TagRedistricting

Measure to change elections and redistricting procedures in North Dakota blocked from November ballot

A citizen-initiated constitutional amendment that was designed to make changes to elections and redistricting procedures in North Dakota was removed from the 2020 ballot by the North Dakota Supreme Court on August 25.

The measure was certified for the ballot by Secretary of State Al Jaeger on August 11 after his office found that proponents submitted around 32,000 valid signatures for the initiative on July 6. To qualify for the ballot, 26,904 valid signatures were required.

Brighter Future Alliance, which opposed the initiative, filed a lawsuit in the state Supreme Court on August 12, 2020, seeking to block the measure from the ballot by ordering Secretary Jaeger to declare all signatures for the measure invalid. Brighter Future Alliance argued that the measure’s sponsors failed to meet the initiative petition requirements under the state constitution and state law because the petitions did not include the full text of the measure and that the ballot title did not accurately describe the measure. Under Section 2 of Article III of the state constitution, petitions that are being circulated must include the full text of the proposed measure. Under state law, the petition title must be a “short and concise statement that fairly represents the measure.” In North Dakota, the petition titles are drafted by the secretary of state and approved by the attorney general.

On August 25, 2020, the North Dakota Supreme Court ruled that the measure must be blocked from appearing on the ballot because the text of the constitutional amendment referenced statutory law and that “embedding a statute into the Constitution, which by definition is a law inferior to the Constitution and subject to change by normal legislative procedure, would threaten the sanctity of our fundamental law.” The court did not address the claims related to the petition title’s sufficiency.

Section 1 of the proposed constitutional amendment stated, “In order to provide military-overseas voters with ample opportunity to vote … the secretary of state shall transmit ballots and balloting materials to all covered voters who submit a valid military-overseas ballot application. This shall apply for all elections covered in N.D.C.C. section 16.1-07-19.”

Secretary of State Jaeger said, “The court made its decision, and it will not go on the ballot.” Brighter Future Alliance Chairman Pat Finken said, “We are gratified the court agreed with our position to keep Measure 3 off the ballot. It was ill-conceived, poorly written and the forces behind the measure showed contempt for our initiated measure processes and safeguards. This outcome further demonstrates why we must not allow out-of-state special interests to tamper with our constitution and our elections to further their political agenda.” North Dakota Voters First Chairwoman Carol Sawicki said, “There can be little doubt that Measure 3 was a threat to political insiders and career politicians in North Dakota. The proof is in the way they banded together in a coordinated and unprecedented effort to ensure North Dakota voters never had the chance to cast their ballot.”

The state legislature referred two constitutional amendments to the ballot: one measure would change the structure of the State Board of Higher Education; the other measure would require initiated constitutional amendments passed by voters to be submitted to the legislature.

Between 1996 and 2018, an average of six measures appeared on the ballot in North Dakota during even-numbered election years, 56% of which were approved.

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Ranked-choice voting and redistricting commission initiatives provisionally certified for Arkansas ballot

Two Arkansas citizen-initiated measures—one that would establish ranked-choice voting and another that would establish a redistricting commission—were provisionally certified for the ballot on August 21, 2020. Whether or not votes will be counted for the measures is a question pending before the Arkansas Supreme Court.

Sponsored by Open Primaries Arkansas, the ranked-choice voting measure would (a) change primary elections so that all candidates for an office are listed on a single primary ballot, rather than on separate partisan ballots, and (b) create a top-four ranked-choice voting system for general elections for federal congressional office, state general assembly, and statewide elected offices, including Governor, Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, and Commissioner of State Lands.

The redistricting measure, sponsored by Arkansas Voters First, would create the Citizens’ Redistricting Commission for state legislative and congressional redistricting. The commission would be comprised of nine commissioners who are registered Arkansas voters and would replace the Board of Apportionment, which is currently responsible for state legislative redistricting in Arkansas. The current Board of Apportionment is comprised of the governor, the secretary of state, and the attorney general. Currently, in Arkansas, the state legislature is responsible for federal congressional redistricting. The measure would also establish criteria for drawing district maps. All meetings of the commission would be publicized and open to the public.

The campaigns each submitted around 100,000 signatures on July 6. To qualify for the ballot, 89,151 valid signatures are required.

Secretary of State John Thurston (R) found on July 14 that signatures for the initiatives were insufficient on the grounds that petition circulators’ background check certifications did not comply with state law.

Under Arkansas Code § 7-9-601(b)(3), sponsors are required to certify to the Secretary of State that each paid canvasser passed a state and federal criminal background check. Arkansas Voters First and Open Primaries Arkansas campaigns submitted certifications stating that the background checks were acquired but did not say they were passed. The statements of insufficiency for the two measures came a day after Special Master Mark Hewett determined signatures submitted on January 31 for an optometry law referendum were invalid for the same reason. Hewett’s report was filed with Arkansas Supreme Court for a final determination.

The campaigns asked the state Supreme Court on July 17 to order Secretary of State John Thurston to give the campaigns at least 30 days to collect additional signatures. In Arkansas, if petitioners fail to meet the signature requirement, but the petitioners have gathered at least 75% of the valid signatures needed, petitioners have 30 days to collect additional signatures or demonstrate that rejected signatures are valid. The campaigns were granted a provisional 30-day cure period. Arkansas Voters First reported submitting an additional 50,000 signatures on August 5. Open Primaries Arkansas reported submitting an additional 59,000 signatures on August 20.

Retired Circuit Judge John Fogleman was appointed by the Arkansas Supreme Court on July 24 as a special master to resolve the disputes between Arkansas Voters First, Open Primaries Arkansas, and the secretary of state concerning petition circulator background check certifications and signature validity. Fogleman’s report was submitted to the state Supreme Court on August 10, 2020. Fogleman concluded that the Supreme Court must decide whether or not the campaigns’ background check certifications comply with Arkansas Code § 7-9-601(b)(3).

On August 21, Secretary of State John Thurston certified both measures for the ballot “for coding purposes and preparation purposes only, pending the outcome of the litigation.” Under Arkansas Code § 7-5-204, if the secretary of state has not determined a petition’s sufficiency by the 75th day before the general election or if a measure is being challenged in court, the measure must be placed on the ballot. If the measure is later declared insufficient or invalid, votes for the measure will not be counted or certified.

