State of Elections

William & Mary Law School | Election Law Society

Is the Montana Disclose Act in the Supreme Court’s Crosshairs?

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By Lucas Della Ventura

From George Washington’s warnings of the danger of corruption to “drain the swamp,” the influence of large sums of money in the pockets of politicians and their campaigns have concerned Americans throughout the nation’s history. In Citizens United v. FEC, the Court breathed life into Thomas Jefferson’s forewarning that the judiciary would enable corruption: “The engine of consolidation will be the federal judiciary; the two other branches the corrupting and corrupted instruments.” With the removal of limitations on corporate “independent” expenditures, the Court tied the state governments’ hands in enacting and enforcing state laws restricting campaign contributions. The modern era of unlimited corporate campaign spending was birthed, seeing a 900% increase in campaign spending by corporations and other outside groups. From 2010 to 2018, Super PACs, also offspring of Citizens United, are estimated to have spent $2.9 billion on federal elections. According to OpenSecrets.org, the leading website that tracks money in politics, so-called “dark money” groups (organizations that spend money from undisclosed sources) have spent roughly $1 billion — mainly on television and online ads and mailers — since Citizens United was decided.

Although the Court in Citizens United struck down limitations on “independent” expenditures, all of the Justices, save Thomas, approved of strong disclosure regulations. Justice Kennedy stated, “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”  In reaction to Citizens United and the flood of corporate and dark money entering into not only presidential elections, but also local elections, states like Montana, enacted comprehensive disclosure regimes. These state disclosure regimes have remained largely unscathed in the election law context, but not in others. The Supreme Court recently struck down a California regulation that required charities known for their conservative political activism and campaign financing, to disclose to the California Attorney General’s Office IRS forms containing the names and addresses of their major donors. Notwithstanding that the case focused on a state’s governmental interests in investigating charitable misconduct and the state’s lack of narrow tailoring, the decision put on alert states like Montana that have strong campaign finance disclosure regimes. 

Montana, the frontier state heralding the motto “Oro y Plata” (Spanish for gold and silver), sees itself at the frontier of legal challenges seeking to reshape how the wealth of the nation is treated by campaign finance and disclosure regimes across the country. Since 2015, the Montana Disclose Act has withstood several such tests.  In 2018, Montanans for Community Development v. Mangan, Montanans for Community Development (MCD), a 501(c)(4) that sought to send electioneering communications (issue advertisements, also known as “mailers”) refused to disclose its donors in accordance with Montana law. MCD’s two mailers at issue attacked environmentalists and encouraged fossil fuel industry promotion, mentioning candidates in upcoming Montana elections. The 9th Circuit upheld the district court’s finding that the disclosure requirements survive exacting scrutiny by serving a sufficiently important informational interest and being substantially related to the state’s interest.

The 9th Circuit elaborated on its stance regarding disclosure laws in NAGR v. Mangan, another challenge to Montana’s state disclosure requirements. The court cited to Citizens United in championing the information enhancing role disclosure laws play by stating, “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” The court added, “Far from restricting speech, electioneering disclosure requirements reinforce democratic decision making by ensuring that voters have access to information about the speakers competing for their attention and attempting to win their support.”

Even though the U.S. Supreme Court denied cert in both Montana cases, the Supreme Court’s lurch to the right and recent decision in AFP v. Bonta may spell danger to state efforts to achieve transparency in elections and protect the compelling informational interests provided by electioneering disclosures.

Once Thought Secure, Utah Implements Further Election Security

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By Anonymous

Not many things in the world are monitored 24 hours a day, 7 days a week. Bank vaults, hospitals, and military installations are the few that come to mind. However, in this Fall’s midterm elections, Utah’s ballot boxes will be as well.

24/7 video surveillance of unattended ballot boxes are among the several measures Utah’s state legislature has approved as a part of H.B. 313 to secure the state of Utah’s elections prior to the impending 2022 midterms.

