State Legislation Highlights
States currently in Session: Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, and Wisconsin.
States in Regular Session throughout the year: Massachusetts, Michigan, New York, Pennsylvania
States Sine die: Arkansas, Florida, Indiana, New Mexico, Oregon, Utah, Virginia, Washington, West Virginia, and Wyoming.
Arizona
The Arizona legislature passed
HB2492, which would require counties to check whether a voter is a U.S. citizen prior to processing their registration and requires counties to reject any federal applications if the individual is not a U.S. citizen. Any official who knowingly ignores the requirement could be charged with a Class 6 felony.
Colorado
State Senator Fenberg and Representative Lontine introduced
SB22-153 , which specifies that while serving as a designated election official or a coordinated election official, a person is prohibited from knowingly or recklessly making, publishing, broadcasting, or circulating any false statement for the purposes of promoting misinformation or disinformation related to the administration of elections. It also allows the Secretary of State to certify an election if a majority of a canvass board in a county is unable to or does not certify the abstract of votes for any reason by the applicable deadline.
Kentucky
The General Assembly passed
HB301 , the “Stop Outside Influence Over Elections Act of 2022,” which requires all costs and expenses related to election administration be paid for with public funds, prohibits a state governmental body employee from accepting anything of value to assist with election administration unless entered into as a lawful contract, requires all costs and expenses related to election administration be paid for with public funds, prohibits a local governmental body employee from accepting anything of value to assist with election administration unless entered into as a lawful contract, prohibits a county clerk or local governmental body employee from accepting any private monetary funds to assist with voter registration activities unless accepted as part of a valid contract, prohibits the State Board of Elections from accepting any private monetary funds for election administration unless accepted as part of a valid contract, prescribes criminal penalties for local and state governmental employees who fail to properly disclose communication from a federal executive branch agency and employees who accept a private contribution or anything of value to assist with election administration unless part of a valid contract, and prohibits unbudgeted federal appropriations for expenditures related to election administration. On March 24, 2022,
HB301 became law without the Governor’s signature.
Minnesota
State Representative Daudt, et. al. introduced
HF2732 , the “Minnesota Election Integrity Act,” which requires a photo ID both to register to vote and to vote; creates a voter ID card; establishes provisional ballots; prohibits certain methods of compensation related to absentee voting; requires ID of individuals acting as an agent for an absentee voter; requires ID of individuals providing assistance to a voter in a polling place; prohibits certain activities related to voter registration and absentee voting; prohibits counties, municipalities, and school districts from accepting certain contributions for election expenses; amends requirements for in-person absentee voting polling places; and increases certain criminal penalties for election code violations.
Utah
Last week Governor Cox signed
HB313, a comprehensive election reform package. Highlights of the legislation include:
- Clarifies that it is unlawful to vote in the same election in Utah and outside of Utah;
- Requires an individual who did not provide valid voter identification when registering to vote to provide valid voter identification when voting;
- Prohibits an election officer from soliciting, accepting, or using funds donated for an election by a person other than a government entity;
- Requires video surveillance of unattended ballot drop boxes and institutes other requirements and security measures for ballot drop boxes;
- Requires the director of elections to make rules establishing:
- Requirements for election officials regarding ballot security, including ballot custody, processing, and tabulation;
- Minimum standards for preserving the security of election equipment, including use, storage, and maintenance;
- Software validation procedures to verify that voting system files have not been tampered with; and
- Minimum requirements that a vendor must meet to be eligible to print ballots to be used in an election;
- Requires the lieutenant governor to conduct an annual voter registration audit;
- Restricts access to election equipment and prohibits connecting certain election equipment to the Internet;
- Requires an election official to check available resources to determine whether an individual registers to vote, or votes, in more than one state or precinct; and
- Addresses legal requirements relating to copies of ballots and election returns made as part of a legislative audit.
State Litigation Highlights
Arizona
In August, a lawsuit,
Mi Familia Vota v. Hobbs , was filed in AZ challenging SB1485, which removes voters from the permanent mail ballot list if a voter does not vote by mail in two straight election cycles; and SB1003, which requires voters to “cure” signature-less ballots by 7PM on Election Day. The RNC and the NRSC were granted intervention to defend the laws. Defendants filed a motion to dismiss on November 18, and discovery is underway. Last week, Mi Familia Vota filed a notice with the court stating that it did not intend to seek a preliminary injunction prior to the 2022 midterms.
