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U.S. Supreme Court upholds Arizona voting policies

Ballot Bulletin

Welcome to The Ballot Bulletin, where we track developments in election policy at the federal, state, and local levels. In this month’s issue, we cover the following:

  1. U.S. Supreme Court upholds Arizona voting policies
  2. Redistricting round-up: Colorado redistricting commissions release preliminary congressional, state legislative maps (and other news)
  3. Legislation update

Have a question/feedback/or just want to say hello? Respond to this email, or drop me a line directly at Jerrick@Ballotpedia.org.

U.S. Supreme Court upholds Arizona voting policies

On July 1, the U.S. Supreme Court ruled 6-3 that two Arizona voting policies – one barring the counting of a ballot cast in person on Election Day outside a voter’s assigned precinct, and the other limiting who may return a voter’s absentee/mail-in ballot  – did not violate Section 2 of the Voting Rights Act. The case name is Brnovich v. Democratic National Committee.

How we got here

The Democratic Party filed suit in U.S. District Court over the two policies in 2016. The suit alleged that both violated the First, Fourteenth, and Fifteenth Amendments to the U.S. Constitution and Section 2 of the Voting Rights Act “by adversely and disparately impacting the electoral opportunities of Hispanic, African American, and Native American Arizonans.” 

In October 2017, the U.S. District Court heard oral arguments on the merits, ultimately ruling in favor of the state and upholding the policies. On appeal, a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s ruling. In an en banc rehearing (i.e., a rehearing before all active judges on the court), the Ninth Circuit reversed the panel’s decision. A 7-4 majority ruled that the out-of-precinct policy violated Section 2 of the Voting Rights Act. A 6-5 majority ruled that the ballot-collection law violated Section 2 and the Fifteenth Amendment. Arizona Attorney General Mark Brnovich (R), in his official capacity, and the Arizona Republican Party, appealed to the U.S. Supreme Court.

The ruling

Justice Samuel Alito delivered the court’s opinion, which Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined. Alito wrote:

“After a trial, a District Court upheld these rules, as did a panel of the United States Court of Appeals for the Ninth Circuit. But an en banc court, by a divided vote, found them to be unlawful. It relied on the rules’ small disparate impacts on members of minority groups, as well as past discrimination dating back to the State’s territorial days. And it overturned the District Court’s finding that the Arizona Legislature did not adopt the ballot-collection restriction for a discriminatory purpose. We now hold that the en banc court misunderstood and misapplied §2 and that it exceeded its authority in rejecting the District Court’s factual finding on the issue of legislative intent.”

Justice Elena Kagan wrote a dissent, joined by Justices Stephen Breyer and Sonia Sotomayor. Kagan wrote: 

“Today, the Court undermines Section 2 and the right it provides. The majority fears that the statute Congress wrote is too ‘radical’—that it will invalidate too many state voting laws. See ante, at 21, 25. So the majority writes its own set of rules, limiting Section 2 from multiple directions. Wherever it can, the majority gives a cramped reading to broad language. And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters.”


Redistricting round-up: Colorado redistricting commissions release preliminary congressional, state legislative maps (and other news)

Today’s redistricting round-up includes news from: 

  • Colorado, where the state’s independent redistricting commissions have released preliminary congressional and state legislative maps; 
  • Alabama, where a federal circuit court has rejected the state’s attempt to force the early release of U.S. Census Bureau redistricting data; 
  • Louisiana, where state lawmakers have adopted a resolution laying out redistricting criteria; and 
  • Michigan, where the state supreme court is considering extending redistricting deadlines. 

Colorado: Colorado redistricting commissions release preliminary congressional, state legislative maps

On June 23, staff of the Colorado Independent Congressional Redistricting Commission released preliminary congressional district maps, making Colorado the first state in the current redistricting cycle to produce a draft congressional plan. As a result of reapportionment, Colorado is gaining one U.S. House district, increasing from seven representatives to eight. Colorado is one of six states that gained U.S. House districts from reapportionment.

On June 29, 2021, staff of the Colorado Independent Redistricting Commission released preliminary maps for the Colorado House of Representatives and the Colorado Senate.

The commission will now conduct at least three public hearings on the proposed maps in each of the state’s current congressional districts, all of which must also be broadcast online.

After public hearings are concluded, the commission can vote on the preliminary maps or ask commission staff to make revisions. Eight of the commission’s 12 members (including at least two unaffiliated members) must approve the maps. The Colorado Supreme Court must also sign off on the maps.

Alabama: Federal court rejects Alabama’s attempt to force early release of Census Bureau redistricting data 

On June 29, a three-judge panel of the U.S. District Court for the Middle District of Alabama rejected Alabama’s attempt to force the U.S. Census Bureau to release redistricting data before Aug. 16, when the Bureau has said it will release the data to the states.

Federal law requires that the Bureau deliver redistricting data to the states by April 1 of the year following a census. However, due to delays in conducting the 2020 census and processing the data, the Bureau announced in early 2021 that it would miss this deadline. This prompted the state of Alabama to file suit on March 11. In his complaint, Alabama Solicitor General Edmund G. LaCour, Jr. said, “[t]he Bureau has no authority to grant itself this extension and deprive Alabama of information to which it is entitled.” He asked that the court block application of the differential privacy method and order the U.S. Census Bureau to deliver data to the states by March 31. A three-judge panel – including Judges Kevin Newsom, Emily Marks, and R. Austin Huffaker, all Donald Trump (R) appointees – heard the case.

The court unanimously rejected Alabama’s request: “The court cannot force the Bureau to do the impossible – that is, comply with an already-lapsed deadline. … Furthermore, the Bureau has made quite clear that it will be able to deliver the redistricting data to the State by August 16, 2021. Again, Plaintiffs have acknowledged that date suffices for them to be able to complete redistricting without injury. We see no prejudice to Plaintiffs in denying a writ of mandamus requiring the Bureau to issue the data any earlier.”

In his complaint, LaCour also alleged the U.S. Census Bureau “intends to use a statistical method called differential privacy to intentionally skew the population tabulations given to States to use for redistricting,” which would deny the state “accurate information about where Alabamians actually live.” The court also dismissed this challenge.

Louisiana: State lawmakers adopt resolution laying out criteria for redistricting plans 

On June 10, the Speaker of the Louisiana House of Representatives and the President of the Louisiana Senate signed HCR90, a concurrent resolution outlining the “minimally acceptable criteria for consideration of redistricting plans.” The resolution prohibits district-to-district population deviations exceeding 5% of the ideal district population for state legislative district plans. The resolution also requires that lawmakers use census data for redistricting purposes (not American Community Survey data, which some states have used or are considering using).

In Louisiana, Republicans control both chambers of the state legislature. Governor John Bel Edwards is a Democrat. The state legislature is responsible for both congressional and state legislative redistricting. District maps are subject to gubernatorial veto. In the event that the legislature is unable to approve state legislative district boundaries, the state supreme court must draw the lines. There is no such practice that applies to congressional districts.

Michigan: State supreme court considers extending redistricting deadlines 

On June 21, the Michigan Supreme Court heard oral arguments over the Michigan Independent Citizens Redistricting Commission’s request to extend the state’s constitutional deadline for adopting new redistricting plans.

Under the Michigan Constitution, the commission must adopt new redistricting plans by Nov. 1. It must also publish plans for public comment by Sept. 17. However, because of the delayed delivery of detailed redistricting data by the U.S. Census Bureau, the commission says it will “not be able to comply with the constitutionally imposed timeline.” Instead, the commission is asking that the state supreme court issue an order directing it to propose plans within 72 days of the receipt of redistricting data and to approve plans within 45 days thereafter.

The state supreme court asked the Office of the Attorney General to assemble two separate teams to make arguments, one team supporting the commission’s request and another opposing. The court heard oral arguments on June 21. Deputy Solicitor General Ann Sherman, speaking in support of the proposed deadline extensions, said, “[t]he very maps themselves could be challenged if they are drawn after the November 1 deadline.” Assistant Attorney General Kyla Barranco, speaking in opposition, said, “[t]here isn’t harm in telling the commission at this point, ‘Try your best with the data that you might be able to use and come September 17, maybe we’ll have a different case.'”

The court did not indicate when it would issue a decision.


Legislation update: Redistricting, electoral systems, and primary systems bills 

Redistricting legislation: So far this year, we’ve tracked at least 186 redistricting-related bills up for consideration in state legislatures. 

Redistricting legislation in the United States, 2021 

Current as of July 6, 2021

Electoral systems legislation: So far this year, we’ve tracked at least 143 bills dealing with electoral systems that are up for consideration in state legislatures. 

Electoral systems legislation in the United States, 2021 

Current as of July 6, 2021

Primary systems legislation: So far this year, we’ve tracked at least 20 bills dealing with primary systems that are up for consideration in state legislatures. 

Primary systems legislation in the United States, 2021 

Current as of July 6, 2021



Redistricting round-up: Illinois lawmakers approve state leg., supreme court maps (and other news)

Ballot Bulletin

Redistricting round-up: Illinois lawmakers approve state leg., supreme court maps (and other news)

Last week, Illinois lawmakers approved revised maps for the Illinois state Senate, the Illinois House of Representatives, and the Illinois Supreme Court. The votes were as follows: 

  • State legislative redistricting plan (HB2777): 
    • House vote (May 28): 70-45
    • Senate vote (May 28): 40-18 
    • In both chambers, the vote split along party lines, with all Democrats voting ‘yea’ and all Republicans present voting ‘nay.’
  • Supreme court redistricting plan (SB0642): 
    • House vote: 71-45
    • Senate vote: 40-18
    • In both chambers, the vote split along partisan lines, with all Democrats voting ‘yea’ and all Republicans present voting ‘nay.’

In Illinois, the General Assembly is responsible for redistricting. Maps are subject to gubernatorial veto. Illinois is a Democratic trifecta, meaning that Democrats control the governorship and majorities in both chambers of the General Assembly. Gov. J.B. Pritzker (D) has not indicated whether he intends to sign HB2777 and SB0642 into law. 

Click the links below to view interactive presentations of the maps: 

Earlier developments and reactions: Illinois lawmakers released proposed maps on May 21. Sen. Omar Aquino (D), chair of the Senate Redistricting Committee, said, “Redistricting is about making sure all voices are heard, and that’s exactly what this map accomplishes. This is a fair map that reflects the great diversity of our state and ensures every person receives equal representation in the General Assembly.”

