Even former Congressman disenfranchised when his ballot was rejected...
UPDATED 11/15/2018: Federal court orders county election boards to provide slightly more than 4,000 voters with an opportunity to cure mismatched rejections by Nov. 17...
By Ernest A. Canning on 11/9/2018, 4:27pm PT  

On Thursday, Florida Democrats filed a federal lawsuit in which they alleged that the Sunshine State's, county-by-county, subjective signature match procedures for rejecting vote-by-mail (VBM) and provisional ballots are arbitrary, lacking in standards, and, over several election cycles, inconsistently applied so as to have a disparate impact on minority and young voters. This, the complaint alleges, deprives those voters of Equal Protection under the law as mandated by the 14th Amendment to the U.S. Constitution.

As explained by the Democrats' attorney Marc Elias to WLRN Miami:

These laws, when taken together, condition the right to vote of millions of Floridians who vote-by-mail, or wind up voting provisionally, on the untrained opinions of canvassing boards or elections officials as to whether or not signatures match. The problem is that voters in one county are subject to different standards for reviewing signatures than others and there is no uniform standard or even sufficient training for this, and it's highly error prone.

Studies have shown that laypersons conducting signature matching are more likely to reject legitimate signatures as inauthentic than the other way around. This serves as an outright disenfranchisement and burden on the right to vote.

Elias' assertions about the arbitrary and erroneous nature of signature mismatch rejections appeared to be partially born out via a Nov. 9 Tweet published by former Rep. Patrick Murphy, after he learned on Election Day --- too late to remedy the problem --- that even his "absentee ballot wasn't counted due to 'invalid signature' match"...

Murphy (D-FL), who served two terms in Congress (2013-2017), wrote about what happened in a USA Today op-ed this afternoon:

After it became clear that several races were too close to call on Tuesday, I decided to check my absentee ballot status on the Palm Beach County elections website – only to find that my ballot had been rejected 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.

Voters who get notice in time can sign and return an affidavit that has to be received by 5 p.m. the day before the election. But my vote wasn't actually logged until Election Day, according to the Palm Beach elections website. There is no remedy to my situation after the fact, so unless that's changed by the county canvassing board or a legal challenge filed by Sen. Bill Nelson, the judgment call made by an unelected county employee to reject my vote will stand.

Murphy wonders "how many others across the state has this 'mismatch' scenario affected without their knowledge?," particularly if they are simply too busy to check the website, or don't know to, or are out of town. "We must work to reform this system --- now," he adds.

Murphy's allegation suggests a denial of an adequate opportunity for voters to contest such rejections --- an issue that not only led a federal court to conclude that Georgia's similar "exact match" regulations deprived voters of due process, but also to subsequently deny GA Sec. of State Brian Kemp's request for a stay of an injunction pending appeal. The U.S. 11th Circuit Court of Appeal then denied Kemp's stay request and his motion to expedite the appeal.

Here, FL Democrats not only seek injunctions to prevent the arbitrary application of the Sunshine State's signature mismatch statutes but also a temporary restraining order that would delay Saturday's canvassing deadline until after the District Court hears their Equal Protection challenge to the mismatch procedures.

The lawsuit does not entail an academic exercise. The complaint alleges that "during the 2018 general election, 3,497,012 Florida voters requested to vote by mail. As of Nov. 8, 2,622,194 of those voters' [VBM] ballots have been returned and accounted for, and 874,818 had not yet been counted as returned." There were also 24,460 provisional ballots cast. As of that same date, out of more than 8 million votes counted to date, Republican Ron DeSantis led Democrat Andrew Gillum by slightly over 36,000 votes. In the U.S. Senate race, Republican Governor Rick Scott led incumbent Senator Bill Nelson by less than 15,000.

Although, as observed by Brad Friedman, the current margins would trigger an automatic machine "recount" for Gillum and a hand-count in Nelson's contest, the newly filed lawsuit pertains to the right of all voters to have their lawfully cast votes included within the initial count.

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UPDATE, 11/15/18. Chief U.S. District Court Judge Mark E. Walker issued an Order Granting Preliminary Injunction this morning. The court agreed with plaintiffs' Equal Protection challenge to the extent that the Florida signature matching process allows individual counties the "discretion to apply their own standards and procedures. Certain counties, such as Leon County," the court observed, "go above and beyond to ensure voters have a chance to cure a signature mismatch. But nothing in the law requires that..."

But the decision really turned on an issue of procedural due process --- an issue the court relied upon even though it had not been expressly raised in the complaint. A voter must be afforded an opportunity to cure a mismatched signature ballot rejection. Even though VBM ballots can be received as late as 7:00 p.m. on the day of the election, Florida law requires that voters submit an affidavit to cure a rejection based upon a signature mismatch no later than 5:00 p.m. the day before the election.

Worse, "provisional ballot voters," the court observed, "are provided no opportunity to cure under the law."

Per the decision, "across 45 of Florida's 67 counties, there are just over 4,000 rejected ballots for mismatched signature" where voters have not been afforded an opportunity to cure. The court directed the county Supervisors of Elections in those counties to provide those VBM and provisional ballot voters two days --- until Saturday, November 17 --- an opportunity to cure.

From the perspective of who wins or loses the still contested Florida U.S. Senate and governor's races, it is doubtful that this ruling will alter the outcomes. From the perspective of the importance of ensuring the right of every citizen to have their lawfully cast vote counted, it is quite valuable, as is Judge Walker's criticism of the upside-down nature of the statutory scheme enacted by Florida's Republican-controlled legislature. "What is shocking about Florida law," Judge Walker observed, "is that even though a voter cannot challenge a vote rejected as illegal, any voter or candidate could challenge a vote accepted as legal." In other words, Florida Republicans are far more concerned about limiting rather than ensuring fundamental constitutional rights --- the right to vote and have every lawfully cast vote accurately counted.

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Ernest A. Canning is a retired attorney, author, Vietnam Veteran (4th Infantry, Central Highlands 1968) and a Senior Advisor to Veterans For Bernie. He has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing