Federal judge upholds absentee voting law

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  • Absentee voting law
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OKLAHOMA CITY – A federal judge in Tulsa has upheld Oklahoma’s absentee voting law, which was deemed to be onerous by the state Democratic Party and the Democratic Congressional Campaign Committee.

However, Chief Judge John E. Dowdell ruled this month that the challenged provisions “do not violate the Constitution.”

Dowdell concurred with the State Election Board and Secretary Paul Ziriax that “changes to Oklahoma’s absentee ballot laws at this date have the risk of delaying the delivery of absentee ballots and causing significant confusion among voters...”

Out of necessity, absentee ballots, ballot envelopes, and instructions for completing the ballots and mailing them back to the Election Board were printed in July and August, the jurist noted. “[T]o require reprinting or a change in election procedures would risk significant voter confusion, delay of receipt of absentee ballots, and disenfranchising or dissuading voters who may otherwise wish to vote by absentee ballot.”

Concerns about voting during the coronavirus pan- demic, “especially as to elderly and other voters who are at a higher risk for serious outcomes,” are “justified,” Dowdell wrote. However, he continued, the state’s interests in preventing voter fraud and promoting certainty and confidence “are sufficiently weighty to overcome any minor burden imposed upon Oklahoma voters during the pandemic.”

NEW STATE LAW ‘BURDENSOME,’ DEMS CONTEND

The DCCC and the state Democratic Party filed suit in Tulsa’s Northern District federal court on May 18 against Ziriax and the three-member State Election Board.

The defendants were sued to prevent enforcement of “several burdensome restrictions and procedures that threaten to deny countless of the state’s lawful, eligible voters” the constitutional right to vote and to have their ballots counted, the Democrats alleged.

Democrats wanted the court to:

• forbid the Election Board from rejecting ballots that are postmarked by Election Day but arrive at their respective county election board up to seven days later.

• require the Election Board to provide prepaid postage on all absentee ballots.

• prohibit the Election Board from rejecting absentee ballots that are not in compliance with a new “notarization/witness/photo ID” requirement imposed by Senate Bill 1779 – which passed both the House of Representatives and the Senate and was signed by Governor Stitt on May 21 – “so long as the voter has signed his or her ballot affidavit” under penalty of perjury.

During the statewide primary on June 30, nearly 420 absentee ballots were returned to the senders as undelivered and 4,433 were rejected for reasons such as affidavit incomplete, not attested, not returned, not witnessed or not notarized.

The notarization issue became moot for the November 3 general election when Gov. Kevin Stitt on August 28 renewed his executive order that declared a state of emergency in Oklahoma because of the coronavirus pandemic. The order, which will remain in effect for at least 30 days, triggered a provision in state law that provides an alternative for absentee voter verification. That provision applies if a state of emergency is in effect 45 days prior to an election.

The alternate option is submission of a photocopy of an identification card in lieu of ballot affidavit notarization. Valid forms of ID include a driver’s license or voter identification card, or a tribal or military ID.

7 P.M. ELECTION DAY IS DEADLINE FOR ABSENTEE BALLOTS

Ziriax testified that the number of votes cast by absentee ballot is expected to increase in the November 3 general election because “turnout is always higher at a general election and especially in a presidential general election.”

Additionally, the Democrats argued that because of the heightened risk of in-person voting during the current health crisis, voting absentee by mail is a safer option.

Voters can request an absentee ballot up to 5 p.m. on the Tuesday preceding an election. The deadline to request an absentee ballot for the November 3 general election in Oklahoma is 5 p.m. on Oct. 27.

Oklahoma rejects absentee ballots if they are received by the secretary of a county election board after 7 p.m. on Election Day – regardless of when the voter received the ballot from election officials, regardless of when the voter actually mailed it back, or regardless of when the ballot was post marked, Democrats noted.

In his opinion, Judge Dowdell wrote that two dozen other states also require absentee or mail-in ballots to be received by or before Election Day. Those states include Arkansas, Colorado, Missouri, Nebraska and New Mexico.

The Oklahoma State Election Board reported that 2,385 mail-in ballots were received after the June 30 statewide primary, too late to be counted. Approximately 85% of those were delivered within three days after the election, records show.