Two measures on the 2018 ballot in Arkansas were declared invalid by the state Supreme Court and votes for the measures were not counted. Similarly, in 2016, the supreme court declared two measures on the ballot to be invalid and votes were not counted.



Missouri judge rewrites ballot title for Amendment 3 that would repeal 2018 redistricting amendment

On August 17, 2020, Cole County Circuit Court Judge Patricia S. Joyce ruled against the ballot title drafted by the Missouri General Assembly for Amendment 3, the Redistricting Process and Criteria, Lobbying, and Campaign Finance Amendment. The lawsuit against the ballot title was filed by petition circulators for Clean Missouri, the campaign that sponsored Missouri Amendment 1 (2018). The lawsuit argued that the ballot title of Amendment 3 was misleading because it did not mention the elimination of the nonpartisan demographer, which was the office established by Amendment 1 to conduct legislative redistricting in the state. Missouri Amendment 1 (2018) was approved with 62% of the vote. Besides establishing the nonpartisan demographer, the amendment also prohibited the state legislature from passing laws allowing for unlimited campaign contributions to candidates for the state legislature and set campaign contribution limits for legislative candidates and candidate committees.

In Joyce’s ruling, she said, “While [Amendment 3] proposes several other changes to Article Ill of the Constitution, all of them pale in comparison to the scope and magnitude of undoing a recent voter mandate to change Missouri’s legislative redistricting rules. The ‘central purpose’ or ‘primary objective’ of [Amendment 3] is to effectively repeal Amendment 1. Accordingly, the summary statement must alert voters to that change in some fashion. Instead, the General Assembly’s statement does not mention the change at all. It is insufficient, unfair, and must be rewritten.” State officials requested an appeal in the Missouri Court of Appeals.

The original ballot title read:
“Shall the Missouri Constitution be amended to:
• Ban all lobbyist gifts to legislators and their employees;
• Reduce legislative campaign contribution limits; and

• Create citizen-led independent bipartisan commissions to draw state legislative districts based on one person, one vote, minority voter protection, compactness, competitiveness, fairness and other criteria?”

The new title drafted by Judge Joyce reads:
“Shall the Missouri Constitution be amended to:
• Repeal rules for drawing state legislative districts approved by voters in November 2018 and replace them with rules proposed by the legislature;
• Lower the campaign contribution limit for senate candidates by $100; and

• Lower legislative gift limits from $5 to $0, with exemptions for some lobbyists?”

Missouri Amendment 3 was introduced as Senate Joint Resolution 38 (SJR 38) on January 8, 2020. On February 10, the state Senate passed SJR 38 in a vote of 22-9. Of the 23 Republicans in the Senate, 22 voted in favor of SJR 38, one voted against it. All eight Democrats voted against it. On May 13, the state House passed SJR 38 in a vote of 98-56 with eight absent. House Republicans voted 97-16 for SJR 38, and House Democrats voted 1-40.

Fair Missouri is leading the campaign in support of Amendment 3. According to the last campaign finance reports submitted on June 30, the campaign had raised over $246,000. Clean Missouri is registered in opposition to the amendment and has raised $1.3 million. In 2018, Clean Missouri and an allied committee raised $5.63 million.

Missouri Senator Dan Hegeman (R), the sponsor of the amendment in the legislature, said, “This would give the voters another opportunity to weigh in on this monumental change that could have ramifications for years, if not generations.”

In November, Missouri voters will also be deciding Amendment 1, the State Executive Term Limits Amendment, which would limit the lieutenant governor, secretary of state, state auditor, and attorney general, along with the governor and state treasurer, to two terms of office.

Between 1996 and 2018, an average of seven measures appeared on the ballot in Missouri during even-numbered election years. A total of 82 measures appeared on statewide ballots during that period with 63% approved.

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North Dakota to vote in November on top-four open primaries, ranked-choice voting, state legislative redistricting, and other election changes

North Dakota voters will decide on three constitutional amendments in November. The third measure, a citizen initiative, was certified for the ballot on Tuesday, August 11.

The initiative would amend the state constitution to make multiple changes to the election and redistricting procedures in North Dakota.

The measure would establish top-four open primaries for all statewide, legislative, and congressional races. Candidates would all appear on the same ballot with the option of listing political affiliation. Anyone could vote in the primaries regardless of their political affiliation or lack of political affiliation. The top-four candidates would proceed to the general election ballot. Voters could rank up to four candidates on the general election ballot. If a candidate receives a majority of votes, he or she would be elected. If not, the candidate with the least votes would be eliminated and votes redistributed according to voters’ next choices. This would occur in rounds until one candidate has a majority of votes.

As of 2020, in North Dakota, parties’ primary elections were open to all voters regardless of their partisan affiliation. As of 2020, in North Dakota, the winner of a party’s primary election is the candidate who receives the greatest number of votes (plurality), even if he or she does not win a majority of votes cast. The winners of each party’s primaries advance to the general election.

The measure would also make the state’s ethics commission, which was created by voters through a 2018 citizen initiative, responsible for state legislative redistricting. The initiative would require a unanimous vote by the ethics commission to set state senate districts, which would then be divided equally by population to create state house districts. It would also require public hearings on the redistricting plan, set criteria for district maps, and set other requirements and processes.

Another provision of the initiative would require a paper record for all ballots and audits of each election within 120 days by the secretary of state. And the measure would require ballots to be sent to military and overseas voters by 61 days before an election.

North Dakota Voters First reported submitting over 36,000 signatures for the initiative to the Secretary of State’s office on July 6, 2020. Secretary of State Al Jaeger (I) said that around 4,300 of the signatures submitted were rejected, meaning around 32,000 signatures were accepted. To qualify for the ballot, 26,904 valid signatures were required.