House Bill 313, passed in the most recent general session, includes a bevy of changes for Utah voters. Voters are now required to provide proof of identity before voting if they did not provide proof of identification when they registered to vote. Utah is one of eight states that are “all-mail”–they conduct all elections by mail. In 2020, 94% of Utah voters voted by mail. Utah is the only Republican-leaning state that allows all elections to be conducted by mail. Because of H.B. 313, many of these voters will now need to submit a copy of their Utah drivers license or identification.

The legislation, primarily released by Republican Rep. Jon Hawkins, also requires a yearly audit of the voter registration database, limits who may access the election equipment, and reiterates requirements that election equipment may never be connected to the internet. The bill would also require the lieutenant governor to develop requirements for Utah election officials regarding the handling and documentation of “custody” for ballots.

Utah’s legislature passed these increased security measures despite voter fraud being an incredibly rare occurrence in Utah. According to The Heritage Foundation, a conservative think tank, Utah has only had one case of documented voter fraud—in 2008. Utah has allowed voting by mail since 2004. The most common reason ballots are rejected, in fact, do not come from nefarious parties, but instead, from simple mistakes, such as signature issues or unsigned affidavits. Sources have even found that, often times, fraud in Utah may stem from the parents of Latter-day Saints whose children are away on missions.

Despite the security of Utah’s elections prior to the 2020 election and the staggering popularity of voting by mail, the state has been swept up in election misinformation perpetuated by former President Donald Trump’s false claims that the 2020 Presidential Election was fraudulent.

Utah’s state legislature considered 35 proposals in 2022’s general session regarding its election practices—including H.B. 371, which would have removed ballot drop boxes and removed voting by mail as Utah’s primary voting method. The legislation, sponsored by Rep. Phil Lyman failed in committee. While Rep. Lyman alleged voter fraud when speaking in support of H.B. 371, he was unable to produce any evidence of his allegations.

Utah’s Governor and Lieutenant Governor, Spencer Cox and Deidre Henderson, both Republicans, have repeatedly defended the security of Utah’s elections and denounced allegations to the contrary as “absolute falsehoods [that] run counter to Utah law and the foundation of our constitutional republic.”

County Clerks have expressed frustration with H.B. 313’s new requirements. Sherrie Swenson, Salt Lake County’s Clerk, said that the constant surveillance represented an intrusion of privacy, and the new mandate regarding voter identification left her office scrambling to collect the required information from voters.  

The security of Utah’s vote is not the only concern in 2022–election officials said that voters will see armed police officers patrolling election sites in response to a recent increase in political tensions and threats towards election workers.

Changes in Tennessee: New Post-Election Audit Procedures

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By Marc Sloan

Tennessee has enacted a new law revamping its current post-election audit requirements and adding new ones to the list. The new legislation institutes a framework for the state to double check elections run by Tennessee’s 95 counties on a broader scale and in a more comprehensive way through a slate of both consistent and random audits. According to the Brennan Center, post-election audits can help ensure votes are tallied correctly and restore public trust in elections. The bill was passed unanimously in both chambers with bipartisan support, but the Voting Rights Lab says the law will restrict voter access and interferes with election administration through taking away power from local officials and giving it to the state.

Enacted into law in summer of 2022, Tennessee SB2675/HB2585 changes post-election procedures to require a new, additional audit process for select county election commissions. The commissions subject to these new audits will be selected randomly by the secretary of state, who must choose three to audit after each August election and six to audit after each November election. These new audits will begin with the first election in 2024. In the meantime, the law includes a provision requiring Williamson County, home to the Senate sponsor of the legislation, to undergo an audit following each election in 2022, in an effort to test the audit process. The original bill called this a “pilot program,” but this language was amended out.

Current law requires that county commissions who use precinct-based optical scanners must conduct automatic audits of the voter-verified paper ballots cast for the top race on the ballot; this new law retains that requirement, even if those election commissions are not otherwise selected for an audit. These audits must take place prior to the certification of the election. Finally, the law requires that all county election commissions not otherwise selected for an audit or required to complete one as part of the law must conduct a performance audit following the certification of each November election.

