RELEASE: Voter Protection Program Holds Briefing on State vs. Federal Government Role in Safeguarding the Election with Former DOJ Officials and State Leaders

New “Federal Involvement Guidelines” Outlines the Limited Role of the Federal Government in Elections

Washington, D.C. — Today, the Voter Protection Program (VPP) held a press briefing with former federal officials and law enforcement leaders on the role of states vis-a-vis the federal government in safeguarding a free and fair election and ensuring every vote is counted. With continued movement in the courts on election-related issues and emerging concerns about federal involvement in the election, the VPP brought together leaders with decades of experience with voter protection issues to affirm the role of the states in running and certifying elections.

New Mexico Attorney General Hector Balderas expressed the primary role that state leaders, including state attorneys general and other elected state officials, play in ensuring every vote is counted, and working to protect against violations of voting rights like misinformation and interference, intimidation and suppression. “State leaders, not federal agencies, have the primary responsibility for protecting our democratic right to vote,” he said. “Let me be clear: New Mexico is in charge of our own election, and you can trust the office of the Attorney General and Secretary of State to protect the votes of everyone in our state.”

Former U.S. Deputy Attorney General Donald Ayer added, “Here’s the big picture: The conduct of the elections, including elections for Federal offices, has always been the job of the States. For the DOJ or any other federal agency to interfere with a State’s administration of a free and fair election would cross a very clear red line. For a lot of reasons, we think such a radical departure from established practice is not going to happen.”

State governments have the primary responsibility to administer elections and enforce election law. Traditionally, the federal role has been limited to two areas: (1) Enforcing the protections of the Voting Rights Act to ensure that every eligible citizen has the right to vote, and (2) After all votes are counted and an election result is certified, prosecuting individuals who have committed federal election crimes. The Voter Protection Program released a “Federal Involvement Guidelines” as a reference guide to understand what federal election-related behavior is acceptable – and what behavior should raise concerns.

The scorecard follows other recently shared resources to help state attorneys general and their allies understand the rules and policies before, during, and after Election Day. Joanna Lydgate, National Director of the Voter Protection Program, said of the work of the VPP, “With these tools, state attorneys general, their allies, and key stakeholders will be better equipped to make sure the 2020 election is safe, fair, and secure. Every eligible voter must be able to vote, and every vote must be counted.” 

In the runup to the 2020 election, recent comments and actions by some federal officials have raised concerns of the possibility of unprecedented federal involvement – and potentially unlawful interference – in the conduct of elections and enforcement of election laws at the state and local level.

Former Director of Immigration and Customs Enforcement, Sarah Saldaña reiterated the primary role states play in protecting the election. “As the former head of ICE, one of the law enforcement agencies within the U.S. Department of Homeland Security, and a U.S. Attorney, I want to echo what you heard from my colleagues who work in the FBI and other federal law enforcement: As a general rule, federal officials do not get involved in the workings and administration of elections,” she said. 

Former Police Commissioner of the Philadelphia Police Department and Co-Chair of the  Presidential Task Force on 21st Century Community Policing, Chuck Ramsey, drew from his experience in state law enforcement leadership stating, “I have been a police officer and chief in three cities, and I’m here to tell you the federal government is not part of policing elections and ballot boxes. In my many decade career, the DOJ has never policed elections. If that were to happen now, it would be a major departure from the status quo and extremely troubling.”

Speaking from his experience as the former General Counsel of the Federal Bureau of Investigation, Ken Wainstein, weighed in from a federal agency perspective saying, “I can say with confidence and clarity that the FBI never has interfered in – and has no interest in interfering in – the states’ handling of elections. State officials are responsible for running elections, not the federal government.”

States attorneys general, governors, and secretaries of state are working hand-in-hand with law enforcement leaders to safeguard the 2020 election and beyond from unwarranted interference, from any direction.

The Voter Protection Program advances strategies and recommendations to protect the election and make sure every vote is counted, with a specific focus on the unique tools available to state attorneys general, governors, secretaries of state, and law enforcement leaders. In addition to the scorecard to help understand what federal election-related behavior is acceptable, the VPP also shared this week an updated litigation update memo highlighting the courts’ recent election decisions and ongoing voting rights litigation across the country, and a blog post on the distinct roles of state and federal leadership in elections. 

The full recording of the briefing can be found here. If you would like additional information or to schedule a follow up conversation with state leaders and experts with the Voter Protection Project, please reach out to Mariam Ahmed, mariam.ahmed@berlinrosen.com.

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About the Voter Protection Program

The Voter Protection Program is a nonpartisan initiative of the Progressive State Leaders Committee, a 501(c)(4) organization. Visit https://statesuniteddemocracy.org/about/ for more information. 

Voting Rights Litigation Update: Absentee Ballots, State Legislatures

One week out from the election, voting rights cases are moving quickly through the courts. The VPP’s Litigation Tracker, which summarizes many significant voting rights cases from the past month, is here.

This blog post takes a closer look at two related issues before the courts this week: Absentee ballot receipt deadlines, and the courts’ authority to alter state statutory voting schemes.

Absentee Ballot Receipt Deadlines

The federal courts of appeals and the U.S. Supreme Court continue to grapple with litigation challenging the extension of mail-in ballot receipt deadlines.

