[EL] The Pa. federal district court decision and failure to require signature matches for mail-in ballots

[Levitt, Justin]

I'll hope that Pennsylvania attorneys more familiar with the practices on the ground can weigh in here.

To Mark's second question below, I think that Pennsylvania law does indeed (as a matter of policy) rely on the fact that the state requires voters to request mail ballots.  (In the case, the court was really just interpreting what Pennsylvania law demands, and then determining whether the constitution requires a federal court to impose procedures that Pennsylvania does not).   When voters in Pennsylvania request mail ballots, they have to submit either information like a driver's license number or Social Security number that can be matched to existing systems, or documentary proof of identification.  That is, officials have to confirm the identity of the requestor before they send a mail ballot in the first place.

States that are mailing ballots to every registered voter don't (obviously) rely on the request procedure, and so verify the voter's identity at a different point in the process.  (And yes, California has a signature match system, explored in substantial detail here, in a paper by William Janover and Tom Westphal<https://www.liebertpub.com/doi/10.1089/elj.2020.0648> in the Stanford Law and Policy lab (or, if you prefer, here<https://www-cdn.law.stanford.edu/wp-content/uploads/2020/04/SLS_Signature_Verification_Report-5-15-20-FINAL.pdf>)).

Justin

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Mark Scarberry
Sent: Saturday, October 10, 2020 11:12 AM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] The Pa. federal district court decision and failure to require signature matches for mail-in ballots


The court allowed the Sec. of State's order to stand. The part that I'm interested in is the instruction that county officials not engage in signature matching for mail-in ballots.



A more general question: Was it appropriate for Judge Ranjan to enter a decision on the merits, in the alternative, after finding that the plaintiffs lack standing? It did make sense for the court to do so, given time constraints.



Back to the specific issue of signature matching:



(1) Is it at all common for states not to engage in signature comparison when determining whether to count absentee/mail-in ballots?



(2) Would the result have been the same if Pennsylvania did not require voters to request mail-in ballots but rather sent them to addresses on file for every registered voter? The court notes the distinction but does not explicitly rely on it. California and some other states are doing the latter; I don't recall whether California (or those other states) engage in signature matching. Failure to do signature matching of some sort would seem to create a potential for substantial fraud when so many ballots are sent out (with, in some cases, such as ballots sent to nursing homes,  involving quite a few ballots being sent to the same address).



(3) I wonder whether it makes sense to require plaintiffs to produce evidence of past fraud when the procedure is a new one? But there is the possibility of relying on the absence of substantial fraud in other jurisdictions that have used the procedure before.



(4) Also, is there a difference between requiring that the signatures match and rejecting ballots if they don't match? Is it possible that a quick comparison will show that there is no resemblance between the signatures? Of course then there is a line-drawing issue.





Here is Judge Ranjan's description of the signature matching counts:



"Signature Comparison (Counts I-III). Plaintiffs' newly added claim relates to signature comparison. Secretary Boockvar's September 2020 guidance informs the county boards that they are not to engage in a signature analysis of mail-in ballots and applications, and they must count those ballots, even if the signature on the ballot does not match the voter's signature on file. Plaintiffs assert that this guidance is unconstitutional under the federal and state constitutions."



Mark


Mark S. Scarberry
Professor of Law
Pepperdine University
Rick J. Caruso School of Law
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