Democracy & Elections States & Localities

Mail Voting Litigation in 2020, Part IV: Verifying Mail Ballots

Zahavah Levine, Thea Raymond-Sidel
Thursday, October 29, 2020, 1:38 PM

Voting rights advocates have filed a flood of litigation regarding states’ voter verification practices and rules relating to mail ballot defects. 

A U.S. Postal Service mailbox in Michigan. (Dell Deaton,; CC BY-NC-ND 2.0,

Published by The Lawfare Institute
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This post is the fourth of a five-part series on litigation about mail voting during the 2020 general election. This series is part of Lawfare's collaboration with the Stanford-MIT Healthy Elections Project.

The first three parts of this series reviewed litigation over rules for applying to vote by mail, eligibility requirements for vote by mail, the date by which mail ballots must be received, how mail-in ballots must be submitted and who can help a voter in the process. This part examines litigation over how election officials verify that the person who casts a mail ballot is the intended voter and when officials may reject ballots that do not meet the verification requirements.

Every state has a process for verifying the identity of the voter who casts an absentee ballot. Election officials use these processes to ensure that the person who submitted the ballot is, in fact, the duly registered voter who requested the ballot. The processes are designed to protect against voter fraud in mail voting, as there is no poll worker to perform an in-person verification of the voter’s identity. While there is no evidence of widespread fraud in mail voting, there have been isolated cases.

Almost all states require the voter to sign the return ballot envelope to affirm that the person casting the vote is the intended voter and that he or she has not already voted in the election. Most states additionally verify the identity of mail voters in one of two ways: by comparing the voter’s signature on the ballot return envelope to the voter’s signature on file with the election office to see if they match, or by having a witness or a notary public sign the ballot or return envelope to attest that the ballot was completed by the intended voter. Other states, such as Alabama and Arkansas, also require that voters return a photocopy of identification with their absentee or mail ballot or ask voters to write their driver’s license number or the last four digits of their Social Security number on their return envelope.

In some states, when election officials determine that a ballot fails to meet the verification requirements, they simply do not count the vote, and the voter may never know. In many states that perform signature verification, however, largely in response to litigation, election officials now notify voters of any “defects” in their ballots and provide them an opportunity to fix or “cure” the problem.

With the massive increase in the number of absentee ballots already being cast, and the high number of first-time mail voters, there is likely to be an increase in the number of mail ballots flagged and rejected for defects, including missing signatures and signatures that election officials determine do not match those on file. And because of the coronavirus pandemic, witness requirements have raised health concerns for some voters. As a result, signature verification practices and witness requirements have come under renewed scrutiny ahead of the November election.

Voting rights advocates have filed a flood of litigation regarding states’ voter verification practices and rules relating to mail ballot “defects.” In this post, we survey the litigation challenging states’ signature verification practices and witness or notary requirements. The success of such litigation has been mixed and has depended on a number of factors. For federal law claims, outcomes tend to turn on the court’s views of whether voting by mail is a liberty interest, the deprivation of which requires procedural due process; how severe a burden the ballot requirement poses to voters; and the strength of the state’s argument that the ballot requirement is appropriate or necessary to deter a legitimate threat of voter fraud.

Challenges to Signature Verification Requirements

At least 31 states require election officials to compare the signature on the ballot’s return envelope with the signature of the intended voter on file to see if they match. The Healthy Elections Project has summarized these processes in some detail in a recent report. In the 2018 midterm elections, about 64,000 ballots (about 0.2 percent of all mail ballots cast) were rejected because election officials determined the signatures on the ballots did not match the signatures on file. Almost as many ballots were rejected because voters failed to sign their ballot envelopes. Because turnout will be high this year, and so many voters will be using the mail-in option, many of them for the first time, the number of ballots rejected for signature mismatch and missing signatures will likely be higher.

