State AGs Have A Decisive Role To Play In Election

By Ashley Taylor, Stephen Piepgrass and Chris Carlson
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Law360 (October 30, 2020, 5:38 PM EDT) --
Ashley Taylor
Ashley Taylor
Stephen Piepgrass
Stephen Piepgrass
Chris Carlson
Chris Carlson
The general public is bracing for a turbulent election season, knowing that COVID-19 will undeniably play a role in the number of votes cast. Amid a daunting pandemic, state attorneys general are being called to protect the fundamental right to vote, while also preserving the integrity of each state's election processes. The historical expertise of state attorneys general, coupled with their expanding role in national issues over the past decade, has equipped them to meet this challenge head-on.

The presidential election is an aggregation of the various state elections involving processes in which state attorneys general will take center stage. This article will provide a background of the expanding role of state attorneys general and explain that while much of the media focuses on the U.S. Supreme Court possibly deciding the election, it is much more likely that state attorneys general will play a decisive role in this election.

Their role involves (1) determining the availability of mail-in ballots; (2) evaluating whether mail-in ballots are counted; (3) negotiating resolutions with public interest groups that raise election law issues; (4) resolving underlying tensions with local governments that retain and train poll workers; and (5) ensuring that the 2020 election expeditiously results in a president-elect.

Evolving Role of State Attorneys General

State attorneys general have always played a lead role in their state election processes. They serve as counsel to state election boards and as each state's chief law enforcement officer, defend state laws when challenged. While the attorney general for each state has always worn many hats — lawyer, policymaker and politician — these roles have expanded to influence issues beyond the particular state's boarders.

Now, state attorneys general actively seek opportunities to effectuate policy and protect consumers outside their state borders and do so through multistate actions, filing amicus briefs in support of preferred policies and coordinated enforcement efforts.

The actions by states attorneys general against the U.S. Postal Service in September of this year reflects the most recent example of state attorneys general willingness to challenge the federal government if perceived as inconsistent with state laws. In State of Washington v. Trump, 14 states led by the Washington attorney general sued the USPS and eventually obtained a nationwide injunction that required the USPS to stop and reverse operational changes that slowed down mail.

Another example of state attorney general coordinated activity involves the District of Columbia attorney general leading a group of Democratic attorneys general in filing amicus briefs related to state-specific voting requirements in Alabama, Florida, Minnesota, Mississippi, North Carolina, South Carolina and Texas.

These briefs all advocate to modify election procedures that will expand opportunities for voter participation. Republican attorneys general filed their own briefs in Alabama, Arizona, Georgia and Indiana arguing against last-minute changes to state election laws.

But these actions by attorneys general are not simply a reaction to the 2020 election — they are rooted in the states' increased willingness to challenge federal actions and serve as the lead regulatory enforcer for consumers when they perceive a vacuum in enforcement.

For instance, state attorneys general have taken the lead role in obtaining nationwide injunctions of executive orders, prohibiting price gouging during COVID-19, enforcing cybersecurity statutes and regulating cannabis or cannabis-derived compounds. In doing so, the state attorneys general have demonstrated their readiness to fill any self-identified enforcement gaps left by the federal government.

Perceived Role of State Attorneys General and Their Staff

Historically, the position of state attorneys general was often the capstone to a long distinguished career. Now, rather than viewing the position one seeks at the end of their career, attorneys general and their staffs view their roles as opening the door to high-profile national positions. For example, recent former state attorneys general are now referred to as:

  • Vice presidential candidate and Sen. Kamala Harris, D-Calif.;

  • Former U.S. Attorney General and Sen. Jeff Sessions, R-Ala.;

  • Sens. Dan Sullivan, R-Alaska, Richard Blumenthal, D-Conn., Josh Hawley, R-Mo., Tom Udall, D-N.M., Catherine Cortez-Masto, D-Nev., Sheldon Whitehouse, D-R.I., and John Cornyn, R-Texas;

  • Rep. Charlie Crist, D-Fla.;


  • Former U.S. Environmental Protection Agency Director Scott Pruitt of Oklahoma.

The same upward trajectory applies to the staff in attorneys general offices, who consist not only of career employees with deep institutional knowledge of state laws, but also include some of the nation's brightest legal minds in executive roles and as state solicitors general.

With this context in mind, state attorneys general will play a decisive role in this election in the following ways.

Availability of Mail-In Ballots

States are still grappling with how to handle the increased use of mail-in ballots. Pending actions will determine which citizens receive mail-in ballots, whether the ballot must be executed before a witness or notary, and when the deadline for receiving mail-in ballots will expire.

At bottom, state attorneys general fundamentally differ on whether the pandemic should allow for flexibility of state voting laws. Generally, Democratic attorneys general have pushed for greater flexibility in line with the views of Justice Ruth Bader Ginsburg who, in one of her last dissents, stated that "[e]nsuring an opportunity for the people … to exercise their votes should be our paramount concern."

This is contrasted by most Republican attorneys general who have taken the position that the laws passed by state legislatures should be honored and that unilateral changes by courts should not be altered on the eve of an election.

These competing priorities clashed in South Carolina when public interest groups challenged the state's witness requirement for absentee ballots due to the extraordinary circumstances brought by COVID-19. The South Carolina attorney general defended South Carolina law. Eighteen Democratic state attorneys general, led by the District of Columbia, filed an amicus brief opposing the requirement and arguing that states have a responsibility to tailor their election rules to protect voter participation and voter safety during the pandemic.

