Leading Off
● Florida: On Friday, the 11th Circuit Court of Appeals overturned a lower court ruling that had struck down the Florida GOP's modern-day poll tax, making it all but certain that the law will remain in effect for November.
Republicans passed their law last year after voters amended Florida's constitution in 2018 to end lifetime voter disenfranchisement for up to 1.4 million people who had served out sentences for all but the most serious crimes. An expert witness for the plaintiffs estimated that 775,000 citizens would be unable to pay the poll tax, in large part because Florida levies onerous fines to fund its court system. The court noted, for instance, that one county charges a minimum of $668 for a public defender—and $548 even for defendants who forgo one. Furthermore, 43% of the disenfranchised are Black, roughly three times the African American share of the state's overall adult population.
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Before voters passed the 2018 initiative, Florida disenfranchised one in 10 adults, the highest proportion of any state, including one in five Black adults—five times the rate of white adults in Florida. This racial discrimination was no accident, either, since Florida’s lifetime voting ban was a product of the Jim Crow era.
In striking down the poll tax, the lower court's ruling meant that it's unconstitutional to condition voting rights upon the payment of court fees and costs. While requiring the payment of fines and restitution to victims can be constitutional in certain instances, the court said, it was unconstitutional when applied to citizens who are genuinely unable to pay the costs or who owe an amount that cannot be determined. Indeed, the state effectively makes it impossible for many voters to even find out the exact amount owed because Florida lacks adequate records.
Consequently, the poll tax will prevent potentially hundreds of thousands of Florida citizens from exercising their rights this year despite the Constitution's 24th Amendment banning the disenfranchising of voters "by reason of failure to pay any poll tax or other tax." While the 11th Circuit acknowledged that 85,000 voters with felony convictions have registered since voters passed the 2018 initiative, it still granted Florida officials the power to disenfranchise them once more if the state can prove that they still owe court costs.
Ballot Measures
● Arkansas: Arkansas' conservative-leaning Supreme Court has disqualified two ballot initiatives that would have substantially reformed the way elections work in the state. The two measures would establish an independent redistricting commission and adopt a "top-four" primary followed by an instant-runoff general election, respectively.
The justices rejected all of the signatures organizers submitted as invalid, prompting supporters of one of the efforts to file a lawsuit in federal court seeking to strike down the provision of state law that Republican Secretary of State John Thurston used to block them.
Thurston contends that signature-gatherers for both campaigns had not "passed" the criminal background checks required under state law. However, redistricting reform supporters sued in federal court, arguing that the law violates the U.S. Constitution because it is impossible to meet GOP officials' definition of what constitutes a background check. Among other issues, state law requires both state and federal background checks by the Arkansas state police, but the plaintiffs note the state police lack authorization to conduct the federal check for ballot initiative sponsors.
The future of Arkansas redistricting reform depends heavily on whether the measure qualifies for the ballot this year. Not only is it the last election before redistricting is set to take place following the 2020 census, but Republican legislators have also put their own amendment on November's ballot to make it all but impossible for future initiatives to succeed without the support of conservative voters. The GOP's measure would require supporters meet the signature threshold in 45 of 75 counties instead of the current 15, but Democrats, Black voters, and a majority of the state's population overall are heavily concentrated in just a handful of counties.
● Maine: The Maine Supreme Court has ruled that a lower court decision placing a Republican-backed veto referendum on the November ballot aimed at blocking instant-runoff voting for the presidency had in fact already been automatically stayed as a result of Democratic Secretary of State Matt Dunlap's appeal. Following the ruling, ballots were printed with an instant runoff in place for the Electoral College to comply with the deadlines to finalize them, and the veto referendum was kept off the ballot.
However, the lawsuit remains ongoing as to whether Dunlap wrongly disqualified the GOP's veto referendum for having roughly 2,000 signatures less than the 63,000 needed to place it on the ballot, which would have automatically suspended the law until voters weighed in.
While this means Maine voters will be the first anywhere to cast a ballot for the presidency that features an instant runoff, whether such a runoff will be used in actually assigning Maine's electoral votes after Election Day—should one be necessary—is dependent on the ongoing litigation. Regardless of the outcome, instant-runoff remains in place for Senate and House races this fall.
