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Election Help Desk: 10/28/20
 Ballotpedia's 2020 Election Help DeskOctober 28, 2020Welcome to Ballotpedia's Election Help Desk Newsletter. In each issue, we:
We understand you may have questions about what to expect in elections at all levels of government, from the casting of ballots to the certification of final results. We are dedicated to providing you with accurate, objective, and measured answers to those questions. Was this email forwarded to you? Sign up to receive your copy here. Days Until Election: 6BALLOTPEDIA
Recent NewsHere are the changes made to election dates and rules since our last edition, including legal decisions, executive actions, and legislation. RoundupMichigan: On Oct. 27, Michigan Court of Claims Judge Christopher Murray issued an order blocking Secretary of State Jocelyn Benson's (D) directive barring individuals from openly carrying firearms near polling places on Election Day. On Oct. 16, Benson directed county officials that the "open carry of a firearm is prohibited in a polling place, in any hallway used by voters to enter or exit, or within 100 feet of any entrance to a building in which a polling place is located." Benson said, "The presence of firearms at the polling place, clerk’s office(s), or absent voter counting board may cause disruption, fear, or intimidation for voters, election workers, and others present. Several groups–including Michigan Open Carry, Michigan Gun Owners, and Michigan Coalition for Responsible Gun Owners–sued Benson, alleging her directive was "conjured without any legal basis or authorization under Michigan law." Murray, who was first appointed to the bench by Gov. John Engler (R), sided with the plaintiffs. Murray said Benson had likely violated the state's Administrative Procedures Act, which requires agencies to follow formal rulemaking processes when implementing regulations. Murray said, "[To] not enjoin a directive that is very likely unlawful would allow a single state officer to circumvent (and essentially amend) a valid and enforceable state law on the same subject. This is certainly not in the public interest, which expects its public officials to follow the rule of law." Attorney General Dana Nessel (D) said her office would appeal the decision to the Michigan Court of Appeals.
Pennsylvania: On Oct. 28, Secretary of State Kathy Boockvar (D) directed county election officials to keep mail-in ballots received between 8 p.m. on Election Day and 5 p.m. on Nov. 6 separated from mail-in ballots received prior to that time. Boockvar also directed officials to maintain records for each ballot received during this window, including the name and address of the voter, the date of delivery, and the date of the postmark (if present and legible). Boockvar's instructions come as the U.S. Supreme Court considers the Pennsylvania GOP's request to reinstate the statutory receipt deadline for mail-in ballots: 8 p.m. on Election Day. On Sept. 17, the Pennsylvania Supreme Court ordered that the deadline be extended to Nov. 6. Related news: On Oct. 27, the Luzerne County Council, a defendant in the case, voted 7-4 to withdraw the county's motion for newly confirmed Associate Justice Amy Coney Barrett to recuse herself from the proceedings. Councilmembers said a private law firm the county hired had filed the motion for recusal without their knowledge. Councilmember Harry Haas said, "We are taking this to the Supreme Court of the United States of America and it was done without our understanding." Larry Moran, the attorney who filed the motion for recusal, said, "It was a decision by me, the owner of the firm that was assigned with the task of winning the lawsuit and defending Luzerne county." For more information about the pending lawsuit, see our Oct. 27 edition.
Texas: On Oct. 28, Judge Jason Pulliam, of the U.S. District Court for the Western District of Texas, temporarily invalidated an exemption for polling places in Gov. Greg Abbott's (R) statewide mask mandate. On July 2, Abbott issued Executive Order GA-29, which generally requires individuals to wear face coverings "when inside a commercial entity or other building or space open to the public, or in an outdoor public space, where it is not feasible to maintain six feet of social distancing." The order exempts individuals who are "voting, assisting a voter, serving as a poll watcher, or actively administering an election." This exemption is referred to as Exemption 8. On July 16, the Texas State Conference of the NAACP and Mi Familia Vota sued, alleging Abbott did not "consider how the failure of potential carriers of the coronavirus to wear a mask could put other voters at serious risk merely for exercising their right to vote." Plaintiffs alleged that, because "Black, Latino, and Native American voters have been disproportionately affected by the pandemic," they "also face greater risks to their health by voting." On Sept. 7, Pulliam, a Donald Trump (R) appointee, dismissed the lawsuit, finding that, because the plaintiffs had not challenged a specific provision of the state's election laws, the court did not have jurisdiction over the matter. On Oct. 14, the U.S. Court of Appeals for the Fifth Circuit partially affirmed Pulliam's ruling. The appellate court instructed Pulliam to reconsider the legality of Exemption 8. In his Oct. 28 ruling, Pulliam said, "[This] court concludes its finding that the mask-mandate Exemption 8 is invalid and void does not 'materially or substantially affect the ongoing election,' and any disruption is outweighed by the racially discriminatory deterrent effect on Black and Latino citizens' fundamental right to vote." Abbott and Secretary of State Ruth Hughs (R) are appealing the decision to the Fifth Circuit. LawsuitsTo date, we have tracked 411 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. Click here to view the complete list of lawsuits and court orders.
Here's the latest on noteworthy litigation. Examples of noteworthy litigation include lawsuits filed by presidential campaigns and major political parties, and state supreme court cases. Texas: On Oct. 27, the Texas Supreme Court upheld Gov. Greg Abbott's (R) order restricting the number of absentee/mail-in ballot return locations to one per county. On Oct. 14, Travis County District Court Judge Tim Sulak ruled against Abbott in a lawsuit challenging the governor's order. Sulak, a Democrat, said, "The limitation to a single drop-off location for mail ballots would likely needlessly and unreasonably increase risks of exposure to COVID-19 infections, and needlessly and unreasonably substantially burden potential voters’ constitutionally protected rights to vote, as a consequence of increased travel and delays, among other things." Attorney General Ken Paxton (R) appealed Sulak's decision to the Third District Court of Appeals, which affirmed the ruling. Paxton appealed again, this time to the state supreme court. The high court ruled unanimously in Abbott's favor. In an unsigned opinion, the court said, "[Abbott's order] provides Texas voters more ways to vote in the Nov. 3 election than does the Election Code. It does not disenfranchise anyone. The plaintiffs have not established a probable right to an injunction blocking [Abbott's order]. As a result, they were not entitled to a temporary injunction, and the trial court erred in granting that relief. The judgment of the court of appeals is reversed, and the temporary injunction issued by the trial court is dissolved." The court's eight justices identify as Republicans (one seat on the court is currently vacant). The state supreme court's Oct. 27 ruling is the latest in a series of court actions on this question. On Oct. 10, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit unanimously upheld Abbott's directive, reversing a lower court's decision. For more information about these rulings, see our Oct. 12 edition. TodayThe Help Desk daily feature will answer one frequently asked question or provide a summary of key election dates and policies each day. Today we take a look at the thresholds necessary for automatic recounts. An automatic election recount may occur if election results meet certain criteria laid out in state law. The most common trigger for an automatic recount is when election results fall within a close vote margin, defined as either a percentage or a number of votes. Requirements for an automatic recount might differ based on the type or level of office. For the November 2020 election:
The map below highlights each state based on the automatic recount threshold. What We're Reading Today
Upcoming Dates and DeadlinesHere are the key deadlines for voter registration, early voting, and absentee/mail-in voting coming up in the next seven days. For coverage of all dates, deadlines, and requirements, click here.
And a Dose of Calm
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