Rhode Islanders won’t need witnesses if they vote by mail this fall

The US Supreme Court allows the state to waive the requirement because of the coronavirus outbreak

Envelopes and stickers were sent out for mail ballots in Rhode Island's June 2 presidential primary.Rhode Island Secretary of State

PROVIDENCE — The US Supreme Court has rejected a request by the Republican National Committee and Rhode Island Republicans to block a federal district court order relaxing the witness requirement for absentee ballots.

The decision came down Thursday, the day the absentee ballots for the Sept. 8 primary are going out.

Secretary of State Nellie M. Gorbea praised the high court’s decision.

“Your health should never be the price of admission to our democracy,” she said in a statement. “Making it easier to vote safely from home by removing the burden of obtaining two witnesses or a notary is a common-sense step that will protect Rhode Islanders during this pandemic.”

Rhode Island Republican Party Chair Sue Cienki said she was disappointed in the decision. “We fear that this decision will create more, not less confusion, this election year,” she said.

Cienki noted that the Supreme Court had backed an Alabama law requiring witnesses for mail ballots, saying, “Whether a state election law violates the US Constitution now depends on the whims of your state’s election officials, and the authority of state legislators in establishing election laws has been undermined.”

Under Rhode Island law, voters who use absentee ballots must sign them in the presence of two witnesses or a notary. Rhode Island is one of 12 states that require a witness or a notary, and only Rhode Island and Alabama require two witnesses.

Then came the coronavirus, and the sudden demands for absentee ballots during a pandemic showed the state law in a different light.

Governor Gina M. Raimondo issued an executive order waiving that witness requirement for the June presidential primary, but not for the September state primary or November general election.

So last month, the American Civil Liberties Union, the ACLU of Rhode Island, the Campaign Legal Center, and the law firm Fried Frank filed a lawsuit in US District Court to have the state waive the witness requirement because of the coronavirus. The suit was filed on behalf of Common Cause of Rhode Island, the League of Women Voters of Rhode Island, and three voters whose health would be at risk.

In response, Gorbea and the state Board of Elections submitted a consent decree to suspend the rules requiring witnesses, which was approved by US District Judge Mary McElroy.

The Republicans fought back, appealing the decision to the US Court of Appeals for the First Circuit in Boston. After the appeals court upheld the consent decree, the GOP took the matter to the US Supreme Court. As part of their arguments, the GOP said that Rhode Island’s requirement for witnesses mirrors Alabama’s law, in which the Supreme Court granted the state’s request for a stay.

But the US Supreme Court saw a big difference between Rhode Island and Alabama: The Rhode Island “election officials support the challenged decree, and no state official has expressed opposition.”

“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 high court said.

The vote was 6 to 3, with Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch in the minority.

“We are very pleased that the Republican Party’s efforts to turn the fundamental right to vote into an episode of ‘Survivor’ has failed,” ACLU of Rhode Island executive director Steven Brown said in a statement. “We are grateful that our vulnerable plaintiffs and others like them will be able to vote securely from the safety and privacy of their homes as they did in June, without needing to risk their health or lives.”

Common Cause Rhode Island executive director John M. Marion said the group was “thrilled” by the ruling. “Because of this order, hundreds of thousands of Rhode Island voters will be able to safely cast their ballots without risking their health,” he said.

Jane Koster, president of the League of Women Voters of Rhode Island, said: “The court’s decision today affirms our assertion that voters should never have to choose between their health and their right to vote. Democracy was upheld by today’s decision.”

Cienki, the Rhode Island GOP leader, said Republicans fear that the Supreme Court decision will encourage state officials to repeat the “fiasco” seen in the June presidential primary election.

She said the June primary “nearly overwhelmed the system,” with 2,825 mail ballots not counted and 36,281 mail ballots sent out but never been unaccounted for.

“Not only will the witness requirement for mail ballots be waived but unsolicited mail ballot applications will be sent out to everyone, including voters who have moved or are dead,” Cienki said. “The June election was an inconsequential election, but a chaotic November election will have serious consequences for public confidence in our election system.”