In light of the COVID-19 outbreak, the American Civil Liberties Union and ACLU of Virginia filed a federal lawsuit challenging Virginia’s “witness requirement.” Under Virginia law, any voter who submits an absentee ballot by mail must open the envelope containing the ballot in front of another person, fill out the ballot, and then have that other person sign the outside of the ballot envelope before it is mailed back.
The ACLU is asking the court to block the state from enforcing the witness requirement while COVID-19 emergency orders are in place and/or community transmission of COVID-19 is occurring, and order it to issue guidance instructing city and county election officials to count otherwise validly cast absentee ballots that are missing a witness signature. The pandemic means that the witness requirement would disenfranchise tens of thousands of eligible voters in Virginia who cannot risk contact with other individuals to vote in person or obtain a witness signature on their absentee ballot.
“If the witness requirement stands, tens of thousands of Virginia voters will be unable to maintain social distancing recommendations and vote absentee,” said Eden Heilman, legal director at the ACLU of Virginia. “The governor and Virginia election officials can and must adapt voting policies to preserve our democracy and keep everyone safe.”
The case was filed on behalf of the League of Women Voters of Virginia and several individuals. Over a quarter of Virginians age 18 and over live by themselves, and almost a third of Virginians over 65 years of age — one of the groups most vulnerable to COVID-19 — live alone. And the impact of this requirement will also fall heavily on Virginians with disabilities and Black Virginians, who live alone in larger percentages than the population as a whole and who also are experiencing COVID-19 at disproportionate rates.
In the midst of the pandemic and during a stay-at-home mandate, the witness requirement amounts to an unconstitutional burden on the right to vote. And its disproportionate impact on Black Virginians due to its interaction with historical and ongoing discrimination violates the Voting Rights Act. Virginia’s federal office primaries are June 23.
“The witness requirement is not worth [the] massive disenfranchisement of Virginia voters,” the lawsuit states. “While election integrity is an important interest, the witness rule 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 fact that Virginia is one of only 11 states that require an individual submitting an absentee ballot to have another adult witness and sign their ballot envelope further underscores the requirement’s lack of necessity.”
“Removing the witness requirement during the COVID-19 pandemic is a common-sense solution that protects people’s health and their right to vote during this crisis. No one should be forced to choose between staying safe and casting a ballot. It is a false choice. We can have both,” said Davin Rosborough, a staff attorney with the ACLU’s Voting Rights Project.
The lawsuit, League of Women Voters of Virginia v. Virginia State Board of Elections, was filed in U.S. District Court in Lynchburg, Va.
MAY 5, 2020 UPDATE: The Court approved a partial settlement on May 5th, 2020 to remove Virginia’s witness requirement for voters who believe their health would be at risk due to COVID-19 if forced to comply. The agreement says that voters who do not think they can safely find a witness will not be forced to comply with the witness requirement for the June 23 primary. In addition, the Commissioner of Elections will be required to inform voters about the change and provide updated guidance to local election officials instructing them to count all absentee ballots in the June primary that are otherwise validly cast but missing a witness signature. The case is still pending regarding all elections in 2020 that may be affected by the pandemic, including the Nov. 3 election.
AUGUST 21, 2020 UPDATE: The Court approved another partial settlement on August 21, 2020 to remove Virginia's witness requirement for the voters who believe their health would be at risk due to COVID-19 if forced to comply. The agreement says that voters who do not think they can safely find a witness will not be forced to comply with the witness requirement for the November 3 general election. Like the agreement pertaining to the June primary election, the Commissioner of Elections will be required to inform voters about the change and provide updated guidance to local election officials instructing them to count all absentee ballots in the November election that are otherwise validly cast but missing a witness signature. The case is still pending regarding all future elections that may be affected by the pandemic.