The signature requirements for absentee ballots have proved a frequent subject of litigation during the pandemic. Plaintiffs have generally brought two kinds of challenges. First, plaintiffs challenge the process of signature verification itself and request that it not be used as a basis to reject ballots. Second, and often in the alternative, plaintiffs request the state to adopt so-called “notice and cure” procedures that require local election officials to contact voters to inform them of problems with their signatures and provide them with an opportunity and a process to fix the problems so that their ballots can be counted.

Signature Matching Lacks Uniform Standards

Lawsuits challenging the verification process itself typically allege that the state lacks uniform standards or criteria for matching ballot signatures to signatures on record. They argue that officials charged with comparing the signatures lack the expertise and training necessary to perform such comparisons and are prone to errors. They claim that these weaknesses in the process violate the U.S. Constitution’s guarantee of equal protection, as the votes of different voters are subject to disparate treatment.

This election season, several such cases have resulted in courts granting consent decrees or the states agreeing to change their policies. In Michigan, for example, the progressive advocacy organization Priorities USA sued the state, alleging that Michigan did not have uniform standards for reviewing signatures. The complaint said this lack of uniform standards allowed election officials throughout the state to employ arbitrary and diverging criteria and that many of these officials did not have sufficient training and skills to compare signatures. The Michigan secretary of state then released new signature verification guidance, and plaintiffs dropped the suit. The new guidance did not eliminate the practice of signature verification altogether, but it implemented a statewide standard designed to reduce erroneous rejections stating that:

Signature review begins with the presumption that the voter’s … envelope signature is his or her genuine signature. 1. If there are any redeeming qualities in the … return envelope signature as compared to the signature on file, treat the signature as valid. … 2. A voter’s signature should be considered questionable only if it differs in multiple, significant and obvious respects from the signature on file. Slight dissimilarities should be resolved in favor of the voter whenever possible.

The guidance also strengthened the mandate that election officials notify voters of rejected ballots and provide cure procedures.

Similarly, in Pennsylvania, the League of Women Voters challenged the state’s practice of signature matching in federal court, alleging the state failed to require any handwriting training or provide any standards or guidelines to aid election officials in their signature analysis. Plaintiffs alleged violation of both equal protection and procedural due process, as well as infringement of the fundamental right to vote. Plaintiffs dropped their lawsuit after Secretary of State Kathy Boockvar issued guidance on Sept. 11, prohibiting all of the state’s county boards of elections from rejecting returned absentee or mail ballots “based solely on signature analysis.”

The Pennsylvania case did not end there, however. The Trump campaign challenged the secretary of state’s new guidance in federal court. The court dismissed the lawsuit on Oct. 10, holding that Pennsylvania’s “Election Code does not impose a signature-comparison requirement for mail-in and absentee ballots” and that the lack of a signature matching requirement does not violate the Due Process or Equal Protection clauses of the U.S. Constitution. Finally, on Oct. 23, in response to a petition filed by the Boockvar seeking declaratory relief, the Pennsylvania Supreme Court held unanimously that “county boards of elections are prohibited from rejecting absentee or mail-in ballots based on signature comparison conducted by county election officials or employees, or as the result of third-party challenges based on signature analysis and comparisons.” The court explained that the state’s election code permits use of signature matching to verify in-person voters and provisional ballots, but not for absentee or mail-in ballots. The court clarified, however, that absentee ballots may be rejected for voters’ failure to sign and date the “declaration envelope” altogether.

In Maine, voter advocacy groups filed a state court case that alleged that the state failed to provide any training on handwriting analysis or signature comparison and simply instructed election officials to determine whether the signatures “appear to have been made by the same person.” Plaintiffs argued that Maine’s guidance “forces its election officials to make subjective, arbitrary and standardless determinations as to whether to count a voter’s ballot” and that such judgments were error prone. Moreover, the lawsuit argued, the state undertook signature matching only for some absentee voters—those who request an absentee ballot by mail, in person or by fax, but not those who request an absentee ballot online or over the telephone, where no signature was required as part of the request process. In response to the lawsuit, which alleged a host of state and U.S. constitutional violations, Maine’s secretary of state instructed the state’s election officials to implement robust notice and cure procedures.

