DCCC et al v. Ziriax et al

Filing 2

COMPLAINT against Jerry Buchanan, Heather Mahieu Cline, Tim Mauldin, Tom Montgomery, Debi Thompson, Paul Ziriax (paid $400 filing fee; receipt number AOKNDC-2207162) by DCCC, Oklahoma Democratic Party (Frasier, Frank)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OKLAHOMA
(1) DCCC and
Case No. 20-CV-00211-JED-JFJ
(2) OKLAHOMA DEMOCRATIC PARTY,
Plaintiffs,
COMPLAINT FOR INJUNCTIVE AND
DECLARATORY RELIEF

v.
(1) PAUL ZIRIAX, in his official capacity as
the Secretary of the Oklahoma State
Election Board;
(2) TOM MONTGOMERY, in his official
capacity as Chairman of the Oklahoma State
Election Board;
(3) DR. TIM MAULDIN, in his official
capacity as Vice-Chairman of the Oklahoma
State Election Board;
(4) HEATHER MAHIEU CLINE, in her
official capacity as a member of the
Oklahoma State Election Board;
(5) JERRY BUCHANAN, in his official
capacity as an alternate member of the
Oklahoma State Election Board; and
(6) DEBI THOMPSON, in her official capacity
as an alternate member of the Oklahoma
State Election Board,
Defendants.

Plaintiffs DCCC and the OKLAHOMA DEMOCRATIC PARTY file this Complaint for
Injunctive and Declaratory Relief against Defendants PAUL ZIRIAX, in his official capacity as
the Secretary of the Oklahoma State Election Board (the “State Board”); TOM MONTGOMERY,
in his official capacity as Chairman of the State Board; DR. TIM MAULDIN, in his official
capacity as Vice-Chairman of the State Board; HEATHER MAHIEU CLINE, in her official

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capacity as a member of the State Board; and JERRY BUCHANAN and DEBI THOMPSON, in
their official capacities as alternate members of the State Board, and allege as follows:
STATEMENT OF THE CASE
1.

A highly infectious novel coronavirus is spreading rapidly through the United

States and the State of Oklahoma. As of the date of this filing, 5,086 Oklahoma residents have
tested positive for COVID-19—the disease caused by the coronavirus—and it has officially
claimed the lives of 285 Oklahomans. These numbers are increasing daily. Yet, the Director of the
Centers for Disease Control and Prevention (“CDC”) is already cautioning of a second, more
deadly wave coming in the fall, which he predicted will “be even more difficult than the one we
just went through.” It is anticipated to coincide with the beginning of flu season, just when
Oklahoma’s voters would ordinarily head to the polls to vote in the coming November 3, 2020
general election (the “November Election”). Thus, both the upcoming June 30, 2020 primary and
the November Election are projected to occur during a public health crisis the likes of which this
country has not seen for over 100 years.
2.

The disease spreads mainly from person-to-person transfer through respiratory

droplets when an infected person coughs, sneezes, or even, in some cases, speaks or breathes. It
has been increasingly discovered that a substantial number of people have become infected by
contact with an entirely asymptomatic or pre-symptomatic carrier of the virus. Super-spreaders
who are unaware that they are infected have spread the virus to large numbers of people at family
gatherings, in their workplaces, at restaurants, at indoor sporting events, and even at a choir
practice. The virus can also spread from contact with contaminated surfaces of objects. It is highly
contagious and causes severe symptoms and even death in people of all ages. Elderly Americans
are particularly at risk, but so are younger Americans with relatively common pre-existing

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conditions, such as asthma. Some healthy young people have died of the virus, while others have
suffered severe and debilitating large vessel strokes. More recently, an increasing number of
children are exhibiting alarming symptoms that seem to be the result of an immunological response
after they have fought off the virus. Some have ended up on ventilators, and a few have died.
Experts cannot predict whether a particular person will die or suffer serious complications from
the virus. Nor can anyone predict who will become an asymptomatic spreader, unwittingly
infecting their friends, loved ones, and even strangers who they interact with as they go about their
daily lives.
3.

As a result, public health experts around the globe, including in local and federal

government here in the United States, have strongly encouraged broad social distancing and selfisolation measures in an attempt to flatten the curve of the virus while we learn how—and ensure
that our hospitals have the capacity to—fight it. Consistent with that guidance, Oklahoma
Governor Kevin Stitt has issued a series of executive orders in response to the crisis. The first was
issued on March 15, 2020, when he declared an emergency in all 77 Oklahoma counties “caused
by the impending threat of COVID-19” to Oklahomans “and the public’s peace, health, and
safety.” 1 He ordered all residents over the age of 65 and those who have “serious underlying
medical conditions” to stay home “to protect the health and lives of Oklahomans, especially our
vulnerable populations,” and directed those who do leave their homes to engage in social
distancing “by staying out of crowded places, not gathering in groups, and staying at least 6 feet
from other people.” 2

1

Governor’s
Exec.
Orders
regarding
COVID-19,
https://www.ok.gov/okdocc/News_Media/Governor's_Executive_Orders_regarding_COVID-19/index.html.
2
See,
e.g.,
Exec.
Dep’t
Fourth
Am.
Exec.
Order
2020-13,
Apr.
24,
2020,
https://www.sos.ok.gov/documents/executive/1937.pdf (emphasis added).

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4.

The CDC has recommended that, in light of the significant health risks that

requiring people to congregate in large numbers currently pose, jurisdictions encourage voters to
vote absentee and broadly reduce methods of voting that lead to direct contact with other people,
including among voters and between voters and poll workers. Jurisdictions that have held elections
since the crisis began have, not surprisingly, found that extraordinarily high numbers of voters are
choosing to exercise their right to vote absentee, while at the same time people who in the past
would have volunteered to staff the polls (many of whom are elderly and thus in a particularly high
risk group for serious complications from COVID-19) are refusing to do so, and many locations
that previously served as polling places, such as senior centers and schools, are unwilling to open
their doors for that purpose.
5.

In Oklahoma, too, it is certain that large numbers of voters will turn to voting

absentee in order to exercise their right to the franchise. Oklahoma permits all of its registered
voters to apply to vote absentee. Okla. Stat. tit. 26, § 14-105. But mere statutory access to voting
absentee is not sufficient to protect voters’ constitutional rights in the face of this pandemic. As
the U.S. Supreme Court said long ago, “There is more to the right to vote than the right to mark a
piece of paper and drop it in a box or the right to pull a lever in a voting booth. The right to vote
includes the right to have the ballot counted.” Reynolds v. Sims, 377 U.S. 533, 555 n.29 (1964)
(citation and quotation omitted). Oklahoma law currently imposes several burdensome restrictions
and procedures that threaten to deny countless of the State’s lawful, eligible voters this right.
Unless rectified, these barriers will force voters to choose between their health and the health and
safety of their community on the one hand, and their fundamental right to vote on the other. This
is a choice that the U.S. Constitution does not permit states to force its voters to make.

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6.

The provisions at issue are Oklahoma’s (1) onerous and unnecessarily burdensome

notarization, witnessing, and Photo ID requirements, Enr. S.B. 210; Okla. Stat. tit. 26, §§ 14-113.2,
16-123.1 (the “Notarization/Witness/Photo ID Requirement”), (2) refusal to prepay for postage to
return completed absentee ballots (the “Postage Requirement”); (3) rejection of absentee ballots
delivered after 7:00 p.m. on Election Day, id. § 230:30-11-5(a); Okla. Stat. tit. 26 § 14-104; (the
“Election Day Receipt Deadline”); and (4) ban on organizations, like Plaintiffs DCCC and the
Oklahoma Democratic Party, from collecting absentee ballots except in the case of physically
incapacitated or emergency incapacitated voters, Okla. Admin. Code §§ 230:30-9-6(g),
230:30-11-1.1(a); Okla. Stat. tit. 26, §§ 14-108(A), 14-115.1 (the “Absentee Assistance Ban”).
7.

Absent injunctive and declaratory relief, these laws (together, the “Challenged

Provisions”) will operate independently and together to severely burden the right to vote of
thousands of Oklahomans, in many cases resulting in complete disenfranchisement. For these
reasons and those set forth below, this Court should declare unconstitutional and enjoin each of
the Challenged Provisions.
JURISDICTION AND VENUE
8.

Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the

deprivation, under color of state law, of rights secured by the U.S. Constitution.
9.

This Court has original jurisdiction over the subject matter of this action pursuant

to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the U.S. Constitution
and laws of the United States.
10.

This Court has personal jurisdiction over Defendants, members of the Oklahoma

State Election Board, who are sued in their official capacities only.

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11.

Venue is proper in this Court under 28 U.S.C. § 1391(b) because all Defendants are

residents of Oklahoma, in which this judicial district is located, and a substantial part of the events
that gave rise to Plaintiffs’ claims occurred in this judicial district.
12.

This Court has the authority to enter a declaratory judgment and preliminary and

permanent injunctive relief pursuant to Federal Rules of Civil Procedure 57 and 65 and 28 U.S.C.
§§ 2201 and 2202.
PARTIES
13.

Plaintiff DCCC is the national congressional committee of the Democratic Party,

as the term is defined by and used in 52 U.S.C. § 30101(14). Its mission is to elect Democrats to
Congress, including from Oklahoma’s five congressional districts. DCCC works to accomplish its
mission by, among other things, making expenditures for, and contributions to, Democratic
candidates for U.S. Congress and assisting state parties throughout the country, including in
Oklahoma. DCCC intends to expend significant resources to support Democratic candidates in the
State this year.
14.

For example, DCCC will devote considerable time educating an Oklahoma-based

field team to engage in aggressive get-out-the-vote (“GOTV”) efforts, including educating voters
about voting absentee, distributing absentee ballot applications to voters, and mobilizing and
turning out voters in Oklahoma elections this year.
15.

DCCC’s efforts will include focusing on supporting specific subsets of voters,

including low income voters, voters whose essential work (including e.g., in medical care, food
delivery, and grocery stores, to mention just a few) puts them at higher risk of contracting the
virus, as well as on elderly voters, who are at high risk of complications from COVID-19, and thus
have a significant need to vote absentee.

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16.

DCCC will devote substantial time and resources explaining the Challenged

Provisions as part of its voter education efforts, including the Notarization/Witness/Photo ID
Requirement, which did not exist in its current form before this election. DCCC will inform voters
that they must have their ballots notarized or, if they are “physically incapacitated” under the
Legislature’s new definition of that term or caring for someone “physically incapacitated,” they
must have their ballots witnessed by two individuals or submitted with a photocopy of valid photo
identification. DCCC will have to divert more resources to educating voters about what types of
identification are permissible, and that the individual is submitting the affidavit under penalty of
perjury. DCCC will also instruct voters about the limited number of ballots notaries and witnesses
are permitted to sign.
17.

In addition, DCCC will have to divert resources to explain the process for returning

absentee ballots, including the methods (in person and by mail), the Postage Requirement, and the
Election Day Receipt Deadline. DCCC will divert resources to give guidance on when voters
should mail their absentee ballots to ensure that they are received in time to be counted.
18.

DCCC’s efforts would also include assisting voters in delivering their sealed and

voted ballots upon request, if not for the Absentee Assistance Ban. Absent the Ban, DCCC would
concentrate on helping primarily low-income communities—that tend to have fewer polling
locations and difficulty staffing these locations—for whom ballot collection is particularly
important.
19.

The Challenged Provisions directly harm DCCC by frustrating its missions of

turning out Democratic voters who face greater obstacles to voting, such as the elderly and lowerincome voters, and electing Democratic candidates. The provisions make it harder for Democratic
voters, DCCC’s constituents who associate with them to further their shared political and

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expressive ends, to vote. For example, the Notarization/Witness/Photo ID Requirement makes
voting more burdensome by requiring many Democratic voters to leave their houses during a
pandemic to locate notaries, who are difficult to find in the State and inaccessible to many,
including low-income and rural voters. There are also an insufficient number of notaries for all
registered voters to cast their ballots. Because fewer voters will be able to vote for Democratic
candidates for U.S. Congress, the Challenged Provisions harm the Democratic candidates DCCC
supports in Oklahoma. In addition, decreased voter turnout undermines DCCC’s fundamental right
to choose its standard bearers through a vote that accurately reflects the preferences of Democratic
Party membership.
20.

Plaintiff the Oklahoma Democratic Party is the Oklahoma state party committee of

the national Democratic Party, as the term is defined by and used in 52 U.S.C. §§ 30101(4), (15),
and a political party within the meaning of 52 U.S.C. § 30101(16). The Oklahoma Democratic
Party is certified by the State Board to nominate candidates for office to be voted on in a general
or special election and nominates candidates on a regular basis by party primary. Okla. Stat. tit.
26, § 1-102. The Oklahoma Democratic Party has an interest in ensuring that voters have an
opportunity to express their will regarding Democratic Party candidates running for elections, as
well as ballot measures and initiatives those individuals support. The Oklahoma Democratic Party
has hundreds of thousands of members and constituents from across the State, including
Oklahomans who regularly support candidates affiliated with the Democratic Party and
Democratic Party candidates. To accomplish its purpose, the Oklahoma Democratic Party engages
in vitally important activities, including GOTV activities to support Democratic Party candidates
in national, state, and local elections through a meaningful opportunity to cast ballots in Oklahoma.

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21.

These activities include broad-based education campaigns for Democratic voters

on the procedures and deadlines for voting both absentee and in person, including how to comply
with the Challenged Provisions.
22.

This year in particular, the Oklahoma Democratic Party’s GOTV efforts are even

more important due to voter confusion surrounding the Notarization/Witness/Photo ID
Requirement. The Oklahoma Democratic Party has already had to divert resources to respond to a
high volume of calls and emails from Democratic voters unsure whether they must have their
ballots notarized. This is due to the Oklahoma Supreme Court striking down a notarization
requirement, only for the Legislature to enact a few days later a brand new and more complicated
Notarization/Witness/Photo ID Requirement. As a result of voter confusion, the Oklahoma
Democratic Party will divert resources to engage in paid canvassing and paid social media to
clarify how voters must complete their ballots. This includes informing voters that they must have
their ballots notarized or, if they are “physically incapacitated” under the Legislature’s new
definition of that term or caring for someone “physically incapacitated,” they must have their
ballots witnessed by two individuals or submitted with a photocopy of valid photo identification.
23.

Due to the Notarization/Witness/Photo ID Requirement, the Oklahoma Democratic

Party has diverted resources from other programs and day-to-day activities that are core to its
mission, including programs to elect Democratic Party candidates in Oklahoma, in order to attempt
to help its voters overcome the barriers presented by the lack of safe means to cast their ballots. In
addition, because a significant number of Oklahoma voters will be voting absentee for the first
time this year, the Oklahoma Democratic Party will need to further divert resources to educate
voters on how to complete their absentee ballots, despite the Challenged Provisions. This diversion

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of resources will only increase, and will be unprecedented, as the primary and general elections
get closer.
24.

Moreover, the Oklahoma Democratic Party’s efforts would also include assisting

voters in delivering their sealed and voted ballots upon request, if not for the Absentee Assistance
Ban. Absent the Ban, the Oklahoma Democratic Party would concentrate on helping voters—
particularly those with limited mobility and lack of ready access to postage—who reside in
retirement homes and assisted living homes, and for whom ballot collection is particularly
important to ensure that they are able to timely return their ballots to the appropriate elections
officials.
25.

An election held without accounting for the COVID-19 pandemic directly harms

the Oklahoma Democratic Party because it frustrates its mission and the effectiveness of its efforts
to persuade and mobilize voters to vote for Democratic candidates and causes. The Challenged
Provisions impede Democratic voters’ ability to exercise their constitutional right to vote. For
example, the Notarization/Witness/Photo ID Requirement imposes an undue burden on many
Democratic voters who are confused, so close to the primary election, whether they need to have
their absentee ballot notarized, and who are required to leave their houses during a pandemic to
locate notaries. Because fewer voters will be able to vote for Democratic candidates, the
Challenged Provisions harm the Democratic candidates the Oklahoma Democratic Party supports.
In addition, decreased voter turnout injures undermines Oklahoma Democratic Party’s
fundamental right to choose its standard bearers through a vote that accurately reflects the
preferences of Democratic Party membership.
26.