Rep. Tim Butler (R) criticized the proposals: “Tonight’s drop of partisan maps is yet another attempt to mislead voters in an effort to block fair elections. We continue our call upon Governor Pritzker to live up to his pledge to the people of Illinois and veto a map that was drawn by politicians like what we see here today.”

Illinois lawmakers also released proposed maps for state supreme court districts, which were last redrawn in 1964. Illinois is divided into five supreme court districts. Cook County (home to Chicago) forms a single district, but it is allocated three seats on the seven-member court. Downstate Illinois is divided into four districts, each with one seat on the court. 

The state constitution allows state lawmakers to redraw supreme court districts at any time. However, according to The Chicago Tribune, “lawmakers have traditionally used boundaries for the circuit, appellate and Supreme Court laid out in a 1964 overhaul of the state’s court system.” 

Rep. Lisa Hernandez (D), chair of the House Redistricting Committee, said it was necessary to redraw the court’s district maps to ensure more equal populations between districts: “This map is about equal representation in the state’s most important court. As we strive for all to be equal before the law, we must ensure we all have an equal voice in choosing those who uphold it.” 

The state Republican Party opposed the redrawn the state supreme court map: “This is a brazen abuse of our judicial system and nothing more than political gamesmanship with what should be an independent court, free of corrupt influence.”

Ohio: State settles lawsuit with U.S. Census Bureau over delivery of redistricting data 

On May 25, Ohio Attorney General Dave Yost (R) announced the state had reached a settlement agreement with the Census Bureau in its lawsuit over the Bureau’s plan to deliver redistricting data to the states by Sept. 30, instead of the April 1 statutory deadline. 

Under the settlement, the Census Bureau agreed to deliver redistricting data, in a legacy format, by August 16. The legacy format would present the data in raw form without the data tables and other access tools the Census Bureau will ultimately prepare for the states. The Census Bureau also agreed to deliver biweekly updates (and, in August, weekly updates) on its progress. 

Yost said: “This administration tried to drag its feet and bog this down in court, but Ohio always had the law on its side and now the federal government has finally agreed. It’s time to cough up the data.” 

The Census Bureau had previously indicated that states would get the data in a legacy format by mid-to-late August. In a March 15 statement, the Bureau said:

In declarations recently filed in the case of Ohio v. Raimondo, the U.S. Census Bureau made clear that we can provide a legacy format summary redistricting data file to all states by mid-to-late August 2021. Because we recognize that most states lack the capacity or resources to tabulate the data from these summary files on their own, we reaffirm our commitment to providing all states tabulated data in our user-friendly system by Sept. 30, 2021.

Wisconsin: State supreme court rejects proposed rule to give itself original jurisdiction over redistricting challenges 

On May 14, the Wisconsin Supreme Court denied a petition for a proposed rule that would have given the court original jurisdiction over redistricting lawsuits. When a court assumes original jurisdiction, it has the “power to hear and decide a matter before any other court can review the matter.”

On June 3, 2020, Scott Jensen and the Wisconsin Institute for Law and Liberty filed the petition for the proposed rule. The plaintiffs cited the court’s 2002 opinion in Jensen v. Wisconsin Elections Board, saying the court had then “noted that redistricting was primarily a state and not a federal responsibility … but nevertheless deferred to the federal courts because of the perceived procedural problem of a lack of rules for such a case in [the state supreme court.” The petitioners asked the court to adopt the proposed rule “to cure the perceived procedural problems it noted in Jensen.”

In an unsigned order denying the petition, the court said, “The court determined that, as drafted, the procedures proposed in this administrative rule petition are unlikely to materially aid this court’s consideration of an as yet undefined future redistricting challenge, and voted to deny the petition.” The court added, “Our decision in this rule matter should not be deemed predictive of this court’s response to a petition for review asking this court to review a lower court’s ruling on a redistricting challenge or a request that we assume original jurisdiction over a future redistricting case or controversy.”


Texas Democrats stage walkout, blocking passage of election policy bill

On May 30, Democrats in the Texas House of Representatives staged a walkout in the final hours of the session, leaving the chamber without the quorum needed to vote on legislation. As a result, SB7 – a bill that would have made a number of changes to the state’s election laws – failed to pass by the midnight deadline. 

What did SB7 propose? The most recent version of SB7 would have made the following changes to the state’s election laws: 

  • Early voting: Provides that early voting cannot be conducted earlier than 6 a.m. or later than 9 p.m.
  • Absentee/mail-in voting: Establishes that the following do not constitute “sufficient cause to entitle a voter” to vote by mail: a lack of transportation; “a requirement to appear at the voter’s place of employment on election day,” or an “illness, injury, or disability that does not prevent the voter from appearing at the polling place on election day without a likelihood of needed personal assistance or of injuring the voter’s health.” Requires that absentee/mail-in voting applications be submitted in writing and signed “using ink on paper.” Prohibits electronic and photocopied signatures on absentee/mail-in ballot applications. Requires that the applicant submit either his or her driver’s license/personal identification number or the last four digits of his or her Social Security number.
  • Voter registration roll maintenance: Requires the secretary of state to “monitor each county’s list of registered voters to ensure that no county has a number of registered voters in the county equal to or greater than the number of people eligible to register to vote in the county.” If the secretary of state discovers such a discrepancy, local registrars must either refute that finding, in writing, or “develop a remediation plan to address failures to comply with voter roll maintenance provisions.” 
  • Polling places: Prohibits polling places from being located in “a tent or similar temporary movable structure or in a facility primarily designed for motor vehicles.” Prohibits universal drive-thru voting. 
  • Voting equipment: Effective Sept 1., 2026, establishes that “a voter system that consists of direct recording electronic voting machines may not be used in an election unless the system is an auditable voting system,” which is defined as a voting system that either uses a paper record or “produces a paper record by which a voter can verify that voter’s ballot will be counted accurate.” 
  • Vote tabulating equipment: Effective Jan 1, 2024, bars the use of tabulating equipment “if any wireless connectivity capability of the equipment has not been disabled or removed.” 
  • Video surveillance of sites with voted ballots: Requires that the custodians of election records in counties with populations of 100,000 or more “implement a video surveillance system that retains a record of all areas containing voted ballots from the time the voted ballots are delivered to the central counting station until the canvass of precinct election returns.” Requires that video be made available to the public via livestream. 
  • Poll watchers: Establishes that a poll watcher who is “entitled to ‘observe’ an election activity is entitled to sit or stand near enough to see and hear the activity.” 

What comes next? Gov. Greg Abbott (R) said reconsideration of SB7 would be added to the agenda of the upcoming special legislative session. It is not yet clear when the special session will be convened. 


Legislation update: Redistricting, electoral systems, and primary systems bills 

Redistricting legislation: So far this year, we’ve tracked at least 154 redistricting-related bills up for consideration in state legislatures. 

Redistricting legislation in the United States, 2021 
Current as of June 1, 2021

Electoral systems legislation: So far this year, we’ve tracked at least 143 bills dealing with electoral systems that are up for consideration in state legislatures. 

Electoral systems legislation in the United States, 2021 
Current as of June 1, 2021

Primary systems legislation: So far this year, we’ve tracked at least 19 bills dealing with primary systems that are up for consideration in state legislatures. 

Primary systems legislation in the United States, 2021 
Current as of June 1, 2021



U.S. Census Bureau releases congressional apportionment counts

Ballot Bulletin

Redistricting round-up: U.S. Census Bureau releases congressional apportionment counts, kicking off redistricting cycle

On April 26, the U.S. Census Bureau released congressional apportionment counts. Six states — Texas (two seats), Colorado, Florida, Montana, North Carolina, and Oregon — gained seats. Seven states — California, Illinois, Michigan, New York, Ohio, Pennsylvania, and West Virginia— each lost a seat.

Of the six states that gained congressional seats, three are Republican trifectas (Texas, Florida, and Montana), meaning Republicans control the governorship and majorities in both state legislative chambers in each. Two (Colorado and Oregon) are Democratic trifectas, and one (North Carolina) has a divided government.

Of the seven states that lost congressional seats, three (California, Illinois, and New York) are Democratic trifectas, two (Ohio and West Virginia) are Republican trifectas, and two (Michigan and Pennsylvania) have divided governments.

The release of apportionment counts marks the unofficial start of the 2021-2022 redistricting cycle. Throughout this year and next, policymakers (including state legislators, governors, and special redistricting commissions) will draft and implement new state legislative and congressional district maps, which will remain in force for the next 10 years.

Earlier: The Census Bureau was originally set to deliver apportionment counts by Dec. 31, 2020. However, on Nov. 19, 2020, Census Bureau Director Steve Dillingham announced that, “during post-collection processing, certain processing anomalies [had] been discovered.” Dillingham said that he had directed the bureau “to utilize all resources available to resolve this as expeditiously as possible,” suggesting a delay in delivering the apportionment counts.  On Jan. 27, 2021, Kathleen Styles, a Census Bureau official, announced that the final apportionment counts would be delivered by April 30.

The census and reapportionment: Every ten years, the nation conducts the census, a complete count of the U.S. population. The data gleaned from the census determines congressional apportionment. Apportionment is the process by which the 435 seats in the U.S. House of Representatives are allotted to the states on the basis of population, as required under Article I, Section 2, of the U.S. Constitution. A state can gain seats in the House if its population grows – or lose seats if its population decreases – relative to populations in other states.

The census and redistricting: Federal law requires that congressional and state legislative districts have equal populations (as nearly as practicable). To meet this requirement, redistricting authorities rely on detailed Census Bureau data. The Census Bureau was originally set to deliver redistricting data to the states by April 30. However, in light of the aforementioned processing issues and delays, the Census Bureau shifted the timeline. Upon announcing the 2020 apportionment counts, Acting Census Bureau Director Ron Jarmin said, “Our work doesn’t stop here. Now that the apportionment counts are delivered, we will begin the additional activities needed to create and deliver the redistricting data that were previously delayed due to COVID-19.” The Census Bureau expects to deliver the raw data to the states by Aug. 16. The “full redistricting data with toolkits for ease of us” will be delivered by Sept. 30.

Release of apportionment counts triggers lawsuits in Louisiana, Minnesota, and Pennsylvania 

On April 26, Democracy Docket filed three separate lawsuits on behalf of registered voters in three states, asking courts in Louisiana, Minnesota, and Pennsylvania to intervene and set up timelines for enacting court-drawn maps for the 2022 election cycle “in the near-certain event” that governors and legislatures in each state fail to do so. The substantive language used in the three suits is similar. All three allege that “there is no reasonable prospect that … political branches will reach consensus to enact” lawful district maps in a timely manner because the three states operate under divided governments (i.e., both the Democratic and Republican parties control at least one of the following: the governorship, the upper chamber of the state legislature, and the lower chamber). In the 2010-2011 redistricting cycle, Ballotpedia tracked redistricting lawsuits in 37 states. 

