UPDATE, October 25, 10:00 a.m.: On Wednesday, U.S. District Judge Leigh Martin May ordered Secretary of State Brian Kemp to instruct all local county officials to stop rejecting absentee ballots over alleged mismatched signatures. Instead, ballots with perceived mismatched signatures will be marked as provisional. In addition, Judge May ordered county officials to send pre-rejection notices to absentee voters and give them an opportunity to resolve the alleged discrepancy.
Lawyers for two voting rights advocacy groups asked a federal judge on Tuesday to force Georgia election officials to stop rejecting absentee ballots without giving voters any advance notice that their ballot has been rejected, and without giving voters an opportunity to appeal the rejection. Today, that federal judge will hear arguments from those election officials about just why they think certain people—namely, Black and Asian people—are especially worthy of suspicion when it comes to sending in their vote by mail.
Lawyers at the American Civil Liberties Union (ACLU) of Georgia and the NAACP Legal Defense Fund filed the lawsuit on behalf of the Georgia Muslim Voter Project and Asian Americans Advancing Justice Atlanta, which are seeking an injunction to “stop an ongoing constitutional train wreck that threatens to disenfranchise potentially hundreds, if not thousands, of voters casting absentee ballots leading up to this year’s November 2018 general election.”
The constitutional train wreck at issue is Georgia’s signature-matching protocol, which requires county officials to reject mail-in ballots if the signature on the ballot does not match the signature on file. Under that protocol, more than 500 absentee ballots or ballot applications have already been rejected, according to court documents. The plaintiffs allege that rejecting voters’ mail-in ballots without any sort of pre-rejection notice or opportunity to appeal the rejection is a due process violation.
The lawsuit names as a defendant Secretary of State Brian Kemp—who is running in a tight gubernatorial race against Stacey Abrams, a Black woman who has a real shot at becoming the first Black woman governor in the country—along with the Gwinnett County Board of Voter Registration and Elections. Should the court decide to issue the injunction, it would apply to all 159 county boards of registrars (since each county follows the same signature-matching protocol), unless the court forces the plaintiffs to sue each of the 159 counties individually (which it is unlikely to do). But Gwinnett County, which is located in northeast Atlanta, is at the center of the fight, thanks to an investigation by Jordan Wilkie for Who.What.Why. As of October 11, Gwinnett County was responsible for 40 percent of mail-in ballot rejections—even though the county accounts for only 12 percent of Georgia’s mail-in ballots, according to an analysis Wilkie conducted of data reported by the secretary of state’s office.
And it should come as no surprise that voters of color make up the lion’s share of mail-in ballot rejections. “Sadly, this is a pattern we’re seeing across Georgia this election cycle,” Kristen Clarke, the president of Lawyers’ Committee for Civil Rights Under Law, a civil rights organization not involved in this particular lawsuit, but which is litigating several voter suppression lawsuits in Georgia, said, according to a CNN report.
“We are seeing policies and practices being implemented in ways that bear more heavily to minority voters across the state,” she added. Those policies include voter purges and refusing to process individual voter registration forms under Georgia’s exact match policy, which requires names on registration forms to match those on driver’s license and Social Security records exactly.
As John Powers, a lawyer at Lawyers’ Committee, noted in an October 15 letter to Gwinnett County officials protesting the mail-in ballot rejection rate, “Data from the Georgia secretary of state’s office indicates that the [Board of Registration and Elections] has been rejecting absentee ballots cast by minority voters, particularly Asian American and African American voters at disproportionately high rates compared to white voters.” In Gwinnett County, 2.5 percent of white voters had their mail-in ballots rejected, compared to 14.8 percent of Asian American voters’ ballots were rejected, and 8 percent of Black voters’ ballots. Overall, of the ballots that Gwinnett County election officials rejected, 17.4 percent were ballots from white voters; 23.2 percent were from Asian Americans, and 45 percent were from Black voters.
