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Judge: Absentee ballot signature law ‘fundamentally flawed’

August 14, 2018

CONCORD, N.H. (AP) — The process that New Hampshire uses to validate signatures on absentee ballots has been thrown into doubt after a federal court ruled Tuesday that it was unconstitutional.

U.S. District Judge Landya McCafferty ruled that the signature-matching process is “fundamentally flawed” because the voter isn’t given notice if a signature is rejected. McCafferty also criticized the fact that the voter plays no role in the process nor that those charged with inspecting the signatures get no training in handwriting analysis or signature comparisons.

“For the most part, signature variations are of little consequence in a person’s life,” McCafferty wrote, adding that often it was older people, the disabled and the mentally ill who were among those where signatures varied the most. “But in the context of absentee voting, these variations become profoundly consequential.”

The American Civil Liberties Union sued last year on behalf of three voters including one woman in her 90s whose signatures were rejected in the 2016 general election, but didn’t know that for months. It estimated up to 800 voters in the past three elections had been impacted by the law requiring that signatures, including around 275 in 2016.

It said the law allows election officials to reject an absentee ballot without giving notice to the voter if they think there’s a signature mismatch in the voter’s paperwork. It also said it puts election moderators in the difficult position of acting as handwriting experts.

“We’ve said all along that people should not be denied their fundamental right to vote because of penmanship,” Gilles Bissonnette of the ACLU said. “We’re glad the court agreed.”

Bissonnette said similar provisions have been struck down by the courts in Florida, California and in Illinois. Earlier this month in Iowa, a judge ruled the state cannot implement several absentee voting requirements in a new voter ID law until a challenge to the law can be heard at a trial. The order said the state cannot throw out an absentee ballot based on a judgment by local election officials that the voter’s signature doesn’t match one on file.

One of the three voters in the New Hampshire lawsuit, Maureen Heard, welcomed the ruling. An employee with the Veterans Affairs Department who had been traveling ahead of the 2016 election, Heard said she was not told about the provision requiring a valid signature when she voted absentee and was surprised to learn her vote had been rejected when contacted by the ACLU.

“Since it was such a contentious election and New Hampshire was such a close state, I was thankful that I had to opportunity to vote absentee,” she said. “But then when I found out it had been thrown away, I was very discouraged ... Voting is just the essence of what makes us American. To have that so blatantly disregarded for a simple reason such as penmanship is just wrong and I’m glad the court decided against it.”

Democratic State Rep. Kris Schultz called the ruling “fantastic,” recalling on Twitter how a voter in her district had his vote tossed out over the signature issue. “His ballot was rejected because of penmanship. BUT HE IS A PHYSICIAN! A profession known for awful writing. I was heartbroken to learn of his rejected ballot when campaigning in ’17. DEMOCRACY DESERVED BETTER!”

A message seeking comment was left at the secretary of state’s office. Lawyers representing the office said moderators use a two-step process comparing signatures on the ballot affidavit to the application for the ballot. They said a new absentee ballot application and affidavit envelope provide notice to the voter that the signatures must match.

McCafferty said the office was correct that the overall rates of rejection due to a signature mismatch have been low in recent general elections.

“But those rates should be put into perspective,” McCafferty said. “In the first place, even rates of rejection well under 1 percent translate to the disenfranchisement of dozens, if not hundreds, of otherwise qualified voters, election after election.”

Secretary of State William Gardner had said last year absentee voters are provided with instructions on marking and tracking their ballot. The instructions provide the website, https://app.sos.nh.gov

The lawsuit said the website isn’t updated until after the election, and by the time that information is available, it’s too late.

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