Organizations Sue, Try to Force State to Fix Problems with Vote-by-Mail Signature Verification

Colleen O'Dea | May 19, 2020 | Politics
League of Women Voters of New Jersey, NAACP New Jersey State Conference seek urgent repair of state’s ‘procedurally flawed’ system
Credit: Essex County Clerk's Office
Mail-in ballot application

Thousands of New Jerseyans’ votes were not counted in each of the last two federal elections due to issues with their signatures on mail-in ballots, two prominent organizations point out. This has prompted them to sue the state in federal court to try to force it to fix a signature verification system they contend is unconstitutional.

The League of Women Voters of New Jersey, NAACP New Jersey State Conference and a disabled voter filed a complaint Monday in U.S. District Court against New Jersey Secretary of State Tahesha Way, whose department oversees elections, alleging the state’s current law regarding the verification of vote-by-mail (VBM) ballots violates both the 1st and 14th amendments of the U.S. Constitution. They contend the state disenfranchises thousands of voters every year by a system that allows county officials to reject a VBM ballot when a signature does not match the one on file without telling the voter and giving him a chance to prove he voted, as some other states do.

They note in the suit that fixing this problem is especially critical now that Gov. Phil Murphy has ordered this year’s primary, rescheduled for July 7, to be conducted primarily by mail-in ballots. More than 6.1 million registered voters automatically will receive either a postage-paid ballot or request for a ballot to vote in the primary, although at least one polling place will also be available in each municipality for those who want to vote in person.

“Each election, thousands of mail-in voters are effectively disenfranchised when the state rejects their mail-in ballots because of inadvertent signature-related errors or matters of penmanship,” the suit states. “In the upcoming elections, the state’s procedurally flawed signature-verification system will likely cause thousands, or even tens of thousands, of vote-by-mail ballots to go uncounted, and thus result in thousands or tens of thousands of New Jerseyans losing their voice in the political process.”

A spokeswoman for Way said she would not comment due to the pending litigation.

According to the U.S. Election Assistance Commission’s Election Administration and Voting Survey data set for the 2018 election, 6,052 mail-in ballots were rejected for signature problems, with 1,913 of those specifically because of a nonmatching signature. Nonmatching signatures accounted for 16.4% of the almost 11,700 VBM rejections that year.

“It is unacceptable to deprive people of their franchise to vote, particularly using the unproven method of signature matching,” said Richard T. Smith, state NAACP president. “In the current landscape of the world regarding COVID-19 we must ensure now more than ever that we encourage people to go out and vote for those who have their best interest in mind. Having ballots rejected without an opportunity to cure — which is occurring at the highest rates in our most diverse counties — deprives people their right to vote and we cannot allow it to continue.”

Ballot rejections vary widely by county

The suit asserts that the rate of ballot rejections for signature issues varies greatly by county. In 2016, in the state’s most diverse county, Hudson, mail-in ballots were rejected based on a failure to match signatures at a rate 172 times greater than that of Gloucester County, which has a much smaller population of African Americans and Latinos. In 2018, almost 35% of mail-in ballots in Hudson County were rejected because of alleged mismatched signatures, compared with a 3.3% rate in Union County.

Statewide in 2016, according to the suit, 4,000 VBMs cast in the presidential election were rejected due to a signature-related issue, 1,100 of those specifically signature mismatches. Other reasons for signature rejections were that the voter did not sign the ballot or a witness did not sign.

According to the Campaign Legal Center, which is one of the counsels to the plaintiffs in this suit and similar ones in other states, 36 states have some form of signature-match requirements on the books.

Elderly, disabled concerns

Typically, when a mail-in ballot is processed in New Jersey, county officials check the submitted signature against the one on the voter’s VBM application or original voter registration record. But a person’s signature can change over time, particularly for those who are elderly or become disabled.

William Riggs, a Middlesex County man who is a plaintiff in the suit, is 78 and has a hand tremor due to Parkinson’s disease. He now votes exclusively by mail because he can no longer drive. As a result, he worries that he is at risk of disenfranchisement.

“Mr. Riggs used to have excellent handwriting,” the complaint states. “But now, his hand tremor, which varies significantly in severity over time without predictability, has severely affected his penmanship. As a result, he sometimes finds his own signature to be illegible. Moreover, whereas he used to routinely sign his full name, he now often can sign his name only as ‘W.M. Riggs.’  As such, he reasonably believes that there is a substantial risk that his signature will be erroneously deemed inauthentic if compared to an earlier exemplar of his signature.”

Many states allow voters to fix signature mistakes

The National Conference of State Legislatures reports that 16 states allow voters to fix a signature mistake. These include immediately notifying a voter about a rejection or sending a notice of the rejection or a new ballot by mail within a few days. In some states, a voter can request a new ballot, while in others, the voter has until the close of voting or even up to two weeks after Election Day to resolve the issue and ensure his vote counts.

Colorado has one of the more expansive laws. The state notifies voters with potentially mismatched or missing signatures by mail within three days of discovering the problem or two days after an election and gives them up to eight days after Election Day in which to confirm to the county clerk that they indeed did vote by mail. Colorado has even published a 20-page booklet, with sample exercises, to help with signature matching.

Credit: (AP Photo/Charlie Neibergall, File)
Issues with signatures for those who vote by mail are not exclusive to New Jersey. This Aug. 13, 2018 photo shows Johnson County, Kan. Election Commissioner Ronnie Metsker before the Johnson County Board of Canvassers. Legislation had just been signed that required election officials to notify voters before their mail-in ballots were thrown out because of problems with signatures.

“Signature comparison is not a science,” said Paul Smith, vice president of the Campaign Legal Center. “Even if it was, election officials are not trained handwriting experts. The current system produces many incorrect mismatches, which result in eligible voters having their ballot thrown away. These errors —which disproportionately affect those with disabilities, the elderly and non-native English speakers —must be fixed with urgency during this critical election year.”

New Jersey currently does not notify those whose ballots are rejected due to a signature mismatch, nor give voters a chance to resolve a signature issue.

Jesse Burns, executive director of the League of Women Voters of New Jersey, said that with millions of New Jerseyans set to get VBMs, it is imperative that state law changes.

“Now the state needs to safeguard voters’ constitutional rights and ensure every vote counts,” she said. “We need a process in place immediately that allows voters to cure their ballots if they make minor errors, or voters will be disenfranchised.”

Ryan Haygood, president and CEO of the New Jersey Institute for Social Justice and another counsel to the plaintiffs in the case, said it is particularly important to ensure that people of all races and ethnicities can know their votes will count during the current pandemic.

“Our lawsuit urges New Jersey to provide notice to thousands of voters when their ballots are rejected, which is particularly important for black and brown voters whose ballots are disproportionately rejected — and to provide an opportunity to fix any signature-related issues in time for their votes to be counted in the July 7 election,” he said. “Democracy, particularly as we confront one of the most consequential elections in a generation, requires nothing less.”