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In July 2020 the Rhode Island General Assembly passed an act, which was signed into law by Gov. Raimondo converting emergency mail ballots into in-person cast ballots. This extended numerous days of voting versus the specific date of election violating R.I Constitution Article IV – of Elections and Campaign Finance, Section 1 and is therefore subject to R.I. Constitution Article VI – of the Legislative Power, Section 1, indicating “any law inconsistent therewith shall be void.”
In July 2020 the Rhode Island General Assembly met via Zoom for legislative purposes and passed H8102 which amended R.I. General Laws Title 17 Elections, Chapter 20 Mail Ballots, Section 2.2 Requirements for Validity of Emergency Mail Ballots (RI 17-20-2.2). This was signed into law by the Governor. (Reserve the legal question if such cyberspace activities are authentic, constitutional adhering lawmaking for now.)
H8102 made 3 changes to RI 17-20-2.2, described below.
The first H8102 change modified RI 17-20-2.2(a) allowing emergency mail ballot application at local boards of canvassers on “electronic poll pads.” These electronic devices are based on an Apple iPad with communications capabilities, specific software applications and a plastic mounting stand. These devices allow immediate communications with a centralized voter database system and provide for digital signature capture on a writing surface. These low resolution, awkward signatures lack significant maker’s marks.
The second H8102 change appended RI 17-20-2.2(d), appended text in blue and italicized to distinguish difference if printed on a B&W only printer:
(d) In addition to those requirements set forth elsewhere in this chapter, an emergency mail ballot except those emergency mail ballots being cast pursuant to § 17-20-2.2(g), in order to be valid, must have been cast in conformance with the following procedures:
This change provided a “fork” – a branching, alternate path that skips subsequent procedures in (e) and (f).
The third H8102 change appended a new item: RI 17-20-2.2(g), listed entirely here:
(g) An emergency mail ballot application may be completed in person using an electronic poll pad provided by the board of canvassers upon presentation by the voter of valid proof of identity pursuant to § 17-19-24.2. Upon completion of the poll pad application, the voter shall be provided with a ballot issued by the secretary of state and upon completion of the ballot by the voter, the voter shall place the ballot into the state-approved electronic voting device, provided by the board of elections and secured in accordance with a policy adopted by the board of elections.
The Emergency Mail Ballot eligibility in RI 17-20-2.2(a) provides for an additional twenty (20) days of voting when extenuating “emergency” circumstances remove the option of voting in-person on the date of election. This was originally enacted because the traditional mail ballot process would exclude the voter on the basis of time for the local board of canvassers to process the ballot application, convey the ballot to and from the voter via mail and validate the certifications and attestations made once the ballot was received at the local board of canvassers. This is “emergency” absentee voting, with an “over-the-counter” hand-off of the completed ballot. “Emergency” in the legislation had nothing to do with executive order pandemic declarations for a state-imposed lockdown/shut-in.
The established constitutional means for accommodating absentee voting in the past was provided through a clever subdivision of “casting” a vote via mail-ballot. Effectively prior to the election a mail ballot was “cast” but was suspended mid-flight in a holding box at the local board of canvassers. Then on Election Day the “cast” was completed by proxy at the precinct by a bipartisan team which merged mail ballots into the random stream of in-person voters. This process effectively made all electors/voters equal on the day of election. See illustration of this process in Figure 1 below.
RI 17-20-2.2(g), as enacted, skipped witnesses, certification envelopes, delivery envelopes, holding boxes and the completion of ballot casting by proxy. No mailing was ever done. The submission of a ballot through the DS 200 scanning device itself into the box completed the cast. RI 42-127.1-15(a)(3) indicates that upon digital scanning the ballot document is then completely in the possession of the state. The paper ballot is no longer retrievable, nor can the voter alter the submission.
Impacts of H8102
For all practical purposes, RI 17-20-2.2(g) by it’s own wording simply placed the entire normal in-person voting method into the time frame of the emergency mail ballot law. This provided for 20 additional days of in-person voting prior to the constitutionally specified date of election. In other words in-person “early-voting”.
In fact, this understanding is so clear, that R.I. Board of Elections produced a public document indicating this as such, and voters themselves followed this guidance.
The following paragraph was retrieved as a public document from RI Board of Elections https://elections.ri.gov/voting/emergency.php Printed to a PDF: Emergency Mail Ballot- Board of Elections 11/19/20, 11:12 PM
In person Emergency Ballots will now be voted and inserted into the voting machine at the Board of Canvassers. The process now requires emergency voters to check in on the electronic poll book using an acceptable form of photo ID. The voter then completes their ballot and casts it in the DS 200. These ballots will be tabulated on election night at 8:00 p.m. when polls close.
The clarity of what happened through H8102 was expressed by the RI Board of Elections themselves which characterized Mail Ballots (Chapter 20) as “In person Emergency Ballots.” This legislation said it wasn’t even necessary to use any form of “mail” but simply redefined the meaning of a mail ballot. As noted above, ballots were “cast” into the DS 200 electronic scanner indicating a completion of the cast. “In-person” is characterized by voting without a proxy voter in the form of a bipartisan team.