The U.S. Court of Appeals for the Fourth Circuit and U.S. Supreme Court upheld the South Carolina law, and Justice Brett Kavanaugh opined that:

A [s]tate's decision to keep or to make changes to election rules to address COVID-19 ordinarily should not be subject to second-guessing by an unelected federal judiciary which lacks the background, competence and expertise to assess public health and is not accountable to the people.

Determining Whether Mail-In Votes Are Counted

Historically, an extraordinarily high number of mail-in ballots have been rejected. More than 555,000 were rejected during this year's presidential primaries, and 318,728 were rejected in the 2016 general election. To put this in context, President Donald Trump won Wisconsin in 2016 by 22,748 votes. More than 23,000 votes were rejected in the state.

With tens of millions more voters expected to cast their votes by mail, and many for the first time, each state must determine whether votes are valid based on missing or inaccurate signatures or because ballots arrive too late.

With litigation in more than half the states seeking to extend mail-in ballot deadlines by waiving witness and notary requirements and/or eliminating signature mismatching laws, state attorneys general will play a decisive role in whether these requirements for determining whether a ballot is valid, and should be counted, remain in place and how they will be applied by clerks' offices across their states.

Ultimately, this process could come to a head in key battleground states as some state attorneys general look to precedent to strictly enforce the state laws regarding valid absentee ballots, while others seek less an accommodation of absentee ballot requirements based on a spike in mail-in voting due to the pandemic.

Negotiating Resolutions With Public Interest Groups That Raise Election Law Issues

Not every issue is so divisive. Now, through social media platforms, the modern attorney general can promptly respond to challenges and negotiate with public interest groups to resolve their concerns.

An example of this arose when Virginia's online voter registration website crashed for much of the day on Oct. 13 — the last day for Virginians to register. The Virginia attorney general acknowledged publicly that the laws of the commonwealth gave neither him — nor the governor — authority to extend the voter registration deadline, and noted that relief could only be provided by a court.

The public interest groups seized on this statement and filed an action to extend the registration deadline. The Virginia Attorney General conceded that agreeing that an order extending the registration deadline from this court "would vindicate the public interests of ensuring access to the voting booth and election integrity."

Later that same day, the public interest groups that filed the lawsuit and the Virginia Department of Elections proposed a consent order, extending the registration deadline for three days, requiring Virginia to provide public notice of the extended voter registration period to all local media, post sufficient notice on the state election website, and instructing local election officials to do the same.

Unexpected issues will arise that will demand that the parties reach a resolution quickly, thereby allowing the public to move forward with confidence in the electoral process.

Resolving Underlying Tensions With Local Governments who Actually Retain and Train Poll Workers

While attorneys general are each states' chief law enforcement officer, they are by no means the only elected official in each state. Local government officials, including county clerks, provide direction to poll workers and make decisions to effectuate state voting laws. That said, sometimes these elected officials do not see eye to eye.

This issue has already occurred in Texas, where the Harris County Clerk's Office communicated his intent to send out over two million unsolicited mail-in ballot applications. The Texas Attorney General's Office opposed this action, filing a brief with the Texas Supreme Court; contrast that with 17 Democratic state attorneys generals who filed an amicus brief in support of the county clerk's plan.

The Texas Supreme Court unanimously concluded that the Harris County Clerk's Office lacked authorization under Texas law to proceed with such a mass mailing.

In this continuing skirmish with the Harris County Clerk's Office — this time related to establishing drive-through voting locations — the Texas Attorney General issued an advisory letter decrying this action as unlawful and warning that "encouraging or facilitating election operations that violate these rules is unlawful and could result in legal liability for political subdivisions and their officials."

Based on the uncertainties around mail-in voting in this election, one might expect that county clerks will play a larger than normal role and that attorneys general will ensure that any actions taken accord with state law. The lingering question is whether local election officials will defer to the state attorneys general's reading of the law or whether these issues will result in emergency litigation.

How States Will Respond if There is No Clear Victor

State election officials have been warning for months that the sheer volume of mail-in ballots will make it extremely unlikely that there will be a clear victor on the night of Nov. 3. Some state laws, including those in the battleground states of Michigan, Pennsylvania and Wisconsin, dictate that mail-in ballots cannot be counted before Election Day, which means that until Election Day ballots sit on the desks of local election officials.

Many states are accepting mail-in ballots post marked by Nov. 3, but received up to a week later. The legitimacy of court-imposed extensions has been called into question after the Supreme Court rejected an extension in Wisconsin; however in other states, legislatures have allowed these extensions by law.

In light of these procedural impediments, if the presidency is on the line and delays persist, state attorneys general will weigh in on one side or the other.

As an example, the Washington attorney general — who led the USPS lawsuit — recently announced an election protection initiative designed to "defend democracy and the longstanding American tradition of a peaceful transition of power" in direct response to what some interpreted as Trump's and Vice President Mike Pence's refusal during the debates to expressly commit to a peaceful transfer.

Conclusion

State attorneys general will be on center stage for the 2020 election and their influence on national elections and national consumer protection issues will only continue to grow.



Ashley Taylor and Stephen Piepgrass are partners, and Chris Carlson is an associate, at Troutman Pepper Hamilton Sanders LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

For a reprint of this article, please contact reprints@law360.com.

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