RALEIGH — A federal judge has halted new North Carolina absentee voting rules that gave voters more leeway to fix witness problems and extended the period when elections boards could accept mailed-in ballots.
The rules, issued last week in a settlement with voting rights advocates, were blocked by a temporary restraining order issued Saturday by U.S. District Judge James Dever, who raised concerns about changing rules after numerous ballots have already been cast. Saturday’s decision comes amid a tangle of litigation in state and federal court over absentee ballots in the key presidential battleground.
Dever raised concerns that the changes, which have been sharply criticized by Republicans, could violate equal protection rights and dilute the weight of ballots cast under pre-existing rules contained in state law. Dever noted that when the North Carolina State Board of Elections announced on Sept. 22 that it was revising the procedures, more than 150,000 people had already cast ballots. North Carolina was the first state to kick off absentee balloting on Sept. 4.
“At bottom, the (state elections board) has ignored the statutory scheme and arbitrarily created multiple, disparate regimes under which North Carolina voters cast absentee ballots,” he wrote.
The revised rules allowed voters who cast absentee ballots with incomplete witness information to fix the problems by returning an affidavit, rather than starting the ballot over and having it witnessed again. North Carolina law, which legislators updated over the summer in response to the pandemic, requires one witness for an absentee ballot.
During a hearing Friday, Dever asked lawyers from the state attorney general's office whether the new procedure essentially eliminated the witness requirement.
Alexander Peters, a lawyer representing the state board, argued that the county officials who would receive the voter's affidavit responding to the deficiency would stand in for the witness, drawing a retort from the judge.
“They’re not really witnessing it. They’re seeing a piece of paper," Dever said Friday.
Dever also halted an updated rule that would have allowed county boards six more days to accept mailed-in ballots that arrived after Election Day, as long as they were postmarked by Nov. 3.
Dever was presiding over lawsuits by Republican legislative leaders and President Donald Trump's campaign that argued the North Carolina State Board of Elections had usurped the power of lawmakers and lessened the weight of ballots cast before the rule change.
Dever's ruling also transferred those two cases for further review to another North Carolina-based federal judge who's hearing a related case and has scheduled a hearing for next week. U.S. District Court Judge William Osteen has also expressed concernthat the revised ballot rules would essentially eliminate the witness requirement, which he upheld in a previous ruling.
The rule changes had stemmed from a separate lawsuit in state court by voting rights advocates who argued that the state's absentee ballot requirements were too restrictive in the middle of the pandemic. A legal settlement containing the rules was approved by a state judge Friday, but the procedures have been suspended by Dever's order.
More than 340,000 North Carolina absentee ballots had been accepted as of Saturday, according to the state board, out of a total of 1.1 million ballots requested. State data has shown that Black voters were more likely than others to have problems with incomplete witness information. Currently, Black voters represent nearly 17 percent of all ballots returned, but about 36 percent of ballots set aside for various deficiencies including incomplete witness information.
The state attorney general's office noted Saturday that Dever's ruling is temporary and hopes to have voting rules settled soon.
“We hope the protracted litigation will soon come to an end so that voters will have the certainty and the ability to vote safely that they deserve as we move into the final few weeks of the election,” spokeswoman Laura Brewer said in an email.
Republican State House Speaker Tim Moore and State Senate leader Phil Berger, who filed one of the lawsuits Dever considered, hailed his decision and blamed Democrats including Attorney General Josh Stein and Gov. Roy Cooper for what they described as a secretive scheme to change voting rules.
“Judge Dever restored sanity into this election by temporarily blocking the eleventh-hour rule changes to undo absentee ballot fraud protections,” Berger said.
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