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2020 Election

Missouri Restrictions on Registration & Absentee Voting Outreach Efforts May Violate State Free Speech Protection

Election Law Society · March 15, 2023 ·

By Gray Whitsett

This summer, Missouri state legislators approved wide-ranging legislation that imposes new requirements on registering to vote and casting a ballot, alters presidential primaries, and expands absentee voting ahead of Election Day. The new law, popularly referred to as HB 1878, was passed in the wake of the 2020 election to address unsubstantiated claims of election fraud. As with many overhauls to state election codes, HB 1878 has been the subject of significant criticism, namely for provisions that heighten voter ID requirements and limit civic engagement organizations from encouraging and assisting with voter registration. Each of these components is being challenged in state court.

The complaint against restrictions on voter registration activity presents an interesting challenge under the Missouri Constitution.

In League of Women Voters of Missouri v. Missouri, the plaintiffs, which include the Missouri NAACP, have challenged four HB 1878 requirements affecting nonpartisan advocacy groups that engage in voter registration activity. The four provisions:

  1. Prohibit individuals from being paid or compensated “for soliciting voter registration applications”;
  2. Require individuals, regardless of compensation, to register with the state as “voter registration solicitors” if they solicit more than 10 registration applications;
  3. Require such registration solicitors to be registered Missouri voters; and
  4. Prohibit individuals and organizations from soliciting voters to complete absentee ballot applications.

The plaintiffs allege these provisions violate protections of free speech, free association, and due process of law guaranteed under the state constitution. Primarily, they claim that by targeting dissemination of information about and advocacy for voter registration, the state regulated speech based on its content, and because this constitutes political speech, the state infringed on “core protected expression.” This infringement is exacerbated by the unclear definitions of “compensation” and “solicitation” used in the statute, which they allege fail to provide fair notice to the public of what conduct would violate the law.

They further claim the law’s ambiguity creates severe administrative burdens and jeopardizes their “organizational mission[s].” Both organizations conduct significant voter registration activity throughout the state by employing a small number of salaried administrative staff and recruiting a large volunteer force. These volunteers are typically reimbursed for gas mileage and supplies, treated to food and snacks, and given organizationally branded materials like T-shirts, pencils, and clipboards to keep. In their suit, the League of Women Voters and the NAACP purport that the statute’s language of “compensation” may encompass these reimbursements and gifts, exposing all their volunteers to liability or depriving the organizations of basic volunteer recruitment incentives.

Perhaps more consequentially, the vagueness of “solicitation” leaves the organizations’ voter registration and absentee voting outreach programs in uncertainty. The plaintiffs contend it is unclear what constitutes a solicitation to register to vote or to vote absentee. While some interactions involve directly asking voters to register or vote absentee, the majority of outreach involves conventional voter registration drives where the public approaches a table or booth, asks a few basic questions, and completes a registration application. During the course of this interaction, volunteers often end up informing voters that they may be eligible to vote absentee based on what the voter says to them. The plaintiffs fear that solicitation, broadly defined, could ensnare all of these exchanges, which would require all volunteers to have to register with the state as “voter registration solicitors” and further expose volunteers to criminal liability.

The plaintiffs argue the requirement that solicitors be registered Missouri voters creates additional administrative burdens. Generally, it would require voter outreach groups to conduct a screening process for volunteers and prevent former felons, noncitizens, and anyone under 18 from being able to participate. It also would impede volunteers who may travel across state lines to support registration efforts, which may impact border cities like St. Louis and Kansas City. The plaintiffs claim these limits go to the heart of their organizations’ missions of involving the whole community in their advocacy and create logistical challenges that seem tailored to hampering their organizations’ functioning.

Regardless of the impacts of HB 1878, the plaintiffs’ case is striking because they are bringing claims under the state constitution’s voting rights guarantee, which the Missouri Supreme Court has previously said is “more expansive and concrete” than federal protections. Broadly speaking, the litigants’ hope that the combined rights of free speech and voting contained in the state constitution will render the law unconstitutional. While this approach will be necessarily limited to Missouri, it may reflect the broader call for voting rights groups to adopt a state-based approach to securing protections under the various voting provisions in state constitutions.

As the federal judiciary continues its relative disinterest in strengthening voting rights nationally, spectators are likely to see increased litigation at the state level. League of Women Voters may become one of the first of many such state battles, and a victory for the plaintiffs in a state dominated by election-skeptics may demonstrate how this strategy can bear fruit.

Suits Against Texas’s 2021 Voting Law Move Forward, Promise Lengthy and Complex Legal Battle

Election Law Society · February 27, 2023 ·

By Kate Dopkin

Fueled by conspiracy theories and former President Donald Trump’s claims that the 2020 election was rigged, last year, conservative states moved to pass legislation to restrict voting. The Republican-dominated Texas Legislature was no exception. In September of 2021, the Texas Legislature passed S.B. 1, a voting law that attempted to restrict how and when Texas voters can cast ballots. The far-reaching legislation banned drive-thru and 24-hour voting, protected partisan poll watchers, and imposed new requirements for assisting voters who need help filling out their ballots. The law also banned the distribution of mail-in ballot applications, created new ID requirements for voting by mail, and provided a correction process for mail-in voting. The ACLU of Texas described the legislation as “Omnibus Voter Suppression.”

