Election 2020: Split decision puts witness requirement back in

Election Day is Nov. 3. Unofficial results, however, may not be known for more than a week, including right up to Bladen County’s day to canvass.

U.S. District Court Judge William Osteen on Wednesday issued a split ruling on election law in a case between arguing Democrats and Republicans. Absentee ballots, controversial in the 2018 election that involved Bladen County and North Carolina’s 9th Congressional District, must have a witness signature.

That ruling for the GOP was balanced by allowing Democrats’ wishes for absentee ballots postmarked Nov. 3 or earlier to still be accepted up to nine days past Election Day rather than three. Bladen County’s canvass is Nov. 13. Osteen also allowed absentee ballots to be returned to anonymous, unstaffed drop boxes.

Republican state Senate leader Phil Berger was happy with one aspect, and didn’t rule out appealing the other decisions all the way to the U.S. Supreme Court if necessary.

“Judge Osteen concluded in no uncertain terms that the N.C. State Board of Elections violated the U.S. Constitution and North Carolina law by changing election laws after ballots had already been cast,” he said in a statement.

The state Board of Elections, with a three-member Democratic majority and Gov. Roy Cooper appointment Karen Brinson Bell as staff director, changed election rules after ballots were cast. Bell was granted authority by the board to negotiate a lawsuit settlement announced on Sept. 22 that, in part, instructed county boards to work with voters to fix — or cure — anything that was amiss when absentee ballots were returned.

The state legislature had already passed House Bill 1169, which was signed by Cooper on June 12, that changed the witness signature requirement from two to one. Bell’s settlement 18 days after absentee ballots had been mailed out allowed voters to simply confirm they cast the ballot, even if there was no witness signature on the envelope as required by law.

The board defended the move in part using an Osteen order from Aug. 4. The judge bristled at that last week, and Judge Joseph Dever moved two election-related cases before him to Osteen’s oversight last week in an attempt to keep rulings consistent.

“This court upheld the witness requirement — to claim a cure which eliminates that witness requirement is ‘consistent with’ this court’s order is a gross mischaracterization,” Osteen wrote in his decision Wednesday.

He was very clear in his admonishment of the actions that led to controversy more than a month before Election Day.

“In all candor, this court cannot conceive of a more problematic conflict with the provisions of Chapter 163 [Elections and Election Laws] of the North Carolina General Statutes than the procedures implemented by the Revised 2020-19 memo and the Consent Order,” he wrote. “This court believes this is in clear violation of SBE’s powers, even its emergency powers.”

The suit is North Carolina Alliance of Retired Americans v. North Carolina State Board of Elections. Republicans believe Democrats running for office — Cooper and Attorney General Josh Stein — are colluding with the North Carolina Alliance of Retired Americans, which is backed by Democrats, to weaken security laws in a state chiefly among the top half-dozen in the election’s presidential and U.S. Senate battleground.

With regard to the two cases accepted from Dever’s courtroom, Osteen wrote that the state board’s action could not survive a legal challenge.

According to the state Board of Elections, nearly 506,000 absentee ballots have been returned and another 13,000 have been set aside with deficiencies. Late Wednesday night, the state board had not said how it would proceed.

Bladen County’s Board of Elections began the process of weekly meetings to approve absentee ballots on Sept. 29. It operated with the set of rules that Bell got in the settlement a week earlier, and their last two meetings since have been by different rules — absentee ballots with issues are simply being set aside and voters not being alerted to issues.