The law specifies that the secretary of state shall select the methodology for the random audits. The legislation provides for the secretary to choose from a risk limiting audit, a traditional tabulation audit, or a performance audit. According to the National Conference of State Legislatures, traditional tabulation audits are usually conducted by hand and compare the paper records with the records tabulated by the voting machines. These audits count every vote, whereas risk limiting audits involve counting a sample of votes and analyzing them using statistical methods determined to limit the risk of certifying an incorrect election outcome. A performance audit, also known as a procedural audit, designates a person or group to review the procedures followed during the election and analyze them for compliance and irregularity.

In addition to the audit requirements, the law provides that for elections in 2022 and 2024, the costs of the audits will be paid by the state. Specifically, county election commissions will be reimbursed for their actual costs, which cannot exceed $50 for the audit setup per machine and 35 cents per ballot audited. The fiscal note for the bill indicates the cost to the state to implement these new audit requirements will exceed $500,000 over the next four years. Part of this expense will be to hire a new certified public accountant to keep up with the changes in audit procedures this law requires. With the rollout of this law set for the November 2022 elections, the state and county elections commissions must prepare to comply with this new legislation.

Ranked Choice Double Header: Alaska’s Move to Rank Choice Voting & the Summer Special Election

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By Margaret Dupree

Alaska’s new ranked choice voting system is experiencing a double-header in 2022. In 2020, Alaskans passed Ballot Measure 2, which created the ranked choice system for general elections, while maintaining a single choice system for primaries. Alaskans still vote for the one candidate of choice in primaries, but in general elections they rank the candidates on their ballots. If one candidate receives more than 50% of the vote in the first round of calculations (i.e., they were the “First Choice” candidate for more 50% of voters) the vote tabulation stops and does not move to a second round. If no candidate receives more than 50% of the vote after round one, the candidate with the least votes is eliminated, and the ballots of the voters who chose that losing candidate are recounted using their second choice. This process repeats until a candidate has more than 50% of the vote. 

Alaskans voted for the measure during the 2020 presidential election by a margin of 50.55% to 49.45%; turnout for the 2020 election in Alaska was 60.67%. Despite litigation challenging the implementation of the voting system, the Alaska Supreme Court upheld the narrowly-passed ballot measure in early 2022, making it the voting system for the 2022 midterms. However, due to the death of Rep. Don Young in March 2022, ranked choice voting was implemented even earlier than the midterms to fill the at-large seat in August for the remainder of his term.

While many other municipalities across the United States use ranked choice voting, Alaska is only the second state in the nation to implement it; Maine implemented ranked choice voting beginning in 2018. Advocates of ranked choice voting argue that the system results in more representative outcomes, and helps decrease negativity in election cycles. Another benefit of ranked choice voting systems is that it prevents a candidate winning with only a plurality of voters, as opposed to a typical first-past-the-post system which can result in the winning candidate having a minority of the vote in contentious or crowded elections. However, there are critiques that arise, principally that the system is complicated, and that in a polarized political climate, voters will not want to rank candidates. Especially in the current political climate where some Americans and political candidates deny the 2020 election results, the roll out of a new voting system in Alaska over two elections could highlight whether changing voting systems will help temper partisanship and increase voter trust, or whether voting changes will be vulnerable to election denial and distrust. 

The Alaska special election results seem to demonstrate both how a change in voting systems can result in surprising victories and be vulnerable to partisan motivations. At the end of August, Democrat Mary Peltola won the special election after voting moved into a second round. At the end of the first round, Republican Nick Begich was in third and was cut from the race. His voters’ second choices were then tabulated, and while Republican Sarah Palin had more of those than Peltola did, enough of Begich’s voters ranked Peltola second, pushing her past the 50% threshold. Peltola is the first Democrat to represent the state since 1972, a state that has voted for the Republican presidential candidate 93.8% of the time since 1960, and 100% of the time since 2000.

