Florida Election Supervisor Doesn’t Know Meaning of “Canvass”

Florida Broward County Election Official Brenda Snipes is zero for two today, as a Florida judge sided with the Florida GOP and has ordered for the election supervisor to change her ways in how she handles vote-by-mail absentee ballots. Through a declaratory injunction ordered Friday, Supervisor Snipes is prevented from “opening the mail-in ballots in secret or before the county’s three-member Canvassing Board meets to determine the ballot’s validity.”

The Republican Party of Florida declared: “the Court’s ruling helps protect the integrity of this year’s election process, not just for Republicans but for all voters in Broward County.”

In the 17-page ruling, the judge repeatedly stated it was an issue that Snipes did not know what the meaning of the word “canvass” and she could state why the court shouldn’t side with the Florida GOP. The judge stated:

“Defendant has failed to rebut Plaintiff’s entitlement to relief … and has even admitted to misunderstanding the meaning of the word ‘canvass.’”

It is concerning that in the second largest county with voter participation in Florida, the county Election Supervisor, who has held the position since 2003, does not know what “canvass” means and believed that her office was operating according to state and local laws.

This is not the first sign of incompetence or corruption shown by Snipes. In 2016, she broke the law by destroying ballots cast in the congressional primary between Rep. Debbie Wasserman Schultz and Tim Canova, prior to the required waiting period.

As Florida prepares for their primary elections and the midterm general elections in November, it is concerning that there continues to be fraud and blatant incompetence in election administration. The people should have the confidence their election officials are ensuring that elections are fair, open, and honest -- not that these entrusted officials are acting lawlessly, unjustly, and ineptly.

RNLA to Host Florida Election Law CLE Training Amidst Key State Races

Maybe never in American history has the integrity of the electoral process and upholding the rule of law been more important than in 2018. Just in the past few months there has been significant evidence of voter fraud and allegations of corruption plaguing high level polling officials.

On June 28th, the Republican National Lawyers Association will be hosting an election law CLE presentation in Kissimmee, Florida. A major goal of the RNLA event will be to restore the high standard of honesty, integrity, and transparency in American elections. Panelists at the event will include some of the most respected and high-profile attorneys and officials in the state of Florida. Topics for the esteemed panelists will range from legal ethics, First Amendment issues on college campuses, and election law in general.

In addition to the electoral related discussion, the RNLA’s CLE presentation at the ‘Sunshine Summit’ will break down two key races in the state. First, the two major candidates for the Republican nominee for Attorney General will be speaking and sharing their vision for the position that is the most powerful attorney in the state. Speaking first will be Judge Ashley Moody who will then be followed by Representative Frank White. Judge Moody was the youngest judge in the history of Florida when she was appointed to the Circuit Court at the age of 31 in 2006. Representative White is an attorney who has represented the 2nd district in the state house since 2016.

The presentation will also include Jessica Furst Johnson hosting a discussion breaking down the key senate race in the Sunshine State. Governor Rick Scott looks to build on the success he has had as governor and unseat incumbent Democrat Senator Bill Nelson. Not only will attendees hear about the candidates and the races, they will also learn how they can get involved.  The event will take place at the Gaylord Palms Resort in Kissimmee, Florida starting at 10 am on Thursday, June 28. For more information on the event, visit the RNLA event page or RSVP here.

Supreme Court Upholds Ohio Voter Registration List Maintenance Procedure

This morning, the Supreme Court decided Husted v. Philip Randolph Institute, overturning 5 to 4 the Sixth Circuit decision that invalidated one of Ohio's voter registration list maintenance procedures.  Justice Alito wrote for the Court, starting by clearing stating the facts at issue, which have been politicized into slogans like "Ohio's voter purge" by the left throughout this case:

At issue in today’s case is an Ohio law that aims to keep the State’s voting lists up to date by removing the names of those who have moved out of the district where they are registered. Ohio uses the failure to vote for two years as a rough way of identifying voters who may have moved, and it then sends a preaddressed, postage prepaid card to these individuals asking them to verify that they still reside at the same address. Voters who do not return this card and fail to vote in any election for four more years are presumed to have moved and are removed from the rolls. We are asked to decide whether this program complies with federal law.

The Court found that Ohio's practice is in compliance with the National Voter Registration Act (NVRA) (internal citations omitted): 

Respondents argue (and the Sixth Circuit held) that, even if Ohio’s process complies with subsection (d), it nevertheless violates the Failure-to-Vote Clause—the clause that generally prohibits States from removing people from the rolls “by reason of [a] person’s failure to vote.” Respondents point out that Ohio’s Supplemental Process uses a person’s failure to vote twice: once as the trigger for sending return cards and again as one of the requirements for removal. Respondents conclude that this use of nonvoting is illegal.  

We reject this argument because the Failure-to-Vote Clause, both as originally enacted in the NVRA and as amended by HAVA, simply forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way. Instead, as permitted by subsection (d), Ohio removes registrants only if they have failed to vote and have failed to respond to a notice.

While the decision is largely one of statutory construction, it is also one that respects the proper role of the court and defers to the lawful policy judgments made by legislatures (internal citations omitted):

Requiring additional evidence not only second-guesses the congressional judgment embodied in subsection (d)’s removal process, but it also second-guesses the judgment of the Ohio Legislature as expressed in the State’s Supplemental Process. The Constitution gives States the authority to set the qualifications for voting in congressional elections,  as well as the authority to set the “Times, Places and Manner” to conduct such elections in the absence of contrary congressional direction. We have no authority to dismiss the considered judgment of Congress and the Ohio Legislature regarding the probative value of a registrant’s failure to send back a return card. . . .

It is not our prerogative to judge the reasonableness of that congressional judgment . . . . The dissents have a policy disagreement, not just with Ohio, but with Congress. But this case presents a question of statutory interpretation, not a question of policy. We have no authority to second-guess Congress or to decide whether Ohio’s Supplemental Process is the ideal method for keeping its voting rolls up to date. The only question before us is whether it violates federal law. It does not.