Defendant Paul Ziriax is the Secretary of the Oklahoma State Election Board, the

State’s chief election official, and is named as a Defendant in his official capacity. The Secretary

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oversees county election boards and is responsible for “promulgat[ing], repeal[ing] or
modify[ing]” rules or regulations to “maintain[ ] uniformity in the application, operation and
interpretation of the state and federal election laws[.]” Id. § 2-107.
27.

Defendant Tom Montgomery is the Chairman of the Oklahoma State Election

Board and is named as a Defendant in his official capacity. Defendant Dr. Tim Mauldin is the
Vice-Chairman of the Oklahoma State Election Board and is named as a Defendant in his official
capacity. Defendant Heather Mahieu Cline is a member of the Oklahoma State Election Board and
is named as a Defendant in her official capacity. Defendants Jerry Buchanan and Debi Thompson
are alternate members of the Oklahoma State Election Board and are named as Defendants in their
official capacities. These Defendants compose the Oklahoma State Election Board. Their
responsibilities include, but are not limited to, administering and enforcing Oklahoma’s election
laws and overseeing elections. See id. § 2-106; Okla. Const. art. 3, § 2.
28.

At all times relevant to this action, Defendants have acted under color of state law.
STATEMENT OF FACTS AND LAW

A.

As the COVID-19 pandemic persists, an unprecedented number of Oklahomans will
rely upon voting absentee.
29.

Because of the risks of voting in person in the midst of this unprecedented public

health crisis, states that have held elections since the pandemic begun have experienced dramatic
increases in voting absentee by eligible voters.
30.

For example, Wisconsin reported issuing almost 1.3 million absentee ballots in the

primary election it held last month, representing a striking increase from a total of 101,803 during
the 2016 primary.

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31.

That same month, Ohio experienced a 421 percent increase in requests to vote

absentee in its primary when compared with absentee voter turnout in 2016, the last time the state
held a primary in a presidential election year.
32.

There is no reason to expect that Oklahoma’s electorate will not similarly choose

overwhelmingly to vote absentee.
33.

In the midst of the pandemic, the risks of voting in person remain significant even

when elections officials attempt to comply with social distancing and sanitizing requirements.
34.

In Wisconsin, for example, where thousands of voters did not receive the absentee

ballots in time to vote or return them in time to be counted, a significant number of voters presented
in person at the polls to vote on Election Day. Although the State imposed social distancing and
took other precautions against the spread of the virus, public officials have identified over 60
people, including poll workers, who tested positive for COVID-19 after voting or working at
polling places in the primary election.
35.

Even before Wisconsin, the CDC, recognizing the serious risks involved, advised

states to encourage voting absentee and recommended that voters “use voting methods that
minimize direct contact with other people and reduce crowd size at polling stations.”
36.

Defendant Ziriax declared an “election emergency” in Oklahoma on March 18 and

again on April 10, agreeing with the CDC’s recommendations. The first election emergency
“require[d] County Election Boards to accept resolutions adopted by the governing bodies of
school districts, municipalities, technology districts and counties to move their April 7 elections to
another date” to “help efforts to flatten the COVID-19 curve.” 3 The second “election emergency”

3

Okla. State Election Bd., State Election Board Secretary Declares Election Emergency; Authorizes Local Entities to
(Mar.
18,
2020),
Reschedule
https://www.ok.gov/triton/modules/newsroom/newsroom_article.php?id=196&article_id=56539.

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involved the “contests of candidacy”⸺where a candidate for state or federal office can challenge
another’s candidacy for the same office⸺scheduled for April 21. Although the Board “historically
held all contest of candidacy hearings” in the State Capitol open to the public, Defendant Ziriax
agreed with “recommendations from the” CDC, “the Oklahoma State Department of Health” “and
other health experts that large public gatherings should be limited in an effort to decrease the risk
of the community spread of COVID-19.” As a result, he “strongly encouraged” everyone to attend
the contests by teleconference or videoconference. 4
37.

Since 1995, Oklahoma has permitted all registered voters to vote absentee in any

state and federal election without an excuse. See Laws 1995 c.290, § 14-105, eff. Nov. 1, 1995
(SB 556).
38.

Voters may apply for absentee ballots electronically, by fax, mail, telegram, or in

person. See Okla. Admin. Code §§ 230:30-5-13(a), 230:30-9-9.
39.

But mere statutory access to absentee voting is not sufficient to protect voters’

constitutional rights in the face of this pandemic.
40.

At issue in this case are several provisions of Oklahoma law that impose

burdensome restrictions and procedures that threaten to deny countless of the State’s lawful,
eligible voters the right not only to cast an absentee ballot, but to have it counted.
B.

The Notarization/Witness/Photo ID Requirement is dangerous for Oklahoma voters
and cannot be justified by sufficiently weighty State interests.
41.

Oklahoma requires that elections officials reject absentee ballots unless they have

their absentee ballot affidavit notarized. Okla. Stat. tit. 26, § 14-108. The affidavit is a separate
document sent to the voter with the ballot “stating that the voter is qualified to vote and that the

4

Okla. State Election Bd., Declaration of Election Emergency 2020-02 (Apr. 10, 2020),
https://www.ok.gov/elections/documents/DECLARATION%20OF%20ELECTION%20EMERGENCY%20202002-Sealed%20and%20Notarized.pdf.

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voter has personally marked the ballots, and has not exhibited the marked ballots to any other
person” (the “Notarization Requirement”). Id. § 14-107(A)(2). The only exceptions to the
Notarization Requirement are for (1) physically incapacitated voters, (2) voters who are caregivers
for physically incapacitated voters, and (3) voters who provide a photocopy of certain specific
forms of photo identification (the “Photo ID Requirement”). Id. §§ 14-110.1, 14-113.2(A).
42.

The Photo ID Requirement was created by the Legislature in response to the

Oklahoma Supreme Court decision in The League of Women Voters of Okla. v. Ziriax, No.
118765, -- P.3d --, 2020 OK 26, 2020 WL 2111348 (Okla. May 4, 2020) (citing Okla. Stat. tit. 12,
§ 426), issued earlier this month, in which the Court struck down the Notarization Requirement
for all other voters, finding that it was sufficient for voters to, instead, simply sign the ballot
affidavit under penalty of perjury.
43.

Four days later, the Legislature approved SB 210, which reinstated the Notarization

Requirement and created the Photo ID Requirement, which allows a voter to avoid the Notarization
Requirement if they both sign their ballot affidavit under penalty of perjury and submit, with their
ballot, a photocopy of a form of photo identification that Oklahoma would deem acceptable had
the voter cast his or her ballot in person. Okla. Stat. tit. 26, § 7-114 (listing acceptable forms of
photo ID).
44.

Under Oklahoma law, qualifying photo identification for voting purposes contains

a name, photograph, expiration date after the election, and was issued by “the United States, the
State of Oklahoma or the government of a federally recognized Indian tribe or nation.” Id. A “voter
identification card issued by the appropriate county election board” also counts. Id.
45.

The Photo ID Requirement also allows a physically incapacitated voter, and those

caring for physically incapacitated voters, to avoid having two individuals witness the voter’s

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signature and sign their signatures and addresses (the “Witness Requirement”, id. § 14-113.2(A)),
if the voters both sign their ballot affidavit under penalty of perjury and submit, with their ballot,
a photocopy of a form of photo identification that Oklahoma would deem acceptable had the voter
cast his or her ballot in person.
46.

Each of these requirements, which are referred to collectively throughout this

Complaint as the Notarization/Witness/Photo ID Requirement, impose substantial, unjustifiable
burdens on Oklahoma voters who vote absentee.
The Notarization Requirement
47.

The Notarization Requirement requires that absentee voters who are not physically

incapacitated or caring for physically incapacitated persons get their ballot affidavits notarized. Id.
§ 14-108.
48.

Almost all Oklahomans who need to find a notary will have to leave their homes in

order to do so.
49.

