State of Elections

William & Mary Law School | Election Law Society

Category: All States (page 1 of 28)

Spring Break Hiatus

There will be no new posts the week of March 5th in observation of Spring Break.

A Loophole in State Law and the U.S. Election Fraud Commission

Earlier in the year, President Donald J. Trump announced his decision through an executive order to establish the Presidential Advisory Commission on Election Integrity, a working group designed in his view to eliminate voter fraud. Concerned with potential for state voter rolls to be inaccurate and misused, the election fraud commission sought voter rolls from all 50 states to vet and review. While the specific tasks of the election fraud commission remain unknown, the ultimate goal, at least publicly, appears to be to ensure the most accurate electoral outcomes possible.

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Same Day Voter Registration in Hawaii

By: Avery Dobbs

The Hawaii legislature took an important step towards reducing barriers to voting rights in 2014 by voting to allow same day voter registration at the polls. This is a significant change from the state’s previous rule, which required voters to register at least thirty days before an election to be allowed to vote. The state sought this measure in hopes of addressing its chronically low voter participation rates and to make voting rights more accessible for all Hawaiian citizens. Hawaii’s Chief Elections Officer, Scott Nago, spoke in support of the bill at the time by saying, “any qualified person who wants to vote should be able to register and vote”. The state will soon start to see the benefits of this law as it takes full effect in 2018.

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The Continuing Implications of Virginia’s Off-Year Elections

By: Jacob Dievendorf

As readers of this blog will well know, each state has its own particular electoral quirks. One of Virginia’s best known quirks is its off-year election of a governor. As a previous posting on this blog points out, Virginians have been electing their governor in off years for as long as they have been electing governors directly, since 1852.

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Texas Takes Steps to End Mail-In Voter Fraud

Amid the passage of controversial voter ID laws, this session Texas lawmakers also tackled a different form of voter fraud in a significantly less controversial manner. The Texas Legislature took steps to end voter fraud stemming from mail-in ballots. Senate Bill 5 passed the legislature and was signed into law on June 15. The law becomes effective on January 1, 2018. This law expands the definition of mail-in voter fraud and increases the penalties for the crime. Several voter fraud cases were prosecuted in recent years, and there have been concerns from individuals who received mail-in ballots they never requested.

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Escaping the Miry Red Clay

By: Dorronda Bordley

On March 27, 2015, the American Civil Liberties Union (ACLU) of Delaware sued the Red Clay Consolidated School District in Chancery Court. The ACLU asserted that Red Clay violated, among other things, the Delaware Constitution guaranteeing “free and equal” elections.

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A New Efficiency in Maryland: Gill v. Whitford’s Impact on Maryland

By: Zach Allentuck

The recent oral arguments for Gill v. Whitford left courtwatchers unsure if the Supreme Court would strike down excessive partisan gerrymandering. Gill v. Whitford’s impact goes far beyond Wisconsin: as previously noted, there is a lawsuit against Maryland’s 6th Congressional District for excessive partisan gerrymandering. Though the 4th Circuit declined to throw out the congressional voting map that created the 6th Congressional District, the case does not end there. The 4th Circuit wants to wait and see how the Supreme Court rules in Gill v. Whitford before issuing a ruling, and the plaintiffs announced their intent to appeal to the Supreme Court. If the Supreme Court sides with the plaintiffs in Gill, what would happen to the Maryland case?

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How Puerto Rico’s Electoral System Sustains Its Multiple Parties

By: Aaron Barden

Before this blog post begins, I would feel remiss and disingenuous if I did not remind the reader of the humanitarian crisis currently happening on the island of Puerto Rico, full of 3.5 million American citizens, as it continues to recover from the devastation of Hurricane Maria. I also would suggest that anyone clicking these links use a web browser with a translate webpage tool.

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She Doesn’t Even Go Here: Proof-of-Residency Requirements in Kansas Elections

By: Emma Dolgos

In May 2017, President Trump appointed Kris Kobach, Kansas Secretary of State, to a new Commission on Election Integrity to assist in the study of voter fraud, improper voter registration, voter suppression, and other voting irregularities. Just one month later, Kobach announced his campaign for governor of Kansas. Kobach’s public statements—both as Vice-Chair of the Commission and a gubernatorial candidate—have led to increased attention on Kansas’ state election laws, particularly the laws related to fraudulent voting.

