Voting Rights Roundup: Court upholds ruling blocking Kansas voting restriction backed by Kris Kobach

LEADING OFF

●Kansas: The 10th Circuit Court of Appeals has upheld a lower court ruling that blocked Kansas from enforcing a requirement in violation of federal law that voters provide documents proving they are citizens when registering to vote, dealing a blow to notorious voter suppression crusader Kris Kobach. The 1993 National Voter Registration Act, best known as the Motor Voter law, bars states from requiring such documents for registering to vote in federal elections. Instead, it only requires voters to swear under penalty of perjury that they are citizens and therefore eligible to vote.

Kobach, who is running in the GOP primary for Senate this year, had championed Kansas' law while serving as secretary of state in the 2010s. The measure had led to one in seven new voter registrations being suspended for lack of documentation, affecting 30,000 would-be registrants in total—a group that was disproportionately young and Latino. The requirement also made it impossible to conduct voter registration drives because few citizens carry around documents like a passport day-to-day.

A federal court had suspended the law for the 2016 elections ahead of trial, which took place in 2018 and saw Kobach's case completely fall to shambles and thoroughly discredit his voter fraud zealotry after his embarrassing attempt to represent himself in court. The presiding judge ended up reprimanding Kobach for failing to follow basic procedures, ordering him to complete six hours of legal education courses and holding him in contempt of court for refusing to stop enforcing the documentation requirement.

Kobach said in 2018 that he would appeal all the way to the Supreme Court if necessary, but it's unclear whether his successor as secretary of state, Republican Scott Schwab, shares that position. Schwab and GOP Attorney General Derek Schmidt have said they are considering their next move.

VOTER SUPPRESSION

●North Dakota: A federal judge overseeing a lawsuit challenging North Dakota Republicans' voter ID law has approved a settlement between Republican Secretary of State Al Jaeger and Native American voting rights advocates. The agreement will help protect voting access for Native voters who don't have a residential street address to ensure that they can still vote.

At issue was the law's requirement that voters have a home address on their ID in order for it to be valid. But because many Native Americans living on remote rural reservations lack postal service and therefore don't have a traditional address, a large number of IDs issued by the tribes would have been disqualified. Since many reservation residents also don't drive, they don't have driver's licenses, either.

As part of the settlement, Jaeger's office has agreed to work with the state Department of Transportation to help voters on reservations obtain a free non-driver ID within 30 days of future statewide elections. Native voters will also be able to mark their residence on a map and therefore shift the burden of verifying their address to the state. Officials will further be required to work to educate the public and train poll workers properly.

●Wisconsin: As he had signaled earlier in April, conservative state Supreme Court Justice Dan Kelly has reversed his recusal in a lawsuit seeking to require Wisconsin to promptly purge more than 200,000 voter registrations, a case that Kelly had previously withdrawn from because he was up for election on April 7.

That election was marred by Republican efforts to suppress the vote by making voters choose between protecting their health and casting a ballot. That effort failed badly, as Kelly went down to a double-digit loss, but he's nonetheless repaying his party the favor before his lame-duck tenure ends this summer.

Thanks to Kelly's earlier recusal, the state Supreme Court had rejected plaintiffs' request for an expedited review after one of the four other conservative justices sided with the court's two liberals, resulting in a deadlock. Now, though, Kelly is likely to give conservatives a majority in the case.

At issue in this litigation is a GOP-backed law that requires voters to be removed from the rolls if anyone suspected of moving fails to respond within 30 days to a single mailing. Opponents have argued that the mailing was inadequate, that new notices should be sent to instruct those voters how to stay registered, and that no purge should take place until after November.

BALLOT MEASURES

●Michigan: A Republican appeal of a state appellate court ruling blocking the restrictions on ballot initiatives that the GOP approved during a 2018 lame-duck session remains pending after the Michigan Supreme Court heard arguments in the case in March. After voters used initiatives in 2018 to ban gerrymandering and expand voting rights, Republicans passed the law in question to make it harder for progressives to put initiatives on the ballot but not conservatives.

The invalidated law would have required those gathering petition signatures to disclose whether they were paid or volunteers in both an affidavit and on the petition itself. Another provision that was also struck down would have prevented any group seeking to get on the ballot from gathering more than 15% of petition signatures from any of the state's 14 congressional districts. Because Republicans gerrymandered the map by packing Democrats into a few lopsided districts, the law would have made it disproportionately harder to put progressive measures on the ballot than conservative ones.

Republicans hold a 4-3 majority on the state Supreme Court, but Republican Justice Elizabeth Clement has broken with her fellow conservatives on high-profile issues such as allowing the redistricting reform measure to appear on the ballot in the first place. Her vote is therefore likely to decide the outcome of the case.

