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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.

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

Election Law Society · October 28, 2022 ·

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. 

Upcoming Bill Could Make Illinois the Third State to Allow All Incarcerated People to Vote

Election Law Society · January 28, 2022 ·

By: Andrew Heiser

Brian Harrington spent thirteen years in prison after being charged with murder at the age of sixteen. During that time, he was able to build skills he hoped to use outside of prison, work on self-improvement, and raise awareness about the shortcomings of the criminal justice system. There was, however, one thing he could not do: vote.

In Illinois, as in almost every state, incarcerated felons lose their right to vote while they are incarcerated (though unlike some states, in Illinois the right to vote is restored immediately upon release). Only two states, Maine and Vermont, and the District of Columbia currently allow all people in prison to vote during their incarceration. Alabama, Alaska, and Mississippi also allow some prisoners to vote if they were not convicted of certain crimes—though which crimes specifically cause those with felony convictions to lose the right to vote can seem arbitrary, and many are not made aware of the distinction.

[Read more…] about Upcoming Bill Could Make Illinois the Third State to Allow All Incarcerated People to Vote

Ohio’s Voting Reform and New Election Law Proposals

Election Law Society · November 29, 2021 ·

By: Jayde Morgan

Following an overwhelming Republican victory as a result of the 2020 presidential and state-wide elections, the Republicans in Ohio began to look closely at the election laws within the state. In August 2021, the Ohio House of Representatives proposed House Bill 387. The bill was introduced by House Republican Representative Bill Dean in response to allegations of voting fraud in the 2020 election. More recently, on September 16, 2021, the bill was referred to the Government Oversight Committee as a part of the process to eventually get the bill passed. If the bill is passed, it would drastically change several aspects of the election process.

[Read more…] about Ohio’s Voting Reform and New Election Law Proposals

The Cost of an Absentee Ballot

vebrankovic · November 30, 2020 ·

By Timmer McCroskey

Be honest, when was the last time you went to the post office? For me, it’s been at least six months since I physically went into any post office. With the ability to buy postage labels online and drop off packages in blue boxes located throughout my town, I rarely need to go into a physical location. Next question, do you have stamps on hand? I do, but only because I try to send my Grandma a card every month. For many people, especially in rural Wyoming, the post office isn’t a frequent stop on the errand list and not everybody has a reason (or funds) to purchase stamps. However, to mail in an absentee ballot in Wyoming, you are required to place the correct amount of postage on the envelope. Wyoming is one of 33 states that does not pay for the return postage of an absentee ballot.

mailbox

[Read more…] about The Cost of an Absentee Ballot

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