  • Case names and numbers

Oklahoma lawmakers unveil draft maps for state legislature 

On April 21, Oklahoma lawmakers released their proposed district maps for the state Senate and House of Representatives, making Oklahoma the first state in the 2021-2022 cycle to produce draft maps. In lieu of final 2020 census data, which has not yet been made available to the states, lawmakers used the U.S. Census Bureau’s American Community Survey data for 2015 through 2019 to draft their proposals. Click here to view an interactive presentation of the proposed maps.

New York Gov. Cuomo mulls legal challenge over loss of congressional seat 

On April 27, Gov. Andrew Cuomo (D) told reporters that he was considering the state’s “legal options” with respect to New York’s loss of one congressional seat to reapportionment. According to estimates by the U.S. Census Bureau, New York could have kept this seat if 89 additional residents had been counted in New York. Cuomo said, “Do I think it was accurate within 89? No. And we’re looking at legal options. Because when you’re talking about 89, that could be a minor mistake in counting.” According to Janna Johnson, an assistant professor at the University of Minnesota Humphrey School of Public Affairs, no state has ever succeeded in challenging apportionment counts in court.

Pennsylvania Supreme Court appoints chair of state legislative redistricting commission 

On May 3, the Pennsylvania Supreme Court announced the appointment of Mark Nordenberg as chair of the Pennsylvania Legislative Reapportionment Commission. Nordenberg, Chair of the University of Pittsburgh’s Institute of Politics, joins Sen. Majority Leader Kim Ward (R), Sen. Minority Leader Jay Costa (D), House Majority Leader Kerry Benninghoff (R), and House Minority Leader Joanna McClinton (D). The state supreme court appointed Nordenberg as chair after the four other members of the commission failed to agree on an appointment. The commission has the sole authority to draft and implement new state legislative district maps. 


Austin, Texas, voters approve ballot measure for municipal ranked-choice voting, if state allows

On May 1, voters in Austin, Texas, voted 57.95%-42.05% in favor of Proposition E, amending the city’s charter “to provide for the use of ranked choice voting in city elections, if such voting is permitted by state law.” 

What does “if such voting is permitted by state law” mean? According to the Austin Law Department, ranked-choice voting is not currently permitted under Texas state law. A spokesperson for the department said, “Ranked-choice voting would not be implemented in Austin until or unless the Texas Constitution was amended and/or until the state Legislature amended the Texas Election Code to allow it.”

State law currently makes no mention of ranked-choice voting. Prior to 1985, the Texas Election Code did allow for “preferential voting” (i.e., ranked-choice voting) as an alternative electoral system. This provision was eliminated in 1985 during a major recodification of the state’s election laws.  

In a 2001 letter to Austin City Attorney John Steiner, then-Secretary of State Henry Cuellar said:

It is [this office’s] opinion that the meaning of the word “majority,” as the Texas Legislature has used it in the [Election] Code and as it has been interpreted by the courts, is majority in the “classic” or “traditional” sense, i.e., a majority vote consists of more than half of the original votes, as cast and not re-assigned by the voter’s secondary or tertiary intent, and if no candidate receives more than half the votes, a runoff election is required. Barring a conflict with the Texas Constitution, the Texas Legislature would need to amend state law, or to repeal the statutory conflict, in order to restore the city’s discretion to adopt preferential voting. 

What happens next? It remains to be seen whether Texas lawmakers will adopt a law permitting cities and counties to use ranked-choice voting. There is no legislation to that effect currently before the Texas Legislature. 

About ranked-choice voting: In a ranked-choice voting system (RCV), voters rank candidates by preference on their ballots. If a candidate wins a majority of first-preference votes, he or she is declared the winner. If no candidate wins a majority of first-preference votes, the candidate with the fewest first-preference votes is eliminated. First-preference votes cast for the failed candidate are eliminated, lifting the second-preference choices indicated on those ballots. A new tally is conducted to determine whether any candidate has won a majority of the adjusted votes. The process is repeated until a candidate wins an outright majority.

Ranked-choice voting is currently used, largely at the municipal level, in the following states: California, Colorado, Delaware, Massachusetts, Maine, Maryland, Michigan, Minnesota, New Mexico, New York, Oregon, and Utah. Maine is the only state that has thus far implemented ranked-choice voting at the statewide level. Alaska will begin using ranked-choice voting for federal and state general elections starting in the 2022 election cycle. 


Legislation update: Redistricting, electoral systems, and primary systems bills 

Redistricting legislation: So far this year, we’ve tracked at least 144 redistricting-related bills up for consideration in state legislatures. 

Redistricting legislation in the United States, 2021 
Current as of May 5, 2021

Electoral systems legislation: So far this year, we’ve tracked at least 143 bills dealing with electoral systems that are up for consideration in state legislatures. 

Electoral systems legislation in the United States, 2021 
Current as of May 5, 2021

Primary systems legislation: So far this year, we’ve tracked at least 19 bills dealing with primary systems that are up for consideration in state legislatures. 

Primary systems legislation in the United States, 2021 
Current as of May 5, 2021



Census Bureau suggests data can be available to states, in legacy format, in August

Ballot Bulletin

Redistricting round-up: Census Bureau suggests data can be available to states, in legacy format, in August

On March 15, the U.S. Census Bureau announced that redistricting data could be made available to states in a legacy format by mid-to-late August 2021: “In declarations recently filed in the case of Ohio v. Raimondo, the U.S. Census Bureau made clear that we can provide a legacy format summary redistricting data file to all states by mid-to-late August 2021. Because we recognize that most states lack the capacity or resources to tabulate the data from these summary files on their own, we reaffirm our commitment to providing all states tabulated data in our user-friendly system by Sept. 30, 2021.” The legacy format would present the data in raw form, without the data tables and other access tools the Bureau will ultimately prepare for the states.

Earlier: On Feb. 12, the U.S. Census Bureau announced it would deliver redistricting data to the states by Sept. 30. This followed the Bureau’s announcement on Jan. 27 that it would deliver final apportionment counts by April 30. Under its original operational timeline, the Census Bureau was scheduled to deliver apportionment counts by Dec. 31, 2020, and redistricting data by March 31.

The census, reapportionment, and redistricting: The census is conducted every 10 years and kickstarts the entire redistricting process. Article I, Section 2, of the U.S. Constitution requires that congressional representatives be apportioned to the states on the basis of population. The U.S. House of Representatives has 435 members. Consequently, a state may gain representatives in the House if its population grows or lose representatives if its population decreases, relative to populations in other states. 

Arizona, Colorado, Florida, Montana, North Carolina, Oregon, and Texas are all expected to gain between one and three representatives each. Meanwhile, Alabama, California, Illinois, Michigan, Minnesota, New York, Ohio, Pennsylvania, Rhode Island, and West Virginia are expected to lose representatives. These estimates are subject to change. 

Federal law requires that congressional and state legislative districts have equal populations (as nearly as practicable). To meet this requirement, redistricting authorities rely on detailed Census Bureau data. 

Alabama: State sues over census statistical methods, data delay 

On March 11, the state of Alabama sued the U.S. Department of Commerce and the U.S. Census Bureau in the U.S. District Court for the Middle District of Alabama. Alabama Solicitor General Edmund G. LaCour, Jr. alleged the U.S. Census Bureau “intends to use a statistical method called differential privacy to intentionally skew the population tabulations given to States to use for redistricting.” This would prevent Alabama from having “accurate information about where Alabamians actually live.” LaCour also challenged the U.S. Census Bureau’s announced delay in delivering redistricting data to the states: “The Bureau has no authority to grant itself this extension and deprive Alabama of information to which it is entitled.” He asked that the court bar the use of the differential privacy method and direct the U.S. Census Bureau to deliver data to the states by March 31. On March 26, Judge R. Austin Huffaker, a Donald Trump (R) appointee,  ordered a three-judge panel to consider the case.

Ohio: U.S. district court dismisses suit over census data delay 

On March 25, Judge Thomas Rose, a George W. Bush (R) appointee, dismissed an Ohio lawsuit over the Census Bureau’s delay in delivering redistricting data to the states. Ohio Solicitor General Benjamin Flowers said, “The unavailability of decennial census data irreparably harms the State: the Ohio Constitution requires the State to use decennial census data during redistricting if the data is available, and allows the use of alternative data sources only as a second-best option. By blocking the State from conducting redistricting using decennial census data, the Census Bureau’s decision prevents the State from conducting redistricting in the constitutionally preferred manner.” Flowers sought “an injunction either prohibiting the defendants from delaying the release of Ohio’s redistricting data beyond March 31, 2021, or else requiring the defendants to provide the State with Ohio’s population data at the earliest date this Court deems equitable.” Rose denied the state’s request, writing, “The Court will therefore reject Ohio’s request for an order that pretends that the Census Bureau could provide census-based redistricting data by March 31, 2021. The Court cannot ‘order a party to jump higher, run faster, or lift more than she is physically capable.'” The state appealed Rose’s decision to the U.S. Court of Appeals for the Sixth Circuit, where it is currently pending.

  • Case name and number: Ohio v. Coggins (U.S. District Court: 3:21-cv-00064; U.S. Court of Appeals: 0:21-cv-03294).

Oregon: State supreme court proposes condensed timeline for legislative redistricting 

On March 10, Oregon House Speaker Tina Kotek (D) and Senate President Peter Courtney (D), on behalf of the Oregon Legislative Assembly, sued Secretary of State Shemia Fagan (D) in the Oregon Supreme Court, asking the court to extend the state’s constitutional deadlines on legislative redistricting. In their complaint, attorneys for the plaintiffs said, “[Unless] this Court (1) enjoins the Secretary of State from moving forward with apportionment and (2) extends the deadlines set forth in Article IV, section 6 (and allows reapportionment to occur in a special legislative session), reapportionment will either not be done at all or will be done using old Census data that will result in malapportioned legislative districts. Neither result is constitutionally palatable.” Under Article IV, Section 6, the legislature has until July 1 of the year following the census to adopt new legislative district maps. If the legislature fails to do so, the secretary of state has until Aug. 15 to adopt a legislative district plan. The plaintiffs asked the court to extend these deadlines to three months following the release of census data (expected by Sept. 30).

