Sep.23

electoral-vote.com

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GOP 50

The Courts Are Deeply Involved in Running the Elections

On Saturday, we had an item about how the new Georgia Board of Elections is trying to change the rules in order to create chaos. In ordinary times, boards of elections try to prevent chaos, not cause it, but these are not ordinary times. Georgia AG Chris Carr (R) has warned the board that they do not have the legal authority to do any of the things they are trying to do and he will sue them if they continue, so we don't know how this will end.

Meanwhile, we have legal news about elections in three different states today.

• Arizona: Georgia is not the only state where there are shenanigans. Arizona is another one. There appears to be a pattern that Republican-controlled boards and legislatures understand that in a fair election, they would lose, so throwing sand in the gears of democracy seems like a good alternative to them.
  
  There is a case in Arizona that has been going on since 2022. A law called SB 1260, passed by the state legislature in that year, allowed county officials to cancel voter registrations under certain conditions, including when someone moves out of state. Federal law does not make it a crime to be registered to vote in two states. It is only a crime to vote in two states.
  
  Under SB 1260, it is a crime for an election official to register new Arizona residents to vote if they failed to deregister in their previous states, information the election official most likely does not know. SB 1260 also makes it a crime for someone in Arizona to forward an absentee ballot to a legal Arizona resident who is (temporarily) out of state but who still intends to vote only in Arizona.
  
  

  Previously, Federal Judge Murray Snow in Phoenix has ruled that the law is so vague and poorly written that neither election officials nor voters could know what was legal and what was not. Snow also ruled that SB 1260 violated voters' rights under the National Voter Registration Act, which requires that a person be notified before being removed from the rolls. Consequently, Snow ordered the state and the counties to stop enforcing the law.
  
  On Friday, Snow's ruling was overturned by the U.S. Court of Appeals for the Ninth Circuit on a 2-1 vote. The Court did not rule on whether the law was unconstitutionally vague, but merely that the plaintiffs (three voter registration groups) did not have standing to sue because they could not prove they were damaged by the law. Only people whose registration was canceled would have standing to sue and none of the actual plaintiffs had their registrations canceled. Consequently, counties can now begin canceling voter registrations, even though as a general policy courts don't like to change election procedures within 60 days of an election.
  
  

• Nevada: In the Silver State, the issue is whether the Green Party should be on the ballot. The Green Party filed a petition to get on the ballot and obtained more than enough signatures. So they are on the ballot? Well, not so fast. Eagle-eyed Democratic lawyers, who do not want the Green Party on the ballot (anywhere), noticed that the petition form the Green Party used did not require the signers to attest under penalty of perjury that they were registered voters in the county corresponding to the address they listed. State law requires such attestation.
  
  Naturally, it ended up in court. It always does. In August, a state judge ruled that the Green Party acted in good faith because some election official had sent them an e-mail saying the form didn't matter. For the judge, the wording of the state law wasn't so important and the e-mail assurance got them off the hook.
  
  However, in September, the Nevada Supreme Court overruled the judge 5-2 and said that state law is what matters, not incorrect advice from an elections official. In other words, the Green Party's own lawyers should have checked the law themselves and acted on what they found. Nevada Secretary of State Francisco Aguilar (D) told the court it was too late, anyway, because he had already ordered 2 million ballots printed.
  
  On Friday, the U.S. Supreme Court refused to take the case. In an unsigned one-sentence order, it wrote: "The application to vacate injunction presented to Justice Kagan and by her referred to the Court is denied." There was no further explanation. One possible reason is that on matters of election law, which is generally state law, the U.S. Supreme Court usually lets the state Supreme Courts decide unless there are constitutional issues raised (e.g., a state law that says everyone has to pass a literacy test to vote unless one of your great-great-grandparents had the right to vote). This case hinged on a question of state law.
  
  
• Wisconsin: Finally, in Wisconsin, Robert Kennedy Jr. fought tooth and nail to get on the Wisconsin ballot when he thought that would help Donald Trump; now he is fighting tooth and nail to get off the ballot when he thinks his presence will hurt Trump. The deadline for removing your name has passed, but Kennedy thinks the law is less important than what he would like. So he sued, and a Dane County judge ruled that it's state law that matters and the deadline has passed, so no. Kennedy didn't like that, so he appealed to the Wisconsin Supreme Court. On Friday, that court agreed to take the case.
  
  Lawyers for the Wisconsin Elections Commission told the court they need a swift resolution because they have already started sending out absentee ballots with Kennedy's name on them. Requiring them to print new ballots would greatly delay the election process, in violation of state law. In particular, delaying the process several weeks would mean that overseas voters and military personnel might be disenfranchised just because one person failed to follow state law trying to get off the ballot that he had fought to get on.
  

In short, the court cases are already abundant. It's only going to get worse. The founding fathers labored under the illusion that election laws would be written and enforced by the political branches of the government. How wrong they were. (V)