CHANGES IN THE LAW AND EXTENDED DEADLINES
April 13, 2020
Inside this Edition:
- States Experiment with Vote-By-Mail Options While Addressing Challenges and Facing Lawsuits
- Wisconsin Holds Primary Election After Wisconsin Supreme Court Blocks Executive Order Rescheduling Primary Election and United States Supreme Court Rules Against Lower Court’s Extension of Absentee Ballot Deadlines
- Election Assistance Commission (EAC) Expedites CARES Act Funding, Issues Guidance on Accessing and Using Funds
FEC, CAMPAIGN FINANCE AND DISCLOSURE UPDATE
- House Extends Financial Disclosure Report Deadline, Normal Extension Available for Senate Filers
- FEC April Quarterly Reports Due Next Week for Federal Filers, Some States Postpone Campaign Spending Disclosure Deadlines
- Update: Supreme Court Text Message Case Garners Much Interest with the Filing of Ten Amicus Briefs
LOBBYING REGISTRATION AND DISCLOSURE Update
- Multiple States Extend Deadlines for Lobbying Disclosure Reports
Holtzman Vogel HELPS IN COVID-19 CRISIS
- Holtzman Vogel Assists Feed the Fight DC as They Provide Meals to Healthcare Workers and First Responders
States Experiment with Vote-By-Mail Options While Addressing Challenges and Facing Lawsuits
As rescheduled primaries and the November elections draw closer, more states continue to move towards expanded vote-by-mail options in the wake of the COVID-19 pandemic. New York State is the latest state to allow no-excuse vote-by-mail. On April 8, New York Governor Andrew Cuomo issued an executive order that will allow all New Yorkers to vote from home for the primary that was rescheduled to June 23. Other states, such as Georgia and West Virginia, are sending absentee ballot applications to every registered voter, while others are extending deadlines to submit applications. Alaska, which has moved to a mail-in ballot only primary, has made a downloadable absentee ballot available online which voters can print, complete, and mail. In Ohio, Secretary of State Frank LaRose announced that the state was partnering with the Ohio Grocer Association to place absentee ballot applications in grocery stores so that voters may easily obtain a printed application.
At the federal level, House Speaker Nancy Pelosi is advocating for vote-by-mail provisions to be included in the next COVID-19 legislative package, and Congressional Democrats introduced H.R. 6202: Resilient Elections During Quarantines and Natural Disasters Act of 2020, which would require “states to adopt contingency plans to prevent the disruption of federal elections from the COVID-19 virus.” The bill would provide $500 million for states to implement a system allowing votes by mail for any reason. Each state would be required to adopt its contingency plans within 30 days that permit absentee voting and online requests for absentee ballots if a significant number of voters or poll workers are quarantined.
As states dramatically expand these programs under significant time pressure, they inevitably face novel practical and legal challenges. Some states must proactively address possible issues with expanded vote-by-mail programs while simultaneously defending against legal challenges to the expansion. In Georgia, for example, Secretary of State Brad Raffensperger announced on Monday that he was establishing the “Absentee Ballot Fraud Task Force” comprised of law enforcement experts, elections experts, district attorneys, and solicitor generals to help preserve ballot integrity by investigating voter fraud, such as mismatched signatures and non-residential addresses being used for registration. Two days later, the American Civil Liberties Union and the Black Votes Matter Fund filed a federal lawsuit contending that the state had imposed a poll tax that creates an unconstitutional barrier to the right to vote by requiring voters to provide their own stamps for mail-in ballots. The state has yet to respond to the lawsuit.
In the coming weeks and months, more details will emerge about the procedures specific states will use to implement their own expanded vote-by-mail systems. There is little doubt that additional legal challenges will result, and this situation will remain dynamic. We will continue to provide updates on the significant developments in this area.
Wisconsin Holds Primary Election After State Supreme Court Blocks Executive Order Rescheduling Primary Election and United States Supreme Court Rules Against Lower Court’s Extension of Absentee Ballot Deadlines
Voting in the Wisconsin primary proceeded as originally scheduled on Tuesday following Governor Tony Evers’ last-minute executive order postponing in-person voting for the presidential primary, a state Supreme Court election, and thousands of local races until June 9. After a challenge to the order was filed, the Wisconsin Supreme Court blocked the Governor’s order, determining that Governor Evers could not use emergency powers to unilaterally reschedule elections.
Separately, the U.S. Supreme Court partially stayed a federal district court’s order requiring the state to extend absentee ballot deadlines. The lower court’s order extended the absentee ballot deadline to next Monday, April 13, and required any ballot to be counted so long as it was received by April 13. The effect of the lower court’s order was to allow absentee ballots to be cast after April 7 in-person voting closed. The U.S. Supreme Court held that allowing ballots to be cast after election day “fundamentally alters the nature of the election” and ordered that absentee ballots must be mailed and postmarked, or hand-delivered, by the ordinary election day deadlines on April 7.
