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Saucedo v. Gardner

United States District Court, D. New Hampshire

August 14, 2018

Mary Saucedo, et al.
William Gardner, Secretary of State of the State of New Hampshire, in his official capacity, et al.


          Landya McCafferty United States District Judge.

         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 are more prevalent in people who are elderly, disabled, or who speak English as a second language. For the most part, signature variations are of little consequence in a person's life.

         But in the context of absentee voting, these variations become profoundly consequential. The signature-match requirement in RSA 659:50, III requires every local election moderator to compare the signature on a voter's absentee-ballot application to the signature on an affidavit that the voter sends with the absentee ballot. If the signature on the affidavit does not appear “to be executed by the same person who signed the application, ” the moderator must reject the voter's ballot. RSA 659:50, III. The purpose of the requirement is to ensure that the same person executes both the absentee-ballot application and the affidavit. In recent elections, however, the signature-match requirement has disenfranchised hundreds of absentee voters.

         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 RSA 659:50, III. They bring suit against defendants William M. Gardner (New Hampshire's Secretary of State), and the New Hampshire Secretary of State's Office, alleging constitutional claims under 42 U.S.C. § 1983, and a claim under the Americans with Disabilities Act (“ADA”). Before the court are the parties' cross-motions for summary judgment, as well as plaintiffs' motion to strike. For the following reasons, plaintiffs' motion for summary judgment is granted in part, defendants' cross-motion for summary judgment is granted in part, and plaintiffs' motion to strike is denied.


         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.” Fed.R.Civ.P. 56(a). In reviewing the record, the court construes all facts and reasonable inferences in the light most favorable to the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013).

         “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).


         The following facts are undisputed, unless otherwise noted. As stated above, plaintiffs are voters who attempted to vote by absentee ballot in the 2016 General Election. Plaintiff Saucedo voted by absentee ballot due to a disability (blindness), and plaintiffs Fitzpatrick and Heard voted by absentee ballot because they were out of the state on Election Day. They brought suit in May 2017, after learning that their absentee ballots had been rejected. All of their ballots were rejected on the basis of the signature-match requirement in RSA 659:50, III. Defendant Gardner, as the Secretary of State, is the “Chief Election Officer” under state law. RSA 652:23. Among other things, defendants produce absentee-voting forms and documents, and provide election information and materials to local officials and the public. See RSA 652:22; RSA 652:23; RSA 657:4; RSA 657:7.

         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. RSA 657:1.

         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. RSA 657:4, I; RSA 657:5. A voter may request a form from a town or city clerk, or from the Secretary of State. RSA 657:6. Alternatively, a voter may receive a ballot from the town or city clerk simply by providing a written statement containing all of the necessary information. RSA 657:6.

         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 No. 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.” RSA 657:4, I. In addition, there is a new section, which provides notice that “[a]ny person who assists a voter with a disability in executing this form shall make a statement acknowledging the assistance on the application form to assist the moderator when comparing signatures on election day.” Id. Below the notice, there are lines for the assistant to print and sign her name.

         Upon receipt of a properly executed application, the clerk provides the voter with: (1) an absentee ballot; (2) an affidavit envelope; and (3) a return envelope.[1] RSA 657:15, I; RSA 657:7, I-III. The voter marks the ballot and places the ballot in the affidavit envelope. RSA 657:17. On the face of the affidavit envelope is an affidavit that the voter must execute. The affidavit requires the voter to again certify that she is voting by absentee ballot for a qualifying reason, and requires that the voter print and sign her name. As a result of the 2017 amendments to the statute, below the signature line is the following notice:

The signature on this affidavit must match the signature on 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.

RSA 657:7, II. Below, there is a space for an assistant to print and sign her name. See doc. no. 54-7 at 1.

         After executing the affidavit, the voter places the affidavit envelope in the return envelope, and submits the package to the town or city clerk. RSA 657:17. The clerk attaches the voter's application to the received absentee-ballot package, but does not open or otherwise process the package prior to Election Day. RSA 657:18.

         On Election Day, the clerk delivers the absentee-ballot packages to the local moderator. RSA 657:23. The moderator is a local, elected position with a two-year term. RSA 40:1. Among other things, the moderator oversees the “conduct of voting” and the implementation of New Hampshire's election statutes in her municipality. RSA 659:9. Moderators “are not employees of the Department of State” and are only accountable to local voters. Doc. no. 54 at 2, 31.

         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 RSA 659:49, I; RSA 659:49-b. Processing is done in public view. The moderator begins processing absentee ballots “by clearly announcing that he or she is about to open the envelopes which were delivered to him or her.” RSA 659:50. The moderator then removes each affidavit envelope from the return envelope and compares the signature on the affidavit with the signature on the voter's application.

         An absentee ballot is accepted if: (1) the name of the voter is on the voter checklist; (2) the affidavit “appears to be properly executed”; (3) the “signature on the affidavit appears to be executed by the same person who signed the application, unless the voter received assistance because the voter is blind or has a disability”; and (4) the “signatures appear to be the signatures of a duly qualified voter who has not voted at the election.” RSA 659:50, I-IV. If all of these requirements are met, and the ballot is not challenged by another voter, see RSA 659:51, I, the moderator opens the affidavit envelope and takes out the absentee ballot to be counted. The moderator may begin counting accepted absentee ballots after polls close. RSA 659:49, I. If one of the requirements is not met, the moderator rejects the ballot, marks the affidavit envelope with the reason for rejection, and does not open the affidavit envelope. RSA 659:53.

         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 RSA 657:26. Defendants remove this information from the website ninety days after the election, however.

         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.” RSA 659:50, III. As a result of the 2017 amendments to the statute, voters receiving assistance with the execution of their voting materials due to blindness or disability are exempt from the requirement. Id.

         On its face, RSA 659:50, III gives no guidance on the questions that inevitably arise in applying the requirement, including what stylistic variations suggest that two signatures were made by different individuals, and what threshold No. of variations is required to conclude that the signature on the affidavit does not “appear to be” executed by the same person who signed the application. No. other state statute or regulation elaborates the standard set forth in RSA 659:50, III, and there does not appear to be any authoritative case law on the subject.

         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 of 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 Id. at 178, 180-83, and has never engaged in a review of any statistical anomalies related to the requirement, Id. at 185.

         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 No. of local election officials to show “how cities and towns actually implement RSA 659:50.”[2] Doc. no. 54 at 8. Defendants state that the practices of these officials are consistent ...

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