Yenne, Catherine

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Special Session Elections Legislation (Issue Summary)

University of Idaho College of Law

Special Session Elections LegislationIssue SummaryCatherine YenneIdaho Law ReviewIdaho legislators convened in person at the Statehouse in August 2020 for anExtraordinary Legislative Session to discuss bills related to the 2020 election and COVIDliability measures.1 One such bill, HB 1, called for the requirement of a physical polling placeduring each election, regardless of a state of emergency2—a direct response to Governor Little’semergency declaration and the subsequent all-mail election that occurred in May.3 The billamended Section 34-1006 of the Idaho Code, which requires county clerks to provide “theopportunity to vote in person”4 notwithstanding future emergency declarations.5 However, thebill did not mandate that the polling place be in a convenient location for the public – just that itexists in the county.6 The fiscal impact of this requirement is unknown and will likely varythroughout the state.7 The bill did not alter the standard mail-in voting process for precincts withfewer than one hundred forty registered voters.8Representative Priscilla Giddings sponsored HB 1 after hearing constituent concernsregarding troubles receiving their mail-in ballots or subsequent findings that their vote was neverrecorded.9 She also stated that her constituents asked her “to oppose universal vote by mail.”10This was echoed in the testimony to both the House and Senate State Affairs Committees wheremembers of the public expressed fear of voter fraud11 and said “it is unsafe to do it any otherway.”1212 Relating to Elections: Hearing on H.B. 1 before the H. State Affairs Comm., supra note 11, (statement of MonicaMcKinley).  It is worth noting that fears of voter fraud leading up to the November 2020 election were not realized11 Relating to Elections: Hearing on H.B. 1 before the H. State Affairs Comm., 65th Leg., 1st Extraordinary Sess.(Idaho 2020) (statements of Monica McKinley and Wendy Blanton); Relating to Elections: Hearing on H.B. 1before the S. State Affairs Comm., 65th Leg., 1st Extraordinary Sess. (Idaho 2020) (statement of Nikki Schumacher).10 Rauzi, supra note 5.9 Rauzi, supra note 5.8 IDAHO CODE § 34-308 (2019); H.B. 1.7 Relating to Elections: Hearing on H.B. 1 before the S. State Affairs Comm., 65th Leg., 1st Extraordinary Sess.(Idaho 2020) (statement of Rep. Giddings).6 Id.; Idaho Legislature wraps up special session, sends 3 bills to governor’s desk, KTVB (Aug. 26, 2020, 9:45 PM),https://www.ktvb.com/article/news/local/capitol-watch/idaho-legislature-wraps-up-special-session-sends-three-bills-to-governors-desk/277-56793cb0-922b-4a8a-bee7-f89fd01d27d0.5 David Rauzi, HB1 a ‘voter’s insurance policy’ says Rep. Giddings, IDAHO COUNTY FREE PRESS (Sept. 16, 2020),https://www.idahocountyfreepress.com/news/hb1-a-voter-s-insurance-policy-says-rep-giddings/article_baeb6f76-f7d0-11ea-80b3-3b40c8a3e2cc.html.4 H.B. 1.3 Betsy Z. Russell, Governor signs HB 1 on in-person voting, IDAHO PRESS (Sept. 1, 2020),https://www.idahopress.com/news/local/governor-signs-hb-1-on-in-person-voting/article_24ce2c61-2783-5027-a105-01e6e83d56de.html.2 H.B. 1, 65th Leg., 1st Extraordinary Sess. (Idaho 2020).1 Ruth Brown, COVID-19 precautions scarce as lawmakers open special session for election, liability issues, IDAHOSTATESMAN (Aug. 24, 2020, 3:52 PM),https://www.idahostatesman.com/news/politics-government/state-politics/article245194280.html.11Yenne: Special Session Elections Legislation (Issue Summary)Published by Digital Commons @ UIdaho Law, 2021In her testimony to the Senate State Affairs Committee, Representative Giddingsexplained that Sections 46-1008 and 46-601 of the Idaho Code empower Governor Little tosuspend certain statutes and regulations during states of emergency, unless otherwise provided inthe statute or regulation.13 The purpose of the bill was to so provide. Generally, the governor maysuspend certain procedural regulations that “prevent, hinder, or delay necessary action” whendealing with an emergency,14 which he did when he required an all-mail election.15Representative Giddings further explained, “we really value in-person voting,” and the bill isnecessary to “uphold our traditional voting practices.”16Committee member Senator Souza distinguished between requesting an absentee ballot(which would still be permitted after the passage of this bill) and universal mail-in voting (whichis not allowed in Idaho).17 Other states, like Washington and Oregon, automatically mail ballotsto all registered voters,18 eliminating the need for in-person polling places and to request anabsentee ballot from the Secretary of State’s Office.19 The only other comment came fromSenator Stennett who asked what would happen if a polling place was flooded or otherwiseunusable.20 Representative Giddings explained that the response would