Federal judge unhappy with NC’s controversial change to absentee ballot rules

A federal judge on Wednesday blasted the State Board of Elections’ recent change to the rules for absentee ballots, arguing that the move effectively overturns state law that requires voters to have a witness sign their mail-in ballot.

The elections board — as part of a proposed legal settlement that has caused two resignations from the board and a political uproar — set a new process for ballots that don’t include a witness signature. Elections officials would contact the voter and have them sign a “cure” form that confirms that they are indeed the person who submitted the absentee ballot.

Previously, voters who didn’t include a witness signature could be contacted and told to submit a new absentee ballot with a witness. State legislators who backed the witness requirement say it’s a key safeguard against the kind of absentee ballot fraud that marred the 9th Congressional District election in 2018.

But multiple lawsuits have challenged the requirement, arguing that requiring a witness signature during a pandemic could be an unfair burden to voters who live alone and might be avoiding contact with others due to COVID-19.

That issue was litigated once in federal court in August, where U.S. District Court Judge William Osteen upheld the witness requirement — with the caveat that ballots submitted with a “material error” shouldn’t be thrown out without “due process.”

The witness requirement is also being challenged in state court in a separate lawsuit involving Marc Elias, a prominent attorney for national Democrats. That’s the case that prompted the State Board of Elections to agree to the controversial settlement that includes changing the procedure for ballots that are missing a witness.

The judge in that case will be reviewing the proposed settlement later this week. But the State Board of Elections has already told county elections offices to make the change. In an email to the county officials, State Board attorney Katelyn Love cited Osteen’s August ruling as “the authority for this memo.”

Osteen reviewed the memo and said the witness requirement change wasn’t part of his decision. He wrote that the State Board of Elections has “re-written the one-witness requirement, a statute this court previously upheld, to permit submission of an absentee ballot without a witness.”

Doing so, he argues, “undermines and in effect eliminates the legislature’s interest in preventing ballot fraud.” He’s summoned the parties to the lawsuit into court to discuss the issue “at the earliest possible date.”

Osteen’s order prompted a new directive from the State Board of Elections on Thursday, telling election workers to hold off on processing absentee ballots without a witness signature until the matter is resolved.

Trump campaign gets involved

Osteen isn’t the only one taking issue with the change. On Saturday, President Donald Trump’s campaign, the Republican National Committee and GOP state legislative leaders all filed suit to block the witness change, as well as other aspects of the settlement addressing absentee ballots.

The settlement also would allow more time for elections offices to receive absentee ballots, as long as they’re postmarked by Election Day.

The GOP lawsuit is awaiting a hearing from U.S. District Court Judge James Dever, who on Wednesday rejected a request from the elections board’s attorneys to move the matter to another court.

Meanwhile, the Trump campaign went a step further this week, writing a letter to Republican appointees on county elections boards calling on them to ignore the State Board of Elections’ directives on absentee ballots.

Trump’s campaign says that the GOP “advises you not to follow the procedures” because “the Democrats are trying to undermine the election process through backroom shenanigans.”

The recommendation drew a rebuke from Love, the elections board’s attorney, who told county boards in an email that “guidance sent to you or your board members by a political party or other source should not be considered or followed.”

Her email also reminded county board members that the State Board of Elections has the power to remove them from office.

Stella Anderson, a state board member who is a Democrat, said in an interview Wednesday that the Trump campaign’s actions are “obviously a coordinated attack.”

“That’s created more confusion, and mayhem is the only word that comes to mind,” Anderson said. “It’s a signal of a line of attack through the courts as it relates to challenging individual voters’ ballots or the whole set.”

But while Anderson — along with all the Democrats and Republicans on the elections board — voted in favor of the settlement, she has raised concerns about changing the ballot witness rules.

During a closed-session board meeting last week, and again Wednesday during an interview with the NC Insider, she worried that the change could open the door to fraud. If someone submits a no-witness fraudulent ballot using someone else’s identity, she said there’s a slight chance they could also submit the “cure form” and forge the voter’s signature — since that document doesn’t require a witness.

But Anderson said she supports the settlement agreement because that concern must be balanced with another worry: That a voter could be disenfranchised if their ballot arrives close to Election Day without a witness, and there’s not enough time left to submit a new ballot.

She also said that without the settlement, a judge might eliminate the witness requirement entirely — something the elections board doesn’t want to do.

Ballot dropbox concerns

Another source of confusion and controversy in the settlement involves unmanned dropboxes for absentee ballots at county election offices. Voters would be able to drop off the ballots anonymously.

Several lawsuits seek to give voters a dropbox option — so they won’t have to risk exposure to COVID-19 by taking their ballots inside the elections office. But elections board members have voiced opposition to that change, noting that the current process of logging the names of people delivering ballots is part of what helped catch the election fraud activity in the 2018 congressional race.

The proposed settlement calls for a minor change in the ballot drop-off process. Instead of signing their name on the ballot log with a communal pen, the person could instead verbally give their name to an elections board employee.

But Republicans are questioning the wording of the settlement, which says that ballots left in a dropbox would still be counted.

Some county elections offices installed outdoor dropboxes when they were closed due to COVID-19, allowing for voters to submit registration forms and other documents. Any boxes still in use are required to have signs that tell voters they can’t use them to submit absentee ballots and must instead go inside.

“If anonymous outdoor drop boxes had been utilized by the illegal ballot harvesters in 2018, then it’s likely the fraud would never have been discovered,” Senate leader Phil Berger’s office said in a news release.

The elections board plans to issue further guidance on the dropbox issue in the coming days.

While any resolution in the fight over absentee ballot rules is days or weeks away, new ballots arrive every day and county officials are facing confusion over how to handle voters’ mistakes on the forms.

Anderson says the election board had hoped that by settling one of the lawsuits, they’d “achieve more certainty and more finality” for elections rules.

With more legal challenges pending, election officials are “left with greater uncertainty about what are going to be the terms under which some voters’ ballots are going to count, and some aren’t,” Anderson said.

For more North Carolina government and politics news, listen to the Domecast politics podcast from The News & Observer and the NC Insider. You can find it on Megaphone, Apple Podcasts, iHeartRadio, Stitcher or wherever you get your podcasts.

This story was originally published September 30, 2020 at 6:41 PM.