Legislation enacted to reverse court ruling on notarizing absentee ballots

  • Notarizing absentee ballots
    Notarizing absentee ballots
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OKLAHOMA CITY – Two days after the Oklahoma Supreme Court struck down a requirement that absentee ballots must be notarized, Republicans in the state House of Representatives voted to reverse that decision. The state Senate followed suit the next day, and the governor signed the measure hours later.

Senate Bill 210 was stripped of its original language and a new measure to reinstate a notarization requirement was brought to the House floor.

After two hours and 45 minutes of persistent questioning from House Democrats and floor debate from both sides of the political aisle, the amended bill passed the House on a largely party-line vote, 74-26, on May 6.

Opposing the measure in the House were all 23 House Democrats plus three Republicans, among them Rep. Daniel Pae of Lawton.

“It’s taken less than 48 hours for the Oklahoma Legislature to attempt to overturn the Supreme Court’s decision,” said House Minority Leader Emily Virgin, D-Norman.

The amended bill was returned to the Senate, where on May 7 it again was subjected to protracted questioning and floor debate before the measure passed overwhelmingly 38-9. The measure was then transmitted to the office of Gov. Kevin Stitt, who signed the bill later that day.

“This restores a long-standing tradition,” extending back for decades, of requiring absentee ballots to be notarized, said Senate President Pro Tempore Greg Treat, R-Oklahoma City, principal author of SB 210. Speaker Charles McCall, R-Atoka, authored the measure in the House of Representatives.

LWV, 2 INDIVIDUALS CHALLENGE REQUIREMENT

The state Supreme Court ruled 6-3 on May 4 that an affidavit “signed under penalty of perjury” was sufficient to obtain an absentee ballot.

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.

Ms. Patrick was identified in the lawsuit 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.”

Ms. 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.”

“In 2002 the Oklahoma Legislature enacted an alternative method for the making of a declaration, verification, certificate, or affidavit,” Chief Justice Noma Gurich wrote for the majority. “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 said the court’s 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.”

BEFORE INK WAS DRY ON COURT RULING...

Republicans in the state House of Representatives swiftly countered with SB 210 on May 6.

In its decision the Supreme Court indicated state law governing absentee ballots needs to be clarified, and SB 210 does that, said Rep. Chris Kannady, R-Oklahoma City.

It would make Oklahoma one of three states in the nation to require an absentee ballot to be notarized. State law decrees that notaries are obliged to notarize absentee ballots at no cost, Treat said.

In the event of an emergency such as the coronavirus pandemic, an applicant for an absentee ballot may, “in lieu of having his or her signature notarized,” sign the ballot affidavit and attach a photocopy of some form of identification, such as a voter registration card issued by the election board, a driver’s license or an Oklahoma ID card issued by the state Department of Public Safety, a federal military ID card, a passport, or a document issued by a federally recognized Native American tribe or nation.

(An Oklahoma Class D operator’s license costs $38.50 and is valid for four years; the fee declines for motorists aged 62-64 and is free for drivers 65 and older. A state ID card costs $25.)

Special procedures would be authorized for nursing homes and veterans centers if the residents are in lockdown “due to restrictions related to the COVID-19 pandemic or another localized outbreak of a communicable disease...”

NOTARIZING AFFIDAVITS INTENDED TO DETER FRAUD

Kannady insisted that not requiring an absentee ballot affidavit to be witnessed by a notary public “would invite fraud.” He pointed to Tulsa County as proof.

From April 27 through May 1, the week prior to the Supreme Court ruling, the Tulsa County Election Board received 400 applications for absentee ballots for the June 30 statewide primary election. But the same election board fielded more than three times as many absentee ballot applications, 1,477, on May 4-6, the three days after the court’s decision was announced, Tulsa County Election Board Secretary Gwen Freeman confirmed. “And we’re getting applications every minute,” one of her deputies said.

Rep. Forrest Bennett, D-Oklahoma City, asked Kannady why – in the midst of a global health crisis in which Oklahomans and most other Americans have been advised to “shelter in place,” practice “social distancing” and wear protective face masks – he would assume that an unusual number of requests for absentee ballots is an indication of fraud.

“It may not be, but I don’t want to give them the opportunity,” Kannady replied.

In asserting that voter ID authentication is a necessity, Kannady mentioned the state Attorney General’s race in 2018. In the Republican runoff election, Mike Hunter defeated Gentner Drummons by just 271 votes out of 296,567 ballots that were counted.

Kannady said he doesn’t think voter fraud “happens very often” in Oklahoma, but attributed that to “the procedures we have in place.”

Three cases of absentee ballot fraud are known to have occurred in this state in nearly four decades.

‘WE’RE ADDRESSING WRONG PROBLEM’

Voter identification is critical to ensuring the integrity of elections, said Rep. Ryan Martinez, R-Edmond.

House Democrats maintained that the Supreme Court’s ruling that a voter’s signature on an absentee ballot application under penalty of perjury is ample protection against voter fraud. The maximum penalty for fraudulent voting is five years in prison and a $50,000 fine, said Rep. Andy Fugate, D-Oklahoma City.

Rep. Kelly Albright, D-Midwest City, asked how voters could photocopy a driver’s 

license or other form of identification in order to obtain a notarized absentee ballot “when business are closed and libraries are closed” because of the COVID-19 threat.

Law firms and banks are deemed to be essential businesses “and they have photocopiers,” Kannady said.

“We’re addressing the wrong problem,” said Rep. John Waldron, D-Tulsa. Voting fraud is “very rare.” The electoral process is being corroded by “penetration of electoral equipment and social media manipulation” of the message.

Rep. Scott Fetgatter, R-Okmulgee, pointed to State Question 746, which Oklahoma voters endorsed in November 2010 by a 3-to-1 margin. That constitutional amendment requires a photo ID in order to vote.

Justice Dustin Rowe alluded to SQ 746 in his dissent from the Supreme Court’s 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.”

June 5 is the last day to register to vote in the June 30 primary election, and the deadline to request an absentee ballot for the primary is 5 p.m. June 24.