United States District Court, D. New Hampshire
Mary Saucedo, et al.
William Gardner, Secretary of State of the State of New Hampshire, in his official capacity, et al.
McCafferty United States District Judge.
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.
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.
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.
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
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).
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).
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.
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.
Absentee Voting in New Hampshire
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
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.
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.
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.
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. 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.
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.
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.
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
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.
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.
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.
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.
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
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
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.
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.
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.
have also provided affidavits from a No. of local election
officials to show “how cities and towns actually
implement RSA 659:50.” Doc. no. 54 at 8.
Defendants state that the practices of these officials are