DOJ Says Witness Requirement on Alabama Absentee Ballot Does Not Violate Voting Rights Law

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
May 26, 2020Updated: May 26, 2020

Alabama’s requirement to have witnesses sign an absentee ballot does not violate the Voting Rights Act, the Justice Department (DOJ) argued in a brief filed in a lawsuit challenging the state’s election process.

The DOJ filed a statement of interest on Monday to clarify its interpretation of section 201 of the Voting Rights Act (VRA), which prohibits any jurisdiction from requiring an eligible voter to comply with “any test or device” as a prerequisite before registering or casting a vote. The prerequisites that are prohibited include demonstrating literacy ability, educational achievement, moral character, and qualifications by a voucher of a registered voter or members of any other class.

The banned vouchers requirement is at issue in the case, which was filed by the Southern Poverty Law Center, the NAACP Legal Defense Fund, and the Alabama Disabilities Advocacy Program on behalf of a number of plaintiffs who argue that some of the state’s election requirements are posing as “direct and severe obstacles to voting.” The lawsuit (pdf), which was filed on May 1, argues that the obstacles would force “thousands of Alabamians to choose between risking their lives or voting in 2020.”

Some of the challenged provisions include the requirement that an absentee vote needs to be signed by the voter in the presence of either a notary or two adult witnesses (witness requirement), the requirement of photo identification to accompany certain absentee ballots, and the prohibition on curbside voting.

The lawyers argue that the witness requirement violates section 201 of the VRA because it equates to asking a voter to prove his or her “qualification by the voucher of registered voters of members of any other class.” The challengers worry that this requirement “threatens to disenfranchise many thousands of voters” as it poses as an obstacle for people who live alone—which they say constitutes 30 percent of households in Alabama—and are trying to adhere to social distancing guidelines.

The challengers are seeking a declaration that the witness requirement violates section 201 and a preliminary injunction to block enforcement.

Election 2020 Ohio mail in
A man drops off his election ballot in the drop box at the Cuyahoga County Board of Elections, in Cleveland, Ohio, on April 22, 2020. (Tony Dejak/AP)

The DOJ, however, said in its brief that the state’s witness requirement does not violate section 201.

“It does not violate the first three provisions of Section 201 in that it is not a literacy test, it is not an educational requirement, and it is not a moral character requirement,” the DOJ wrote (pdf). “Nor, contrary to Plaintiffs’ position, is it a voucher requirement prohibited by Section 201’s fourth and final provision.”

The department also differentiated the witness requirement to the voucher requirement, saying that the former only requires witnesses to affirm that the voter had signed the affidavit and does not require him or her to prove a voter’s qualification. Neither requirement requires a voter to obtain “the voucher of registered voters or members of any other class.”

“Alabama voters … may choose any adults as their witnesses, except for candidates in contested elections,” the DOJ argued.

The DOJ noted that its statement of interest does not hold a position on the other claims in the lawsuit.

Concerns over the spread of the CCP (Chinese Communist Party) virus has resulted in increased support and sparked partisan debate over the issue of absentee voting. Democrats and Republicans across the country lock horns over the issue amid the pandemic.

President Donald Trump and Republicans have rebuked the idea of the blanket expansion of mail-in voting, citing concerns of voter fraud. Meanwhile, Democrats argue that mail-in voting options are necessary in order to comply with public health recommendations to reduce gatherings due to the pandemic.

Alabama Secretary of State John Merrill, who is a defendant in the case, has largely resisted calls to change the state’s current absentee laws but is allowing the pandemic to be a qualifying excuse for absentee voting.

“That is a qualifying excuse for all voters to use, it will be accepted and it will be processed accordingly,” Merrill said, reported WHNT19 News.

On Sunday, Trump expressed his concern over voter fraud and reiterated his call to not expand absentee voting.

“The United States cannot have all Mail In Ballots. It will be the greatest Rigged Election in history. People grab them from mailboxes, print thousands of forgeries and “force” people to sign. Also, forge names. Some absentee OK, when necessary. Trying to use Covid for this Scam!” Trump wrote in a Twitter post.

In response to the president, Merrill wrote “don’t worry @realDonaldTrump, WE WILL NOT have direct mail in voting in Alabama!”

“We have provided an excuse provision for anyone that wants to vote absentee and our polling sites will be open for anyone that wants to vote in person! Keep working hard to Make America Great Again!” he added.