Tim, Natalie and Leslie discuss the role nonprofits are playing the day after the 2020 election, including examples of messaging now, a look ahead to what may come, plus a look back at the remarkable work nonprofits did to get out the 2020 vote.

Our attorneys for this episode

Leslie Barnes

Tim Mooney

Quyen Tu

Shownotes

• Reminder: 501(c)(3)s cannot support or oppose candidates
• Nonpartisan motivations to advocate in contested elections
  • Proper administration of the election under the law
  • Ensuring all legal votes are counted
  • Protecting the will of the electorate/upholding democratic principles
  • No IRS guidance on this, but it’s consistent with approved pre-election and election days advocacy
  • Example: Brennan Center’s work in 2000
  • Amicus brief in Bush v. Gore
  • Partisan and nonpartisan interests can legally coexist
  • While the Brennan Center argued for the same thing as the Gore campaign, its work was still nonpartisan because the arguments were centered on voters’ fundamental constitutional rights and not the partisan interests of the campaign. 
• Other examples
  • Common Cause’s work in the Georgia gubernatorial election in 2018
  • Minnesota nonprofits’ work in the US Senate race in 2008
• What kinds of advocacy are available to nonprofits in a contested election?
  • Administrative advocacy, including advocacy around secretary of state certifications of the winners, and the process of counting of ballots. 
  • Ballot chasing and curing. If a voter submits a ballot that fails to meet requirements under state law (i.e. stray marks, wrong envelopes, their signature doesn’t match the one on file, etc.), nonprofits can contact those voters and help them fix the problem within the time limits set by state law.
  • Litigation, including requests for emergency injunctive relief on and after Election Day, and submitting friend-of-the-court briefs before state and federal appellate courts.
  • Protests and other public gatherings, demanding proper administration of all ballot counts and fidelity to election procedures under the law. 
  • Direct advocacy to members of legislative bodies or governors when they are making decisions that are critical to the disposition of an election. This includes lobbying for emergency legislation, calls for oversight, or weighing in on a state legislature’s efforts to directly submit a slate of presidential electors in the event of perceived voting irregularities or a natural disaster.

• 501(c)(3)s can do any of these things for nonpartisan motivations
• 501(c)(4)s and other nonprofits can do these things with nonpartisan motivations, or with partisan reasons (tax law limits how much). Election laws dictate the rest.
• 501(c)(3)s can work in coalitions with other nonprofits that are doing nonpartisan motivated work
• Presidential election dates to know
  • December 8 – Safe Harbor
  • December 14 – Electoral College votes
  • January 6 – Joint session of the new Congress meets to certify the Electoral College vote
  • January 20 – POTUS term ends at noon ET, and the winner as certified by Congress, or as chosen by Congress in a contingent election, or person designated by the Presidential Succession Act to be acting President takes the oath of office as POTUS.

Resources

• What Nonprofits Can Do in a Contested Election  
• The Connection 
• Accountability Advocacy for 501(c)(3)s 
• 501(c)(3) Contact with Parties and Candidates Concerning Election Protection Efforts 
• Bolder Advocacy’s TA hotline: 866-NP-LOBBY
• Email us at advocacy@afj.org
• Our website is bolderadvocacy.org

On this episode, we look at how nonprofits can continue to advocate for a fair and safe election during election days. We intentionally say “days” because many states are offering vote-by-mail (“VBM”, also known as “absentee voting”) or offer early in-person voting well before Nov 3rd, 2020. States took these measures to mitigate some of the challenges presented by the COVID pandemic that we talked about in Part 1 of this series.  

Our attorneys for this episode 

 Leslie Barnes 

Tim Mooney 

Quyen Tu 

Shownotes 

Because voting doesn’t just happen one day this year, here are things that 501(c)(3)s, as trusted messengers, can do during the voting days to support a free and fair election. 

• Encourage people who are not at high-risk to COVID-19 to step up and work as poll worker and early voting officials More Than a Vote – https://www.facebook.com/watch/?v=322130045738998 

• Educate your community and constituents about their different voting options. It is important to note that these rules will vary by states and sometimes even by counties! 

• • Preparing for in-person voting 
  • Vote-by-mail rules and deadlines 
  • Provisional ballots and what that means 

• Facilitate voting by offering rides to polls, childcare services, translation services, pay off fines. 

• Promote election protection: be a poll monitor or staff voter protection hotline. 

• Have a game plan to address voter intimidation. 

• Help people understand that we likely won’t have definitive elections results the night of Nov. 3rd, especially in close races. 

• Litigation 

• Mobilize public support for safe and fair election (including protests) when anything happens that will prevent voting or the administration of voting. 

 A special note for private foundations: 

It’s not too late, you can fund all nonpartisan efforts except for voter registration drives. This is the rainy day that you’ve been saving for! 

 A special note for 501(c)(4)s: 

501(c)(4)s can do everything we’ve covered in this episode and you could do one of these activities in a partisan manner as long as it is your secondary activity. 

