Election Law Landscape in Constant Flux Ahead of Midterms

2020 saw more lawsuits filed about election laws and rule changes than any other year in American history. With the congressional midterms rapidly approaching, litigation and other developments will only increase.

Pennsylvania

The Commonwealth Court is Pennsylvania’s appellate court. It issued a number of aforementioned decisions. rulingRecently, the court ruled that a 2019 amendment to the law governing absentee votes was a violation of the state constitution. 

The opinion details the history and origins of absentee voting in Pennsylvania. It began with the 1864 presidential election.

In 2019, the legislature amended state law that required a qualified voter to have a reason to use an absentee ballot and turned Pennsylvania into a “no fault” absentee-voting state, where any voter can use an absentee ballot with no excuse required. 

However, in a lengthy ruling, the Commonwealth Court held that the legislature didn’t have the power to make that change.

Section 14 of Article VII of the state constitution authorizes the legislature to provide a method of voting—such as absentee ballots—for residents who will be “absent from the municipality of their residence because their duties, occupation or business require them to be elsewhere”; are “unable to attend at their proper polling places because of illness or physical disability”; or unable to vote at their polling place due to their “observance of a religious holiday.” 

The Pennsylvania Constitution does not allow absentee voting without fault. According to the Commonwealth Court, the only way to change this in Pennsylvania is to amend the Constitution. 

It is still unclear how many absentee ballots were approved by Pennsylvania election officials under the new amendment.  Although the voters did nothing wrong in casting their ballots, they should not have been counted as they were illegally cast.

The decision has been appealed already to the Pennsylvania Supreme Court. It has five Democratic and two Republican elected justices. 

New York

New York City has filed a second lawsuit against the New York City law which allows permanent resident aliens as well as those authorized to work in America to vote in local elections. 

The firstPlaintiff claims that the law violates the New York State Constitution, which requires citizenship to vote in all New York state, municipal, and local elections.

The secondThe Public Interest Legal Foundation (on my board) filed a lawsuit for four African American registered voters in New York City. This included Deroy Murdock who is a columnist and Fox News commentator. 

This lawsuit is filed under the 15th Amendment to the U.S. Constitution, the last of the Reconstruction amendments ratified in 1870, which prohibits the right to vote being “denied or abridged … on account of race, color, or previous condition of servitude.”

The complaint claims that the New York City law violates the 15th Amendment because it was passed “with the impermissible racial purpose of intentionally abridging the voting strength of Black voters and other racial groups in New York City.” 

The complaint cites very specific statements made in public hearings by members of the City Council, such as now-former council member Ydanis Rodriguez, which make it clear this law had a “consistent and explicit racial purpose” to increase the voting strength of Hispanics and Asians, thus diluting the vote of black and white residents of the city.  The 15th Amendment bans such a racial motive for enacting electoral laws.

Alabama

On February 7, the U.S. Supreme Court issued a 5-4 ruling in response to an Alabama emergency appel. Merrill v. Milligan stayed a lower court decision that ordered Alabama to redraw its new congressional districts by Feb. 11, despite the absentee voting period for the state’s primary starting less than two months from now on March 30. 

As Justice Brett Kavanaugh explained in his concurrence, the stay wasn’t on the merits of the lower court decision, but the fact that it was too close to the election.  As the Supreme Court has previously ruled, “federal district courts ordinarily should not enjoin state election laws in the period close to an election.” 

The lower court decision claimed that Alabama’s new congressional district plan, which was adopted following the 2020 census, violated Section 2 of the Voting Rights Act, which bans racial discrimination in voting. 

It was an odd decision, which may have violated Section 2. Why? Alabama has been home to seven congressional districts for more 50 years, starting in 1970. Of those seven districts, it has had one “majority-minority” district in which black Alabamians are a majority of the voters and thus can elect “their candidate of choice” since 1992.

The status quo was maintained when the Alabama Legislature drew new congressional districts: seven congressional districts, one being a majority-minority district of black.

The boundaries were only slightly altered.  Yet, the lower court suddenly claimed that the state should have created two “black” districts and was somehow racially discriminating and diluting the votes of black Alabamians when it didn’t do so, despite the fact that the black population in Alabama today is proportionally virtually the same as it was after the 2010 census. 

Although the court’s decision was stayed, the lower court seems to believe that black Alabamians should be granted a second congressional district due to their approximately 25% population. 

The court seems not to be following or violating the law specific language in Section 2 of the Voting Rights Act, which states emphatically that “nothing in [Section 2] establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” 

As Kavanaugh noted, the “case law in this area is notoriously unclear and confusing.”

The result of the Supreme Court’s ruling is that the case will now proceed at a normal pace, meaning the Supreme Court will not make a decision on the merits until “the Court receives full briefing, holds oral argument, and engages in our usual, extensive internal deliberations” said Kavanaugh.

Election Fraud

Lastly, several new convictions in the United States for election fraud, ranging from Texas to California, to Tennessee, prove that fraud does occur in our elections. This is contrary to what you hear constantly from the mainstream media and those opposed commonsense reforms.

Pamela Moses, founder of Memphis Black Lives Matter, was convicted on prior charges of tampering and forgery as well as misdemeanors of perjury stalking and theft.

She submittedA false certificate was issued claiming that she was not on probation anymore and was therefore eligible to register and vote again. She was found guilty of registration fraud by a jury, and the judge admonished her for “tricking” the probation department and voting illegally six times. 

Three individuals in Gregg County, Texas—including a county commissioner, his wife, and a campaign staffer—pleaded guiltycommitting election fraud in the 2018 Democratic Primary Longview City Council election. (This case demonstrates how election fraud can be committed against other members within the same party.

They organized a scheme to harvest more than 100 absentee ballots by “assisting” voters with absentee- ballot requests, misleading them about the requirements for those ballots and filling out the applications, sometimes falsely claiming the voters were disabled—without their knowledge or consent.

And finally, in Compton, California, three individuals have pleaded guilty to illegally registering to vote for the June 2020 City Council runoff election at the address of a former member of the City Council, when they didn’t actually live in Compton. 

That race was decided by one vote, and fraud charges against three other individuals—including the City Council member who won that race—are still pending. 

It was a striking example illustrating what the U.S. Supreme Court ruled in 2008 in its ruling in Crawford v. Marion County Electoral Board: “[N]ot only is the risk of voter fraud real but … it could affect the outcome of a close election.”

As all these developments indicate, the fight to ensure fair representation in our democratic system and election integrity is ongoing. 

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