Worse Than Nothing? Judge Orders Florida to Give Voters Opportunity to Fix Vote-by-Mail Ballot Signatures

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[Image via all-flags-world]

Less than a week after ordering the State of Florida to extend its registration deadline because of Hurricane Matthew, a federal judge has criticized the state for its application of a rule that invalidates vote-by-mail ballots with non-matching signatures. The Miami Herald has more:

Calling existing rules “obscene” disenfranchisement, a federal judge in Tallahassee declared late Sunday that Florida must provide a method for voters to fix signature problems that might arise when they vote by mail in the presidential election.

U.S. District Judge Mark Walker’s ruling was a victory for the Florida Democratic Party and the Democratic National Committee, which sued the state Oct. 3 arguing Florida canvassing boards shouldn’t immediately reject a ballot if a voter’s signature doesn’t match the one on file. The state gives voters who forget to sign their mail ballots a chance to fix the problem before Election Day — but doesn’t offer voters with mismatched signatures the same opportunity.

That differential treatment drew sharp criticism from the judge:

Walker ruled the “bizarre” double-standard was unconstitutional.

“It is illogical, irrational, and patently bizarre for the State of Florida to withhold the opportunity to cure from mismatched-signature voters while providing that same opportunity to no-signature voters,” he wrote. “And in doing so, the State of Florida has categorically disenfranchised thousands of voters arguably for no reason other than they have poor handwriting or their handwriting has changed over time.”

He ordered the defendant, Secretary of State Ken Detzner, to direct election supervisors in Florida’s 67 counties to notify voters with mismatched signatures about the problem and allow them to submit a signed affidavit to their county elections office identifying themselves and attesting that they were the ones who voted. The same mechanism is already in place for voters who don’t sign their ballots.

“In our democracy, those who vote decide everything; those who count the vote decide nothing,” Walker wrote. Then he referred to a landmark U.S. Supreme Court ruling on obscenity that quipped, “I know it when I see it.”

The state had attempted to defend the policy by deferring to counties, but the judge was unpersuaded:

Walker signaled Saturday that he was unlikely to rule in the state’s favor. He abruptly canceled a hearing scheduled for Monday and excoriated the state’s written legal arguments as an “undeclared war on Floridians’ right to vote.” The state said the ballots were the responsibility of county canvassing boards, not Detzner, the state elections chief.

“[T]his Court will not allow the Florida Secretary of State — a high-level officer of the State of Florida — to take a knee and deprive Florida citizens of their most precious right,” Walker wrote.

Election Law Blog’s Rick Hasen has the court’s full order here. The affidavit for voters to use, taken from an appendix to the order and modeled on Leon County (Tallahassee), is below.

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The judge’s order puts an end to a situation for VBM voters where a mismatched signature is literally worse than nothing. It will undoubtedly make more work for local election officials, but it also highlights the growing challenges associated with using signatures and other handwritten documents to validate voters’ identities. Either way, it’s yet another last-minute change in a state already dealing with lots of activity in the dwindling time before November 8.

22 days until Election Day – stay tuned …

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