North Dakota Voters First said, “Without competition, lawmakers secure reelection even if they don’t have the best ideas or vision for their constituents. Measure 3 gives voters more than one choice in elections and incentivizes legislators to more closely listen to their constituents. […] This amendment would ensure voters are picking their politicians — not the other way around — by preventing politicians from drawing their own political boundaries. Measure 3 would establish a nonpartisan redistricting process that is transparent and fair.”

According to campaign finance reports that covered information through July 6, the campaign had raised $922,720 and had spent $676,912. The top four donors— Action Now Initiative, Campaign Legal Center, Represent.Us, and Unite America—donated 99.99% of the contributions.

The measure is opposed by Brighter Future Alliance, which said, “Until we defeat these groups at the polls, they will keep coming with measures to further upend our political institutions and undermine our state’s economy and our North Dakota way of life.”

The group filed a lawsuit in the state supreme court on August 12, 2020, seeking to block the measure from the ballot by ordering Secretary Al Jaeger to declare all signatures for the measure invalid. Brighter Future Alliance argued that the measure’s sponsors failed to meet requirements of the constitution and state law because the petitions did not include the full text of the measure and the ballot title does not accurately describe the measure. Under Section 2 of Article III of the state constitution, petitions that are being circulated must include the full text of the proposed measure. Under state law, the petition title must be a “short and concise statement that fairly represents the measure.” In North Dakota, the petition titles are drafted by the secretary of state and approved by the attorney general.

Maine is the only state with ranked-choice voting for federal and statewide primary elections and general elections for U.S. Congress.

As of 2020, no states utilized a top-four primary for state or federal elections. Top-two primaries are used in California, Nebraska, and Washington. A similar initiative to create a top-four primary and ranked-choice general system is on the 2020 ballot in Alaska. A top-four ranked-choice voting initiative may also appear on the ballot in Arkansas.

A measure to create top-two open primaries will appear on the 2020 ballot in Florida, and Massachusetts voters will decide a ranked-choice voting initiative.

In 36 of the 50 states, state legislatures are primarily responsible for state legislative redistricting. Independent commissions draw state legislative district lines in 10 states. In four states, politician commissions are responsible for state legislative redistricting.

The North Dakota state legislature referred two constitutional amendments to the 2020 ballot in North Dakota. One measure would change the structure of the State Board of Higher Education, and the other measure would require initiated constitutional amendments passed by voters to be submitted to the legislature and passed a second time by voters if not approved by the legislature.

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Fair Maps Nevada did not turn in signatures for its redistricting initiative by the extended August 3 deadline

Fair Maps Nevada, the campaign behind the Nevada Independent Redistricting Commission Initiative, did not submit signatures by the August 3 deadline. Originally the deadline was June 24, but it was extended by a court ruling. On July 24, 2020, Doug Goodman, founder and executive director of Nevadans for Election Reform; Sondra Cosgrove, chair of Fair Maps Nevada; and Vivian Leal, a member of Indivisible Northern Nevada Fair Democracy Team, wrote that “Fair Maps Nevada will not be able to collect the necessary signatures by the court-set, and county election official agreed to deadline of August 3.” The campaign said that it would attempt to put the initiated constitutional amendment on the 2022 ballot.

The ballot measure would have transferred the power to draw the state’s congressional and legislative districts from the state legislature to a seven-member independent redistricting commission.

The signature deadline was extended from June 24 to August 3 after Fair Maps Nevada filed a lawsuit against the state on May 7 seeking permission to use electronic signatures and asking for a six-week extension of the signature deadline. In their lawsuit, petitioners argued that the state’s actions to slow the spread of the coronavirus made it “extremely difficult to collect signatures to qualify the initiative for the ballot in a traditional in-person manner.”

On May 29, 2020, U.S. District Court Judge Miranda Du ruled partially in favor of the petitioners granting them more time to gather signatures. In her decision, she argued that Governor Steve Sisolak’s (D) stay-at-home order made it impossible for the campaign to gather signatures and that not changing the statutory deadline was “unreasonable and unfair.” Judge Du did not grant the petitioners’ request to use electronic signatures citing concerns of fraud and legal precedent on courts changing election rules. In her ruling, the new deadline was August 5, but the campaign and state officials later agreed to move it to August 3.

The ruling only applied to the petitioners in this case and did not extend to the Fountainhead Society, the campaign behind the Single Transferable Vote and Multimember Senate Districts Initiative. Benjamin Pennington, the founder of the Fountainhead Society, said that the campaign would submit an “improved initiative” for the 2022 cycle.

In Nevada, the number of signatures required to qualify an initiated constitutional amendment for the ballot is equal to 10% of the total votes cast in the most recent general election. Moreover, signature gathering must be distributed equally among each of the state’s four congressional districts. Initiated constitutional amendments that qualify for the ballot must be approved at two consecutive general elections.

Nevada voters will be deciding on five statewide ballot measures in November—four legislatively referred constitutional amendments and one initiated constitutional amendment.
• Question 1, Remove Constitutional Status of Board of Regents Amendment: Removes the constitutional status of the Board of Regents
• Question 2, Marriage Regardless of Gender Amendment: Recognizes the marriage of couples regardless of gender
• Question 3, State Board of Pardons Commissioners Amendment: Revises duties of the State Board of Pardons Commissioners
• Question 4, State Constitutional Rights of Voters Amendment: Creates a constitutional right to certain voting procedures and policies

• The Renewable Energy Standards Initiative: Requires utilities to acquire 50% of their electricity from renewable resources by 2030

Between 1995 and 2018, the Nevada State Legislature referred 31 constitutional amendments to the ballot, while voters decided 26 citizen-initiated constitutional amendments. The legislature’s proposed amendments were approved at a lower rate (48.39%) than citizen-initiated amendments (73.08%).

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Oregon Secretary of State verifies 59,000 signatures for redistricting initiative; courts to decide if it’s enough to qualify

On July 30, 2020, the Oregon Secretary of State’s office announced that People Not Politicians, the campaign behind the Independent State and Congressional Redistricting Commission Initiative, had submitted 59,493 valid signatures. People Not Politicians submitted its first batch of 64,172 unverified signatures on July 13. The campaign submitted an additional 1,819 signatures on July 17 and 1,063 signatures on July 24 for a total of 67,054 unverified signatures. The signature validity rate for the petition was 88.7%.

