NC must give voters a chance to fix mail-in ballots before they’re thrown out, judge rules
Fears of coronavirus endangering voters in North Carolina this fall — or potentially lowering voter turnout — aren’t enough to force the state to change many of its elections laws, a federal judge has ruled.
However, U.S. District Court Judge William Osteen did order one key change: new protections for people who vote by mail, giving them a second chance to fix any problems that might keep their ballot from being counted.
The ruling said people will now be ensured “due process” to fix any problems that arise with their ballots, and Osteen left open the door for the state’s political leaders to write a more specific rule or law “which provides a voter with notice and an opportunity to be heard” if there is a problem with their mail-in ballot.
Allison Riggs, a lawyer for the challengers, said Tuesday night that Osteen’s ruling may have just saved more than 100,000 North Carolina voters from having their ballots thrown out in November.
“This ruling is especially significant for voters of color, who are disproportionately likely to have their absentee ballots rejected,” she said. “This decision will help ensure these voters are heard in November, even in the midst of the COVID-19 pandemic.”
In the March primary elections in North Carolina, the challengers in this lawsuit had claimed, around 15% of the total mail-in ballots statewide were rejected — including 19% of the ballots submitted by Black voters.
When people vote in person and encounter a problem, they’re allowed the opportunity to fix it and still have their ballot counted. But that kind of protection hasn’t existed in past elections for mail-in ballots — something the judge ordered the state to change immediately.
Republican state lawmakers had argued in favor of keeping the current rules, calling any claims of disenfranchisement purely speculative, according to Tuesday’s ruling — but Osteen, an appointee of Republican former President George W. Bush, disagreed.
Osteen quoted the challengers’ argument that leaving the current rules in place “could result in voters being inadvertently disenfranchised if they make a mistake.”
The Durham-based Southern Coalition for Social Justice, which Riggs leads and which helped represent the challengers in this case, said in a news release Tuesday night that state officials have been preparing for as many as 40% of North Carolina voters to vote by mail this year due to coronavirus. That’s about 10 times more than normal.
The coalition said if that turns out to be true, and if voter turnout is the same as it was in 2016, then around 115,000 voters might be expected to have fixable problems with their mail-in ballots that the state is now required to let them try to fix.
But for the most part, Osteen’s ruling Tuesday was in favor of the state, and dismissed most of the other complaints that had been lodged by the challengers.
No change to deadline, witness requirement
Some of the things they had asked for, and which he declined to order, included:
▪ An end to the state law setting an early deadline for voter registration.
▪ The creation of “contactless drop boxes for absentee ballots.”
▪ An end to the state law requiring people to have a witness in order to vote by mail. The challengers argued, unsuccessfully, that it’s too burdensome on people’s health — particularly the 1.1 million North Carolinians who live alone.
The challengers had yet to decide Tuesday night if they would try to appeal Osteen’s decision on those matters.
Osteen wrote that even though he doesn’t believe the courts have the power to order those sweeping changes, the politicians who do — the governor and the legislature — still need to make sure people’s health is protected.
Even though he dismissed most of issues the challengers raised, Osteen wrote, both Republican lawmakers and Democratic Gov. Roy Cooper “would be sorely mistaken” to think that gives them permission to get lax on safety precautions for the election.
After the ruling came out, Republican Sen. Ralph Hise of Spruce Pine — the chair of the N.C. Senate’s elections committee — said there was no merit to what the challengers had asked for. He said the lawsuit was just an attempt by Democrat-backed groups to engage in voter fraud.
“These partisan lawsuits undermine trust in elections by seeking to legalize ballot harvesting and make it easier to commit absentee ballot fraud,” Hise said. “We’re glad a federal judge drew the line on these dangerous attempts to undermine election security.”
There is no proof of any widespread voter fraud, either in North Carolina or anywhere else in the United States. An audit by state officials of the 2016 elections found just two instances of voter impersonation out of 4.8 million ballots cast that year. In the 2018 elections, North Carolina elections officials caught what they said was a fraudulent scheme to collect, or “harvest,” mail-in ballots, which led to a re-do of a congressional election.
NC has made changes to absentee voting rules
Not everything surrounding the lawsuit had a partisan veneer. Many of the issues the challengers originally raised in the lawsuit have actually since been adopted into law, in a bipartisan bill that gained both parties’ support earlier this summer while the lawsuit was still ongoing.
Some of those changes that are now law include:
▪ Millions of dollars in additional spending for personal protective equipment, or PPE, at in-person voting sites.
▪ Millions of dollars in additional spending to handle administrative issues like cybersecurity and the large increase expected in mail-in ballots.
▪ People can now register to vote online.
▪ People can now request absentee ballots by email or fax, in addition to the previous methods of either mailing in the form or delivering it by hand.
▪ Certain Election Day polling place workers will only have to live in the same county they’re working in, not the same precinct.
In Osteen’s ruling, despite shooting down many of the challenges in the lawsuit, he emphasized the need for safety precautions for voting this year.
He wrote that while some people are concerned for their and others’ health and will follow safety precautions, “Others are reluctant or unwilling to follow recommendations and requirements such as masks and social distancing. ... As a result, during this election, millions of diverse North Carolinians will leave their homes to assemble and exercise their cherished right to vote in the midst of the unique circumstances caused by COVID-19.”
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 August 4, 2020 at 6:05 PM with the headline "NC must give voters a chance to fix mail-in ballots before they’re thrown out, judge rules."
