Supreme Court Allows Waiver of Rhode Island Absentee Ballot Witness Requirement

August 13, 2020 Updated: August 13, 2020

The Supreme Court rebuffed a request by Republicans to reinstate a requirement waived by Rhode Island officials on public health grounds that absentee ballots be witnessed.

Rhode Island has four of the 270 electoral votes a candidate needs to be elected president. Democrat Hillary Clinton easily carried the state in 2016 against Republican Donald Trump by 15.5 percentage points.

The rule that absentee ballots be signed by two witnesses or a notary public was first suspended during primary election voting, on the theory that voting in person increases the likelihood that voters will be exposed to the CCP virus, which causes the disease COVID-19.

Gov. Gina Raimondo, a Democrat, and the Democratic-controlled state legislature decided to extend it through the upcoming November election.

In the course of litigation, Rhode Island Secretary of State Nellie Gorbea, also a Democrat, settled a legal dispute with activist groups, and a federal judge approved the settlement, granting what is called a consent decree.

The Republican National Committee sued to undo the consent decree and reinstate the witness requirements.

Republicans argued the existence of a pandemic didn’t transform the signature rule into an unconstitutional burden. “When ballots are cast remotely, no one is watching, which increases the risk of fraudulent and illegal voting,” Republicans argued in legal briefs.

Gorbea urged the high court to continue the suspension of the witness rule.

“Must these voters choose between their health and their vote?” she told the Supreme Court.

After lower courts ruled in favor of continuing the suspension of the witness rule, the RNC asked the Supreme Court to undo the suspension.

The ruling in Republican National Committee v. Common Cause Rhode Island came Aug. 13.

The Supreme Court determined the RNC and the state GOP lacked legal standing to challenge the rule suspension. The court noted that in this case, state election officials “support” the waiver “and no state official has expressed opposition.”

“Under these circumstances, the applicants lack a cognizable interest in the State’s ability to ‘enforce its duly enacted’ laws,” the brief order stated, citing the court’s 2018 ruling in Abbott v. Perez.

It was unclear how the justices voted on the application. For the stay to be approved, five of the nine justices would have had to vote for it.

Three conservative justices, Clarence Thomas, Samuel Alito, and Neil Gorsuch indicated they would have granted the stay. They didn’t explain why.

Jane Koster, president of the League of Women Voters of Rhode Island, which was a respondent in the case, told Politico that the decision “affirms our assertion that voters should never have to choose between their health and their right to vote.”

RNC press secretary Mandi Merritt said the court’s ruling “ignores election laws that have been on the books for decades.”

“It’s telling that a week after the governor and state legislature declined to waive the witness signature verification, this lawsuit was filed and the liberal secretary of state rolled over immediately,” Merritt told the media outlet.

“Today’s ruling effectively allows for collusive litigation between state officials and liberal advocacy groups, and we strongly disagree.”