Voters Challenge Virginia Witness Rule for Absentee Ballots

Only 11 states require absentee voters to open and fill out their ballot in front of another adult.  

Virginia Gov. Ralph Northam speaks during a coronavirus news conference in Richmond on April 8, 2020. (AP Photo/Steve Helber)

LYNCHBURG, Va. (CN) — A voting rights group and three Virginia voters backed by the American Civil Liberties Union filed a federal lawsuit Friday challenging a state law that requires absentee voters to have a witness sign their ballot.

The federal complaint filed in Lynchburg asserts the witness requirement is infeasible during the global Covid-19 pandemic, which has killed more than 33,000 Americans as of Friday morning, according to a Johns Hopkins University tracker.

Virginia is one of only 11 states that requires absentee voters to open and fill out their ballot in front of another adult.  

“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 34-page complaint states.

Almost a third of Virginians over 65 live alone, according to the lawsuit, and they are at higher risk of infection or death from Covid-19, the respiratory disease caused by the novel coronavirus.

The League of Women Voters of Virginia and three registered voters, represented by attorneys with the ACLU, want the witness requirement suspended until restrictions are lifted. The state is currently under a stay-at-home order through June 10.

The three individual plaintiffs – Katherine Crowley, Erikka Goff and Seijra Toogood – say they do not feel safe voting in person for upcoming elections, including the Virginia primary on June 23 and the general election in November, if the coronavirus outbreak has not subsided.

Each requested an absentee ballot early as the virus spread and realized they would have trouble fulfilling the witness requirement.

“Ms. Goff received her ballot on March 27, 2020, at which point she realized that she would not be able to complete the witness signature requirement without violating social distancing guidelines that she had been following for several weeks,” the lawsuit states. “Ms. Goff requested a callback on the automated phone system of the Department of Elections but has not heard back.”

The complaint also details the impact of Covid-19 on African Americans, who are about 20% of Virginia’s population but make up 30% of reported positive cases. An expert cited in the lawsuit said that in some cases, African Americans are three to six times more likely to be infected than white people.

Underlying racial inequalities in access to health care are the root cause of this higher infection rate, according to the complaint. Virginia Health Commissioner Norman Oliver said that lack of access contributes “to much higher disease burden, with twice the rate of diabetes, hypertension, obesity.”

“The witness requirement most directly and disproportionately harms African Americans during the Covid-19 pandemic…because they face greater rates of severe health complications and death from Covid-19,” the lawsuit states. “Virginia’s history of voting-related discrimination against African Americans, as well as continuing discrimination in areas such as education, employment, and health, interacts with the witness requirement to hinder their ability to participate effectively in the political process in violation of Section 2 of the Voting Rights Act.”

Davin Rosborough, a staff attorney with the ACLU’s Voting Rights Project, said in a statement Friday that removing the witness requirement during the pandemic is a “common-sense solution that protects people’s heath and their right to vote during the crisis.”

“No one should be forced to choose between staying safe and casting a ballot,” Rosborough said. “It is a false choice. We can have both.”

Eden Heilman, legal director for the ACLU of Virginia, said state officials must adapt voting rules to protection democracy and keep people safe during the pandemic.  

“If the witness requirement stands, tens of thousands of Virginia voters will be unable to maintain social distancing recommendations and vote absentee,” Heilman said in a statement.

A spokesperson for the Virginia Board of Elections, a defendant in the case, did not immediately respond Friday to a request for comment.

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