The resolution of these two lawsuits effectively allowed Wisconsin’s election to go forward as originally scheduled and with minimal changes to absentee ballot rules. The results of the primary have yet to be announced as the U.S Supreme Court left in place the district court’s order barring election clerks from disclosing results until properly postmarked absentee ballots that are received by April 13 are counted.
Election Assistance Commission (EAC) Expedites CARES Act Funding, Issues Guidance on Accessing and Using Funds
On April 3, the EAC issued a press release announcing that it is expediting the process of distributing the $400 million in emergency CARES Act funds made available to states to prevent, prepare for, and respond to the coronavirus for the 2020 federal election cycle. Commissioners on the EAC thanked the Treasury Department and the Office of Management and Budget for their assistance in distributing the funding rapidly. The EAC explained in its statement that it “is working diligently to get this money to the states so election administrators across the country can immediately implement contingency efforts in response to coronavirus to protect voters and election staff, and maintain the integrity of our election process.” The new funding is in addition to the $425 million allocated for election security purposes for states as part of the 2020 appropriations bill in December.
On April 6, the EAC also issued guidance to state election officers on accessing and expending the CARES Act grants and on using previously appropriated Help America Vote Act (HAVA) funds for COVID-19 related expenses. The EAC stated that it is making the CARES Act funds “available for immediate access and use, subject to the contingencies found in the attached Notice of Grant Award (NGA).” It also described the funding request and application requirements as “minimal” and explained that states may expend the funds as of March 28, 2020, and in advance of its request for disbursement.
FEC, CAMPAIGN FINANCE AND DISCLOSURE UPDATE
House Extends Financial Disclosure Report Deadline, Normal Extension Available for Senate Filers
The U.S. House Committee on Ethics granted an automatic and full extension of 90 days for financial disclosure filings to all current Members and staff. The May 15 deadline for annual reports was extended to August 13, 2020. No further extensions will be granted. However, the Committee indicated it will waive late fees for delayed filings due to COVID-19 related issues.
Note that this extension does not apply to candidates for the U.S. House, nor does it affect the deadlines for filing periodic transaction reports.
The U.S. Senate Committee on Ethics did not issue similar guidance, however extensions of up to 90 days are still available if requested prior to the filing deadline.
FEC April Quarterly Reports Due Next Week for Federal Filers, Some States Postpone Campaign Spending Disclosure Deadlines
April quarterly reports are due next week on April 15. As we previously noted, the FEC issued guidance that it does not have statutory authority to extend filing deadlines, though it also indicated that it may choose not to pursue administrative fines against filers prevented from filing by reasonably unforeseen circumstances beyond their control.
There have been no additional presidential or Congressional primary elections rescheduled since our last newsletter. Please refer to our previous newsletter for the adjusted reporting periods for the pre-election reports, and 48-Hour Notices for all previously rescheduled Congressional primary elections.
A number of states are also adjusting campaign finance disclosure schedules or loosening filing requirements in response to COVID-19.
In California, for example, the FPPC published guidance stating: “If a candidate or committee makes best efforts to comply with the Political Reform Act’s campaign finance disclosure rules but is unable to do so due to the COVID-19 pandemic, the FPPC will consider this a strong mitigating factor in determining whether an enforcement action against the candidate or committee is appropriate.” The state also loosened requirements for an original signature on all campaign finance filings. The Secretary of State Political Reform Division issued guidance stating that when it is not possible or practicable to obtain original signatures, filers may submit non-original signatures (e.g. by scanning and emailing an original signature). All filers who submit non-original signatures must include a statement explaining why they were not able to file an original signature and subsequently send the Secretary of State the statement or report with an original signature at the earliest possible time. Reports or statements filed without an original signature will not be assessed late fines by the Political Reform Division solely based on the missing original signature.
In Pennsylvania, Governor Wolf granted a temporary waiver of the notarization requirement for campaign finance reports and campaign finance statements filed by political committees and candidates for public office. The waiver includes adopting the use of the unsworn falsification standard and allowing the required documents to be filed online and electronically using the unsworn falsification standard until the COVID-19 health emergency subsides. Details of the new filing process can be found here.
Texas issued guidance to local filing authorities and local filers about adjusting deadlines for campaign finance filings following Governor Greg Abbott’s proclamation suspending provisions of the Texas Election Code to allow political subdivisions to postpone their 2020 local elections. Because local governments now have the ability to postpone their May 2 elections to November 3, the guidance explains how to adjust filing deadlines accordingly. The guidance can be found here.
We are continuing to monitor the latest postponements and reporting adjustments. In future newsletters we will include any additional changes to state campaign filing requirements as a result of COVID-19. If you have any questions about how these changes potentially impact you or are experiencing difficulty completing any disclosure report or determining your filing deadlines, we are available to assist clients.
