Mail-In Voters Get Some Certainty on Witness Mistakes … For Now

Mail-In Voters Get Some Certainty on Witness Mistakes … For Now

Earlier this week, we reported on what Spectrum News 1 aptly called the “Board of Elections mess” in North Carolina. Although that so-called mess involves several different aspects, the hotly contested one centered on witness mistakes on mail-in ballots. In two opinions and orders issued by an NC federal judge on Wednesday, that mess got a little less messy.

The purported problem with the recent NC Board of Elections’ settlement centered on the witness requirement for mail-in ballots. Under the settlement, voters who make witness mistakes have an opportunity to cure those mistakes without a witness.

Witness mistakes could impact the 2020 election
Image courtesy of Anna Sullivan on Unsplash.

To do so, they would go to their county board of elections office and execute an affidavit. Critics claimed this would allow mail-in voters to completely avoid the witness requirement. They could mail in their ballots and then go execute the affidavit instead, critics claimed.

A Federal Judge Stopped the “Cure Procedure” But Will Let Voters to Fix Minor Errors Without a Witness

On Wednesday, Judge William Lindsay Osteen, Jr., a federal judge in the Middle District of North Carolina, added some clarity to this mess. In his 91-page opinion and order, Judge Osteen criticized the Board of Elections’ decision to let mail-in voters cure witness mistakes without a witness.

“Whether because a voter inadvertently cast a ballot without a witness or because a voter was aware of the ‘cure’ procedure and thus, willfully did not cast a ballot with a witness, there will be voters whose ballots are cast without a witness,” Judge Osteen wrote.

Witness-related mistakes could impact the 2020 election
Image courtesy of Joshua Hoehne on Unsplash.

Ultimately, Judge Osteen called the changes improper. “This court believes the unequal treatment of voters and the resulting Equal Protection violations as found herein should be enjoined,” he concluded.

In a second, 41-page opinion and order, Judge Osteen prohibited the Board of Elections “from implementing a Due Process or ‘cure procedure’ … which authorizes acceptance of an absentee ballot
without a witness or assistant signature[.]”

So what does that mean for NC voters for the 2020 election?

If you submitted a mail-in ballot without a witness, your vote won’t count. And you can’t fix the witness mistake by simply signing an affidavit. Instead, you’ll have to vote again and follow the mail-in instructions.

But Judge Osteen’s “injunction does not extend to other minor, curable errors subject to remediation such as a witness signature written on the wrong line or an
incomplete address.” So if your mistake was only a minor one, you’re in luck.

NC Attorney General Stein is “Pleased” with the Decision and Wants Certainty for NC Voters

North Carolina Attorney General Josh Stein generally praised the decision on Twitter. Noting that “the federal court has left the consent order largely intact,” he emphasized that, for voters’ sake, “[i]t’s time for the lawsuits to come to an end.”

For now, Judge Osteen’s decisions gives voters some certainty if they made witness mistakes.

Unfortunately, that certainty could be short lived. Marc E. Elias, a voting-rights lawyer involved in the case, tweeted yesterday that the Republican National Committee, the NC GOP and other Republican-affiliated individuals and entities filed for an emergency stay of Judge Osteen’s decisions and will appeal.

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