Welcome — and it’s 5 weeks to Election Day
Did you know that states have to stop purging voter registration rolls 90 days prior to a federal election? Someone tell Alabama!
A Few Headlines:
The United States Justice Department joined the party1 in Alabama in a lawsuit challenging Secretary of State Wes Allen’s recently announced program to purge voters he alleges are potential noncitizens. Disclosure: I’m representing Plaintiffs in an ongoing challenge to this program. The cases have been consolidated a hearing is scheduled for October 15.
Here’s what you need to know about this program:
Secretary Allen announced on August 13 (84 days before the election) that he had compiled a list of over 3,000 Alabamians that he alleged were suspected noncitizens simply because they ever had an immigration number associated with their identity. He directed county election officials to start a process to remove those voters from the rolls.
Here’s the thing: we’ve seen this movie before. Every naturalized citizen in America previously had an immigration number. But, of course, naturalized citizens have the same right to vote as everyone else. Secretary Allen’s program, therefore, surgically targets naturalized citizens and threatens them with disenfranchisement. And it does so within a federally mandated 90 day “quiet period” where election officials are supposed to stop all list maintenance activity (even the non-discriminatory kind). Expect to hear more about this 90 day “quiet period” in the coming weeks.
The seemingly endless saga of undated (or incorrectly dated) mail ballots in Pennsylvania continues. The legal battles over what election officials should do with undated (or incorrectly dated) mail ballots have spanned state and federal courts and gone up and down to both the Pennsylvania and U.S. Supreme Courts without any final resolution. But here’s what is basically undisputed: the dates do not matter. Whether your ballot counts depends on when it’s received not what date (if any) you put on the outside of your ballot envelope. Inevitably, many voters will forget (over 4,000 ballots had dating issues in the April primary). As it stands now, if they do, their ballots won’t count. Here’s hoping we get a final answer and soon. In the meantime, I’ll be checking and rechecking my ballot envelope before I return it.
Last week, the Fifth Circuit Court of Appeals heard arguments in an appeal from a case (RNC v. Wetzel) in Mississippi where the RNC and Mississippi Republican party are challenging a longstanding law allowing absentee ballots to be counted if they are postmarked by Election Day but received up to 5 days after. The argument is that somehow this violates the federal law that sets the date for Election Day. Ok.
I’ll be honest, I’m really struggling with this one. Eighteen other states have similar laws (and even more allow post-Election Day receipt for overseas or military voters). It’s also not clear to me that this argument could be cabined only to bar receipt of ballots post-Election Day; taken to its logical extreme it would also likely bar all early voting? And as the ACLU points out, the implications are even broader:
Yet because all actions of voters are completed on or before Election Day, adopting Plaintiffs’ interpretation would require the Court to conclude that election officials’ post-election-day administrative acts—e.g., collecting, tallying, and canvassing timely cast ballots and certifying election result —“directly conflict with federal election laws” setting a calendar date for Election Day. That is, even if Plaintiffs-Appellants interpretation of the term “election” carried water—and it does not—they can offer no principled reason to distinguish “the delivery . . . of ballots cast on or before election day” from other post-election-day “‘actions’ of ‘officials’” equally necessary to complete the “counting of ballots” and determine the “final selection of an officeholder.” Such a holding would destabilize election administration not just in Mississippi but in every state.
Numerous other courts have rejected similar arguments. That said, the Fifth Circuit is notoriously very conservative so folks are watching closely. Stay tuned.
Finally, I’ll just say that when I saw this clip, I had serious deja vus: Trump accuses Philadelphia of election cheating during Pennsylvania rally. The 2016 election was my first presidential election in the democracy space and I spent a lot of time responding to nearly identical (and identically dog whistling) comments. Indeed, I just dug up this blog post from 2016 on President Trump’s comments calling on his supporters to monitor “certain sections” of Pennsylvania that he believed would cheat. Exhausting.
A Deeper Dive: Arizona’s Documentary Proof of Citizenship Requirement, Again
Ok, not again for you all, but for me.
The saga of Arizona’s documentary proof of citizenship requirement for registration has, no joke, been going on since at least 2004. I have been personally involved in litigating its fallout since 2017. I am pretty sure I will retire with a version of this case hanging over me.
