By MARILYN ODENDAHL
TheIndianaLawyer.com
Finding Indiana’s process for matching signatures on absentee ballots is unconstitutional, a federal judge has permanently enjoined the Secretary of State and other election officials from rejecting any mail-in ballot on the basis of a signature mismatch without providing adequate notice to the voter. A separate ruling halted the state’s purge of voter rolls.
In an order granting summary judgment to the plaintiffs in the absentee ballot case, Senior Judge Sarah Evans Barker of the Southern Indiana District Court on Thursday held the procedure the Hoosier state uses to verify signatures on mail-in ballots violates the Due Process and Equal Protection Clauses of the 14th Amendment.
Under Indiana law, an absentee ballot will be rejected if a county election board determines the voter’s signature is not genuine. The board is required to issue a certificate allowing the voter to vote in-person but only if the voter appears in person before the board not later than 5 p.m. on Election Day.
Otherwise, voters are not notified their ballot has been rejected and there is no procedure by which a voter can contest the decision of the board.
“… (T)he Secretary (of State) argues that the signature verification requirement is a reasonable, nondiscriminatory restriction intended to confirm the identity of mail-in absentee voters and clearly furthers the State’s interest in preventing election fraud, ensuring the orderly administration of elections, and maintaining accurate records,” Barker wrote in the order. “While these interests … are clearly compelling and significant, they are not sufficient to justify the State’s failure to provide voters with notice and an ability to cure before rejecting their mail-in absentee ballots based on a perceived signature mismatch.
“In fact, without such procedural safeguards, the signature verification requirement actually threatens to undermine the State’s interests in correctly validating the identity of voters casting mail-in absentee ballots,” Barker concluded.
Common Cause Indiana, which challenged the signature-match law, hailed the ruling.
“This is a historic win for Indiana voters,” policy director Julia Vaughn said in a statement. “This victory helps ensure no Hoosier voting by mail will be disenfranchised by Indiana’s flawed signature matching law. Election laws should protect people’s right to vote and the integrity of our election system. Indiana’s signature matching law failed to do either, and wrongly disenfranchised Hoosiers. The court made the right decision to block its enforcement.”
The case is Mary J. Frederick et al. v. Connie Lawson, 1:19-cv-01959.
The case is one of a litany of pending lawsuits seeking to expand absentee and mail-in voting filed since the onset of the pandemic.
In a separate ruling, the Southern Indiana District Court blocked Indiana from purging voter rolls. The court permanently enjoined the state from implementing Senate Enrolled Act 334 and from removing voters without written confirmation from the voters or without following the procedures mandated in the National Voting Rights Act.
SEA 334, passed by the Indiana General Assembly in 2020, allowed the state the cancel a voter’s registration without direct contact from the voter or without adhering to the NVRA’s notice-and-wait protection. The law withdrew the Hoosier state from participation in the controversial Crosscheck program and established the Indiana Data Enhancement Association.
Judge Tanya Walton Pratt granted the plaintiffs’ motion for summary judgment in Indiana State Conference of the NAACP, et al. v. Connie Lawson, et al., 1:17-cv-02897.
Indiana Secretary of State Connie Lawson’s office did not respond to a request for comment.
In the Frederick case, the court found the lack of notification of a ballot rejection or the opportunity for the voter to challenge the rejection is a violation of the Due Process Clause. Also, the court agreed the signature verification requirement for mail-in absentee ballots imposed a burden on the fundamental right to vote in violation of the Equal Protection Clause.
As part of their argument, the plaintiffs brought in Linton Mohammed, Ph.D., a certified forensic document examiner whose research focuses on handwriting and signature identification. He asserted that Indiana’s process of having election officials – without training, examination equipment or functional standards for signature comparison – compare voter signatures to determine which absentee ballots to count has resulted and will result in valid ballots being rejected.
Lawson sought to exclude Mohammed’s testimony, arguing the plaintiffs did not demonstrate the reliability of handwriting analysis.
The court admitted the testimony, explaining it was relying on his conclusions that signatures vary and tools are needed to aid in the assessment of the signatures. In a footnote, the court pointed to the irony in the Secretary of State’s arguing the unreliability of handwriting analysis.
“(This) is precisely the judgment required of untrained poll workers by existing law,” Barker wrote. “The Secretary’s own position in this regard highlights the importance of and need for providing due process protections before disenfranchising voters based on a signature comparison.”
AG Curtis Hill: Indiana’s election laws “protect voters and ensure the integrity of the political process”
Indiana Attorney General Curtis Hill on Friday applauded a federal court’s ruling that plaintiffs challenging Indiana’s absentee voting laws have failed to show that Indiana’s system is unconstitutional.
Hill
“Free and fair elections are the lifeblood of a representative democracy,” Hill said. “Today’s decision helps affirm that Indiana’s election laws are set up to protect voters and ensure the integrity of our political process.”
The plaintiffs in the case, Tully v. Okeson, asked the U.S. District Court for the Southern District of Indiana to enter a preliminary injunction that would require Indiana to allow all voters in the state to cast ballots by mail in the Nov. 3 election. Indiana law grants vote-by-mail privileges to any voter who falls into one of 13 categories, “many of which are sweepingly broad,” Judge James Patrick Hanlon wrote in his ruling.
The plaintiffs argued that Indiana’s absentee voting law unconstitutionally burdens their right to vote.
“Some states have chosen ‘no-excuse’ voting by mail for all. Indiana has decided otherwise,” Hanlon wrote. “The question here, however, is not whether the policy is wise, but whether it is unconstitutional.”
Hanlon wrote that the plaintiffs did not show a reasonable likelihood of success in making a case that Indiana’s rule is unconstitutional.
The judge also noted that Hoosiers may cast an early in-person vote from Oct. 6 until Nov. 2. Eligible Hoosiers may also have poll workers bring them a ballot so they may vote at home.
“These provisions of Indiana’s voting laws make it easy to vote,” Hanlon wrote.
Hill added that everyone who plans to visit a polling place from Oct. 6 until Nov. 3 should take the necessary steps to protect their health.