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Law lets town moderators toss absentee ballots if signature appears bogus, ACLU of New Hampshire sues

State House Bureau

March 21. 2018 9:47AM

CONCORD — Older citizens, the disabled and residents of nursing homes or rehabilitation centers are at much greater risk of having their absentee ballots discarded on Election Day, due to the state’s signature matching requirements, according to the American Civil Liberties Union of New Hampshire.

Moderators throughout New Hampshire toss out absentee ballots because they conclude the signature on the absentee ballot does not match the signature on absentee ballot application.

The ACLU of New Hampshire filed a lawsuit last spring, seeking a court order to stop the practice, on behalf of three absentee voters who say their ballots were improperly discarded. In a 66-page brief filed on Monday in U.S. District Court in Concord, the ACLU maintains the problem is more widespread in some communities than in others and of particular concern to older and disabled voters, based on research over the past year.

“We have accumulated more facts in discovery from our initial complaint,” says attorney Gilles Bissonnette, ACLU legal director. “What strikes me is that we uncovered a substantial number of rejected ballots from voters with disabilities and at rehabilitation centers or nursing homes.”

The organization collected absentee ballot applications from 15 municipalities and the Secretary of State’s office to analyze how many were rejected and for what reasons. It identified 33 disenfranchised voters with disabilities, out of 167 absentee ballots rejected on the basis of a signature mismatch.

In its response to the lawsuit, the state argues that the election statute at issue, RSA 659:50, is constitutional and does not disenfranchise anyone, but is a reasonable verification process.

The state also changed the procedure for absentee voting last year, adding a notice that “Any person who assists a voter with a disability in executing this form shall make a statement acknowledging the assistance on the application form to assist the moderator when comparing signatures on Election Day.”

That doesn’t go nearly far enough, according to Bissonnette, whose March 19 brief calls for summary judgment.

The ACLU's March 19 brief can be viewed below:

“This is an inherently subjective process that more often than not is actually culling out qualified voters,” he said. “The state has a choice to make. It either scraps the statute, or provides some due process to voters, like some sort of notice and an opportunity to cure.”

Big variations by city, town

To illustrate how subjective handwriting analysis can be, Bissonnette points to the wide variations from one precinct to another.

Statewide during the 2016 general election, there were approximately 275 absentee ballots rejected due to signature mismatch out of approximately 1,897 total absentee ballot rejections. Put another way, signature mismatch rejections constituted approximately 14.5 percent of rejected absentee ballots.

Some municipalities have far higher rates of signature-mismatch rejections, according to the ACLU data.

Portsmouth rejected 23 absentee ballots due to signature mismatch, which accounted for 32 percent of rejected absentee ballots — more than twice the statewide average. In Keene, a comparably sized community, there were only two signature-mismatch rejections.

In Manchester Ward 2, the rejection rate is nearly 4.5 times the statewide average; in Ward 4, it was 6.2 times the statewide average.

Hudson, Hampton Falls, Goffstown and Cornish all showed rejection rates that ranged from six to nine times the statewide average.

“The Secretary of State’s Office acknowledged at deposition that it had no explanation for these disparities and that the office has not reviewed the number or distribution of absentee ballots rejected to determine whether municipalities are applying the signature-mismatch statute consistently,” according to the ACLU brief.

In some cases, lifelong voters lost their last chance to cast a ballot.

“Voters disenfranchised during the 2016 general election included an 89- year-old military veteran from Alton who served in the Korean War, an 83-year-old grandmother from Portsmouth, and a 92-year-old grandmother from Portsmouth. These three voters died after the 2016 election,” according to the ACLU.

The state’s response to the latest filing is due in 30 days, and a hearing is expected this summer.

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