The AZ GOP and a Republican voter
filed a lawsuit challenging the state’s mail-in voting laws . The lawsuit argues that absentee and mail-in voting violate the Arizona Constitution, or in the alternative, that Arizona should return to excuse-based absentee voting in place prior to 1991. The Democratic National Committee, the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee, and the Arizona Democratic Party have moved to intervene in the case.
Arkansas
Florida
In June, the RNC and NRSC were granted intervention in all four lawsuits challenging provisions of SB90. Judge Walker entered orders granting in part and denying in part defendants’ motions to dismiss. The court dismissed the claim challenging ballot harvesting provisions based on lack of standing. On December 17, the court denied all motions for summary judgment in the cases. The trial began January 31 and concluded on February 16.
Georgia
In July, the RNC, NRSC, NRCC, and GA GOP were granted intervention in eight lawsuits, including the U.S. Department of Justice’s lawsuit against the state, challenging provisions of
SB202. Previously, the court denied motions to dismiss for lack of standing and on the merits, filed by the RNC, other Republican organizations, and Republican lawmakers in Georgia in eight of the lawsuits. In December, the court denied the Motions to Dismiss filed by the State, RNC, NRSC, NRCC, and the GA GOP. In the 9
th case challenging
SB202, the court dismissed the case without prejudice for failure to serve the defendants.
Iowa
The RNC, Iowa GOP, NRCC, and NRSC were granted intervention to defend against a lawsuit challenging provisions of
SF413 and
SF568. The trial set for March 21, 2022 was pushed back in light of discovery disputes between the Iowa legislature and plaintiffs. On March 16, 2022, the Iowa Supreme Court granted certiorari to resolve these discovery disputes.
Kansas
On February 25, a federal court entered a permanent injunction and declaratory judgment in a
lawsuit challenging HB 2332. The court declared that
HB 2232 ’s bans on (1) third parties pre-filling advance ballot applications and (2) out-of-state organizations mailing advance ballot applications are unconstitutional under the First and Fourteenth Amendments, and enjoined the state from enforcing those provisions.
Michigan
In 2019, activist groups
challenged Michigan elections laws that restrict paid voter transportation services and out-of-state organizations assisting voters with absentee ballot applications. The RNC was granted intervention in the case. The district court initially granted an injunction that prohibited Michigan from enforcing its voter transportation restriction, but the Sixth Circuit
reversed. On March 21, 2022, the RNC and other Republican groups filed a motion for summary judgment and asked the district court to dismiss the suit.
Nevada
Two Republican-led ballot initiatives
are being challenged by Democrat-aligned activists. The Democrat-aligned activists sued in state district court in Carson City to stop an initiative to implement voter ID and an initiative to repeal portions of the state’s absentee ballot law.
New York
In January, the RNC and NY GOP, leading a broad bipartisan coalition of officeholders and concerned citizens, including Congresswoman Malliotakis and naturalized citizen voters,
sued Mayor Eric Adams, the New York City Council, and the New York City Board of Elections in state court over the “Non-Citizen Voting Law,” which illegally allows non-citizens to vote in city elections. The complaint is available
here. The NYC Board of Elections has since
requested that the state review the law and issue an opinion on its legality. The case was assigned to Judge Ralph Porzio.
North Carolina
The North Carolina legislature petitioned the U.S. Supreme Court to
hear an appeal on a challenge to the state’s congressional and state legislative maps.
The trial in the federal NC voter ID case was put on hold by the trial court until the U.S. Supreme Court decides if the GOP legislators can intervene in the case. The U.S. Supreme Court granted a writ of certiorari to determine whether NC GOP legislators have a right to intervene in a case to defend SB824, which requires in-person voters to show photo identification. Oral argument took place on Monday, March 21, 2022.
Previously, in June, a 4th Circuit en banc panel affirmed the lower court’s order denying intervention, holding that the lower court did not abuse its discretion by denying permissive intervention or intervention as of right. The en banc court was nearly evenly divided.
Pennsylvania
The PA Supreme Court
heard oral argument on March 8 on the challenge to Act 77, the state law establishing no excuse absentee voting. The Supreme Court heard an appeal from a January 28 Commonwealth Court ruling which struck down Act 77,
holding that it violated the PA Constitution. Under PA law, the Commonwealth Court ruling was automatically stayed but the court subsequently terminated the stay effective March 15. The termination of the stay was appealed to the PA Supreme Court, which reinstated the stay, effective until the conclusion of the case. A link to the oral arguments can be found
here.