There are currently 76,458 notaries registered in Oklahoma, as compared with the

2.09 million voters registered in Oklahoma, as of January 2020.
50.

Thus, in nearly all cases, the Notarization Requirement will compel the voters who

must satisfy it to interact with another person—almost certainly outside of their home—and touch
common objects, risking exposure to COVID-19, in order to exercise their right to vote.
51.

Oklahoma further forbids a notary from notarizing more than 20 ballots in a given

election unless the notary is at his or her place of business. Id. § 14-108.1. Yet, as a result of the
COVID-19 epidemic, substantial numbers of the State’s notaries are likely not working from their
“place of business,” as many businesses remain shuttered for the safety of Oklahoma citizens.

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52.

As a result, even if some number of notaries were willing to make themselves

available and literally go door-to-door in order to notarize absentee ballots, finding some way to
do so in a manner that kept themselves and the voters safe, they would be limited in their reach
because of the restrictions placed on the number of ballots they may notarize.
The Witness Requirement
53.

The exception carved out for physically incapacitated voters and those who are

caregivers for physically incapacitated voters is equally problematic.
54.

To utilize this exception, voters must have their signatures witnessed by two other

people, who must also sign the voter’s affidavit and provide their addresses. Id. § 14-113.2(A).
55.

Voters who use the witness exception for physically incapacitated voters and their

caretakers must return their ballots by mail—in person delivery is not permitted. Id. §§ 14-108(A),
14-113.2(A).
56.

In enacting SB 210, the Oklahoma Legislature amended the definition of what

constitutes as “physically incapacitated” for these purposes to include a narrow sliver of
Oklahomans affected by COVID-19.
57.

Specifically, if “a State of Emergency declared by the Governor related to the

COVID-19 pandemic is in effect forty-five days prior to a scheduled election, or is declared within
forty-five days of the election,” “physically incapacitated” voters may also include the following
narrow categories of voters: (1) those who have tested positive for COVID-19 and are receiving
treatment or subject to quarantine under doctor’s or health department orders; (2) people tested for
COVID-19 awaiting results; (3) people exhibiting symptoms of COVID-19 who have been advised
by the voter’s personal physician or the county health department to quarantine or self-isolate; (4)
people in “group[s] considered at ‘higher risk of severe illness’ due to age or underlying health

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conditions as defined by the CDC, and as such are subject to a ‘stay at home’ or ‘safer at home’
or similar order by the Governor or by an authorized municipal authority; or (5) voters with a
“written recommendation from the voter’s personal physician that due to an underlying health
condition the voter should not leave his or her home due to the COVID-19 pandemic.”
58.

The written recommendations from public health officials telling all people to stay

at home and at least six feet away from other people due to the risk of transmission via
asymptomatic carriers do not qualify for the revised definition of “physically incapacitated,” as
enacted by the Legislature in SB 210.
59.

A substantial number of physically incapacitated voters will have to leave their

homes and break quarantine—or invite additional persons in their home despite their selfisolation—to obtain the two witnesses required to satisfy this requirement.
60.

More than 416,000 people in Oklahoma live in households with fewer than three

adults. Those voters cannot rely on members of their household to serve as witnesses and have no
choice but to venture outside of their safe spaces, or invite others in.
61.

And these voters must interact with not just one but two other people, and touch

common objects, in the process risking exposure to COVID-19, in order to be able to exercise their
right to vote.
62.

Those newly designated as “physically incapacitated” by SB 210—i.e., those voters

who have or are suspected by medical personnel to have an active case of COVID-19—will almost
certainly fail to find two witnesses willing to risk exposure to the virus in order to assist the person
in voting.
63.

The Witness Requirement also imposes a particular burden on physically

incapacitated voters at long-term care facilities and retirement homes.

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64.

In the current pandemic, visitors are broadly prohibited “from entering and visiting

patients and residents at nursing homes, long-term care facilities, and retirement homes” except in
end-of-life situations. 5
65.

The new law, SB 210, requires “a designated official” at nursing homes and

veterans’ centers to serve as a witness for ballot affidavits. It is not clear if, by requiring this
designation, the Legislature intended to permit residents of nursing homes and veterans’ centers
to comply with the Witness Requirement by obtaining only one witness signature, not the two
otherwise required.
66.

That said, facilities like nursing homes, long-term care facilities, and retirement

homes, have had some of the highest concentrated death tolls in the pandemic. Thus, requiring a
single individual to serve as the witness for every voter’s absentee ballot in such a facility, a
process that requires the witness and voter to be in close proximity and handle the same document,
creates an unnecessary, heightened risk in the heart of Oklahoma’s most vulnerable facilities.
67.

SB 210 has no carveout for other long-term care facilities or retirement homes.

Thus, physically incapacitated voters at those locations still must find two other residents or
staffers willing to violate social distancing measures and handle the voters’ ballots in order to
exercise their right to vote.
68.

Neither the Notarization nor the Witness Requirement serves any State interest that

can justify the burdens they impose on voters, particularly in the midst of this unprecedented health
crisis.

5

See Exec. Dep’t Fourth Am. Exec. Order 2020-13, supra note 2.

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69.

Oklahoma is one of only five states that require absentee voters to obtain

notarization or two witnesses. 6 There is no evidence that the states without such requirements are
overrun by voter fraud. Indeed, voter fraud is extremely rare in Oklahoma and elsewhere.
The Photo ID Requirement
70.

Far from alleviating the burdens imposed on voters by the Notarization or Witness

Requirements, the Photo ID Requirement imposes its own equally unjustifiable burdens on and
hurdles to Oklahomans’ successful exercise of the right to vote.
71.

The Photo ID Requirement requires voters to submit either a photocopy of “a voter

identification card issued by the appropriate county election board” or a government-issued
document that has their name, photograph, and an expiration date after the election. Enr. S.B. 210;
Okla. Stat. tit. 26, §§ 14-108(A), 14-113.2(A). Voters must return their ballots in person or by
mail. Id.
72.

To use the Photo ID Requirement, a voter must have access to a scanner and printer,

which many voters do not have at home.
73.

As with most of the requirements, the burden falls heaviest on low-income and

elderly voters, as well as students, many of whom do not own printers and scanners.
74.

A State Department of Education survey found that “roughly one in three students”

in Oklahoma does not even have a computer at home.
75.

Almost 21 percent of Americans over 65 live in a household without a computer.

6

North Carolina, Rhode Island, Mississippi, and Missouri are the others. See Ala. Code §§ 17-9-30(b), 17-11-7,
17-11-10; Alaska Stat. § 15.20.030; La. Stat. § 18:1306(2)(a); Minn. Stat. § 203B.07; Miss. Code §§ 23-15-627,
23-15-635, 23-15-633; Mo. Rev. Stat. §§ 115.279, 115.283, 115.295; N.C.G.S. § 163-231; Okla. Stat. tit. 26, §§
14-108, 14-113.2(A); 17 R.I. Gen. Laws § 17-20-23; S.C. Code §§ 7-15-220, 7-15-230; Va. Code §§ 24.2-706,
24.2- 707; Wis. Stat. § 6.87(4)(b)1; see also Voting Outside the Polling Place: Absentee, All-Mail and other Voting
at Home Options, NCSL, https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx.

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76.

Countless voters who desire to use the Photo ID Requirement will thus have to

leave their homes and risk being exposed to COVID-19 in order to do so.
77.

Even then, they may not be able to easily access a scanner and photocopy machine,

because business and libraries are currently closed. If the voter finds one, they may very well have
to pay a fee to utilize it. And, of course, in utilizing that machinery, they are likely to not only have
to interact with other people, but also to touch surfaces that have been recently touched by other
people, needlessly risking exposure to the virus.
78.

That the Notarization/Witness/Photo ID Requirement is not necessary to ensure the

integrity of Oklahoma’s elections (or serve any other legitimate government purpose) is
demonstrated by the fact that Oklahoma does not impose any of these restrictions on
uniformed-service or overseas voters who vote absentee. See Uniform Military and Overseas
Voters Act, Okla. Stat. tit 26, § 14-136, et seq. Those voters need only sign the ballot affidavit and
declare that “a material misstatement of fact . . . may be grounds for a conviction of perjury.” See
id. § 14-148.
79.

