ACLU Sues Virginia to Remove Witness Requirement on Mail-In Absentee Ballots

By Susan Jones | April 17, 2020 | 11:41am EDT
Democrats are pushing for easier mail-in voting amid the coronavirus outbreak. (Photo by PAUL J. RICHARDS/AFP via Getty Images)
Democrats are pushing for easier mail-in voting amid the coronavirus outbreak. (Photo by PAUL J. RICHARDS/AFP via Getty Images)

( - The American Civil Liberties Union is suing the Commonwealth of Virginia over a law that requires someone to sign the envelope of another person's absentee ballot if that ballot is submitted by mail.

Under Virginia law, any voter who submits an absentee ballot by mail must open the envelope containing the ballot in front of another person, fill out the ballot, and then have that other person sign the outside of the ballot envelope before it is mailed back.

"In the midst of the pandemic and during a stay-at-home mandate, the witness requirement amounts to an unconstitutional burden on the right to vote," the ACLU said.

The ACLU is asking the court to block the state from enforcing the witness requirement while COVID-19 emergency orders are in place and/or community transmission of COVID-19 is happening.

The lawsuit says the court should instruct election officials to count mailed-in absentee ballots even if they are missing a witness signature.

The ACLU said the witness requirement adversely affects elderly Virginians who live alone, Virginians who are disabled, or those who are African-American. The latter group is experiencing COVID-19 at disproportionate rates.

“Removing the witness requirement during the COVID-19 pandemic is a common-sense solution that protects people’s health and their right to vote during this crisis," said Davin Rosborough, a staff attorney with the ACLU’s Voting Rights Project. "No one should be forced to choose between staying safe and casting a ballot."

According to the lawsuit:

The witness requirement is not worth [the] massive disenfranchisement of Virginia voters and its disproportionate harm to elderly voters, African American voters, and voters with disabilities. While election integrity is an important interest, the witness requirement does very little if anything -- and it is certainly not narrowly tailored -- to serve this interest in light of the many other provisions of Virginia law that safeguard absentee voting and penalize those who abuse the process. 

The fact that Virginia is one of only 11 states that require an individual submitting an absentee ballot to have a witness sign their ballot envelope further underscores the requirement’s lack of necessity. Regardless, whatever additional marginal benefits the witness requirement may offer, such benefit is greatly outweighed by the risk of disenfranchisement.

“If the witness requirement stands, tens of thousands of Virginia voters will be unable to maintain social distancing recommendations and vote absentee,” said Eden Heilman, legal director at the ACLU of Virginia. “The governor and Virginia election officials can and must adapt voting policies to preserve our democracy and keep everyone safe.”

The case was filed on behalf of the League of Women Voters of Virginia and several individuals who do not "feel safe" voting in person or bringing in someone to sign their ballot envelope at this time of social distancing.

Earlier this month, Virginia Governor Ralph Northam exercised his statutory authority to move the June primary elections from June 9, 2020, to June 23, 2020, and requested that the General Assembly move the May general election and all special elections scheduled for May 5, 2020 to the November 3, 2020 general election.

The Virginia Department of Elections has issued guidance that all registered Virginia voters may vote absentee by mail in the June primary (and May elections if they go forward) due to the COVID-19 outbreak by selecting reason #2A --"My disability or illness” -- on the ballot application.

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