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CASE STUDIES IN EMERGENCY ELECTION LITIGATION
A Consent Decree Waiving the Witness
Requirement for Voting by Mail in Rhode Island
During an Infectious Pandemic
Common Cause Rhode Island v. Gorbea
(Mary S. McElroy, D.R.I. 1:20-cv-318)
For the June 2020 presidential primary election in Rhode Island, the
governor suspended the state's requirement that mail-in ballots be
witnessed by a notary or by two other witnesses. A district judge ap-
proved a consent decree applying the witness requirement suspen-
sion to elections in Rhode Island in September and November. The
court of appeals and the Supreme Court denied a major political
party's motion to stay the consent decree.
Subject: Absentee and early voting. Topics: Absentee ballots;
COVID-19; intervention; interlocutory appeal; laches; primary
election.
Two organizations and three voters filed a federal complaint in the District of
Rhode Island on Thursday, July 23, 2020, seeking court nullification of Rhode
Island's requirement that mail-in ballots be witnessed either by a notary or two
other witnesses, in light of social distancing made necessary by the global
COVID-19 infectious pandemic, for primary elections in September and the
general election in November.1 The plaintiffs observed that Rhode Island's
governor suspended the witness requirement for Rhode Island's June presi-
dential primary election.2 With their complaint, the plaintiffs filed a motion
for a temporary restraining order and a preliminary injunction.3
Judge Mary S. McElroy set the case for a videoconference on Friday morn-
ing, sending connection information to the attorneys by email.4
[At the conference,] the parties informed the Court that they would seek to
craft a consent decree, due to the defendants' sharing of the plaintiffs' con-
cerns and general agreement with the plaintiffs' request, thus possibly obvi-
ating the need to proceed with the plaintiffs' motion for a preliminary injunc-
tion. The parties agreed to discuss a consent decree over the weekend and the
Court scheduled a hearing on the plaintiffs' motion for Monday, July 27, in
the event the negotiations failed.5
1. Complaint, Common Cause of R.I. v. Gorbea, No. 1:20-cv-318 (D.R.I. July 23, 2020),
D.E. 1; see Katherine Gregg, RI. Voter-Rights Groups Challenge Witness Requirementsfor Mail
Ballots, Providence J., July 24, 2020, at A2.
2. Complaint supra note 1.
3. Motion, Common Cause of RI., No. 1:20-cv-318 (D.R.I. July 23, 2020), D.E. 5.
4. Docket Sheet, id. (July 23, 2020).
For this report, Tim Reagan interviewed Judge McElroy and her law clerk Kevin Rolando
by telephone on September 4, 2020.
5. Opinion at 6-7, Common Cause of RI., No. 1:20-cv-318 (D.R.I. July 30, 2020), D.E. 26,
2020 WL 4365608; Docket Sheet, supra note 4 (noting that again connection information
would be sent to the attorneys by email).
Federal Judicial Center 1/23/2021
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