Lack of Notice and Cure Violates Due Process and Burdens the Fundamental Right to Vote

Most signature verification lawsuits challenge the failure of election officials to notify voters and afford them an opportunity to cure signature defects before their ballots are tossed. Short of asking for the elimination of signature matching altogether, these claims seek injunctions that prohibit election officials from discarding any mail ballots for signature mismatch without first notifying voters and giving them an opportunity to fix the error.

Lawsuits seeking to require states to adopt notice and cure argue that the lack of notice and cure violates several legal provisions. The two most common claims are that rejecting ballots without notice and cure creates a severe burden on the fundamental right to vote and fails the Anderson-Burdick test, in violation of the First and Fourteenth Amendments (see lawsuits in Kentucky, Arizona, Maine, North Dakota and New Jersey), and deprives voters of their liberty interest in voting without procedural due process, in violation of the Fourteenth Amendment (see lawsuits in Louisiana, Maine, North Dakota and New Jersey). Some lawsuits have also alleged various state statutory and constitutional violations. A lawsuit in North Carolina alleged violation of the state constitution’s Free Elections Clause and fundamental right to vote protections. And a lawsuit in Maine argued violations of the state constitution’s guarantees of due process and equal protection, as well as state laws governing qualifications of electors.

Many states have voluntarily put notice and cure processes in place following such litigation. In New York, after plaintiffs filed a lawsuit in federal court, the parties agreed to a settlement agreement on Sept. 17, specifying how voters will be contacted if their ballots are rejected and how they can fix the problem. In Louisiana, after plaintiffs sought a cure process in May, the legislature passed an emergency rule providing voters the opportunity to cure ballot deficiencies, and plaintiffs withdrew cure-related claims. Similarly, after being sued, Mississippi implemented new rules providing for notice and cure.

Courts have been relatively receptive to these challenges, particularly those alleging violations of procedural due process. That may explain why more and more states now require voters to be notified and afforded an opportunity to cure signature defects on their ballots. At least nine states—Arizona, Georgia, Indiana, Maine, North Dakota, Michigan, New Jersey, New York and North Carolina—have created or enhanced their notice and cure policies in 2020 in response to lawsuits, though some of this litigation is still winding its way through the courts.

Courts reason that voters’ interest in the right to vote is so fundamental, and the notice requirements so minimal, that a process is required before depriving voters of their votes. This rationale is especially compelling in cases where elections are held entirely by mail, such as they were for North Dakota’s June primary. A federal district court in North Dakota issued a preliminary injunction prohibiting the state from rejecting any ballot on the basis of signature mismatch “absent adequate notice and cure procedures.” The court found that “[b]ecause there is no possibility of a meaningful post-deprivation process when a voter’s ballot is rejected (there is no way to vote after an election is over, after all), sufficient pre-deprivation process is the constitutional imperative.” In August, the court issued a permanent injunction.

Similarly, in a case filed prior to, but resolved during, the pandemic, a federal district court in Indiana granted a permanent injunction finding that the state’s rejection of ballots for mismatched signatures with no notice and cure violated two constitutional provisions. The court found, under the Anderson-Burdick balancing test, that Indiana’s policy violated the Equal Protection Clause because, although only a narrow class of voters was affected, the magnitude of the burden on those voters was substantial. The court also ruled that the policy violated the Due Process Clause of the Fourteenth Amendment because, while the right to vote absentee is not a fundamental right, “having extended the privilege of mail-in absentee voting to certain voters, the State ‘must afford appropriate due process protections to the use of [mail-in] absentee ballots.’”

The case of League of Women Voters of New Jersey v. Way serves as another good example of the claims brought in these challenges and how they are resolved. Plaintiffs in that federal lawsuit challenged New Jersey’s signature verification process, which required the county clerk to reject a ballot if they determined the signature on the envelope did not match one on file. Officials doing the comparisons received no training. Plaintiffs sought notice and an opportunity for voters to cure, arguing that the current procedure violated the Due Process and Equal Protection clauses, as well as the First and Fourteenth Amendments.

