The presence of COVID-19 while casting a ballot is now just part of the “usual burdens” of voting and any changes to mail-in absentee ballot validation rules now would cause “chaos” in the electoral process, state officials argued to a judge.
Rather, the state claims a judge should deny an injunction request from two Democratic Party groups on grounds Oklahoma’s absentee voting ballot verification laws are unconstitutional.
“The public would not be served by the electoral chaos created by an injunction at this late date,” attorneys for Oklahoma Attorney General Mike Hunter’s office wrote in a 77-page document filed late Monday.
“Oklahoma has already conducted two elections during the pandemic (the June primary and the run-off), so changing election rules at this date will cause electoral confusion,” the state argues in its filing.
The state’s “proposed findings of fact and conclusions of law” were submitted at the request of Chief U.S. District Judge John Dowdell, who is overseeing a lawsuit filed in May in Tulsa federal court by the Oklahoma Democratic Party and the Democratic Congressional Campaign Committee.
The lawsuit challenges several aspects of mail-in absentee voting, including the state’s requirement that ballots include voter verification measures that include notarization.
The two Democratic Party groups claimed in their lawsuit that the absentee ballot rules pose an undue burden on the right to vote during a pandemic.
The lawsuit seeks in part to have Dowdell declare that notarization, witness and photo identification requirements to cast a mailed-in ballot in Oklahoma “impose undue burdens on the right to vote in violation of the First and Fourteenth Amendments.”
“Oklahoma’s high rate of community spread looms over the upcoming November election, because voting in person indisputably increases the risks of contracting COVID-19,” the Democratic Party groups claimed, in their version of the findings of fact and conclusions of law requested by Dowdell.
Despite mail-in absentee voting in primary elections increasing from around 4% in other years to 14% in the June 2020 election, the Democratic parties claimed the number to cast an absentee ballot was “strikingly low,” compared to almost all other states due to its burdensome ballot verification requirements and other restrictions.
“Because of these barriers, many Oklahomans must choose between risking their health to vote in person or not voting at all,” the Democrats claimed.
Oklahoma officials, meanwhile, maintain that the notary requirement, which only a handful of states require, is credited with limiting the few number of election fraud cases that have been identified in the state.
State officials maintain that they have established procedures that have made in-person voting safe during the pandemic.
“The weight of the scientific evidence shows that in-person elections in 2020 have not been associated with increased cases of COVID-19 (including in Oklahoma),” and the risk of contracting the virus-related disease while voting in-person is “not high or significant” and not greater than other activities engaged in during daily living.
“At most, COVID-19 is now part of the ‘usual burden on voting’ that arises ‘out of life’s vagaries,’ and thus not a burden that renders a state law unconstitutional, the state claims, quoting from prior court decisions on voting restrictions.
Despite justifying the need for the notary requirement, state officials also noted that Gov. Kevin Stitt on Friday extended a state of emergency required to permit voters to continue to bypass the notary requirement for absentee ballots cast in the November general election.
“Because this period of declared emergency will be in effect 45 days prior to the Nov. 3, 2020 general election,” voters will be able to cast a ballot under the relaxed notarization rules.
It was not known when the Democratic groups filed their lawsuit if Stitt would extend the state of emergency required to waive the notary rules.
Absentee voting is scheduled to start Sept. 18 for the November general election.
State officials noted in their filing that the June 30 primary election, which was conducted under similar relaxed absentee voting rules, “was not correlated with an increase in the incidence of new COVID-19 cases.”
The state also defended other aspects of its absentee voting rules, including disqualifying ballots received after the 7 p.m. election day deadline and the need for voters to pay for postage to return a ballot by mail.
A political science professor, testifying last week for the Democratic Party groups during a hearing, estimated that 80% of the 2,300 ballots he expects will be rejected in the November general election would be counted if the state extended its deadline to accept mailed in ballots by three days, provided they were postmarked prior to or on election day.
The two Democratic Party groups also presented evidence during the trial last week on the injunction request that pointed out voter fraud was rare in the state.
“Some marginal gain in electoral efficiency, or the specter of hypothetical voter fraud, cannot justify severely burdening the right to vote or outright disenfranchisement,” the Democratic Party groups claimed in their court filing.
Dowdell has not indicated when he would rule on the injunction request.
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