Anchorage Superior Court Judge Dani Crosby issued an order today that finds the state’s requirement for by-mail absentee ballots to have a witness signature from a third party “impermissibly burdens the right to vote” but stops short of putting that requirement on hold.
Judge Crosby has given the Division of Elections and the groups that brought the lawsuit—Arctic Village Council, League of Women Voters of Alaska and two socially isolated individuals—until Tuesday afternoon to come up with a plan to notify the public of the change and potentially appeal the case to the Alaska Supreme Court.
The case was heard in court on Thursday, where the plaintiffs argued the witness requirement was essentially forcing people to choose between voting and protecting their health amid the pandemic. They argue that the witness requirement should put on hold for this election, that ballots without witness signatures be counted and that the Division of Election find a way to notify the public of the change.
Similar requirements have been struck down in others states.
The Division of Elections, which has opposed several other changes to make voting easier for everyone this year, argued against the change as an effort to prevent fraud. One case was, essentially, that public trust in the election is at stake because voters cannot trust that the state would find another way to block isolated Alaskans from voting.
Judge Crosby sided with the plaintiffs, finding that the state’s claims were less than convincing.
“If the witness requirement is not eliminated, it will force plaintiffs and other voters to choose between risking their health by coming into contact with a witness or forgo their right to vote entirely,” she wrote. “This is a severe burden on Plaintiff’s fundamental right to vote.”
The requirement for a third party to witness a voter’s signature was ostensibly an effort to prevent voter fraud, but the state was unable to offer any examples of when it had any role in such a case. Crosby noted this in her order.
“As to voter fraud, Defendants’ briefing provides a lengthy example of such an instance, but the witness requirement played no role in detection of the fraud. When asked at oral argument whether the witness requirement had ever played a role in detecting voter fraud, counsel for the defendants could not identify any such instance in recent memory, and was not sure whether it had played a role in detection in the more distant past. Based on the record before it, the court cannot find that the witness requirement is an effective tool for detecting voter fraud,” Crosby wrote.
She added that the witness requirement, at best, “may lend an air of formality to the absentee voting process,” but there are far more effective measures at ensuring that votes are cast without fraud.
The state also argued that the defendants should have brought the case in May or June, arguing that they should have known that the absentee witness requirement would have been a problem back then. Crosby also found that argument unconvincing.
“The pandemic is a shifty beast,” she wrote, “and plaintiffs were not unreasonable to wait until early September to file suit.”