court does not find that such disruption outweighs the important VRA interests that are implicated.”

As is usually the case for contentious Voting Rights Act issues, the tale did not end there. Secretary Raffensperger moved for a stay pending appeal of the district court’s order, which the Eleventh Circuit granted on August 12. The Court heldthat the district court’s order violated Purcell v. Gonzalez and its progeny, which prohibits district courts from altering the election rules in the period close to an election. The Court concluded that the district court’s issuing of the permanent injunction about three months before the election is “sufficiently close at hand” under recent precedent articulated in League of Women Voters of Florida v. Florida Secretary of State. In addition, the Court noted that postponing the elections for Districts 2 and 3 and keeping the existing Commissioners as “holdovers” until single-member voting is implemented “fundamentally alters the nature” of the upcoming elections under RNC v. DNC. 

On August 19, the Supreme Court issued a one-paragraph order reversing the Eleventh Circuit’s judgment and vacating the stay. According to Wiley Rein’s Jeremy Broggi, three points can be drawn from the Court’s reasoning. First, the Supreme Court may agree that a Purcell defense is waivable. Secretary Raffensperger waived a Purcell-based appeal, but the Eleventh Circuit still applied it. Second, the Supreme Court declined to apply Purcell “mechanistically” like the Eleventh Circuit did when it applied Purcell because the election was three months away. Third, the Supreme Court focused on equitable considerations, indicating that Purcell is a “rule of reason reflecting concerns about the potentially disruptive consequences of judicial tinkering with election rules.” For instance, the record as it stands contains no evidence that the injunction would cause voter confusion, calling the necessity of a stay into question. Therefore, the Supreme Court directed the Eleventh Circuit to reconsider whether the stay is appropriate “subject to sound equitable discretion.” That is where the tale ends, for now. 

The reactions to the ongoing litigation have been mixed. On one hand, James Woodall, the President of the Georgia NAACP, stated that it is imperative for state regulators to “better address the racial inequity of Black households paying a significantly higher percentage of their income on utilities.” Having more Black-supported Commissioners would change “the way deliberations are had.” However, the state’s attorney Bryan Tyson has stated that socioeconomic factors such as household income are more significant factors in how spending decisions are made than race, and that “political partisanship better explains the pattern of voting dilution” than race does. Moreover, some believe that putting two PSC elections in limbo creates uncertainty and frustration for candidates and voters alike; such a prolonged legal affair might even discourage voter turnout, writes local journalist Marc Hyden.

Of course, at the backdrop to this twisted tale of litigation is how the potential gutting of Section 2 after Merrill v. Milligan will shape claims like these. For now, we are at a cliffhanger as we await more Supreme Court decisions.

Rhode Island’s Response to Voting Restrictions and January 6 Riots

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By Susanna Clark

The Rhode Island legislature recently passed the “Let Rhode Island Vote Act,” which was signed into law by the Governor on June 8, 2022. The law contains several measures intended to make voting easier for Rhode Islanders. This comes at a time when several other states like Georgia, Iowa, and Florida have enacted measures to make it more difficult to vote. The lieutenant governor cited COVID-19 and the January 6 riots as reasons for the new law. One  of these measures removes the requirement that mail-in ballots be filled out either before a notary public or before two witnesses. Another established a virtual portal that allows voters to apply for the mail-in ballot online, rather than having to fill out their application in person or mail in the form. Furthermore, the statute removes the requirement that voters provide a justification for obtaining a mail-in ballot. The Act further eases restrictions regarding emergency mail-in ballot applications. Moreover, a new telephone hotline provides information on voter registration, the voting process, and polling locations.

Bloomberg News assessed Rhode Island’s election system. Bloomberg found that while Rhode Island’s election system scored well in terms of ballot security, it could still make improvements in the voting category. While the article does indicate that the Act includes online registration, no-excuse early or mail-in voting, and online ballot tracking, it is important to note that the Act does not include some considerable items that other states have implemented to further ease restrictions. These measures include election-day registration, automatic registration (at an agency other than the DMV), a permanent mail-voter list, and voting supercenters (that allow anyone to vote regardless of their precinct). These measures have become more significant in the wake of accusations of election security violations and fraud, propagated mainly by Trump-supporting Republicans.

The former president of the United States infamously claimed that widespread voter fraud ran rampant during the 2020 election. He specifically targeted mail-in voting, which was highly utilized in 2020, likely due to COVID-19. These issues have been highly politicized, especially because of the January 6 riots, which was an attempt by Trump supporters to prevent Congress from confirming the outcome of the 2020 election. This appears to be a notable reason why the legislature passed this bill—to ensure that people who want to vote by mail are able to do so. Bloomberg also measuredhow Rhode Island responded to the 2020 election in other ways. Rhode Island followed its normal auditing and re-count procedures, it did not modify its criminal penalties for election officials, and it did not join a lawsuit attempting to induce the Supreme Court to overturn the election. Furthermore, all of its representatives in Congress voted to certify the election results.

The Rhode Island legislature and governor likely felt it was necessary to take a stronger stance against the allegations of fraud through this Act’s implementation. The decision whether to expand or restrict voting falls almost strictly along party lines. Rhode Island has a Democratic majority in its legislature and a Democratic governor, and the states that passed laws restricting voting have been majority Republican. Voting laws have always been somewhat partisan, but it seems the parties have become even more divided on the ways elections ought to be conducted. It remains to be seen whether the Let Rhode Island Vote Act will increase voter turnout in the midterm elections this November.