A federal judge reluctantly ruled on Wednesday that North Carolina can go ahead with a plan to count absentee ballots postmarked by Election Day through Nov. 12, but denied voting rights groups' effort to make it easier for people to fix errors on their ballots.
North Carolina, like several states, requires absentee voters to have someone witness when they sign their ballot — but those laws have been challenged in court due to the coronavirus pandemic, when many more people are voting by mail and social distancing. In late September, as part of an agreement reached in a lawsuit brought by voting rights groups in state court, the North Carolina State Board of Elections revised its guidance to counties about what to do if a ballot arrived without a witness signature, informing local election officials that it could still be counted if a voter submitted an additional form certifying that it was legitimate.
As part of the same agreement reached in the state court case, North Carolina election officials agreed to extend the deadline for accepting ballots by mail.
But a series of lawsuits, appeals, and competing court orders since then have upended that guidance, even as ballots poured in. More than 500,000 absentee ballots have already been cast, according to the North Carolina State Board of Elections.
President Donald Trump’s campaign, the Republican National Committee, and state Republicans had argued that the State Board of Elections’ guidance was the result of a “backroom deal” with one of the voting rights groups involved in the litigation, Democracy North Carolina, that essentially eliminated the witness requirement law and could result in voter fraud. (Trump and his campaign have repeatedly, without evidence, argued that mail-voting would lead to widespread voter fraud, an argument that courts have found unconvincing in a series of cases this year.)
Late Wednesday, US District Judge William Osteen issued two separate opinions, addressing arguments in three related lawsuits. He upheld the extended deadline for counting ballots because he did not want to cause “judicially created confusion” by changing rules so close to the election, though he noted it was likely unconstitutional.
But in the other case, he said the state’s guidance in late September allowing voters to submit a form if they had not included a witness signature on their ballot was unfair to the voters who had cast their ballot prior to the state’s new directive. His order reinstates the state’s original process, which invalidates ballots without a witness signature and requires voters to start over with a new ballot.
Multiple parties in the case have filed appeals on different issues. North Carolina election officials appealed to the US Court of Appeals for the 4th Circuit after the updated election rules were temporarily blocked by another federal judge, arguing that because there were conflicting court orders about missing witness signatures, election officials couldn’t notify voters who had already sent back ballots that have problems. State Republicans also have a pending challenge to an earlier state court order before the North Carolina Court of Appeals.
Until those courts rule, Judge Osteen’s decision will be in effect.
Patrick Gannon, a spokesperson for the North Carolina State Board of Elections, did not immediately comment in response to the decisions. Gannon previously told BuzzFeed News that the board was waiting to notify voters about how the board would handle ballots without a witness signature until the issue was resolved in court.