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Attorney General of Virginia

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Commonwealth of Virginia
Office of the Attorney General

Mark Herring
Attorney General

202 North Ninth Street
Richmond, Virginia 23219


For media inquiries only, contact:  
Charlotte Gomer, Press Secretary
Phone: (804)786-1022 
Mobile: (804) 512-2552
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.


~ Herring joins coalition in filing an amicus brief arguing in Supreme Court that witness requirement risks health of voters during pandemic ~

RICHMOND – Attorney General Mark R. Herring today joined a group of 18 attorneys general in supporting a challenge to a South Carolina law that requires a witness signature for voters to cast their ballots by mail. The lawsuit, filed by a group of South Carolina voters and political organizations, claims that the witness requirement puts the health and safety of voters at risk during the COVID-19 pandemic.


In an amicus brief filed in Middleton v. Andino in the U.S. Supreme Court, the multistate coalition opposes the witness requirement, arguing that states have a responsibility to tailor their election rules to protect voter participation and voter safety during the pandemic. The brief, filed two days after defendants sought Supreme Court intervention, also argues that there is no evidence that requiring a witness signature for mail-in ballots prevents fraud—which is extremely rare in any event. Attorney General Herring has reached two agreements this year to waive the witness requirement for absentee voters who fear for their health and safety in both the June primary and the November election.


“No one should ever have to choose between their health and safety or exercising their right to vote,” said Attorney General Herring. “States and localities have had to figure out new and creative ways to make voting safe, easy, and secure during these challenging times, including making changes like removing the witness requirement on absentee ballots. The upcoming election is probably the most important election of our lifetimes and everyone should have the ability to vote without putting their health or the health of others in jeopardy.”


In May 2020, a group of South Carolina voters and political organizations filed a lawsuit challenging a state absentee voting requirement because the requirement would put their health at risk during the COVID-19 pandemic. The provision requires absentee voters to swear and affirm, in the presence of a witness, that they are qualified to vote, have not yet voted, are returning their ballot in the designated envelope, signed the envelope, and received no improper assistance. The district court issued a preliminary injunction blocking the requirement for the June 2020 primaries and subsequently blocked the provision for the general election as well. The defendants appealed to the Fourth Circuit, which, after considering the case as a full court, declined to stay the district court’s injunction. The defendants then moved for a stay at the Supreme Court on Thursday, and the multistate coalition filed a brief opposing this stay on Saturday.   


In the amicus brief, the coalition supports the plaintiffs’ challenge to South Carolina’s vote-by-mail witness requirement because:


  • States have a responsibility to protect voter participation and voter safety: The Supreme Court has recognized that states have the power to regulate elections and must do so in ways that preserve the right to vote. During the pandemic, states and localities have taken reasonable, common-sense steps to minimize in-person interactions for voters. Most states are permitting all voters to vote by mail amid the pandemic; many have sent vote-by-mail applications to every registered voter; and others plan to affirmatively send ballots to all registered voters. Other states have—either temporarily or permanently—abolished notarization and witness requirements for mail-in ballots. 


  • No evidence exists that witness requirements are needed to prevent widespread voting fraud: As a general matter, vote-by-mail fraud is exceptionally rare. Five states—Colorado, Hawaii, Oregon, Utah, and Washington—already had all-mail voting systems prior to the COVID-19 pandemic, in which every registered voter receives a ballot in the mail. None of these states require a witness signature, and yet none has encountered widespread voter fraud since shifting to mail-in ballots.


  • States have mechanisms to protect the integrity of elections other than witness requirements: States have several mail-in voting safeguards available to them, including using ballots with a unique bar code that, once returned and scanned, prevent the voter from casting another ballot in the election. States also generally require voters to include their signature on the ballot envelope, which can be matched against information from voter rolls to verify their identity. Another common layer of security are secure drop-off locations which help maintain a chain of custody for mail-in ballots.


Because of the COVID-19 pandemic, Attorney General Herring has had to come up with solutions to make sure Virginians can vote safely and easily. These solutions provide voters with safe alternatives to in-person voting, so that they are not putting the health and safety of themselves or that of their loved ones at risk. He and his team have been able to negotiate options to promote safe, secure voting for folks who cannot or do not want to risk their health to vote in person. He reached an agreement that waived the witness requirement for absentee ballots for Virginians who feared for the safety voting in person, and another agreement that makes it easier for Virginians with disabilities to participate in the election safely at home.


Joining Attorney General Herring in filing today’s amicus brief are the attorneys general of California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia.


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