Judge Hears Arguments in Case Challenging N.H. Absentee Ballot Law

Jul 16, 2018

A federal judge in Concord heard arguments Monday morning in a lawsuit alleging that the state has unconstitutionally thrown out hundreds of absentee ballots because the voters’ signatures did not appear to sufficiently match the handwriting used on other election paperwork.  

The American Civil Liberties Union first brought the case against the state in May 2017 on behalf of three voters whose absentee ballots were discarded in the 2016 general election. Among those plaintiffs is a 95-year-old Manchester resident who is legally blind and, as a result, requires assistance completing her absentee ballot paperwork.

New Hampshire election law allows local moderators to reject someone's absentee ballot if the signature does not appear to match the one they used on their absentee ballot application.

After the ACLU filed its lawsuit, the legislature altered the law to more clearly account for instances in which a voter might require assistance completing his or her absentee ballot paperwork.

In court on Monday, Assistant Attorney General Matt Broadhead argued that the state has consistently included language in its absentee ballot instructions warning voters that their signatures may be subject to this kind of scrutiny, but some communities elect to use their own instructions — and that might not include the same warning. In any case, Broadhead said the state is taking steps to update its paperwork to more clearly communicate this requirement.

And overall, Broadhead argued that the state’s practice of allowing moderators to compare signatures was the simplest possible way to ensure the validity of absentee ballots.

Broadhead said state officials typically do not investigate absentee ballots unless they receive a specific complaint alleging some kind of impropriety, but they did review the 275 ballots rejected due to mismatched signatures as part of their preparations for this lawsuit. In the course of that review, Broadhead said the state identified at least six absentee ballots that appear to have been returned by someone other than the person who applied for the ballot in the first place.

When asked by the judge presiding over the case for more context on the prevalence of absentee ballot fraud in New Hampshire, Broadhead pointed to two recent cases: one in which a woman completed an absentee ballot for her husband several days after he died, and another in which a mother completed an absentee ballot for her college-aged son, who then voted again in his college town. Both of those voters were fined for illegally completing someone else’s absentee ballot, he said.

ACLU voting rights attorney Julie Ebenstein, in response, noted that neither of those incidents were detected as a result of the signature matching procedure at issue in this lawsuit — arguing that there’s no evidence the procedure has helped the state to identify any cases of absentee fraud.

The judge presiding over the case, Judge Landya B. McCafferty, peppered both sides with a series of questions about the way the process works, how it’s enforced and whether there are any alternative processes the state could use instead.

McCafferty didn’t issue any decision, but she did suggest during Monday’s hearing that the current law in question seems to allow local moderators to take an “arbitrary, capricious approach” in evaluating voters’ signatures.

The judge also signaled that she identified at least somewhat with the voters whose signatures are at issue in this case.

At one point near the end of the hearing, McCafferty disclosed that she is ambidextrous, and her own signature differs depending on whether she writes with her left or right hand. Until now, McCafferty said she wouldn’t have known that might be an issue if she were to fill out an absentee ballot — but now that she is aware of the law, she said she would likely be more careful to use the same signature on all of the necessary forms.