Justice Thomas wrote a concurrence to raise constitutional concerns with the respondents' view of the NVRA (internal citations omitted):

I join the Court’s opinion in full.  I write separately to add that respondents’ proposed interpretation of the National Voter Registration Act (NVRA) should also be rejected because it would raise significant constitutional concerns. . . . As I have previously explained, constitutional text and history both “confirm that States have the exclusive authority to set voter qualifications and to determine whether those qualifications are satisfied.” . . . Respondents’ reading of the NVRA would seriously interfere with the States’ constitutional authority to set and enforce voter qualifications.

While the left will hyperbolically decry this decision as promoting voter suppression, Ohio's process has many protections to prevent voters who still live in the state and wish to remain on the voter registration rolls from being removed.  That is why the Court correctly upheld the practice under the NVRA.  As Justice Alito noted, difficult policy judgments about the best ways to administer elections, protect the integrity of elections, and ensure that every eligible voter is able to vote should be made by legislatures, not by unelected judges.

Election Administration Issues for Key 2018 Primary Elections

Eight states voted on Tuesday in their primary elections, and at least two of them had significant problems in voting. In the South Dakota primaries, a Republican voter was told by an election supervisor to use an incorrect ballot.

Wrong place, wrong ballot. Voters contacted KELOLAND News about receiving the wrong ballots on election day. That includes Mark Millage, who lives in Sioux Falls. 

On their ballot, Republican voters in district nine got to choose between state senate candidates Lora Hubbel and Wayne H. Steinhauer. When Millage went to vote, polling place workers gave him a District 9 ballot. The problem is he is a District 11 voter. 

He says he told the polling place supervisor, who called county auditor Bob Litz's office. Millage, the former news director for KELOLAND News, says they told him to use the wrong ballot anyway.

Incorrect ballots were not the only problem for South Dakota’s Tuesday Primaries as a computer glitch in Sioux Falls led to chaos at a number of polling locations.

More than half the voting sites, 16 in all, extended the closing time on Tuesday’s election day to accommodate a late start to ballot-casting thanks to a computer problem: The county-issued Dell Computers that navigated the new e-poll book service were not connecting to the secure hot spots provided by a separate router for each device. 

Julie Pearson, Pennington County auditor, said she had no idea of how many voters were turned away at polling places, but the clunky equipment failure dogged many precincts. The laptops started up, but the election software connecting officials to the Secretary of State's voter registration. 

There was no paper back-up on hand, and without voter registration lists, poll workers couldn’t verify a voter’s identification and protect the integrity of the election process.

In California, voting issues were also rampant Tuesday as over 100,000 voters were left off voting rosters in Los Angeles County.

Los Angeles County Registrar-Recorder Dean Logan told CBS Los Angeles voters whose names did not appear on the roster at their polling place would be given provisional ballots, after a printing issue affected the voter rolls of more than one in four precincts. A total of 118,522 names were omitted.

Another controversy in California dealt with questions of impropriety as the Dianne Feinstein Elementary School in San Francisco was used as a polling location for the California Senate Primary which featured Senator Dianne Feinstein.

These problems show the importance of poll watchers and lawyer observers to ensure open, fair and honest elections. Not just to stop vote fraud.

ICYMI: 5th Circuit Upholds Amended Texas Voter ID Law

Last Friday, the Fifth Circuit upheld Texas' voter ID law, which it had amended in 2017 in response to an earlier en banc Fifth Circuit decision.  Judge Edith Jones wrote for the three-judge panel in Veasey v. Abbott, noting the irony that the plaintiffs were challenging, and the district court found invalid, the very interim remedy that both the plaintiffs and the district court had agreed to in 2016 (internal citations omitted): 

In the face of these obvious improvements over SB 14, Plaintiffs neither allude to nor adduce any proof that SB 5 has a discriminatory effect on indigent minority voters. To a large extent, SB 5 replicates the terms to which both parties agreed as an interim measure to cure SB 14’s Section 2 deficiencies in advance of the national 2016 election. Although the interim remedy was without prejudice to any party’s asserting its legal rights at a later date, one must wonder why the features the Plaintiffs agreed to only a year ago yielded an insufficient remedy when enacted into law. No explanation is forthcoming in their briefs. . . . 

That Plaintiffs’ factual critique boils down to speculation demonstrates the prematurity of the court’s decision to invalidate SB 5 in 2017, well before the law took effect in 2018. Nothing we conclude today disposes of any potential challenges to SB 5 in the future. Plaintiffs may file a new lawsuit, and bear the burden of proof, if the promise of the law to remedy disparate impact on indigent minority voters is not fulfilled. They did not challenge SB 14, for instance, for several years after its effective date. As a remedy for the deficiencies found by this court in Veasey II, however, there is no evidentiary or legal basis for rejecting SB 5, and the district court was bound not to take the drastic step of enjoining it. Further, because SB 5 constitutes an effective remedy for the only deficiencies testified to in SB 14, and it essentially mirrors an agreed interim order for the same purpose, the State has acted promptly following this court’s mandate, and there is no equitable basis for subjecting Texas to ongoing federal election scrutiny under Section 3(c) [of the Voting Rights Act].

Jason Snead and Hans von Spakovsky of The Heritage Foundation point out that the decision, while important for election integrity reasons, also has major implications for the rule of law:

It was on this flimsy legal basis that [District Court Judge Nelva Gonzales] Ramos supported her decision to jettison the entire Texas voter-ID law. This judgment was made despite the fact that “all of the evidence supports that SB 5 was designed to remedy every defect” in the earlier law and “to supply indigent voter protections” recommended by the Fifth Circuit. . . . 

