Civil No. 17-cv-183-LM
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Opinion No. 2018 DNH 160
O R D E R
This case concerns New Hampshire‘s signature-match requirement for absentee ballots. The act of signing one‘s name is often viewed as a rote task, a mechanical exercise yielding a fixed signature. A person‘s signature, however, may vary for a variety of reasons, both intentional and unintentional. Unintentional factors include age, physical and mental condition, disability, medication, stress, accidents, and inherent differences in a person‘s neuromuscular coordination and stance. Variations
But in the context of absentee voting, these variations become profoundly consequential. The signature-match requirement in
As will become evident, this signature-matching process is fundamentally flawed. Not only is the disenfranchised voter given no right to participate in this process, but the voter is not even given notice that her ballot has been rejected due to a signature mismatch. Moreover, moderators receive no training in handwriting analysis or signature comparison; no statute, regulation, or guidance from the State provides functional standards to distinguish the natural variations of one writer from other variations that suggest two different writers; and the moderator‘s assessment is final, without any review or appeal.
Plaintiffs Mary Saucedo, Maureen P. Heard, and Thomas Fitzpatrick are among the 275 absentee voters whose ballots were rejected in the 2016 General Election as a result of
STANDARD OF REVIEW
A movant is entitled to summary judgment if it “shows that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law.”
“On issues where the movant does not have the burden of proof at trial, the movant can succeed on summary judgment by showing ‘that there is an absence of evidence to support the nonmoving party‘s case.‘” OneBeacon Am. Ins. Co. v. Commercial Union Assur. Co. of Canada, 684 F.3d 237, 241 (1st Cir. 2012) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If the moving party provides evidence to show that the nonmoving party cannot prove a claim, the burden shifts to the nonmoving party to show that there is at least a genuine dispute as to a factual issue that precludes summary judgment. Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013).
BACKGROUND
The following facts are undisputed, unless otherwise noted. As stated above, plaintiffs are voters who attempted to vote
The court begins by describing the general procedure by which absentee ballots are processed and counted in New Hampshire, before discussing how that procedure played out in the 2016 General Election. Then, the court summarizes the evidence the parties have proffered in support of their competing motions for summary judgment.
I. Absentee Voting in New Hampshire
New Hampshire authorizes absentee voting for certain categories of voters—namely, those who cannot appear at the polls because they are: (1) absent from the municipality on Election Day; (2) observing a religious commitment; (3) unable to vote in person due to physical disability; or (4) unable to appear because of an employment obligation.
The first step in the absentee-voting process is for a voter to apply for the absentee ballot. The Secretary of State creates application forms and distributes them to municipalities.
In the absentee-ballot application, the voter must identify the reason that she is qualified to vote by absentee ballot, and must provide basic biographical information—including name, address, phone number, and email address, though the phone number and email address are optional sections. What is most relevant here is that the application requires the voter to sign her name. Prior to and in the 2016 General Election, there was no notice on the application that the application signature would be compared with another signature; instead, below the signature line was the following statement: “Voter must sign to receive an absentee ballot.” Doc. no. 49-9 at 2.
However, as a result of amendments to the absentee-ballot statutory scheme in 2017, the application now contains the following statement below the signature line: “The applicant must sign this form to receive an absentee ballot. The signature on this form must match the signature on the affidavit envelope in which the absentee ballot is returned, or the ballot may be rejected.”
Upon receipt of a properly executed application, the clerk provides the voter with: (1) an absentee ballot; (2) an affidavit envelope;
the 2017 amendments to the statute, below the signature line is the following notice:
The signature on this affidavit must match the signature оn the application for an absentee ballot or the ballot may be rejected. A person assisting a blind voter or voter with a disability who needs assistance executing this affidavit shall make and sign a statement on this envelope acknowledging the assistance in order to assist the moderator when comparing signatures on election day.
After executing the affidavit, the voter places the affidavit envelope in the return envelope, and submits the package to the town or city clerk.
On Election Day, the clerk delivers the absentee-ballot packages to the local moderator.