On March 19, the Oregon Supreme Court proposed the following timeline:

Drafting and responses:

  • Oct. 15, 2021: Deadline for state legislature to adopt its own plan.
  • Oct. 22, 2021: Deadline for the secretary of state to adopt a plan if the legislature fails to do so.
  • Nov. 19, 2021: Deadline for electors to object to new district plan.
  • Dec. 3, 2021: Deadline for the legislature, secretary of state, and others to respond.
  • Dec. 10, 2021: Deadline for the submission of reply briefs.

Judicial review and enactment:

  • Dec. 17, 2021: Deadline for the state supreme court to file its opinion approving of the redistricting plan.
  • Dec. 31, 2021: Deadline for the state supreme court to file opinion rejecting the redistricting plan.
  • Dec. 28, 2022: Deadline for the secretary of state to submit a revised plan.
  • Feb. 11, 2022: Deadline for the state supreme court to make final revisions to the redistricting plan.

Attorneys for state lawmakers said they support the court’s proposal: “Implementing this Court’s tentative amended deadlines is the least disruptive option, given the extraordinary Census data delay caused by the COVID-19 pandemic and is the only option that ensures that all of the parties responsible for reapportionment—including the Legislative Assembly—are able to exercise their constitutional role in the reapportionment process.” Fagan’s office opposed the proposal: “The Secretary supports initially using non-census data to draw maps that can subsequently be evaluated—and revised if necessary—in light of the census. The Secretary continues to believe that this approach will achieve the most timely and accurate solution to this difficult problem, without requiring this court to significantly rewrite the Oregon Constitution.”

  • Case name and number: Oregon ex rel. Kotek v. Fagan (S068364).

Federal courts in Georgia, Michigan strike down ballot access requirements for select candidates

On March 29, federal courts in Georgia and Michigan struck down ballot access requirements for select candidates. 

Georgia

On March 29, Judge Leigh Martin May, of the U.S. District Court for the Northern District of Georgia, struck down a Georgia law requiring minor-party and unaffiliated candidates for the U.S. House of Representatives to submit petitions signed by at least 5 percent of the district’s registered voters. May, a Barack Obama (D) appointee, ruled that this requirement “overburdens [voters’ and candidates’] rights to vote and to associate with their preferred political party, and so it violates the First and Fourteenth Amendments.”

In her order, May contrasted the 5% signature requirement for U.S. House candidates with the 1% requirement for statewide candidates, “The [Georgia] General Assembly has deemed a 1% petition signature requirement adequate to guard against ballot crowding and frivolous candidacies on a statewide basis. It is not immediately clear why candidates for non-statewide office must clear a proportionally higher hurdle, the 5% petition signature requirement. [The state] has not offered any explanation for this disparity.” 

May directed the plaintiffs (the Libertarian Party of Georgia) to submit a brief within three weeks on proposed remedies. The state will then have an opportunity to respond before May issues further guidance. 

Under the 5% signature requirement, originally enacted in 1943, no minor-party candidate for the U.S. House has qualified for the general election ballot. In 2020, minor-party or unaffiliated candidates would have needed between 19,777 and 26,539 signatures in order to qualify for the ballot (the number varied by congressional district). 

It is not clear whether the state will appeal the decision.

Michigan 

On March 29, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit affirmed a lower court decision striking down Michigan’s petition requirement for unaffiliated candidates for statewide office. Writing for the court, Karen Moore (a Bill Clinton (D) appointee) said, “[It] is our responsibility to ensure that Michigan’s provisions for qualifying independent candidates for statewide office fall within the bounds of what the First and Fourteenth Amendments require. Our careful review of the facts and circumstances leads us to conclude that the 30,000-signature requirement, geographic-distribution requirement, and filing deadline, when viewed in combination, unconstitutionally burden Plaintiffs’ First Amendment rights.” Judge Ronald Lee Gilman (also a Clinton appointee) joined Moore’s opinion. Judge Richard Griffin (a George W. Bush (R) appointee) dissented.

The district court had earlier reduced the petition signature requirement for unaffiliated statewide candidates to 12,000, an order the state appealed. The appellate court upheld the district court’s remedy, calling it a “workable interim provision.”

It is not clear whether the state intends to appeal the appellate panel’s decision.

  • Case name and number: Graveline v. Johnson (U:S District Court: 2:18-cv-12354; U.S. Court of Appeals: 0:20-cv-01337).

Legislation update: Redistricting, electoral systems, and primary systems bills 

Redistricting legislation: So far this year, we’ve tracked at least 120 redistricting-related bills up for consideration in state legislatures. 

Redistricting legislation in the United States, 2021 
Current as of April 7, 2021

Electoral systems legislation: So far this year, we’ve tracked at least 131 bills dealing with electoral systems that are up for consideration in state legislatures. 

Electoral systems legislation in the United States, 2021 
Current as of April 7, 2021

Primary systems legislation: So far this year, we’ve tracked at least 16 bills dealing with primary systems that are up for consideration in state legislatures. 

Primary systems legislation in the United States, 2021 
Current as of April 7, 2021



U.S. Census Bureau postpones release of apportionment report, redistricting data

Ballot Bulletin by Ballotpedia

On Jan. 27, Kathleen Styles, a U.S. Census Bureau official, announced that the bureau would deliver its final apportionment report by April 30. Styles also said the bureau hoped to release redistricting data after July 31. 

The U.S. census is conducted every 10 years and kickstarts the entire redistricting process. Under its original operational timeline, the census bureau was scheduled to deliver apportionment counts by Dec. 31, 2020, and redistricting data by March 31.

On June 16, 2020, in light of the coronavirus outbreak in the United States, the census bureau proposed postponing these statutory deadlines. However, Congress did not act on this proposal. Subsequent litigation over a Trump administration executive order to exclude “aliens who are not in a lawful immigration status under the Immigration and Nationality Act” from the final apportionment counts resulted in further delays. 

The U.S. Census and congressional reapportionment 

Article I, Section 2, of the U.S. Constitution requires that congressional representatives be apportioned to the states on the basis of population. There are 435 seats in the U.S. House of Representatives. Consequently, a state may gain seats in the House if its population grows or lose seats if its population decreases, relative to populations in other states. 

Arizona, Colorado, Florida, Montana, North Carolina, Oregon, and Texas are all expected to gain between one and three seats each. Meanwhile, Alabama, California, Illinois, Michigan, Minnesota, New York, Ohio, Pennsylvania, Rhode Island, and West Virginia are expected to lose seats. These estimates are subject to change. 

Federal law requires that congressional and state legislative districts have equal populations (as nearly as practicable). In order to meet this requirement, redistricting authorities rely on the detailed data provided by the census bureau. 

What comes next? 

It remains to be seen how most states will respond to this postponement. The question is especially pressing for New Jersey and Virginia, both of which conduct state legislative elections this year. 

At least two states – California and New Jersey – have already provided for adjustments to their respective redistricting schedules.

  • California: On July 17, 2020, the California Supreme Court unanimously ordered that the state extend its constitutional and statutory deadlines for congressional and state legislative redistricting by at least four months. The court directed the California Citizens Redistricting Commission to release draft district plans by Nov. 1, 2021, and final district plans by Dec. 15, 2021. The original deadlines were July 1, 2021, and Aug. 15, 2021, respectively. The court provided for further extensions if the federal government does not transmit the necessary data by July 31, 2021. 
  • New Jersey: On Nov. 3, 2020, New Jersey voters approved Public Question 3, a constitutional amendment postponing state legislative redistricting until after the Nov. 2, 2021, election if the census bureau failed to deliver redistricting data by Feb. 15, 2021. As a result, the existing legislative district maps will remain in force until 2023. The amendment also provides for postponements in future redistricting cycles if the federal government fails to deliver census data by Feb. 15. 

New York City uses ranked-choice voting for the first time since 1945

On Feb. 2, New York City held a special election for City Council District 24 using ranked-choice voting. This is the city’s first use of ranked-choice voting under a 2019 charter amendment providing for its use in select municipal primary and special elections. 

New York City previously used ranked-choice voting in city council elections between 1937 and 1945. 

2019 charter amendment

On Nov. 5, 2019, New York City voters approved a charter amendment providing for the use of ranked-choice voting in municipal primary and special elections for the following offices:

  • Mayor
  • Public advocate
  • Comptroller
  • Borough president
  • City council

Voters approved the charter amendment 73.6% to 26.4%. Now, voters can rank up to five candidates for a given office in order of preference. A candidate who wins a majority of first-preference votes wins the election outright. If no candidate wins a majority of first-preference votes, the candidate with the fewest first-preference votes is eliminated. First-preference votes cast for the failed candidate are eliminated, raising the second-preference choices indicated on those ballots. A new tally is conducted to determine whether any candidate has won a majority of the adjusted votes. The process repeats until a candidate wins an outright majority. 

What comes next? 

The city will conduct its June 22 primaries for mayor, city council, public advocate, and comptroller using ranked-choice voting. Additionally, the city has two special ranked-choice voting elections scheduled this year: City Council District 31 on Feb. 23 and City Council Districts 11 and 15 on March 23.

In other electoral systems news … 

On March 2, St. Louis, Missouri, will use approval voting in its primaries for mayor, comptroller, president of the Board of Aldermen, and the Board of Aldermen. 

Under its approval voting system, approved via a ballot initiative on Nov. 3, 2020, St. Louis voters can vote for one or more candidates in the primaries for the aforementioned offices. The top two vote-getters in each race will advance to the April 6 general election. 


Legislation update: Redistricting, electoral systems, and primary systems bills 

Redistricting legislation: So far this year, we’ve tracked at least 60 redistricting-related bills up for consideration in state legislatures. 

Redistricting legislation in the United States, 2021 
Current as of Feb. 2, 2021

Electoral systems legislation: So far this year, we’ve tracked at least 83 bills dealing with electoral systems that are up for consideration in state legislatures. 

Electoral systems legislation in the United States, 2021 
Current as of Feb. 2, 2021

Primary systems legislation: So far this year, we’ve tracked at least five bills dealing with primary systems that are up for consideration in state legislatures. 

Primary systems legislation in the United States, 2021 
Current as of Feb. 2, 2021



New York state court upholds ranked-choice voting for Feb. municipal special election in NYC

Ballot Bulletin by Ballotpedia

New York: State court upholds ranked-choice voting for Feb. municipal special election in NYC

On Dec. 16, 2020, a state trial court declined to block the implementation of ranked-choice voting in the municipal special election scheduled for Feb. 2. 

