Voting by mail: Courts need to get real

Just before the Fourth of July weekend, the Supreme Court of the United States, by what has now become its customary 5-4 vote, granted a stay of a lower court decision that would have required Alabama to permit Alabamians to vote by mail without having their ballots notarized or attested by two witnesses. It’s easy, as the end of the Court’s term approaches, with the usual flurry of full-length opinions in major cases, to overlook mere orders like the one in People First of Alabama v. Merrill. Big mistake. This order is one of the most disturbing actions the Court has taken — and a far cry from the noble role it could be taking. While the Court — okay, usually a bare majority — has in some contexts been a surprising force for good, it seems to have a tin ear for important parts of our system of democracy. Voting by mail is one.

A bit of background — and a personal note. Fresh out of law school, I served in the military from 1969 to 1972. During that period there came a time when I wanted to vote in a primary election in my home state, New York. Amazingly, New York law at the time made no provision for absentee ballots in primaries, and of course in New York City the primary was typically more important than the general election. (At the time, Delaware and Vermont also made no provision for primary absentee ballots.)

Because I was stationed in Boston and had to be at my duty station on Election Day, I couldn’t vote without an absentee ballot. I became a plaintiff in a case challenging the New York law, and thought it was a slam dunk. The other plaintiffs had equally good excuses for not being able to vote in person: They were a shut-in, a college student at an out-of-state university, and an airline employee who was flying that day.

I was amazed when a three-judge federal district court in Brooklyn unanimously held that the Constitution did not require New York to let us vote by absentee ballot. A direct appeal to the Supreme Court failed as well — only Justice William O. Douglas thought we had an arguable constitutional claim. He alone voted to hear our appeal. So out of 12 judges and justices who functioned, the overwhelming majority thought we had no case.

New York later changed its law, but Fidell v. Board of Elections seems to be good law. In this sense, the Supreme Court’s latest order is in keeping with at least one strand of the court’s jurisprudence.

Whether or not you agree that the Constitution, even now, doesn’t compel states to permit absentee voting (which basically means voting-by-mail), there is another aspect to this issue that totally explodes any claim that it is fair game to require people who either want or need to vote by mail to have their ballot executed before a notary public — and it doesn’t have to do with the fact that notaries may be hard to find or may charge a nominal fee for their services. Rather it has to do with federal law about oathtaking on documents with legal significance.

Since 1976, federal law has dispensed with notaries public. For the last 44 years, Section 1746 of the Judicial Code (title 28 of the U.S. Code) has provided:

“Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:

(1) If executed without the United States: ‘I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).

(Signature).’

(2) If executed within the United States, its territories, possessions, or commonwealths: ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).

(Signature).’”

In other words, for all federal purposes, large and small, except court depositions, oaths of office, and oaths that must be given in front of some official other than a notary, there is no need for a notary to administer an oath. The individual simply signs and hands or mails the form in. Signing falsely is perjury.

If this is good enough for the overwhelming majority of attestations required for the infinite variety of federal government purposes, someone will have to explain why it is not good enough for persons who, seeking to exercise their right to vote, need to find a notary or two witnesses and go through a face-to-face ritual, especially (but not only) during the current pandemic.

Those who are litigating the validity of Alabama’s one-notary-or-two-witnesses requirement should cite Section 1746. Perhaps the appellate judges and justices who will rule on the merits will see the cynicism and folly of that requirement. It should also lead them to wonder about the good faith and legal validity of the other stumbling blocks Alabama has chosen to put in the path of eligible voters.

Eugene R. Fidell teaches at Yale Law School and is of counsel at the Washington, D.C. law firm Feldesman Tucker Leifer Fidell LLP. He edits the blog Global Military Justice Reform, globalmjreform.blogspot.com, and is on the steering committee of Lawyers Defending American Democracy.