WASHINGTON - On Wednesday May 13, the U.S. Supreme Court will hear arguments in cases about the electoral college called Chiafalo v. Washington and Colorado v. Baca. A decision is expected less than six months before the general election.

Campaign Legal Center (CLC) is supporting the states of Washington and Colorado, who seek to enforce laws that disallow ‘faithless electors’ who refuse to follow the popular vote in their state. Electors are the 538 people – typically party loyalists – that are largely unknown to voters and whose power to choose their state’s electoral vote has largely been assumed to be a formality until now.

Watch CLC’s video on faithless electors.

The electors have challenged their state laws because they seek to ignore the popular vote in their state. If the court rules to “unbind” electors, the integrity of the presidential election could be called into question during a critical election year. Currently, 32 states and the District of Columbia have laws controlling how electors vote.

“Elections should be determined by voters,” said Paul Smith, vice president of CLC. “The legitimacy of American democracy demands that voters go to the polls with the confidence that their vote will count and that their election system will be free from corruption. The presidential election could be thrown into chaos if electors are permitted by the U.S. Supreme Court to ignore the will of their home-state voters and vote for whomever they want. This outcome would introduce new opportunities for corruption that would cast doubt in the legitimacy of elections. An elector could legally accept contributions worth millions of dollars in connection with their official duties, and the public would never know. The sole function of the presidential electors should be to cast, certify and transmit the vote of the state for president and vice president of the U.S.”

“Presidential electors are not considered elected officials, and as a result are not subject to the ethics and transparency laws most officials face,” said Adav Noti, senior director of trial litigation and chief of staff to CLC. “If they were ‘unbound’ from the popular vote, the same temptations that affect officeholders would apply – the temptation to accept secret ‘gifts’ in connection with their positions, or even to sell their votes. The court’s decision in this case could transform presidential electors from unknown functionaries to the latest targets of the big-money influence game around what should not be for sale: our democracy.”

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Further reading:

• Paul Smith and CLC Chief of Staff Adav Noti published a piece in SCOTUSblog on the case, which explores what would happen if electors are not subject to federal campaign finance and ethics laws, something that our system is not currently equipped to handle.
• On April 8, CLC and Issue One filed a brief in the U.S. Supreme Court arguing that states should be allowed to require presidential electors to vote for the winner of the popular vote in their home state.
• Paul Smith wrote an op-ed about the case in Talking Points Memo in October.
• Adav Noti wrote about the case in The Atlantic in March.

FARGO, ND – North Dakota Voters First (NDVF), a grassroots coalition of North Dakotans working to modernize the state’s elections, filed a lawsuit in U.S. District Court for the Western District of North Dakota challenging the state’s in-person signature requirements to place a ballot initiative before voters in the November general election. They are represented by Campaign Legal Center (CLC) and local counsel Tim Purdon. The initiative would make it easier for overseas military personnel to vote, create a paper record of every vote, increase voter choice through open primaries and instant runoff elections, and transfer the responsibility to draw political district lines to the citizen-led North Dakota Ethics Commission.

• The suit filed in federal court in Fargo seeks an order to temporarily suspend the enforcement of North Dakota’s ban on electronic signatures for this petition, and the requirement of in-person petition circulators and notarizing petition circulator forms.
• The initiative’s legislative redistricting component is dependent on the U.S. Census, which only happens every 10 years.
• NDVF must submit 26,904 qualified signatures before the deadline of July 6, 2020.

“The opportunity to create fair legislative districts only happens every 10 years, as it is directly tied to the U.S. Census,” said Carol Sawicki, chair of North Dakota Voters First. “This initiative will put power back into the hands of North Dakota voters. We are not just working to modernize our elections – but to give the people of North Dakota better choices, greater transparency, and a more open process.”

“COVID-19 has harmed so many people. It should not also stop Americans from expressing themselves and participating in the democratic process,” said Ruth Greenwood, co-director, voting rights and redistricting at CLC. “If the court fails to intervene, North Dakota will be stuck with gerrymandered maps for the next decade.”