But since it’s in the news again, and it’s oh so relevant to the “narrative” of this election cycle, I figure it’s a good place for a first deep dive. (I could write a book about this case but I promise to keep this to a substack-level “deep” dive).
Here’s the background you need to really understand the recent news (but you can skip ahead if you really want):
In 2004, Arizona voters passed a proposition that, among other things, imposed a documentary proof of citizenship (called “DPOC” for short) requirement for voter registration. Twenty years later, it is still the only state with such a requirement for voter registration that is actually in force (albeit only for certain voters and certain races). Every other state relies on attestations under penalty of perjury of citizenship (like other criteria for voting, like residency) for registration.
Ever since its passage, Arizona’s DPOC requirement has been a bureaucratic mess that has saddled what should be an easy process with red tape for voters and election officials alike. After lengthy initial litigation, the Supreme Court in 2013 held (in an opinion written by Justice Scalia) that Arizona could not enforce the DPOC requirement for voters using the Federal Form to register for federal elections (because of a nifty law called the National Voter Registration Act or NVRA).
Undeterred, Arizona did not give up on the requirement but instead created a dual voter registration system: voters who provide DPOC can vote in all elections but voters who do not provide DPOC can only vote in federal elections (the only elections covered by the NVRA) (we call these voters “Federal Only” voters). No other state has a dual system like this.
Even more confusingly, the State only let people without DPOC vote in federal elections if they used the Federal Form to register, rather than the Arizona Voter Registration Form. Basically, whether you got to vote in federal elections hinged on which piece of paper you used to register. That’s when I sued the first time. And, probably because that system was cuckoo bananas, the (Republican) Secretary of State and (Republican) AG agreed to settle with a consent decree that said you could vote in federal elections without providing DPOC regardless of what form you turned in.
That brings us to 2022 when the Arizona Legislature decided to try to re-litigate the whole thing. They passed a new law saying that, among a lot of other things, Federal Only voters can’t vote by mail (how most AZ voters vote) or vote for President at all. It also unraveled the consent decree saying, again, that you could only become a Federal Only voter if you used the special Federal Form to register. We sued again (and so did a lot of others, including the US DOJ). After a lengthy trial last year, we won on all those issues — the district court said Arizona can’t limit Federal Only voters to voting in person or bar them from voting for President and reinstated the consent decree’s rules.
The RNC and Arizona legislative leaders (not the AZ AG or SOS) appealed that decision. And they filed an emergency motion with the Supreme Court asking them to intervene and allow Arizona to enforce the new laws. The Supreme Court mostly denied their relief but, in a bizarre move, allowed Arizona to enforce it’s “only the Federal Form” rule for getting onto the Federal Only list. I was . . . pretty frustrated, you can read my twitter rant on that here (or a cleaned up blog version here). I argued the case before the Ninth Circuit earlier this month (if you’re really committing, you can watch/listen to that here).
The Recent News:
Up until about two weeks ago, that was the state of play. But then there was a …hiccup.
Most Arizona voters provide DPOC to vote in state and local elections through the state’s motor vehicle division (they call it the MVD, not the DMV). Basically, if you’ve proven to the MVD that you are a citizen with documents already when you got your driver’s license or state ID, you don’t have to do it again. Instead, election officials share data with MVD to streamline the process. That’s a great thing — it means most Arizonans have been able to jump this unnecessary hurdle to register to vote.
But on September 17, it came to light that because of a software glitch, MVD had told election officials that about 100,000 voters had provided them with DPOC when they had not. To be clear: everyone agrees that this does not mean these folks are not citizens. To the contrary, this is a group that has had driver’s licenses since before MVD started requiring documentation of citizenship status in 1996.
The Maricopa County Recorder Stephen Richer brought the case quickly to the Arizona Supreme Court. And, to their credit (even if we had to write a brief on less than 12 hours notice), that Court acted just three days later holding that those 100,000 voters have the right to vote a regular full ballot, stating:
[W]e are unwilling on these facts to disenfranchise voters en masse from participating in state contests. Doing so is not authorized by state law and would violate principles of due process.
Couldn’t have said it better myself.
