Legislature rebuilds barriers to voting immediately after the Supreme Court knocked them down

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Many votes in the coming elections will likely be cast from home, as Oklahomans opt to use absentee ballots in order to maintain social distancing guidelines. A May 4 Oklahoma Supreme Court ruling would have made this easier and safer by removing the requirement that absentee ballots be notarized. The Court stated that under 12 O.S. 426, a signed personal statement under penalty of perjury would suffice. Unfortunately for Oklahoma voters, the Legislature moved swiftly to nullify the Court’s ruling and dismantle that progress. On the day following the Court’s ruling, Legislative leaders quietly put forward legislation that would eventually find its way into Senate Bill 210, which was approved by both houses and signed by Gov. Stitt on May 7. The legislation moved through both houses and was signed into law three days after the Court’s ruling. 

SB 210 reinstated the notary requirement for absentee ballots in typical election years. It also included a requirement for voters to include a photocopy of a form of identification with their absentee ballots in 2020 elections as a temporary measure during the COVID-19 state of emergency. 

Both the notary requirement and the identification requirement create unnecessary barriers to voting from home. The vast majority of other states rely on signature verification or witness signatures, methods that do not require voters to pay any money or leave the house. Instead of making it harder to vote from home, Oklahoma should reduce barriers and rely on other proven security measures. 

SB 210 creates unnecessary barriers to voting 

A central tenet of the recent lawsuit — filed by the League of Women Voters and two concerned citizens against Oklahoma Election Secretary Paul Ziriax — was that the absentee ballot notary requirement forced Oklahomans to choose between participating in elections and risking their health to find a notary. SB 210 effectively ignored those arguments by now forcing voters to choose between participating in elections and risking their health to find a photocopier. 

Copy machines may seem to be a permanent fixture for some households, libraries, law offices, universities, and the like. However, not everyone has ready access to these devices without leaving their home or workplace. Comprehensive data on availability of photocopiers is minimal. Using access to computers and broadband as a stand in, research shows that 44 percent of Americans making less than $30,000 a year have no access to broadband at home, and 46 percent do not own a computer. Rural communities often face a lack of access to high-speed internet and devices as well. These restrictions could keep Oklahoma voters from being able to vote from home. As a fundamental part of our democracy, access to elections should not be determined by income or geography. 

In future years that aren’t characterized by global pandemics, SB 210 would reinstate the notary requirement for absentee ballots. This requirement places undue burdens on Oklahomans and is only practiced in two other states. Oklahoma requires that each notary notarize no more than 20 absentee ballots outside of their normal place of work, potentially forcing voters to seek out a notary who has not reached that cap. In 2018, Oklahoma had only six percent of voter turnout in the form of absentee ballots. Other states, with similar rules regarding elections but without the notary requirement, often see many more people voting from home. In Florida’s 2018 elections, absentee ballots made up 31 percent of turnout. And in Montana, 73 percent of votes were cast from home. Both of these states rely only on signature verification to validate at-home ballots, which requires less of the voter and makes it easier to vote safely from home. 

More accessible methods will not lead to increased voter fraud 

Before the Court’s ruling, Oklahoma was one of only three states that required each absentee ballot to be notarized. After the passage of SB 210, Oklahoma became one of only three states that requires a form of identification with each absentee ballot. As shown in the image below, 31 states require only that the voter sign the affidavit on the envelope, and the states then use signature verification to validate the ballot. The National Conference of State Legislatures recommends signature verification instead of notarization as a way for states to increase their turnout without sacrificing security. 

Oklahoma does not currently have signatures on file for every voter, but this could become a reality in the near future. Hawaii is implementing its first complete vote-by-mail election, and it is mailing signature capture cards to each voter in order to obtain a current signature. The signatures will then be filed and used to verify each ballot. 

While verifying ballots through signature verification is likely not possible for elections in 2020 due to time constraints, there are multiple other measures that will provide adequate security during the transition. Oklahoma could follow the lead of the eight states, shown above in red, that require the signatures of one to two witnesses on each absentee ballot. Oklahoma could also choose to rely on an identifying number for each voter, such as a driver’s license number or the last four digits of the voter’s social security number. Additionally, each Oklahoma ballot has a unique barcode that identifies the ballot and keeps it from being processed multiple times. Barcodes can also be used to ensure no duplicate ballots are cast. Requiring witness signatures, verifying ballots through identifying numbers, or relying on unique barcodes is much more accessible than requiring a notary or a copy of identification. The election board secretary has said removing the notary requirement would “effectively leave Oklahoma without any verification of absentee voters in place,” but the methods above provide readily available remedies to ensure voting integrity. These secure methods give voters the chance to cast their votes fully from home, therefore extending access to everyone, both during the pandemic and in the years to come. 

Unfortunately, the perceived threat of voter fraud is often used to discourage the expansion of absentee voting. However, fraud through absentee ballots is “virtually nonexistent.” The Brennan Center for Justice reports that Americans are more likely to be struck by lightning than they are to commit voter fraud by mail. In Oregon, a state that votes almost exclusively from home, the fraud rate is 0.0000001 percent. This is a matter of a dozen cases of fraud among over 100 million mail-in ballots. In Oklahoma, there have been only three voter fraud convictions involving absentee ballot in the last four decades: the 1983 federal conviction of former House Speaker Dan Draper and Majority Floor Leader Joe Fitzgibbon, and two state convictions including a 2012 Adair County case where a man notarized 33 ballots that were contested in a school board race and a 2018 Oklahoma County case involving a man running for the local town board. Considering the millions of votes cast during the past 40 years, this does not create sufficient reason to construct voting barriers or avoid the necessary work of instituting signature verification or other proven verification methods. There is no credible evidence that voter fraud would increase if Oklahoma moves from notary verification to a more accessible way of validating ballots.

Our democracy is worth the work.

The right to vote is perhaps the most fundamental aspect of democracy, and ensuring that all Oklahomans can fully exercise that right is incredibly important right now. In the coming months, important decisions will be made that impact all Oklahomans. In the June election alone, Oklahomans will decide whether or not to expand Medicaid, as well as casting primary votes for statewide offices, as well as senators and representatives throughout the state. In November, we will vote not only for President, but also for those who will represent our communities at the state and federal levels. These are important decisions to which all voters should have a voice as we work to rebuild an economy and social safety net impacted by a national health emergency. Instituting more accessible ways to vote from home during and after the pandemic will go a long way towards making this a reality. 

Oklahomans deserve to vote. 

Improving access to voting from home is supported by a majority of voters from both political parties and independents. This also has been proven to increase overall turnout without impacting either party’s share of the vote. Yet, the Legislature has chosen to make voting from home less accessible to all Oklahomans by requiring a form of identification for 2020 elections and reinstating the notary requirement in future years. These requirements are problematic in the best of times, and they are undue burdens during a pandemic. This is no time to make voting more difficult than it is in most other states. The Legislature should be serving Oklahomans, not making it harder for them to exercise their fundamental right to vote. The requirements enacted by SB 210 can and should be reversed with alternatives that require less risk to our citizens. Oklahomans deserve better.

About the Author

Emma Morris serves as the Public Policy Intern. She graduated from the University of Oklahoma in fall 2019 with dual degrees in Women’s and Gender Studies, and Public and Nonprofit Administration. She is an alumnus of OK Policy’s Oklahoma Summer Policy Institute.