A federal judge will hear a key lawsuit today dealing with Florida’s increasingly complicated election recount – and previous cases in Florida and around the country offer a clue as to how it might go.
Attorneys for Democratic U.S. Bill Nelson’s campaign are expressing confidence about their chances in the suit, which seeks to make sure that the state counts all so-called “provisional” and mail-in ballots that may have been disqualified because the voter’s signature on the ballot doesn’t match the one on file at the elections office.
Courts in three other states have recently agreed with the Nelson campaign’s legal position – namely that Florida’s process for rejecting ballots because of mismatched signatures is done “without any consistent standard or relevant expertise,” and is a violation of the Equal Protection Clause in the U.S. Constitution.
Not only that, the federal judge in Tallahassee who will hear the case – U.S. District Judge Mark Walker – said in a ruling just prior to Florida’s 2016 election that the law on mismatched signatures was “illogical” and “bizarre.”
Nelson’s suit comes as he trails Republican Rick Scott by less than 13,000 votes in the race for U.S. Senate, and as voting machine recounts continue this week. The margin in the Scott-Nelson race is currently just 0.15%, and could be close enough to trigger a hand recount following the statewide machine recount.
The Florida law about matching signatures was established to prevent voter fraud. But in the lawsuit, Nelson recount attorney Marc Elias says the signature requirement is “problematic,” writing in legal briefs that handwriting can change for a variety of reasons, sometimes quite quickly.
“Factors that can affect a person’s handwriting include physical factors such as age, illness, injury, medicine, eyesight, alcohol, and drugs; mechanical factors such as pen type, ink, surface, position, paper quality; and psychological,” the suit says.
Here are a few relevant rulings that struck down voter signature laws in other states:
– In August, a federal judge in New Hampshire ruled that rejecting voter ballots due to a signature mismatch “fails to guarantee basic fairness” because it gives election officials “sole, unreviewable discretion” to discard absentee ballots. That legal fight started in 2017, when the American Civil Liberties Union of New Hampshire sued after three voters had their ballots discarded without their knowledge during the 2016 election.
“They were given no notice, no opportunity to cure (the signature problem,)” says Gilles Bisonnette, legal director for the New Hampshire chapter of the ACLU. The voters should have been afforded due process, Bisonnette added, “That’s why we brought the case.”
– In Iowa, the state Supreme Court affirmed a lower court’s ruling that the state couldn’t impose new regulations requiring election officials to match signatures on absentee ballot applications with voter-registration records.
– In Georgia earlier this month, an appeals court blocked Georgia Secretary of State Brian Kemp’s attempts to throw out absentee ballots that had mismatched signatures – another case where the court found that state wasn’t giving a voter the opportunity to confirm their identity and contest the decision about their ballot.
The Nelson campaign’s lawsuit will be heard today in Tallahassee.
According to University of Florida political science professor Dan Smith, more than 10,100 vote-by-mail ballots were rejected throughout the state last week because of an unspecified “voter-caused error.” Of those ballots, 37 percent were cast by registered Democrats, 34 percent by registered Republicans and 28 percent by non-party-affiliated voters.
After the Nelson campaign announced its federal lawsuit over the signature law, the Scott campaign fired back, claiming that “their desperation has driven them to ask the federal courts to allow voter fraud,” adding, “they are asking courts to overrule election officials and accept ballots that were not legally cast.”
The Scott campaign has also charged that the Democrats were fully aware that Florida election law requires local election staffers to determine whether a signature is legitimate or not, yet are suing only after an election in which their candidate came up short. But Bissonette says that shouldn’t matter to a judge.
“Due process is due process,” he says. “I think like in Florida, here in New Hampshire there was a regime that existed for decades that systemically disenfranchised individuals. There’s more attention to this issue now, and as there has been a series of legal victories challenging these statutes, it makes sense that this would come up in other states both before elections and after elections. I think the Constitutional analysis is the same.”
The ACLU of Florida and UF professor Dan Smith published a report in September that examined rejected mail-in ballots cast during the 2012 and 2016 general elections and found that there was not uniformity among the state’s 67 county Supervisors of Elections on how to address missing or mismatched signatures.
The report also said that among black, Hispanic and other minority voters, vote-by-mail ballots were more than two and a half times as likely to be rejected as mail-in ballots cast by white voters.
But the rejection of a voter’s signature crosses all demographics.
In an op-ed published over the weekend in USA Today Network Florida newspapers, former South Florida Democratic U.S. Rep. Patrick Murphy wrote that he learned last week that his mail-in-ballot had been rejected by the Palm Beach County Supervisor of Elections because of an “invalid signature” mismatch.
“I’ve been a registered voter for over 15 years, and an active Palm Beach County voter for six, and yet that wasn’t enough to get my ballot added to the official tally,” he wrote.