It’d hard to disagree with Judge Jones’s reasoning here. Texas made, by all rights, a good-faith attempt to rectify problems with its election laws while preserving an essential, commonsense tool for fighting fraudulent votes. The solution it settled on was largely based on Ramos’s own 2016 remedy, and it offers a broader set of alternatives “to producing compliant photo voter ID” than the Indiana statute the Supreme Court upheld as constitutional in 2008. Its “reasonable impediment” exemption is also virtually identical to South Carolina’s voter-ID law. South Carolina’s law was upheld by a three-judge federal court in the District of Columbia in 2012 and has caused no problems. 

Judge Ramos may have a personal bias against voter-ID laws, but as a federal judge she is not entitled to substitute her own policy preferences for those of elected lawmakers. As Judge Jones reminded us, “Courts must defer to [the government’s proposed remedy] unless the newly enacted plan is itself unconstitutional or violates federal law.” 

Neither condition applies here, and Jones rightly reversed Ramos’s decision. Judge Jones has delivered a victory not only for the integrity of the ballot box, but for the rule of law itself.

While the plaintiffs will likely appeal to the en banc Fifth Circuit and the Supreme Court, the efforts of Chairman Chuck Grassley and Leader Mitch McConnell to confirm President Trump's excellent judicial nominees have changed the composition of both of those courts since this case was last on appeal in 2016 and 2017.  

PA GOP Describes Special Election Irregularities in Letter to PA SOS

The Republican Party of Pennsylvania asked acting Secretary of the Commonwealth Robert Torres to investigate several "irregularities" during last Tuesday's special election in the 18th Congressional District.  Democrat Conor Lamb won the race by just 627 votes over Republican Richard Saccone, a small enough margin that even a relatively small number of confused or disenfranchised voters could change the outcome of the race.

An attorney and authorized campaign representative was prevented from observing vote counting in Allegheny County:

First, an authorized campaign attorney, Russell Giancola, presented several forms of permissible credentials but was prevented from observing the computation of the vote count in Allegheny County Tuesday night. . . . While attorney Giancola was finally able to obtain this compliance with the inappropriate preconditions, the delay deprived the campaign of the right to have counsel present during the computation reporting process.

Allegheny and Washington Counties failed to provide the notice to military and overseas voter required by the Uniform Military and Overseas Voters Act.  Voting machines were not calibrated properly:

Third, we received multiple complaints throughout the 18th Congressional District regarding calibration issues involving the voting machines.  Numerous voters have called the Party and the Saccone campaign to complain that they selected Rick Saccone on the voting screen, only for Conor Lamb to appear on the confirmation screen.  It is our understanding that some of these issues were not resolved during the Special Election.

Poll workers failed to follow provisional ballot procedures:

Fourth, the Party received numerous complaints about voters not appearing on the voter rolls, and being denied the ability to cast a provisional ballot at their polling place.  In at least one instance, a voter was denied a provisional ballot at his precinct and directed to vote at his prior precinct in the neighboring county where he used to reside before moving several months ago.  This violates voters rights under the Help America Vote Act and Commonwealth's implementing statutes and regulations. In addition, given the closeness of this election, denial of the right to vote for even a small number of eligible voters could cast the outcome of this election into doubt.

When the Democrat-controlled Pennsylvania Supreme Court instituted a new congressional district map last month, it kept the previous lines for Special Election.  Both U.S. Supreme Court Justice Samuel Alito and a three-judge panel of the U.S. District Court for the Middle District of Pennsylvania declined to overturn that new map today (more about that on this blog tomorrow).  When voters tried to search for their polling place, they were incorrectly shown polling places under the new map:

Finally, as your office was made aware on election day, the Department of State's website www.votespa.com errantly directed voters to polling places matched to their address under the recently imposed Pennsylvania Supreme Court map . . . rather than the congressional district lines in use for the Special Election.  Since election day, we have heard from potential voters in Pennsylvania's 18th Congressional District who attempted to vote but were informed that they did not live in the district any longer. 

This illustrates some of the ills of court-ordered district maps - they create confusion for voters, generate administrative hassles (and opportunities for errors) for election officials, and disrupt constituencies mid-term.

We hope that the Pennsylvania Department of State takes these allegations seriously and investigates these irregularities so that the integrity of future elections is not called into question.

Recount Likely in PA Special Election Amid Allegations of Irregularities

Yesterday's much-publicized special election in Pennsylvania's 18th congressional district remains close, with the Democrat Conor Lamb leading Republican Rick Saccone by just 627 votes out of over 228,000 cast.  A recount is expected:

A source familiar with the next steps said Republican attorneys are planning to go to court Wednesday to demand the impounding of all ballots and machines that were used Tuesday night in all counties, as they plan for a possible recount.

There are allegations of irregularities with the voting machines and with absentee ballot processing:

Republicans plan to probe allegations that touch screen machines in Allegheny County were not properly calibrated and could have possibly registered votes for Lamb when the voter intended to vote for Saccone. 

These attorneys also plan to allege that GOP attorneys were blocked from observing absentee ballots by Allegheny County election supervisors.

There are also some concerns that the newly court-drawn map for the next election caused confusion. 

Another absentee ballot processing irregularity occurred in Washington County, which originally did not plan to count its 1,195 absentee ballots until today.  It planned to hold them in a secured location overnight before distributing them back out to the election precincts to be counted and reported back to the county election board.  Then, late last night, county officials changed their minds and decided to count them last night because of the close nature of the race.

We will update readers of this blog on the status of the recount, any investigations, and any litigation resulting from this race.

ICYMI: Federal Judge in Alabama Dismisses Lawsuit Contesting Voter ID Law

Last Wednesday, January 10th, U.S. District Judge L. Scott Coogler of the Northern District of Alabama dismissed a lawsuit brought against the Alabama Secretary of State in an attempt to block a recently passed voter ID law.

Plaintiffs argue the law violated the Equal Protection Clause of the Constitution and the new requirement caused an "undue burden" on minorities in part because the state had curtailed driver's license operations. Meanwhile, Defendants contested that the new voter ID law did not and, in fact, a variety of documents were acceptable forms of identification and the state offered to provide free ID cards to those unable to afford them.