A federal judge ruled on July 10 that Secretary of State Bev Clarno (R) had to place the measure on the ballot or lower the threshold to 58,789 signatures and extend the signature deadline to August 17. The reduced number of signatures of 58,789 is equal to the required amount for 2018 veto referendum petitions. The original deadline was July 2, and the required number of signatures was 149,360 valid signatures.

People Not Politicians filed the lawsuit against the state seeking relief from the signature deadline and requirements on June 30. The state appealed the federal court’s decision allowing the campaign to submit signatures after the original deadline. On July 23, the 9th Circuit Court of Appeals rejected Oregon’s request for an emergency stay on the lower court’s ruling.

Oregon Attorney General Ellen Rosenblum (D) filed an emergency stay with the U.S. Supreme Court on July 29 that has not been decided yet. A panel of the 9th Circuit Court is expected to hear oral arguments for the lawsuit on August 13. It will also be hearing oral arguments for a similar initiative lawsuit in Idaho on the same day. Reclaim Idaho, the sponsors of the Idaho Income Tax Increases for Education Funding Initiative, filed the lawsuit back in June and a federal judge allowed the campaign to gather electronic signatures and have extra time to gather signatures. On July 30, the Supreme Court granted an emergency stay on the judge’s order.

The Oregon initiative would amend the Oregon Constitution to establish a 12-member redistricting commission. If the initiative qualifies for the ballot, it will be the third initiative appearing on the November ballot in Oregon. The Oregon Secretary of State certified the Psilocybin Program Initiative and the Drug Decriminalization and Addiction Treatment Initiative for the ballot after both met the original July 2 deadline and submitted more than the required number of valid signatures (112,020).

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New Jersey will vote on a constitutional amendment to postpone legislative redistricting if census data isn’t received by February 15

At the election on November 3, New Jersey voters will decide a constitutional amendment to postpone state legislative redistricting until after the 2021 election if federal census data isn’t received by February 15, 2021. Therefore, the current state legislative districts, which have been used since 2011, would remain in use for the 2021 election. New districts would be used beginning in 2023. The constitutional amendment would also use this delayed timeline in future redistricting cycles if census data isn’t received by February 15 of the year after the census (2031, 2041, 2051, and so on).

Both chambers of the New Jersey State Legislature passed the constitutional amendment on July 30, 2020. A 60% vote was required in both legislative chambers. In the General Assembly, the vote was 51 to 26. In the State Senate, the vote was 25 to 15. Legislative Democrats, along with one Senate Republican, supported the amendment. All other legislative Republicans opposed it.

Asm. John McKeon (D-27), a legislative sponsor of the amendment, said that because the coronavirus pandemic has had the effect of delaying the completion of the federal census, “there’s just not a lot of good options here.” Currently, the U.S. Census Bureau has delayed the expected delivery of redistricting data to states to July 31, 2021. The state’s primary elections are scheduled for June 8, 2021. Senate Majority Whip Nicholas Scutari (D-22) stated, “[A delay in receiving census data] will make it all but impossible to get the accurate information needed to draw legislative districts that are fair and accurate. An undercount will not only result in reduced federal funding, but also will have a negative impact on fair representation in the Legislature.”

Doug Steinhardt, chairperson of the New Jersey Republican Party, said his party was opposed to the constitutional amendment. He stated, “The people of New Jersey deserve legislators that reflect the political and demographic makeup of our great state, and they haven’t enjoyed that in at least a decade. Democrats pushing this amendment to delay redistricting are trying to kill a fly with a sledgehammer, and are aiming to extend their majority for an additional two years.”

In New Jersey, a redistricting commission is responsible for developing state legislative district maps. The party affiliation of the commission’s 10 members is based on the results of the last gubernatorial election. The state political party committees of the gubernatorial candidates who placed first and second get to each select five members. Typically, these are Democrats and Republicans. If they deadlock on a state legislative redistricting map, the state Supreme Court Chief Justice appoints an 11th member.

The constitutional amendment is the third to be referred to the 2020 general election ballot in New Jersey. Voters will also decide a constitutional amendment to legalize marijuana and a constitutional amendment to make veterans eligible to receive the state’s veterans’ property tax deduction.

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Ballot Bulletin: Super Junesday voter turnout

June 2 primaries mark highest concentration of voting activity since March 

On June 2, nine states held statewide primary elections (and the District of Columbia conducted its district-wide primary). This represented the busiest single day of voting since March 3. The reason? The COVID-19 outbreak prompted a series of election postponements and other modifications.     

How many of the June 2 primaries were postponements? 

Of the 10 jurisdictions conducting statewide or district-wide primaries on June 2, five had originally scheduled their primaries for an earlier date: 

  • Idaho (originally May 19)
  • Indiana (originally May 5) 
  • Maryland (originally April 28) 
  • Pennsylvania (originally April 28) 
  • Rhode Island (originally April 28) 

How did voter turnout on June 2 compare to turnout in 2016? 

The table below compares voter turnout in primary elections in 2020 versus 2016. In the five states for which information is available, turnout increased between 6.24 and 15.10 percentage points between 2016 and 2020. 

Indiana, Iowa, Maryland, Pennsylvania, and Rhode Island are not included in this table because the figures needed to calculate voter turnout in those states have not yet been fully released. 

How many votes were cast by mail, relative to 2016? 

Most of the jurisdictions that held primaries on June 2 have not yet released complete information on the number of votes cast by mail. In the District of Columbia, 71.11 percent of all votes cast on June 2 were cast by mail, an increase of 62.82 percentage points over 2016. In Idaho, 57.51 percent of all votes cast were cast by mail, an increase of 43.41 percentage points over 2016. 

