WASHINGTON — The election official in charge of absentee voting in Alabama’s most populous county announced this week that they are working to identify and contact voters who received special ballot instructions that could invalidate their ballots due to a recent court ruling.
Over the span of approximately a week and a half this month, Jefferson County sent voters a form that they could sign that would allow people with medical conditions that put them at higher risk of contracting COVID-19 to vote by mail without needing witnesses to sign their ballots. But a federal appeals court reinstated the witness requirement on Oct. 13, invalidating any waivers that voters put in the mail after that date. Voting rights groups expressed concern that the county wasn’t taking steps to alert voters who received the waiver that they could no longer use it, and risked having their ballots rejected if they hadn’t been postmarked by Oct. 13.
On Oct. 26, two days after BuzzFeed News first reported on the waiver issue, Jefferson County published a press release on its website directing voters who had sent in absentee ballots using the witness waiver form on or after Oct. 14 to contact Jackie Anderson Smith, the absentee election manager for the county. The release said the county had a plan for voters to correct “deficiencies” with their ballots, although it didn’t offer details about what that plan involved.
In an email to BuzzFeed News on Oct. 26, Smith wrote that she had “implemented procedures” to contact voters who were sent the waiver form, but didn’t respond as of publication time to questions asking for details about those procedures, how many voters may have received the waiver form, and what voters who submitted the waiver would need to do to make sure their vote is counted. The county is promoting the new information about the waivers on Twitter, Facebook, and other social media platforms.
Smith said the waivers were sent out with absentee ballot materials between the Sept. 30 ruling and the Oct. 13 appeals court decision but didn’t say how many voters may have received them.
Absentee ballots that don’t comply with the state’s witness requirement — voters need two witness signatures or one notary signature — and are postmarked after Oct. 13 will be rejected, regardless of whether voters relied on the information that Jefferson County sent out, Alabama Secretary of State John Merrill told BuzzFeed News in a phone interview.
He said voters who signed the Jefferson County waiver and were worried about their absentee ballot being rejected could cast a provisional ballot in person, which would be counted if their absentee ballot was later deemed invalid.
“Ballots that were submitted after the deadline will not be counted because they're not legitimate ballots,” Merrill said, referring to the US Court of Appeals for the 11th Circuit’s ruling on Oct. 13 that reinstated the witness requirement.
Deuel Ross, a lawyer with the NAACP Legal Defense and Education Fund involved in sending a letter to the county on Oct. 21 that raised concerns about the waiver, told BuzzFeed News on Tuesday that they hadn’t received new information about the county’s plan beyond what was in the press release.
“We’re pleased to see that Jefferson County is proactively working to contact affected voters. We encourage other Alabama counties to similarly assist voters and establish a cure process for unwitnessed absentee ballots that were postmarked on or after October 14,” Ross wrote in an email.
The situation in Jefferson County highlighted the uncertainty that state and local election officials have faced as courts have continued to rule and strike down prior orders in legal fights over election practices this year after voting had already started.
Alabama election law requires absentee voters to have two witnesses or one notary sign off on their ballots. On Sept. 30, US District Judge Abdul Kallon blocked that rule and other voting restrictions in Alabama during the pandemic, finding that they “unduly burden the fundamental Constitutional rights of Alabama’s most vulnerable voters and violate federal laws designed to protect America’s most marginalized citizens.”
In a 2–1 vote, the 11th Circuit granted Alabama’s request to reinstate the witness requirement while the state appealed Kallon’s decision. Jefferson County published a press release on its website about the 11th Circuit’s order but didn’t include information making clear that voters could no longer use the waiver form they’d received. On Oct. 21, the NAACP Legal Defense and Educational Fund and other groups that had been involved in the litigation sent a letter to Jefferson County officials asking them to alert voters who had received the waiver and come up with a way for voters who had sent it in after Oct. 14 to fix their now-invalid ballots.
Merrill, the Alabama secretary of state, said he learned about the Jefferson County waivers over the weekend and didn’t know what the county planned to do.
Asked if the state had an obligation to make sure voters who had acted on information they received from election officials had their votes counted, Merrill replied, “Our obligation is to ensure we have a safe, secure and free election and that's what we're going to do.”