Generally, moderators begin processing absentee ballots at 1:00 p.m. on Election Day, though they may open the return envelopes prior to that time. See
An absentee ballot is accepted if: (1) the name of the voter is on the voter checklist; (2) the affidavit “appears to be properly
There is no procedure by which a voter can contest a moderator‘s decision that two signatures do not match, nor are there any additional layers of review of that decision. In other words, the moderator‘s decision is final. Moreover, no formal notice of rejection is sent to the voter after Election Day. Rather, after the election, a voter may determine whether and why her absentee ballot was rejected via a website maintained by the Secretary of State. See
II. The Signature-Match Requirement
As noted above, each local moderator is tasked with comparing the signature on the affidavit with the signature on the application to determine whether “[t]he signature on the affidavit appears to be executed by the same person who signed the application.”
On its face,
The record discloses only two sources that provide additional guidance to moderators: the Secretary of State‘s Office and, in the 2016 General Election, the New Hampshire Attorney General‘s Office. The Secretary of State‘s Office publishes an Election Procedure Manual, which offers the following:
The test for whether the application and affidavit appear to be signed by the same person is whether this is more likely than not. Absentee ballots should be rejected because the signatures do not match only if the differences in the signatures are significant. . . .
Moderators should exercise careful judgment when rejecting an absentee ballot because the signature of the voter on the affidavit does not appear to be signed by the same person who signed the absentee ballot application. The test is whether it is more likely than not that the same person signed both forms. It is a natural and common occurrence that a person‘s signature will change over time and will have differences even when the person writes out his or her signature several times, one immediately after another. A moderator deciding to reject an
absentee ballot because the signatures do not match should be
prepared to explain to the Attorney General‘s Office or a Superior Court judge what specific characteristics on the two signatures were the basis of the decision that they were more likely than not signed by different people. While signature verification is an important safeguard against voting fraud, as with all safeguards, the analysis starts with a presumption of validity and the decision to disenfranchise a voter must be made only when there is sufficient evidence to justify that act.
Doc. no. 49-19 at 14, 16. The Secretary of State‘s Office also conducts optional trainings for moderators prior to elections, at which it reiterates, but does not further elaborate on, the guidance set forth in the manual. Doc. no. 49-3 at 77, 79 (deposition оf David Scanlan). The Secretary of State does not regularly monitor rates of rejection due to signature mismatch to ensure moderators’ compliance with the statute, see
Prior to the 2016 General Election, the Attorney General‘s Office issued a memorandum to local election officials, which contained the following guidance:
In determining whether signatures match, the moderator should decide whether it is more likely than not that the same person signed both forms. The more likely than not standard does not require a perfect match. . . . Moderators should be aware that a person‘s signature often varies depending on the circumstances, and it is often hard to tell whether two signatures were written by the same person. Because a mistake will deprive a citizen of his/her constitutional right to vote, moderators should take
great care before ruling a ballot invalid because of signature differences.
Doc. no. 49-20 at 5.
In essence, the guidance provided to moderators constitutes a burden of proof (more likely than not), and a requirement that signature comparison be done based on objective criteria (whatever those criteria may be). But moderators receive no training in handwriting analysis, and they are not screened for conditions, such as poor eyesight, that may impede their ability to discern subtle variations in signatures. The assumption seems to be that the substantive task of signature comparison is one of common sense.
Defendants have also provided affidavits from a number of local election officials to show “how cities and towns actually implement
There are three practices that are worth highlighting. First, moderators normally have a team of volunteers that help them compare signatures and determine whether signatures match for purposes
Second, in deciding whether to accept an absentee ballot, moderators “consider all of the evidence available to them, including their personal knowledge of the voter or
At the hearing, defendants clarified how moderators consider extrinsic evidence. They explain that state law contemplates a two-step process, citing
Third, the affidavits show that moderators conceive of the relevant standard differently. One moderator stated that she
will not reject an absentee ballot “unless the signatures on the request form and affidavit envelope are drastically different.” Doc. no. 54-13 at 2 (emphasis added). By contrast, another averred that he does “not reject sets of signatures on the basis that they don‘t look the same, but only if there are no characteristics which suggest that they could both have been signed by the same person. In some instances, we are satisfied if one or two letters . . . share a characteristic style.” Doc. no. 54-14 at 2 (emphasis added).