Of the remaining eight states, seven modified their absentee/mail-in voting procedures, suggesting a possible increase in the share of votes cast by mail in those states: 

  • Indiana: Absentee/mail-in voting eligibility requirements suspended, allowing all voters to cast ballots by mail.
  • Iowa: Mail-in ballot applications automatically sent to all voters.
  • Maryland: Mail-in ballots automatically sent to all voters (at least one in-person voting center open in each county).
  • Montana: Counties authorized to automatically send mail-in ballots to all voters.
  • Pennsylvania: In Allegheny, Dauphin, Delaware, Erie, Montgomery and Philadelphia counties, absentee ballot receipt deadline extended to June 9.
  • Rhode Island: Mail-in ballot applications automatically sent to all voters.
  • South Dakota: Mail-in ballot applications automatically sent to all voters.

Although New Mexico did not modify its absentee/mail-in voting procedures for the June 2 primary, it already provided for universal absentee voting eligibility (i.e., no excuse required). Iowa, Maryland, Montana, Pennsylvania, and Rhode Island likewise already allowed for no-excuse absentee voting. 

Absentee/mail-in voting modifications

Since our June 3 edition, we’ve tracked the following absentee/mail-in voting modifications: 

  • Alabama: On June 15, Judge Abdul Kallon, of the United States District Court for the Northern District of Alabama, issued a preliminary injunction barring election officials from enforcing witness and photo ID requirements for select voters casting absentee ballots in the July 14 runoff elections.
  • Missouri: On June 4, Gov. Mike Parson (R) signed SB631 into law, permitting any registered voter to cast an absentee ballot in any 2020 election, subject to a notarization requirement.
  • New York: On June 7, Gov. Andrew Cuomo (D) signed into law legislation extending the submission deadline for absentee ballots in the June 23 election to June 23.
  • North Carolina: On June 12, Gov. Roy Cooper (D) signed HB1169 into law, reducing the witness signature requirement on completed absentee ballots from two to one.
  • Tennessee: On June 4, the Chancery Court for Tennessee’s Twentieth Judicial District ruled that Tennessee’s absentee voting law, which limits eligibility to those meeting certain criteria, “during the unique circumstances of the pandemic, constitutes an unreasonable burden on the fundamental right to vote guaranteed by the Tennessee Constitution.” The court ordered the state to extend absentee voting eligibility to all Tennessee voters during the course of the pandemic.
  • Texas: A three-judge panel of the United States Court of Appeals for the Fifth Circuit stayed a district court decision ordering that all eligible Texas voters be allowed to cast absentee ballots in order to avoid transmission of COVID-19.


To date, 32 states have modified their absentee/mail-in voting procedures. These modifications can be divided into five broad categories:

  • Automatic mail-in ballots: Five states (California, Maryland, Montana, Nevada, and New Jersey) have opted to automatically send mail-in ballots to all eligible voters in certain elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below. 
  • Automatic mail-in ballot applications: Twelve states (Connecticut, Delaware, Georgia, Idaho, Iowa, Michigan, Nebraska, New York, North Dakota, Rhode Island, South Dakota, and West Virginia) are automatically sending mail-in ballot applications to all eligible voters in certain elections. These states are shaded in dark blue in the map below. 
  • Eligibility expansions: Nine states (Indiana, Kentucky, Massachusetts, Missouri, New Hampshire, Oklahoma, South Carolina, Tennessee, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below. 
  • Deadline extensions: Four states (Ohio, Pennsylvania, Utah, and Wisconsin) have extended absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below. 
  • Other process changes: Two states (Alabama and North Carolina) have made other modifications to their absentee/mail-in ballot procedures in certain elections. These states are shaded in light gray in the map below. 

Litigation tracking 

To date, we have tracked 98 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. Beginning this week, in each issue of The Ballot Bulletin, we’ll shine a spotlight on what we think is one of the more interesting recent events in this area. Click here to view the complete list of lawsuits and court orders. 

This week, we turn our attention to a case out of California, Gallagher v. Newsom.

  • Case name: Gallagher v. Newsom
  • Case number: CVCS-20-0912
  • State of origin: California
  • Court: Sutter County Superior Court
  • Summary: On June 12, Judge Perry Parker, of the Sutter County Superior Court, issued a temporary restraining order suspending Gov. Gavin Newsom’s (D) Executive Order N-67-20. The order, issued June 3, had permitted counties to consolidate polling places in the Nov. 3 general election, provided they offer three days of early voting. Parker’s order came as the result of an action filed by two Republican state Assembly members, James Gallagher and Kevin Kiley. Gallagher and Kiley alleged Newsom’s order usurped the legislature’s authority, in violation of the state constitution. Parker enjoined Newsom’s order pending further proceedings in the case. 
  • Court documents

 

 

 

Legislation tracking 

To date, we have tracked 196 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 

Current as of June 16, 2020



Tracking the 90+ lawsuits related to COVID-19 election changes

Lawsuits involving election policy proliferate in response to COVID-19 outbreak 

The COVID-19 outbreak in the United States has prompted election postponements, alterations to absentee/mail-in voting procedures, and modifications to candidate filing protocols. It has also resulted in at least 90 lawsuits filed in state and federal courts touching on various aspects of election administration. These lawsuits span 32 different states. 

In this edition of The Ballot Bulletin, we take a closer look at five of what we think are the most noteworthy lawsuits filed to date. We selected these lawsuits because they deal with a variety of election-related issues and originate in different regions of the country. For a complete list of all the election lawsuits we’re tracking, click here.

Esshaki v. Whitmer (Michigan) 

The parties to the suit: The plaintiffs were Eric Esshaki, Matt Savich, and Deana Beard, candidates for Congress, the Forty-Seventh Judicial District Court, and the Third Circuit Court, respectively. The defendants were Gov. Gretchen Whitmer (D), Secretary of State Jocelyn Benson (D), and Elections Director Jonathan Brater.

The issue: Attorneys for the plaintiffs argued that Whitmer’s stay-at-home order, which disallowed large gatherings and closed numerous businesses, prevented them from collecting the number of signatures needed to earn a place on the ballot. They argued that these conditions imposed a severe burden on the plaintiffs’ ability to seek elective office, violating their constitutional free-speech and associational rights. 

