Another Round of Lawsuits leaves NC Absentee Ballot Curing Law in Limbo

The L. Richardson Preyer Federal Building and Court House in Greensboro, North Carolina, where state courts are currently hearing and deciding cases at breakneck pace regarding absentee ballot law for the upcoming election. Source.

In North Carolina more than 1.3 million voters have already requested absentee ballots—meaning that a seventh of all registered voters have already done so—and as of October 10th more than 500,000 absentee ballots have already been returned. With this huge increase in absentee ballots stoked by the ongoing COVID-19 pandemic, some state Democrats have expressed concern over the process, believing that ballot requirements may limit the ability of individuals to vote and lead to inequitable outcomes, as the absentee ballots of Black voters are being rejected at higher rates than average both in North Carolina and around the country.

One of the main criticisms of the absentee ballot process was that voters whose ballots were rejected would not have adequate opportunity to fix their mistakes. As the result of a lawsuit brought by the League of Women Voters and Democracy North Carolina over the summer, the North Carolina Board of Elections adopted new policies around ballot rejection. Currently, voters will be notified of any mistakes that would invalidate their ballots and be given the opportunity to cure those errors, either by signing an affidavit, in cases where the voter’s signature is missing, or, in most other cases, by returning a new ballot.

Unsatisfied with these results, a number of different groups, including the North Carolina Democratic Party and the North Carolina Alliance of Retired Americans (NCARA), sued the State Board of Elections in an attempt to make it even easier to vote this fall. On September 22, the State Board of Elections agreed to a settlement with the NCARA further modifying the process for curing ballots. Under that policy, ballots lacking a witness signature or address could be cured by an affidavit, just as with issues relating to voter signatures, and the period in which ballots would be accepted would be extended up to nine days after election day, so long as they are postmarked by election day. The changes were implemented in a memo issued by the State Board of Elections on the 22nd, and the settlement was approved by Wake County Superior Court Judge Bryan Collins on October 2nd.

The settlement drew sharp criticism from Republicans, who announced plans to fight the new changes before they were accepted. North Carolina Speaker of the House Tim Moore blasted the plan, saying in a press release that it is an attempt by Democrats to “gut the integrity of North Carolina voting laws” and subverts legislative requirements relating to ballot witnesses and deadlines. North Carolina Senate Pro Tempore Phil Berger characterized the changes as a “secretive effort by Attorney General Josh Stein and the N.C. State Board of Elections to rewrite [bipartisan election law].” Though the decision to support the settlement was made by a unanimous vote, the two Republican members of the State Board of Elections have resigned saying that they did not fully understand the implications of the agreement.

Republican groups have sued in federal court to block the implementation of these changes, and on October 3rd an order issued by U.S. District Judge Dever rolled back the implementation of the new policy. For the past few weeks North Carolina voters have been in limbo, as the State Board of Election issued new guidelines for county officials, advising them to keep ballots lacking witness signatures in a safe place until the court provided further guidance. On October 14th U.S District Judge Osteen issued an order that would require ballots lacking a witness signature to be spoiled and replaced with a new ballot, but he allowed a number of the settlement’s other elements to remain. Minor issues relating to witness requirements, such as a misplaced signature or incomplete address, would be permitted to be fixed by affidavit. The extended deadline in which absentee ballots can be accepted under the settlement—up to nine days after election day if they are postmarked by November 3rd—would also be allowed to stand.

While both sides expressed a belief that they were vindicated by the decision, the court battle is not yet over. The case was appealed, and the State Board of Elections has been unable to implement any changes due to a stay, leaving thousands of deficient ballots yet again in limbo. As court battles drag on, there is growing anxiety that time is running out for deficient ballots to be cured. Voters wishing to request an absentee ballot, to learn more about absentee ballot requirements, or to track one already cast can find more information at the State Board of Elections website.