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In North Carolina, South Carolina, overlapping court orders modify absentee/mail-in procedures

With 27 days until Election Day, overlapping court orders in North Carolina and South Carolina have modified absentee/mail-in voting procedures. 

North Carolina

On Sept. 22, the North Carolina State Board of Elections announced a series of proposed modifications to the state's absentee/mail-in voting procedures:

• Absentee/mail-in ballot receipt deadline extended to 5 p.m. on Nov. 12 for ballots postmarked on or before Election Day. 
• Voters allowed to submit affidavits to their county election boards to cure the following ballot issues: 
  • Voter failed to sign return paperwork, or signed in the incorrect place.
  • Witness or assistant did not print name on return paperwork.
  • Witness or assistant did not print address on return paperwork.
  • Witness or assistant failed to sign return paperwork, or signed in the incorrect place.

The modifications resulted from a settlement between the state board of elections and the North Carolina Alliance for Retired Americans.

On Oct. 2, Judge Bryan Collins of the Wake County Superior Court approved the terms of the settlement.

However, on Oct. 3, Judge James Dever of the U.S. District Court for the Eastern District of North Carolina issued a temporary restraining order blocking the settlement. Dever also consolidated three related federal lawsuits involving the state's absentee/mail-in voting procedures and transferred them to Judge William Osteen of the U.S. District Court for the Middle District of North Carolina.

What happens now? Dever's temporary restraining order is scheduled to expire Oct. 16.

As of Oct. 4, the state had classified 7,272 absentee/mail-in ballots as "pending cure," meaning that these ballots are missing some required information. These ballots would be subject to the curing provisions of the settlement agreement if it stands. According to ABC News, county elections officials have been instructed to tell voters who inquire about the status of their ballots, "Currently the cure process is being considered by the courts. We will contact you soon with more information."

South Carolina

On Sept. 18, Judge J. Michelle Childs of the U.S. District Court for the District of South Carolina issued an order suspending South Carolina's witness requirement for absentee/mail-in ballots. Childs is a Barack Obama (D) appointee.

That decision was appealed to a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit. On Sept. 24, the panel voted 2-1 to reverse Child's order, reinstating the witness requirement. Judges Harvie Wilkinson and Steven Agee, Ronald Reagan (R) and George W. Bush (R) appointees, respectively, voted to reverse. Judge Robert King, a Bill Clinton (D) appointee, dissented.

The panel's decision was appealed to the Fourth Circuit sitting en banc. The Fourth Circuit reversed the panel's decision, suspending the witness requirement again. The vote was 9-5.

On Oct. 5, the U.S. Supreme Court reinstated the witness requirement. The court issued its order without noted dissent.

What happens now? The Supreme Court exempted ballots cast before it issued its order and those received within two days of the order. Absentee/mail-in ballots cast after that time will be subject to the reinstated witness requirement.

Political context

North Carolina is a battleground in the presidential contest. In the 2016 election, Donald Trump (R) defeated Hillary Clinton (D) in North Carolina 49.8-46.2 percent. Mitt Romney (R) carried North Carolina in 2012, defeating incumbent Barack Obama (D) 50.4-48.4 percent. Barack Obama (D) won North Carolina in 2008, defeating John McCain (R) 49.7-49.4 percent.

Although South Carolina is not considered a presidential battleground state, it does feature one battleground congressional contest: the election for South Carolina's 1st District. Incumbent Joe Cunningham (D) was first elected in 2018, defeating Katie Arrington 51-49 percent. The U.S. Senate race between incumbent Lindsey Graham (R) and Jaime Harrison (D) is also expected to be competitive.

Absentee/mail-in voting modifications since our last issue

Since our Sept. 23 edition, we've tracked the following absentee/mail-in voting modifications:

• Alabama: On Sept. 30, Judge Abdul Kallon of the U.S. District Court for the Northern District of Alabama issued a ruling that made a number of modifications to Alabama's voting laws, including waiving the absentee/mail-in ballot witness/notary requirement for voters with underlying medical conditions.
• Arizona: On Oct 5., Judge Steven Logan of the U.S. District Court for the District of Arizona ordered that the state's voter registration deadline be extended to 5 p.m. on Oct. 23.
• Georgia: On Oct. 2, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit reinstated Georgia's Nov. 3 receipt deadlines for absentee/mail-in ballots.
• Indiana: On Sept. 29, Judge Sarah Barker of the U.S. District Court for the Southern District of Indiana issued an order extending the postmark and receipt deadline for absentee/mail-in ballots in Indiana to Nov. 3 and Nov. 13, respectively.
• Iowa: 
  • On Sept. 25, state legislators approved an emergency directive, requested by Secretary of State Paul Pate (R), authorizing counties to begin processing absentee/mail-in ballots on Oct. 31, the Saturday before Election Day.
  • On Oct. 5, Judge Robert Hanson of the Polk County District Court issued an order allowing Iowa counties to send voters absentee/mail-in ballot applications with pre-filled personal information.
• Ohio: 
  • On Oct. 2, a three-judge panel of the Ohio 10th District Court of Appeals ruled that Secretary of State Frank LaRose (R) could direct counties to offer multiple drop-box locations for returning absentee/mail-in ballots. The panel stopped short of requiring LaRose to do so, overturning a lower court decision to that effect.
  • On Oct. 5, Ohio Secretary of State Frank LaRose (R) announced counties would be allowed to offer multiple drop-off options for returning absentee/mail-in ballots. LaRose said these options would be restricted to one site per county.
• Texas: On Oct. 1, Gov. Greg Abbott (R) issued a proclamation limiting the number of return locations for absentee/mail-in ballots to one per county.
• Wisconsin: On Sept. 29, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit affirmed a district court decision extending the online and mail voter registration deadline to Oct. 21 and the absentee/mail-in ballot return postmark and receipt deadlines to Nov. 3 and Nov. 9, respectively.