The outcome: On April 20, Judge Terrence Berg, of the United States District Court for the Eastern District of Michigan, ruled in favor of the plaintiffs and issued an order reducing the petition signature requirements for certain primary candidates to 50 percent of their statutory thresholds. Berg also extended the filing deadline from April 21 to May 8 and directed election officials to develop procedures allowing for the collection and submission of electronic petition signatures. Berg’s order applied only to candidates for offices without a filing-fee option: U.S. Senate, U.S. Congress, and judicial offices. The order did not apply to state legislative candidates, who could pay filing fees to get on the ballot.

Berg’s order was appealed to the United States Court of Appeals for the Sixth Circuit, which ruled on May 5 that Berg had erred in his initial order. Although the appeals court agreed that the original ballot requirements were unconstitutional, it ruled that Berg had exceeded his authority in mandating new requirements. The appeals court directed the state “to select its own adjustments so as to reduce the burden on ballot access, narrow the restrictions to align with its interest, and thereby render the application of the ballot-access provisions constitutional under the circumstances.”

On May 8, state authorities announced they would abide by the requirements laid out in Berg’s original order. Jake Rollow, a spokesman for the Michigan Department of State, said, “As the district court declined to amend its order, and with the revised filing deadline today, May 8, the best course of action to reduce further uncertainty in advance of the rapidly approaching August elections is to maintain the procedures that have been in place for the last two and a half weeks.”

Issa v. Newsom (California) 

The parties to the suit: The plaintiffs are former U.S. Rep. Darrell Issa (R) and four registered California voters: James Oerding, Jerry Griffin, Michelle Bolotin, and Michael Sienkiewicz. The defendants are Gov. Gavin Newsom (D) and Secretary of State Alex Padilla (D).

The issue: On May 8, Newsom issued an executive order directing county election officials to deliver mail-in ballots to all registered voters in the Nov. 3 general election. California law allows any eligible voter to vote by mail, but the voter is required to submit a mail-in ballot application first in order to receive an actual ballot. Under Newsom’s order, all voters will automatically receive the mail-in ballots. 

On May 21, the plaintiffs filed suit in the United States District Court for the Eastern District of California. In their complaint, attorneys for the plaintiffs allege that Newsom’s order violates both the Elections Clause and the Electors Clause of the United States Constitution. The Elections Clause (Article I, Section 4) establishes that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” The Electors Clause (Article II, Section 1) establishes that each state may appoint presidential electors “in such Manner as the Legislature thereof may direct.” Attorneys for the plaintiffs argue that neither Newsom nor Padilla meet the definition of a “Legislature” for the purposes of these provisions. 

The outcome: The case is pending before Judge Morrison England, who was appointed to the court by President George W. Bush (R).

League of Women Voters of Oklahoma v. Ziriax (Oklahoma) 

The parties to the suit: The plaintiffs were the League of Women Voters of Oklahoma and two qualified Oklahoma voters, Angela Zea Patrick and Peggy Jeanne Winton. The defendant was Paul Ziriax, in his capacity as secretary of the Oklahoma State Election Board.

The issue: Attorneys for the plaintiffs alleged that official absentee ballot forms and other instructional materials were misleading voters by suggesting that a notarized affidavit was required in order for absentee ballots to be counted. The plaintiffs argued instead that a personally signed statement, under penalty of perjury, was sufficient in lieu of a notarized affidavit. 

The outcome: On May 4, the Oklahoma Supreme Court ruled 6-3 in favor of the plaintiffs, striking down the contested requirement. The court ruled that the requirement did not qualify as an exception under a state law establishing that statements, signed and dated under the penalty of perjury, carry the force of an affidavit. 

However, on May 7, Gov. Kevin Stitt (R) signed SB210 into law, reinstating the absentee ballot notarization requirement. The legislation also included provisions applicable only to the 2020 election cycle. SB210 permitted voters to submit copies of their identification in lieu of fulfilling the notarization requirement in the event of a state of emergency occurring within 45 days of an election. The legislation also specified that individuals experiencing symptoms indicative of COVID-19, and individuals classified as vulnerable to infection could cast absentee ballots under the ‘physical incapacitation’ eligibility criterion.

Wisconsin Legislature v. Evers (Wisconsin) 

The parties to the suit: The plaintiff was the Wisconsin Legislature, in which Republicans have majorities in both chambers. The defendant was Gov. Tony Evers, a Democrat. 

The issue: On April 6, Evers issued an executive order postponing in-person voting in the spring election, scheduled to take place on April 7, to June 9. Evers also extended the receipt deadline for absentee ballots to June 9. 

State Senate Majority Leader Scott Fitzgerald (R) and Assembly Speaker Robin Vos (R) argued that Evers’ order exceeded his constitutional authority. They filed suit in the state supreme court, seeking an emergency stay of Evers’ order. In their motion for the stay, plaintiffs’ attorneys said, “Given that the Governor’s order comes mere hours before the in-person election is set to begin, the Legislature will suffer irreparable harm if Executive Order 74 is not immediately enjoined. Moreover, such sweeping changes to an election made just before the election is set to begin will undoubtedly cause voter confusion and call into question the integrity of the electoral process.” 

The outcome: On April 6, the state supreme court voted 4-2 to stay Evers’ order, allowing the election to proceed as scheduled. Justices Annette Ziegler, Rebecca Bradley, Patience Roggensack, and Brian Hagedorn formed the majority. Justices Ann Walsh Bradley and Rebecca Dallet dissented. Justice Daniel Kelly, who ran for re-election on April 7, did not participate in the decision.

In an unsigned opinion, the court majority wrote, “The question presented is not whether the policy choice to continue with this election is good or bad, or otherwise in the public interest. … Rather, the question presented to this court is whether the Governor has the authority to suspend or rewrite state election laws. Although we recognize the extreme seriousness of the pandemic that this state is currently facing, we conclude that he does not.” 

Bradley wrote the following in her dissent, which Dallet joined: “[The] majority gives Wisconsinites an untenable choice: endanger your safety and potentially your life by voting or give up your right to vote by heeding the recent and urgent warnings about the fast growing pandemic. These orders are but another example of this court’s unmitigated support of efforts to disenfranchise voters.”

