States Expect People to Risk Their Health Even When Voting by Mail, Advocates Warn

Voting rights groups want states to stop requiring that voters get a witness or notary to sign their ballots, at least during the COVID-19 pandemic.

Earlier this year, Brenda Williams, a doctor and voting rights advocate in South Carolina, contracted COVID-19. 

Williams says she’s helped 7,200 detainees in the Sumter County jail register to vote and complete absentee ballots over the last decade. But for weeks in April, she suffered from all the typical symptoms of the virus—headache, fever, fatigue—and was unable to go to the jail to help people complete absentee ballots for the June 9 primary. 

She knew that state election officials would throw away some absentee ballots without a witness signature. When she got sick, she worried that without her there to sign as a witness, the detainees, who are disproportionately Black, would have their ballots rejected.

On April 22, Williams and four other South Carolina residents filed a lawsuit against state election officials, claiming that the requirement that absentee ballots be signed by a witness unconstitutionally burdens voters, especially in the midst of the COVID-19 pandemic when people are avoiding close contact with others. On May 25, a judge sided with the voters, finding that the state cannot require them to have their ballot witnessed for the primary because of the dangers caused by the pandemic. 

“The judge agreed that the voter should not risk his or her health to vote,” Williams told The Appeal. 

But South Carolina isn’t the only state to impose burdensome witness requirements for absentee ballots. A total of 12 states require voters to have someone witness or notarize their ballots. Eight of them—Alaska, Louisiana, North Carolina, Minnesota, South Carolina, Rhode Island, Wisconsin, Virginia—require at least one witness. Three states—Mississippi, Oklahoma, and Missouri—have even stricter requirements, mandating voters to get someone to notarize their ballot. Alabama requires either a notarization or two witness signatures alongside photo identification.

A few have at least waived or narrowed their witness requirements during the COVID-19 pandemic. In response to a lawsuit, Virginia’s Democratic attorney general issued an order allowing voters to return ballots without witness signatures for the June primary. Minnesota’s Democratic secretary of state agreed to a similar arrangement in advance of the state’s August primary, though a judge still has to approve that consent decree. Rhode Island’s Democratic governor suspended its witness requirement in advance of the state’s June primary via executive order. Oklahoma’s state Supreme Court struck down the notary requirement in May, but the state’s Republican governor signed a bill a few days later that reinstated it while also enabling exemptions during an emergency. A federal judge in Alabama on Monday waived the requirement for the July primary in Jefferson, Mobile, and Lee Counties, but advocates are pressing for statewide relief. So far, none of the orders or rulings have changed the requirements for the November election.

Lawmakers have the authority to amend election statutes without waiting for the courts, but few have taken up the issue. Last week, Missouri adopted a law that temporarily lifts the notary requirement, but only for voters with serious health conditions and for voters above 65, which critics decry as age discrimination. 

Voting rights advocates have compared the witness requirements to voucher tests from the Jim Crow era, when voters had to find someone who could vouch for their identity before they could register to vote. Those requirements were outlawed with the Voting Rights Act of 1965, and Deuel Ross, a senior counsel at the NAACP Legal Defense & Educational Fund who is representing voters in litigation in South Carolina and Alabama, said the current witness requirements violate the same legislation. 

“What we’re arguing is that these supporting witness requirements in the absentee voting context are basically indistinguishable from those old supporting witness requirements from the 50s and 60s that are expressly prohibited under the Voting Rights Act,” Ross said. 

The witness requirements will disproportionately disenfranchise voters of color, voting rights advocates say. 

Black voters are more likely to live alone or with small children under their care, according to the lawsuit in Alabama. They’re more likely to have a disability and lack the transportation that could be needed to find family and friends to sign as witnesses. And because of systemic inequities and social conditions, they’re more likely to get infected with, and to die from, COVID-19, Columbia University social work professor Courtney Cogburn said in a declaration in the South Carolina case. 

“As a result, any voting requirement requiring them to break social distancing protocols would place them at higher risk for infection and also threatens public health of the Black community more broadly,” Cogburn wrote in her court filing.

Caren Short, a senior staff attorney with the Southern Poverty Law Center who is representing voters in lawsuits in Louisiana and Alabama, said that unequal burden is at the center of the litigation.

“It’s sort of a perfect storm,” Short said. “All this discrimination has made Black folks more susceptible to COVID-19, and then they’re in a worse place to be able to comply with these requirements.”

Republican officials in some states are defending their states’ witness requirement in court. In Alabama, the Department of Justice defended the witness requirement, claiming it doesn’t violate the Voting Rights Act. In court filings, representatives for South Carolina’s State Election Commission and governor argued that voters overstated the burden of the witness requirement and that allowing people to vote absentee increases the risk of fraud. 

But Ross pointed out that there’s no law preventing even small children from witnessing someone’s ballot. “It really doesn’t provide any kind of meaningful protection against voter fraud,” he said about the requirement.

Short said their arguments leave out their political motive to keep Black voters, who are more likely to support Democrats, from casting ballots.

“It’s simply a political game they’re playing,” she said. “It’s sad because people are going to risk their health or they’re going to lose their vote, and it shouldn’t be happening.”