III. Statistics from the 2016 General Election
In the 2016 General Election, .35% of all absentee ballots submitted were rejected due to a signature mismatch (275 rejections out of 78,430 absentee ballots).4 See doc. no. 49-22 at 9. This extremely low rate of rejection due to a signature mismatch is consistent with the rates seen in the 2012 and 2014 General Elections.
significantly, both between municipalities and within them. For example, in Portsmouth Ward 3, 5.21% of all absentee ballots were rejected due to a signature mismatch; in Portsmouth Ward 2, the rate was .43%; in Bedford, .88%; in Hudson, 1.68%; in Manchester Ward 4, 2.17%; in Manchester Ward 6, .23%. See generally doc. no. 49-23. The parties dispute the significance of these disparities. Plaintiffs argue that these figures demonstrate the lack of uniform application of the signature-match requirement, while defendants assert that, absent further statistical analysis, any differences could be attributed to other variables.
Defendants provide some statistics of their own. Defendants compared, for the 2016 General Election, the municipalities whose election officials attended the training session held by the Secretary of State‘s Office and municipalities whose officials did not. They found that six of the eight towns with the highest rates of rejection due to signature mismatch had failed to attend the training. Defendants also found that the towns whose officials did not attend had a higher rate of rejection due to signature mismatch—more than double per town. On this basis, defendants contend that this demonstrates that there is no fundamental flaw in thе statute, and that, at most, more training is required.
Plaintiffs challenge defendants’ analysis of the numbers as “based on a meaningless calculation.” Doc. no. 62 at 5. They argue, among other things, that analyzing rejections on a per town basis, without consideration of total absentee ballots cast and rejected in each town, masks disparities in rejection rates among towns.5
IV. Dr. Mohammed
Finally, plaintiffs retained an expert, Linton Mohammed, Ph. D, to support their claims. Defendants do not dispute Dr. Mohammed‘s opinions. Dr. Mohammed is a forensic document examiner, specializing in handwriting and signature identification. He opines that a person‘s signature may vary for a variety of reasons, both intentional and unintentional. Unintentional factors include age, physical and mental condition, disability, stress, accidental occurrences, inherent variances in neuromuscular coordination, and stance. Variations are more prevalent in writers who are elderly, disabled, ill, or who speak English as a second language. Dr. Mohammed explains that, in order to account for these variations and make an accurate determination, one needs extensive training, adequate
magnification and lighting equipment, sufficient time, and excellent eyesight. Furthermore, a forensic document examiner will nоrmally require at least ten exemplar signatures to compare to a questioned signature.
Dr. Mohammed opines that in applying
Defendants also rely upon Dr. Mohammed‘s opinion. They cite his statement that “a signature is developed as a form of identification” to argue that the signature-match requirement serves to identify a voter and prevent voter fraud. Doc. no. 54-11 at 24. Plaintiffs challenge this inference, contending that Dr. Mohammed‘s point was merely to articulate the difference between a signature and handwriting generally, not to suggest that the signature-match requirement identifies the voter.
Defendants also highlight Dr. Mohammed‘s testimony regarding the different styles of signatures. Dr. Mohammed divides signatures into one of three categories: text-based, mixed-style, and stylized. A text-based signature is one where the letters cаn be fully read; a mixed-style signature is one where some, but not all, of the characters can be read; and a stylized signature is “basically a pattern and there‘s . . . no characters [one] can read within that signature.”
DISCUSSION
Plaintiffs bring four claims challenging
uniformly, under the principles enunciated in Bush v. Gore, 531 U.S. 98 (2000) (Count III). On behalf of Ms. Saucedo, plaintiffs also bring an ADA claim.
Because the parties express some disagreement over how the court should analyze plaintiffs’ claims, given that they are facial challenges to
“The Supreme Court has articulated two formulations of the standard for assessing facial challenges to statutes.” Libertarian Party of N.H. v. Gardner, 843 F.3d 20, 24 (1st Cir. 2016). “In United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), the Court held that a facial challenge can only succeed where the plaintiff ‘establishes that no set of circumstances exists under which the Act would be valid.‘” Id. Alternatively, a plaintiff bringing a facial challenge to a statute must establish that it lacks any “plainly legitimate sweep.” Hightower v. City of Boston, 693 F.3d 61, 77 (1st Cir. 2012). The First Circuit recently relied on the latter formulation in a ballot-access case. See Gardner, 843 F.3d at 24. But see Pharm. Research & Mfrs. of America v. Concannon, 249 F.3d 66, 77 (1st Cir. 2001) (citing Salerno test favorably).