●North Dakota: Republican Secretary of State Al Jaeger has approved a ballot initiative petition for circulation that would reform legislative redistricting and change North Dakota's electoral system to a "top-four" primary with an instant-runoff general election. Supporters now have the green light to begin gathering the necessary 27,000 signatures to put their constitutional amendment on the November ballot, but it's unclear how feasible that will be given the disruption of in-person canvassing due to the coronavirus pandemic.

As we've previously explained, this amendment would transfer control over redistricting from North Dakota's heavily Republican legislature to its bipartisan Ethics Commission, giving Democratic lawmakers a say in who draws the lines, and it would also implement several nonpartisan criteria for how any new maps must be drawn. The electoral prong, meanwhile, seeks to give voters more choices than the existing two-party system and also avoid the "spoiler" problem of minor candidates splitting the vote and affecting election outcomes.

CAMPAIGN FINANCE

●Florida: One important measure that failed to pass before Florida's Republican-controlled legislature adjourned in March was a constitutional amendment to repeal the state's public financing system for statewide elections. Republicans and most Democrats voted for the amendment in the state House, but lawmakers failed to advance it out of committee in the state Senate.

Consequently, the current law remains in effect. Candidates for state office who raise qualifying contributions (at least $150,000 for governor and $100,000 for other offices) in increments of up to $250 receive public funding at a two-to-one matching rate. In return, they must agree to abide by expenditure limits of $2 per registered voter for governor or $1 per voter in other races, which in 2018 came out to $27 million and $13.5 million, respectively. Multiple candidates took advantage of this system in 2018, including both parties' candidates for governor.

BALLOT ACCESS

●Florida: The 11th Circuit Court of Appeals has overturned a district court ruling that struck down a decades-old Florida law that gives the governor's party the first-listed spot on the ballot for all partisan races. The appellate court held that the Democratic Party organizations lacked standing to bring their case because they didn't demonstrate that they had been harmed by the law. The district court had found that the first-listed party enjoyed a modest but meaningful boost in support, something that likely matters most in lower-profile downballot races.

Lawmakers passed this law in 1951, and it has favored Republicans for the past two decades because they have held the governor's office since 1999. Democrats have yet to say whether they will appeal the ruling. It's also possible that a different plaintiff could sue in the hopes of overcoming the standing issue that led to the court rejecting Democrats' case.

ELECTION SECURITY

●Delaware, New Jersey: Both Delaware and New Jersey will let voters with disabilities vote via the internet beginning with their primaries this year. While both states have implemented this approach to make voting more accessible for voters with disabilities,, election security experts have repeatedly warned that any voting method that relies on the internet is vulnerable to hacking.

●Pennsylvania: A federal court has rejected a lawsuit backed by 2016 Green Party presidential nominee Jill Stein to decertify Philadelphia's new voting machines ahead of the June primary over her claim that they present security vulnerabilities that threaten voters' rights. In a sharply worded opinion, Judge Paul Diamond concluded that Stein presented "no credible evidence" and called her arguments were "daft" and "ill-considered." Diamond ruled that granting her request would have disenfranchised voters.

Stein had previously sued the state over its laws that prevented her from being able to request a recount of the 2016 election, and she contended that the certification of these machines violated the settlement reached with state officials in 2018 in that suit. Stein in her latest case had argued that the new machines were insecure because they print out a barcode paper ballot that counts as the official record instead of a human-readable record that voters themselves can verify.

However, the court was unconvinced by Stein's arguments, and Diamond berated her for seeking "to promote only herself" instead of election integrity. Stein has not said whether or not she will appeal.

ELECTION CHANGES

The following states have recently postponed elections:

South Carolina: from May 5 and May 12 to an undetermined future date (local)

Virginia: from May 5 local elections to May 19 (local)

You can stay on top of all changes to statewide primary dates by bookmarking our 2020 calendar.

●California: The Board of Supervisors in Los Angeles County, which is the largest county in the nation, has voted to mail a ballot to every voter for the November general election. The county is home to more than 10 million people and has more than 5.5 million registered voters. While voting by mail is very popular in California, it's been less so in Los Angeles: 45% of L.A. voters cast ballots by mail in 2018, compared to 72% in the rest of the state.

This move comes after California's March primary saw long voting lines because new voting equipment failed to work properly. Democratic lawmakers had also previously signaled support for legislation to require a full vote-by-mail system be used for November. California as a whole is in the process of transitioning to mail voting statewide over the next few years, but only some counties have made the switch so far.