When asked why the rejection rates for these groups were so high, Clarke told Rewire.News via Twitter direct message, “We believe it is absolute bias in how officials are handling the ballots. They have discretion and are abusing it to lock out voters of color. There is no other way to explain this kind of outcome.”
If a voter’s ballot is rejected, they can still vote, either in person or with an additional mail-in ballot. (Of course, there’s no guarantee that a voter who fills out another absentee ballot won’t see that ballot rejected as well.) But, according to court documents, there’s no statutory time limit on when election officials must process an absentee ballot, and there’s no statutory time limit regarding when county officials must send rejection notices to would-be voters. A voter could submit her mail-in ballot and not be notified of the rejection until it’s too late to submit another one, even if she casts her ballot well in advance of Election Day. And if that voter cannot vote in person, whether because of a disability, lack of transportation, or out-of-town travel, that voter will be disenfranchised.
For example, during his investigation, Jordan Wilkie talked to one voter, an elderly Black woman named Pearlie Williams, who had no idea that her ballot had been rejected. Nine days had passed since county officials rejected her ballot, and she had not yet been notified.
It’s bad enough that that Georgia rejects absentee voters’ ballots without telling them. But it gets worse: Untrained laypeople are making final determinations as to whether two signatures were penned by the same person—and stripping people of their fundamental right to vote based on their subjective opinion about signature matching. Under Georgia law, a single registrar has the authority to unilaterally reject absentee ballots based on nothing but their own subjective determination that two signatures don’t match. Not only are voters stripped of any opportunity to challenge that registrar’s determination, but that registrar is not subject to any sort of review to figure out whether their unilateral decision to reject an absentee ballot was even correct in the first place. The law does not provide any guidance as to what standards county registrars are to use in making their determination. Nor does Georgia law require elections officials to be trained in handwriting analysis.
As the plaintiffs argue in their request for an injunction, “the statute forces untrained laypersons to become handwriting experts” and “vests registrars with virtually limitless discretion to determine whether two signatures match.”
The plaintiffs note that there are innocent reasons to explain mismatched signatures: “[I]nnocent factors—such as body position, writing surface, and noise—affect the accuracy of one’s signature.” In addition, “age, physical and mental condition, disability, medication, stress, accidents, and inherent differences in a person’s neuromuscular coordination and stance” can result in signatures mismatching.
“Variations are more prevalent in people who are elderly, disabled, or who speak English as a second language,” the plaintiffs argue. So the policy disadvantages already disadvantaged people. It’s ableist, it’s ageist, and it’s xenophobic. As plaintiffs allege in their Complaint, “[f]or the most part, signature variations are of little consequence in a person’s life. But in the context of absentee voting, these variations become profoundly consequential under Georgia’s signature-match requirement law.”
It doesn’t have to be that way.
What plaintiffs are asking for is simple: If an absentee voter’s ballot or registration is in question due to a mismatch between signatures, that voter should be given a pre-rejection notice and an opportunity to contest the rejection.
It’s not a burdensome request either: Georgia already has a system in place that extends due process guarantees to voters. For example, if a county official challenges a ballot on the basis of voter ineligibility, Georgia law requires the board of registrars to conduct a hearing on the challenge prior to the consolidation of election returns. And, the person who made the challenge as well as the person whose vote was challenged may appeal the registrar’s decision.
But when it comes to signature mismatches, there’s no such opportunity to be heard. It’s absurd.
Brian Kemp—who is running the gubernatorial election and also running in the election—claims that the voter suppression he has unleashed in Georgia is a figment of Democrats’ imagination.
“Despite any claim to the contrary, it has never been easier to register to vote in Georgia and actively engage in the electoral process,” Kemp said in a press release in July.
And in response to the mail-in ballot kerfuffle, Candice Broce, Kemp’s spokesperson for the office of the secretary of state said, according to CNN, “We will not be bullied by out-of-state organizations or political operatives who want to generate headlines and advance a baseless narrative.”
“We will do our part to keep elections secure, accessible, and fair in Georgia,” she added.
Sure you will, Candice. Sure you will.