Voting Rights
October 30, 2020

A three-judge panel of the U.S. Eight Circuit Court of Appeals ruled 2-1 late Thursday that any mail-in ballot received after 8 p.m. on Election Day needs to be set aside, overturning a state court–approved consent decree from July that allowed ballots postmarked by Election Day to be counted up to a week after Nov. 3. Minnesota's governor and secretary of state criticized the decision, which sided with two Republican presidential electors, and urged voters to either hand-deliver their absentee ballots, ASAP, or vote in person. President Trump's campaign cheered the ruling.

The two-judge appellate panel majority, appointed by Trump and fellow Republican George W. Bush, said only the state legislature, not the secretary of state, had the authority to extend the deadline to count ballots. "However well-intentioned and appropriate from a policy perspective in the context of a pandemic during a presidential election," the two judges wrote, "there is no pandemic exception to the Constitution."

In her dissent, Judge Jane Kelly, appointed by Democrat Barack Obama, said changing months-old rules five days before the election "will cause voter confusion and undermine Minnesotans' confidence in the election process." Minnesota Secretary of State Steve Simon said about 400,000 of the 2 million requested absentee ballots have not yet been returned.

The two GOP-appointed judges are relying on a legal theory that "a majority of the Supreme Court has not endorsed — at least not yet" — and disregarding that the Minnesota legislature both "did not object" to the consent decree and "delegated the power to the secretary of state to take these steps," election law expert Rick Hasen writes. Also, "the Supreme Court has said that federal courts should be very wary of changing election rules just before the election," something called the Purcell Principle.

The idea that state legislators have the sole authority over voting rules, not state courts, was first asserted by a three-justice conservative minority — including Justice Clarence Thomas — in 2000's Bush v. Gore. Justices Brett Kavanaugh and Neil Gorsuch have embraced that theory this month as the Supreme Court takes an active role in deciding local election issues, and Justice Samuel Alito appears sympathetic. Chief Justice John Roberts signaled in a Pennsylvania case that he thinks federal courts shouldn't step on state legislatures' election authority but state courts can interpret state laws. Justice Amy Coney Barrett is expected to side with the four hard conservatives. Peter Weber

October 27, 2020

The Supreme Court sided with Republicans in Wisconsin on Monday, ruling 5-3 along ideological lines that Wisconsin can count only those absentee ballots that arrive by Election Day — even if they were mailed days earlier. Since first-class mail has been taking an average of 10 days to be delivered in the state, Wisconsin's Democratic Party urged mail-in Democrats to hand-deliver their absentee ballots or vote in person.

The practical issue involves what happens with Wisconsin's 700,000 outstanding absentee ballots. "But the deeper issue is about the extent to which a ballot should be considered as valid," Phillip Bump writes in The Washington Post. In a factually sloppy concurring opinion, Justice Brett Kavanaugh evidently embraced President Trump's baseless conspiracies about voter fraud and bizarre demand that the winner be announced election night.

Many states require absentee ballots to arrive by Election Day because they "want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election," Kavanaugh wrote. "And those states also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter."

Justice Elena Kagan, in her dissent, noted that "there are no results to 'flip' until all valid votes are counted. And nothing could be more 'suspicio[us]' or 'improp[er]' than refusing to tally votes once the clock strikes 12 on election night."

More broadly, Kavanaugh — and Justice Neil Gorsuch — embraced late Chief Justice William Rehnquist's concurring opinion in 2000's Bush v. Gore, which invented a legal theory "so radical, so contrary to basic principles of democracy and federalism, that two conservative justices" rejected it, even as they agreed to hand the White House to George W. Bush in what was supposed to be a one-off decision, Mark Joseph Stern writes at Slate.

Rehnquist argued that state courts cannot interpret state election laws in federal elections, Stern writes, "a breathtaking assault on state sovereignty" that would transform the Supreme Court "into a national board of elections with veto power over each state's election rules." With Judge Amy Coney Barrett on the court, the conservatives likely have five votes to enact Rehnquist's theory, throwing out ballots in Pennsylvania and North Carolina as well as Wisconsin, he added. "In other words, Barrett's first decisions as a justice may determine the outcome of the election." Peter Weber

October 23, 2020

The Trump campaign acknowledges it's videotaping voters in Philadelphia as they drop off their ballots, telling city officials last week that campaign staffers had captured people depositing two or three ballots in drop boxes and arguing that's a "blatant violations of the Pennsylvania election code," The New York Times reported Thursday. The city replied that "third party delivery is permitted in certain circumstances," and there's no proof any of these people were violating state laws.