Here’s the state of play in some key battleground states as of October 27: Ballot receipt extensions in Minnesota, North Carolina, and Pennsylvania are still in place. Challenges to the extensions in North Carolina and Pennsylvania are pending before the Supreme Court – in Pennsylvania’s case, for the second time – and a Minnesota challenge is before the federal Eighth Circuit.

In the face of the COVID-19 crisis and the USPS mail slowdown, some states extended their deadlines for counting mail-in votes so that voters who send their ballots by Election Day won’t be disenfranchised by late delivery. For instance:

  • In a state court consent decree, Minnesota agreed to count ballots received up to seven days after Election Day.
  • The Pennsylvania Supreme Court held that the state constitution requires election officials to count ballots received up to three days after Election Day.
  • A federal district court ordered Wisconsin to count ballots received up to six days after Election Day.
  • North Carolina’s Board of Elections voted to extend its ballot receipt deadline by nine days.

Each of those extensions was challenged in federal court. Some of the challenges are ongoing, potentially with serious ramifications for voters who mail their ballots on time: In Wisconsin, for instance, the federal district court estimated that more than 100,000 votes might be unfairly discounted without the change.

But a federal court of appeals blocked the Wisconsin extension from taking effect, citing the Purcell principle to justify federal court nonintervention in election procedures. On the evening of October 26, the U.S. Supreme Court voted 5-3 not to disturb the appellate court’s order. The VPP’s summary of the three concurrences and dissent is here.

And while an evenly split Supreme Court declined on October 19 to block the Pennsylvania Supreme Court’s deadline extension, the Republican Party of Pennsylvania continues to mount new challenges through both a collateral attack in federal district court and an attempt to get a second bite at the apple at the U.S. Supreme Court. That Supreme Court petition is briefed and pending decision just as Justice Amy Coney Barrett takes the bench.

Meanwhile, after running a complex procedural gauntlet, cases challenging the North Carolina ballot extension are also waiting on the Supreme Court’s docket. There too, Republican legislators seek to upset the ballot receipt extension – which the federal Fourth Circuit court of appeals voted 12-3 to keep in place – less than a week before Election Day.

The Republican challenge to Minnesota’s ballot extension is running a step behind, with a hearing scheduled on October 27. The extension is defended by a multistate coalition of state attorneys general led by Washington, DC’s Karl Racine.

When Can Courts Alter State Legislative Voting Schemes?

The concurrences by Justices Kavanaugh and Gorsuch in the Wisconsin case – Democratic National Committee, et al v. Wisconsin State Legislature, et al, 20A66 (U.S.) – clarify that some Supreme Court justices embrace a theory, once confined to the fringes of the legal world, that only state legislatures and Congress can set election rules.

Justice Gorsuch’s concurrence emphasizes that “state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.” Slip Op. at 2-3 (Gorsuch, J., concurring in the denial). In a footnote, Justice Kavanaugh’s concurrence explains why, at least for the court’s more conservative justices, state legislatures have that special role: “The text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws.” Id. at 9, n.1.

The constitutional text the justices are talking about is Article I, § 4 – the Elections Clause, which provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time make or alter such Regulations, except as to the Place of chusing Senators.”

But does the Elections Clause mean that only state legislatures – and not state judges interpreting legislation, or the state constitutional provisions that provide the basis for state legislative enactments – can define state elections procedures? If so, a federal court could overrule the Pennsylvania Supreme Court’s application of its own state constitution to extend the ballot receipt deadline. In fact, that is exactly what the Pennsylvania Republican Party is now asking the federal courts – both the Supreme Court and, simultaneously, a federal district court in western Pennsylvania – to do.

As Justice Kagan pointed out in her Wisconsin dissent, that outcome is profoundly activist and interventionist, expanding the role of the federal judiciary to second-guess state courts – a posture that conservative justices frequently deride. The view of the Elections Clause espoused by Justice Kavanaugh would require more, not less, federal court involvement in elections, see Slip Op. at 11, n.6 (Kagan, J., dissenting from the denial), as federal courts step in to tell state courts how they can interpret and apply state statutes.

The Chief Justice, at least, seems to concede that the Supreme Court should be wary of overruling a state court’s interpretation of its own laws and constitution. In his Wisconsin concurrence, Justice Roberts distinguishes between Wisconsin and the Court’s earlier 4-4 decision in the Pennsylvania cases – Scarnati v. Boockvar, No. 20A53 (U.S) and Republican Party of Pennsylvania v. Boockvar, No. 20-542 (U.S.) where the Chief Justice voted with the court’s three more liberal members to let the extension go forward. The difference, Roberts explained, hinges on deference to state courts: “[T]his case presents different issues than the applications this Court recently denied in Scarnati v. Boockvar, ante, at ___, and Republican Party of Pennsylvania v. Boockvar, ante, at ___. While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes.” Slip. Op. at 1 (Roberts, C.J., concurring in the denial).

Of course, as in so many other areas, the resolution of what seems to be a 4-4 split will depend on the vote – if she declines to recuse herself – of the newest justice, who takes the bench this morning.

Litigation Tracker

VPP’s summary of significant voting rights cases from the final months of the election is updated daily.

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