While a number of civil rights groups have been targeting proof of citizenship laws in Kansas as they affect immigrants to the United States, few groups have given equal attention to proof of residence laws that affect current American citizens. The Kansas constitution requires a voter to reside in the state of Kansas. Further, Kansas Statutes Annotated § 25-407 states that residency encompasses a person’s place of habitation in which he or she has the “intention of returning.” The law, in its current form, hinges on the intent of each individual voter, which is arguably challenging for the state to disprove.

Proponents of this proof of residency law, including Kobach, argue that the law protects state elections from the undue influence of out-of-state voters. Kobach, in his criticism of New Hampshire elections, argues that voters have not met the legal requirements to obtain a state driver’s license and are therefore nonresidents of the state. These nonresidents do not have as much as an interest in or attachment to the state. The argument follows that nonresident votes constitute voting fraud because they are cast by ineligible voters and because they cancel out residents’ votes. This mirrors Kobach’s argument about Kansas’ proof of citizenship laws; he contends that “[e]very time an alien votes, it cancels out the vote of a U.S. citizen.” If too many nonresidents vote, they will have a disproportionate influence on state electoral outcomes.

However, opponents of Kansas’ residency requirement argue that the law is not tailored enough to solve the nonresident, fraudulent voting problem. While the law requires an intent to return to Kansas, it does not provide for a verification method. The County Election Officer determines whether an address is in located in the voting district, but the officer does not verify if the address corresponds to the specific voter. Election officers do not even have to ask for paperwork—deeds, leases, bills, and so on—connecting voters to a residence. Moreover, Kansas’ voter identification laws permit a voter to present a driver’s license from Kansas or from another state within the United states. Thus, election officials could not rely on a voter’s identification to indicate his or her intent to remain in Kansas for residency purposes. This dilemma seemingly makes the intent of a resident unprovable. People can openly abuse the law by claiming intent to return to an address “they no longer own and no longer have any legal right to occupy.”

These deficiencies in administration of the law begs the question, what is necessary to demonstrate an intent to return to Kansas? Perhaps Kansas should follow the lead of New Hampshire, the very state Kobach criticized for its ineffective residency laws. To give teeth to the law, the Kansas legislature could consider adding a provision requiring voters to provide documentation tying the voter to the address. For college students, documentation might include proof of enrollment or a “room-and-board” receipt rather than a utility bill or deed. Further, a backup mechanism would need to be set up for those voters who could not produce documentation at the time of registration.

There are legitimate concerns with ineligible voters canceling the power of valid voters in both state and federal elections. While attention predominantly goes to noncitizen voting laws, it is important to remember that valid voters can be harmed by residents from other states voting in Kansas or by residents from one county voting in another. A resident from Kansas likely would not want a New York resident choosing their representatives. That New York resident doesn’t even “go” to Kansas in the sense that she arguably does not share the same interests and concerns as a Kansan.

Since Kobach has drawn national attention to nonresident fraud problems in New Hampshire, it seems imperative that he—and the Kansas legislature—seriously discuss the future of their own proof of residence provision.

 

Squashing the Praying Mantis: Why Maryland 3rd Should be Redrawn

By: Zach Allentuck

The Washington Post called it the “second-most gerrymandered” district. Its shape is comical and unwieldly. It has been compared to a praying mantis. This is Maryland’s 3rd Congressional District. Yet, when the topic of gerrymandering in Maryland arises, Maryland’s 6th Congressional District receives an outsized amount of attention and focus. The focus on the 6th makes some sense; it is the focus of a federal court case. Certainly, from a lawsuit perspective, focusing on a district where the incumbent lost his seat because of gerrymandering makes more sense than a district where the incumbent kept his seat. However, the 3rd is still more gerrymandered, because it is a weirder shape and the margin of victory for Democrats in the 3rd is higher than it is in the 6th. It is good that both the current governor, Larry Hogan, and the former governor, Martin O’Malley, agree that the gerrymandering in Maryland is bad. However, they should speak out about the 3rd specifically, because, as stated before, the 3rd is more gerrymandered, and because it makes more political sense to focus on the 3rd. The two should draw attention specifically to the 3rd.

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