What’s at issue 

On Nov. 5, 2019, New York City voters approved a charter amendment providing for the use of ranked-choice voting in municipal primary and special elections for the following offices:

  • Mayor
  • Public advocate
  • Comptroller
  • Borough president
  • City council

Voters approved the charter amendment 73.61% to 26.39%. Now, voters can rank up to five candidates for a given office in order of preference. A candidate who wins a majority of first-preference votes wins the election outright. If no candidate wins a majority of first-preference votes, the candidate with the fewest first-preference votes is eliminated. First-preference votes cast for the failed candidate are eliminated, raising the second-preference choices indicated on those ballots. A new tally is conducted to determine whether any candidate has won a majority of the adjusted votes. The process repeats until a candidate wins an outright majority.

On Dec. 8, 2020, a group of plaintiffs, including several city council members, sued the New York City Board of Elections and the New York City Campaign Finance Board in the New York County Supreme Court, the trial court for Manhattan. The plaintiffs alleged the city’s “stated plan to use [ranked-choice voting] in violation of the City Charter’s requirements, if allowed to proceed, will deprive New York City’s limited-English proficient population of the right to vote for and elect candidates of their choice in violation of the Voting Rights Act.” The plaintiffs sought a temporary restraining order barring election officials from using ranked-choice voting, pending the development of a new rollout plan.

How the court ruled

On Dec. 16, Judge Carol Edmead rejected the plaintiffs’ request for a temporary restraining order. In her decision, Edmead first addressed questions over whether the court had jurisdiction to grant the plaintiffs’ requested remedy: 

As articulated by counsel for [the Defendants], CPLR § 6313(a) expressly provides that ‘[n]o temporary restraining order may be granted in an action…against a public officer, board or municipal corporation of the state to restrain the performance of statutory duties.’ Here, the Board of Elections is statutorily required by the New York City Charter §1057 (g) to use RCV with respect to ‘certain primary elections and elections for which nominations were made by independent nominating petitions,’ which would include the February 2, 2021 special election. As such, Defendants argue that this Court lacks jurisdiction to grant a stay. The Court notes that Plaintiffs do not concede that this Court lacks jurisdiction to grant an interim stay under CPLR § 6313(a) nor do they agree that this jurisdictional issue is not in dispute. However, as the issue of jurisdiction is yet unresolved, the Court is disinclined to grant an interim stay. 

Edmead also declined the plaintiffs’ request for an expedited hearing schedule: 

According to counsel for Defendants, the overseas ballots are scheduled to be dispersed in two days on December 18, 2020. The Court finds that it would be improvident to hold an expedited preliminary injunction hearing as it may delay the dispersing of the overseas ballots.

What comes next? 

On Dec. 17, 2020, the plaintiffs appealed Edmead’s decision to the Appellate Division of the Supreme Court of the State of New York, First Judicial Department. The appellate court has not yet taken any action on the appeal. 

The case name and number are Adams v. New York City (appellate court: pending; trial court: 160662/2020). 


Calif.: Appeals court affirms lower court ruling requiring district-based city council elections in Santa Clara

On Dec. 30, the California Sixth District Court of Appeal upheld a lower court’s ruling that Santa Clara’s at-large electoral system for city council seats violated the California Voting Rights Act. 

What’s at issue 

Section 14027 of the California Voting Rights Act provides that “an at-large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters who are members of a protected class.” 

On Dec. 27, 2017, five Asian-American residents of Santa Clara sued the city in the Santa Clara County Superior Court, alleging that the at-large election system for city council seats violated Section 14027 of the California Voting Rights Act. Asian-Americans are a protected class under Section 14026 of that act. 

On June 16, 2018, Judge Thomas E. Kuhnle ruled in favor of the plaintiffs, finding the city liable for violating the act. The defendants appealed Kuhnle’s decision to the Sixth District Court of Appeal, arguing Kuhnle had “erred as a matter of law in concluding that racially polarized voting in five of 10 city council elections satisfied the standard for a cognizable voting rights claim, which requires a showing that the majority voting bloc in Santa Clara’s electorate ‘usually’ voted to defeat the candidate preferred by Asian-American voters.” 

In their appeal, the defendants cited the U.S. Supreme Court’s 1986 decision in Thornburg v. Gingles, which established the following criteria for proving vote dilution claims under the federal Voting Rights Act: 

  1. A minority group must demonstrate that it is large and compact enough to constitute a majority in a single-member district.
  2. A minority group must demonstrate that it is politically cohesive.
  3. A minority group must demonstrate that the majority group usually votes as a group to defeat the minority group’s preferred candidate.

The Sixth District heard oral argument in the case on Dec. 17, 2020. 

How the court ruled

A three-judge panel of the Sixth District unanimously affirmed the lower court’s decision. Judge Eugene Premo wrote the court’s opinion, which Judges Franklin Elia and Allison M. Danner joined. 

The City argues that apart from case law, simple logic contravenes the trial court’s application of the third Gingles factor. The City asserts that just as ‘[n]o one would say that a flipped coin “usually” lands on heads, because it is equally likely to land on tails,’ it cannot be said that Santa Clara’s city council elections are ‘usually’ characterized by racially polarized voting after the trial court found that to be true in only five of 10 elections. We find the City’s reasoning is sound in theory but flawed in practice. It ignores that whether a majority voting block is ‘usually’ able to defeat a cohesive minority group’s preferred candidate per Gingles third factor is not measured by mathematical formula but by the trial court’s searching assessment of statistical and other evidence presented. … It follows that the ‘usually’ threshold stated in the third Gingles factor does not as a matter of law preclude a determination of racially polarized voting when the factual findings point to an equal number of polarized and non-polarized elections over time.

Premo and Elia are Gov. George Deukmejian (R) appointees. Danner is a Gov. Jerry Brown (D) appointee. 

What comes next? 

Santa Clara City Attorney Brian Doyle said he was “obviously and understandably disappointed in the ruling.” He did not say whether the city would appeal the decision further.  

The case name and number are Yumori-Kaku et al. v. City of Santa Clara (appellate court: H046105; trial court: CV319862). 


Looking ahead: election policy legislation in 2021

With a new year underway, and state legislatures nationwide convening sessions over the next several weeks, let’s take a preliminary look at what kinds of election policy bills will be up for consideration this year.

Redistricting legislation: So far this year, we’ve tracked at least 16 redistricting-related bills up for consideration in state legislatures: four in New Jersey; three in New York; two each in Tennessee, Texas, Virginia, and Washington; and one in Indiana. 

Redistricting legislation in the United States, 2021 
Current as of Jan. 5, 2021

Electoral systems legislation: So far this year, we’ve tracked at least 22 bills dealing with electoral systems that are up for consideration in state legislatures: eight in New Jersey; three each in New York, Missouri, and Virginia; and one each in Florida, Oklahoma, South Carolina, Texas, and Utah. 

Electoral systems legislation in the United States, 2021 
Current as of Jan. 5, 2021

Primary systems legislation: So far this year, we’ve tracked at least two bills dealing with primary systems that are up for consideration in state legislatures: one each in New Jersey and Virginia. 

Primary systems legislation in the United States, 2021 
Current as of Jan. 5, 2021



Ballot Bulletin: Thirty-seven states, D.C. certify their election results

Ballot Bulletin by Ballotpedia

As of Dec. 2, 37 states and the District of Columbia have certified their election results. What does this mean, and how does it relate to the finalization of the presidential election? We tackle those questions in this week’s edition. 

What it means for election results to be certified 

The election results states and localities report after polls close on Election Day are preliminary returns. These initial counts are not the official results of the election. First, election officials at the local and state levels must canvass the returns to verify that each ballot cast in the election has been correctly counted. When the canvass is completed, officials must certify, or make official, the results of the election. 

Canvassing and certification are interrelated processes, and the terms are sometimes used interchangeably. We are focusing on the certification process specifically. 

States that have certified their results

To date, 37 states and the District of Columbia have certified their election results. These states are shaded blue on the map below.

These states have a total of 316 Electoral College electors, 148 of whom are pledged to President-elect Joe Biden (D). The remainder (168) are pledged to President Donald Trump (R).

What comes next? 

The following states will certify their results in the next two weeks. Certification deadlines, where available, are provided (as are Electoral College votes and projected winners):  

  • California: Dec. 11 (55; Biden)
  • Connecticut: Dec. 3 (7; Biden)
  • Hawaii: Not specified (4; Biden)
  • Illinois: Dec. 4 (20; Biden)
  • Maryland: Dec. 8 (10; Biden)
  • Missouri: Dec. 8 (10; Trump)
  • New Jersey: Dec. 8 (14; Biden)
  • New York: Dec. 7 (29; Biden)
  • Oregon: Dec. 3 (7; Biden)
  • Tennessee: Not specified (11; Trump)
  • Texas: Dec. 3 (38; Trump)
  • Washington:Dec. 3 (12; Biden)
  • West Virginia: Dec. 3 (5; Trump)

Federal law requires states to appoint their slates of Electoral College electors and settle any disputes related to the presidential election by Dec. 8. This is referred to as the safe-harbor provision

The 538 members of the Electoral College will meet in their respective state capitals on Dec. 14 to cast their votes. On Jan. 6, 2021, the newly elected Congress convenes in a joint session to count the electoral votes. 

Members of Congress can object to the results. If both a House and Senate member make a written objection to a state’s results, Congress will debate and vote on the objection’s merit. Electoral votes can be excluded only if both chambers vote to accept the objection. If a ticket receives 270 electoral votes(a majority of the 538 members of the Electoral College)the vice president (acting as Senate president) formally declares that individual winner of the election. 

For more information about these key dates and deadlines, see this article


Litigation update: Donald J. Trump for President, Inc. v. Boockvar


On Nov. 27, a three-judge panel of the U.S. Court of Appeals for the Third Circuit unanimously declined to postpone certification of the state’s election results, rejecting the Trump campaign’s claims of widespread voting irregularities.

What’s at issue, and how the lower court ruled 

On Nov. 9, the Trump campaign sued Secretary of the Commonwealth Kathy Boockvar (D) and several county-level officials, alleging multiple violations of the state election code and the U.S. Constitution. In their complaint, attorneys for the campaign said:

Plaintiffs seek an emergency order prohibiting Defendants from certifying the results of the General Election. In the alternative, Plaintiffs seek an emergency order prohibiting Defendants from certifying any results from the General Election that included the tabulation of absentee and mail-in ballots which do not comply with the Election Code, including, without limitation, the tabulation of absentee and mail-in ballots Trump Campaign’s watchers were prevented from observing or based on the tabulation of invalidly cast absentee and mail-in ballots which (i) lack a secrecy envelope, or contain on that envelope any text, mark, or symbol which reveals the elector’s identity, political affiliation, or candidate preference, (ii) do not include on the outside envelope a completed declaration that is dated and signed by the elector, or (iii) are delivered in-person by third parties for non-disabled voters. Lastly and in addition to the alternative requests for relief, Plaintiffs seek a permanent injunction requiring the County Election Boards to invalidate ballots cast by voters who were notified and given an opportunity to cure their invalidly cast mail-in ballot.