Resources 

•  Appendix B of Rules of the Game: Permissible Nonpartisan 501(c)(3) and Partisan Campaign Contact on Voter Engagement and Protection Efforts 
• Election Protection by c3s 
• Texas Civil Rights Project stopped voter “purges” that would have affected many naturalized citizens. https://www.bolderadvocacy.org/story/legal-advocacy-in-action-texas-civil-rights-project/ 
• Bolder Advocacy’s TA hotline: 866-NP-LOBBY 
• Email us at advocacy@afj.org 
• Our website is bolderadvocacy.org 

 Non-Bolder Advocacy Resources: 

• Voter Registration Deadlines by State (Vote.org) 

• State Compendium of Election Worker Laws and Statutes (U.S. Election Assistance Commission) 
• Do you want to be a poll worker? Learn more here: https://www.powerthepolls.org/ 
• Check out how a 501(c)(4) is feeding people waiting in line to vote! https://polls.pizza/ 
• Election Protection: https://866ourvote.org/ 
• Paying off fines: https://wegotthevote.org/finesandfees/ and article on Mike Bloomberg paying off fines for former felons in Florida so they can vote 
• Art pieces around voting: https://www.planyourvote.org/artist-works 

On this episode, we discuss the unprecedented election-year challenges we face and the ways all nonprofits can help ensure a safe election. As trusted messengers, nonprofits can explain voting options and deadlines; encourage absentee voting and a new generation of poll workers; conduct election protection programs; support and join litigation and even facilitate voting and promote increased voter turnout. 

This is the first of a three-part series. Part 2 on Election Day(s) Advocacy. Part 3 on Post-Election Advocacy. 

Our attorneys for this episode    

Leslie Barnes  

Tim Mooney  

Quyen Tu  

Shownotes 

• Election-year challenges 

• Dangers for in-person voting 
• Massive poll worker shortage 
• Monumental increase in voting by mail 

• Predictions for contested elections/delayed results 
• Defunding the United States Postal Service 
• Interference in the election by foreign and domestic actors 

• Reminder – 501(c)(3) organizations must remain nonpartisan  
• When We All Vote Video – Voter Registration Drives 

• https://youtu.be/XNt-9v3HY30s 
• Created by a c3, When We all Vote 
• Shared by a c3, NAACP Legal Defense and Education Fund 
• Nonpartisan – no support or opposition for any candidate for elected office 

• Explains how schools can create and promote a voter registration drive  
• Explains how volunteers can share news of newly registered voters on social media 
• Safe for community foundations and c4s too! 
• Special rules exist for private foundations  
• Can’t buy votes. Don’t exchange anything of value for someone completing a voter registration form or voting. 

• Can spend money to facilitate voting – Examples  
• Must also follow state law regarding voter registration and drives 
• IRS permits targeting voter outreach for nonpartisan reasons  

• Fair Fight Action Video – Vote By Mail/Voter Education 

• https://www.youtube.com/watch?v=HFl6AYki1B8 

• Encourages Georgians to vote by mail to shorten lines for those who must vote in person and reduce risk for all 
•  
• Fair Fight Action is a 501(c)(4) and could engage in partisan activity as secondary activity 
• This video is a nonpartisan example of voter outreach/education – primary activity 
• Safe for c3s to share as well! 

• Houston Justice Coalition Post 

• Safe for c3s and c4s to share government messages 
• Nonprofits can volunteer their space for voting/polling centers 

• Best practices for 501(c)(3)s 

• Nothing can support or oppose candidates 
• Avoid mixing issue advocacy with voter registration/GOTV/voter education 
• No candidate pledges 
• Any interaction with candidates? Offer the same info to others running 

• Best practices for 501(c)(4)s 

• Can support or oppose candidates – track efforts – secondary activity 
• Be aware of state laws 
• Don’t coordinate efforts with federal (and usually) state candidates 
• Report independent efforts under campaign finance laws 

Resources 

Bolder Advocacy Election Activities Page 

Want to Conduct or Fund a Voter Registration Drive 

Election Protection Efforts Factsheet  

Election Year Activities for 501(c)(4)s 

How 501(c)(4)s Can Hold Elected Officials Accountable  

Partisan Electoral Activity: What is it and What Can You Do? 

Non Bolder Advocacy resources 

Guide on how to do a school or community voter registration drive: https://www.headcount.org/wp-content/uploads/2018/03/Booklet_Final-1.pdf 

For college student looking for information on voting? Check: https://andrewgoodman.org/myvoteeverywhere/ 

With national attention on the Presidential and Vice-Presidential debates, it’s a good time to cover the rules for how nonprofits can convene and comment on debates. 

 Our attorneys for this episode 

Tim Mooney 

Jen Powis 

Quyen Tu 

Shownotes 

 Public charity 501(c)(3)s can educate candidates and voters. 

• Many debates are run by 501(c)(3)s. 
• Example: Commission on Presidential Debates is a 501(c)(3) public charity 
• Remember 501(c)(3)s cannot support or oppose candidates. 

• See the Facts and Circumstances analysis from our first episode. 

• Nonprofits can host debates as an opportunity to educate voters 
• Candidate education 
• Host a debate with a coalition 

• Example from The Coalition for Environment, Equity & Resilience (CEER), a program of Healthy Gulf (c3) & BakerRipley (c3) in Houston 

• Invite all viable candidates (what is viable) 
• Prepare questions prior, and ensure an adequate moderator 
• No candidate pledges 

• Nonprofits can respond to things said in debates 
• Fact checking is ok, but not support/opposition to candidates 
• Be consistent in your language. 
• Example: Sierra Club, c4? 

• Consistency and a track record are key. 
• Best practices: 
• Think through why responding now helps its advocacy program, 
• Determine who is permitted to “speak on behalf of the organization,” 
• Focus on what is said (the issue) and not the candidates themselves, and 

• Ensure that the facts provided meet the above objectives. 
• Example: Southern Poverty Law Center (c3) responding to President Trump’s comment about the “Proud Boys” 

Resources 

Hosting Candidate Debates: Public Charities Can Educate the Community Through Candidate Debates 

Commenting on Candidates and Campaigns: How 501(c)(3)s Can Respond During an Election Year 

Responding During Election Season and Debates 

Sample 501(c)(3) Organizational Policy for Election Season