● Missouri: A Missouri state appellate court has upheld a ruling that rejected the GOP's deceptive ballot summary of its constitutional amendment that would gut the measure that voters passed in 2018 to make legislative redistricting fairer, leading the GOP to decline to wage a further appeal. As we've previously explained, the GOP used token ethics reforms including a reduction of the lobbyist gift limit from $5 to $0 and a minor cut in campaign donation limits to paper over its major changes to the redistricting reform amendment that effectively eliminated the partisan fairness requirement.
While the appellate court rewrote the summary in a way less favorable to opponents than the trial court had, its language nonetheless more accurately described what the measure would do compared do the GOP's description, summarizing that it would "change the redistricting process voters approved in 2018 by transferring responsibility for drawing state legislative districts from the Nonpartisan State Demographer to Governor-appointed bipartisan commissions."
● North Dakota: North Dakota's conservative-dominated state Supreme Court has unanimously disqualified a ballot initiative that would have stopped Republicans from gerrymandering the legislature after 2020. The measure would have also implemented a reform to change the electoral system by adopting a "top-four" primary and an instant-runoff general election. The court ruled that the petition voters signed was misleading and therefore invalid.
Felony Disenfranchisement
● North Carolina: A state court concluded that North Carolina's system of disenfranchising voters solely because they owe court debts related to a felony conviction is a legacy of the racism of the Jim Crow era, ruling that it violates the state constitution's guarantee of the right to vote. Democratic state Attorney General Josh Stein and the Democratic-run state Board of Elections announced they would not appeal the ruling, but Republican state legislative leaders said they are still considering whether to do so.
Voter Suppression
● Texas: A federal district court has ordered Texas officials to implement online voter registration for voters updating their address with the state's driver's licensing agency. It's the second time the court has issued such an order, finding Texas in violation of federal law for allowing registrations for people conducting driver's license transactions in-person but not online. Last year, the 5th Circuit Court of Appeals overturned the lower court's similar order in a previous lawsuit by finding the plaintiffs lacked standing because they subsequently registered via another method.
To avoid having their case dismissed for lack of standing, these newest plaintiffs (one of whom participated in the first case) in the second lawsuit did not updated their registrations after moving. The plaintiffs did not plan to remain unregistered throughout the duration of their case, though.
One of the attorneys for the plaintiffs told the Texas Tribune that she does not believe the 5th Circuit's decision means "that someone has to remain unregistered through the course of the lawsuit" because it "would be in effect telling someone that in order to vindicate their most important constitutional right, they would have to sacrifice that right for years and years."
2020 Census
● 2020 Census: A federal district court has issued a temporary restraining order blocking the Trump administration's plan to cut short the 2020 census counting operations, which the census had planned to end by Sept. 30 instead of Oct. 31. However, the ruling is only a short term order before a Sept. 17 hearing will be held over whether to extend counting operations back through the end of October.
Election Changes
Please bookmark our litigation tracker for a complete summary of the latest developments in every lawsuit regarding changes to elections and voting procedures as a result of the coronavirus.
● Alaska: A federal judge has rejected a lawsuit asking that Alaska election officials send absentee ballot applications to all voters. The plaintiffs had argued that the state's plan to send applications to voters age 65 and older violated the 26th Amendment, but the judge ruled that doing so did not "abridge" the rights of younger voters. Plaintiffs are appealing. (Note that this case was originally filed in state court but was transferred to federal court.)
Separately, voting rights advocates, including the League of Women Voters and an Indian tribal council, have filed a new lawsuit in state court arguing that Alaska's requirement that absentee voters have their ballots witnessed is unconstitutional.
● Arizona: A federal judge has ruled that Arizona election officials must give mail voters who forget to sign their ballots the chance to fix the problem for up to five days after Election Day.
● Delaware: The League of Women Voters, with the support of the ACLU, has filed a lawsuit in Delaware state court asking that absentee ballots postmarked by Election Day and received within 10 days be counted. Under current state law, ballots must be received by Election Day in order to be valid.
● Iowa: Republican Secretary of State Paul Pate has issued a directive to county election administrators saying that state law bans the use of drop boxes for returning absentee mail ballots, even though one-third of county officials said they had previously used them and many had done so for years. Some counties indicated they might deploy drop boxes regardless of Pate's directive, creating the possibility of litigation.