Meanwhile, the state GOP has filed a lawsuit in state court seeking to block third-party collection of mail ballots where voters can give their ballots to a community member or campaign worker to turn in for them, a practice Republicans such as Donald Trump have derided as "ballot harvesting" even though California Republicans had been preparing their own ballot-collection campaign operation for 2020 until now. Republicans argue that practice violates the statewide shelter-in-place order and shouldn't be allowed for the 25th Congressional District special election on May 12.

●Connecticut: Democratic Secretary of State Denise Merrill says she's considering sending absentee ballot applications to all registered Democrats and Republicans ahead of Connecticut's Aug. 11 primaries (the state only allows party members to vote in primaries). Merrill had previously planned to send ballot applications to voters for the state's presidential primary, but that election was postponed from June 2 to Aug. 11 and consolidated with Connecticut's downballot primaries.

Because the state currently requires voters to present an excuse to request an absentee ballot, Merrill has encouraged Democratic Gov. Ned Lamont to issue an executive order allowing all voters to cite the coronavirus pandemic as an acceptable excuse. On Friday, Lamont refused to say whether he would sign such an order, saying only, "We’re working on that right now as we speak." Three weeks ago, Lamont's top counsel said the governor's office was researching whether the excuse requirement could be relaxed.

●Georgia: A federal judge has rejected a request by voting rights advocates that Georgia officials be required to provide pre-paid postage for absentee ballots and ballot applications. However, the judge emphasized that her ruling only pertained to the state's June 9 primary and held out the possibility that she could reach a different conclusion regarding the Aug. 11 runoff or the November general elections.

●Indiana: A group of Indiana voters and a local voting rights organization have filed a federal lawsuit asking that all voters be allowed to cast absentee ballots in the November general election. Last month, officials waived the state's requirement that voters present an excuse to vote absentee for the state's June 2 primaries but did not include the November elections in that order.

Meanwhile, Republican Secretary of State Connie Lawson has unveiled a new online portal for applying for absentee mail ballots in the primary, further easing the process for that election only.

●Kentucky: Democratic Gov. Andy Beshear and Republican Secretary of State Michael Adams have issued new regulations expanding voting access for the June 23 primary, including prepaid postage for absentee mail ballots along with other changes we detailed in last week's Roundup.

●Louisiana: Both chambers of Louisiana's Republican-run legislature have approved modest expansions to mail voting for the state's July 11 primaries and Aug. 15 runoffs for local elections. The measure now goes to Democratic Gov. John Bel Edwards, who has said he supports the legislation. The bill allows the following groups of people to request absentee ballots:

• those at "higher risk of severe illness from COVID-19 due to serious underlying medical conditions";
• those under a "a medically necessary quarantine or isolation order as a result of COVID-19";
• those "advised by a health care provider to self-quarantine due to COVID-19 concerns";
• those "experiencing symptoms of COVID-19 and seeking a medical diagnosis"; and
• those "caring for an identified individual who is subject to a medically necessary quarantine."

Voters who may be asymptomatic or who are concerned about contracting or spreading the coronavirus are not permitted to ask for an absentee ballot. Lawmakers voted on the bill remotely, via ballots they received and returned by email.

●Massachusetts: The state Supreme Court has issued a judgment agreed to by Democratic Secretary of State Bill Galvin to allow ballot initiative campaigns to gather signatures electronically. That should make it much easier for initiatives to get onto the November ballot, including one to adopt instant-runoff voting in congressional and state elections

Supporters of that measure already turned in more enough valid signatures late last year for the initiative to go before the Democratic-run state legislature, which has the power to pass it into law in lieu of it appearing on the ballot. However, if legislators don't pass it by May 6 as appears likely, initiative supporters need to obtain another 13,000 signatures by July 1 to qualify for the November ballot.

Meanwhile, a spokesperson for Galvin says that if lawmakers want to conduct the state's Sept. 1 primaries by mail, they will need to pass a bill by June 2, which is the deadline by which candidates must file with state officials and when the secretary's office begins preparations for printing ballots. Galvin previously said he would release his own proposal for an all-mail primary in May. At least one vote-by-mail bill is already pending before the legislature.

●Michigan: Blind voters have filed a federal lawsuit challenging Michigan's absentee voting procedures for being inaccessible to them and infringing upon their right to vote safely. The plaintiffs are asking the court to adopt a method for accessible absentee voting ahead of May 5 local elections, pointing out that other states such as Ohio enable blind people to vote from home using screen-reading software. Normally, blind voters would have access to voting machines that can be used by people with visual impairments, but those machines are typically only available at polling places.

●Missouri: Republican State House Speaker Elijah Haahr says he supports relaxing Missouri's excuse requirement to vote absentee and says that the legislature will hold a hearing on election-related issues sometime during its session over the next three weeks. Many county clerks have advocated for waiving the requirement, but Republican Gov. Mike Parson has opposed the idea. A lawsuit seeking to allow voters to cite the coronavirus pandemic as a valid excuse is pending in state court.