Pennsylvania Attorney General Josh Shapiro (D) went a step further. "Pennsylvania law permits poll watchers to carry out very discrete and specific duties — videotaping voters at drop boxes is not one of them," Shapiro told the Times. "Depending on the circumstance, the act of photographing or recording a voter casting a ballot could be voter intimidation — which is illegal." He also noted that the Trump campaign had submitted similar photos and videos in a federal lawsuit earlier in 2020, they were found "insufficient in finding proof of voter fraud," and "Trump's case was dismissed on all claims."

The campaign's new complaint "aligns with a broader strategy by the campaign to amplify relatively minor voting issues to bolster baseless claims by the president that the election is rigged by Democrats against him," the Times reports. "The drop box issue could also factor into any challenges brought by the campaign after polls close on Election Day."

Republicans also filed a second lawsuit in federal court that again seeks to nullify any mail-in ballot received after Election Day. The state Supreme Court upheld a three-day window for ballots postmarked by Nov. 3, and the U.S. Supreme Court declined to intervene on a 4-4 vote, The Associated Press reports. "With the plaintiffs seeking expedited consideration, the new argument could theoretically arrive at the U.S. Supreme Court after Trump's nominee, Amy Coney Barrett, is sworn in, providing a tie-breaking vote before the election." Peter Weber

October 22, 2020

The Supreme Court late Wednesday lifted an injunction put in place by a federal judge, allowing Alabama to ban curbside voting in counties that wanted to allow it this election. The court's five conservative justices did not give a reason for their decision, but Justice Sonia Sotomayor explained in a dissent she would have left the injunction in place to allow people with disabilities or other risk factors to vote from their cars during the COVID-19 pandemic. The court's two other liberal justices signed on to her dissent.

"The Alabama dispute is the latest in a flurry of election-related fights to reach the justices in recent weeks," including a 4-4 deadlocked decision Monday that allowed Pennsylvania to count mail-in ballots postmarked by Election Day for three days after the election, Politico reports. "The series of decisions suggests the high court, in its current configuration after the death of Justice Ruth Bader Ginsburg last month, is poised to block election-related changes ordered by federal courts, while allowing state officials to make adjustments even without clear buy-in from the state legislature."

Democrats lost another voting rights battle on Wednesday when the Iowa Supreme Court upheld a state law that makes it harder for county officials to process absentee ballot requests with information missing, Reuters notes. "Opinion polls suggest a larger share of Democrats will cast absentee ballots — which include those returned by mail — than will Republicans." Peter Weber

October 20, 2020

A three-judge panel of the U.S. 5th Circuit Court of Appeals decided Monday that Texas doesn't have to inform voters that their mail-in ballots were rejected due to signature problems until after the Nov. 3 election, and need not give them a chance to correct or "cure" their ballots. U.S. District Judge Orlando Garcia ruled Sept. 8 that the current signature-verification system in Texas "plainly violates certain voters' constitutional rights" and must be either abandoned or replaced.

The 5th Circuit appellate court stayed Garcia's ruling Sept. 11, and it won't rule on the merits of the case until after the election. Under current law, Texas must inform voters that their ballot was rejected within 10 days after the election. "The state election code does not establish any standards for signature review, which is conducted by local election officials who seldom have training in signature verification," The Texas Tribune reports. Counties can choose to inform voters before the election and give them a chance to cure their ballot.

Texas already limits mail-in voting to people with disabilities, seniors 65 and older, and voters outside of the country or in jail during an election. "Texas' strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state's voting procedures place on the right to vote," Judge Jerry Smith, a Ronald Regan appointee, wrote for the three-judge panel. The conjuring judges were appointed by Reagan and President Trump.

Sen. John Cornyn (R-Texas), up for re-election this year, claimed voting is easy in Texas, pointing to the large numbers of Texans casting their ballots early this election. But a new study out of Northern Illinois University ranked Texas at the very bottom of its "cost-of-voting index."

