High Court Won’t Reinstate Witness Rules for Rhode Island Mail-In Ballots

WASHINGTON (CN) — With a 6-3 split, the U.S. Supreme Court cleared the way Thursday for Rhode Island voters to mail in their November ballots just as they did in June.

The Republican National Committee and Republican Party of Rhode Island applied to the high court for a stay on Monday, having been turned down by the First Circuit days earlier after U.S. District Judge Mary McElroy suspended a state law requiring absentee ballots to be verified by two witnesses or one notary.

“When ballots are cast remotely, no one is watching, which increases the risk of ineligible and fraudulent voting,” they wrote.

Rhode Island, Alabama and North Carolina are the only three states with such a requirement, but Rhode Island Governor Gina Raimundo took action this spring to ensure that voters could still cast their ballots safely when the coronavirus pandemic has injected a public health danger to voting in person or otherwise interacting with people outside of one’s household.

With Raimondo poised to disseminate mail-in ballots on Thursday, state Republicans asserted that third-party witness requirements are “the only external verification” that a person casting a ballot is who they say they are.

The Supreme Court did not issue any opinion along with its denial order Thursday, which notes that Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have granted a stay.

Though the Supreme Court had stayed an injunction of Alabama’s witness requirement in July, Thursday’s unsigned order differentiates Rhode Island’s situation on the basis that no state election official here had opposed suspending the rule.

“The status quo is one in which the challenged requirement has not been in effect, given the rules used in Rhode Island’s last election, and many Rhode Island voters may well hold that belief,” the order states. 

State election officials cited voter safety in explanation of their support for loosening requirements, citing the dangers mid-pandemic of exchanging of pens for signatures and other close-proximity tasks that witness requirements necessitate. While suspending the two-witness requirement, the state’s Board of Elections added requirements to make sure voters submitted their driver’s license numbers, along with the last four digits of their Social Security number, for verification. 

“Rhode Island saw a historic increase in mail balloting in June 2020 and expects to see the same in the September Primary Election and November General Election,” officials wrote. “Furthermore, given the Covid-19 pandemic, the public interest is promoted by protecting hundreds of thousands of voters and poll workers from having unnecessary contacts with other people.”

In denying a stay last week, the First Circuit said: “The burden imposed by these [ballot-witness] requirements in the midst of a pandemic is significant.”

“Many more voters may be deterred by the fear of contagion from intreating with witness or a notary,” a three-judge panel wrote.

“Could a determined and resourceful voter intent on voting manage to work around these impediments? Certainly,” the unsigned ruling continued. “But it is also certain that the burdens are much more unusual and substantial than those that voters are generally expected to bear.”

Rhode Island Secretary of State Nellie Gorbea said in a statement Thursday that health “should never be the price of admission to our democracy.”

Michael Field, an attorney representing Rhode Island, did not respond to an email request for comment Thursday. Thomas McCarthy, who represented Republican National Committee members in Rhode Island, also did not respond to an email for comment Thursday.

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