NC absentee ballots must have witness signatures, judge rules

A federal judge ordered more changes Wednesday to absentee voting rules after hundreds of thousands of mail-in ballots have been cast and as early, in-person voting gets underway Thursday.

U.S. District Court Judge William Osteen ruled that the State Board of Elections cannot accept mail-in ballots without a witness signature on the envelope. Osteen said the board can allow voters to fix minor problems, such as addresses or signatures written on the wrong lines.

But Osteen said he did not have the authority to rule on two other contentious changes the board has made in how mail-in ballots are handled. As part of a settlement of a state court case, the board proposed to continue collecting mail-in ballots through Nov. 12 if they are postmarked by Nov. 3, Election Day, and to allow ballots to be counted if they are left in drop boxes at early-voting sites and elections offices.

Attorneys for Senate Leader Phil Berger and House Speaker Tim Moore filed a motion Thursday asking Osteen for an injunction to his order that allows the board of elections to triple the amount of time they accept ballots after the election. The motion helps push along their ability to file an appeal to consider stopping all parts of the settlement that Osteen said he deemed likely unconstitutional but said he did not have the power to change.

“Judge Osteen found that a grave Constitutional violation has occurred,” Berger said in a written statement. “We are asking Judge Osteen to block the unconstitutional act, as he said should happen, while we seek enforcement of his determination from a higher court.”

On the issue of signatures, Osteen criticized the State Board of Elections, saying it had misconstrued or misinterpreted findings he made in August in a way that changed election rules set by state lawmakers who hold that authority under the U.S. Constitution.

On Oct. 2, a Wake County judge accepted a settlement agreement between the elections board and challengers who sued to ease rules for voters. For absentee ballots missing a signature from a witness, the settlement would have allowed voters to sign a statement verifying it was their ballot, allowing those ballots to be accepted without a witness signature.

In August, Osteen determined that North Carolina had no statewide procedure to notify a voter that their ballot was rejected or give them a means to be heard on why their ballot should stand. He said due process was needed.

But on Wednesday, he added that his order for due process was to help the voters, not a means for the board to undermine legislative authority.

Osteen said lawyers used his words out of context to get the Wake County judge to agree for the board to “usurp” legislative authority.

“This court upheld the witness requirement,” Osteen said. “To claim a cure which eliminates the witness requirement is consistent with this court’s order is a gross mischaracterization of the relief granted.”

All five board members agreed on the settlement that did away with the witness requirement in a state lawsuit before it reached the judge. That included the board’s two Republican members who resigned afterward.

But Berger, the Senate leader, and House Speaker Moore asked Osteen and another federal judge to intervene.

On Thursday morning, Karen Brinson Bell, executive director of the N.C. State Board of Elections, sent an email outlining how the board would handle the election going forward.

Bell wrote that if a voter’s ballot is not listed as accepted or accepted-cured, then someone will contact the voter to let them know what steps they must take. Bell also said that if a voter whose ballot envelope has a deficiency decides to vote in person, the voter will receive a regular ballot and their mailed-in ballot will be disapproved.

The Southern Coalition for Social Justice represented the plaintiffs in one of the three election lawsuits.

“Now that county boards of elections have the clarification they needed on the cure process, they can restart the important work of helping voters address potential issues and making sure every ballot cast is counted,” Allison Riggs, the organization’s chief voting rights counsel and interim executive director, said in a statement.

In response to Osteen’s order Wednesday, Moore said: “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.”

Berger also issued a statement. “Judge Osteen was right to stop the Board’s elimination of the absentee ballot witness requirement,” he said.

Drop boxes, postmarks

But another order issued by Osteen said he did not have authority to block some of the settlement agreement, including the extension of collecting mail-in ballots and the use of drop boxes.

Berger said he disagrees that Osteen can’t intervene in all of the changes.

“This all started because of the board’s 11th-hour decision to rewrite election laws after ballots had already been cast,” Berger said.

Attorney General Josh Stein, a Democrat, said in a written statement that he was grateful for Osteen’s decision.

“My team is reviewing the lengthy orders,” Stein said in a written statement. “But I’m pleased the federal court has left the consent order largely intact. It’s time for the lawsuits to come to an end.

“The outcome of the election should be in the hands of the people, not the courts. Let’s vote.”

This story was originally published October 14, 2020 at 6:31 PM with the headline "NC absentee ballots must have witness signatures, judge rules."