Nonprofit Voter Assistance Efforts at Risk in Wisconsin - plus a few bits of news from New York
May 31, 2024
News for Nonprofits
I work with nonprofit organizations on voting rights and election law issues. In addition to my regular posts, I will be regularly including ones like this one directed primarily at nonprofits that assist voters, work on voting rights, or are otherwise engaged in election issues. I think these posts will also be of interest to the general audience, and - as you can see from the last section of today’s post - I may also include some more general interest matters in these posts.1
Wisconsin law threatens voter assistance efforts by nonprofits and others
During Wisconsin’s primary election this year, voters passed Question 2 by an 18 point margin. Question 2 read added the following amendment to the state constitution: “Section 7 (2) No individual other than an election official designated by law may perform any task in the conduct of any primary, election, or referendum.”
Proponents of the question claimed during the campaign that it would prevent non-governmental entities from funding elections. That argument was deceptive; it was actually for a companion measure, Question 1, which also passed. It is Question 1 that bans non-governmental money from being used to fund elections. Both measures were put on the ballot by the Republican legislature.
On its face, Question 2 could prohibit anyone from assisting any voter in any task related to an election for any reason at all. Nonprofit organizations across the country assist voters in various ways from voter registration drives to helping voters fix mistakes on rejected ballots to providing voters with food and water while they wait in line to vote. Election officials everywhere rely on volunteers to be poll workers, set up polling stations, and observe the election. There is concern that the law is so vague that it appears to include private vendors who so things such as print ballots and service voting machines. Proponents of the law say the law doesn’t apply to those situations, but in any case election officials can solve the problem by designating them as “election officials.”2 To do this would create additional burdens on already over-burdened local election officials.3
There will almost certainly be litigation on this, but I haven’t found any initiated yet. Just because it’s a constitutional amendment and because the voters approved it does not mean it’s legal. There is a legal doctrine that laws must not be so vague or overbroad that persons do not have adequate notice of whether something is prohibited or not. State constitutions also may not violate the federal constitution. Question 2 may violate the election clauses and free speech and free assembly sections of the US Constitution as well federal election laws. In fact, a New York court permanently enjoined a state election law on many of these grounds yesterday (see below).
At the very least, I would expect some election official to ask a court to enjoin Question 2 until after this year’s election. However, in the meantime, nonprofit organizations (and others) who plan to run some voter assistance program in Wisconsin should consult legal counsel before doing so. The ACLU has been actively opposing both Questions and may be a good resource for you.
Line warming ban struck down in New York
One bit of good news on the voter assistance front! Yesterday, court in New York struck down a provision in state law that prohibits anyone from giving food and drink to voters waiting in line to vote. This is often known as “line warming.” Many states allow nonpartisan efforts to provide food and water to voters, as long as it is not done in exchange for a promise to vote a certain way. In fact, the reason New York enacted this law over 100 years ago was to prevent vote bribery.4
Bribing voters was a real thing in the 19th Century, which was made fairly easy by vote casting methods that could prevent voters from casting a secret vote. Vote bribery, which is still illegal everywhere to my knowledge, is almost impossible now. Only the promise of a vote can be made with any certainty.5 And nonprofit organizations have been line warming in nonpartisan ways for a long time. In fact, New York wasn’t even enforcing this law. But that was irrelevant to the district court judge, who ruled yesterday that the law violates the 1st and 14th Amendments to the US Constitution because it violates free speech and expression, is impermissibly overbroad and vague.6
Democracy Docket has a good article published just yesterday about line warming bans around the country. Make sure to consult it and the Democracy Capacity Project voter assistance guide for your state before engaging in line warming activities. But in New York, nonprofit organizations can now provide line warming to voters without fear of prosecution. But please remember: if you are a 501(c)(3) nonprofit corporation, you must keep all of your activities nonpartisan!
Final thought: Trump’s conviction and the election
Several people have asked me whether I think Trump’s felony convictions yesterday will hurt his chances in November. You may remember that there was some interesting research related to this question presented at AAPOR’s Atlanta meeting. That research, the polling,7 and my gut tells me his conviction will have little impact on his support, but we really don’t know yet. Nate Cohn has an interesting piece about this in the Times. He thinks there is a chance in a close election it will make a difference:
But Mr. Trump doesn’t just count on the support of Republicans and MAGA loyalists in the conservative information ecosystem. His strength in the polls increasingly depends on surprising strength among voters from traditionally Democratic constituencies, like young, nonwhite and irregular voters. Many of these voters are registered as Democrats, back Democrats in races for U.S. Senate and may have even backed Mr. Biden in the last election. This is not Mr. Trump’s core of proven support. This is a group of voters whose loyalty hasn’t yet been established — let alone tested.
The Times/Siena and Marquette Law polls both suggest that these young and nonwhite voters might be especially prone to revert to their traditional partisan leanings in the event of a conviction, with Mr. Biden getting back to a far more typical lead among young and nonwhite voters. In fact, almost all of the unusual demographic patterns among young, nonwhite and irregular voters disappear when voters are asked how they would vote if Mr. Trump were convicted.
I recommend reading the entire article. It has some interesting insights into the polling dynamics we are seeing right how.
One of the things I do is write technical guides on voting assistance programs for nonprofits for Democracy Capacity Project. If you work for a nonprofit doing election work, please consult DCP and Alliance for Justice’s Bolder Advocacy program for assistance. At some point, I will publish a more comprehensive list of resources for you to consult. The usual disclaimer applies: I am solely responsible for the content of this newsletter and neither DCP nor Bolder Advocacy (both nonpartisan nonprofit organizations) are paying me for it nor does the content necessarily reflect the views of either organization.
Wisconsin state law also requires “election officials” to be residents of the county they are working in.
Making elections more difficult to run appears to be the point of what Republicans in the state legislature were doing here, particularly in light of having their decades-long political gerrymandering scheme overturned by the state supreme court and now having to face competitive elections in a state where Democrats more often win the statewide vote in legislative races than Republicans do.
It was updated and recodified in 1992.
To be clear, the promise to vote a certain way in exchange for something of value is criminal bribery under vote bribery statutes.
Brooklyn Branch of NAACP v. Kosinski, 21 Cov. 7667 (KPF)(Filed May 30, 2024) at 48.
Although a recent Marquette Law School pool showed that among registered voters, Trump’s lead turned into a four-point win for Biden if Trump were convicted.