North Carolina’s HB 1169, Part 2: The Witness Requirement Saga Reduces to “Chaos”
January 4, 2021
By: Forrest Via
As discussed previously, the North Carolina General Assembly passed HB 1169 this summer to, in part, loosen absentee-ballot requirements in response to COVID-19: The legislation lowered the state’s absentee-ballot witness-signature requirement to one person. For some, this change was not enough—the North Carolina Alliance for Retired Americans filed suit against the State Board of Elections, arguing the presence of any witness requirement violated the state constitution due to the circumstances presented by the pandemic.
New developments have arisen since the Alliance for Retired Americans complaint was filed in state court. The elections board reached a settlement with plaintiffs on September 22. Pursuant to the settlement’s terms, the board issued revised guidance implementing HB 1169 that, in effect, further loosened the legislation’s witness requirement: The guidance allowed voters who cast absentee ballots without fulfilling the witness requirements—including obtaining the necessary signature—to remedy their ballots with a “cure certification” under penalty of perjury.
Republican members of the General Assembly did not take kindly to this outcome. They, and North Carolina voters, filed suit in federal court against the elections board in Moore v. Circosta, as did the Trump campaign and other national Republican organizations in Wise v. North Carolina State Board of Elections. The complaints argued the guidance violated the Elections and Equal Protection clauses of the U.S. Constitution. The gist of the Elections Clause argument was that the settlement and resulting guidance contradicted HB 1169 by essentially invalidating the witness requirement. Accordingly, by negating the provision behind the General Assembly’s back, the elections board usurped the legislature’s constitutional authority to regulate federal elections. Plaintiffs argued the guidance violated the Equal Protection Clause by “arbitrarily changing standards” governing the legality of votes, thus diluting voters’ votes.
In Moore (which also disposed of Wise), the U.S. District Court for the Eastern District of North Carolina addressed only the plaintiffs’ Equal Protection claims and issued a temporary injunction blocking the guidance: The court agreed the guidance “arbitrarily created multiple, disparate regimes” governing the casting of ballots and raised the specter of vote dilution. Therefore, under Reynolds v. Sims and Bush v. Gore, the plaintiffs were likely to succeed on the merits. Additionally, citing Purcell v. Gonzales, the court found the guidance upset the “status quo in the middle of an election”: The guidance instituted the witness-requirement and other election-code changes after the state mailed out absentee ballots on September 4 and voters returned over 150,000 of them by September 22. The court then transferred the consolidated case to Judge William Osteen of the U.S. District Court for the Middle District of North Carolina for final disposition. Osteen presided over an earlier, related case, and all of the lawsuits raised similar issues.
Judge Osteen, who originally affirmed the witness requirement in August, reimplemented the witness requirement on October 14, lambasting the Alliance for Retired Americans settlement as “a flagrant misuse of . . . injunctive relief.” Two days later, a judge of the Wake County Superior Court (a state trial court) seemingly threw a wrench in Osteen’s works by denying a request to stay the Alliance for Retired Americans settlement, letting the guidance stand. Republican state senators issued a statement in response, pleading with the elections board to “stop the chaos.” Adding to the suspense, Judge Osteen blocked the state court ruling via temporary restraining order less than twenty-four hours after the Wake County judge handed it down: As of now, voters casting absentee ballots must apparently obtain one witness’s signature, and, although Osteen loosened the requirement somewhat by allowing signatures written in the wrong place to be fixed, voters can no longer cure ballots that lack signatures via affidavit, at least until this litigation reaches a final outcome. Nevertheless, until that outcome, local elections officials will store absentee ballots without witness signatures, per a memorandum issued by the elections board instructing officials to “take no action.”
In addition to questions these contradictory state and federal rulings raise regarding jurisdictional conflicts between federal and state courts over questions of state law, the electoral stakes are high in these cases: North Carolina is a noted battleground state in the upcoming election, and the ultimate outcome of these lawsuits will determine whether potentially 1% of the total votes cast in the state will be counted. After a short but litigious road, the fate of HB 1169 could alter the outcome of the 2020 election.