With media coverage and state prompting, the electors(voters) lined up for early voting in town and city halls as if it were election day long before the constitutionally specified date. Approximately 30% of the total electorate chose to use this “emergency” voting on the 2020 General Election, given their understanding of the COVID “emergency.” (30% was arrived at by Secretary of State’s election results ballot breakout for Presidential Electors for the entire state.) The questionable health risks introduced as an unintended side effect of the legislation require additional research, but are not germane to the issue presented.
Why R.I. 17-20-2.2(g) is Unconstitutional
The constitutionality of absentee voting and voting by mail has a considerable amount of established case (decided) law. This issue is not against absentee or shut-in voting, or their rights to participate in the election. The issue of state-enforced shut-in/lockdown due to COVID is a wholly different issue! The matter is one of the legislature simply extending time beyond a single date to hold the election; that is, early voting.
Rhode Island’s mail ballot holding process came about from a 1956 legal case when Democratic Governor Dennis J. Roberts ran against Republican Christopher Del Sesto. Del Sesto won the election with mail ballots, but Roberts challenged this result in RI Supreme Court and won. Roberts even had a hand in signing the faulty mail ballot legislation into law! (Hmmm…)
The constitutionality issue of early voting was addressed in RI 129 A.2d 330 (1957) Dennis J. ROBERTS v. BOARD OF ELECTIONS et al. M. P. No. 1198. Supreme Court of Rhode Island. (Found here: https://law.justia.com/cases/rhode-island/supreme-court/1957/129-a-2d-330-0.html).
In their opinion, the Rhode Island judges referred several times to the following quote:
“…the people saw fit, in their determined intention that all elections should be regulated by constitutional provisions, unalterable by the General Assembly, to prescribe in the clearest manner when, where, and how the elective franchise should be exercised, and these provisions must control the General Assembly in all exigencies, until changed by the supreme will of the people, expressed in a new or amended constitution.”– Opinion of the judges of the Supreme Court of Connecticut, 1862, 30 Conn. 591, 600
The word “exigencies” means a pressing or urgent situations. Like a declared “disaster emergency” for an epidemic. The Rhode Island judges on ROBERTS v. BOARD OF ELECTIONS concluded:
“Our conclusions may be summed up in a few sentences. The people of this state have the sole power to say when and where the votes for officers on the state ballot may be cast. … If we were to give effect to that part of the statute which permitted them to vote before election day and allow such ballots to be counted, notwithstanding that we hold such portion of the statute unconstitutional, we would be usurping the power which the people have reserved to themselves.” [Ed. – emphasis added]Rhode Island Supreme Court Judges on RI 129 A.2d 330 (1957) Dennis J. ROBERTS v. BOARD OF ELECTIONS et al. M. P. No. 1198. Supreme Court of Rhode Island.
“And further on the same page of 320 Mass., 69 N.E.2d at page 136, that court stated: “The people by the Constitution created the legislative branch of government as well as the executive and judicial branches, and conferred and at the same time limited the powers of each of them. Each must act pursuant to the Constitution and within the authority conferred by it. Once the idea of enactments at different levels of authority is grasped, it becomes clear that a provision contained in a statute cannot have any force as law if it conflicts with any provision contained in the higher law of the Constitution.” Later in applying this principle they said at page 245: “When one party relies on some provision of a statute, and the other relies on some provision of the higher law of the Constitution, with which, it is alleged, the statute conflicts, the court, in order to determine what the law really is, must first decide whether there is conflict. If there is, its duty is to apply the higher law of the Constitution, and disregard the statute.””Rhode Island Supreme Court Judges on RI 129 A.2d 330 (1957) Dennis J. ROBERTS v. BOARD OF ELECTIONS et al. M. P. No. 1198. Supreme Court of Rhode Island.
This appears to be the case.
People who voted early relied on the veracity of RI 17-20-2.2(g) unaware of the RI Constitution specified election date upheld in the Roberts vs Board of Elections case. However, given the numerous lawyers in the General Assembly, how is it possible that H8102 passed committee constitutionality checks?
How are “authentic” acts of the People determined if there isn’t full accountability and authenticity in the election process itself, even among the legislature and elected officials?
Setting aside the mischaracterization and abuse of existing election law, this unconstitutional legislative act disenfranchised legal voters who, through tradition, knowledge of law, etc. chose to vote on the constitutionally established day of election of their sacred right to observe the authentic will of the people.
Early voting created two classes of voters: those who voted constitutionally, in person, within a limited time window with a specific closing of polls on the date of election and those who used the multi-date “emergency” in-person voting method, with extensive options of when to finally “cast” their vote. Effectively, the only hard deadline established was the actual closing of the polls on the constitutionally specified date.
Early voting introduces numerous authentication and security issues. To a great extent it eliminates the transparency and authentication achieved by the one day town-meeting in-person voting approach by increasing the burden for bipartisan teams to observe polls, and greatly decreasing the total number of local witnesses in each precinct.
This abuse caused grievous harm to the election process, election integrity and the People’s right to self-government. The only fail-safe position is reliance upon the RI Constitution being upheld for everyone.