"Obviously, it's not impossible to vote in Texas," but "the state has erected obstacles throughout the voting system, and when you compare the comfort and convenience of voting in Texas with other states, Texas ends up at the bottom of the list," Ross Ramsay writes at The Texas Tribune. Probably not coincidentally, he adds, "Texas has one of the lowest voter turnout rates in the country." The 5th Circuit Court of Appeals has sided with Texas in several recent cases, rejecting efforts to make voting easier, the Austin American-Statesman notes. Peter Weber

October 13, 2020

A three-judge panel of the U.S. 5th Circuit Court of Appeals ruled just before midnight Monday night that Texas Gov. Greg Abbott (R) was within his rights to limit absentee ballot drop boxes to one per county, regardless of population. Civil rights and voting rights groups had argued that Abbott's Oct. 1 order suppressed the voting rights of people in large urban counties like Harris County (Houston), especially the elderly and disabled voters most likely to cast their ballots by mail during a deadly pandemic. U.S. District Judge Robert Pitman agreed, issuing a stay on Abbott's order.

The three appellate judges, all appointed by President Trump, unanimously disagreed. "One strains to see how it burdens voting at all," Judge Stuart Kyle Duncan wrote in his opinion, joined by Judges Don Willett and James Ho. Abbott's "proclamation was part of an expansion of absentee voting opportunities beyond what the Texas Election Code provided. The fact that this expansion is not as broad as plaintiffs would wish does not mean that it has illegally limited their voting rights."

Ho, in a concurring opinion, said Abbott's unilateral July 27 expansion of voting windows likely violated Texas and federal law, and he was sorry he couldn't strike the whole order down.

Texas, shaping up to be unexpectedly competitive this year, is one of just a handful of states that won't allow people to vote by mail because of the COVID-19 pandemic. Abbott did add six days to early in-person voting, however, and that begins Tuesday. The litigants could appeal the ruling, asking for a decision from the entire 5th circuit appellate court or the Supreme Court, but both courts are dominated by conservatives unlikely to overturn Duncan's decision, Politico reports. Peter Weber

September 22, 2020

Michael Bloomberg is once again setting his sights on Florida.

When ending his own Democratic presidential run, the billionaire and former New York City mayor pledged to do everything he could to help the eventual Democratic nominee. That has translated into $100 million to help Joe Biden win Florida and, as of Tuesday, a contribution toward efforts to restore former felons' voting rights in the state.

Florida passed a constitutional amendment in 2018 to restore voting rights to felons who had served their time, save for those charged with sexual assault or murder. But earlier this month, a court affirmed Floridians would have to pay off court fees and fines associated with their convictions to vote again. Around 1 million Floridians have former felony convictions, but hundreds of thousands are estimated to still have exorbitant fees left to pay off. The Florida Rights Restoration Coalition had recently raised $5 million to pay off those fines. But Bloomberg, John Legend, and other fundraisers made big contributions that helped the group surpass $20 million as of Tuesday.

Bloomberg's fundraising comes a day after Florida Gov. Ron DeSantis (R) announced a legislative package that would make it a felony to participate in a "violent or disorderly assembly," "obstruct traffic during an unpermitted protest," or "destroy or topple monuments," among other things.

The package is clearly aimed at ongoing protests against police brutality and systemic racism still happening across the U.S., and would strip those protesters' rights to vote this fall if they're charged with one of these felonies. Kathryn Krawczyk

August 5, 2020

Iowa Gov. Kim Reynolds (R) on Wednesday signed an executive order ending the state's lifetime voting ban for residents who have a felony conviction, giving them the ability to vote after they complete their sentences.

The move comes after activists spent months protesting outside the state capitol. The nonprofit Sentencing Project estimated in 2016 that about 52,000 Iowans weren't able to vote because of their felony convictions, with almost 24,000 finished with their criminal sentences.

"Today we take a significant step forward in acknowledging the importance of redemption, second chances, and the need to address inequalities in our justice system," Reynolds said in a statement. "The right to vote is the cornerstone of society and the free republic in which we live. When someone serves their sentence, they should have their right to vote restored automatically."

Robert Pate runs a mentorship and support group in Des Moines called Image 4 Lives, and as someone with a felony conviction, he is "thankful" for the executive order. "People will feel more accepted coming out of prison," Pate told The Guardian. "People will get more involved with voting."

Those convicted of murder, manslaughter, and abortion after the second trimester, which is a felony in the state, will not see their voting rights automatically restored, The Guardian reports. Because this is an executive order and not a constitutional amendment, the change could be rescinded by a future governor, but Reynolds said she will push the Republican-led legislature to pass an amendment making her new policy permanent. Catherine Garcia

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