On Wednesday, NPR reported:

[Judge] Coogler agreed with the state's argument that it had important "regulatory interests" in passing the law, and that it was not intended to disenfranchise black voters. . . . The state said the law was part of national trend to combat voter fraud, increase voter confidence and modernize elections. [Alabama Secretary of State John] Merrill maintained the case should be thrown out, arguing the law provided for a wide range of acceptable IDs and procedures for voters to obtain a valid photo voter identification card, including waiving fees for nondriver IDs. Additionally, the state has a mobile ID unit that provides free voter ID cards for people who lack transportation to other state offices to obtain one.

[Judge] Coogler found that "even though Black and Latino registered voters are almost twice as likely as white voters to lack an acceptable photo ID, no one is prevented from voting." He says the state has made it easy to get an ID for voting purposes. [] "The issue is not who has or does not have a photo ID at present," Coogler wrote. "The issue is whether the Photo ID Law denies members of a minority group the opportunity to reasonably get one, assuming they want one." [Judge Coogler] found that "minorities do not have less opportunity to vote under Alabama Photo ID law because everyone has the same opportunity to obtain an ID."

NPR reports that Judge Coogler concludes in the opinion:

"The plaintiffs have simply failed to provide evidence that members of the protected class have less of an opportunity than others to participate in the political process," Coogler wrote. He cited rulings from the U.S. Supreme Court and the 11th U.S. Circuit Court of Appeals that upheld similar voter ID laws in Indiana and Georgia.

Alabama Attorney General Steve Marshall issued the following statement shortly after news of the dismissal was announced:

Today’s decision to dismiss the lawsuit is without a doubt the right decision. . . . Alabama’s voter identification law is one of the broadest in the nation with procedures in place to allow anyone who does not have a photo ID to obtain one. The court order makes this point exceedingly clear: ‘…a person who does not have a photo ID today is not prevented from voting if he or she can easily get one, and it is so easy to get a photo ID in Alabama, no one is prevented from voting.’

This court applied the proper analysis under Crawford v. Marion Co. (the Supreme Court's 2008 Indiana voter ID decision) to respect the will of the people of Alabama and determine that Alabama's voter ID law does not infringe upon the right to vote.  We will keep an eye on this case and will report on any appeals.

RNC Consent Decree Ends After 35 Years

After 35 years, the consent decree that prohibited the Republican National Committee (RNC) from engaging in ballot security activities was terminated by a federal judge.  RNLA Chair John Ryder, former General Counsel to the RNC, stated:

Yesterday, the U.S. District Court for the District of New Jersey ended the consent decree that had banned the Republican National Committee from engaging in activities to ensure that elections are open, fair, and honest since 1982.  Despite years and much money spent searching for evidence of Republican voter suppression, the Democratic National Committee could not present evidence to the court sufficient for the consent decree to remain in effect.  We applaud the fact that the RNC may now, on the same, lawful, non-discriminatory basis as other political organizations, ensure that every eligible voter is able to vote and that the votes of ineligible voters are not counted.

In November, the judge noted that the DNC had not presented any evidence of voter suppression, let alone any by the RNC:

“As far as what’s before this court, you’ve presented me with no evidence of actual voter suppression efforts on the day of the election, much less tying it to the RNC,” [Judge John Michael] Vazquez told DNC attorneys.

The judge had kept the consent decree in force after a December 1 sunset date to give the DNC an additional opportunity to present evidence of voter suppression or violation of the decree's provisions by the RNC.  It failed to do so:

In order to extend the decree, the DNC needed to show that the RNC violated the terms of pact. . . . However, Vazquez, an appointee of former President Barack Obama, said in his ruling that despite the various claims, the Democrats had not shown any violation "by a preponderance of the evidence." . . . 

"We are gratified that the judge recognized our full compliance with the consent decree and rejected the DNC’s baseless claims," said RNC communications director Ryan Mahoney. 

"Today’s ruling will allow the RNC to work more closely with state parties and campaigns to do what we do best, ensure that more people vote through our unmatched field program." 

While the consent decree has been in effect, other Republican organizations, such as the RNLA, NRCC, NRSC, Republican state parties, and other groups, have worked to ensure that elections are open, fair, and honest.  As Mr. Ryder noted, we look forward to a new era where the RNC can, if it so chooses, be a part of this effort to protect the right to vote of every eligible voter.  

Conservatives Respond to End of Election Integrity Commission

On Wednesday, President Trump ended the Presidential Advisory Commission on Election Integrity (PACEI), which had been plagued by lawsuits from liberal organizations and even one of the Commission's own Democratic members.  Liberals are touting their victory in "resisting" an initiative started by President Trump, but conservatives have also responded.

RNLA Executive Director Michael Thielen wrote today in The Hill:

Why is this hatred so strong? Besides that it is the liberal election administration community’s way of participating in the Trump “resist” movement, they feared the PACEI because the last two presidential election commissions have recommended corrective measures that go against the liberal agenda. . . . Contrary to the liberal’s narrative, the PACEI disbanding does not prove there is no vote fraud; rather, it proves liberals fear looking into this issue because things such as illegal non-citizen votes favor the Democratic Party in elections. . . . 

In the end, liberals won this battle to prevent any inquiry into fraudulent votes and messy elections, but may lose the war. When the President disbanded the PACEI, he also “asked the Department of Homeland Security to review these issues.” . . . If DHS reviews the issues that the PACEI was tasked with studying, it could use the SAVE database to help states fix their voter registration lists and find non-citizens registered and voting much more efficiently than an advisory commission ever could, as election officials have been clamoring for for years. . . .

