RI ACLU Challenges Rhode Island’s Vote-by-Mail Requirements that Risk the Health of Voters

Attorneys for the American Civil Liberties Union, the ACLU of Rhode Island, the Campaign Legal Center, and the law firm Fried Frank filed a federal lawsuit today challenging Rhode Island’s witness/notary requirements for voting by mail throughout the 2020 elections.

The case was filed on behalf of two voting rights advocacy groups — Common Cause Rhode Island and the League of Women Voters Rhode Island — and Rhode Islanders with significant medical vulnerabilities that place them or members of their household at a heightened risk of severe illness or death if they contract COVID-19.

The lawsuit seeks to block provisions of a state law that require Rhode Islanders who vote by mail to have two witnesses or a notary sign their ballot envelope, even in the midst of a highly contagious and deadly pandemic. These requirements necessitate face-to-face and hand-to-hand interaction between voters and others who pose a potentially fatal risk to the voters’ health.

“Removing the witness and notary requirement in the midst of a deadly pandemic is a common-sense solution that protects people’s health and their right to vote,” said Steven Brown, executive director of the ACLU of Rhode Island.

The individual plaintiffs are:

• Miranda Oakley, 32, who is blind and unable to drive. She lives with her mother and grandmother, but her grandmother is not capable of serving as a witness. Oakley is concerned both about the risk of contracting COVID-19— and the risk to herself, her mother, and her elderly grandmother — and about the potential risk of passing COVID-19 on to others beyond her household, particularly given that her mother works with people who are older. Accordingly, she is closely adhering to social distancing guidelines.

• Barbara Monahan, 88, who lives alone and cannot drive due to a severe back condition and, also due to this condition, is unable to vote in person. She is concerned about the heightened risk of contracting COVID-19 that would arise if she were forced to break social distancing guidelines in order to have her ballot witnessed.

• Mary Baker, who has been diagnosed with asthma, hypertension and diabetes, is deeply concerned about the heightened risk of contracting COVID-19 — and the likely life-threatening or life-ending symptoms she would experience — if she were forced to break social distancing guidelines to get her ballot witnessed.

“No one should have to choose between their health and their right to vote,” said Common Cause Rhode Island Executive Director John Marion. “Unfortunately, during this public health emergency, the witnesses-or-notary requirement forces some voters to make that choice.”

As of mid-July, there have been nearly 3. 5 million confirmed cases of COVID-19 and nearly 140,000 deaths attributed to COVID-19 in the United States, according to the Centers for Disease Control and Prevention. Rhode Island has had more than 18,000 confirmed cases and nearly 1,000 deaths so far. These figures almost certainly understate the real numbers of COVID-19 victims, given the limitations in testing.

The lawsuit notes that “mail voting represents the best option for most Rhode Island voters to participate safely in the 2020 elections,” but that “the voter-witness interaction required by Rhode Island’s current mail voting procedure constitutes a violation of recommended social distancing and creates a substantial risk of COVID-19 transmission.”

Former state Director of Health Michael Fine submitted an affidavit in support of this position, emphasizing the risks that people particularly susceptible to serious illness or death from COVID-19 will face if they must violate social distancing guidelines in order to vote.

The suit points out that Rhode Island is in a small minority of states that require witness signatures for mail ballots. According to census data, more than 125,000 householders live alone in Rhode Island, and of those, over 50,000 are 65 years and older and, therefore at particular risk if they catch the disease.

The groups are asking the court to block the state from enforcing the witness/notary requirements during the September and November elections, and order it to issue guidance instructing municipal election officials to count otherwise validly cast mail ballots that are missing witness signatures.

“States need to make reasonable accommodations so voters can cast a ballot without unnecessary risk of contracting COVID-19,” said Jonathan Diaz, legal counsel, voting rights, at Campaign Legal Center. “There are plenty of safeguards in place to protect the security of Rhode Island elections. Forcing people with disabilities or compromised health, or their family members, to find two witnesses to cast a ballot is unreasonable. The courts need to step in so that voters can participate safely.”

“The pandemic has shone a bright light on the barriers facing our most vulnerable voters in Rhode Island. Without relief from onerous laws like our witness requirement, these voters will be disenfranchised,” said Jane Koster, president of the League of Women Voters of Rhode Island. “Senior citizens, Black, Latinx, disabled, and income-sensitive individuals are isolating because of their higher risk for serious illness from COVID-19. They cannot safely comply with the absentee ballot requirements to invite another person into their environment. These are the same communities who disproportionately struggle with ballot access, and now they are having to choose between their safety and their right to vote.”

More information on the case, Common Cause RI et. al. v. Gorbea, including a copy of the complaint can be found here.