These standards may obscure the relevant inquiry, however, as they could be taken to suggest that a court‘s task is to “conjure up” hypothetical situations “in which application of the statute might be valid.” United States v. Sup. Ct. of N.M., 839 F.3d 888, 917 (10th Cir. 2016). But, as courts have noted, the Supreme Court
Therefore, in practice, “[a] facial challenge is best understood as a challenge to the terms of the statute, not hypothetical applications, and is resolved simply by applying the relevant constitutional test to the challenged statute.” Sup. Ct. of N.M., 839 F.3d at 917 (internal quotation marks and citation omitted); see also Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449-50 (2008) (“In detеrmining whether a law is facially invalid, we must be careful not to go beyond the statute‘s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.“); Ezell v. City of Chicago, 651 F.3d 684, 698 (7th Cir. 2011).
I. Procedural Due Process (Count I)
Plaintiffs first argue that
“To establish a procedural due process violation, [a] plaintiff must identify a protected liberty or property interest and allege that the defendants, acting under color of state law, deprived [him] of that interest without constitutionally adequate process.” González-Droz v. González-Colón, 660 F.3d 1, 13 (1st Cir. 2011) (internal quotation marks omitted). “No rigid taxonomy exists for evaluating the adequacy of state procedures in a given case; rather, due process is flexible and calls for such procedural protections as the particular situation demands.” Id. (internal quotation marks omitted). Still, “[t]he basic guarantee of procedural due process is that, before a significant dеprivation of liberty or property takes place at the state‘s hands, the affected individual must be forewarned and afforded an opportunity to be heard at a meaningful time and in a meaningful manner.” Id. (internal quotation marks omitted).
Under Mathews v. Eldridge, 424 U.S. 319 (1976), “determining what process is due requires balancing three factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interests.” Collins v. Univ. of N.H., 664 F.3d 8, 17 (1st Cir. 2011) (internal quotation marks and brackets omitted). In addition, the Mathews court emphasized that “procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.” Mathews, 424 U.S. at 344. As a result, and given that this is a facial challenge, the court conducts its analysis by reference to the statute‘s facial requirements and the undisputed, material facts relevant to the signature-matching process generally.
The plaintiff in Zessar, whose vote was rejected due to a signature mismatch, sued a number of local and state officials, arguing that the lack of notice and an opportunity to cure for rejected voters was unconstitutional as a matter of procedural due process. See id. at *5. The district court agreed. On the
first Mathews factor, it found that, while “[t]he right to vote by absentee ballоt is not, in and of itself, a fundamental right,” a voter has a sufficient liberty interest once “the State permits voters to vote absentee.” Id.
On the second factor, the Zessar plaintiff suggested that voters should receive immediate notice of the rejection, followed by an informal administrative hearing in front of an election authority to confirm that the absentee ballot belongs to the voter. Id. at *8. The defendants responded that such procedures would be “hugely disproportionate” to the problem, and questioned whether they would even be effective for absentee voters who are absent from their residences for an extended period. Id. The Zessar court agreed that there was not a “tremendous” risk of erroneous deprivation, given that only approximately .43% of all absentee ballots returned to election authorities were rejected for any reason.7 See id. Nevertheless, the court found that the probable value of additional procedures was great in light of the otherwise irremediable denial of absentee voters’ right to vote.