So Democrats have “resisted” the bipartisan efforts, in the fine tradition of the last two presidential election commissions, to study and propose solutions to fix our elections. Sadly, the American people are those who lose the most whenever the liberal election world is “successful.” Every illegal vote cancels out the vote of an American citizen, who has lost the right of self-government due to the political agenda of liberal activists. But the left may lose the war, as their victory may hurt their real goals and make it easier to stop non-citizens from registering and voting. 

Former PACEI member Hans von Spakovsky issued the following statement:

While I am disappointed about the dissolution of the Advisory Commission on Election Integrity, I understand President Trump’s action.  The ability of the Commission to research, review, and examine the integrity and security of the American election process was made almost impossible by the unprecedented and unjustified obstruction by many state election officials who defiantly refused to cooperate with the Commission.

The Commission was also hampered by the almost dozen meritless lawsuits that were filed against the Commission by progressive advocacy groups that were solely intended to prevent its work and take up the time of the Commission’s staff with frivolous litigation. 

The American people understand how important it is that we have a secure system in which everyone who is eligible is able to vote and their vote is not diluted or stolen by fraudulent votes or administrative errors and mistakes by election officials.

The obstacles and impediments used to hinder the work of the Commission is evidence that there are many politicians and activists who want to prevent the American people from finding out the truth.

Fellow former PACEI member Christian Adams also issued a statement:

Foes of election integrity lost their seat at the table.  Now the important work of improving the integrity of the election process will be done by people who believe in election integrity, not by those who seek to preserve vulnerabilities in the system. Over the years, demonstrable and empirical data has been developed showing noncitizen voting, double voting, and defects in the election system that no credible observer could deny. Some news outlets and activists have decided to ignore those facts, as if they do not exist.  Unfortunately, there are plenty of well-funded groups, activist academics and individuals who are not credible who sought to undermine and sabotage the Commission’s work.  They may delight today in the dissolution of the Commission, but before long they’ll realize that advocates of election integrity have more stamina, support and perseverance than they realize.

We thank the members of the PACEI for their work and look forward to future efforts to improve the integrity of elections and voters' confidence in election systems and their outcomes. 

Control of Virginia House of Delegates Still Hangs in the Balance

After Virginia's state and local elections on November 7, there were four extremely close House of Delegates' races.  Here is what happened and the status of each of them:

• 28th District: Republican Bob Thomas led Democrat Joshua Cole by 82 votes after the election.  After a recount, Thomas' margin of victory narrowed to 73 votes.  However, Democratic voters in the district, through leading Democratic attorney Marc Elias, have filed suit regarding 147 ballots cast in the wrong district, asking for a new election.  A hearing is scheduled in this case on Friday, January 5.
• 40th District: On election night, Democrat Donte Tanner led incumbent Republican Tim Hugo by 68 votes.  During the canvass the next morning, 183 votes for Hugo were discovered that were not counted due to human error, giving Hugo a 115 vote lead.  After all votes were counted and a brief recount, Hugo won the seat by a 99-vote margin.
• 68th District: After the election, Democrat Dawn Adams led incumbent Republican G. Manoli Loupassi by 336 votes.  After a recount, the margin of Adams' victory increased to 347.
• 94th District: After Election Day, incumbent Republican David Yancey led Democrat Shelly Simonds by 12 votes, which was certified as a 10-vote lead.  
• After a recount, Simonds led by one vote, but Yancey challenged a ballot that was excluded, arguing that it should be counted.  The three-judge recount panel determined on December 20 that the ballot should be counted, resulting in a tied vote.  
• Virginia law provides for decision by lot in the event of a tie, and the Virginia State Board of Elections planned to conduct the drawing (by placing the names in two identical old film canisters and selecting one from a bowl) on December 27.  The drawing was delayed after Simonds filed a petition to reverse  the decision to count the disputed ballot.  
• On January 2, the Virginia SBE re-scheduled the drawing for tomorrow (Thursday, January 4) at 11:00 AM.
• This afternoon, the court denied Simonds' petition to have the ballot not counted, so the race remains tied.  
• After the ruling, Simonds pledged not to challenge the result of the random drawing, asking Yancey to pledge the same, which he refused.  After the refusal, Simonds also said she would keep her legal options open.

One House seat has not yet been decided (but could be tomorrow), and two are currently under litigation.  Delegates are scheduled to be sworn in for the new session on January 10.  Currently, the balance in the Virginia House is 50 Republicans to 49 Democrats, with the 94th District outstanding.  If the House is tied, the parties would have to broker a power-sharing agreement.  If the 94th is still unresolved on January 10, a Republican speaker and leadership would be elected based on the Republican majority, even if Simonds eventually wins, leading to a tied House.

What can we learn from this?  

• First, it is actually true that every vote counts.  
• Second, election integrity and smooth election administration matter.  Take the canvass in the 40th District.  Often canvasses are seemingly formulaic processes to verify the votes, but in the Hugo-Tanner race, the canvass uncovered two significant errors that completely changed the winner of the election.  These errors would not have been caught without a thorough process of double-checking the results and sharp-eyed election workers taking their jobs seriously.  
• Third, well-trainied election officials and proper election administration are key, especially in close elections.  
• Fourth, while extremely close elections and lengthy post-election procedures and litigation may seem rare, it is vital that parties and candidates be well-prepared for such events in advance of Election Day.  
• Fifth, attorneys have very important roles to play at every point of this process.  Attorneys resolved problems on Election Day, represented candidates and parties, observed the canvasses and recounts, and are litigating fast-moving cases raising novel issues of law.

We will continue to follow and report on the outcome of these races in Virginia.

More Non-Citizens May Be Registered to Vote in Pennsylvania Than Initial Reports Indicated

The latest from the non-citizen voter registration problems in Pennsylvania is that the problem could be much larger than initially thought.  Back in September, Philadelphia City Commissioner Al Schmidt reported that 220 non-citizens registered to vote in Philadelphia through a "glitch" at the DMV that allowed persons to register to vote after they had proven that they were non-citizens.  41% had voted at least once.

