GREENSBORO — A federal judge in North Carolina sharply criticized Wednesday an absentee ballot procedure giving voters more leeway to fix incomplete witness information, but said he’d issue a written ruling at a later time.
U.S. District Judge William Osteen said he'd aim to issue a written ruling early next week after hearing arguments in two related lawsuits on Thursday. Voting rights advocates argue that thousands of ballots with deficiencies are essentially in limbo until a clear process is developed for handling them.
A key issue is how local elections boards should implement a state law requiring absentee voters to have an adult witness their ballot. The state had recently developed a new procedure to allow voters to fix incomplete witness information by returning an affidavit to county officials, but not filling out a new ballot from scratch and having it witnessed again. Those updated rules are currently on hold pending the lawsuits.
Osteen expressed concerns that the procedure would essentially eliminate the witness requirement. He had previously ruled in August that the state had to ensure voters could fix certain deficiencies, but upheld the witness requirement.
In court, Osteen accused the State Board of Elections of using his ruling, cited by the state when the new rules were issued, as a “stepping stone” to eliminate the need for a witness.
“You’ve extended my due process ruling into realms I never intended,” Osteen told a lawyer representing the state board.
Alex Peters, a lawyer with the attorney general's office representing the state board, argued the state didn’t eliminate the witness requirement, reasoning that county boards must still ask the voter to fix witness information problems rather than simply counting the vote.
Allison Riggs, a lawyer representing the voting rights advocacy group Democracy North Carolina, urged Osteen to continue allowing people to fix small defects like incomplete witness address information or a witness signature in the wrong place without requiring them to fill out an entirely new ballot.
But among her biggest concerns was that the state has directed county boards to take no action at all on witness problems and other deficiencies due to the legal challenges, meaning voters who may have problems are losing time to fix them.
Meanwhile, Peter Patterson, a lawyer representing state Republican legislative leaders fighting the new ballot rules, argued the state board should return to the late August guidance it issued that requires voters to start a new ballot from scratch if they have incomplete witness info.
The absentee ballot rules being argued in court were issued on Sept. 22 as part of a legal settlement in a separate state lawsuit. At the time, the state board also extended by several days the period after Election Day when county boards could accept ballots as long as they were postmarked by Nov. 3. A state judge approved the changes as part of a legal settlement.
But Republican legislative leaders argued the changes would dilute the weight of votes cast by people who followed the original, stricter rules. State and national GOP leaders including President Donald Trump's reelection campaign filed lawsuits challenging the changes in a Raleigh federal court. The judge hearing those cases, U.S. District Judge James Dever, temporarily halted the changes and then transferred the two cases brought by GOP leaders to Osteen.
So far, nearly 395,000 absentee ballots have been accepted, the state said Wednesday. But another 11,000 have been set aside because of various deficiencies or the need for further review. In light of the ruling by Dever, the state board told county officials on Sunday to take no action on deficient ballots pending further court decisions.
Ballot problems have affected minority voters at a higher rate than others. For example, Black voters make up about 16% of all returned ballots, but nearly 34% of ballots set aside for various deficiencies including incomplete witness info.
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