On the third factor, defendants argued that election authorities “face a cascade of statutory obligations in the time
period leading up to and following the election,” which would make additional procedures “an untenable burden.” Id. at *9. The Zessar court was not persuaded. The court did recognize that new procedures would pose “some additional administrative and fiscal burden on the election authorities,” but even so, the procedures would be fairly circumscribed affairs, given that election authorities have already verified that absentee voters are entitled to vote prior to issuing the absentee ballots. For that reason, the court found that any burden “would [not] be so great as to overwhelm
Other courts have reached similar conclusions to that of the Zessar court. See Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354 (D. Ariz. 1990) (concluding that Arizona absentee-voting statute, which failed to provide absentee voters with any post-deprivation notice or opportunity to be heard when their votes were challenged and rejected, did not afford adequate procedural due process); La Follette v. Padilla, No. CPF-17-515931 (Cal. Super. Ct. Mar. 5, 2018) (concluding that provision of
Lemons v. Bradbury, 538 F.3d 1098 (9th Cir. 2008), is the only case the court could find in which a signature-match requirement was upheld against a procedural due process challenge based on the fundamental right to vote.8 There, the Ninth Circuit upheld Oregon‘s procedure for verifying signatures on referendum petitions. Oregon voters may approve legislation by referendum, and a referendum qualifies for statewide vote upon submission of a petition with a sufficient number of signatures. Lemons, 538 F.3d at 1100. In order to verify the petition signatures, the Secretary of State uses a statistical sampling method, whereby approximately five percent of the submitted signatures are cross-referenced with voter registration records. Id. If a petition signature is “genuine,” it is counted. Id.
The plaintiffs argued that this procedure violated, among other things, their right to procedural due process. Id. at 1101. The Ninth Circuit disagreed, despite holding that Oregon‘s regulations on the referendum process “implicate the
fundamental right to vote.” Id. at 1102. The court determined that the value of additional procedures was negligible. Id. at 1105. The court reasoned that the verification process was “already weighted in favor of accepting questionable signatures,” citing a number of elements of Oregon‘s procedure: (1) voters were notified on the referendum cover sheets that they must sign their name as they did on their voter registration; (2) the public could observe the process and object to signature-verification decisions; (3) all rejected signatures were subject to multiple layers of review; and (4) officials limited their review to a comparison between the рetition signature and registration signature.
While the Ninth Circuit found additional procedures of negligible value, it assigned great weight to the administrative burden of additional procedures. Election officials might process more than 100,000 signatures in each election cycle, and it could take several minutes to “identify [each] signer, find the corresponding voter registration card, determine whether the signer is an active, registered voter, and then compare the signatures.” Id. at 1104. The court therefore rejected the plaintiffs’ claim, noting that “[r]equiring the state to provide thousands of petition signers with individual notice that their signatures have
With these cases in mind, the court weighs the Mathews factors in the present case.
a. Private Interest
Plaintiffs argue that the individual interest at issue is the fundamental right to vote. Defendants respond that “the rights claimed by Plaintiff[s] should be afforded less weight than traditionally afforded the right to vote” because there is no right to vote by absentee ballot. Doc. no. 66 at 4.
The court accords this factor significant weight. It is beyond dispute that “[t]he right to vote is of the most fundamental significance under our constitutional structure.” Ayers-Schaffner v. DiStefano, 37 F.3d 726, 727 (1st Cir. 1994) (internal quotation marks omitted); see also Griffin v. Burns, 570 F.2d 1065, 1075 (1st Cir. 1978) (noting that the right of suffrage is “a fundamental political right” because it is “prеservative of all rights“). While “there is no corresponding fundamental right to vote by absentee ballot,” Griffin v. Roupas, No. 02-C-5270, 2003 WL 22232839, at *4 (N.D. Ill. Sept. 22, 2003), the privilege of absentee voting is certainly “deserving of due process,” Raetzel, 762 F. Supp. at 1358; accord Zessar, 2006 WL 642646, at *5; Doe v. Walker, 746 F. Supp. 2d 667, 681 (D. Md. 2010). Having induced voters to vote by absentee ballot, the State must provide adequate process to ensure that voters’ ballots are fairly considered and, if eligible, counted.
b. Risk of Erroneous Deprivation and Probable Value of Other Procedures
The parties dispute both elements of this factor. Plaintiffs assert that the risk of erroneous deprivation is “great” and that such risk could be easily remedied through additional procedures like a “simple telephone call.” Doc. no. 48-1 at 34, 40. Defendants counter that the risk is “extremely slight” and that plaintiffs’ alternative is not workable. Doc. no. 54 at 19, 22.
