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Voting rights advocates sue over state’s witness requirement for absentee ballots

The lieutenant governor’s office says it can’t waive statute, ballots could be thrown out on court challenge
November election absentee ballot requests
November election absentee ballot requests(WBAY)
Published: Sep. 8, 2020 at 7:49 PM AKDT
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ANCHORAGE, Alaska (KTUU) - A group of voters' rights advocates has filed a lawsuit against the State of Alaska Division of Elections over its requirement that mail-in absentee ballots be signed by a witness. The suit, filed Tuesday, names Lt. Gov. Kevin Meyer, elections director Gail Fenumiai and the state’s Division of Elections as defendants.

State statute requires mail-in absentee ballots to be signed in the presence of a witness at least 18 years old, a notary or other official authorized to administer oaths. The witness must sign the absentee ballot envelope. Last week, the American Civil Liberties Union asked Meyer to waive the requirement, so that Alaskans who cannot easily reach a witness may cast their vote.

“COVID-19 is serious and so too is the right to vote, free from unnecessary ballot barriers,” the ACLU wrote in its letter to Meyer. “Alaska should continue its ‘long history of expanding voting access and facilitating voters’ exercise of their right to vote, by not enforcing the absentee witness requirement now, in this global pandemic.”

The letter asked for a response by Friday, Sept. 4. The lieutenant governor’s office responded, saying it does not have the power to waive state statute, and that doing so could create further problems if an election were challenged in court.

“The Office of Lt. Governor lacks the power to unilaterally waive the statutory witness requirement,” Meyer wrote. "The law at issue is not only the statute requiring a witness signature, but also that requiring that an absentee ballot be rejected and not counted if it is not properly witnessed.

“If my office were to ignore this clear statutory language and count ballots that were not properly witnessed, those absentee ballots could later be invalidated in a court challenge,” Meyer wrote. “It would be irresponsible for me to tell voters not to follow the witness requirement and risk their votes not counting.”

Meyer said that during the pandemic, Alaskans have learned a lot about preventing the spread of the novel coronavirus.

“Just like going to the grocery store or receiving deliveries at your home, maintaining a social distance of six feet and wearing masks goes a long way and both of these can be accomplished for witnessing a ballot,” he wrote. “Witnessing could also take place through a window if necessary. Although not ideal, we are all having to change the way we do things, and I would encourage voters to think creatively about how to fulfill this requirement in a safe manner.”

The lawsuit was filed Tuesday on behalf of two Alaskans who live alone, are immunocompromised and are self-isolating due to the COVID-19 pandemic. The Arctic Village Council and League of Women Voters are also involved in the suit. The suit argues that these voters, and others like them, cannot vote in person because they reasonably fear that they may contract COVID-19 at the polls and that they also cannot vote by mail without risking their health because they are unable to notarize or find a qualified witness to sign their ballots without potential exposure to COVID-19.

“Neither is permissible,” the suit states. “Plaintiffs and similarly situated voters have a right to protect their health and safety.”

One of the plaintiffs, the suit claims, lives alone in Fairbanks and has three underlying conditions. She has been self-isolating at her home since late February and uses curbside delivery for groceries, prescriptions, garbage drop-off and even veterinary service for her dog to avoid contact with others. In the August primary, the woman voted by mail and asked her USPS letter carrier to witness her ballot, but a recent USPS directive won’t allow postal workers to witness absentee ballots for the general election.

The Arctic Village Council joined the suit because of the pandemic’s disproportionate impacts on Alaska Native and Native American tribes across the country.

“The Tribe is aware that COVID-19-related deaths among Native communities is highest among any demographic group in the United States,” the suit claims. The village has taken drastic measures to prevent the spread in the village, like a shelter-in-place order that restricted gathering with anyone outside of one’s household, and prohibited congregating at facilities like the tribal hall, village store and post office. “The pandemic has severely restricted the ability of village members to vote in person,” the suit claims.

Joshua Decker, the executive director of the ACLU of Alaska, says the state can take action to suspend statutes for the general election. “Gov. Dunleavy suspended numerous statutes and regulations because of the pandemic including things as basic as the curbside pickup and delivery of alcohol. If our government can make those changes to its statutes and regulations, certainly it can make the change that concerns every Alaskan to cast their ballot this November,” Decker said Tuesday.

Ultimately, the suit asks the court to declare the application of the witness requirement “unconstitutionally burdensome on plaintiffs' right to vote during the COVID-19 pandemic” and to order the state to not enforce the witness requirement, and to direct boards of elections to not reject returned absentee ballots that do not satisfy the witness requirement.

The governor’s office referred reporters' questions to the Department of Law, which said it needs time to evaluate the complaint.

The case does not yet have a court date.

Producer Jennifer Summers also contributed to this report.

Copyright 2020 KTUU. All rights reserved.

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