Then in October, Pennsylvania's Democratic Secretary of State, Pedro Cortes, resigned abruptly and with no explanation.  No official explanation has been given to date, though it was revealed in November that Democratic Governor Tom Wolf forced the resignation, but rumors abound that the resignation was related to the non-citizen registration debacle.

But now it appears after some initial investigation that the problem is greater than the early estimates:

Philadelphia election Commissioner Al Schmidt told state lawmakers this past week that there may be tens of thousands of non-US citizens who have registered to vote in Pennsylvania…and that for their sake, state officials should try to contact them. 

Commissioner Al Schmidt told a Senate committee that many of the non-US citizens who registered to vote in Philadelphia, perhaps unwittingly, did so through a glitch in the state’s motor voter system. While the known cases number only several hundred, he says they are all self-reported. Schmidt says more than 100,000 PA driver’s license numbers with Immigration and Naturalization Service indicators match with voter registration records. . . . "We’re not talking about an insignificant number here,” said Schmidt. “We’re talking about a potentially very significant number of thousands and tens of thousands.”

While not all of these license number hits are non-citizens registered to vote, certainly a significant number are.  As Commissioner Schmidt points out, the victims of non-citizen voter registration and voting are not only the citizens whose votes are cancelled out but the non-citizens themselves, as voter registration as a non-citizen can hinder any future naturalization process:

Schmidt says those people should be contacted. Besides the issue of election integrity, he says registering to vote – even unintentionally – will derail an immigrant’s path to US citizenship.

We will continue to follow this story and investigation.  It demonstrates the immense importance of proper election procedures and testing of election systems to ensure that there are no "glitches," whether technical or substantive, that threaten the integrity of voter registration or elections.

Obama-Appointed Judge Confirms There is NO Evidence of Republican Voter Suppression

Since 1981 the Republican National Committee has been under a consent decree regarding election integrity operations. For years the RNC has avoided any and everything to do with such activities.  The Democratic National Committee and its allies have been frothing at the mouth on this issue, despite no evidence of ANYONE on the right engaging in voter suppression.  Today, a federal judge appointed by President Obama, Michael Vazquez, made a statement that should put the argument over voter suppression to rest for good:

 “As far as what’s before this court, you’ve presented me with no evidence of actual voter suppression efforts on the day of the election, much less tying it to the RNC,” Vazquez told DNC attorneys.

This statement is worth breaking down.  In 2016, in the entire country the DNC with its large staff, money and nationwide affiliates could find “no evidence” of “actual voter suppression.”  The word actual is important because the DNC, Democrats and left-wing groups have accused Republicans in the media and fundraised off such claimed “voter suppression.”  Yet, the DNC could find “no evidence.” 

The DNC and liberal allies will no doubt latch on to the fact that the judge granted a deposition of Sean Spicer based on comments he made in a news article.  However, again, the judge stated:

“I want to give you a realistic expectation that I’m not going to be inclined to grant any additional discovery unless, through material issue of the consent decree, you have real evidence that what he said was not accurate,” he said.

The RNC did not engage in election integrity operation in 2016 or for years prior.  More importantly, an Obama-appointed judge agrees that there is no “actual voter suppression” by Republicans.   Now it is up to the media to focus on the real problems with election administration and to call out Democrats for "fake news."  

Interpreter Program in NYC Organized by a Candidate on the Ballot

New York City Mayor Bill de Blasio, a candidate on the ballot tomorrow, is sending Russian and Haitian Creole translators paid by the City to the polls over the objections of the City Board of Elections:

The mayor, who is up for reelection, will have his own Office of Immigrant Affairs station 40 Russian- and Haitian Creole-language interpreters outside 20 polling places in southern Brooklyn on Election Day, at a total cost to taxpayers of around $8,000 in funding from the City Council. . . . But Board of Elections President Frederick Umane said the plan “causes a problem for us because…it’s a City Council- and mayor-sponsored program that may look to affect that election.” 

“It sort of raises perhaps an issue of the smell test or whatever, you know, that this is the year they want to do it,” he said, according to a recording of the Oct. 10 meeting. . . . 

De Blasio's challenger also believes that it is unrealistic to expect interpreters paid for by one of the candidates on the ballot to act as neutral translators:

De Blasio’s Republican challenger, Nicole Malliotakis, cried foul when told about the Democratic incumbent’s plan. . . . “It is inappropriate for an agency that is under the control of the mayor to be assisting individuals when they’re casting their ballot.” 

“Everything is controlled by the mayor — that makes it a concern,” the Staten Island assemblywoman added.

While we hope that the interpreters will only be assisting voters to vote as the voters desire, there have been reports in previous elections of interpreters pressuring voters to vote for a certain candidate or party.  The RNLA will be monitoring events in New York City tomorrow and posting updates about the state and local elections happening around the country on its Twitter feed.  

The November Races in Virginia Are Tightening...

Virginia features the only race for Attorney General this year, as well as important contests for Governor and Lieutenant Governor.  This year, we need your help to ensure fair, open, and honest elections.

Two of the last three elections for Attorney General have gone to a recount. In 2005, we narrowly won; and in 2013, we narrowly lost.  This year, the polls in the statewide race are neck and neck.

Despite strong headwinds, our candidates have closed the gap, but we need help to ensure a fair election and to be prepared for a recount in one or more of the three statewide races. There are also many important races for Virginia's General Assembly where the Democrats are contesting more Republican-held seats than they have since Republicans secured their first post-Reconstruction majorities in the late 1990's.