Defendants are correct that, based on the data available to the court, 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. In the first place, even rates of rejection well under one percent translate to the disenfranchisement of dozens, if not hundreds, of otherwise qualified voters, election after election. See doc. no. 49-3 at 193-94 (deposition of David Scanlan) (stating that there is no indication that, in 2016 General Election, voters rejected due to signature mismatch were otherwise ineligible to vote). Given how close some races are in New Hampshire, that is a risk with real consequences. See, e.g., doc. no. 48-1 at 47 (noting one state senate race in 2016 that was decided by only seventeen votes).
More importantly, the task of handwriting analysis by laypersons, as it is contemplated under
uncontroverted conclusion is that, as a result, election officials are likely to make erroneous signature-comparisons. In fact, laypersons are more likely “to wrongly determine that authentic signatures are not genuine than to make the opposite error.” Doc. no. 49-21 at 8.
The absence of functional standards is problematic, and the likelihood of error resulting therefrom is only compounded by the lack of meaningful review or oversight. There is no feedback mechanism to ensure that moderators are applying appropriate standards: neither voters nor the general public may object to a determination; there is no appeal or review process; and the Secretary of State does not regularly monitor rates of rejection to ensure that moderators are properly applying
It cannot be emphasized enough that the consequence of a moderator‘s decision—disenfranchisement—is irremediable. See Zessar, 2006 WL 642646, at *8-9. The one caveat is the procedure by which moderators evaluate extrinsic evidence to determine whether a ballot should be accepted notwithstanding a signature mismatch. But the evidence before the court shows that this safety valve as it currently exists is haphazard at best, since it is limited to the personal knowledge of, and information immediately available to, election officials. The instance where a moderator confirmed a rejection based on an assistant‘s knowledge of the voter‘s signature, which she had seen on medical documents, is illustrative.
Defendants counter that the risk of rejection will be significantly lower in future elections because the new absentee ballot application and affidavit envelope provide notice to the voter that the signatures must match. In support of this conclusion, they rely on Dr. Mohammed‘s analysis of signature styles in the 2016 Gеneral Election, which shows that 94 of the rejected ballots had signatures with different styles. Defendants argue that the new forms will “put voters on notice that they must use the same signature style when signing each document.” Doc. no. 54 at 22. This is beside the point, however, because even excluding those 94 ballots, it still means that dozens, if not hundreds, of rejected voters used the same signature style and were still rejected in the 2016
On the other hand, additional procedures would provide a tangible benefit. Plaintiffs point out that the absentee-ballot application already provides sections to allow a voter to submit her phone number and email address. They contend that a procedure whereby a moderator simply reaches out to the voter in one form or another would be of great value. The court agrees.
As defendants stated at the hearing, moderators already engage in a process of considering extrinsic evidence to, in defense counsel‘s words, “salvage” a ballot that could otherwise be rejected. Necessarily, the premise of such a process is that the consideration of extrinsic evidence can be useful in determining whether the same person executed both the affidavit envelope and application. Plaintiffs seek no more than to open up that process to allow for consideration of evidence from the best source—the voter.10 To be sure, it may not be a perfect solution. Because many absentee voters are voting by absentee ballot due to work, religious commitment, or disability, they may not be available at the time the moderator is reviewing the
signatures. Some may not be reachable by phone, and others may not have access to email. But with proper notice to voters that they may be contacted, a phone call or similar measure would make the process a more constructive exercise. As it stands currently, moderators consider limited and far less probative extrinsic evidence. In addition, there is evidence in the record that moderators consider evidence submitted with the affidavit envelope in deciding whether to accept an absentee ballot.11
In short, based on the undisputed facts in the record, “[i]t is apparent that the risk of erroneous deprivation of the protected interest in absentee voting is not enormous, but the probable value of an additional procedure is likewise great in that it serves to protect the fundamental right to vote.” Zessar, 2006 WL 642646, at *9.
