Federal judge strikes down change to NC absentee ballot witness requirement
Posted September 30, 2020 4:57 p.m. EDT
Updated September 30, 2020 7:19 p.m. EDT
Greensboro, N.C. — A federal judge on Wednesday warned the State Board of Elections that recent changes to requirements for absentee mail-in voting in North Carolina do not have his approval.
Those changes, outlined in a Sept. 22 memo from the state board to county elections directors and confirmed again Monday in an email from the state board's attorney to county boards, were represented as being responsive to changes required by U.S. District Judge William Osteen's ruling in a lawsuit brought by Democracy North Carolina.
Osteen pushed back on that representation Wednesday, however, taking sharp exception to the board's changes on witness requirements for absentee ballots.
A witness must certify that a specific voter completed an absentee ballot. When the witness information is missing from the ballot envelope, local election officials usually try to contact the voter so he or she can cast a new ballot that meets the requirement. If the problem can't be rectified, the ballot isn't counted.
But the state board told county officials voters could simply sign an affidavit attesting that they had mailed the ballot, forgoing the witness requirement altogether.
"Nothing about this court’s preliminary injunction order can or should be construed as finding that the failure of a witness to sign the application and certificate as a witness is a deficiency which may be cured with a certification after the ballot has been returned," Osteen wrote in his order Wednesday.
The judge said he wants to meet with state elections officials about his "concern that alleged compliance with this court’s order is resulting in elimination of a duly-enacted statute requiring a witness to an absentee ballot."
"Our office appreciates Judge Osteen’s clarification of his order," Laura Brewer, a spokeswoman for the state Attorney General's Office, which represents the elections board in the lawsuit, said in an email. "We remain committed to ensuring that North Carolina voters are able to stay safe and healthy and that every vote counts."
Democracy NC filed the lawsuit to obtain more protections for voters during the coronavirus pandemic, and Osteen last month ordered the state not to reject any absentee ballots until officials came up with a statewide process that, in the case of errors that can be fixed "such as a signature mismatch or deficient witness contact information," gives voters notice of the problem and a way to remedy it before the ballot's rejection.
Osteen also told the state it couldn't enforce a existing law banning nursing home staff from assisting voters with filling out ballots or mailing them.
However, the judge rejected a motion by the plaintiffs to suspend the one-witness requirement for absentee ballots, saying they didn't prove that would be an undue burden for voters, even those at greater risk for COVID-19 or those in locked-down group living facilities.
Last week, Republican legislative leaders asked another federal judge to block and ultimately strike down changes to absentee voting laws made by the Democratic-controlled state board – changes that were necessitated, according to the board, by Osteen's ruling. Briefs are due in that case on Friday.
Two memos, two different sets of rules
On Aug. 21, the State Board of Elections issued a memo to all county elections directors, outlining a new statewide procedure for allowing voters whose absentee mail-in ballots are missing information to resolve the problem.
According to that memo, voters could fix their ballot by signing an affidavit if he or she "did not sign the Voter Certification" on the envelope or "signed in the wrong place."
However, a ballot would be considered spoiled, and staff should send out a new ballot to the voter if a "Witness or assistant did not print name," "Witness or assistant did not print address," "Witness or assistant did not sign," "Witness or assistant signed on the wrong line," or "Upon arrival at the county board office, the envelope is unsealed or appears to have been opened and re-sealed."
On Sept. 22, the memo was revised by the state board and reissued to county boards of elections. In the revised procedure, voters can fix their ballot by signing a sworn affidavit if any of the witness or assistant information was missing or in the wrong place. Those ballots would not longer be considered spoiled.
It's unclear why the rules on witness or assistant signatures were relaxed in the Sept. 22 version. The court record in the Osteen case doesn't show that anyone challenged the earlier procedure.
State board spokesman Pat Gannon declined to explain that to WRAL News on Wednesday, citing "pending litigation."
'A brazen power grab'
Republican legislative leaders say the changed procedure is illegal, alleging that the state elections board usurped legislative authority to change election laws.
Sen Paul Newton, R-Cabarrus, co-chairman of the Senate Elections committee, said lawmakers in June agreed to bipartisan-backed changes to make voting safer and easier during the pandemic, including reducing the witness requirement from two people to one.
But Newton he said lawmakers declined to suspend the witness requirement altogether because of concerns about fraud in the wake of the ballot harvesting scandal in the 9th Congressional District in 2018 that forced a do-over election last year.
"We have made it as easy as reasonably possible to cast a vote in this election, and to unwind that and create opportunities for fraud is just flat wrong," he said.
Newton and other Republicans say the changes made in the Sept. 22 memo were actually due to a settlement the board agreed to on Sept. 15 to resolve a separate lawsuit with a different voting rights group, the Alliance for Older Adults. That proposed settlement is due to be reviewed by Wake County Superior Judge Bryan Collins on Friday.
The settlement was unanimously approved by the bipartisan board at the time, but the two Republicans on the board resigned under pressure after the details of the deal were made public on Sept 22 – the same day the memo was revised.
"Even though they needed to get a judge to approve the so-called settlement, they went ahead and implemented the elimination of the witness requirement contrary to state law in every county in our state," Newton said. "We think that is flat-out wrong, and we think voters deserve better."
Republicans have accused the Democratic-led board of "collusion" with national Democratic groups in that case, accusing them of using a "sue-and-settle" scam to implement changes to the state's voting laws that the legislature and other courts had already rejected.