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Chief Election Officers and Conflicts of Interest for Election Reformers Network

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Chief Election Officers and Conflicts of Interest for Election Reformers Network Chief Election Officers and Conflicts of Interest for Election Reformers Network January 14, 2020 Table of Contents SECRETARY OF STATE REPORTS: ALABAMA ............................................................................................. 4 SECRETARY OF STATE REPORTS: ALASKA ................................................................................................. 9 SECRETARY OF STATE REPORTS: ARIZONA ............................................................................................. 14 SECRETARY OF STATE REPORTS: ARKANSAS .......................................................................................... 18 SECRETARY OF STATE REPORTS: CALIFORNIA ........................................................................................ 23 SECRETARY OF STATE REPORTS: COLORADO ........................................................................................ 31 SECRETARY OF STATE REPORTS: CONNECTICUT ................................................................................... 37 SECRETARY OF STATE REPORTS: GEORGIA ............................................................................................. 42 SECRETARY OF STATE REPORTS: IDAHO .................................................................................................. 48 SECRETARY OF STATE REPORTS: INDIANA .............................................................................................. 52 SECRETARY OF STATE REPORTS: IOWA .................................................................................................... 57 SECRETARY OF STATE REPORTS: KANSAS ............................................................................................... 62 SECRETARY OF STATE REPORTS: KENTUCKY .......................................................................................... 67 SECRETARY OF STATE REPORTS: LOUISIANA .......................................................................................... 71 SECRETARY OF STATE REPORTS: MASSACHUSETTS .............................................................................. 76 SECRETARY OF STATE REPORTS: MICHIGAN ........................................................................................... 79 SECRETARY OF STATE REPORTS: MINNESOTA ....................................................................................... 83 SECRETARY OF STATE REPORTS: MISSISSIPPI ......................................................................................... 87 SECRETARY OF STATE REPORTS: MISSOURI ............................................................................................ 92 SECRETARY OF STATE REPORTS: MONTANA .......................................................................................... 95 SECRETARY OF STATE REPORTS: NEBRASKA ........................................................................................ 103 SECRETARY OF STATE REPORTS: NEVADA ............................................................................................ 109 SECRETARY OF STATE REPORTS: NEW MEXICO ................................................................................... 112 SECRETARY OF STATE REPORTS: NORTH DAKOTA .............................................................................. 117 SECRETARY OF STATE REPORTS: OHIO .................................................................................................. 121 SECRETARY OF STATE REPORTS: OREGON ........................................................................................... 126 SECRETARY OF STATE REPORTS: RHODE ISLAND ................................................................................ 131 SECRETARY OF STATE REPORTS: SOUTH DAKOTA .............................................................................. 135 SECRETARY OF STATE REPORTS: UTAH .................................................................................................. 140 SECRETARY OF STATE REPORTS: VERMONT ......................................................................................... 144 SECRETARY OF STATE REPORTS: WASHINGTON .................................................................................. 148 Election Reformers Network www.ropesgray.com www.ropesgray.com Table of Contents SECRETARY OF STATE REPORTS: WEST VIRGINIA ................................................................................ 152 SECRETARY OF STATE REPORTS: WYOMING ......................................................................................... 155 Election Reformers Network www.ropesgray.com www.ropesgray.com Reports Secretary of State Reports: Alabama Election Reformers Network I. Election Officer – Background and Responsibilities • Elected Secretary of State • ALA. CODE § 17-1-18 authorizes the secretary of state to provide guidance for all election activities. Section 17-25-4 grants the secretary of state the authority to adopt uniform and non-discriminatory standards that define what constitutes a vote and what will be counted as a vote for each category of voting. II. Source of Conflict of Interest Laws • Statutory o ALA. CODE § 17-1-3 § No public official or public employee shall use or cause to be used his or her official position or office to obtain personal gain for himself … unless the use and gain are otherwise specifically authorized by law. Personal gain is achieved when the public official, public employee, or a family member thereof receives, obtains, exerts control over, or otherwise converts to personal use the object constituting such personal gain. o ALA. CODE § 36-25-1 § A conflict on the part of a public official or public employee between his or her private interests and the official responsibilities inherent in an office of public trust. A conflict of interest involves any action, inaction, or decision by a public official or public employee in the discharge of his or her official duties which would materially affect his or her financial interest … in a manner different from the manner it affects the other members of the class to which he or she belongs. o ALA. CODE § 36-25-9(c) Election Reformers Network 4 www.ropesgray.com www.ropesgray.com Reports § Members of any agency, board or commission cannot vote or participate in any matter in which they or a family member have a financial gain or interest. o ALA. CODE § 13A-10-62 § Public servants must disclose any known potential conflicting interests. Failing to disclose a conflict of interest is a Class A misdemeanor. • Regulatory – Alabama Ethics Commission o Generally deals with issues involving conflicts of interest, or the use of office for personal gain, on the part of public officials and public employees in Alabama. § This is done through the Opinions process and the enforcement process. o Upon investigation a complaint may be: § Closed because the Ethics Commission does not have jurisdiction regarding the alleged wrongdoing or the Statute of Limitations has expired § Dismissed due to lack of evidence to support the complaint § Presented to Commission for Determination of Probable Cause • Then refer the matter to the Office of the Attorney General, the District Attorney in the location where the violation occurred, or impose an Administrative fine o Relevant decisions: § Alabama Ethics Commission Advisory Opinion 2010-03 (link) • Commission ruled that it would be a conflict of interest for an incumbent mayor in an election contest to vote as a member of the city council on matters involving a contemplated challenge to a Election Reformers Network 5 www.ropesgray.com www.ropesgray.com Reports court order that would change the city’s election procedure. • Commission found that winning the election could qualify as a “personal gain” and ruled that the mayor should not vote. § Alabama Ethics Commission Advisory Opinion 2017-05 (link) • An individual holding one office, who is termed-out from seeking re-election to that office, or who seeks election to another office, may not loan money to their existing principal campaign committee, but must establish a new and separate principal campaign committee for the new office sought. • Case Law – No case law appears to bear directly on the state conflict of interest laws in their application to the Secretary of State. III. Conflict of Interest Applicability to Elections Officer • Yes. See ALA. CODE § 36-25-1 (definition of a covered public official). o Any person elected to public office, whether or not that person has taken office, by the vote of the people at state, county, or municipal level of government or their instrumentalities, including governmental corporations, and any person appointed to a position at the state, county or municipal level of government or their instrumentalities, including governmental corporations. IV. Duty to Abstain, Regardless of Disclosure? • No rule that speaks directly to this issue. V. Specific Election Officer Conflict of Interest Rules/Cases? • Ex parte Merrill, 264 So. 3d 855 (Ala. 2018) o Plaintiffs filed a civil action against Merrill, in his capacity as Secretary of State, and Packard, in his capacity as director of elections, seeking injunctive and declaratory relief for allegations that certain electronic voting machines used in Alabama elections created digital images of the paper ballots scanned and counted by the machines. Election Reformers Network 6 www.ropesgray.com www.ropesgray.com Reports o Plaintiffs allege that defendants will not instruct election officials to preserve the digital ballot images that, under state and federal law, must be preserved. Plaintiffs contend
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