For their due process claim, plaintiffs claimed that voters faced a high risk of being erroneously deprived of their right to vote even though implementation of procedures that would mitigate that risk would impose only a minimal burden on the state. For their equal protection claim, plaintiffs argued that the absence of statewide standards or training leads to arbitrary differences in the way votes are counted in different locations and that no state interest is furthered by the current process. Finally, for the Anderson-Burdick claim, plaintiffs argued that the current process imposed a severe burden on the right to vote since ballots could be rejected entirely, that this burden was exacerbated by increased reliance on mail voting during the pandemic, and that no sufficiently weighty interest could be offered by the state to justify this burden. The court granted plaintiffs’ motion for a preliminary injunction for the July 7 primary only, after stipulation agreement between the parties. Under the order, the secretary of state was required to direct those responsible for verifying ballots to issue cure letters to voters whose ballots were rejected, explaining how they could verify their identities and have their ballots counted. The defendant also agreed to conduct a public awareness campaign to inform voters about the signature requirements and the new cure process and to issue signature analysis guidance to the signature evaluators.

Timeline to Cure

One permutation of lawsuits seeking the right of voters to notice and cure focuses on the timeline to cure errors. Most states with notice and cure procedures give voters until some specified number of days after Election Day to cure the mistake. This varies from just two days after Election Day in some states to up to 14 days after Election Day or a couple of days before the state’s certification of its vote in others. But some states that allow cure require that any correction be made by the close of polls on Election Day. Election Day cure deadlines mean some voters, particularly those who submit their ballots within a few days of Election Day, are unlikely to receive notice of a defect in time to cure it. So plaintiffs in some states that already provide a notice and cure procedure filed suits this year, seeking to extend the amount of time a voter has to cure a ballot.

One such example is Arizona. While the state already had a notice and cure procedure in place, plaintiffs sought an extension of the deadline for a voter to cure a ballot that was returned unsigned. In Arizona Democratic Party v. Hobbs, a federal district court issued a permanent injunction that gives voters who failed to sign their ballots five business days after Election Day to fix the missing signatures, the same amount of time voters in the state already had to fix mismatched signatures. Before the lawsuit, voters had until only Election Day to cure missing signatures. The court found that the Election Day cure deadline, in these circumstances, failed the Anderson-Burdick test even under “the most deferential level of scrutiny” and also constituted a procedural due process violation under the Mathews test.

But the state appealed the decision to the U.S. Court of Appeals for the Ninth Circuit, which, on Oct. 6, granted the state’s request to put the district court’s order on hold while the state’s appeal is litigated. The court concluded that the requirement that voters supply a missing signature by Election Day imposes only a “minimal” burden, and that “the public interest is well served by preserving Arizona’s existing election laws, rather than by sending the State scrambling to implement and to administer a new procedure for curing unsigned ballots at the eleventh hour.” The court noted that the Supreme Court has repeatedly admonished lower federal courts not to change the rules of an election in the run-up to that election.

Some Courts Uphold Lack of Notice and Cure

While claims seeking a notice and cure procedure for signature defects have been among the most successful mail voting claims brought by voting rights advocates, they have not succeeded in all states. Courts in Ohio and Texas, for example, have upheld the policy of tossing ballots where election officials determine the signature on the ballot does not match that on file, without any requirement of notifying voters or providing an opportunity to cure errors.