Below is a list of statewide polls which show how close this race really is:

Statewide Polls

September 25 Wason Center (Margin +/-4)

Gillespie 41%; Northam 47%

Vogel 42%; Fairfax 46%

Adams 42%; Herring 47%

September 21 Fox News (Margin +/-4)

Gillespie 38%; Northam 42%

September 18 Suffolk University (Margin +/-4)

Gillespie 42%; Northam 42%

General Assembly Contests 

2017 - 60 Major Party Contested Seats 

Contested House Seats - 2005-2017

The RNLA is committed to ensuring that elections in Virginia remain open, fair and honest.  There will be a series of CLE trainings throughout the state, starting with a two-hour training in Washington, D.C. tonight.  For more information, or to RSVP, click here.

-Chris Marston, RNLA Virginia Chapter Chair

Philadelphia Election Fraud Trial Pending in Federal Court

As we blogged earlier, in March 2017, a last-minute Democratic candidate, Emilio Vazquez, for the 197th Pennsylvania House race unexpectedly won a write-in campaign, after the former Democratic nominee was disqualified and another candidate could not be added to the ballot in time.

The only two candidates on the ballot were a Republican and a Green Party candidate, in a heavily Democratic district. Republicans had a shot at winning this normally Democratic state legislature seat. However, with the help of "non-partisan" poll workers, the write-in candidate won in a landslide.

This vivid case of election and vote fraud is now pending before the U.S. District Court for the Eastern District of Pennsylvania. Currently, the case is facing pretrial motions to dismiss. Philadelphia Metro reported:

The parties on both sides of a potential lawsuit that claims illegal electioneering took place during a special election in the city’s 197th Pennsylvania House District will need to wait more than six weeks before they will know if the case will be heard in federal court. . . . Judge Joel H. Slomsky requested all parties involved to submit supplemental materials after they receive a transcript of the day’s proceedings before he would rule on whether the case could be brought to trial.

Lawyers for both [Green Party's Cheri] Honkala and [Republican Lucida] Little, as well as the Republican City Committee, contend that the pair were deprived of a fair election, with several alleged examples being brought up in court, including poll workers going as far as following voters into voting booths on the day of the election in order to force voters to cast their ballot for Vazquez.

“This is massive fraud on a regular basis, and we have to stop it if we can,” Sam Stretton, an attorney for Honkala, told the judge during the hearing. . . Stretton argued that they have reviewed all avenues available to them and have determined that the most appropriate action was to file a federal lawsuit hoping to void the results of the election that put Vazquez in office. They also claimed that their rights under the Federal Voting Rights Act and Philadelphia and Pennsylvania Election Codes were violated during the election. “We did not bring this lightly,” said Stretton. “This is a pattern where everything that could happen wrong, happened wrong.”

While both parties saved specifics of their cases for the full trial, Linda Kerns, an attorney for Little and the Republican City Committee, said that, if the case were brought to trial, they could prove that poll workers gave write-in voters stamps that forced them to vote for Vazquez and had images that could prove at least four people – “eight legs,” as she told the judge – could be seen in one voting booth in the district, which she said indicated that poll workers followed voters into polls in order to manipulate their votes. . . .

[Judge] Slomsky’s decision isn’t expected to be heard for at least six weeks, as obtaining a transcript of Thursday's hearing is expected to take 30 days and the attornies have an additional two weeks to submit additional materials. 

We will also keep you posted once the Court issues its ruling. Tonight, the RNLA's Southeastern Pennsylvania Chapter will be hosting a Fall Reception. This Philadelphia election and vote fraud story is surely going to be one of the topics of conversation. There is still time to RSVP if you are interested in attending this reception and meeting fellow members and friends of the RNLA.

Concerns with Klobuchar-Graham Election Security Amendment

Democratic Senator Amy Klobuchar of Minnesota and Republican Senator Lindsey Graham of South Carolina have co-sponsored an amendment to the National Defense Authorization Act providing for federal funding for state election security measures.  While the security community has embraced this amendment, and we thank Sen. Graham for taking the problem of election security seriously in a way that attempts to respect state power, we have some concerns about this measure:

• It is a serious amendment of the Help America Vote Act (HAVA) that should be approached carefully, and the process should include hearing where various stakeholders testify.
• It places enormous new responsibilities on the Election Assistance Commission (EAC), an agency which has struggled to fulfill its existing mandate and operate its existing advisory boards, which faces a budget crisis, and which may not have the authority to accomplish what the amendment requires.
• The EAC already accomplishes many of the functions in this amendment, but the amendment adds more bureaucracy and spends more money to do it.  It is an enormous aggregation of federal power.
• It formalizes the role of the Department of Homeland Security and the Executive Branch to set standards, which the states are required to meet to receive federal funding.  Currently, the EAC is the only federal standard-setting standard entity for elections, and it is an independent agency.
• An existing voluntary program to certify voter registration systems appeared to be working well, aside from DHS withholding important security information from the states last fall.  States are agreeing to this new measure because they are already doing these things on a voluntary basis and need the funding, but a voluntary program and a mandatory (at least, from the perspective of funding) program are vastly different in terms of who is controlling the election security standards and systems.
• It excludes states that use direct recording electronic (DRE) voting machines.  While there have been some serious problems with DRE machines (and Virginia decertified all DREs in the state last week), DREs are the only machines many localities have and they make voting easier for voters with disabilities.
• It would allow states to implement mandatory voter registration and other progressive reforms with federal funds.

This amendment needs some serious study and input from election administration experts--not just computer, national security, and cybersecurity experts--before it moves forward in the Senate.

Among other burdens placed on the EAC, the amendment requires it and a commission to conduct an investigation of the foreign interference in the 2016 election and the potential for interference in future elections.  An existing commission, the Presidential Advisory Commission on Election Integrity, is already investigating election security and voting machines as part of its mission to study the U.S. election system and what promotes or decreases voter confidence in the system.  The next meeting of the commission is tomorrow, from 10:00 AM to 4:00 PM Eastern.  RNLA will be live-tweeting the meeting.

The RNLA Thanks the EIC for Working to Restore Confidence in our Elections

The Republican National Lawyers Association submitted a comment to the Presidential Advisory Election Integrity Commission (EIC). As we have previously posted and highlighted, the EIC was seeking public comment ahead of it next meeting on Tuesday, September 12th in New Hampshire. 