Today, sigh, the SOS announced that the number of voters affected by this glitch is more like 218,000 (rather than 98,000). Exhausting. I’m sure this will be fuel for more confusion and disinformation but, as a practical matter, this change shouldn’t matter for these three reasons:
Everyone agrees this glitch does not suggest these people aren’t citizens; only that they got driver’s licenses so long ago that they didn’t have to provide their documentation at that time.
Everyone agrees these voters did nothing wrong.
The Arizona Supreme Court has already held that these voters are entitled to vote as usual.
Just keep repeating those facts.
Now here’s what I Just HAVE to tell you about this whole to-do:
For the past two years, I have been litigating across from lawyers for the Arizona legislative leaders, Arizona Republican Party, and the RNC that have steadfastly defended the DPOC requirement. The lawyer for the RNC repeatedly argued that a voter that cannot easily provide DPOC is a fanciful “unicorn” of my clients’ imagination. And they’ve argued that the State has a compelling interest in demanding citizenship documentation beyond attestation of every voter.
That was when the evidence showed that the Federal Only list (people who hadn’t provided DPOC) was more heavily Democratic or unaffiliated.
Fast forward to September 17 and today, the voters affected by this software glitch—and so who have (mostly) not provided DPOC—skew towards Republican affiliation (79,000 Rs, 61,000 Ds, 76,000 other). All of a sudden, these same actors (often with the same lawyers) changed their tune and supported the voting rights of these affected voters who have not shown DPOC. They seemingly now understand that demands for DPOC can be disenfranchising. For example, the Arizona Republican Party wrote:
It is difficult to imagine state action that would impose a more “severe” burden on the right to vote than abruptly informing an individual who has lived and voted in Arizona for decades—and previously voted in all elections, state and federal—that they must suddenly prove that they are a U.S. citizen in the handful of days remaining before Arizona’s October 7 voter registration deadline if they want to vote in state elections this year.
And
If requiring DPOC from people who have held valid Arizona driver’s licenses since before 1996 was not deemed necessary for the affected voters to cast ballots in 2006, 2008, 2010, 2012, 2014, 2016, 2018, 2020, or 2022, then it is likewise an insufficiently compelling interest to abruptly require it on the eve of the deadline for registering to vote for the 2024 election.
I could not agree more.2
A Few Good Reads (or Listens)
An important op-ed on the Nebraska Secretary of State’s and Attorney General’s unilateral attempt to void democratically passed laws restoring the right to vote to people with past convictions. We’ve been pretty worked up over this one for a while now.
A recent court ruling enjoined a portion of the Arizona Election Procedures Manual on certification of election results. Votebeat reminds us why we shouldn’t worry too much about that. Although the provision at issue was meant to be a last resort (because it would potentially exclude the count of whole counties that refuse to certify), there are much better options to get to certification that include every county’s votes.
A shameless plug. CLC has its own podcast and I talked all things voter registration on its most recent episode.
A Brighter Note
I promise to leave you each week with something to be jazzed about from the election world.
I spent this past weekend in Telluride watching my brother getting married (and my daughter stealing his thunder as flower girl). Colorado not only has some pretty spectacular views this time of year but also some election policies to aspire to. In particular, I’m excited to see the implementation this November of a first-of-its-kind law requiring in-person voting in jails across the state.
Every election day, there are hundreds of thousands of eligible voters held in jail. The vast majority of these voters have not been convicted, while others may be serving time for a misdemeanor conviction, which usually do not affect the right to vote. These voters are likely eligible to vote but that’s often a practical impossibility. Colorado took a pretty bold step forward this year to address this injustice.
The Justice Department has been getting into other good trouble lately. On September 20, they sued two Wisconsin townships that were refusing to provide accessible voting machines. We love to see it.
The Arizona Republican Party’s brief in the Arizona Supreme Court case also took a legal position directly contrary to the RNC’s position in the federal case. In the federal case, the RNC has argued that the NVRA’s 90-day blackout period for systematic removals from the registration rolls prior to a federal election only applies to certain types of removals and excludes removals based on proof of citizenship issues. Meanwhile, in the state court case, the Arizona Republican Party argued that removing the 98,000 (now 218,000) affected voters would violate the NVRA’s 90-day rule. Oh, and the Arizona Republican Party “adopted” the RNC’s arguments in the federal case in their amicus brief in the federal case. Hard to square that circle.