In January, Republican David Ritter, a candidate for Judge of the Court of Common Pleas of Lehigh County, appealed the County Board of Election’s 3-0 decision to count 261 challenged mail-in ballots that were undated or improperly dated. On November 30, 2021, the Court of Common Pleas of Lehigh County denied Ritter’s appeal and ordered the Lehigh County Board of Elections to include the 261 mail-in ballots in its canvass. The case was then appealed to the Commonwealth Court who, in a 2-1
decision , reversed and remanded the case concluding that the 257 ballots that do not contain a date must be set aside and not counted in the Municipal Election. Democratic candidate Zachary Cohen
filed an appeal with the PA Supreme Court. The PA Supreme Court denied the appeal.
In January 2022, five voters who failed to date their ballot
sued the Lehigh County Board of Elections in federal court to have their undated votes counted. The County Board agreed to not certify the election until the litigation has been resolved. The lawsuit alleges violations of the Civil Rights Act and the 14
th Amendment. Republican candidate David Ritter was granted intervention in the case. On March 16, 2022, the court granted Ritter’s motion for summary judgment and ordered that the undated ballots should not be counted. Plaintiffs appealed. After the district court declined to delay certification, the 3
rd Circuit Court of Appeals
issued a temporary injunction preventing the Lehigh County Board of Elections from certifying the results of the election.
Texas
The
U.S. Department of Justice sued the State of Texas and the Texas Secretary of State, challenging certain provisions in the recently enacted election integrity bill: SB1. The DOJ claims the law violates Section 208 of the Voting Rights Act and Section 101 of the Civil Rights Act. The RNC, NRCC, NRSC, and Dallas and Harris County Republican Parties moved to intervene in the DOJ suit and others challenging SB1. The court denied the party committees’ motion to intervene, and the party committees promptly
appealed the ruling to the 5th Circuit Court of Appeals. The Department of Justice actively opposed the party committees’ intervention. Oral arguments on the intervention issue took place on March 7.
Update: On March 25, 2022, the
Fifth Circuit Court of Appeals
ruled that the Republican committees were entitled to intervention as of right and ordered the district court to grant intervention to the committees.
In one of the cases challenging SB1,
the court granted a preliminary injunction on the provisions that make it a crime for election officials to send a vote-by-mail application to registered voters who hadn't requested one. The Fifth Circuit heard oral argument on March 8 and subsequently certified questions to the Supreme Court of Texas.
In May 2020, activists
sued the Texas Secretary of State over the 2017 election bill,
HB 25. The district court declined to dismiss the case, and the Secretary of State appealed. On March 16, 2022, the
Fifth Circuit reversed and ordered the district court to dismiss the case.
Vermont
In September, the
RNC sued the cities of Montpelier and Winooski over their new town charters that allow non-citizens to vote in their municipal elections. The lawsuit also raises important concerns about how the laws will be implemented and whether non-citizens will end up on the same voter registration lists used for state-level and federal elections. The RNC is joined in the suit by the Vermont Republican Party and several concerned Vermont voters. Motions to dismiss have been filed in the case and the state of Vermont moved to intervene to defend the charters. The RNC filed its opposition to the motion to dismiss on January 21, 2022. A hearing on the motion to dismiss in the Montpelier litigation is set for March 31, 2022.
Virginia
In December, the Democratic Party of Virginia and the DCCC
sued members of the Virginia Board of Elections over the state’s law requiring voters to disclose their social security number when registering to vote. The Democrats allege the registration requirement violates the 1st and 14th Amendments and the federal Privacy Act. The lawsuit also challenges the state’s absentee ballot curing process, arguing that the deadline by which voters receive notice of defects of their absentee ballots is arbitrary. The Republican Party of Virginia’s motion to intervene was granted, while
PILF's motion to intervene was denied by the court. On February 9, 2022, the Republican Party of Virginia filed a motion to dismiss.
Wisconsin
In
Teigen v. WEC, the WI Circuit Court
ruled that absentee ballot drop boxes are not permitted under Wisconsin law and ordered the Wisconsin Elections Commission (WEC) to retract its instructions on the use of drop boxes. WEC
appealed the ruling. The court also
denied a request to stay the ruling for the February 15, 2022 primary while the defendants pursue an appeal. The Court of Appeals granted petition to bypass; thus, the WI Supreme Court will hear argument on the case. The WI Supreme Court
denied a stay motion that would have allowed absentee drop boxes through the April 15, 2022 election; accordingly, drop boxes located outside of local clerks’ offices will be illegal and no one other than the voter will be allowed to return an absentee ballot. This WI Supreme Court will hear merits arguments on the case on April 13, 2022. As reported by
Breitbart , on March 23, 2022, the RNC, NRSC, and Republican Party of Wisconsin moved to file
an amicus brief in support of Teigen.