U.S. District Court Judge Matthew Brann heard oral arguments on Nov. 17. On Nov. 21, Brann dismissed the lawsuit, finding that the Trump campaign had presented “strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.”

On Nov. 22, the Trump campaign appealed Brann’s decision to the Third Circuit, asking that the court postpone the certification of election results pending further court proceedings. The Third Circuit set an expedited schedule for considering the appeal.

How the court ruled 

On Nov. 27, a three-judge panel of the Third Circuit unanimously denied the Trump campaign’s request. Judge Stephanos Bibas (a Trump appointee) wrote for the court:

The campaign’s claims have no merit. The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too. That remedy would be grossly disproportionate to the procedural challenges raised. So we deny the motion for an injunction pending appeal.

Judges Brooks Smith and Michael Chagares, both George W. Bush (R) appointees,  joined Bibas’ opinion. 

What comes next? 
Attorneys for the Trump campaign said they intended to appeal the Third Circuit’s decision to the U.S. Supreme Court. A formal filing had not been made as of Dec. 2.



In wake of election, 25 lawsuits filed over election’s conduct



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Post-election lawsuits have been filed in five states
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Welcome to The Ballot Bulletin, where we track developments in election policy at the federal, state, and local levels. Each issue includes an in-depth feature—such as an interview or legislative analysis—and discussions of recent events relating to electoral and primary systems, redistricting, and voting provisions.

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In wake of election, 25 lawsuits filed over election’s conduct

In the week since Election Day, 25 lawsuits disputing some aspect of the election’s conduct have been filed. President Donald Trump’s (R) campaign organization has filed 15 of those lawsuits.

What are the issues? 

Post-election lawsuits can involve three broad issues:

  • Counting procedures: Lawsuits over counting procedures challenge some aspect of a jurisdiction’s procedures for processing, verifying, or counting ballots. These challenges most often apply to absentee/mail-in ballots, but they can also involve ballots cast in person. Thirteen post-election lawsuits – 54 percent of the total  – involve disputes over counting procedures. 
  • Ballot/voter challenges: Lawsuits can also challenge the validity of groups of ballots, or the eligibility of groups of voters. These challenges generally seek to invalidate or remove disputed ballots from the final count. Eleven post-election lawsuits – 46 percent of the total – are ballot/voter challenges. 
  • Recount disputes: If a formal recount is conducted, one of the parties involved in the process can file a lawsuit challenging its conduct. No lawsuits over recount procedures have been filed.

Where have lawsuits been filed?

Post-election lawsuits have been filed in five states: Arizona, Georgia, Michigan, Nevada, and Pennsylvania.

  • Arizona: 2 lawsuits
  • Georgia: 1 lawsuit
  • Michigan: 5 lawsuits
  • Nevada: 3 lawsuits
  • Pennsylvania: 13 lawsuits

Trump campaign lawsuits 

Since Election Day, the Trump campaign has filed 15 lawsuits: one in Arizona, one in Georgia, two in Michigan, two in Nevada, and nine in Pennsylvania.

Arizona: 1 lawsuit

  • Donald J. Trump for President, Inc. v. Hobbs
    • Court: Maricopa County Superior Court
    • Issue: Whether ballots with facial irregularities (e.g., apparent overvotes, stray markings, etc.) cast in-person on Election Day were illegally disqualified without additional review.
    • Outcome: Pending

Georgia: 1 lawsuit

  • In re: enforcement of election laws and securing ballots cast or received after 7:00 P.M. on November 3, 2020
    • Court: Chatham County Superior Court
    • Issue: Whether absentee/mail-in ballots received after the statutory receipt deadline had been illegally accepted and mixed with ballots received before the deadline.
    • Outcome: On Nov. 5, Judge James F. Bass, Jr., dismissed the lawsuit: “[The] Court finds that there is no evidence that the ballots referenced in the petition were received after 7:00 p.m. on Election Day, thereby making those ballots invalid. Additionally, there is no evidence that the Chatham County Board of Elections or the Chatham County Board of Registrars has failed to comply with the law.”

Michigan: 2 lawsuits (1 original lawsuit and 1 appeal)

  • Donald J. Trump for President, Inc. v. Benson
    • Court: Michigan Court of Appeals (lower court: Michigan Court of Claims)
    • Issue: Whether an election challenger was illegally prevented from participating in the absentee/mail-in ballot review process.
    • Outcome: On Nov. 6, Judge Cynthia Stephens denied the campaign’s request to suspend the processing and counting of absentee/mail-in ballots, citing “problems with the factual and evidentiary record.” The campaign appealed Stephens’ decision to the Michigan Court of Appeals.

Nevada: 2 lawsuits (1 original lawsuit and 1 appeal)

  • Kraus v. Cegavske (Donald J. Trump for President, Inc. v. Gloria in the lower court)
    • Court: Nevada Supreme Court (lower court: Clark County District Court)
    • Issue: Whether Clark County election officials could use artificial intelligence to verify mail-in ballot signatures and make copies of ballots whose originals could not be machine-processed.
    • Outcome: On Nov. 3, the Nevada Supreme Court declined to block a lower court’s order allowing the Clark County registrar to use artificial intelligence to verify mail-in ballot signatures and make copies of ballots whose originals could not be machine-processed. The state supreme court found that the campaign had not demonstrated “a sufficient likelihood of success to merit a stay or injunction.” The court has not issued a ruling on the merits.

Pennsylvania: 9 lawsuits (6 original lawsuits and 3 appeals)

  • Donald J. Trump for President, Inc. v. Boockvar
    • Court: U.S. District Court for the Middle District of Pennsylvania
    • Issue: Whether some absentee and mail-in ballots were accepted and counted in violation of state law, and whether those ballots should be stricken from the count.
    • Outcome: Pending
  • Donald J. Trump for President, Inc. v. Boockvar
    • Court: Pennsylvania Commonwealth Court
    • Issue: Whether the secretary of the commonwealth illegally extended the deadline for mail-in voters to provide missing proof of identification after submitting their ballots.
    • Outcome: On Nov. 5, Judge Mary Hannah Leavitt ordered election officials to “segregate ballots for which identification is received and verified on Nov. 10, 11, and 12 from ballots for which identification is received and verified on or before Nov. 9.” Leavitt has not issued a ruling on the merits.
  • Donald J. Trump for President, Inc. v. Philadelphia County Board of Elections
    • Court: U.S. District Court for the Eastern District of Pennsylvania
    • Issue: Whether the Philadelphia County Board of Elections violated state law and the U.S. Constitution and declined to allow watchers for the Trump campaign and the Republican Party to observe the mail-in ballot counting process.
    • Outcome: The parties to the lawsuit agreed to allow 60 observers each from the Democratic and Republican parties. On Nov. 5, the court dismissed the lawsuit as moot in light of this agreement.
  • In re: canvass of absentee and mail-in ballots of November 3, 2020, general election
    • Court: Montgomery County Court of Common Pleas
    • Issue: Whether Montgomery County election officials illegally counted approximately 600 absentee and mail-in ballots for which the outer envelope declaration had not been filled out.
    • Outcome: Pending
  • In re: canvassing observation; Appeal of: Donald J. Trump for President, Inc.
    • Court: Pennsylvania Supreme Court (on appeal from the Pennsylvania Commonwealth Court; lower court: Philadelphia County Court of Common Pleas)
    • Issue: Whether candidates and their representatives can observe aspects of the canvassing process from within 6 feet of election workers.
    • Outcome: On Nov. 5, Pennsylvania Commonwealth Court Judge Christine Fizzano Cannon ordered the Philadelphia Board of Elections to allow “all candidates, watchers, or candidate representatives … [to be] permitted to observe all aspects of the canvassing process within 6 feet, while adhering to all COVID-19 protocols, including wearing masks and maintaining social distancing.” Cannon overturned a Philadelphia County Court of Common Pleas ruling, which had upheld a rule requiring observations to take place with at least 6 feet separating the observer from the election worker. Democrats appealed Cannon’s ruling to the state supreme court.
  • In re: pre-canvass of absentee and mail-in ballots of November 3, 2020, general election
    • Court: Bucks County Court of Common Pleas
    • Issue: Whether the Bucks County Board of Elections violated state law by allowing the disclosure of voter identification information for mail-in ballots voided during the pre-canvass meeting prior to the close of polls .
    • Outcome: Pending
  • Republican Party of Pennsylvania v. Boockvar
    • Court: U.S. Supreme Court
    • Issue: Whether a state supreme court order extending the mail-in ballot receipt deadline to Nov. 6, overriding the statutory receipt deadline of Nov. 3, was legal.
    • Outcome: Associate Justice Samuel Alito ordered county election officials to segregate and separately count mail-in ballots received between 8 p.m. on Nov. 3 and 5 p.m. on Nov. 6. He referred the matter to the full court, which has not issued a ruling on the merits.


Absentee/mail-in voting modifications in the general election

With the general election over, let’s take a look back at the modifications states made to their absentee/mail-in voting procedures in light of the COVID-19 pandemic.

All told, 37 states modified their absentee/mail-in voting procedures for the general election. These modifications can be divided into the following five broad categories:

  • Automatic absentee/mail-in ballots: Five states (California, Montana, Nevada, New Jersey, and Vermont) automatically sent absentee/mail-in ballots automatically to all eligible voters. These states are shaded in yellow in the map below.
  • Automatic mail-in ballot applications: Eleven states (Connecticut, Delaware, Illinois, Iowa, Maryland, Michigan, Nebraska, New Mexico, Rhode Island, South Dakota, and Wisconsin) automatically sent absentee/mail-in ballot applications automatically to all eligible voters. These states are shaded in dark blue in the map below.
  • Eligibility expansions: Twelve states (Alabama, Arkansas, Kentucky, Louisiana, Massachusetts, Missouri, New Hampshire, New York, Oklahoma, South Carolina, Tennessee, and West Virginia) expanded absentee/mail-in voting eligibility. These states are shaded in light blue in the map below.
  • Deadline extensions: Five states (Maine, Minnesota, Mississippi, North Carolina, and Pennsylvania) extended absentee/mail-in ballot application or submission deadlines. These states are shaded in dark gray in the map below.
  • Other process changes: Four states (Alaska, Ohio, Texas, and Virginia) made other modifications to their absentee/mail-in ballot procedures. These states are shaded in gray in the map below.


