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As of Wednesday morning, 6,918 North Carolina absentee-by-mail ballots sat in limbo.
They had some sort of problem with the ballot return envelope, such as a missing name from the voter or a missing signature by the person required to witness the voting of the ballot.
Since ballots were mailed out in early September, North Carolina has had on-again, off-again rules about what to do with these ballots. Now, due to several pending lawsuits in state and federal courts, the N.C. State Board of Elections has issued a freeze on processing these ballots at all.
This came as an unwelcome surprise to federal Judge William Osteen, who presides in the Middle District of North Carolina. On Aug. 4, he made a ruling in a federal court case that challenged many of the state’s voting laws, but he granted them only a change in the vote-by-mail rules.
Now, the issue is back in his courtroom.
“I assumed, wrongfully, apparently, that the rules had been put in place by Sept. 4 according to the order I had issued,” Osteen said.
In a court hearing on Wednesday, Osteen grilled the plaintiffs in the case, Democracy NC v. the N.C. Board of Elections, and asked why they did not notify the court at the start of voting that the rules were not finalized.
He also expressed his displeasure with the defendants, N.C. State Board of Elections, for continuing to change the rules around voting by mail after ballots had begun to be sent out and for using his Aug. 4 ruling as an excuse to do so.
“You extended my due process rule into realms I never intended,” Osteen said.
Back in August, Osteen told the state it had to have some sort of procedure in place to allow voters to fix errors on return envelopes for absentee-by-mail ballots. At the time, ballot envelopes with any kind of error were simply rejected, and the voter would have to either vote a new by-mail ballot or vote in person. That, Osteen said, was a violation of voters’ due process rights.
Osteen is now saying, though, that some errors cannot be fixed by the voter.
“The state of North Carolina had to know, had to know, after all the evidence that had been put forward … that I would never approve a cure process that allowed a voter to cure a missing witness signature,” Osteen said.
North Carolina is a witness verification state for absentee-by-mail ballots. In order to assure that the ballot is cast by the person whose name is on the ballot, a witness is required to observe the voter filling out the ballot, then to put their name, address and signature on the ballot envelope.
During the court hearings before Osteen’s Aug. 4 decision, the state board argued that the witness requirement was important to protect the election against fraud. The most important piece of information from witnesses was their signature, to prove that they had really been there and observed the voter filling out the ballot.
But on Sept. 22, the state board issued a rule that said if voters submitted a ballot envelope without a witness signature, the voters could attest that the ballot was, in fact, theirs and therefore cure the error, just as they could if the voters had forgotten to write down their address.
Members of the state legislature, who are also defendants in a number of the voting lawsuits, cried foul. This, they said, was a loophole to get around the witness requirement.
So far, Osteen seems to agree.
When the rule change was filed in the court case, Osteen put out an order that said he did not approve of the change and that it “was not consistent with the court’s order.” The state board claimed it had authority to make the change because of Osteen’s order.
What happens next?
Now, Osteen will decide how to go forward.
The state legislative defendants want him to roll back all the rule changes that were made after ballots were sent out on Sept. 4.
The plaintiffs in the case want Osteen to keep some of the changes, even if he disallows voters to cure ballot envelopes missing a witness signature. Throwing out all the changes and guidances would be throwing the baby out with the bathwater, according to Allison Riggs, who leads the voting rights program at the Southern Coalition for Social Justice, and is the lawyer for the plaintiffs.
The state board wants to keep the rules as they are now.
Osteen said he will issue his ruling by Wednesday, Oct. 14, at the latest. He will also decide the fate of two other similar lawsuits he is presiding over on Thursday afternoon, Oct. 8.
In those cases, state Republicans and President Donald Trump’s reelection campaign are suing the state board to block a legal settlement in state court. The settlement violates the federal constitution, the plaintiffs argue, because they change existing state law, and the state board does not have the authority to do that.
Osteen’s ruling on the three cases will determine how the state processes absentee-by-mail ballots that come in with some sort of error or missing information on the return envelopes. If current patterns continue, this could affect under 3% of the total vote-by-mail ballots cast in the November election, or about 1% of the total votes cast.
Osteen’s rulings could set up a dynamic where federal courts tell the state to do one thing while state courts tell the state to do another, which would prolong the fight over how to actually help voters cast their ballots.
There are 26 days until Election Day. The longer this takes to play out, the less time voters will have to make sure their votes are counted.