Similarly, no notarization, witness signatures, or photocopy of photo identification

is required for emergency incapacitated voters—“voters who become[ ] incapacitated after 5:00
p.m. on [the] Tuesday preceding an election”—who return their absentee ballots by mail. Id.
§ 14-115.1.
80.

Multiple other Oklahoma laws ably and adequately deter and punish voter fraud,

rendering the Notarization/Witness/Photo ID Requirement unnecessary.
81.

Voters who (1) “knowingly execute[ ] a false application for an absentee ballot[,]”

id. § 16-102.2; (2) “knowingly swear[ ] or affirm[ ] a false affidavit[,]” id. § 16-103; and
(3) “knowingly vote and submit[ . . .] absentee ballot[s] issued to another person” and who

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“knowingly conspire[ ] to commit fraud or perpetrate[ ] fraud[,]” id. §§ 16-102, 16-105, are guilty
of a felony.
82.

And voters who “interfere[ ] with a registered voter who is attempting to vote” or

“with the orderly and lawful conduct of an election” or who “attempt[ ] to influence the vote of
another by means of force or intimidation” are guilty of a misdemeanor. Id. § 16-113.
C.

The Postage Requirement will require Oklahoma voters to pay to vote safely and
cannot be justified by sufficiently weighty State interests.
83.

Because Oklahoma does not provide prepaid postage on its absentee ballots, voters

who mail in their absentee ballot must incur and bear a monetary burden in order for their vote to
be counted.
84.

The Postage Requirement also presents several practicable problems that will prove

for some voters, particularly in the context of the current pandemic, insurmountable.
85.

The severity of the burdens imposed by the Postage Requirement are significantly

exacerbated under the present circumstances, when many Oklahomans are experiencing significant
financial struggles due to the economic impact of COVID-19.
86.

Many people do not keep stamps at home. The volume of mail sent thorough the

U.S. Postal Service (“USPS”) has declined 43 percent since 2001. Many now pay their bills and
otherwise conduct their communications online, and the result has been that stamps are no longer
a household staple.
87.

Before the pandemic, a voter with access to reliable transportation could go to the

post office to buy a single stamp; today, where many voters who request an absentee ballot will be
doing so because they have underlying conditions that put them at higher risk for severe
complications from COVID-19, doing so could pose an equally severe threat to their health.

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88.

While there are some services that allow voters to print postage online, these

services also require a printer, scale, and paid subscription.
89.

A voter can order stamps online on the USPS website, however, they take five to

seven days to be delivered under normal circumstances, are not sold individually, must be
purchased on a sheet of stamps that costs a minimum of $11.00, and require the purchaser to pay
for shipping and handling of the stamps themselves.
90.

It is also not always clear how much postage a voter may need in order to return his

or her ballot. Depending on the number of races at issue in a given jurisdictions, it may require
more than one First-Class stamp to cover the return postage.
91.

While these financial costs may seem trivial to some, an estimated 275,000 jobs

have already been impacted in Oklahoma as a result of COVID-19, with unemployment claims in
the State at nearly five times higher than the 1991 record for first-time State filings.
92.

The reality is that that many Oklahomans are counting every penny, and this

additional burden, together with legitimate concerns about exposing themselves to the virus, is
highly likely to cause widespread and unjustifiable disenfranchisement.
93.

For voters who do not receive their ballots in the mail until close to Election Day—

a problem that thousands of Wisconsin voters encountered in the recent primary election there—
the cost to overnight or expedite their ballot to ensure that it arrives by 7:00 p.m. on Election Day
discussed below, will impose further burdens on their right to vote.
94.

All of these burdens will fall disproportionately on the socioeconomically

disadvantaged, many of whom are constituents of DCCC and Oklahoma Democratic Party.
95.

Lower income and younger voters are less likely to have a stamp on hand. Although

people can buy stamps online, many voters do not have internet access, a credit card, and a printer.

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96.

Even if voters have the means to purchase stamps, many voters will have to leave

their homes in order to obtain them⸺a dangerous proposition during the COVID-19 crisis.
97.

The trip to a post office or other establishment that sells stamps is even more

dangerous for those who lack vehicles and must rely on public transportation. Some rural voters
in Oklahoma do not have viable public transportation options.
98.

There is evidence that postage costs broadly burden voters and that voter turnout

dramatically increases when voters do not have to pay for postage. During the 2017 and 2018
primary elections in King County, Washington, thousands of voters received envelopes with
postage prepaid. Those pilot programs resulted in a double-digit increase in the percentage of voter
turnout in at least one town. In May 2018, Washington State started funding prepaid absentee
ballots in the remaining counties.
99.

Oklahoma recognizes that postage is a burden on voters. That is why Oklahoma

citizens living overseas and military personnel abroad need not pay for postage to mail their
completed absentee ballots. 7 “Any American voter living overseas can mail his or her completed
ballot back to the United States free of charge at the nearest American embassy, consulate, or
Diplomatic Post Office (DPO). If the voter has authorized access to a military base, he or she can
mail a ballot free of charge at the nearest Army Post Office (APO) or Fleet Post Office (FPO).” 8
100.

The State’s only conceivable interest in the Postage Requirement is budgetary,

which cannot outweigh the burden on the right to vote.
101.

Governments, including Oklahoma’s, already provide postage to enable citizens to

readily complete other government forms. For instance, the U.S. Census Bureau sends surveys
with postage-prepaid return envelopes. And, in compliance with the National Voter Registration

7
8

See Election Mail, U.S. Postal Serv., https://about.usps.com/postal-bulletin/2020/pb22539/html/cover_006.htm.
Id. (emphasis added).

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Act, Oklahoma mails postage-prepaid voter registration cards for selected voters to confirm their
address.
102.

For all of these reasons, the Postage Requirement is unconstitutional because voters

must pay to vote safely and, at the very least, it imposes an unnecessary cost on the fundamental
right to vote.
D.

The Election Day Receipt Deadline will result in large-scale disenfranchisement that
cannot be justified by sufficiently weighty State interests.
103.

Voters can request an absentee ballot up until 5:00 p.m. on the Wednesday before

the election, Okla. Stat. tit. 26, § 14-103, but Oklahoma rejects absentee ballots unless they are
received by the secretary of each county election board by 7:00 p.m. on Election Day, regardless
of when the voter first received the ballot from elections officials, when the voter actually mailed
it back, or when the ballot was postmarked, id. § 14-104; Okla. Admin. Code § 230:30-11-5(a).
104.

Thus, even where voters overcome the multiple obstacles already discussed that

operate to hinder their ability to complete and return their ballots, the Election Day Receipt
Deadline threatens to disenfranchise them.
105.

Even before the current pandemic, in the past four years, nearly 3,000 absentee

ballots were rejected in Oklahoma because of the Election Day Receipt Deadline.
106.

In many cases, the Election Day Receipt Deadline threatens to disenfranchise voters

for circumstances entirely beyond their control.
107.

As a result of the anticipated deluge of absentee ballot requests and returns,

understaffed clerk’s offices, and the USPS’s current budget crisis—as well as reductions in
available staff, resulting from the current pandemic—which has rendered mail service increasingly
slow and unpredictable, Oklahomans might receive their absentee ballots too late to return them
before 7:00 p.m. on Election Day, even if they turned the ballots around immediately.

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108.

Exacerbating the problem is the lack of clear and consistent guidance to voters from

Oklahoma elections officials about when to mail their absentee ballots.
109.

The U.S. Election Assistance Commission recommends voters “assume one week

for USPS delivery” of their ballots to election officials under normal circumstances, and that
elections officials “consistently communicate[ this message] to voters who use absentee ballots. 9
110.

And a study of USPS delivery of absentee ballots recommended that voters must

place “their ballots in the mail five days prior to Election Day for states” with an Election Day
receipt deadline. 10
111.

There is no notice of these or any time frames on Oklahoma’s State Board or county

election board websites, so voters are left to make their own guess as to when they must mail their
ballot in order to have a reasonable chance of it reaching the county secretary’s office by the
Election Day Receipt Deadline.
112.