Civil and voting rights groups have challenged S.B. 1 under the U.S. Constitution, the Voting Rights Act, and the Americans with Disabilities Act (ADA). The private plaintiffs included La Union del Pueblo Entero, Friendship-West Baptist Church, The Anti-Defamation League, and Texas Impact, among others. At least five different cases have been consolidated into a single lawsuit in the Western District of Texas. The U.S. Department of Justice filed a statement of interest in the case, arguing that the plaintiffs had sufficiently stated a claim of intentional discrimination under Section 2 of the Voting Rights Act.

Additionally, in November 2021, the U.S. Attorney General filed a lawsuit against the State of Texas and the Texas Secretary of State, alleging that SB 1 violates Section 208 of the Voting Rights Act by improperly restricting assistance in the polling booth for voters with disabilities that make it difficult for them to read or write. The lawsuit further alleged that the law violated Section 101 of the Civil Rights Act by requiring rejection of mail ballots and mail ballot request forms because of certain paperwork errors or omissions that are not material to establishing a voter’s eligibility to cast a ballot. In May of 2022, Judge Xavier Rodriguez, denied the State’s motion to dismiss and allowed the Attorney General’s lawsuit to move forward.

Attempts to dismiss the private plaintiffs’ complaints have largely been unsuccessful. The defendants asked the court to dismiss claims raised by various voter advocacy organizations, including those filed by LULAC, Voto Latino, Texas Alliance for Retired Americans, and Texas AFT. On July 12, 2022, the district court allowed the majority of the claims to move forward, holding that the State defendants could not claim sovereign immunity; some of the plaintiffs had associational standing; all plaintiffs had organizational standing; and the plaintiffs had stated a claim upon which relief could be granted. The district court has also granted LULAC’s motion to compel documents and communications from the state legislators concerning claims of criminal conduct in Texas elections, the anticipated effects of S.B. 1, and communications with third-party organizations concerning S.B. 1. Texas legislators have appealed this order to the 5th Circuit.

On August 2, 2022, the District Court allowed most of the LUPE Plaintiffs’ claims to  proceed, dismissing without prejudice certain claims under the 14th and 15th Amendments,  sections 276.016, 276.017, and 276.019  of the State Election Code, and the ADA. State defendants have appealed that decision to the 5th Circuit, as well. The litigation is ongoing, and promises to be a lengthy and complex legal battle. The trial is currently scheduled for the summer of 2023.

Minnesota ID: Will Voter Id Laws Be Enacted with The Coming Legislative Session?

Election Law Society · March 7, 2022 ·

By: Cullen Enabnit

An ongoing trend following the 2020 election pushed state legislatures to introduce more and more laws aimed at curtailing perceived voter fraud or the potential of it. One of the main ways states have approached this is by enacting different levels of voter identification laws. Currently there are 36 states that have some form of voter ID laws. Seven states currently have what is described as “strict” voter ID laws that require the voter to present one of a limited set of government issued IDs, and being without will prevent them from being able to vote.

[Read more…] about Minnesota ID: Will Voter Id Laws Be Enacted with The Coming Legislative Session?

Audit Finds Wisconsin 2020 Elections Were “Safe and Secure” – What Comes Next?

Election Law Society · February 25, 2022 ·

By: Kayla Burris

The 2020 presidential election was a test of Wisconsin’s election system. Like other states, Wisconsin faced numerous legal challenges to the ways votes were cast and counted. However, as a battleground state in a tight race, calls of fraud were particularly loud. Wisconsin also conducted a recount in two of its counties and Republican groups continued calling for audits long after Biden was sworn into office.

The Republican-controlled legislature agreed that the fraud claims had merit and, voting along party lines, ordered an audit to “be conducted by the nonpartisan Legislative Audit Bureau.” Democrats were largely opposed to the audit, with Democratic Governor Tony Evers accusing Republican leaders of “drinking the Kool-Aid” and pushing baseless conspiracy theories about the election.

[Read more…] about Audit Finds Wisconsin 2020 Elections Were “Safe and Secure” – What Comes Next?

Partisan Battles Loom Large over Pennsylvania’s Election Audit

Election Law Society · February 21, 2022 ·

By: Christopher Chau

Following the contentious 2020 election, controversy surrounded the validity of Pennsylvania’s election process as voters requested and submitted record numbers of mail-in ballots. While no-excuse mail-in voting was legalized under Act 77 in 2019, Republicans in the Pennsylvania Senate quickly turned against the practice and claimed that it was vulnerable to voter fraud. On  September 3, 2021, the Republican majority announced a “full forensic investigation,” in what seems to be an audit of the election results, voting to subpoena the PA Department of State for voter records along with nonpublic personal identification information, such as Social Security and driver’s license numbers. According to Senate President Pro Tempore Jake Corman: “This is about looking at our system inside because hundreds of thousands, if not millions, of Pennsylvanians, have questions.” While Corman asserted that voters’ information will be kept private, many remained concerned about the invasiveness of the audit. Meanwhile, Senate Democrats and PA Attorney General Josh Shapiro criticized the measure, citing that there was no evidence of voter fraud and that the investigation was a waste of taxpayer money and an invasion of voters’ privacy.

[Read more…] about Partisan Battles Loom Large over Pennsylvania’s Election Audit

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