Texas election officials may continue rejecting mail-in ballots if they decide the signature on the ballot can’t be verified, without notifying voters until after the election that their ballot wasn’t counted, the U.S. Fifth Circuit Court of Appeals ruled on Monday.
The appeals court halted a lower court’s injunction, which had not gone into effect, that would have required the Texas secretary of state to either advise local election officials that mail-in ballots may not be rejected using the existing signature-comparison process, or require them to set up a notification system giving voters a chance to challenge a rejection while their vote still counts.
Requiring such a process would compromise the integrity of the mail-in ballots “as Texas officials are preparing for a dramatic increase of mail-in voting, driven by a global pandemic,” reads the Monday opinion issued by U.S. Fifth Circuit Judge Jerry E. Smith.
“Texas’s strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state’s voting procedures place on the right to vote,” Smith wrote.
Before mail-in ballots are counted, a committee of local election officials reviews them to ensure that a voter’s endorsement on the flap of a ballot envelope matches the signature that voter used on their application to vote by mail. They can also compare it to signatures on file with the county clerk or voter registrar that were made within the last six years.
The state election code does not establish any standards for signature review, which is conducted by local election officials who seldom have training in signature verification.
Voters must be notified within 10 days after the election that their ballot was rejected, but state election law does not require affording them an opportunity to challenge the rejection, the appeals court ruling noted.
[…]
Plaintiffs said they will now push counties to voluntarily give early notice to voters whose ballots are rejected for signature-match issues, allowing them a chance to rectify the situation and let their vote count.
“It will affect this 2020 election, so voters will not be notified in time, and so I think the main thing we’re trying to do now is notify counties that ballot boards are not required to give pre-election day notice, but they can,” said H. Drew Galloway, executive director of MOVE Texas, a plaintiff. “We encourage them to follow the original intent of the lower courts here so folks (whose ballots were rejected) can go vote in person, or contest that decision.”
See here for the background. That ruling had been stayed pending this appeal, so in that sense nothing has been lost. It’s another typical hatchet job from the country’s worst court. Let me bullet-point this, because I’m tired and this shit needs to stop.
– We all know that if this had a disproportionate effect on white voters, the concern about “safeguarding the integrity of its elections from voter fraud” would be a mere footnote. Some voters are more equal than others.
– On the very same day that this turd was handed down, a state court in North Carolina ruled that “voters whose absentee ballots have problems with their envelopes can now expect contact from board of elections offices in order to fix their ballots by Election Day”. We need uniform national standards that prioritize and protect the rights and ability of all citizens to vote. That needs to be very high on the to do list of the next Congress.
– Can we please give some serious consideration to packing the Fifth Circuit? Quite a few Trump-appointed judges are there because vacancies were not allowed to be filled during Obama’s terms. This court is in serious need of reform.
– On a more practical note, Drew Galloway is correct: We need to be talking to local election officials to get them to agree to try to fix these problems in advance. The court didn’t say that they couldn’t do this, just that they didn’t have to. Well, if it’s a choice, then let’s make sure they make the right choice.
That’s all I’ve got. This effing court. The Chron has more.
Requiring such a process would compromise the integrity of the mail-in ballots …
Allowing a voter to appeal the decision to scrap his/her ballot based on an arbitrarily determined mismatched signature improves the integrity of the election. The 5th’s logic is so completely backwards that I’m not sure that they are even listening to the cases anymore.
Republican Party = anti-democracy party
The SOS handbook on this matter is interesting reading.
https://www.sos.state.tx.us/elections/forms/ballot-board-handbook.pdf
I tried to get on the Harris County ballot board as an independent, but unfortunately I had already voted in a primary which now labels me as a member of that party.
The mail ballot tracker will show you that your mail ballot has been approved (and presumably, if it has been rejected.)
That’s nothing new. About 15 years ago, a colleague who had moved here from NY asked me how he would go about registering as an Indy. I told him that you didn’t here- at the start of each new 2 year cycle, if you voted in a party’s primary you got listed as a member of that party for the duration of the cycle.
“ Plaintiffs said they will now push counties to voluntarily give early notice to voters whose ballots are rejected for signature-match issues, allowing them a chance to rectify the situation and let their vote count.”
So we can at least count on Harris and Ft Bend county officials to do the right thing?
Thanks for the sharing the ballot board handbook. I’m very disappointed in how many errors there are in the graphics for Section E.
It’s surprising how little guidance there is in the handbook for comparing signatures, and even then it’s left to a majority vote of the board afterward.