Yang v. Kellner (New York) 

The parties to the suit: The plaintiffs were Andrew Yang, a former candidate for the Democratic presidential nomination, and several candidates for New York’s delegation to the Democratic National Convention. The defendants were Robert Brehm, Douglas Kellner, Peter Kosinski, Andrew Spano, and Todd Valentine, all members of the New York State Board of Elections, and Gov. Andrew Cuomo (D).

The issue: On April 27, the New York State Board of Elections moved to cancel the Democratic presidential preference primary, which had been scheduled to take place on June 23. The Republican presidential preference primary had already been canceled. The statewide primary election was scheduled to proceed as planned on June 23. Earlier in April, the state enacted a law authorizing the board of elections to remove candidates’ names from the ballot upon the suspension or termination of their campaigns. Sen. Bernie Sanders (I) suspended his presidential campaign on April 8, making former Vice-President Joe Biden (D) the presumptive Democratic nominee.

In their complaint, filed April 28, attorneys for the plaintiffs alleged that “this unprecedented and unwarranted move infringes the rights of Plaintiffs and all New York State Democratic Party voters … as it fundamentally denies them the right to choose our next candidate for the office of President of the United States.” 

The outcome: On May 5, Judge Analisa Torres, of the United States District Court for the Southern District of New York, ordered the New York State Board of Elections to reinstate the Democratic presidential primary. Torres wrote, “[T]he removal of presidential candidates from the primary ballot not only deprived those candidates of the chance to garner votes for the Democratic Party’s nomination, but also deprived their pledged delegates of the opportunity to run for a position where they could influence the party platform, vote on party governance issues, pressure the eventual nominee on matters of personnel or policy, and react to unexpected developments at the Convention.” Torres joined the court in 2013, having been nominated by President Barack Obama (D). 

On May 6, the state board of elections appealed the decision. On May 19, a three-judge panel of the United States Court of Appeals for the Second Circuit affirmed Torres’ ruling. The panel comprised Judges Amalya Kearse, Dennis Jacobs, and Jose Cabranes. Kearse, Jacobs, and Cabranes were appointed to the court by Presidents Jimmy Carter (D), George H.W. Bush (R), and Bill Clinton (D), respectively. The state board of elections indicated it would make no further appeal. 

Election postponements

Since our May 20 edition, we’ve tracked the following election postponement updates: 

  • Puerto Rico: On May 21, the Democratic Party of Puerto Rico announced its presidential preference primary would take place on July 12. The primary was originally scheduled for March 29. It was first postponed to April 26. It was then postponed indefinitely. 


To date, 20 states and one territory have postponed upcoming state-level elections. These states are shaded in dark blue on the map below.

Absentee/mail-in voting modifications

Since our May 20 edition, we’ve tracked the following absentee/mail-in voting modifications: 

  • Connecticut: Gov. Ned Lamont (D) issued an executive order extending absentee voting eligibility to any registered voter in the Aug. 11 primary if there is no “federally approved and widely available vaccine for prevention of COVID-19” at the time he or she requests an absentee ballot.
  • Montana: On May 27, the Montana Supreme Court voted 5-2 to halt a lower court order that had extended the absentee ballot receipt deadline for the June 2 primary to June 8.
  • Pennsylvania: On June 1, Gov. Tom Wolf (D) issued an executive order extending the absentee ballot receipt deadline for the June 2 primary to 5:00 p.m. on June 9 (with a postmark deadline of June 2) in Allegheny, Dauphin, Delaware, Erie, Montgomery and Philadelphia counties.
  • South Carolina: On May 25, Judge J. Michelle Childs, of the United States District Court for the District of South Carolina, issued a preliminary injunction barring election officials from enforcing South Carolina’s witness requirement for absentee ballots in the June 9 primary and subsequent runoff elections.
  • Texas: On May 27, the Texas Supreme Court ruled that a voter’s lack of immunity to COVID-19 does not qualify as a disability under the state’s election laws and, therefore, cannot be cited as an excuse for voting absentee.

To date, 28 states have modified their absentee/mail-in voting procedures. These modifications can be divided into five broad categories:

  • Automatic mail-in ballots: Five states (California, Maryland, Montana, Nevada, and New Jersey) have opted to send mail-in ballots automatically to all eligible voters in certain elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below. 
  • Automatic mail-in ballot applications: Twelve states (Connecticut, Delaware, Georgia, Idaho, Iowa, Michigan, Nebraska, New York, North Dakota, Rhode Island, South Dakota, and West Virginia) are automatically sending mail-in ballot applications to all eligible voters in certain elections. These states are shaded in dark blue in the map below. 
  • Eligibility expansions: Seven states (Indiana, Kentucky, Massachusetts, New Hampshire, Oklahoma, South Carolina, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below. 
  • Deadline extensions: Four states (Ohio, Pennsylvania, Utah, and Wisconsin) have extended absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below. 

Legislation tracking 

To date, we have tracked 165 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 

Current as of June 2, 2020

Looking ahead 

On June 2, Ballotpedia covered 1,990 primary elections for 1,011 offices across 12 states and Washington, D.C. In our June 17 issue, we’ll examine the effects of the COVID-19 outbreak on the conduct of these elections, turning our attention to the use of absentee/mail-in voting, consolidation of polling places, and preliminary data on voter turnout rates.



Redistricting and COVID-19

Redistricting and the COVID-19 outbreak 

The COVID-19 outbreak in the United States has prompted election postponements, alterations to absentee/mail-in voting policies, and adjustments to candidate filing protocols. The outbreak also stands to affect the redistricting cycle set to begin next year. This week, we turn our attention to this topic.

The 2020 census: why it matters 

Article I, Section 2, of the United States Constitution requires that a census of the U.S. population be conducted every 10 years. Census results inform apportionment and redistricting efforts. The congressional and state legislative district maps drawn on the basis of 2020 census results will stand until after the next census in 2030 (although maps may be subject to court challenges). 

Article I, Section 2, also stipulates that congressional seats be apportioned, or allotted, to the states on the basis of population. There are 435 seats in the United States House of Representatives. A state may gain or lose seats in the House if its population increases or decreases, relative to the other states. In 1964, the United States Supreme Court ruled in Wesberry v. Sanders that the populations of House districts must be equal “as nearly as practicable.”

