Judge rules North Carolina must strengthen absentee ballot witness rule

RALEIGH, N.C. -- A federal judge ordered North Carolina on Wednesday to ensure that absentee ballots have a witness signature in a mixed ruling that allows voters to fix other more minor problems without casting a new ballot from scratch.

Judge William Osteen issued an injunction requiring state officials to revise a directive issued Sept. 22 that allowed voters to fix a lack of a witness signature by returning an affidavit and not casting a new ballot from scratch. However, he said he wouldn't block that kind of fix for small errors such as an incomplete witness address or a signature in the wrong place.

Osteen, who was presiding over three election-related lawsuits, struck a middle ground between voting rights advocates who voice concern about due process for voters with ballot problems and Republican leaders who want the rules for the mail-in ballots to be followed.

In one excerpt, Osteen wrote, "In all candor, this court cannot conceive of a more problematic conflict with the provisions than the procedures implemented by the (Board of Elections') revised 2020-19 memo and the Consent Order. Through this abandonment of the witness requirement, some class of voters will be permitted to submit ballots with no verification. Though SBE suggests that its 'cure' is sufficient to protect against voter fraud, the cure provided has few safeguards: it asks only if the voter 'voted' with no explanation of the manner in which that vote was exercised."

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Osteen complained Wednesday that the State Board of Elections had created rules that conflicted with a ruling he issued in August upholding the overall witness requirement but requiring that voters be given due process to fix minor ballot errors.

State House Speaker Tim Moore, R-Cleveland, released a statement Wednesday responding to the decision. Speaker Moore is the lead plaintiff in the case, Moore v. Circosta.

"North Carolinians can have confidence a bipartisan witness requirement for absentee ballots has been upheld by federal courts, in a win for the democratic process against unacceptable partisan collusion conducted by the Democratic Attorney General and Hillary Clinton's partisan lawyer," Moore said.

The procedure announced in late September for fixing incomplete witness information "clearly subverts this court's findings in its August Order by effectively eliminating the contemporaneous witness requirement."

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Ballots with incomplete witness info and other deficiencies have been in limbo since at least Oct. 3, under instructions from the state board to set them aside and take no further action pending court rulings.

"Judge Osteen concluded in no uncertain terms that the N.C. State Board of Elections violated the U.S. Constitution and North Carolina law by changing election laws after ballots had already been cast," Senate Leader Phil Berger, R-Rockingham, said. "Judge Osteen was right to stop the Board's elimination of the absentee ballot witness requirement. We disagree with his determination that he lacks the power to block some of the other tenets of the Board's illegal settlement. This all started because of the Board's 11th-hour decision to rewrite election laws after ballots had already been cast."

State law requires absentee voters to have another adult serve as a witness to their ballot and sign the envelope containing it. The state had recently developed a new procedure to allow voters to fix incomplete witness information by returning an affidavit to county officials, but without filling out a new ballot from scratch and having it witnessed again. Those updated rules, developed in response to a separate legal challenge in state court, have been on hold pending the lawsuits Osteen is hearing.

Last week in court, Osteen expressed concerns that the updated procedure would essentially eliminate the witness requirement and could open the door to ballot fraud. He suggested that someone could skip having a witness entirely but then have their vote counted anyway by sending an affidavit to county officials.

And a higher court could weigh in. The state elections board had already asked the 4th Circuit Court of Appeals to intervene at an earlier stage of the case.

"Two federal judges have now ruled that the Board of Elections violated the Equal Protection Clause by changing election laws after voting started," Berger said. "Unelected bureaucrats cannot change voting laws in the middle of the election, and we intend to press those claims to the U.S. Supreme Court if necessary."

State and national Republican leaders including President Donald Trump's campaign argued in two federal lawsuits that the changes would usurp legislators' power to set election rules that are enshrined in the U.S. Constitution. They also argued that the more lenient way of fixing witness problems would dilute the votes of those who followed the original, stricter instructions.