WASHINGTON — An unknown number of absentee voters in Alabama’s most populous county are at risk of having their ballots thrown out because elections officials mailed special instructions that became invalid after a recent court ruling.
Elections officials in Jefferson County, Alabama, sent out a waiver with absentee ballots allowing voters with some medical conditions to bypass a state law requiring them to have witnesses sign their ballots due to the coronavirus pandemic. But since a court ruled that those waivers will not be allowed, it’s unclear if county officials have done — or will do — anything to notify the voters who received them.
The situation in Jefferson County is a casualty of the frantic pace of litigation around this year’s presidential election. State and local election officials have had to make difficult decisions about how to provide accurate information to voters about election rules that could change at any moment as long as court cases are pending.
Alabama requires absentee voters to have two witnesses or a notary present when they sign their ballot; the witnesses have to sign the ballot, too. On Sept. 30, a federal judge blocked the witness requirement for voters with underlying medical conditions that put them at higher risk of COVID-19, the disease caused by the novel coronavirus.
At some point after that September ruling, election officials in Jefferson County — which has close to 500,000 registered voters, according to Alabama’s secretary of state — sent out absentee ballots with a special form that voters could sign to certify that they had a medical condition and waive the witness requirement, in an attempt to comply with the judge’s order.
But on Oct. 13, the US Court of Appeals for the 11th Circuit reversed that order and reinstated the witness requirement. Deuel Ross, a lawyer with the NAACP Legal Defense and Educational Fund who has been involved in the Alabama litigation and is monitoring the situation in Jefferson County, told BuzzFeed News that as of Oct. 23, they aren’t aware of an effort by the county to notify voters who received the now-inoperative waiver.
The Alabama attorney general’s office filed notice that it was appealing the Sept. 30 order the same day the judge ruled, but the witness waiver form sent by Jefferson County doesn’t mention that litigation was still pending, according to a copy obtained by BuzzFeed News.
Ross’s organization and other voting rights groups sent a letter to Jefferson County officials on Oct. 21 asking them to alert voters who received the waiver that they cannot use it and to come up with a way for voters whose ballots have arrived with the waiver after the 11th Circuit ruled to “cure” their ballots. He said they haven’t received a response yet from the county.
“We understand that your office has been managing an historic volume of absentee ballot applications and in-person absentee voters in recent weeks,” the groups wrote in the letter. “However, it is crucial that voters are given the opportunity to correct any issue with their ballot that resulted through no fault of their own.”
Ross said they don’t know how many Jefferson County residents received the waiver form, but given the two-week window between the two court decisions, it could be thousands of voters. Ross said he wasn’t aware of any other Alabama county where this was an issue.
“Jefferson County was trying to do the right thing and inform voters,” Ross said. “Unfortunately the higher court stepped in and prevented voters from continuing to have that option after the two-week period there, so I think Jefferson County can and should do everything they can ... and give voters a chance to cure their ballots.”
County election officials and attorneys did not return requests by BuzzFeed News for comment. The county government published a press release on its website on Oct. 13 about the 11th Circuit order reviving the witness requirement but didn’t post updates on its Facebook or Twitter accounts.
On Oct. 8, BirminghamWatch reported that a Jefferson County official had suggested that voters should get witnesses for their absentee ballot in case the Sept. 30 order was reversed, but a county attorney said that wasn't necessary. The attorney didn't address what would happen if ballots arrived without witness signatures in the event the appeals court did reinstate the requirement, and was quoted as saying that if ballots went through "the absentee process at this time, that will be valid and counted."
The federal district judge’s Sept. 30 order had also blocked Alabama’s photo ID requirement for absentee ballot applications for voters over age 65 or who have a disability that puts them at higher risk of COVID-19; the 11th Circuit reversed that order as well.
Jefferson County sent out a separate waiver form for absentee ballot applications in an effort to comply with the Sept. 30 order, and the voting rights groups have asked the county to also find a way to make sure voters who apply for ballots using that waiver are notified and given a way to now satisfy the ID requirement. Alabama voters have until Oct. 29 to apply for absentee ballots, which must be received by Election Day in order to be counted.
Updated with information from an Oct. 8 article in BirminghamWatch.