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Status quo: Federal judge blocks state judge's order to change rules on NC absentee ballots

Posted October 3, 2020 12:09 p.m. EDT
Updated October 5, 2020 10:10 a.m. EDT

 Election sign.

— A federal judge blocked changes to North Carolina's absentee ballot rules Saturday, issuing a temporary restraining order that overrides a state court judge's order less than 24 hours after it was issued.

The bottom line is that the status quo stays in place: Absentee ballots missing witness signatures will simply be stored while Republicans and Democrats wrestle in court over the procedure to fix the problem.

Voters whose ballots have that problem – there are several thousand of them out of more than 300,000 mail-in ballots that have been returned – will still get to vote. The question is simply about process and whether their ballot will need a witness signature, as required by state law.

Update: On Sunday the State Board of Elections issued a memo saying local election officials who receive ballots with any deficiency should just hold on to them while the court sorts this all out. The state had previously said to do this for ballots missing witness signatures, but this directive is much broader. The State Board also issued a second memo about what to do when ballot envelopes are missing address information.

Democrats, through a series of lawsuits, pressed to make it easier for those voters to fix absentee ballot problems. They want to let the voters themselves sign an affidavit instead of using the old process, which required them to vote a new ballot, with the required witness signature on the envelope.

Wake County Superior Court Judge Bryan Collins said Friday afternoon, after a lengthy online hearing in one of the lawsuits, that the State Board of Elections could go the affidavit route. He also signed off on giving the Postal Service six extra days to deliver ballots, provided they are postmarked by Election Day, to election offices, extending that deadline until Nov. 12.

But state Republican leaders, along with President Donald Trump's re-election campaign, filed two lawsuits in federal court last weekend, seeking to stop that. U.S. District Judge James Dever held a hearing in those cases Friday evening, and on Saturday issued an order blocking Collins' order.

Dever said the State Board of Elections can't change the rules like this, since absentee ballots started going out Sept. 4 and several hundred thousand people have already voted. Republican plaintiffs making that argument are likely to succeed, Dever wrote.

"At bottom, the (State Board of Elections) has ignored the statutory scheme and arbitrarily created multiple, disparate regimes under which North Carolina voters cast absentee ballots," Dever wrote. "The (board) inequitably and materially upset the electoral status quo in the middle of an election."

Dever also folded the two cases before him into a longer-running case on many of the same issues that remains pending before U.S. District Judge William Osteen. Osteen plans a hearing in that case Wednesday in Greensboro.

The case is state court will likely be appealed as well, leaving two avenues for the dispute.

Senate President Pro Tem Phil Berger said in a statement Saturday that Dever "restored sanity into this election by temporarily blocking the eleventh-hour rule changes to undo absentee ballot fraud protections."

The General Assembly, in bipartisan legislation meant to tweak state election rules to cope with the pandemic, specifically kept the witnessing requirement in place, though they dialed it back from two required witness signatures to one. Advocacy groups who sued argue that, given coronavirus transmission concerns, voters shouldn't be required to have a witness sign their ballot.

The State Board of Elections, represented by North Carolina Attorney General Josh Stein's office, maintains that the witness requirement remains intact even with their proposed affidavit cure. Local elections officials who received the affidavit simply become the witness, an attorney argued Friday, in Dever's hearing.

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