DEADLINE JUSTIFIED, ELECTION BOARD SAYS AND JUDGE CONCURS

The defendants asserted that state interests justify rejection of ballots received after Election Day. Those include “interest in orderly elections and promoting voter confidence in the election.” In addition, the deadline for the general election in November is “necessary specifically” because the terms for all 101 state Representatives and half of the 48 members of the state Senate expire on the 15th day after the November election every two years.

State law requires county election boards to certify election results by the Friday after Tuesday election day, and the State Election Board must certify the statewide results by the Tuesday following election day, Ziriax noted.

If the Democrats’ request to delay the election day receipt of absentee ballots by seven days were granted, “the Court would also have to delay the county and state certification deadlines by a week,” Dowdell pointed out. Such delays “would leave only 24 hours before the new members of the state House of Representatives are seated,” the judge wrote, and some of those legislators have a four- to five-hour drive to the State Capitol in Oklahoma City.

An absentee voter “is responsible for acting with sufficient time to ensure timely delivery” of his/her ballot, “just as a voter intending to vote in-person must take appropriate precautions by heading to the polls with a sufficient cushion of time to account for traffic, weather, or other conditions that might otherwise interfere with their ability to arrive in time to cast a ballot,” Dowdell asserted.

“Because the State offers voters wishing to vote by absentee ballot options to ensure their votes are timely returned, voters who fail to ensure timely return of their ballots should not blame the law for their inability to vote.”

The remedy sought by the Democrats “would require numerous judicial modifications of Oklahoma legislation, which the Court is disinclined to do because of the disruption to the state’s overall electoral process,” Dowdell wrote.

Since the “burden of the election day receipt deadline is minimal,” and the State can justify the 7 p.m. Election Day deadline, that requirement is not unconstitutional, Dowdell declared.

ID REQUIREMENT DETERS VOTER FRAUD

The State Election Board maintained that the state’s desire to prevent voter fraud justifies the absentee ballot identification requirement.

A 2005 report of the Commission on Federal Election Reform, co-chaired by former President Jimmy Carter and former Secretary of State James A. Baker III, expressed a concern that, “because it takes place outside the regulated environment of local polling locations, voting by mail creates increased logis- tical challenges and the potential for voter fraud...”

Ziriax testified that absentee voter fraud “regrettably still happens in Oklahoma.” He pointed to a 2018 incident in which a man was convicted of voter fraud after he delivered to a notary ballots that had forged signatures from family members, “and convinced the notary to sign them.” Ziriax also mentioned a 2012 case in which a man was convicted of forging voters’ names on absentee ballot affidavits that he personally notarized.

He also mentioned the 1983 case in which the Speaker and the Floor Leader of the Oklahoma House of Representatives were indicted by a federal grand jury for conspiring to obtain, notarizing and forging absentee ballots.

The Democrats suggested that the state’s concerns about voter fraud are “dubious,” noting that Ziriax acknowledged saying voting fraud is “exceptionally rare in Oklahoma and not a major issue here.”

However, Ziriax also testified he believes that voter fraud in Oklahoma is rare because of “the protections that are provided under Oklahoma law for in-person voting ... including the verification of the ID of a voter...” and verification of ballots by obtaining a notary’s signature.

“[T]he state’s interest in preventing voter fraud is sufficiently weighty to justify the alternative requirements for a voter to verify” his/her identity on absentee ballots via submission of a photocopy of an identification card in lieu of ballot affidavit notarization, Dowdell ruled.

ABSENTEE BALLOT REQUIREMENTS ARE A ‘ MINOR BURDEN’

The state’s interests, as well as the identification laws themselves, are “reasonable, nondiscriminatory and legitimate,” the judge declared.

For example, the defendants argued that the cost of obtaining postage for mailing a completed absentee ballot to a county election board is “minimal,” Dowdell wrote. Furthermore, state law – Senate Bill 1779 – “expressly permits the gifting of stamps and envelopes for purposes of assisting voters with re- turning absentee ballots.”

The U.S. Supreme Court itself has been reluctant to “interfere with state election requirements and officials during the pandemic,” Dowdell wrote. Accordingly, he, too, was reluctant to “upend” Oklahoma’s absentee ballot and election system “where the evidence does not establish more than a minor burden on voters and the requested changes would potentially impact the integrity of the election.”