The Election Day Receipt Deadline will threaten more voters with

disenfranchisement than ever before in the coming election, when many voters who opt to cast
their ballots by mail will be doing so for the first time.
113.

These first-time absentee voters are less likely to be familiar with the Election Day

Receipt Deadline, especially when many other mail deadlines in Oklahomans’ lives are
postmark-related. 11

9

2018 Election Cycle Preparation: Tips for State and Local Election Officials, U.S. Election Assistance Comm’n
USPS
Comm.,
Standards
Bd.
https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_election_prep_vote_by_mail_one.pdf; see also Voting by
Mail/Absentee
Voting,
U.S.
Election
Assistance
Comm’n,
https://www.eac.gov/election-officials/voting-by-mail-absentee-voting.
10
Bipartisan Policy Ctr., The New Realities of Voting by Mail in 2016, at 8, available at
https://bipartisanpolicy.org/wp-content/uploads/2019/03/BPC-Voting-By-Mail.pdf.
11
See, e.g., Okla. Stat. tit. 68, § 221.1(A) (applying postmark deadline to tax returns and payments).

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114.

Voters who have historically cast their ballots on Election Day at the polls are also

accustomed to having until Election Day to decide for whom to vote. By effectively requiring these
voters to cast their absentee ballots a full week before Election Day for those ballots to be counted,
the Election Day Receipt Deadline forces Oklahoma voters to forego information about the
election or the candidates that may arise in the final week leading up to Election Day that could
influence their decision. The Election Day Receipt Deadline thus deprives voters of the ability to
engage in this robust period of civic engagement.
115.

As noted above, the pandemic will only make the risk of disenfranchisement posed

by the Election Day Deadline more severe and substantially more likely to impact a significantly
larger number of voters than in the past. As in other states that have held elections since the
pandemic began, county election boards⸺likely understaffed or working remotely due to the
pandemic and related government orders⸺will be delayed in turning around absentee ballot
requests. And strain on the USPS will compound that delay. Voters in other states have recently
reported significant mail delays. As discussed above, the USPS is struggling financially, and
operations have slowed due to the pandemic.
116.

In Wisconsin’s April election, for example, thousands of voters had not received

their timely requested absentee ballots by that state’s Election Day receipt deadline.
117.

In litigation brought in part to protect voters from disenfranchisement as a result of

that deadline, the U.S. Supreme Court affirmed an extension of the Election Day receipt deadline
in Wisconsin, acknowledging that the state’s interest in enforcing the deadline during the pandemic
was far outweighed by the voters who would otherwise be disenfranchised if ballots postmarked
by Election Day were not counted. See RNC v. DNC, 140 S. Ct. 1205, 1208 (2020) (per curiam).

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118.

As a result, over 140,000 Wisconsinites had their absentee ballots counted instead

of rejected as too late. 12 Absent this extension, those voters would have had to choose between
risking their lives and not voting.
119.

Extending the Election Day Receipt Deadline also would not harm the State’s

interest in the orderly administration of elections in Oklahoma.
120.

Counting ballots continues after Election Day under normal circumstances. County

election boards do not certify results for county offices until 5:00 pm on the Friday after Election
Day, and the State Board does not certify results for state officers until after 5:00 p.m. a week after
Election Day. Okla. Stat. tit. 26, § 7-136. Nor does state law mandate a particular time for public
release of election results; it requires only that the results of the absentee ballots shall not be
announced “earlier than 7:00 p.m. on election day.” Id. § 8-115.
E.

The Absentee Assistance Ban prohibits Plaintiffs and other organizations from
rendering necessary aid to absentee voters during this global pandemic and cannot
be justified by sufficiently weighty State interests.
121.

Oklahoma’s Absentee Assistance Ban prevents anyone but the voter from mailing

or returning his or her absentee ballot. See id. §§ 14-108(A), 14-120; Okla. Admin. Code
§ 230:30-11-1.1(a).
122.

During a time when the mail is unreliable and people are rightfully afraid to leave

their houses and come into contact with others, the Absentee Assistance Ban imposes unjustifiable
burdens on the right to vote.

12

The data regarding ballots that arrived between April 8 and April 13, 2020 in Wisconsin can be found at
https://elections.wi.gov/blog and https://electionlawblog.org/?p=110746. As of 8:00 p.m. on April 7, 2020, there had
been 990,129 absentee ballots returned. See Election Day Update Blog, Wis. Elections Comm’n,
https://elections.wi.gov/blog. The Wisconsin Elections Commission reported that, ultimately, 1,132,923 absentee
ballots were returned and counted, suggesting that 142,794 ballots were able to be counted that would not otherwise
have been. See 2020 Spring Election and Presidential Preference Vote Ballot Status as of April 17, 2020,
https://elections.wi.gov/sites/elections.wi.gov/files/2020-04/Ballot%20Data%20as%20of%20April%2017%202020.
pdf.

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123.

As discussed above, the methods by which the novel coronavirus is transmitted

makes voting in person a risky proposition, even for younger voters with no known pre-existing
conditions.
124.

Even under more normal circumstances, the Absentee Assistance Ban can impose

a severe burden on the right to vote that falls disproportionately on low-income, minority, and rural
voters who generally have less access to postal service, live in areas lacking reliable access to
public transportation and broadband internet, and live farther away from their county election
board’s office (typically located in a city center), as well as voters who receive their ballots too
late to be sure that they will be delivered to elections officials in time to be counted.
125.

Indeed, the Ninth Circuit recently struck down a statute criminalizing the collection

and delivery of another’s ballot because it disproportionately burdened minority voters. DNC. v.
Hobbs, 948 F.3d 989, 1033 (9th Cir. 2020) (en banc).
126.

In the context of the current pandemic, the burdens imposed on the right to vote by

the Absentee Assistance Ban are both more severe and more likely to detrimentally impact a
substantially larger number of voters. Simply put, it prohibits an absolutely crucial means of
ensuring that voters are able to safely and successfully cast an absentee ballot.
127.

But for the Absentee Voter Ban, DCCC and the Oklahoma Democratic Party could

and would ensure that absentee voting is safe and reliable for many voters by collecting and timely
returning voters’ absentee ballots.
128.

The Ban’s burden on voters and the organizations serving them far outweighs any

State interest in its enforcement.
129.

The State has no inherent interest in who returns a ballot. (Indeed, the State

probably cannot tell who dropped a particular ballot in the mail.)

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130.

The Ban is useful only to the extent that preventing someone other than the voter

from returning the ballot also prevents that other person from filling out the ballot. But Oklahoma’s
other laws making it a felony to vote another person’s ballot or interfere “with the orderly and
lawful conduct of an election” are better tailored to the goal of preventing voter fraud. Okla. Stat.
tit. 26, §§ 16-102, 16-113. And, as mentioned above, voter fraud is virtually nonexistent in the
State.
131.

It is now more critical than ever that organizations like DCCC and the Oklahoma

Democratic Party be allowed to help voters safely express themselves at the ballot box.
132.

Absent the Ban, DCCC would focus on ensuring low-income communities,

including voters living in public housing and high-stress communities, that tend to have fewer
polling locations and difficulty staffing these locations, can cast their ballots.
133.

Similarly, the Oklahoma Democratic Party would collect the sealed and voted

absentee ballots at the voter’s request, particularly concentrating on elderly voters at retirement
homes and assisting living facilities to enable those with limited mobility and who lack of ready
access to postage to return their completed ballot.
CAUSES OF ACTION
COUNT I
First and Fourteenth Amendments
U.S. Const. amend. I and XIV, 42 U.S.C. § 1983, 28 U.S.C. §§ 2201–2202
Undue Burden on the Right to Vote
(All Challenged Provisions)
134.

Plaintiffs reallege and incorporate by reference all prior paragraphs of this

Complaint and the paragraphs in the counts below as though fully set forth herein.
135.

Under the Anderson-Burdick balancing test, a court considering a challenge to a

state election law must carefully balance the character and magnitude of injury to the First and
Fourteenth Amendment rights that the plaintiff seeks to vindicate against “‘the precise interests
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put forward by the State as justifications for the burden imposed by its rule,’ taking into
consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s
rights.’” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S.
780, 789 (1983)).
136.

