Court upholds decision to waive absentee ballot requirements

RHODE ISLAND — The U.S. Supreme Court ruled in agreement with the lower courts on Thursday, allowing Rhode Islanders voting by absentee ballot this fall to forgo signatures from two witnesses or a notary public. 

The Rhode Island Republican Party and the Republican National Committee had filed an appeal to the U.S. Supreme Court on Monday as a last-ditch effort to block the relaxation of mail ballot rules.

Normally, Rhode Islanders who opt to vote by mail would be required to obtain the signatures of two witnesses or a notary in order for their ballot to be counted. After a federal lawsuit challenging these provisions in the midst of a pandemic was brought forward, however; an agreement to waive these requirements for the upcoming September Primary and General Election in November was reached. 

Rhode Island GOP Chair Sue Cienki said on Monday that relaxing mail ballot requirements will undermine the integrity of our election.

In a Facebook video message from the Rhode Island Republican Party, Cienki stressed that “COVID-19 cannot be used as an excuse to eliminate the safeguards against fraud in the election.”

The message, which alerted followers to the issue if they weren’t already aware of the ongoing legal battle, also asked viewers to donate anything they could to help support the group’s legal defense fund.

“We have been fighting this every step of the way and this is our last chance,” Cienki said. “This is a critical election, and it’s security needs to be protected at all costs.”

Shortly after the Supreme Court reached its decision late Thursday morning, Secretary of State Nellie M. Gorbea issued a statement that she was looking forward “to delivering Rhode Islanders safe and secure elections they can trust.”

“Your health should never be the price of admission to our democracy,” Gorbea said. “Making it easier to vote safely from home by removing the burden of obtaining two witnesses or a notary is a common-sense step that will protect Rhode Islanders during this pandemic.”

 Three weeks ago, attorneys for the American Civil Liberties Union, the ACLU of Rhode Island, the Campaign Legal Center and the law firm of Fried Frank filed a suit challenging mail ballot requirements that “necessitate face-to-face and hand-to-hand interaction.”

According to ACLU of Rhode Island, the case was filed on behalf of two voting rights advocacy groups — Common Cause Rhode Island and the League of Women Voters Rhode Island — as well as “Rhode Islanders with significant medical vulnerabilities that place them or members of their household at a heightened risk of severe illness or death if they contract COVID-19.”

Executive Director Steven Brown stated that removing witness and notary requirements in the midst of a deadly pandemic was “a common-sense solution that protects people’s health and their right to vote.”

The suit filing claimed that requiring a witness or notary on mail ballots places Rhode Island among a minority of states, and an even smaller minority of states that require more than one witness signature.  

“While this requirement creates a burden under any circumstances,” the group filing stated, “Rhode Island’s ballot witnessing requirements are not only needless and difficult, they are dangerous.”

When the lawsuit was filed on July 23, the Rhode Island Republican Party swiftly announced its support for keeping mail ballot requirements in place, stating that eliminating the safeguard “increases likelihood of fraud.”

Less than a full week later, however, the plaintiffs and the defendants in the case — the Secretary of State and Board of Elections —submitted a consent agreement to suspend the witness/notary requirement. The agreement was approved by U.S. District Judge Mary McElroy on July 28.

The Rhode Island Republican Party and the Republican National Committee soon after repealed this decision to the U.S. Court of Appeals for the First Circuit, though on Aug. 7, the three-judge panel unanimously denied the request.

Gorbea had called the decision “another victory for voting rights and the safety of Rhode Islanders,” and thanked the court for upholding the removal of the state’s “burdensome requirement” during the pandemic. 

Three days later, on Aug. 10, Rhode Island Republican Party and the Republican National Committee looked to the U.S. Supreme Court to weigh in on the matter and grant an emergency stay of the mail ballot requirements.

The party’s filing stated that having no one to watch over ballots being cast remotely “increases the risk of ineligible and fraudulent voting,” and “requiring voters to sign their absentee ballots in the presence of two witnesses or one notary” is just one way to address these concerns.

“Like poll workers for in-person voting, these third-parties are the only external verification that the person casting the absentee ballot is who she says she is,” the party’s filing stated. 

The filing acknowledged that when Gov. Gina Raimondo moved the Presidential Primary from April to June due to the pandemic, she also suspended the witness requirement. By April, however, both parties already had a de facto nominee, and “the then-Vice Chair of the Board of Elections made clear that the suspension of the witness requirement for the June primary was ‘a one time emergency response to an emergency of unprecedented proportions.’”

The filing also points out that last month, the U.S. Supreme Court stayed an injunction against Alabama’s witness requirement, which mirrors Rhode Island’s own witness requirements.

The U.S. Supreme Court’s decision to deny the stay of these requirements stated that unlike the stay of Alabama’s witness requirement,  and other similar cases where a state defends its own law, here the state election officials support the challenged decree, and no state official has expressed opposition.

The filing asked the court to grant a stay by Wednesday, Aug. 12, since Gorbea had “agreed not to mail absentee ballots for the upcoming September primary until Thursday, Aug. 13.” This request was made to “ensure that no incorrect ballots [would be] distributed.” 

As of Thursday morning, before the court delivered its decision, none of the absentee ballots had yet been sent out, according to Secretary of State’s Deputy Communications Director Nick Domings. 

“We want to send them out as quickly as possible, and have been ready to send over 11,000 since Monday,” Domings wrote in an email on earlier Thursday morning. “However, we do not want voters to be confused if the witness/notary requirement is reinstated and we have to send them a second oath envelope.”

Two hours later, however, once the decision had been announced, Gorbea said that requested mail ballots for the September primary would be going out that same day.