c. Government‘s Interests
The third factor involves consideration of the government‘s interests, which may include “the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. Defendants argue that
The court agrees that the State has legitimate interests in preventing voter fraud and protecting public confidence in elections. See Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 194-97 (2008). That being said, in comparison to the two instances of absentee-voter fraud that defendants cite as support, one in the 2012 General Election and the other in the 2016 General Election, hundreds of voters (approximately 740 by plaintiffs’ estimate) were disenfranchised under
In any case, the court fails to see how additional procedures would harm these interests. Moderators already consider limited forms of extrinsic evidence. Additional procedures would simply allow for more probative extrinsic evidence to be considered. Thus, if anything, additional procedures further the State‘s interest in preventing voter fraud while ensuring that qualified voters are not wrongly disеnfranchised. See Fla. Democratic Party v. Detzner, No. 4:16cv607, 2016 WL 6090943, at *7 (N.D. Fla. Oct. 10, 2016) (“[L]etting mismatched-signature voters cure their vote by
proving their identity further prevents voter fraud—it allows supervisors of elections to confirm the identity of that voter before their vote is counted.“). Likewise,
Next, contrary to defendants’ argument, plaintiffs’ proposed procedures would not entail significant administrative burdens. Moderators already engage in a practice of considering extrinsic evidence before rejecting a ballot due to a signature mismatch. Consequently, this is a case not of foisting wholly novel procedures on state election officials, but of simply refining an existing one to allow voters to participate and to ensure that the process operates with basic fairness.
While the current procedure would need to be expanded so that moderators could reach out to voters, no individual district is likely to be materially impacted. In the 2016 General Election, for example, 74% of polling places would not have been impacted at all, because they did not reject any ballots due to a signature mismatch. Only 5 of New Hampshire‘s 318 polling places had ten or more such rejections. That procedures already exist which could be readily extended to provide basic guarantees of due process to voters militates against defendants’ argument. See Detzner, 2016 WL 6090943, at *7 (finding statute requiring rejection of absentee ballot based on signature mismatch unconstitutional, where, among other things, voters who failed to sign their ballot received opportunity to cure, but voters whose signatures did not match received no such opportunity); La Follette, doc. no. 49-4, at 4 (same).
Defendants respond that the analysis is not so simple. They posit that, “[i]f plaintiffs’ argument was extended to its logical conclusion, . . . then notice and an opportunity to cure could be required for every absentee ballot rejected for any reason,” further burdening moderators. Doc. no. 66 at 5. The court is not persuaded. The court‘s conclusion rests on a careful, context-sensitive balancing of the Mathews factors. See, e.g., Mathews, 424 U.S. at 334 (“(D)ue process is flexible and calls for such procedural protections as the particular situation demands.“). The need for additional process with respect to
Defendants make two final arguments that merit only brief comment. First, on the basis of their statistical evidence allegedly showing the success of their trainings, defendants argue that at most moderators merely applied the statute unconstitutionally in 2016. They argue that the proper remedy would be to require them to conduct additional training for those moderators who have higher rejection rates. The court is not persuaded. Defendants’ statistical evidence is insufficient for the reasons articulated by plaintiffs in their briefing. Furthermore, additional training would not be a useful exercise, since defendants merely reiterate the limited guidance set forth in the Election Procedure Manual. See note 9, supra.
Second, defendants argue that plaintiffs cannot succeed on a facial challenge because they do not dispute that the absentee ballots of some voters—specifically, those who (1) omit signatures, (2) use the wrong name on a document, or (3) use a digital signature—were correctly rejected. But “[t]he proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” City of Los Angeles, California v. Patel, 135 S. Ct. 2443, 2451 (2015). Voters in those categories would be rejected regаrdless of
d. Conclusion
“Procedural due process guarantees fair procedure, not perfect, error-free determinations.” Aurelio v. R.I. Dep‘t of Admin., Div. of Motor Vehicles, 985 F. Supp. 48, 56 (D.R.I. 1997) (internal quotation marks omitted). One could, by taking in isolation various facets of the current process, conclude that
Therefore, in light of the undisputed, material facts in the record, plaintiffs are entitled to summary judgment on their procedural due process claim. The court grants plaintiffs’ request for declaratory relief insofar as
The court also grants plaintiffs’ request for permanent injunctive relief. Outside of their arguments on the merits, defendants do not argue that the elements for a permanent injunction are not satisfied. See Esso Standard Oil Co. v. López-Freytes, 522 F.3d 136, 148 (1st Cir. 2008) (listing elements for permanent injunction). The court concludes that plaintiffs have demonstrated an entitlement to permanent injunctive relief. Because “a successful facial attack means the statute is wholly invalid and cannot be applied to anyone,” Ezell, 651 F.3d at 698, the court enjoins defendants from enforcing
II. Remaining Claims (Counts II, III, IV)
Having resolved Count I in plaintiffs’ favor, the court declines to go further and address plaintiffs’ remaining claims. This is because plaintiffs are afforded comрlete relief by virtue of their success on their procedural due process claim: they will receive the declaratory relief they request and corresponding injunctive relief.
