Florida will have to allow thousands of voters a second chance at having their ballots counted after they were thrown out over mismatched signatures, a federal judge ruled Thursday. The decision is unlikely to change the outcomes of the Senate and governor’s races, though it could affect the commissioner of agriculture race, where the Democratic candidate is barely ahead, as well as other close down-ballot contests that required a recount.
Florida election officials have rejected between 4,000 and 5,000 ballots on the basis of amateur handwriting analysis. These officials are tasked with comparing the signatures on voters’ absentee ballots to the signatures on their registration forms; if they find a “mismatch,” they nullify the ballot. U.S. District Judge Mark Walker described this process as an “arbitrary determination” and ruled that elections supervisors must now give voters two days to fix these alleged signature mismatches. In an apparent jab at Sen. Marco Rubio, who analogized this litigation to football in a bizarre series of tweets, Walker explained: “Football fans may quibble about the substance of the rules, but no one quibbles that rules are necessary to play the game.” He continued:
[N]o one quibbles that football referees make certain calls, under the rules, that deserve review. Indeed, not every call is going to be clear—the ultimate decision may hinge on highly subjective factors. Hence, a call will be overturned only when there is “clear and obvious visual evidence available that warrants the change.” … Coaches may challenge calls themselves by throwing a red flag, or, in certain circumstances, the referees may initiate review on their own.
All that process. Just for a game.
In this case, the Plaintiffs have thrown a red flag. But this is not football. Rather, this is a case about the precious and fundamental right to vote—the right preservative of all other rights. And it is about the right of a voter to have his or her vote counted.
Under the U.S. Constitution, Walker noted, any burden on the constitutional right to vote “must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitations.” Here, the state’s interests in preventing fraud are vastly outweighed by the substantial burden on the franchise.
In 2016, Walker ruled that Florida must allow voters whose signatures have been flagged to “cure” their ballots by proving their identities. But the solution Florida has provided, he wrote on Thursday, is “illusory,” and “fails to meaningfully protect the right to vote.” The state permits voters to cure their ballots up until 5 p.m. on the day before the election. Yet canvassers may begin counting absentee ballots on or after Election Day. Moreover, under Florida law, voters unable to prove their ability to vote on Election Day can cast provisional ballots, then submit the necessary materials shortly after. But if officials find a signature “mismatch,” these individuals—between 4,000 and 5,000 voters who cast absentee and provisional ballots—have no chance to cure their ballots.
In the Senate race, Republican Rick Scott—who currently serves as Florida governor—leads Democrat Bill Nelson, whose campaign sued over the signature rejections last week, by more than 12,000 votes. In the governor’s race, the Republican candidate holds a more commanding lead, with Ron DeSantis ahead of Andrew Gillum by nearly 34,000 votes. The agricultural commissioner race, however, is far closer: Democrat Nikki Fried leads Republican Matt Caldwell by just over 5,000 votes. There, Walker’s ruling could make a difference: In the 45 Florida counties that have reported rejections so far, election officials tossed out nearly 4,000 ballots. Walker estimated that the remaining 22 counties are on track to void about 1,000 additional ballots.
“Vote-by-mail voters, in this election, were not notified of a signature mismatch problem until it was too late to cure,” Walker wrote. “Provisional ballot voters are provided no opportunity to cure under the law. Without this Court’s intervention, these potential voters have no remedy.
Rather, they are simply out of luck and deprived of the right to vote.” To remedy the constitutional violation here, Walker directed officials to let voters cure signature mismatches until 5 p.m. on Saturday. Scott is expected to appeal.
Federal courts in New Hampshire and Georgia have recently issued similar rulings compelling states to provide real procedural safeguards for voters rejected due to signature mismatch. In the New Hampshire case, a forensic document examiner testified that effective signature comparison—which is difficult even for experts—requires 10 signature samples “at a minimum” to account for variability. In Florida, as in New Hampshire and Georgia, election officials have just two samples to compare. When Walker described signature mismatch as an “arbitrary determination,” he was not exaggerating.