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Zuckerberg, Chan donate an additional $100 million for state, local election administration efforts

On Oct. 13, Facebook CEO Mark Zuckerberg and his wife, Dr. Priscilla Chan, announced they would donate an additional $100 million to the Center for Tech and Civic Life. In a Facebook post announcing the grants, Zuckerberg said the money was intended “to support election officials with the infrastructure they need to administer the vote – including voting equipment, PPE for poll workers and hiring additional poll staff.”

In total, Zuckerberg and Chan have donated $350 million to the Center for Tech and Civic Life. They have also donated $50 million to the Center for Election Innovation and Research, saying the money was intended to help “election officials across the nation reach their voters with critical information about voter registration, mail voting, early voting, polling locations and hours, and the vote-counting process.”

About the Center for Tech and Civic Life and the Center for Election Innovation and Research

The Center for Tech and Civic Life (CTCL) describes itself as “a nonpartisan nonprofit that uses technology to improve the way local governments and communities interact.” The nonprofit Center for Election Innovation and Research (CEIR) says its mission is “to build voter trust and confidence, increase voter participation, and improve the efficiency of election administration.”

Both CTCL and CEIR are organized under Section 501(c)(3) of the Internal Revenue Code, which exempts charitable, religious, and educational organizations from federal income tax. These and other nonprofits must submit regular financial disclosure reports to the Internal Revenue Service. According to CTCL’s 2019 disclosure, the group had $1,414,981 in revenues and spent $1,119,630 in 2018. CEIR had $890,647 revenues and spent $515,837 in 2017 (the most recent year for which information is available).

About the donation and grants

CTCL is regranting its funds “to local election jurisdictions across the country to help ensure that they have the staffing, training, and equipment necessary so that this November every eligible voter can participate in a safe and timely way and that their vote is counted.” CTCL says these grants will be used to support:

  • Poll worker recruitment, training, and hazard pay
  • Polling place rental
  • Temporary staffing
  • Drive-through voting
  • Ballot processing equipment
  • Personal protective equipment for poll workers
  • Nonpartisan voter education

As of Oct. 8, CTCL had received more than 2,100 grant applications. Every eligible, legitimate election department that applies for a grant will receive one. The minimum grant amount is $5,000. Nearly 800 election departments covering jurisdictions with between 5,001 and 25,000 registered voters applied for grants. Election departments with fewer than 5,001 registered voters submitted nearly 700 applications, and election departments with between 25,001 and 100,000 registered voters submitted almost 800 applications. The remainder of applications came from larger jurisdictions.

What are the reactions?

Legal challenges

The Thomas More Society has filed lawsuits in Michigan, Minnesota, Pennsylvania, Wisconsin, Georgia, and Iowa in an attempt to block election administrators from accepting or using the grant funds. The group describes itself as a “national public interest law firm dedicated to restoring respect in law for life, family, and religious liberty.” Phill Kline, director of the group’s Amistad Project, said, “Privatizing the management of elections undermines the integrity of our elections because private donors may dictate where and how hundreds of millions of dollars will be managed in these states.”

On Oct. 14, Judge William Griesbach of the U.S. District Court for the Eastern District of Wisconsin declined to intervene and block several Wisconsin cities (including Green Bay, Kenosha, Madison, Milwaukee, and Racine) from accepting the grants.

Griesbach wrote, “The risk of skewing an election by providing additional private funding for conducting the election in certain areas of the State may be real. The record before the Court, however, does not provide the support needed for the Court to make such a determination, especially in light of the fact that over 100 additional Wisconsin municipalities received grants as well. Plaintiffs argue that the receipt of private funds for public elections also gives an appearance of impropriety. This may be true, as well. These are all matters that may merit a legislative response but the Court finds nothing in the statutes Plaintiffs cite, either directly or indirectly, that can be fairly construed as prohibiting the defendant Cities from accepting funds from CTCL.” Griesbach is a George W. Bush (R) appointee.

Lawsuits in the other states are pending.

State legislation

On Sept. 29, Rep. Blake Miguez (R) introduced HB 51 in the Louisiana House of Representatives. HB 51 would prohibit state and local election officials from accepting or using private donations “for the purpose of funding election-related expenses during a declared state of emergency.”

On Oct. 13, the House voted 68-28 in favor of HB 51. Sixty-six Republicans, one Democrat, and one independent voted for the bill. Twenty-eight Democrats voted against it. The bill is pending in the Senate Committee on Senate and Government Affairs. A hearing is scheduled for Oct. 21.

Absentee/mail-in voting modifications since our last issue

Since our Oct. 7 edition, we’ve tracked the following absentee/mail-in voting modifications:

  • Alabama: On Oct. 13, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit reversed a district court order suspending Alabama’s witness requirement for absentee/mail-in voters with underlying medical conditions. The panel also reversed the lower court’s order waiving photo identification requirements for voters 65 and older.
  • Alaska: On Oct. 12, the Alaska Supreme Court affirmed a lower court’s order suspending the state’s witness requirement for absentee/mail-in ballots.
  • Indiana: On Oct. 13, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit stayed a lower court’s order that had extended Indiana’s return deadlines for absentee/mail-in ballots. As a result, the original receipt deadline (noon on Election Day) was reinstated.
  • Michigan: On Oct. 16, a three-judge panel of the Michigan Court of Appeals reversed a lower court order that had extended Michigan’s receipt deadline for absentee/mail-in ballots. The appellate panel reinstated the original receipt deadline: 8 p.m. on Election Day.
  • Missouri: On Oct. 9, Judge Brian C. Wimes of the U.S. District Court for the Western District of Missouri issued an order requiring Missouri election authorities to accept mail-in ballots returned in person. However, on Oct. 10, Wimes stayed his order pending appeal, leaving the requirement that mail-in ballots be returned by mail in place.
  • North Carolina: On Oct. 19, the North Carolina State Board of Elections directed counties to accept absentee/mail-in ballots received by 5 p.m. on Nov. 12 and postmarked on or before Election Day. The state board of elections also issued new guidance on how voters can resolve problems with their absentee/mail-in ballots.
  • Ohio: On Oct. 9, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit stayed a district court’s order directing Secretary of State Frank LaRose (R) to allow counties to install absentee/mail-in ballot drop boxes at locations other than election board offices. As a result, LaRose’s initial order limiting drop boxes to one site per county was reinstated.
  • Pennsylvania: On Oct. 19, the U.S. Supreme Court declined to block the Pennsylvania Supreme Court’s order extending the receipt deadline for mail-in ballots to Nov. 6 for ballots postmarked on or before Election Day.
  • Tennessee: On Oct. 19, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit unanimously upheld a district court decision that temporarily suspended a Tennessee law requiring first-time voters to vote in person.
  • Texas: On Oct. 12, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit unanimously upheld Gov. Greg Abbott’s (R) order restricting the number of absentee/mail-in ballot return locations to one per county.
  • Wisconsin: On Oct. 8, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit voted 2-1 to stay a lower court order that had extended registration and absentee/mail-in ballot return deadlines in Wisconsin.

To date, 37 states have modified their absentee/mail-in voting procedures for the general election. These modifications can be divided into the following five broad categories:

  • Automatic absentee/mail-in ballots: Five states (California, Montana, Nevada, New Jersey, and Vermont) automatically sent absentee/mail-in ballots automatically to all eligible voters in the general election. These states are shaded in yellow in the map below.
  • Automatic mail-in ballot applications: Eleven states (Connecticut, Delaware, Illinois, Iowa, Maryland, Michigan, Nebraska, New Mexico, Rhode Island, South Dakota, and Wisconsin) automatically sent absentee/mail-in ballot applications automatically to all eligible voters in the general election. These states are shaded in dark blue in the map below.
  • Eligibility expansions: Twelve states (Alabama, Arkansas, Kentucky, Louisiana, Massachusetts, Missouri, New Hampshire, New York, Oklahoma, South Carolina, Tennessee, and West Virginia) either have expanded absentee/mail-in voting eligibility in the general election. These states are shaded in light blue in the map below.
  • Deadline extensions: Five states (Maine, Minnesota, Mississippi, North Carolina, and Pennsylvania) have extended absentee/mail-in ballot application or submission deadlines in the general election. These states are shaded in dark gray in the map below.
  • Other process changes: Four states (Alaska, Ohio, Texas, and Virginia) have made other modifications to their absentee/mail-in ballot procedures in the general election. These states are shaded in gray in the map below.
M3Ydp-general-election-absentee-mail-in-voting-procedure-modifications (1).png

The following states have made other modifications to their voting procedures in the general election:

  • Arizona: On Oct. 13, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed a lower court’s order that had extended Arizona’s voter registration deadline. The court set Oct. 15 as the new registration deadline.
  • Virginia: On Oct. 14, Judge John A. Gibney of the U.S. District Court for the Eastern District of Virginia ordered that Virginia’s voter registration deadline be extended from Oct. 13 to Oct. 15.

Redistricting developments since our last issue

Since our Oct. 7 edition, we’ve tracked the following redistricting-related developments.

  • On Oct. 16, the U.S. Supreme Court accepted Trump v. New York for expedited review and scheduled oral argument for Nov. 30. The case originated in the U.S. District Court for the Southern District of New York. It concerns congressional apportionment following the 2020 U.S. census. The U.S. government is asking the Supreme Court to decide if the president can order the secretary of commerce to exclude individuals residing unlawfully in the U.S. from the census’ apportionment base.
    • On July 21, President Donald Trump (R) issued a memorandum directing U.S. Secretary of Commerce Wilbur Ross to exclude individuals living unlawfully in the U.S. from the census apportionment base. A group of state and local governments filed suit against the federal government, arguing the policy violates the U.S. Constitution and laws governing the census and apportionment. The federal government argued that (1), the court did not have jurisdiction to review the claims, and (2), the policy is legal. The district court ruled in favor of the plaintiffs, finding the president had exceeded his authority in issuing the memorandum. The federal government appealed this decision directly to the U.S. Supreme Court.
    • The federal government has presented the following two questions to the high court:
      • Does the group of state and local governments have the legal right—or standing—to challenge the memorandum?
      • Does the president have the authority to exclude individuals unlawfully residing in the U.S. from the apportionment base?

Litigation and legislation tracking

Litigation

To date, we have tracked 397 lawsuits and/or court orders involving election policy issues and the Covid-19 outbreak. Changes to election dates, procedures, and administration in response to the coronavirus (COVID-19) pandemic, 2020#Relevant litigationClick here to view the complete list of lawsuits and court orders.