In Richardson v. Texas Secretary of State Hughs, a federal district court in Texas ordered the state to either implement notice and cure procedures or refrain from comparing signatures altogether. In a 103-page order, the court explained that, because “Texas has created a mail-in ballot regime ... the State must provide those voters with constitutionally-sufficient due process protections before rejecting their ballots.” The court held that the state’s lack of any notice and cure process violated procedural due process. On appeal however, the U.S. Court of Appeals for the Fifth Circuit stayed the injunction on Oct. 19, stating that “Texas’s strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state’s voting procedures place on the right to vote.” Deviating from other courts, the court explained that the state is likely to succeed on its argument that the right to vote does not implicate any state-created liberty interest under the Due Process Clause. So, for November, Texas can reject mail ballots for signatures they determine do not match, without giving voters a chance to fix errors. Under state law, voters must be notified within 10 days after the election that their ballots were rejected, but there is no ability to challenge the rejection. The unanimous three-judge decision bucks the overall trend toward requiring notice and cure under procedural due process.

Similarly, a federal district court in Ohio denied plaintiffs’ motion for a preliminary injunction against the state’s policy of rejecting ballots without giving voters adequate time to cure any ballot signature deficiencies. Applying the Anderson-Burdick test, the court reasoned that the state’s interest in preventing fraud outweighs the moderate burden on the right to vote.

In sum, lawsuits seeking a notice and cure procedure for signature defects have been among the most successful mail voting claims brought by voting rights advocates, winning rulings on the merits and favorable settlements, consent decrees, and legislation. But plaintiffs have not won all cases. When it comes to rejecting a ballot for signature defects, courts have not agreed on the severity of that burden on voters’ right to vote and the weight of the state interest served by not having a notice and cure procedure in place. And notably, there is emerging disagreement within the circuit courts about whether absentee voting constitutes a liberty interest subject to procedural due process protections under the Mathews test.

Witness and Notary Requirements

Before the coronavirus pandemic, 12 states required either a witness or a notary public to sign the back of the ballot or return envelope to affirm the voter’s identity: the battleground states of North Carolina and Wisconsin, as well as Alabama, Alaska, Louisiana, Minnesota, Mississippi, Missouri, Oklahoma, Rhode Island, South Carolina and Virginia.

The specifics of these requirements vary from state to state, but most require the ballot to be signed by a single witness or a notary. Alabama requires two witnesses or a notary. Missouri requires notarization but exempts from its notary requirement voters who identify themselves as having an “incapacity or confinement due to illness or disability.” Minnesota requires a witness or a notary but stipulates that the witness must be a registered voter—a requirement that is difficult for a voter who is living temporarily in another state. A few states took legislative action to relax these requirements during the pandemic. North Carolina, for example, reduced its requirement from two witness signatures to one for the 2020 election.

Witness requirements can be particularly confusing to voters, as they often include multiple components, requiring the name, signature, and address of the witness, as well as the date of the witness signature, all on specific locations on the back of the return envelope (or the separate “secrecy sleeve” envelope that goes inside the external return envelope) or on a separate affidavit document. In North Carolina, in the 2016 general election, 2,700 absentee ballots, or 55 percent of all rejected absentee ballots, were rejected due to witness errors on the ballot.

Recent lawsuits have challenged witness or notary requirements in every state that has them, most recently Alaska. Plaintiffs have generally asked courts to either suspend the witness and/or notary requirement during the pandemic or at least require a notice and cure procedure to allow voters the opportunity to fix witness or notary-related ballot mistakes.

Plaintiffs have brought claims under several provisions of federal law. The most common claim is that these requirements place an unconstitutional burden on plaintiffs’ fundamental right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution. For these claims (including lawsuits in Alabama, Louisiana, Minnesota, Kentucky, Oklahoma and South Carolina), plaintiffs argue that the witness requirements as applied during the pandemic fail the Anderson-Burdick test because they leave voters, particularly immuno-compromised voters, with an untenable choice between protecting their health or exercising their right to vote. Plaintiffs also argue that the requirements have a disproportionately negative impact on African Americans, in violation of Section 2 of the Voting Rights Act (see lawsuits in Louisiana, South Carolina and Virginia) and the Equal Protection Clause of the U.S. Constitution (see lawsuits in South Carolina and Alabama). They argue that the requirements constitute an impermissible “test or device” in violation of Sections 3(b) and 201 of the Voting Right Act (VRA) (see lawsuits in Alabama and South Carolina). And they say the requirements violate Title II of the Americans with Disabilities Act (ADA), as applied to people with disabilities fearing exposure to the coronavirus (see lawsuit in Alabama).

