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Judge: North Carolina Must Strengthen Absentee Witness Rule

Boxes of absentee ballot requests sit at the Durham County Board of Elections office in Durham, N.C. on Tuesday, Aug. 18, 2020. The county has seen an increase in the number of absentee ballot requests for the 2020 election during the coronavirus pandemic
Ben McKeown

Updated at 7 p.m.

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 elections-related lawsuits, struck a middle ground between voting rights advocates concerned about due process for voters with ballot problems and Republican leaders who wanted even stricter rules for the mail-in ballots.

Still, 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.

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.”

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.

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.

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.

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.

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