Legislation

To date, we have tracked 341 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.

Legislation related to elections and COVID-19, 2020

COVID-19 election bills October 21.png


In North Carolina, South Carolina, overlapping court orders modify absentee/mail-in procedures

With 27 days until Election Day, overlapping court orders in North Carolina and South Carolina have modified absentee/mail-in voting procedures.

North Carolina

On Sept. 22, the North Carolina State Board of Elections announced a series of proposed modifications to the state’s absentee/mail-in voting procedures:

  • Absentee/mail-in ballot receipt deadline extended to 5 p.m. on Nov. 12 for ballots postmarked on or before Election Day.
  • Voters allowed to submit affidavits to their county election boards to cure the following ballot issues:
    • Voter failed to sign return paperwork, or signed in the incorrect place.
    • Witness or assistant did not print name on return paperwork.
    • Witness or assistant did not print address on return paperwork.
    • Witness or assistant failed to sign return paperwork, or signed in the incorrect place.

The modifications resulted from a settlement between the state board of elections and the North Carolina Alliance for Retired Americans.

On Oct. 2, Judge Bryan Collins of the Wake County Superior Court approved the terms of the settlement.

However, on Oct. 3, Judge James Dever of the U.S. District Court for the Eastern District of North Carolina issued a temporary restraining order blocking the settlement. Dever also consolidated three related federal lawsuits involving the state’s absentee/mail-in voting procedures and transferred them to Judge William Osteen of the U.S. District Court for the Middle District of North Carolina.

What happens now? Dever’s temporary restraining order is scheduled to expire Oct. 16.

As of Oct. 4, the state had classified 7,272 absentee/mail-in ballots as “pending cure,” meaning that these ballots are missing some required information. These ballots would be subject to the curing provisions of the settlement agreement if it stands. According to ABC News, county elections officials have been instructed to tell voters who inquire about the status of their ballots, “Currently the cure process is being considered by the courts. We will contact you soon with more information.”

South Carolina

On Sept. 18, Judge J. Michelle Childs of the U.S. District Court for the District of South Carolina issued an order suspending South Carolina’s witness requirement for absentee/mail-in ballots. Childs is a Barack Obama (D) appointee.

That decision was appealed to a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit. On Sept. 24, the panel voted 2-1 to reverse Child’s order, reinstating the witness requirement. Judges Harvie Wilkinson and Steven Agee, Ronald Reagan (R) and George W. Bush (R) appointees, respectively, voted to reverse. Judge Robert King, a Bill Clinton (D) appointee, dissented.

The panel’s decision was appealed to the Fourth Circuit sitting en banc. The Fourth Circuit reversed the panel’s decision, suspending the witness requirement again. The vote was 9-5.

On Oct. 5, the U.S. Supreme Court reinstated the witness requirement. The court issued its order without noted dissent.

What happens now? The Supreme Court exempted ballots cast before it issued its order and those received within two days of the order. Absentee/mail-in ballots cast after that time will be subject to the reinstated witness requirement.

Political context

North Carolina is a battleground in the presidential contest. In the 2016 election, Donald Trump (R) defeated Hillary Clinton (D) in North Carolina 49.8-46.2 percent. Mitt Romney (R) carried North Carolina in 2012, defeating incumbent Barack Obama (D) 50.4-48.4 percent. Barack Obama (D) won North Carolina in 2008, defeating John McCain (R) 49.7-49.4 percent.

Although South Carolina is not considered a presidential battleground state, it does feature one battleground congressional contest: the election for South Carolina’s 1st District. Incumbent Joe Cunningham (D) was first elected in 2018, defeating Katie Arrington 51-49 percent. The U.S. Senate race between incumbent Lindsey Graham (R) and Jaime Harrison (D) is also expected to be competitive.

Absentee/mail-in voting modifications since our last issue

Since our Sept. 23 edition, we’ve tracked the following absentee/mail-in voting modifications:

  • Alabama: On Sept. 30, Judge Abdul Kallon of the U.S. District Court for the Northern District of Alabama issued a ruling that made a number of modifications to Alabama’s voting laws, including waiving the absentee/mail-in ballot witness/notary requirement for voters with underlying medical conditions.
  • Arizona: On Oct 5., Judge Steven Logan of the U.S. District Court for the District of Arizona ordered that the state’s voter registration deadline be extended to 5 p.m. on Oct. 23.
  • Georgia: On Oct. 2, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit reinstated Georgia’s Nov. 3 receipt deadlines for absentee/mail-in ballots.
  • Indiana: On Sept. 29, Judge Sarah Barker of the U.S. District Court for the Southern District of Indiana issued an order extending the postmark and receipt deadline for absentee/mail-in ballots in Indiana to Nov. 3 and Nov. 13, respectively.
  • Iowa:
    • On Sept. 25, state legislators approved an emergency directive, requested by Secretary of State Paul Pate (R), authorizing counties to begin processing absentee/mail-in ballots on Oct. 31, the Saturday before Election Day.
    • On Oct. 5, Judge Robert Hanson of the Polk County District Court issued an order allowing Iowa counties to send voters absentee/mail-in ballot applications with pre-filled personal information.
  • Ohio:
    • On Oct. 2, a three-judge panel of the Ohio 10th District Court of Appeals ruled that Secretary of State Frank LaRose (R) could direct counties to offer multiple drop-box locations for returning absentee/mail-in ballots. The panel stopped short of requiring LaRose to do so, overturning a lower court decision to that effect.
    • On Oct. 5, Ohio Secretary of State Frank LaRose (R) announced counties would be allowed to offer multiple drop-off options for returning absentee/mail-in ballots. LaRose said these options would be restricted to one site per county.
  • Texas: On Oct. 1, Gov. Greg Abbott (R) issued a proclamation limiting the number of return locations for absentee/mail-in ballots to one per county.
  • Wisconsin: On Sept. 29, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit affirmed a district court decision extending the online and mail voter registration deadline to Oct. 21 and the absentee/mail-in ballot return postmark and receipt deadlines to Nov. 3 and Nov. 9, respectively.

To date, 38 states have modified their absentee/mail-in voting procedures for the general election. These modifications can be divided into the following five broad categories:

  • Automatic mail-in ballots: Five states (California, Montana, Nevada, New Jersey, and Vermont) are automatically sending absentee/mail-in ballots to all eligible voters in the general election. These states are shaded in yellow in the map below.
  • Automatic mail-in ballot applications: Eleven states (Connecticut, Delaware, Illinois, Iowa, Maryland, Michigan, Nebraska, New Mexico, Rhode Island, South Dakota, and Wisconsin) are automatically sending absentee/mail-in ballot applications to all eligible voters in the general election. These states are shaded in dark blue in the map below.
  • Eligibility expansions: Twelve states (Alabama, Arkansas, Kentucky, Louisiana, Massachusetts, Missouri, New Hampshire, New York, Oklahoma, South Carolina, Tennessee, and West Virginia) have expanded absentee/mail-in voting eligibility in the general election. These states are shaded in light blue in the map below.
  • Deadline extensions: Five states (Indiana, Maine, Minnesota, Mississippi, and Pennsylvania) have extended absentee/mail-in ballot application or return deadlines in the general election. These states are shaded in dark gray in the map below.
  • Other process changes: Five states (Arizona, North Carolina, Ohio, Texas, and Virginia) have made other modifications to its absentee/mail-in ballot procedures for the general election. These states are shaded in gray in the map below.
M3Ydp-general-election-absentee-mail-in-voting-procedure-modifications.png

Redistricting developments since our last issue

Since our Sept. 23 edition, we’ve tracked the following redistricting-related developments.

  • On Sept. 30, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit declined to block a lower court’s order barring the U.S. Census Bureau from concluding field operations on Sept. 30.
    • The federal government had asked the Ninth Circuit for a stay after Judge Lucy Koh of the U.S. District Court for the Northern District of California ordered the Census Bureau to continue counting through Oct. 31.
  • Judge Johnnie B. Rawlinson, a Bill Clinton (D) appointee, wrote for the court. Judge Morgan Christen, a Barack Obama (D) appointee, joined Rawlinson in the ruling.
    • “Given the extraordinary importance of the census, it is imperative that the Bureau conduct the census in a manner that is most likely to produce a workable report in which the public can have confidence. The Bureau must account for its competing constitutional and statutory obligation to produce a fair and accurate census report. The hasty and unexplained changes to the Bureau’s operations contained in the Replan, created in just 4 to 5 days, risks undermining the Bureau’s mission.”
  • Judge Patrick J. Bumatay, a Donald Trump (R) appointee, dissented.
  • The legal deadline for delivering census results to the president is Dec. 31. The Census Bureau had initially asked Congress to extend this deadline to April 2021. The House has approved this extension, but the Senate has not.

Litigation tracking

To date, we have tracked 256 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent developments in this area. Click here to view the complete list of lawsuits and court orders.

This week, we turn our attention to Texas Alliance for Retired Americans v. Hughs.

  • Case name: Texas Alliance for Retired Americans v. Hughs
  • Case number: 20-40643
  • State of origin: Texas
  • Court: U.S. Court of Appeals for the Fifth Circuit, U.S. District Court for the Southern District of Texas
  • Summary: On Sept. 28, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit temporarily stayed a lower court’s order that had reinstated Texas’ straight-ticket ballot device. The court further stayed the order on Sept. 30, effectively ensuring that the straight-ticket ballot device would not appear on general election ballots this year.
    • On Sept. 25, Judge Marina Marmolejo of the U.S. District Court for the Southern District of Texas issued an order preventing state officials from enforcing legislation that had rescinded Texas’ straight-ticket ballot option. Marmolejo wrote, “The Court finds that HB 25 [the legislation eliminating the straight-ticket device], especially as exacerbated by the ongoing pandemic, places a greater than minimal burden on Texans’ right to vote and right to associate.”
    • In its per curiam (i.e., unsigned) order staying Marmolejo’s ruling, the appeals panel wrote, “[Given] that thousands of ballots without straight-ticket voting have already been mailed in accordance with a law that was passed three years ago and the immense difficulty described the Secretary [of State] of managing an election with different sets of ballots for in-person and mail-in voting, the public interest weighs heavily in favor of issuing the stay.”
    • The panel included Judges Edith Clement, Jennifer Elrod, and Catharina Haynes, all George W. Bush (R) appointees.

Legislation tracking

To date, we have tracked 328 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.

Legislation related to elections and COVID-19, 2020

COVID-19 election bills October 7.png