To date, 38 states have modified their absentee/mail-in voting procedures for the general election. These modifications can be divided into the following five broad categories:

• Automatic mail-in ballots: Five states (California, Montana, Nevada, New Jersey, and Vermont) are automatically sending absentee/mail-in ballots to all eligible voters in the general election. These states are shaded in yellow in the map below.
• Automatic mail-in ballot applications: Eleven states (Connecticut, Delaware, Illinois, Iowa, Maryland, Michigan, Nebraska, New Mexico, Rhode Island, South Dakota, and Wisconsin) are automatically sending absentee/mail-in ballot applications to all eligible voters in the general election. These states are shaded in dark blue in the map below.
• Eligibility expansions: Twelve states (Alabama, Arkansas, Kentucky, Louisiana, Massachusetts, Missouri, New Hampshire, New York, Oklahoma, South Carolina, Tennessee, and West Virginia) have expanded absentee/mail-in voting eligibility in the general election. These states are shaded in light blue in the map below.
• Deadline extensions: Five states (Indiana, Maine, Minnesota, Mississippi, and Pennsylvania) have extended absentee/mail-in ballot application or return deadlines in the general election. These states are shaded in dark gray in the map below.
• Other process changes: Five states (Arizona, North Carolina, Ohio, Texas, and Virginia) have made other modifications to its absentee/mail-in ballot procedures for the general election. These states are shaded in gray in the map below.

Redistricting developments since our last issue

Since our Sept. 23 edition, we've tracked the following redistricting-related developments.

• On Sept. 30, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit declined to block a lower court's order barring the U.S. Census Bureau from concluding field operations on Sept. 30.   
  • The federal government had asked the Ninth Circuit for a stay after Judge Lucy Koh of the U.S. District Court for the Northern District of California ordered the Census Bureau to continue counting through Oct. 31.  
• Judge Johnnie B. Rawlinson, a Bill Clinton (D) appointee, wrote for the court. Judge Morgan Christen, a Barack Obama (D) appointee, joined Rawlinson in the ruling.
  • "Given the extraordinary importance of the census, it is imperative that the Bureau conduct the census in a manner that is most likely to produce a workable report in which the public can have confidence. The Bureau must account for its competing constitutional and statutory obligation to produce a fair and accurate census report. The hasty and unexplained changes to the Bureau’s operations contained in the Replan, created in just 4 to 5 days, risks undermining the Bureau’s mission."
• Judge Patrick J. Bumatay, a Donald Trump (R) appointee, dissented. 
• The legal deadline for delivering census results to the president is Dec. 31. The Census Bureau had initially asked Congress to extend this deadline to April 2021. The House has approved this extension, but the Senate has not.

Litigation tracking

To date, we have tracked 256 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent developments in this area. Click here to view the complete list of lawsuits and court orders.

This week, we turn our attention to Texas Alliance for Retired Americans v. Hughs.

• Case name: Texas Alliance for Retired Americans v. Hughs
• Case number: 20-40643
• State of origin: Texas
• Court: U.S. Court of Appeals for the Fifth Circuit, U.S. District Court for the Southern District of Texas
• Summary: On Sept. 28, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit temporarily stayed a lower court's order that had reinstated Texas' straight-ticket ballot device. The court further stayed the order on Sept. 30, effectively ensuring that the straight-ticket ballot device would not appear on general election ballots this year.
  • On Sept. 25, Judge Marina Marmolejo of the U.S. District Court for the Southern District of Texas issued an order preventing state officials from enforcing legislation that had rescinded Texas' straight-ticket ballot option. Marmolejo wrote, "The Court finds that HB 25 [the legislation eliminating the straight-ticket device], especially as exacerbated by the ongoing pandemic, places a greater than minimal burden on Texans' right to vote and right to associate."
  • In its per curiam (i.e., unsigned) order staying Marmolejo's ruling, the appeals panel wrote, "[Given] that thousands of ballots without straight-ticket voting have already been mailed in accordance with a law that was passed three years ago and the immense difficulty described the Secretary [of State] of managing an election with different sets of ballots for in-person and mail-in voting, the public interest weighs heavily in favor of issuing the stay." 
  • The panel included Judges Edith Clement, Jennifer Elrod, and Catharina Haynes, all George W. Bush (R) appointees. 
• Court documents: 
  • U.S. Court of Appeals for the Fifth Circuit order (dated Sept. 30)
  • U.S. District Court for the Southern District of Texas order (dated Sept. 25)

Legislation tracking 

To date, we have tracked 328 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.

Legislation related to elections and COVID-19, 2020
Current as of Oct. 6, 2020

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