PHOENIX — Arizonans who forget to sign their early ballots have no legal right to fix them after Election Day to ensure their votes are counted, a federal appeals court ruled Wednesday.
The Ninth Circuit Court of Appeals rejected arguments by the state and national Democratic parties that allowing five extra five business days to “cure” unsigned ballots is legal. The lawyers pointed out that is inconsistent with other laws which give a five-day window to fix situations where a signature on a ballot envelope does not match what county election officials have on file.
But Judge Susan Graber, writing for the majority, said none of that means those who forget entirely are entitled to the same right.
Wednesday’s decision was not unanimous.
Appellate Judge Wallace Tashima said the state “offered no rational explanation” for the disparity. And he said the majority ruling “is particularly troubling in these times of unprecedented assaults on voting rights.”
The ruling, unless overturned, could leave several thousand otherwise valid ballots uncounted in the 2022 election. And given how close some races have been, that could make a difference in the outcomes.
At the heart of the fight is that most Arizonans choose to vote by mail.
That process requires the voter to complete the ballot and then sign an affidavit on the envelope attending that he or she personally has cast the ballot.
“Inevitably, a small number of voters neglect to sign the affidavit,” Graber noted.
In 2018, for example, the most recent figures in court records, just 2,435 ballots statewide were rejected because they arrived in unsigned envelopes and the voters never made the trip to county election offices by 7 p.m. on Election Day to “cure” the problem.
If election officials find an envelope is missing a signature they attempt to notify the voter of the problem — ballot envelopes have a space for a phone number — and tell them that it will not be counted. And they offer an option of fixing the problem with a replacement ballot, but only through 7 p.m. on Election Day.
Attorneys for the Democratic Party sued. And last year U.S. District Court Judge Douglas Rayes said there was no reason for the disparate treatment of unsigned ballots versus those with mismatched signature.
Graber disagreed. She pointed out that the ballot envelopes states, in two separate places, the requirement of voters to sign, something the judge said imposes a minimal burden.
Potentially more significant, she said there is no evidence that the burden of having to sign a ballot falls disproportionately on any specific group, a factor that could lead a court to find it is discriminatory.
On the other side of the equation, Graber said there is evidence that allowing for a post-election fix of unsigned ballots would create an administrative burden on poll workers.
“Under plaintiffs’ requested relief ... election officials in all 15 counties in Arizona would have to process post-election-day attempts to cure missing signatures,” the judge wrote.
She acknowledged that officials from several counties, citing the small number of affected ballots, said the burden would be minimal. And Secretary of State Katie Hobbs, a Democrat, agreed.
But the judge said that view is not universal.
Graber cited Chris Roads, who was the deputy recorder in Pima County who provided statements that it would create a significant administrative burden.
The problem, the judge explained, is that an unsigned ballot can be cured prior to 7 p.m. on Election Day by having the voters cast a new ballot.
Only thing is, nothing in state law allows that after Election Day. So that would require staffers to find each original unsigned ballot so the voter could correct the problem, something Roads said can be handled only with workers of two different parties present.
Graber said that is different than when election officials are dealing with a ballot with mismatched signatures
“A voter may verify his or her signature with a short phone call to the recorder's office,” she wrote. Ditto situations where someone casts a ballot at a polling place but it is set aside as a “provisional” ballot because the person does not have the proper identification.
“A voter may present identification to election officials without the officials’ needing to retrieve or re-file the voter’s ballot,” she wrote. “In other words, the administrative burden with respect to missing signatures is significantly greater than the short, simple verification process with respect to mismatched signatures or unverified identifications.”
Tashima, in his dissent, blasted his colleagues for relying solely on Roads’ concern to interfere with the right to vote.
“The majority permits the state of Arizona to undermine that right on the strength of a statement of a single county election official, whose opinion of the rule imposed by the state is contradicted by the opinions not only of other counties' election officials, but the secretary of state who is the state’s chief election officer,” he wrote. And Tashima sniffed at Roads’ explanation of the burden in finding an unsigned ballot and having two election workers present when it is handled.
“To be sure, this takes at least some time, but there is no evidence of how much time,” the judge wrote. “Two minutes? Thirty seconds? An hour? If it takes two minutes to help a voter, it is difficult to see how the state's interest in avoiding this administrative burden is a relevant and legitimate interest sufficiently weighty to justify the limitation.”
In filing suit, attorney Alexis Danneman who represents the Democrats acknowledged the concern about the state law is political.
“It is inevitable that Democrats, or those who would vote for Democrats, will not have their vote counted as a result of defendants’ failure to allow voters to cure missing signatures after Election Day,” she wrote. The result, Danneman said, is that the party will be less likely to succeed in its “mission to help elect Democratic candidates to public office.”
She also claimed that the law imposes a financial burden on the party which has to spend more resources educating voters in areas with low English literacy rates about the instructions to ensure they comply with the signature requirement.
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