PROVIDENCE, R.I. (WPRI) — After twice failing in lower courts to block the relaxation of mail ballot rules for this fall’s elections, the Rhode Island Republican Party and Republican National Committee filed an appeal to the U.S. Supreme Court Monday.
The application for an emergency stay asks the high court to stop Rhode Island election officials from suspending the requirement that two witnesses or a notary watch a voter fill out his or her ballot and sign it before it is mailed in.
The GOP is asking the court to issue a stay by Wednesday. There was no immediate indication Monday whether the Supreme Court — whose justices only agree to hear a fraction of the petitions they receive — would take up the case.
“When ballots are cast remotely, no one is watching, which increases the risk of ineligible and fraudulent voting,” lawyers for the Republicans wrote in the petition.
The last-ditch appeal comes as elections officials are already printing ballots without the witness/notary instructions, after Rhode Island U.S. District Judge Mary McElroy accepted a consent decree to suspend those rules.
Nick Domings, a spokesperson for Secretary of State Nellie Gorbea, said Monday nearly 11,000 ballots are ready to be mailed out without the signature requirements, though none have been sent yet.
“This is to avoid confusing voters if the two witness/notary requirement is reinstated,” Domings said in an email.
The original lawsuit was filed by Common Cause Rhode Island and the R.I. League of Women Voters, along with three registered voters, who argued it poses an unsafe burden during a pandemic to seek two witnesses or a notary to witness a voter filling out their mail ballot.
A large number of voters are expected to use mail ballots instead of going to the polls in person for both the September primary and November general elections.
The defendants in the suit — Gorbea and the R.I. Board of Elections — agreed to a consent decree to suspend the signature requirements. The GOP unsuccessfully tried to intervene as defendants in the case at the district court level, then appealed the consent judgment to the 1st U.S. Circuit Court of Appeals in Boston.
The Republicans argue that the witness and notary requirements serve as safeguards against fraud, while the Board of Elections has said the most crucial safeguard is the comparison of a voter’s signature on their ballot to the one on their voter registration.
The 1st Circuit heard the appeal last week and the appellate court denied the GOP’s request to stay the suspension of the witness and notary requirements. The appeals court also granted the GOP’s request to intervene in the case for purposes of appeal only, not as defendants.
The appellate judges called the GOP’s fraud concerns “dubious as a matter of fact and reality” in its opinion, released Friday night. The trio of judges also pointed out that since Gov. Gina Raimondo suspended the witness and notary requirements by executive order for the June presidential primary, voters are most familiar with those mail ballot instructions.
But the Republicans have pointed to the fact that neither Raimondo nor the R.I. General Assembly chose to suspend the witness rules for the fall elections in the same manner.
In its new appeal to the Supreme Court, the GOP argues the emergency stay is necessary because of the timing; their appeal would be moot if the elections have already taken place by the time the high court hears arguments in the case.
In a video posted Monday afternoon on Facebook, R.I. Republican Party Chair Sue Cienki asked for donations to a legal defense fund for the Supreme Court appeal.
“COVID-19 cannot be used as an excuse to eliminate the safeguards against fraud in an election,” Cienki said. “That’s why the duly elected members of the General Assembly decided to keep this requirement in place.”
Common Cause Rhode Island executive director John Marion said in a statement that the GOP was trying to throw the primary into “chaos” by further appealing the consent decree.
“No one should have to choose between their health and their right to vote,” Marion said. “This court case should have ended two weeks ago, when the state of Rhode Island agreed to eliminate witness/notary requirements for vote by mail throughout the 2020 elections due to the COVID-19 pandemic.”