I can’t imagine all the burdens these county clerks are dealing with. Adding timely voluntary notification of signature rejections is just another logistics challenge that’s going to be difficult to clear before election day.
“Because Texas’s strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state’s voting procedures place on the right to vote, we stay the injunction pending appeal.”
So sayeth a motion panel of the Fifth Circuit in Richardson v. Texas Secretary of State, Ruth R. Hughs, No. 20-50774 (5th Cir. Oct 19, 2020)(order granting State’s motion for stay pending appeal).
Let’s distill the 35-page opinion down to the essence:
• We don’t care if some voters’ ballots get thrown out and don’t contribute to the election result as a result. It’s no big deal.
• The State has articulated its interest in combating voter fraud, which we find much weightier. Therefore, the State should prevail and the injunction should be stayed.
* And we need to use a legal test that favors the State because the State’s interests must be favored. Especially when it comes to elections.
• The State is the State, and isn’t required to offer any evidence that fraud is a problem. We had said so said before. When the State appeals an injunction, the State’s interest is the same as the public’s/voters’. Ditto.
• The district court was wrong to require evidence, and wrong to require a showing that the signature verification regime actually furthered the asserted state interest in stopping fraud.
So, what it really boils down to here is the deciding judges’ value system: What they care about, and what not. What matters to them, and what doesn’t matter so much. And that’s why it’s so important and consequential who ends up sitting on the appellate (caselaw-making) courts.
What does *not* matter much here are the rights of the affected voters whose votes are thrown out. They are effectively disfranchised, but the Court sees no severe burden even though the consequence for the affected voters is the outright DENIAL of their right to vote and contribute to the picking of winners in races for public office.
Leaving aside the competing values held by the judicial decisionmakers, is the ruling at least logical? –
Strictly speaking, no.
In theory, the goal of preventing voter fraud is to produce a correct total count, and a resulting correct outcome in terms of winners/losers untainted by ballots that should not be counted. But the elimination of nonfraudulent ballots for technical defects (defect determinations that are ultimately not controlled by the voter, but instead by those who compare and judge signatures) without an opportunity to cure such defect (i.e., by casting a conforming ballot) will eliminate votes that should be counted, and the total count is therefore distorted if they are not.
Stated differently, the good-faith goal of anti-fraud measures — which is to produce a correct count of the votes cast by eligible voters — is not being promoted, but is being undermined, if ballots are thrown out without affording the affected voters an opportunity to fix (“cure”) the defect. The purpose of elections (and therefore election integrity) is thwarted when nonfraudulent votes are diverted into the trash bin and prevented from playing a role in determining which candidates will win, and which lose.
Secondly, the reasoning regarding the potential impact on the election results—and empirical question– is also inconsistent/incoherent. The proposition that fraud-prevention is an important interest rests on the premise that fraudulent votes could affect the outcome (and, in a tight race, turn losers into winners and vice versa). The same reasoning, however, applies to non-fraudulent mail ballots that are thrown out on technicalities without an opportunity for the affected voter to cast a replacement ballot. These ballots, too, could make the difference between a candidate winning or losing even in small numbers. And if a rejected ballot is indeed fraudulent (such as having been cast on behalf of a deceased person, it will not be cured in the cure process). The provision of an opportunity to cure—the remedy for the constitutional claim at issue here–will *not* undermine the anti-fraud objective.
Bottom line by way of opinion critique: Election integrity is compromised and threatened — not promoted or safeguarded — by going to the extreme with purported anti-fraud measures at the expense of some voters’ right to have their ballot matter. Federalist appellate judges are now using their judicial powers to act as facilitators/enablers for such democracy-harming efforts while disavowing any role in election administration policymaking, and complimenting each other for their democracy-deconstruction effort with mutual case citations. Prior anti-democratic rulings of the same court (such as the one on the voter-ID law) are used as legal justification for further diminution of voting rights in the name of precedent-adherence.
PS: The author of the panel opinion on the motion for stay was not a Trump appointee, but he cites his Trump-appointed colleague from the TDP v Abbott motion panel; along with St. Antonin, of course. As far as the rhetoric goes, the district court judge below, who penned a “conscientious” 100-plus page opinion order favoring the voters/plaintiffs, was treated a tad better this time: no wild allegations of drive-by analysis and strawmen arson. But he was not spared from being faulted for wanting to see evidence from the Secretary of State regarding “voter fraud” rather than abiding by the fact-free approach favored by the federalist statists on the court of appeals.