OKLAHOMA CITY – Citizens desiring to vote absentee in the June primary might have been discouraged from participating in the election if the Oklahoma Supreme Court had not recently struck down a State Election Board mandate governing absentee ballots.
By a 6-3 vote announced May 4, the Court nullified the Election Board’s requirement that an absentee ballot must be certified by a notary public.
The League of Women Voters and two individuals, Angela Zea Patrick and Peggy Jeanne Winton, challenged the requirement as an impediment to ballot access during upcoming elections because of the coronavirus pandemic. Protective safety measures enacted statewide have included “shelter in place” and “social distancing”.
Legislature Enacted ‘Alternative Method’
The Supreme Court opinion was written by Chief Justice Noma Gurich, with the concurrence of Vice Chief Justice Richard Darby and Justices Yvonne Kauger, James Edmondson, Tom Colbert and Doug Combs.
“In 2002 the Oklahoma Legislature enacted an alternative method for the making of a declaration, verification, certificate, or affidavit,” Gurich wrote. “A statement signed, dated, and declared made under the penalty of perjury” as provided for in Title 12, Section 426 of the State Statutes, “carries the force and effect of an affidavit…”
State Election Board Secretary Paul Ziriax was directed to “recognize affidavits made under the provisions of” the 2002 law “in the context of absentee voting,” Gurich wrote.
Additionally, the Election Board was barred from “issuing ballot forms, instructions, and materials” that suggest notarization and/or a notarized affidavit form “is the only means through which the requisite affidavit for absentee voting may be accomplished.”
“Although I respect the decision of the court and will follow the ruling to the utmost of my ability,” Ziriax said, “this decision effectively leaves Oklahoma without a means to verify that the person who signs an absentee ballot affidavit is the same person to whom the ballot was issued.”
3 Justices Dissented
Justices James Winchester and John Kane IV dissented. In their joint opinion they stated that Oklahoma statutes “do not provide the relief proposed by the Petitioners, so the issues stand presented to the wrong branch of government.” The state Legislature is the branch of government that makes the laws.
Justice Dustin Rowe also dissented from the majority opinion.
“While the people have made it clear by constitutional command that they do not want the civil or military power of the state to interfere to prevent the free exercise of the right of suffrage,” he wrote, “the people have made it equally clear by a coordinate constitutional command that they want the right of suffrage protected from fraud.
“Considering the history of voter fraud, the specifics of our absentee voter process, and recent legislative history,” Rowe continued, “I agree with Ziriax that it would be absurd to now open the gates and provide for no verification for absentee ballots but still require in-person voters to provide a valid I.D.”
2 Plaintiffs In High-Risk Categories
In the lawsuit petition filed April 23, Patrick was identified as an Oklahoma County resident who is a nurse practitioner in a metro-area emergency department “and thus at higher risk of exposure to the novel coronavirus.”
Winton identified herself as a Tulsa County voter who is 68 and a cancer survivor who also suffers from asthma, “putting her in the highest risk category for COVID-19.”
Both women said they plan to vote by absentee ballot in the upcoming elections to avoid exposing themselves or others by “unnecessarily leaving” their homes and “interacting with a notary public or other officer,” they would prefer to submit their ballots with a personally signed statement “made under penalty of perjury…”
Referee Heard Oral Arguments
A court-appointed referee listened to several hours of oral arguments in the case on April 29.
Assistant Attorney General Thomas Schneider pointed to State Question 746, the Oklahoma Voter I.D. Act in his argument before the court.
Oklahoma voters approved SQ 746 in 2010 and the state Supreme Court subsequently upheld the Act, Justice Rowe pointed out.
The Voter I.D. Act requires voters to provide some form of identification, including but not limited to a driver’s license or a voter ID card issued by the state’s election board.
Schneider noted that people voting in-person absentee at the county election board are required to show identification.
The plaintiffs’ attorney, Melanie Rughani with Crowe Dunlevy in Oklahoma City, said that 47 other states do not have a notary requirement. She said her clients are not asking for a change in the law, only to enforce the 2002 law that allows sworn statements in lieu of notarization.
“This is a victory for every Oklahoma voter who wants to exercise the right to vote but not risk their life to do so,” Ms. Winton wrote in a press release after the decision.
“I joined the lawsuit because I believed this was a simple change that will save lives. Today the court’s ruling will allow Oklahomans with compromised immune systems like me to vote safely without having to leave our homes for an unnecessary notarization that does nothing to protect the integrity of the vote.”
Notary Requirement ‘Unnecessary Hurdle’
The American Civil Liberties Union of Oklahoma applauded the ruling as a “clear victory” for Oklahoma voters. The notary requirement is “unnecessary and burdensome” and [made] it harder for Oklahomans to participate in the democratic process,” said Ryan Kiesel, executive director of the Oklahoma ACLU.
The notary requirement has been “an unnecessary hurdle for all absentee voters” and “disproportionately hurt Oklahomans from marginalized communities, as well as those with compromised immune systems and senior citizens,” Kiesel said.
“The notary requirement is troubling in any election, but the current pandemic put it in stark relief as voters are being asked to choose between the recommendations of public health experts and exercising their right to vote.”
Thousands of Ballots Cast by Absentee Mail
If the Supreme Court had allowed the notarization requirement to stand, it could have proven problematic in view of the current health crisis.
In the 2016 statewide primary, 2,258 absentee mail ballots were cast in the Republican contest for the U.S. Representative District 1 seat. A combined total of 2,220 absentee mail votes were cast in the Democrat and Republican races for the 2nd Congressional District post, and 2,081 absentee mail votes were counted in the GOP’s 3rdDistrict U.S. Representative race. A combined total of 3,035 absentee mail ballots were cast in the Democrat and Republican contests for 4th District U.S. Representative, and a total of 3,954 absentee mail ballots were counted in the Democrat and Republican races for the 5th District congressional office.
In state legislative races that same year, 449 absentee mail ballots were cast in the Democratic state Senate District 11 contest, and 396 absentee mail ballots were cast in the Democratic state Representative District 73 contest. A combined 308 absentee mail ballots were counted in the Republican and Democratic Senate District 33 races while a total of 296 absentee mail ballots were cast in the Democratic and Republican races in Senate District 37. Republicans cast 347 absentee mail ballots in the Senate District 45 race, and 263 absentee mail ballots were cast in the Democratic contest for the Senate District 47 seat.