Plaintiffs have also brought claims challenging witness or notary requirements under various state constitutional and statutory grounds, including under the Minnesota Constitution, the Missouri Constitution, the North Carolina Constitution and Oklahoma state law.

Results of these challenges have varied significantly.

Plaintiffs prevailed in Alaska under state constitutional law. On Oct. 12, the Alaska Supreme Court upheld a preliminary injunction waiving the state’s witness requirement for 2020, affirming the lower court’s conclusion that plaintiffs are likely to succeed on the merits. Applying a state law balancing test similar to Anderson-Burdick, the court reasoned that the witness requirement, as applied during the pandemic, impermissibly burdens the right to vote in violation of Article 1, Section 5, of the Alaska Constitution. Having to choose between voting and protecting one’s health, the court said, places a severe burden on the right to vote.

Several states have voluntarily relaxed or waived witness or notary requirements in the face of legal challenges. Missouri, for example, relaxed its notary requirements in response to a lawsuit challenging the state’s witness requirement. Under the new rules, voters who choose to vote absentee because they are at a heightened risk of complications from COVID-19, the respiratory disease caused by the novel coronavirus, are not required to fulfill the ordinary notary requirements.

Several states that relaxed or waived their witness or notary requirements in the face of litigation faced challenges over those changes. In Virginia, Minnesota, and Rhode Island, Republican Party groups sought unsuccessfully to stop these changes. A federal court in Virginia approved a consent decree to waive the state’s witness requirement through November despite opposition from the Republican Party of Virginia. In Minnesota, the Trump campaign and the Republican National Committee (RNC) sought to intervene in three different lawsuits in which a state official approved consent decrees relaxing the state’s witness requirement, citing concern about voter fraud and alleged collusion between plaintiffs and the Minnesota secretary of state. A state judge approved a consent decree in two of the suits, while a federal judge denied the consent decree in the third. Though Republican intervenors appealed the consent decree in the state court cases, they subsequently agreed to dismiss their appeals and the consent decrees stand. And in Rhode Island, the RNC’s attempt to intervene in a case and block a consent decree that waived the state’s witness requirement during the pandemic was successful on appeal to the U.S. Court of Appeals for the First Circuit but failed at the U.S. Supreme Court, on the grounds that they lacked standing, as no state official objected to the agreement.

In North Carolina, however, Republican opposition to a settlement relaxing the state witness requirement was more successful. After the North Carolina State Board of Elections settled a suit brought by North Carolina Alliance for Retired Americans and issued new guidance in September to make both witness and signature defects broadly curable via affidavit, the Trump campaign and North Carolina General Assembly leaders objected to the settlement and new guidance. After a dizzying array of interrelated lawsuits and, after early voting had already started and absentee ballots were already being submitted, a federal court issued an injunction on Oct. 14 that split the baby. It requires state officials to reject ballots that lack a witness signature but provide a standard notice and cure process for other ballot errors, such as an incomplete witness address, a witness or voter signature on the wrong line, or a missing voter signature. The decision was appealed (primarily on other issues in the case) but left in place by an en banc ruling of the US Court of Appeals for the Fourth Circuit, and on Oct. 28, a decision of the U.S. Supreme Court.

