California is not typically viewed as a hotbed of voter suppression, and not just because it’s California. Over the past few years, its legislature has passed sweeping reforms to protect residents’ right to vote with the strong encouragement of Gov. Jerry Brown. Democratic Attorney General Xavier Becerra has praised these measures and sued the Trump administration for attempting to abridge “our fundamental voting rights.” But even as Becerra attacks Trump for disenfranchising Americans, he is voluntarily defending a California scheme that nullifies tens of thousands of votes on the basis of dubious handwriting analysis.
How did California, of all states, wind up suppressing so many votes? The problem lies in the state election code’s rules for counting absentee ballots. All registered voters can choose to vote by mail in California if they want to; they need only request a ballot, fill it out, sign the ballot envelope, and drop it in the mail. Unbeknownst to most voters, however, is the stipulation that their signature on the envelope must match the signature on their voter-registration form. If it does not, election officials do not count the ballot.
Who determines if it matches? The election officials themselves, who have an utter lack of handwriting-analysis expertise. A forensic-document examiner testified to the ACLU that an effective signature comparison requires 10 samples “at a minimum” to account for variability. California election officials have two samples and minimal training. And yet they have the power to disenfranchise a voter on the basis of a single signature. Voters receive no notice that a signature mismatch will void their vote, nor are they alerted if their vote has been voided, unless they expressly request the information.
In the 2016 election alone, as many as 46,000 ballots were thrown out in California due to signature mismatch. Asian Americans’ ballots were rejected at a substantially higher rate due to perceived mismatch; in four major counties, Asian Americans were 15 percent more likely than the general population to have their ballots tossed for this reason. In virtually every case, voters disenfranchised by signature mismatch had no idea that their ballots had been nullified. Nor were they given an opportunity to “cure” the loss of their vote by confirming their identity.
In August, the ACLU of Northern California sued the state to prevent election officials from voiding ballots for signature mismatch and then depriving voters of notice or recourse. And in March, San Francisco Superior Court Judge Richard Ulmer ruled in the ACLU’s favor, holding in La Follette v. Padilla that California’s scheme violated voters’ right to due process under the state and federal constitutions. “Voting is a fundamental right,” Ulmer explained, “and notice and an opportunity to be heard are fundamental to due process.” Because the current protocol “fails to provide for notice that a voter is being disenfranchised and/or an opportunity for the voter to be heard,” it infringes upon basic due process principles.
To remedy this constitutional flaw, Ulmer ordered California to start informing every voter whose ballot is voided due to signature mismatch, and to give them “an opportunity to cure” the issue before election results are certified. (These results aren’t certified until 30 days after the election, giving officials ample time to help voters confirm the validity of their ballots.) Ulmer also directed Secretary of State Alex Padilla to inform election officials of his ruling in order to ensure statewide compliance.
It would be quite easy for California to simply comply with these instructions. It decided to take a different route—it appealed the ruling. In superior court, the state, of course, had a duty to defends its election code, which it did vigorously, if not persuasively. (It argued that the injury to Californians was “slight” because “at most only 45,000 [ballots] were rejected” and that the mismatch rule prevented voter fraud, while putting forth no evidence of any fraud.) But Becerra and Padilla had no obligation to appeal Ulmer’s ruling; when a state loses in lower court, it may simply decide to honor that decision and stop defending its unconstitutional law. Indeed, California did exactly that when a federal district court struck down Proposition 8, its ban on same-sex marriage, declining to appeal the ruling (and that move ultimately doomed the ban). Moreover, Padilla has already endorsed SB 759, pending legislation that would accomplish what Ulmer’s decision requires. By complying with the La Follette order, the state could achieve SB 759’s goals as the bill moves through the legislative process, protecting voters’ rights in the meantime.
Instead, inexplicably, Becerra and Padilla have not only decided to appeal Ulmer’s decision, they’ve asked him to put his ruling on hold for the June 5 primary. (Neither the attorney general nor the secretary of state returned a request for comment.) Ulmer will hold a hearing on June 1 to determine whether his order should apply to the impending primary election. For now, the ACLU is urging all absentee voters to sign their ballot envelopes the exact same way they signed their voter-registration forms. But that isn’t always easy; signatures change over time, and many voters register on computer touchpads, which can warp an individual’s signature.
California isn’t the only state with a mismatch law. Florida, Illinois, and New Hampshire have similar rules—but judges have directed Florida and Illinois to give voters an opportunity to fix a mismatched signature. New Hampshire is currently defending its mismatch law in court and appears to be headed for defeat. That’s promising, since these laws are built on two incorrect assumptions: that an individual’s signature remains static throughout life, and that an amateur can determine whether two signatures truly match.
Michael Risher, an attorney working with the ACLU on La Follette, told me on Thursday that “we should all be shocked” by California’s mismatch scheme. “Not only that this has been going on for years,” Risher said, “but that the secretary of state is fighting a court order” that would bring it in line with due process. He’s right. We’ve come to expect these shenanigans from Florida and New Hampshire. But California’s top officials consistently extol their own efforts to expand voting rights. By appealing Ulmer’s order, Becerra and Padilla have struck a profoundly hypocritical stance, defending the franchise in public while subverting it in their own state’s courts.
Update, May 15, 2018: Sam Mahood, press secretary for Secretary of State Alex Padilla, told Slate, “Our office will continue to support a legislative solution that provides voters a reasonable opportunity to verify their signature. A solution should recognize and account for the complex responsibilities and tight timelines that election officials must adhere to during the election canvass period.”