NDVF became eligible to begin gathering signatures for the petition on April 30. However, COVID-19 creates an environment that is impossible to comply with both North Dakota’s in-person signature collection laws and North Dakota’s public health guidance of social distancing. First, the state requires signatures to be gathered in-person by petition circulators. Second, the petition circulator must swear in the presence of a notary public to certify the petitions. Lastly, valid electronic signatures are not allowed to be collected. The suit seeks an order from the court to suspend these requirements and to temporarily allow for electronic signature collection during the pandemic.

“North Dakota’s laws for petitions signature gathering do not account for the risks of the COVID19 pandemic we find ourselves in,” said Robins Kaplan Partner Tim Purdon, local counsel for North Dakota Voters First. “Given the timing of the Census, North Dakota will not have the opportunity to address fair legislative redistricting for another 10 years and to require North Dakota citizens who wish to circulate or sign this petition to comply with existing statues in the time of COVID19 violates fundamental rights under the United States Constitution.”

North Dakota Voters First seeks to put before voters an amendment to transfer responsibility to draw political district lines to the citizen-led North Dakota Ethics Commission and to modernize North Dakota’s elections.

BISMARCK, ND – North Dakota uses an error-prone verification process that disenfranchises eligible absentee voters when the handwriting on their absentee ballot application is deemed by election officials as a “mismatch” compared to the signature on their return envelope containing their ballot.  Today, Campaign Legal Center (CLC) filed a lawsuit challenging this practice in federal court. CLC is representing Self Advocacy Solutions, the League of Women Voters of North Dakota, and a Grand Forks, ND woman, Maria Fallon Romo, whose multiple sclerosis affects her ability to write with consistent handwriting. Hundreds of thousands of ballots were rejected nationally in 2018, and Romo’s was one of them. Among these, an estimated 32% were rejected because of signature issues. The lawsuit seeks court intervention so that North Dakota must provide all absentee voters the opportunity to fix signature verification issues before their ballots are thrown away. Under the threat of the pandemic, vote-by-mail in the state’s June primary election will be the voters’ only option.

Currently, 36 states have some form of signature match requirements on the books, but they vary dramatically. Some states provide immediate notice to voters if their ballot is rejected, and allow voters to resolve the issue up to 21 days after the election. Others, like North Dakota, do not notify voters at all.

“All eligible voters should be able to have confidence that when they participate in an election, their vote will be counted,” said Paul Smith, vice president at CLC. “Signature comparison is not a science. Even if it was, election officials are not trained handwriting experts. The current system produces many incorrect mismatches which result in eligible voters having their ballot thrown away. These errors – which disproportionately affect those with disabilities, the elderly and non-native English speakers – must be fixed with urgency during this critical election year.”

“Everyone who votes deserves their vote to be counted,” said AJ Marx, president at Self-Advocacy Solutions. “Voting is the way we can all effect positive change.”

“North Dakota’s signature match system is prone to errors, which means too many ballots are incorrectly rejected,” said Jan Lynch, president of the League of Women Voters of North Dakota. “Without clear notification and a way for voters to cure their ballots, too many voters are disenfranchised by this process. Most often, these are people who already struggle with ballot access: those with disabilities, the elderly, young people, and those who learned to write in a first language that is not English.”

Even before the COVID-19 pandemic forced states and localities to consider expanding remote voting options to protect public health, Americans have increasingly chosen to cast their votes by mail in recent elections. Nationally, there were 42.5 million votes cast by mail in 2018. In a presidential election year under the threat of a viral pandemic, that number is expected to surge. This raises the importance of having a smooth vote-by-mail system in which voters have confidence that when they follow the rules and cast a valid ballot, their vote will be counted.

Plaintiff Romo has multiple sclerosis, which causes her to lose feeling in her fingers and impacts her fine motor skills. When she voted in 2018, she was unaware that the handwriting in her signature on her absentee ballot request form would be compared to the one she provided on her ballot envelope to determine the validity of her ballot. She was surprised to learn that her vote did not count in 2018. Ms. Romo was not given notice that her ballot had been rejected. Had she been given the opportunity to fix it, she would have taken whatever steps necessary to correct the issue and make sure her vote counted. Ms. Romo hopes to vote in the 2020 elections.

