NH Lawsuit Challenges Practice of Discarding Non-Signature-Matching Mail Ballots

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A federal court in New Hampshire is hearing a lawsuit challenging some localities’ practice of discarding mail ballots if the voter signature on the ballot doesn’t match the one on file. The Union Leader has more:

Mary Saucedo was surprised to learn in 2017 that the ballot she cast in the 2016 presidential election didn’t count.

The 94-year-old Manchester woman, who spent her career working for the Department of Veterans Affairs, is legally blind and for the past 12 years has voted by absentee ballot with the help of her husband.

Her 2016 ballot was tossed by Saucedo’s ward moderator, who concluded that the signature on the absentee ballot application did not match the signature on the affidavit filed with the completed ballot.

On Monday, Saucedo and her husband, Gus, were in U.S. District Court in Concord as attorneys for the American Civil Liberties Union argued the state law allowing for ballots to be discarded under such circumstances is unconstitutional.

Saucedo and two other voters whose ballots were discarded for similar reasons are named as plaintiffs in the suit, but the problem is more widespread, according to ACLU attorneys. They claim to have turned up 321 similar cases from the 2012 election, 145 from 2014 and 275 from 2016.

Those voters should have at least been notified that their ballots were being discarded and given the opportunity to challenge that decision, according to Julie Ebenstein, a senior staff attorney with the ACLU’s Voting Rights Project. Ebenstein argued the case before federal judge Landya McCafferty.

The ACLU is championing several cases across the country in states where voters have absentee ballots discarded over signature issues with no notification or opportunity to appeal.

Courts have struck down similar laws as unconstitutional in Florida, California and Illinois.

“We think there should be notice to the voter that there is problem with their signature and an opportunity for them to explain their issues before they are disenfranchised,” said Ebenstein.

The lawsuit notes that the problem is not uniform across the state – but where it exists, is an issue that needs to be addressed:

The problem is concentrated in a small number of towns or wards. Of more than 300 voting precincts in the state, 236 didn’t reject a single absentee ballot over signature issues in 2016.

“But in the towns where they were rejected, we believe they can do and the constitution requires them to do more than just keep that information to themselves not tell the voter at the time, not tell the voter afterward, just simply secretly disenfranchise that voter so they never know about it,” said Ebenstein

Assistant Attorney General Matthew Broadhead argued that the state process for absentee voting is constitutionally sound, and that “erroneous disenfranchisement” is extremely rare, given the hundreds of thousands of ballots cast.

The burden on the state to create a notification and appeals process for signature match issues before the votes are counted would be excessive, compared to the scope of the problem, he argued.

“This case turns on whether the risk of erroneous deprivation under the current procedures outweighs the burdens that would be imposed on the state to require the types of additional procedures plaintiffs request,” according to Broadhead.

Judge McCafferty asked if the state could assign a three-digit personal identification number as part of the absentee ballot application process, which would serve to verify the signature. Broadhead replied that the current system is as good as any the state could design and a PIN system would be “cumbersome.” He argued there is no constitutional right to an absentee ballot, let alone constitutional requirements on how absentee voting should be conducted. 

For its part, the state is trying to update its forms and processes to highlight the need for matching signatures – although the statistics suggest that the real problem is varying enthusiasm of enforcement in individual communities or wards:

Since 2016, the state has updated the absentee ballot application to highlight and underline the fact that signatures on the application must match the signature on the ballot affidavit, and has created a signature line for individuals who may be assisting handicapped or disabled voters.

Some precincts have far higher rates of signature-mismatch rejections than others, according to the ACLU data.

Portsmouth rejected 23 absentee ballots due to signature mismatch, which accounted for 32 percent of rejected absentee ballots in the Port City — more than twice the statewide average. In Keene, a comparably sized community, there were only two signature-mismatch rejections.

In Manchester Ward 2, the rejection rate for absentee ballots because of signature issues is nearly 4.5 times the statewide average; in Ward 4, it was 6.2 times the statewide average. Hudson, Hampton Falls, Goffstown and Cornish all showed rejection rates that ranged from six to nine times the statewide average. In addition to Saucedo, two other plaintiffs whose ballots were discarded over signature challenges are named in the lawsuit — Maureen Heard, a 20-year military veteran living in Derry; and Dr. Thomas Fitzpatrick of New Hampton. 

Like Saucedo, both were contacted by the ACLU-NH months after the 2016 election and neither knew their votes were not counted.

McCafferty said she would issue a ruling on the requests for summary judgment from both sides “as soon as possible.”

As the article notes, suits like these in several states have already succeeded in requiring election officials to notify voters and give them an opportunity to “cure” the signature problem; I wouldn’t be surprised to see something similar here. Stay tuned …


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