depend on theemergency, and there may be another polling place that the voter could use.2121 Relating to Elections: Hearing on H.B.1 before the S. State Affairs Comm., supra note 11, (statement of Rep.Giddings).20 Relating to Elections: Hearing on H.B.1 before the S. State Affairs Comm., supra note 11, (statement of Sen.Stennett).19 Absentee Voter Information, IDAHO VOTES, https://idahovotes.gov/absentee-voter-information/ (last visited Feb. 12,2021).18 Michael D. Hernandez, All-Mail Elections, NAT’L CONF. OF STATE LEGISLATURES (Sept. 2014),https://www.ncsl.org/research/elections-and-campaigns/all-mail-elections635457869.aspx.17 Relating to Elections: Hearing on H.B. 1 before the S. State Affairs Comm., supra note 11, (statement of Sen.Souza). She, and constituents who testified, also suggested that the bill was presented in response to events aroundthe country and the strong need to maintain in-person voting. Id.; Relating to Elections: Hearing on H.B.1 before theS. State Affairs Comm., supra note 11 (statements of Charity Majors and Nikki Schumacher); Relating to Elections:Hearing on H.B.1 before the H. State Affairs Comm., supra note 11 (statement of Wendy Blanton); Joey Prechtl,Don’t expect Idaho to move to mail-in-only voting after May primary, KTVB (June 3, 2020, 8:06 PM),https://www.ktvb.com/article/news/politics/elections/dont-expect-idaho-to-move-to-mail-in-absentee-voting-after-may-primary-november-election/277-aa043579-f326-42c7-a759-54ecce7c1f44 (explaining that regardless of therecord turnout in the all-mail May 2020 election, there is only “a slim chance ... that the state will move toall-absentee voting in the future”) due to Idaho’s traditional tendencies).16 Relating to Elections: Hearing on H.B. 1 before the S. State Affairs Comm., supra note 11, (statement of Rep.Giddings).15 Idaho’s primary election to remain on May 19, will be conducted by mail, OFFICE OF THE GOVERNOR (Mar. 30,2020), https://gov.idaho.gov/pressrelease/idahos-primary-election-to-remain-on-may-19-will-be-conducted-by-mail/.14 IDAHO CODE § 46-1008(5)(a) (2016). Section 46-601 is a similar provision, but governs exclusively the governor’sauthority to enact martial law during states of emergency. IDAHO CODE § 46-601 (2009).13 Relating to Elections: Hearing on H.B. 1 before the S. State Affairs Comm., supra note 11, (statement of Rep.Giddings).in Idaho where the Secretary of State’s Office reported after the election “14 or 15 reports of potential fraud,” nearlyall of which “will end up not being fraudulent.” Election Official: Barely a hint of voting fraud in Idaho, KTVB(Nov. 25, 2020, 7:07 AM),https://www.ktvb.com/article/news/politics/elections/voter-fraud-idaho-ballots-election-officials/277-74003229-3963-4bf6-8769-11553ed7ccc3. This figure is from a total of 880,000 ballots cast, making questionable .00001705% ofballots. Id.22Idaho Law Review Spotlight, Vol. 1 [2021], Iss. 5, Art. 1https://digitalcommons.law.uidaho.edu/ilrspotlight/vol1/iss5/1The bill passed through both State Affairs Committees without further discussion andboth released the bill to the Legislature with a do-pass recommendation.22 It received 67affirmative votes in the House and 33 affirmative votes in the Senate.23Judicial overturn of the bill appears unlikely. Though COVID-related litigation isanything but settled, courts have been fairly deferential to legislative bodies to determine theirlocal responses to COVID-19.24 And, HB 1 conflicts neither with the governor’s ability todeclare states of emergency25 nor the Idaho Constitution’s broad allowance for the Legislature’sprescription of “qualifications, limitations, and conditions for the right of suffrage.”26 And, asSenator Souza clarified, voters may continue to request absentee ballots if they do not wish tovote in-person.2727 Relating to Elections: Hearing on H.B. 1 before the S. Comm. on State Affairs, supra note 11, (statement ofSenator Souza).26 IDAHO CONST. art. VI, § 4.25 Compare H.B. 1, with Idaho Code § 46-1008.24 E.g., Little v. Reclaim Idaho, 140 S. Ct. 2616 (2020); Robert Barnes, Supreme Court again splits oncoronavirus-related election issue, WASH. POST (July 30, 2020, 6:02 PM),https://www.washingtonpost.com/politics/courts_law/supreme-court-reform-idaho-november-election/2020/07/30/e1568da4-d2a9-11ea-9038-af089b63ac21_story.html.23 2020 Extraordinary Session Legislation: House Bill 1, IDAHO LEGISLATURE,https://legislature.idaho.gov/sessioninfo/2020spcl/legislation/h0001/ (last visited Feb. 2, 2021).22 Relating to Elections: Hearing on H.B.1 before the H. State Affairs Comm., supra note 11; Relating to Elections:Hearing on H.B. 1 before the S. State Affairs Comm., supra note 11.33Yenne: Special Session Elections Legislation (Issue Summary)Published by Digital Commons @ UIdaho Law, 2021

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Special Session Elections Legislation (Issue Summary)

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