“However slight th[e] burden [on the right to vote] may appear, . . . it must be

justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.”
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (Stevens, J., controlling op.)
(quotation marks omitted); see also Fish v. Schwab, No. 18-3133, 2020 WL 2050644, at *13
(10th Cir. Apr. 29, 2020).
137.

A state may just justify practices that impinge upon fundamental rights by citing

concerns about “administrative convenience.” See Taylor v. Louisiana, 419 U.S. 522, 535 (1975).
138.

Unless Plaintiffs are granted the relief requested herein, thousands of Oklahoma

voters, including Plaintiffs’ members and constituents, will suffer severe burdens on their right to
vote as a result of the Challenged Provisions in the upcoming elections, some to the point of
complete disenfranchisement.
139.

For the reasons discussed, the Notarization/Witness/Photo ID Requirement raise

constitutional concerns in any context, but in the current unprecedented public health crisis, the
Requirements force voters to violate social distancing measures and interact with other people and
touch common objects—all actions that could expose them to COVID-19—and the burdens they
impose cannot be justified by any sufficiently weighty State interest.
140.

Voter fraud is extremely rare in Oklahoma and in other states without such severe

burdens on the absentee voting process. And the State’s interest in maintaining the integrity of its
elections is sufficiently served by a voter’s affidavit sworn under penalty of perjury, as the

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Oklahoma Supreme Court decided, combined with the threat of prosecution under Oklahoma’s
voter fraud laws for casting another’s ballot. League of Women Voters, 2020 OK 26, 2020 WL
2111348.
141.

For the reasons discussed, Oklahoma’s Postage Requirement also imposes an

undue burden on the method of voting that is indisputably the safest during these unprecedented
times. Its burdens, moreover, fall more severely on low-income voters, who already bear the brunt
of the ongoing public health emergency. But no voter should be forced to leave his or her home in
the middle of a pandemic in search of a stamp in order to exercise his or her most fundamental
right. The only plausible State interest justifying the Requirement is a lack of administrative
resources. But that concern cannot outweigh the heavy burden that it imposes on voters.
142.

The Election Day Receipt Deadline similarly imposes a severe burden on the

fundamental right to vote, especially during the COVID-19 crisis, as the U.S. Supreme Court
recently recognized in RNC v. DNC. Even before the pandemic began, the Election Day Receipt
Deadline disenfranchised thousands of Oklahomans. Now, it threatens to disenfranchise thousands
more. The State cannot offer an interest substantially weighty enough to overcome the burdens
imposed on voters’ fundamental rights.
143.

Finally, the Absentee Assistance Ban unduly burdens the right to vote because it

cannot be justified by State interests under any circumstances, but in the current circumstances in
particular, it denies Oklahoma voters the safest and most effective option to return their absentee
ballots. The State’s interest is in ensuring that the voter lawfully marks his or her own ballot, not
in preventing others from assisting the lawful voter in returning that sealed and voted ballot.
Oklahoma has many laws tailored to this specific interest, including making it a felony to fill out
another’s ballot, influence the vote of another, and/or interfere with the conduct of any election.

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There is thus no justifiable basis for burdens that the Ban imposes under any circumstances, but
this is doubly so during the ongoing health crisis.
144.

Because the Challenged Provisions do not sufficiently support a State interest to

justify the resulting burdens on the right to vote, they violate the First and Fourteenth Amendments.
COUNT II
Poll Tax
U.S. Const. amends. XIV and XXIV, 42 U.S.C. § 1983
Imposition of a Poll Tax
(Postage Requirement)
145.

Plaintiffs reallege and incorporate by reference all prior paragraphs of this

Complaint and the paragraphs in the counts below as though fully set forth herein.
146.

The Twenty-Fourth Amendment to the U.S. Constitution provides: “The right of

citizens of the United States to vote in any primary or other election for President or Vice President,
for electors for President or Vice President, or for Senator or Representative in Congress, shall not
be denied or abridged by the United States or any State by reason of failure to pay any poll tax or
other tax.” U.S. Const. amend XXIV, § 1. Voters must not have to pay “a price for the privilege
of exercising the franchise.” Harman v. Forssenius, 380 U.S. 528, 539 (1965).
147.

Oklahoma’s requirement that voters pay for postage in order to vote absentee

imposes an unconstitutional poll tax in violation of the Twenty-Fourth Amendment. Voting
absentee is the only option that allows voters to stay safely in their homes during the COVID-19
crisis.
148.

For the reasons stated above, Defendants have deprived and will continue to deprive

Plaintiffs and its members and constituents of their right to vote in federal elections, granted to
them by the Twenty-Fourth Amendment to the U.S. Constitution and protected by 42 U.S.C.
§ 1983.

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COUNT III
Due Process
U.S. Const. Amend. XIV, 42 U.S.C. § 1983
Denial of Procedural Due Process
(Election Day Receipt Deadline)
149.

Plaintiffs reallege and incorporate by reference all prior paragraphs of this

Complaint and the paragraphs in the counts below as though fully set forth herein.
150.

The Due Process Clause of the U.S. Constitution prohibits the states from depriving

“any person of . . . liberty . . . without due process of law.” U.S. Const. amend. XIV, § 1. Which
protections are due in a given case requires a careful analysis of the importance of the rights and
the other interests at stake. See Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976).
151.

Courts must first consider the nature of the interest that will be affected by the

government’s actions as well as the “degree of potential deprivation that may be created” by
existing procedures. Id. at 341. Second, courts consider the “fairness and reliability” of the existing
procedures “and the probable value, if any, of additional procedural safeguards.” Id. at 343.
Finally, courts consider the public interest, which “includes the administrative burden and other
societal costs that would be associated with” additional or substitute safeguards. Id. at 347 “[D]ue
process is flexible and calls for such procedural protections as the particular situation demands.”
Id. at 334 (quotation and citation omitted).
152.

Oklahoma’s absentee voting system must comport with due process. See Raetzel v.

Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990). “Such due
process is not provided when the election procedures [for voting absentee]” do not adequately
protect the right to vote or ensure that an “individual is not continually and repeatedly denied so
fundamental a right.” Id.; see also Saucedo v. Gardner, 335 F. Supp. 3d 202, 217 (D.N.H. 2018)
(“Having induced voters to vote by absentee ballot, the State must provide adequate process to
ensure that voters’ ballots are fairly considered and, if eligible, counted.”).
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153.

The nature of the interest at stake in this case⸺the right to vote and to have that

vote count⸺is the most precious liberty interest of all because it is tied to all other basic civil and
political rights.
154.

Oklahoma’s existing absentee voting procedures too often disenfranchise voters

because (1) many voters do not learn of the Election Day Receipt Deadline before Election Day,
and (2) even voters who do learn of the Election Day Receipt Deadline may not have their ballots
counted, through no fault of their own, if they do not arrive at their county election board’s office
by 7:00 p.m. on Election Day.
155.

Oklahoma’s Election Day Receipt Deadline is neither a reliable nor fair way to

administer voting absentee. The Election Day Receipt Deadline and the corresponding cutoff for
casting ballots is unreliable because many voters are not even sent their absentee ballots until after
the mailing cutoff, leaving them with no safe mail alternative for their votes to be counted. Nor is
the Election Day Receipt Deadline fair because it forces those voters to cast their ballots with
incomplete information and before candidates have delivered their final messages to voters.
156.

The value of additional or substitute procedural safeguards to ensure that the

absentee ballots of Oklahoma voters are both meaningfully cast and actually counted is readily
apparent. A substitute procedure⸺requiring absentee ballots to be postmarked on or before
Election Day and received by the county within seven days after Election Day to be counted, and
moving the county and state certification dates by a week⸺resolves the inequities inherent in
Oklahoma’s Election Day Receipt Deadline.
157.

A postmark date not only offers a reliable date to Oklahoma voters by which they

must cast their ballots, but it also ensures that voters who receive their ballots late, through no fault
of their own, are still able to engage in the franchise. A postmark date additionally ensures that all

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of Oklahoma’s voters can consider any information that may arise and influence their choices in
the final week of the election.
158.