While a sizable majority of Alaskans supported the voting system, and 66% of voters actually ranked candidates in the election, prominent politicians have called into question the legitimacy of the voting system, claiming that it is a system that benefits the Democratic Party. Notably, Arkansas Senator Tom Cotton tweeted that “60% of Alaska voters voted for a Republican, but thanks to a convoluted process and ballot exhaustion—which disenfranchises voters—a Democrat ‘won.’” This kind of political criticism could hardly be unexpected, especially in the current political climate. However, the criticisms come at a vulnerable time for the electoral system in Alaska; if voters believe these claims are accurate, their trust that their vote counts or that their election laws are fair will decrease. Voters across the U.S. show a decrease in confidence in the democratic system. Distrust in the fairness of election laws and systems is dangerous for democracy, and new changes like those in Alaska are perhaps the most vulnerable.   

The 2022 Alaska midterm election in November is the same cast of candidates as the special election. It will be interesting to see if the attacks and critiques on the system will result in fewer Alaskans participating or adhering to a system that is theoretically meant to boost confidence in their election system. If fewer voters rank candidates on their ballots (i.e., opt to pick only one candidate like a traditional ballot), or even decide not to vote at all, it could indicate that partisanship is still a strong factor in voter choice, and that the efforts to ameliorate polarization and distrust are up for a difficult battle. 

Discrimination in Washington State Redistricting

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By Megan Bodenhamer

Washington State has rather progressive and cutting-edge voting and election laws. For example, Washington State was one of the pioneers for statewide mail-in voting, long before the COVID-19 pandemic. In fact, voter turnout in the state is consistently above the national average. Washington State also has one of the nation’s few bi-partisan redistricting committees. However, despite these policies—that, on the surface, may seem modern and equitable—there are problems plaguing Washington State’s elections that are far from idyllic. Specifically, Washington State has faced many allegations of voting discrimination against its Latino population. 

On January 19th of this year, a lawsuit was filed in the United States District Court for the Western District of Washington alleging intentional discrimination against Latino voters by the Washington State Legislature and the Washington State Redistricting Commission. The UCLA Voting Rights Project, the Campaign Legal Center, and residents of Yakima (hereafter “Plaintiffs”) filed the lawsuit against the Washington State Secretary of State, the Speaker of the Washington State House of Representatives, and the Majority Leader of the Washington State Senate. The Plaintiffs allegethat “[t]he Washington State Redistricting Commission . . . selected redistricting plans for Washington’s state legislative districts that dilute Hispanic and/or Latino voters’ ability to elect candidates of choice.” The allegations arise out of Yakima, Franklin, Adams, and Grant counties. The lawsuit alleges that the Washington State Redistricting Commission intentionally “cracked” these Latino populations and mixed them with a heavily white population, thus diluting their votes. Lines were drawn through the City of Yakima cutting across the areas where Latino populations live, while still including blocs of white voters that often vote against Latino-preferred candidates. Further exacerbating the problem, Latino voters in the included area have a low turnout rate, while those excluded have a higher rate. This case has not yet been tried, but it will certainly be a pivotal decision for the longevity of the newly created districts in Washington.

Gerrymandering is not the only place where Latino voters in Washington State face challenges. Due to its long-time mail-in voting system, Washington State employs a signature matching system to deter voter fraud. Unfortunately, in high-Hispanic counties, Latinos were four times more likely to have their mail-in ballots rejected for signature issues. As a result of these signature denial disparities, the League of United Latin American Citizens and the Latino Community Fund of Washington have filed suit against Benton, Chelan, and Yakima counties for violating the 14th and 15th Amendments. The lawsuit claims that the signature-matching policies are flawed because they are subject to the discretion of local election workers and have inconsistent results over time, harming Latino voters in Washington State. 

However, there has also been successful litigation in Washington to defend Latino rights. In 2022, the UCLA Voting Rights Project settled a claim against Franklin County under the Washington Voting Rights Act, a recently passed state provision. Franklin County admitted fault in the settlement, conceding that they were in violation of the Act. Franklin County previously had an at-large voting system where a Latino-preferred candidate had never won. Under the settlement, Franklin County Commissioner elections will be required to use single-member districts beginning in 2024. While this may be a win for Latino voters in Franklin County, there is much work to be done in other counties, across the state of Washington, and across the United States.