By: Megan Kelly
What happens when the state receives an unsigned mail-in ballot? This is the question that new and contentious litigation in the District Court of Arizona is seeking to answer. Last week, a district judge held that unsigned ballots in Arizona were to be afforded the same five-day curing period that other unidentifiable ballots—from mismatched signatures or lack of voter ID—are given.
We may ask how frequently people are really mailing in unsigned ballots. In 2018, Arizona rejected about 3,000 unsigned ballots. This number is small, but in an increasingly competitive purple state, a small number of votes can make the difference.
In fact, tight numbers thrusted Arizona’s ballot signature curing into the national spotlight in 2018. In a nail-biting Senate race between Kyrsten Sinema and Martha McSally, there arose a discrepancy between the amount of time each county gave their election officials to verify ballots with mismatched signatures. The concern was that many left-leaning counties allowed more time to verify mismatched signatures, leading to an inflation in the Democratic vote. In that case, the parties agreed to allot the same amount of time to cure ballots to all counties.
Following the hullaballoo, the Arizona legislature amended its laws to include a statewide deadline on ballot curing – five days after the election. To do this, each county verifies the signature on every mail-in ballot by comparing to the signature on file with the voter’s registration. If the signatures do not match, the county election officials attempt to contact the voter. The voter has until five days after the election to confirm or correct the signature on his or her ballot – this is the ever controversial “curing period”.
As consistent and clear cut as the uniform deadline seemed, there was one gaping hole: what happens when the state receives an unsigned mail-in ballot?
Arizona’s Secretary of State Katie Hobbs attempted to remedy this by adding a provision that allowed the same five days to cure unsigned ballots as mismatched signatures. In order to implement this change, however, she needed the Attorney General to sign off on it. He would not. The state’s position was that it had a vested interest in requiring completed ballots by Election Day, and an unsigned ballot is fundamentally incomplete. The Arizona Democratic Party then filed suit, requesting a permanent injunction against the implementation of the law that unsigned ballots not cured by Election Day are discarded.
On September 10, in a meticulous and thoughtful opinion, the court granted the injunction. Notably, the court recognized that the burden on the voter of merely signing a ballot is quite low. Even still, the court held that the requirement of curing unsigned ballots by Election Day did not advance any of the state’s (recognizably) important interests. The state asserted four interests in denying the injunction: fraud prevention, reducing the administrative burden on poll workers, orderly administration of elections, and promoting voter participation. While the court acknowledged the importance of each of these interests, it could not find that any of these interests would be significantly impeded by holding that unsigned ballots be afforded the extra five-day cure period.
It seems that there were three important factors looming behind the court’s decision, each of which were addressed to varying degrees. The first was stated outright: that every other type of ballot error is afforded a five-day curing period. Clearly, the court found that this undermined many of the state’s arguments. While all of the state’s arguments were grounded in the legitimate purpose of election efficiency and accuracy, the court questioned what made the unsigned ballot so different, rejecting the proposition that the state may treat these differently on the grounds of requiring completion.
The second factor looming behind the court’s decision was acknowledged less overtly: the dichotomy between the tiny percentage of ballots which this has affected in the past and the large-scale consequences the state alleged would be caused by an adverse ruling. The state’s testimony demonstrated the small percentage of people who actually cure unsigned ballots while asserting that there would be immense administrative burdens should they be afforded five more days to verify unsigned ballots. In a sense, the court says, “you can’t have your cake and eat it too.”
The final factor in the background of the decision was the great unspoken factor: the coronavirus. In 2020, more and more U.S. voters are in support of mail-in voting accommodations due to the risks of COVID-19. Many states have expanded their capacities for no-excuse mail-in voting and individuals are expressing their preference of voting by mail. This could mean that typical numbers of mail-in ballots, mismatched signatures, and unsigned ballots are surpassed. Although the court does not mention this issue, perhaps it played a role in the court erring on the side of protecting the vote.
The state, highly concerned with the court’s declaration that they cannot require completed ballots by Election Day, appealed to the Ninth Circuit and filed a motion for the District Court to stay its injunction. They maintain that the state has a legitimate and protected interest in ensuring ballots are complete by Election Day, making unsigned ballots fundamentally different than those with mismatched signatures.
The District Court denied the request to stay, and it remains to be seen if the Ninth Circuit will reverse. Unless the Ninth Circuit traverses a different line of reasoning, however, it seems unlikely in light of the required safeguards for mismatched signatures, that the court would deny those protections to unsigned ballots. And perhaps this is a good thing – in unprecedented and tumultuous times, the right to vote is so critical that five extra days may just be a small price for the state to pay.