The Constitution is silent on the issue of state legislative redistricting. In the mid-1960s, the Supreme Court issued a series of rulings establishing standards for state legislative redistricting. In Reynolds v. Sims, the court ruled that “the Equal Protection Clause [of the United States Constitution] demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.”

COVID-19 and the 2020 census

The 2020 census, the nation’s 24th, is already underway. However, the COVID-19 outbreak may cause significant delays in the count. 

The Census Bureau has requested that Congress approve a four-month delay in delivering redistricting data to the states. This would postpone the following key census events (original dates are italicized; proposed postponements are bolded):

  • Process apportionment counts (July 31, 2020 – Dec. 31, 2020; Oct. 31, 2020 – April 30, 2021)
  • Process redistricting data (January 1, 2021 – March 30, 2021; May 1, 2020 – July 31, 2021)
  • Deliver apportionment counts to the president (Dec. 31, 2020; April 30, 2021)
  • Deliver redistricting counts to the states (April 1, 2021; July 31, 2021)

These delays, in turn, would affect redistricting efforts set to begin next year:   

  • Two states – New Jersey and Virginia – are scheduled to conduct state legislative elections in 2021. In both states, primaries are scheduled for June 8, more than a month in advance of the Census Bureau’s proposed July 31 data delivery deadline. 
  • Three states – California, Delaware, and Maine – have fixed redistricting deadlines set to occur before the July 31 deadline. Another six states – Hawaii, New York, Ohio, South Dakota, Utah, and Washington – have fixed redistricting deadlines set to occur at some point after July 31. 
  • Nine states – Alabama, Arkansas, Illinois, Massachusetts, Nevada, New Hampshire, Oklahoma, Oregon, and Vermont – have census-contingent deadlines for state legislative redistricting. One state – Indiana – has a census-contingent deadline for congressional redistricting. Two states – Connecticut and Michigan – have census-contingent deadlines for both congressional and state legislative redistricting.
  • Eleven states – Alaska, Colorado, Iowa, Louisiana, Minnesota, Missouri, Montana, North Carolina, Pennsylvania (legislative districts only), Texas, and Wisconsin – have redistricting deadlines tied to the receipt or publication of census data. 
  • Five states – Florida, Kansas, Maryland, Mississippi, and Wyoming – are not required to complete legislative redistricting until 2022. Two states – Mississippi and New Jersey – are not required to complete congressional redistricting until 2022.
  • Eleven states do not have any statutory or constitutional state legislative redistricting deadlines. Twenty-eight states do not have statutory or constitutional congressional redistricting deadlines.  

Redistricting ballot measures 

We have tracked nine statewide redistricting ballot measures this year. These measures would, to varying extents, alter existing redistricting processes ahead of the coming redistricting cycle. Social distancing protocols implemented at the state and local levels have affected signature-gathering efforts for some of these measures. Here is a brief status update on each of these nine measures:

Election postponements

Since our May 6 edition, we’ve tracked the following election postponement updates: 

  • Delaware: On May 7, Gov. John Carney (D) announced the postponement of the state’s presidential primary to July 7. Carney also postponed school board elections to July 21. 
  • New York: On May 19, a three-judge panel of the U.S. Court of Appeals for the Second Circuit affirmed a lower court decision reinstating New York’s Democratic presidential preference primary on June 23.


To date, 20 states and one territory have postponed upcoming state-level elections. These states are shaded in dark blue on the map below.

Absentee/mail-in voting modifications

Since our May 6 edition, we’ve tracked the following absentee/mail-in voting modifications: 

  • California: On May 8, Gov. Gavin Newsom (D) signed an executive order directing county election officials to send mail-in ballots to all registered voters in the Nov. 3 general election.
  • Delaware: On May 7, Gov. John Carney (D) announced that the state would automatically mail absentee ballot applications to all eligible voters in the presidential preference primary.
  • Michigan: On May 19, Secretary of State Jocelyn Benson (D) announced that all registered voters in the Aug. 2 primary and Nov. 3 general election would automatically receive mail-in ballot applications.
  • New Jersey: On May 15, Gov. Phil Murphy (D) issued an executive order providing for expanded mail-in voting in the July 7 elections. All registered, active Democratic and Republican voters will automatically receive mail-in ballots. Unaffiliated and inactive voters will automatically receive mail-in ballot applications.
  • Oklahoma: On May 7, Gov. Kevin Stitt (R) signed SB210 into law, reinstating the absentee ballot notarization requirement struck down by the state supreme court on May 4. The legislation also included provisions applicable only to the 2020 election cycle, including absentee voting eligibility expansions and a modified verification requirement for those unable to have their absentee ballots notarized.
  • South Carolina: On May 13, Gov. Henry McMaster (R) signed into law a bill allowing any eligible South Carolina voter to request an absentee ballot for the state’s June 9 primary and subsequent runoff elections.

To date, 28 states have modified their absentee/mail-in voting procedures. These modifications can be divided into five broad categories:

  • Automatic mail-in ballots: Five states (California, Maryland, Montana, Nevada, and New Jersey) have opted to send mail-in ballots automatically to all eligible voters in advance of certain elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below. 
  • Automatic mail-in ballot applications: Twelve states (Connecticut, Delaware, Georgia, Idaho, Iowa, Michigan, Nebraska, New York, North Dakota, Rhode Island, South Dakota, and West Virginia) are automatically sending mail-in ballot applications to all eligible voters in advance of certain elections. These states are shaded in dark blue in the map below. 
  • Eligibility expansions: Eight states (Indiana, Kentucky, Massachusetts, New Hampshire, Oklahoma, South Carolina, Texas, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below. 
  • Deadline extensions: Three states (Ohio, Utah, and Wisconsin) have extended absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below. 

Legislation tracking 

To date, we have tracked 118 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 

Current as of May 19, 2020

Looking ahead 

We are tracking 60 lawsuits in 26 states involving pandemic-related election issues. In our next issue, we will turn our attention to these lawsuits, examining in greater detail some of the more noteworthy suits that have been filed in recent weeks. 



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