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League of Women Voters North Dakota is the state chapter of a national nonpartisan organization that encourages informed and active participation in government.

Self Advocacy Solutions is a nonprofit that works statewide to promote civil rights and equal access for people with disabilities. The organization encourages members to exercise their right to vote in elections.

Lawsuit seeks to ensure voters can vote safely by mail in the upcoming elections and ensure ballots count

NASHVILLE, TN – The state of Tennessee imposes strict limits on eligibility for voting absentee and even uses criminal penalties to deter people from assisting voters with obtaining absentee ballots. In the midst of a global pandemic, Campaign Legal Center (CLC) and the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee) filed a lawsuit today on behalf of two qualified voters and organizations whose many members are not eligible for vote by mail under current law, but wish to avoid exposing themselves or elderly family members to coronavirus.

Other plaintiffs include five organizations facing restrictions preventing them from carrying out necessary voter engagement activities for their members and the community in 2020. Under Tennessee law, the organizations can be punished for giving voters unsolicited requests for an absentee ballot with up to 11 months and 29 days in prison, a fine of up to $2,500, or both.

Typically, Tennesseans have cast their ballots largely in person. Recently, the rapid shift towards voting by mail has revealed how unprepared Tennessee is to ensure all absentee ballots are counted in the upcoming elections. The state gives election officials discretion to reject absentee ballots when elections officials decide, in their judgment, that the voter’s signature on their ballot doesn’t match the voter’s signature on file with the voter registration. This “matching” process is unreliable and prone to mistakes, and because the state does not give voters any opportunity to fix apparent problems with their ballot, leads to disenfranchisement.

“No voter should have to choose between protecting their health and exercising their right to vote,” said Paul Smith, vice president at CLC. “In light of the ongoing public health crisis, Tennessee’s failure to accommodate voters is threatening the ability of citizens and organizations to participate in the civic process.”

“It is more difficult to cast an absentee ballot in Tennessee than in most other states,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “This is bad enough in normal times, but Tennessee’s laws are particularly offensive during a time when more voters than ever before need to vote by mail because of the current public health crisis.  Criminalizing the mere providing of a request for an absentee ballot is outrageous under any circumstances. Failure to provide a procedure for voters whose absentee ballots were rejected because their signatures did not match signatures on record is fundamentally unfair. And not allowing voters to vote by absentee ballot if they fear that they or their loved ones would contract COVID-19 if they vote in person effectively takes away their right to vote.”

About the Plaintiffs:

Individual plaintiffs:

• Sekou Franklin – a  Davidson County, TN resident who is not eligible to vote by mail, but fears voting in-person in the August and November elections because he does not want to catch and then bring COVID-19 home to his elderly father.
• Kendra Lee – a Davison County, TN resident who has asthma and bronchitis, and does not want to vote in-person in the upcoming elections because of the risk of health complications from potentially catching COVID-19.

 Organizational plaintiffs:

• A. Phillip Randolph Institute – a Memphis, TN-based nonprofit political advocacy and membership organization that works to strengthen ties between the labor movement and the community.
• The Equity Alliance – a Nashville, TN-based nonpartisan nonprofit organization that seeks to equip citizens with tools and strategies to engage in the civic process and empower them to take action on issues affecting their daily lives.
• Free Hearts – a Nashville, TN-based nonprofit led by formerly incarcerated women that provides support, education, and advocacy to families impacted by incarceration.
• Memphis Central Labor Council – a Memphis, TN-based association that acts as an umbrella organization for 41 affiliate unions based in western Tennessee.
• The Tennessee State Conference of the NAACP – a Jackson, TN-based multi-racial nonprofit organization that seeks to eliminate race-based discrimination across the state and oversees local branches in the state.

*This was filed with the SRVH law firm.