LOBBYING REGISTRATION AND DISCLOSURE UPDATE
Multiple States Extend Deadlines for Lobbying Disclosure Reports
As detailed below, we were advised by several states that they extended deadlines for the filing of required state lobbying disclosure reports. We will continue to keep you apprised of any additional extensions in future newsletters when we become aware of them.
In Connecticut, the Office of State Ethics has granted a 30-day grace period, extending to May 10, to file the First Quarter Lobbyist Reports (Forms ETH-2D and ETH-2C) which were originally due by April 10. The Office of State Ethics intends to adjust this directive as necessary.
In Hawaii, the Hawaii State Ethics Commission issued an order extending the deadline for lobbying expenditure reports for the period January 1 to February 29, 2020, until April 30 and authorized the Executive Director to extend the deadline until May 31 “if appropriate, without further Order of the Commission.”
Illinois extended the Period 6 and Period 7 reports from April 5 and 20, respectively, to June 4 and June 19, respectively.
In the District of Columbia, the Board of Ethics and Government Accountability announced that it is waiving late fees for Quarterly Activity Reports due on April 15. Late fees will not be assessed on lobbying filings that are delayed due to the COVID-19 crisis. If you will not be able to meet a registration or reporting deadline, the Board encourages you to contact their office in advance.
In New York, the New York State Joint Commission on Public Ethics further extended the filing deadline for all lobbying filings until April 15. This extension includes the January/February 2020 Lobbyist Bi-Monthly Reports. Further, “to avoid unnecessary administrative burden for the regulated community at this difficult time,” the Commission also issued a statement that it has suspended the Lobbying Random Audit Program. No new audits will be initiated until further notice and compliance with all ongoing audits is voluntary until the program is resumed. The Commission also states that any change to this policy will be publicly announced.
In North Carolina, the Secretary of State issued a Notice of Exercise of Discretionary Enforcement Authority extending the deadline for filing the first quarterly report due April 22 to July 22. The notice specifies that late filing fees or civil fines will not be levied if the report is filed by July 22 and is accompanied by a statement made under oath that a notary public could not be obtained prior to the April 22 filing date due to COVID-19 social distancing requirements.
In Pennsylvania, Governor Wolf granted the Department of State’s request to waive the lobbying disclosure first quarter 2020 reporting date of April 30. The first and second quarter reports are now both due on July 30. Each report should be filed separately.
Update: Supreme Court Text Message Case Garners Much Interest with the Filing of Ten Amicus Briefs
In a previous newsletter we discussed how FCC rules on robocalls apply to text messaging by campaigns, noting that a case pending before the Supreme Court would likely consider the crucial legal issue of what constitutes an automated telephone dialer system (ATDS) and what degree of human intervention makes the system non-automated. The case, Barr, et al. v. American Association of Political Consultants, et al., has garnered significant interest in the regulated business community. Ten amicus briefs were recently filed in the case by a number of businesses and associations in the regulated community, including Facebook, the U.S. Chamber of Commerce, the Retail Energy Supply Association, and the Cato Institute. While the case was set for argument on April 22, that date has been postponed along with the rest of the Supreme Court’s April argument calendar.
We will continue to monitor developments in the case and provide updates on how this matter affects our clients. In the meantime, we continue to advise our campaigns clients that certain best practices can help prevent a TCPA violation by your campaign and refer you to start.
Holtzman Vogel HELPS IN COVID-19 CRISIS
Holtzman Vogel Assists Feed the Fight DC as They Provide Meals to Healthcare Workers and First Responders
Holtzman Vogel, led by firm partner Jason Torchinsky, is proud to be a part of efforts by local organization Feed the Fight DC by providing pro bono legal counsel as they work tirelessly to provide much-needed meals to healthcare workers and first responders fighting COVID-19. As recently reported in the Washingtonian, Feed the Fight DC is a nonprofit organization recently launched by local lobbyist Elena Tompkins to help provide meals for nurses at Sibley Hospital. By April, the effort rapidly expanded and in its most recent update this week, Feed the Fight DC reported delivering a total of 1,110 meals at 18 locations in DC, Virginia, and Maryland in one day. Click here for more information about Feed the Fight and to find out ways you can help in the fight.
Disclaimer: The information contained in this document is provided for informational purposes only and should not be construed as legal advice on any matter. The material may not reflect the most current legal developments and the content and interpretation of the law addressed herein is subject to revision. The transmission and receipt of this document, in whole or in part, does not constitute or create a lawyer-client relationship between Holtzman Vogel and any recipient. Do not act or refrain from acting upon this information without seeking professional legal counsel. We disclaim all liability in respect to actions taken or not taken based on any or all the contents of this document to the fullest extent permitted by law. If you have questions about any of the information contained in the document, you should contact us so that we can review the facts associated with your particular situation.