Having introduced the option to vote absentee, Oklahoma must establish adequate

procedures to ensure that voters have a reliable, fair, and effective method to cast their ballots.
Because Oklahoma’s Election Day Receipt Deadline is inadequate, and the State is readily capable
of instituting a substitute procedure which would protect those voters’ rights with minimal burden
to the State, Oklahoma’s Election Day Receipt Deadline violates voters’ procedural due process
rights.
COUNT IV
Free Speech and Association
U.S. Const. Amend. I, 42 U.S.C. § 1983
Violation of Free Speech and Associational Rights
(Absentee Assistance Ban)
159.

Plaintiffs reallege and incorporate by reference all prior paragraphs of this

Complaint and the paragraphs in the counts below as though fully set forth herein.
160.

The First Amendment protects against the passage and enforcement of laws

“prohibiting the free exercise [of] or abridg[ment] of freedom of speech.” U.S. Const. amend. I.
161.

The Supreme Court has applied “exacting scrutiny” to review laws governing

election-related speech. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 345 (1995); see
also League of Women Voters v. Hargett, 400 F. Supp. 3d 706, 722 (M.D. Tenn. 2019) (“[L]aws
that govern the political process surrounding elections—and, in particular, election-related speech
and association—go beyond merely the intersection between voting rights and election
administration, veering instead into the area where ‘the First Amendment has its fullest and most
urgent application.’”) (quoting Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 223
(1989)).

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162.

Restrictions on such speech are unconstitutional when they “significantly inhibit”

election-related speech and association and are “not warranted by the state interests . . . alleged to
justify [the] restrictions.” Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 192 (1999).
163.

Voter turnout efforts, including assisting voters with the return of their sealed and

voted ballots, is one way in which DCCC and Oklahoma Democratic Party communicate their
belief in the power and importance of participating in democratic elections.
164.

Such activity is “the type of interactive communication concerning political change

that is appropriately described as ‘core political speech.’” Meyer v. Grant, 486 U.S. 414, 422-23
(1988); cf. League of Women Voters, 400 F. Supp. 3d at 720 (“Encouraging others to register to
vote is pure speech, and, because that speech is political in nature, it is a core First Amendment
activity.” (quotation marks and alterations omitted)).
165.

The act of assisting voters by delivering completed ballots is inherently expressive,

and an individual or organization that conducts such activities engages in speech by encouraging
voting. See Bernbeck v. Moore, 126 F.3d 1114, 1115 (8th Cir. 1997) (rejecting argument that
regulating an election “process” raises no First Amendment concerns).
166.

These initiatives also facilitate the political participation of voters who have

experienced historically low turnout rates when compared to the rest of the population, or who for
various reasons, including disability, advanced age, or lack of access to transportation, would have
difficulty voting.
167.

This is why DCCC’s and Oklahoma Democratic Party’s ability to collect and

deliver sealed and voted ballots would significantly further their missions to serve
underrepresented populations as well as their members’ and constituents’ access to the ballot box.

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168.

Furthermore, First Amendment rights “include the right to band together for the

advancement of political beliefs.” Hadnott v. Amos, 394 U.S. 358, 364 (1969). “An organization’s
attempt to broaden the base of public participation in and support for its activities is conduct
‘undeniably central to the exercise of the right of association.’” Am. Ass’n of People with
Disabilities v. Herrera, 690 F. Supp. 2d 1183, 1202 (D.N.M. 2010) (citing Tashjian v. Republican
Party of Conn., 479 U.S. 208, 214–15 (1986)).
169.

The conversations and interactions between DCCC and Oklahoma Democratic

Party and their respective organizers and voters surrounding the submission of ballots are forms
of protected political speech and association. See Williams v. Rhodes, 393 U.S. 23, 30 (1968)
(describing “overlapping” rights “of individuals to associate for the advancement of political
beliefs” and “of qualified voters . . . to cast their votes effectively”); Project Vote v. Blackwell, 455
F. Supp. 2d 694, 700–01 (N.D. Ohio 2006) (explaining “participation in voter registration
implicates a number of both expressive and associational rights which . . . belong to—and may be
invoked by—not just the voters seeking to register, but by third parties who encourage
participation in the political process”).
170.

Oklahoma’s Absentee Assistance Ban violates that protection by “limit[ing] the

number of voices who will convey [DCCC’s and Oklahoma Democratic Party’s] message,” and
“the size of the audience they can reach[,]” thereby burdening the speech and associational rights
of DCCC and Oklahoma Democratic Party and the voters they serve. Meyer, 486 U.S. at 422–23.
171.

These burdens are severe, and the Absentee Assistance Ban is not narrowly tailored

to advance a compelling State interest. Indeed, given the current public health crisis, the type of
speech that DCCC and Oklahoma Democratic Party seek to engage in is “the most effective,

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fundamental, and [likely] economical avenue of political discourse[;]” yet it is directly foreclosed
by the Absentee Assistance Ban. Id. at 424.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their favor
and against Defendants, and:
A.

Preliminarily and permanently enjoin the Notarization/Witness/Photo ID
Requirement;

B.

Enjoin Defendants and their respective agents, officers, employees, and successors,
and all persons acting in concert with each or any of them, from rejecting ballots
for failure to comply with the Notarization/Witness/Photo ID Requirement so long
as the voter has signed his or her ballot affidavit, which shall be done under penalty
of perjury;

C.

Declare that the Postage Requirement violates the Fourteenth and Twenty-Fourth
Amendments as an unconstitutional poll tax;

D.

Preliminary and permanently enjoin Defendants, their respective agents, officers,
employees, and successors, and all persons acting in concert with each or any of
them, from requiring that voters provide postage on their absentee ballots and
further require that Oklahoma provide prepaid postage on all absentee ballots;

E.

Declare that the Election Day Receipt Deadline violates the Due Process Clause;

F.

Preliminary and permanently enjoin Defendants, their respective agents, officers,
employees, and successors, and all persons acting in concert with each or any of
them, from rejecting ballots that are postmarked by Election Day and arrive at their
respective county election board within seven days, and to interpret the term
“postmark” to refer to any type of imprint applied by the USPS to indicate the
location and date the USPS accepts custody of a piece of mail, including bar codes,
circular stamps, or other tracking marks, and, where a ballot does not bear a
postmark date, requiring the State to presume that the ballot was mailed on or before
Election Day unless the preponderance of the evidence demonstrates it was mailed
after Election Day,

G.

Enjoin the county certification deadline of the Friday after Election Day and the
state certification deadline of the Tuesday after Election Day, and postpone each
by a week;

H.

Declare that the Absentee Assistance Ban violates the First Amendment as an
unreasonable restriction on speech and association;

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I.

Preliminary and permanently enjoin Defendants, their respective agents, officers,
employees, and successors, and all persons acting in concert with each or any of
them, from enforcing the Absentee Assistance Ban, thus allowing voters to
designate any third party⸺whether paid or not⸺to assist in the collection and
submission of their absentee ballots;

J.

Award Plaintiff its costs, expenses, and reasonable attorneys’ fees pursuant to, inter
alia, 42 U.S.C. § 1988 and other applicable laws; and

K.

Grant Plaintiff such other and further relief as the Court deems just and proper.

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DATED: May 18, 2020

s/ Frank W. Frasier
Frank W. Frasier, OK# 17864
FRASIER, FRASIER & HICKMAN, LLP
1700 Southwest Boulevard
Tulsa, OK 74107
Telephone: [phone]
Facsimile: 918.583.5637
[e-mail]
Marc E. Elias*
John Devaney*
Ariel B. Glickman*
PERKINS COIE LLP
700 Thirteenth Street, N.W., Suite 800
Washington, DC 20005-3960
Telephone: [phone]
Facsimile: 202.654.6211
[e-mail]
[e-mail]
[e-mail]
Charles G. Curtis, Jr.*
Sopen B. Shah*
PERKINS COIE LLP
33 East Main Street, Suite 201
Madison, WI 53703-3095
Telephone: [phone]
Facsimile: 608.663.7499
[e-mail]
[e-mail]
Counsel for Plaintiff
* Pro Hac Vice Motion Forthcoming

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