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Federal Judge Questions North Carolina Absentee Rule Change

Absentee ballot north carolina election
Gerry Broome

A federal judge said Wednesday that a North Carolina elections board directive making it easier for voters to fix witness deficiencies in absentee ballots may violate a previous ruling he made and has ordered state lawyers to explain the changes to him.

Federal Judge William Osteen, who presided over one of multiple lawsuits over absentee ballots, asked lawyers for the North Carolina State Board of Elections to schedule a status conference “at the earliest possible date and time” to explain to him changes to absentee ballot rules announced last week. Lawyers for the state indicated the hearing would be Friday.

The elections board's new directive allows voters who cast mail-in ballots with incomplete witness information to fix the problem by returning an affidavit, rather than starting the ballot over from scratch and having someone witness it again.

But Osteen said the new process “may be reasonably interpreted to eliminate the one-witness requirement,” thus putting the rules in conflict with a ruling he issued in August upholding the need for a witness. Although he didn't immediately strike down the new process, he said that he “does not find it consistent with this court's order.”

“This court finds a status conference is necessary in light of this court’s present 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,” Osteen wrote.

Osteen's August ruling directed election officials to provide ways for voters to fix mail-in ballots that arrive with certain deficiencies and explain what problems were keeping the ballot from being accepted. But on Wednesday, he emphasized that his prior ruling didn't eliminate the witness requirement.

Lawyers with the state attorney general's office, which is representing the elections board in the case before Osteen, “look forward to discussing and addressing this issue at Friday’s status hearing,” spokeswoman Laura Brewer said in an email. She added: “Our office appreciates Judge Osteen’s clarification of his order.”

Osteen is presiding over one of multiple lawsuits by voting rights advocates who argue that absentee ballot rules are too restrictive, especially during a pandemic that makes it unsafe to gather in large groups. State datahas shown that ballots cast by Black voters have been set aside by county boards because of incomplete witness information at a higher rate than other voters.

The new absentee ballot rules that the federal judge questioned Wednesday stem from a separate case being heard in a state court. The state board of elections had issued the new rules last week as part of a settlement in the state lawsuit. The settlement, which cites Osteen's ruling as part of the reasoning for changing the absentee ballot rules, is subject to approval by a state judge. But the board has already implemented the rule changes, citing emergency powers during the pandemic.

Meanwhile, state legislative leaders have challenged the rule changes in yet another federal lawsuit being heard by a different judge, arguing that the rule change usurps the General Assembly's power. President Donald Trump's campaign has also challenged the new rules.

Republican House Speaker Tim Moore, one of the legislative leaders challenging the rule change, issued a statement saying that Osteen's order Wednesday confirms that the revised process on how to fix witness information problems is a “purely partisan sham.”

A U.S. District Court Judge, Osteen is a native of Greensboro and a graduate of UNC-Chapel Hill. He was appointed to the U.S. District Court in 2007 by President George W. Bush.

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