Separately, it appears that Linn County officials are not appealing a state court ruling that sided with Republicans and invalidated the use of partially pre-filled request forms for absentee ballots even though thousands of voters have already returned them. Officials say they will mail out new forms without pre-filled voter information. However, Democrats are waging a separate lawsuit to overturn the state law banning pre-filled forms, which remains pending before a state court.
● Maine: Democratic Gov. Janet Mills has issued an executive order allowing local election officials to set up ballot drop boxes for the return of mail ballots. The order also extends the deadline to register to vote by mail from Oct. 13 to Oct. 19 and lets officials begin processing absentee ballots seven days before Election Day instead of four.
● Michigan: Conservative activists have filed a lawsuit in state court to block Democratic Secretary of State Jocelyn Benson from allowing voters to request absentee ballots online, claiming the practice "invites fraud."
● Montana: Officials in 45 of Montana's 56 counties, which together are home to 94% of the state's population, have opted to conduct the November general election by mail. Republicans, including Donald Trump's presidential campaign, are challenging the effort in federal court.
● Nevada: Republicans, including former Assemblywoman Sharron Angle, have filed a lawsuit in state court challenging a law passed earlier this year by Nevada's Democratic-run legislature to conduct the state's elections largely by mail, saying the law violates the Constitution.
● New Hampshire: Advocates for blind and visually impaired voters have reached an agreement with New Hampshire election officials to allow affected voters to receive absentee ballots electronically, enabling them to vote a secret ballot. Voters will fill out their ballots on a computer and must then print them out and return a hardcopy in order to vote. Such ballots cannot be returned electronically.
● New York: Democratic Gov. Andrew Cuomo said he would sign an executive order establishing more than 300 drop boxes where voters can return ballots across New York State. Separately, the state Board of Elections has set up a new online portal that allows all voters to request an absentee ballot. In addition, the New York City Board of Elections now allows voters in the five boroughs to track the status of both absentee ballot applications and ballots.
● North Carolina: National and state Democrats have filed a lawsuit in state court seeking to ensure that absentee mail ballots aren't rejected over alleged problems, such as the required witness signature being deficient, without first notifying voters and giving them a chance to correct it. A federal court previously required such a notification and "cure" process for the voter's signature, but Democrats argue it is not being similarly applied for witness signatures and all related problems with absentee ballot envelopes.
The suit comes days after a panel of three state court judges unanimously rejected a separate ACLU-backed lawsuit seeking to suspend the witness requirement altogether, ruling that waiving the requirement at this point would create delays and voter confusion. There is no indication yet whether the ACLU will appeal, but since ballots have already begun to be mailed out last week and returned, the success of any appeal seems doubtful.
Meanwhile, election security advocates have appealed to the state Supreme Court to block the use of voting machines that they claim risk spreading COVID. They also say the machines are a security risk because they rely on a barcode printed on the paper ballot record, which humans cannot read to verify that their choices were recorded accurately. A lower court previously refused to grant their request to instead require regular paper ballots filled out by hand.
● Ohio: Ohio Democrats have filed a lawsuit in state court challenging Republican Secretary of State Frank LaRose's directive allowing only one drop box for returning absentee ballots per county regardless of population size. LaRose has claimed that state law ties his hands, but Democrats dispute his interpretation and want the court to declare that the law allows counties to decide to set up additional locations.
Meanwhile, local ABC affiliate WSYX reports that the state Controlling Board, a body consisting largely of Republican legislators that handles budgetary matters, is expected to take up LaRose's request to approve prepaid postage for mail ballots on Monday. State House Republicans previously voted against allowing prepaid postage in a bill provision that ultimately stalled in the GOP-dominated state Senate.
● Oregon: The U.S. Supreme Court has effectively killed any chance that redistricting reform could qualify for the November ballot in Oregon after the 9th Circuit Court of Appeals said that it didn't have enough time to resolve issues over voter signature requirements for a ballot initiative that would have established an independent redistricting commission. The high court had sent the case back to the 9th Circuit after blocking a district court ruling that had ordered Oregon to substantially lower the signature requirements due to the pandemic, meaning courts have stopped every effort so far to reform redistricting via initiative in 2020.