This is not to say that plaintiffs’ remaining constitutional claims are “moot” in the technical sense. A case does not become moot for purposes of Article III merely because a court finds that the plaintiff is entitled to relief under one of a number of alternative theories. See Novella v. Westchester Cty., 661 F.3d 128, 149 (2d Cir. 2011) (“[I]t is cases rather than reasons that become moot with the meaning of Article III.” (internal quotation marks omitted)); Air Line Pilots Ass‘n, Int‘l v. UAL Corp., 897 F.2d 1394, 1397 (7th Cir. 1990) (“Whether a court gives one or ten grounds for its result is not a question to which Article III prescribes an answer.“). But courts also use the term “moot” to “refer to an issue that need not be decided in light of the resolution in the same opinion of another issue.” UAL Corp., 897 F.2d at 1397. The decision to reach or avoid an unnecessary issue falls within the court‘s discretion, and will depend on the circumstances presented. See Novella, 661 F.3d at 149; Clark v. Dep‘t of Army, 997 F.2d 1466, 1470 (Fed. Cir. 1993), superseded by statute on other grounds as recognized in Kewley v. Dep‘t of Health & Human Servs., 153 F.3d 1357, 1361-62 (Fed. Cir. 1998). “Courts recognize that it may be valuable to decide alternative grounds, even though all are necessary, and also understand that there may be excellent reasons to avoid alternative grounds.” 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3533 (3d ed.) (collecting cases).
In this case, the court concludes that it is neither necessary nor prudent to reach plaintiffs’ other constitutional claims. In Count II, plaintiffs target the same basic defects in the statute as they do in Count I, albeit under the auspices of a different test. And although Count III presents a distinct question, as it rests on the alleged lack of uniformity wrought by
By contrast, plaintiffs’ ADA claim is moot under Article III. As a result of the 2017 amendments to
For these reasons, the court does not address Counts II, III, and IV.
CONCLUSION
For the reasons stated herein, plaintiffs’ motion for summary judgment (doc. no. 48) is granted with respect to Count I, and is otherwise denied. Summary judgment
As to relief under Count I, the court grants plaintiffs’ request for declaratory relief insofar as
SO ORDERED.
Landya McCafferty
United States District Judge
August 14, 2018
cc: Counsel of Record
Notes
The Secretary of State‘s Office also publishes a notice titled “NOTICE OF REQUIREMENTS TO USE ABSENTEE BALLOT.” See doc. no. 49-19 at 17. Prior to 2016, this notice stated in pertinent part:
The moderator will compare the signature on the written request for an absentee ballot to the signature on the Absentee Ballot Affidavit Envelope and your absentee ballot will be counted only if it appears that the same person signed both documents. Therefore, it is important to use the same signature on each form.
The signature on this affidavit must match the signature on the application for an absentee ballot. Your absentee ballot will be counted ONLY if it appears the same person signed both forms. Therefore, it is important to use the same signature on both forms. . . . The two signatures are not compared when the voter receives assistance, provided the person assisting the voter [fills out the relevant sections acknowledging such assistance].
Doc. no. 49-25 at 2. The Secretary of State‘s Office encourages municipalities to send this notice to voters with their other absentee-ballot materials, but they are not required to do so. Some municipalities, including Hudson, Laconia, and Manchester, do not send the form to voters.
Doc. no. 54-9 at 115 (emphasis added); see also doc. no. 49-3 at 104 (deposition of David Scanlan) (stating that, prior to enactment of exemption toThe best practice would be for the clerk to appoint someone neutral to take the absentee ballot to the voter and to verify that the stamped name is legitimate as the voter‘s signаture. The clerk‘s appointee should countersign both the application and the affidavit envelope next to the stamped signature or submit a written and notarized statement to accompany the sealed affidavit envelope verifying that the voter himself or herself caused the ballot to be marked and the affidavit to be stamped with the voter‘s signature.