Mark Lepak

Later this month, primary elections, SQ802, and postponed local elections will be decided against the backdrop of concerns about COVID19 precautions. A few weeks ago, the Oklahoma Supreme Court rendered a decision that invalidated the requirement that a notary signature accompany absentee ballots. The legislature, reacting immediately, passed a bill to reinstate the requirement. The details are a bit confusing. I voted to restore the requirement. Both deserve an explanation.

The original case was brought by the League of Women Voters and others. The plaintiffs argued that in the midst of the COVID19 pandemic, where citizens were encouraged to shelter at home and social distance, there were many people who would be at risk when voting in person. And, while absentee ballots are allowed in Oklahoma as an alternative to in-person voting, they require a notary signature, which would also increase the risk of exposure. They argued this was a barrier to voting, and pointed to a section of statute containing another method of signature verification, a simple signed and dated statement made under penalty of perjury, that would suffice as an alternative to a notary. They noted that Oklahoma was only one of three states with the notary requirement.

The Supreme Court agreed with them in a very short written decision, stating that one section of statute provided exceptions for depositions, an oath of office, or an oath required to be taken before a specified official other than a notary public, but NOT for absentee ballots. In effective, they said this section of law trumped another requiring the notary signature on absentee ballots. Within three days, after some confusion finding a bill eligible for amending and hearing, and after a flurry of constituent input on both sides of the issue, the legislature amended the statutes to make it clear that the notary requirement did indeed apply to absentee ballots.

So what to make of all this, and why did I vote for it? First of all, while media reports were that the Supreme had altogether struck down the notary requirement, if you read the opinion, in my layman’s terms, they actually ruled there was a conflict, and that one part of state law superseded the other. In a sense, they pointed the way for the legislature to fix conflicting sections of statute. And further, this was a statutory ruling, meaning they didn’t rule on the constitutionality of the notary requirement. Finally, there is thought they ruled when they did to allow the legislature, in session at the time, to respond in a timely way. They could have waited until after session to rule, and there would have been no way to react without a special session during June.

I’m of the opinion that, while there was and is a COVID19 health concern, the real issue is much larger. Before I get into that, know that the bill actually addressed the COVID19 situation. While restoring the notary requirement, an exception was made for the upcoming election, where if there remained a formal state of emergency 45 days ahead of the date, the notary requirement could be replaced by including a copy of the photo ID or voter registration card. And there are provisions for special exceptions for those in nursing homes and long term care facilities, for those quarantined, and for those who are otherwise confined for health reasons.

As for the larger issue I mentioned, protecting the integrity of our voting process is just as important as our right to vote, and the people of Oklahoma said so when the passed SQ746 by a huge margin-- it went into effect in 2011. That question requires that voters confirm they are who they say they are when they vote in person, via presentation of their voter registration card, a photo ID, or a couple more alternative methods. So how do we do that on absentee ballots, especially with all the news in recent years about the hacking of election processes, but in the past, the outright fraud that existed for decades in Oklahoma? (An article from 1983 provides but one example: https://oklahoman.com/article/2029114/indictment-of-draper-prompts-talk-of-change-in-absentee-voting-system.) The argument that we don’t have much vote fraud in Oklahoma doesn’t hold water, in my view, precisely because we have the notary requirement in place. And how much sense does it make that Oklahoma voters decided overwhelming that they want to confirm their identification when voting in person, but not when voting absentee?

Another interesting point: when the Supreme Court announced its decision on a Monday, the requests for absentee ballots in Oklahoma County alone more than tripled in just 48 hours. Now, that may be because “characters” saw opportunity, but it may have been because voters are afraid of COVID19, and/or, it might be because election board secretaries have been pushing absentee ballots to avoid lengthy lines and exposure at the polls. But neither of the latter really indicates people saw the notary as a barrier—I personally suspect it was simply a well-publicized trigger that absentee ballots were a way to deal with voting amid the COVID concerns.

During debate on the bill, the author told about his own experience while in college in Oklahoma, of voter fraud in several elections, where absentee ballots were used by out of state students, after being recruited to do so. Another member told about his last campaign, where a large number of the addresses of registered voters who were recorded as voting absentee in the last three or four elections, had no house on the property when he went to knock on doors to campaign. Of course, that last example occurred even with the notary requirement, but it points out that your votes and mine are diluted when people defraud our system.

But I think the “easy access to voting” movement has other motivations. I don’t want to offend those with strongly held beliefs, but I also have very strong opinions. I think there are parties who are using the COVID situation to further other causes. One is SQ802 promoting Medicaid expansion. But others include a nationwide effort pushing online voting, and same day, online voter registration. I think those efforts will increase the opportunity for voter fraud, and tangle up our elections in lawsuits. “Get out the vote” are certainly part of our election tradition, but last minute surge efforts with little accountability and confirmation presents additional opportunities for fraud.

Oklahoma has a great election system that has seen very low levels of fraud in recent years, because of things like voter identification, the notary requirement, no online voting, and paper ballots that can be retained until after all challenges to elections are exhausted. You can’t hack an election (remember all the allegations of foreign interference?) with: 1) paper back-up to the point you get the wrong result, and 2) we have fairly good certainty that the ballots cast are by actual registered voters. And, back on the notary requirement for absentee ballots, I do not regard it as a significant barrier to voting anyway, COVID issues aside. Step back and consider: people have three days of early in person voting prior to an election as well as the absentee process that opens up weeks ahead. Notaries are easily accessible in many places, for no fee—if you have a bank, you have access to a notary.

As always, please drop by the office if you happen to be in Oklahoma City. You can call my office at 405-557-7380, or write to me at Representative Mark Lepak, 2300 N. Lincoln Blvd, Rm. 453B, State Capitol Building, Oklahoma City, OK, 73105.

State Rep. Mark Lepak (R-Claremore) is best reached via email at mark.lepak@okhouse.gov.

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