A brief expert of the RNLA's comment to the EIC:

The United States has the finest election system in the world and enjoys a proud position as the leading, longest lasting representative democracy in the world. Yet, there is always work to be done to improve the election system, and America is currently experiencing a crisis of confidence in its election system. A recent poll showed that a record-low 30% of Americans are confident in the “honesty of elections.”  

 While liberals and establishment Democrats continue to oppose the Presidential Advisory Commission on Election Integrity (EIC) and its work, the EIC is taking an important step to address this crisis of confidence in our election systems by studying the problem, inviting expert testimony, and encouraging public comments. Indeed, the EIC is engaging in exactly what one of the EIC’s most vocal opponents, Senate Minority Leader Chuck Schumer, recently called for: a “public debate about these issues where experts can discuss policies like same-day registration as well as alleged voter fraud.”  By studying and taking seriously the problems and perception of problems in our election system, the EIC has an unparalleled opportunity to improve the public’s confidence in the process and outcomes of elections with the goal of increasing voter turnout, for all eligible voters. The RNLA thanks the EIC and its commissioners for undertaking this important work.

While some citizens will always vote and some citizens will never vote, for many citizens whether they turn out to vote depends on the candidates and issues on the ballot and whether they believe their vote counts and will make a difference. Despite the hyperbolic rhetoric, studies and polls consistently show that election integrity is important to the American people and that greater election integrity will likely lead to greater voter confidence and turnout

The Commission also released a proposed agenda for the meeting, available here. We look forward and encourage a meaningful discussion on the issues that threaten our votes and election integrity, generally, as we work to improve our system moving forward. The RNLA will bring you the highlights from this meeting next week here on our blog, our website, and on Twitter and Facebook.

President’s Election Integrity Commission Seeking Public Comments

The Presidential Advisory Commission on Election Integrity, as part of its mission to serve the American people, is inviting public comment throughout the period of its work and particularly before the next meeting:

[T]he EIC is seeking to improve the public’s confidence in the process and outcomes of elections with the goal of increasing voter turnout, for all voters. At the next meeting of the EIC on Tuesday, September 12, at 10:00 AM, the EIC will hear testimony on how election integrity impacts voter confidence and voter turnout.  

Despite the hyperbolic rhetoric, studies and polls consistently show that election integrity is important to the American people and that greater election integrity will likely lead to greater voter confidence and turnout:

• An August 2016 Gallup poll found that 80% of Americans, including 77% of minorities and 63% of Democrats, support requiring photo ID prior to voting.
• The Gallup poll found that 68% of Americans view ballots cast by ineligible voters as a problem.
• An August 2017 Rasmussen Reports poll found that 70% of likely voters support requiring photo identification prior to voting.
• Voter ID requirements have been associated with higher turnout (or at a minimum, no effect on turnout):
• In 2016, many states with voter ID laws saw record turnout.
• Wisconsin has seen a steady increase in turnout since the enactment of its voter ID law.
• A 2006 study by John Lott, one of the experts testifying before the EIC on September 12, found that voter turnout in Mexico increased after adoption of a very strict voter ID law.  

Why does election integrity matter? Ineligible votes are what really disenfranchise voters:

1,852 non-citizens who were removed from the voter rolls in the past six years in Virginia had voted, casting 7,474 total illegal ballots. The 2013 attorney general’s race was won by just 907 votes. 

In July, Broward County, Florida, Democrat Supervisor of Elections Brenda Snipes admitted that noncitizens and ineligible felons do vote in “major elections” despite not being eligible, often as a result of the flood of new voter registrations submitted by activist groups directly before elections.  

What can you do? Submit a public comment on “laws, rules, policies, activities, strategies, and practices that enhance and/or undermine the American people's confidence in the integrity of the voting processes in Federal elections, as well as vulnerabilities in the voting systems and practices used for Federal elections.” Groups and individuals are encouraged to submit comments. Comments pertaining to the September 12 meeting must be submitted by Friday, September 8, at 5:00 PM. Additional information is available at: https://www.regulations.gov/document?D=GSA-GSA-2017-0002-0104.

We invite all RNLA members and friends to submit comments by next Friday.

ACLU Challenges CA's Signature Verification Requirement for Mail Ballots

In the latest episode of liberals turning to the courts due to opposition to election integrity protections and impatience with the legislative process, the ACLU has sued California over its signature matching requirement for mail ballots:

According to the ACLU, California’s election code requires election officials to reject vote-by-mail ballots if they believe a signature on the ballot does not match the signature on file. 

The problem lies in the lack of handwriting-analysis training for election officials, according to the petition – a problem compounded by the fact that voters whose ballots are rejected aren’t told, meaning thousands of voters are discounted without their knowledge. . . . 

[Secretary of State Alex] Padilla’s office pushed back against many of the claims made in the petition, saying that California has one of the lowest vote-by-mail rejection rates in the nation. . . . 

The petitioners want a judge to declare the specific elections statute unconstitutional while declaring that a ballot may be discarded on the basis of a signature mismatch only if the voter is notified first.

Signature verification is a vital protection for the integrity of mail ballots, particularly in a state like California with no accompanying voter ID requirement, extremely messy voter rolls, problems with deceased persons voting, and problems with mailing a large number of ballots to one address.  California needs reform of its mail ballot process.  

Providing notice to voters whose ballots are disqualified due to mismatched signatures is a good policy -- both to provide notice to voters that someone has fraudulently voted in their names and to allow voters whose ballots were incorrectly disqualified the opportunity for their votes to be counted -- but it is a policy decision that should be made by the people's elected representatives, not by unelected judges prodded by liberal activists not willing to go through the deliberative process to enact a new law.  It should be considered with other reforms as California's mail-in ballot system is a mess and the legislature should work together in a bipartisan process to fix it.