Although the Supreme Court's conservative majority sided with Democratic state officials seeking to maintain the signature requirements that reformers were unable to meet, the conservative justices likely did so with different interests in mind. The Supreme Court has blocked nearly every lower court ruling in favor of voting access to reach it since the pandemic began, often without even explaining its reasoning because cases such as this one reached the high court on an emergency basis.
● Pennsylvania: Pennsylvania's GOP-run state House has passed a bill largely along party lines that would ban counties from setting up drop boxes for mail ballots but would also allow election officials to start processing mail ballots three days before Election Day. However, Democrats oppose the ban on drop boxes, prompting Democratic Gov. Tom Wolf to threaten a veto, and they've also insisted that officials be allowed to begin processing ballots 21 days before the election.
Meanwhile, the state Supreme Court has taken up Democrats' lawsuit seeking to protect access to drop boxes and satellite election offices that jurisdictions such as Philadelphia and its neighboring suburban counties plan to use to establish what are effectively in-person early voting locations. A Republican-backed federal lawsuit aiming to block both voting access measures remains on hold until the state-level case is resolved.
● Rhode Island: Democratic Secretary of State Nellie Gorbea says her office will send absentee ballot applications to all voters. In addition, the state Board of Elections has announced that secure ballot drop boxes will be placed " in every community" in Rhode Island.
● Tennessee: Federal district Judge Eli Richardson has sided with Republican officials and refused to block a law that makes it a felony for anyone other than election officials to distribute unrequested absentee ballot applications to voters, ruling that the NAACP-backed plaintiffs had cited the wrong law in their arguments.
Richardson, a Trump appointee, also rejected requiring that voters be notified and given a chance to fix alleged problems with their mail ballot signature. However, he did temporarily block a law that requires first-time registrants to show ID in-person if they want to vote by mail, something that disproportionately affects voters like college students.
● Texas: The 5th Circuit Court of Appeals has rejected a Democratic lawsuit arguing that Texas' practice of sending absentee ballots to voters 65 and older violates the 26th Amendment, which states that the right to vote "shall not be denied or abridged ... on account of age." The judges ruled that "adding a benefit to another class of voters does not deny or abridge" the right to vote under the amendment.
Separately, a state court judge has denied a request by Republican Attorney General Ken Paxton to block election officials in Harris County (home of Houston) from sending absentee ballot applications to all voters, ruling that officials would not be acting outside their authority.
In still another suit, a federal district court has ruled that Texas must notify voters and give them a chance to correct alleged problems with their mail ballot signatures. Meanwhile, the 5th Circuit Court of Appeals has refused to dismiss Democrats' lawsuit seeking prepaid postage for mail ballots; the counting of ballots postmarked by Election Day and received a few days after; allowing community collection and submission of ballots; and letting voters fix mail ballot signature issues.
However, a different federal district court granted the GOP's motion to dismiss a lawsuit civil rights groups brought to increase in-person access and safety, including extended early voting, a mask mandate at polling places, additional polling places, an expansion of curbside voting, and other requests.
● Utah: Republican Gov. Gary Herbert has signed a bill passed unanimously by the GOP legislature to let counties establish drive-through voting site and drop boxes for returning mail ballots, which the state is mailing to every registered voter.
● Vermont: Republicans have filed a federal lawsuit challenging the state's plan to mail every voter a ballot this fall, which Democratic Secretary of State Jim Condos implemented after the Democratic legislature gave him the authority earlier this year. Republicans argue without evidence that it increases the risk of fraud because, they claim, Vermont's voter rolls aren't adequately maintained.
● Virginia: Democratic Gov. Ralph Northam has signed a new law quickly passed by the Democratic-run legislature that waives the witness requirement for absentee mail voting, adds drop boxes for returning ballots, implements prepaid postage, and expands in-person early voting during the pandemic. Democratic officials had already agreed to suspend the witness requirement as part of an agreement with plaintiffs in a federal lawsuit, so this new law could moot any effort by Republicans to block that agreement in court.
Meanwhile, officials have agreed to let visually impaired voters receive absentee ballots electronically so that they can fill them out using special software before printing them out and returning them by mail or in-person, an option that has been available for the military for years. Several states have made such accommodations in response to federal lawsuits during the pandemic.