●Nevada: A federal judge has rejected a lawsuit brought by a conservative group that sought to prevent Republican Secretary of State Barbara Cegavske from conducting Nevada's June 9 primary by mail. The judge ruled that the plaintiffs had failed to show they would be harmed by Cegavske's plan, but even had they been able to, he concluded that their worries about voter fraud were "without any factual basis."

●New Jersey: Democratic Gov. Phil Murphy is reportedly considering implementing a plan for the July 7 primary to automatically send out mail ballots to all registered Democrats and Republicans while offering a limited number of in-person polling places for unaffiliated voters or major-party voters who prefer voting that way. However, Phil Murphy says publicly that he still has not made a decision.

●New York: New York's Board of Elections, a bipartisan panel whose members are all appointed by Democratic Gov. Andrew Cuomo, has canceled the state's June 23 presidential primary, prompting former presidential candidate Andrew Yang to file a lawsuit in federal court asking that the presidential primary be reinstated. Vermont Sen. Bernie Sanders had asked that the Democratic primary go forward, but a Democratic board member, Douglas Kellner, said, "What the Sanders campaign wanted is essentially a beauty contest that, given the situation with the public health emergency, seems to be unnecessary and, indeed, frivolous."

However, the state's downballot primaries, which are taking place the same day, will proceed as planned, meaning the only way public safety might be enhanced is if turnout is lower as a result. According to the New York Times, about one third of New York counties have no other races on the ballot and therefore will not hold an election. However, it is not clear what proportion of the state's actual electorate would be affected, since New York's population is heavily concentrated in just a handful of its 62 counties.

For the primaries that remain scheduled for June, the New York City Board of Elections has launched an online portal letting voters request an absentee mail ballot. Cuomo recently issued a pair of executive orders that will mail absentee ballot applications to all voters and waive the excuse requirement, but state officials have yet to provide all voters with an online request option.

●Ohio: A state judge has rejected a request to issue a preliminary injunction allowing ballot initiative supporters to gather signatures electronically. The plaintiffs had also sought to extend the deadline to submit signatures and lower the number of signatures required. However, Judge David Young, a Democrat, ruled that the Ohio constitution precluded him from altering the established process.

This ruling could doom an effort to put a constitutional amendment to expand voting rights on the November ballot. The proposed measure would enact automatic and same-day voter registration, protect access to early voting, bar future restrictions on acceptable voter ID, and require routine audits of election results. Plaintiffs have said they are assessing their options about whether to appeal or potentially file a federal lawsuit instead.

●Pennsylvania: Voting rights advocates have filed a second lawsuit asking that absentee ballots be counted in Pennsylvania's June 2 primaries and November general election, so long as they are postmarked by Election Day and received within seven days. Under current law, ballots must be received by Election Day. The suit was filed directly with the state Supreme Court. A separate case filed last week by different plaintiffs was brought in an intermediate appellate court; it also seeks an extension to the absentee receipt deadline as well as several other measures that would make mail voting easier.

●Rhode Island: Democratic Secretary of State Nellie Gorbea says every voter will be sent an absentee ballot application for Rhode Island's June 2 presidential primary. The effort does not appear to apply to the state's downballot primaries, which will not take place until Sept. 8.

●Texas: A group of Texas voters, supported by the National Redistricting Foundation, have filed a lawsuit in federal court alleging that the state's practice of allowing all voters 65 or older to cast absentee ballots without an excuse while requiring an excuse for anyone younger violates the Constitution. Specifically, the suit charges that the law in question violates the 26th Amendment, which guarantees that the right to vote "shall not be denied or abridged by the United States or by any State on account of age." Six other conservative states have similar provisions in place, all but one of which is also located in the South.

Two other cases on the issue of Texas' excuse requirement are still pending. In one, filed in state court, a judge ruled that all voters can cite the ongoing coronavirus pandemic to request an absentee ballot, though Republicans have said they will appeal. A second similar case in federal court awaits a ruling.

Separately, commissioners in Harris County have allocated $12 million in new election funds, which would allow the county to mail ballots to every voter for the November general election. Harris is home to Houston and is the largest county in the state, with more than 2.3 million registered voters.

●Virginia: The Virginia Republican Party has filed to intervene in a federal lawsuit over absentee mail voting requirements. Republicans are trying to stop Democratic state Attorney General Mark Herring from implementing an agreement with the plaintiffs announced on Tuesday to waive the requirement that absentee voters have a witness sign their ballot envelope, which is more burdensome than usual due to social distancing precautions.