Other states fiercely defended their absentee ballot witness requirements. In Alabama, for example, in the face of extensive litigation before the state’s July primary runoff, state officials defended the state’s requirement that absentee ballots be submitted with the signature of two witnesses or a notary plus a copy of photo identification. In People First of Alabama v. Merrill, the federal district court entered a preliminary injunction against enforcing the witness requirement in the July 14 runoff but only for voters who provided a written statement outlining a medical condition that placed the voter at a severe risk from contracting COVID-19. The state still appealed the court’s ruling all the way to the U.S. Supreme Court, which stayed the preliminary injunction on July 2, reinstating the witness requirement just 12 days before the state’s primary. The plaintiffs continued to litigate at the district court, however, and won an injunction. But on Oct. 13, the U.S. Court of Appeals for the Eleventh Circuit stayed the district court’s injunction, effectively reinstating the witness requirement. Despite all the litigation, the state’s requirement of two witnesses or a notary, plus a copy of photo identification, remains intact.

In Oklahoma, the state supreme court struck down the notarization requirement for absentee ballots on the grounds that it contravened a state law, but the state legislature amended the state law two days later to reinstate the requirement. The amended law did add an option, to be used only during a state-declared emergency, that would allow voters to send in a photocopy of approved identification as an alternative to the notary requirement. Plaintiffs in a new lawsuit challenged this requirement in federal district court on constitutional grounds, but the court denied the relief. After noting that fraud is an “exceeding rarity in Oklahoma history,” the court nonetheless ruled that the state’s interests in preventing voter fraud are “legitimate and weighty.”

In some cases, plaintiffs successfully challenged witness requirements in district court only to have their cases overturned on appeal. In DNC v. Bostelmann, for example, a federal district court suspended Wisconsin’s witness requirement during the pandemic. But the U.S. Court of Appeals for the Seventh Circuit overturned the decision, concluding that the district court “did not give adequate consideration to the state’s interests” and citing precedent that “[v]oter fraud drives honest citizens out of the democratic process and breeds distrust of our government.”

A notable and high-profile example of the legal whiplash of witness or notary litigation this election season is Andino v. Middleton in South Carolina. In May, a federal district court in South Carolina issued a preliminary injunction suspending the witness requirement for the June primary voting due to coronavirus-related concerns. The litigation continued in two separate lawsuits seeking to extend the injunction to November and, in September, a federal district court enjoined the witness requirement for the November election as well. A panel of the U.S. Court of Appeals for the Fourth Circuit stayed the injunction (restoring the witness requirement), but the Fourth Circuit ruling en banc quickly reversed and reinstated the injunction (suspending the requirement). Finally, on Oct. 5, after absentee voting had already started, the U.S. Supreme Court reversed the Fourth Circuit’s en banc ruling in a two-paragraph order, reinstating the witness requirement for absentee ballots. The court exempted ballots already received by the state and any ballots received within two days of the order (as these ballots were presumably submitted in reliance on the lower court ruling that no witness was required). Justice Brett Kavanaugh, in concurrence, offered two reasons for his decision. First, he explained, the state’s legislature “should not be subject to second guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” And second, he said, under the Purcell principle, the district court should not have made procedural changes so close to the election. (The district court’s injunction was entered Sept. 18.)

While plaintiffs obtained favorable settlements and consent decrees in several states during the pandemic, they have generally not succeeded on the merits of witness or notary cases under federal law. Claims that a witness or notary requirement fails the Anderson-Burdick test (a claim included in nearly all challenges to these requirements) have succeeded to some degree at the district court level but have generally failed on appeal. At least one court has addressed the issue of whether a witness or notary requirement discriminates against individuals with disabilities under the ADA in the context of the pandemic, and it found that it does not. Claims that a witness or notary requirement is a “test or device” under the Voting Rights Act have been ineffective because courts have construed these requirements as necessary to establish the voter’s identity, not as a qualification to vote, in contrast to the tests and devices (such as literary tests) that Section 201 was enacted to prohibit. Plaintiffs did, however, win a ruling that a witness requirement in Alaska violates the state’s constitution as applied during the pandemic.

Zahavah Levine is coordinator of the Healthy Elections Project. She is a former DCI Fellow at Stanford and Google executive, and has a J.D. from UC Berkeley School of Law.
Thea Raymond-Sidel is a law clerk with Kaplan, Hecker & Fink LLP. She is a 2020 graduate of Columbia Law School.

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