In the 2018 general election, New York had the highest absentee ballot rejection rate in the country, discarding more than 34,000 absentee ballots or about 14% of all absentee ballots cast.
In New York, absentee ballots can be rejected for any number of reasons, many of which aren’t the voter’s fault. This includes ballots being damaged in the mail, a voter forgetting to sign their ballot, or if an election inspector mistakenly believes the signature on a voter’s absentee ballot differs from the one in their voter registration file. New York law does not require the state to notify affected voters that their ballots have problems or provide them with an opportunity to fix them and have their vote counted. Thus, many New Yorkers may not know they have been disenfranchised by this error-prone system.
This disenfranchisement has, for too long, occurred in the shadows. Not only does New York fail to inform affected voters of all ballot rejections, it also fails in its obligation to report absentee rejection data to the Election Assistance Commission (EAC). In 2018, New York failed to provide a reason for rejection for nearly 60% of absentee ballot rejections in the data it provided to the EAC.
New York’s practice of verifying ballots through signature matching—without any notice to the voter when an issue arises—is particularly flawed and error-prone.
No two signatures – even from the same signer – are exactly alike. Factors such as age, disability, education, signing surface, and even type of pen can impact the consistency of a signature. With only two signature samples, it is very difficult to determine the identity of a signer, even for trained forensic handwriting experts. The unreliability of this process increases when the people evaluating voters’ signatures are not experts, and disproportionately disenfranchises young voters, elderly voters, voters with disabilities, and voters for whom English is a second language. Records show that the procedures for evaluating and verifying absentee ballots also varies greatly across counties.
This broad-scale disenfranchisement is unconstitutional. Because New York embraces this unreliable ballot verification mechanism without uniform standards, it has a constitutional obligation to provide voters with notice and an opportunity to fix ballot issues to ensure their validly cast ballots are counted.
Impact of COVID-19
While New York has had some form of absentee voting for a long time, before the COVID-19 pandemic, absentee voting was relatively rare in New York compared to other states. In 2018, only 6% of ballots in New York cast were cast absentee.
Even before COVID-19, absentee voting in New York was on the rise. In the wake of the pandemic, absentee voting has since skyrocketed. For the June 24 primary, the Governor lifted restrictions on who could cast an absentee ballot and encouraged residents to vote by mail. In New York County – where Manhattan is located – the local board of elections transmitted 219,440 absentee ballots to voters for the June 24, 2020 primary, which represents a 655% increase in absentee ballots transmitted to voters between that election and the 2018 general election. The number of voters requesting absentee ballots is certain to continue to grow for the 2020 general election, an election in which far more voters are expected to participate.
As New York voters increasingly rely on the state’s absentee voting system to cast their ballots, more New York voters will be at risk of being disenfranchised because the state erroneously rejects their ballot for benign defects.
Campaign Legal Center (CLC) is representing Carmelina Palmer, the League of Women Voters of the US (LWVUS), and the League of Women Voters of NY (LWVNY) in this lawsuit.
Ms. Palmer is a New York voter who suffers from a benign essential tremor, or familial tremor, which is a progressive neurological condition that leads to uncontrollable tremor sessions. During tremor episodes, the constant movement of her hands and the difficulty of applying pressure make it difficult for Ms. Palmer to sign her name consistently. She is at heightened risk of having her absentee ballot rejected for signature mismatch.
LWVUS is a nonpartisan, nonprofit organization with members across New York and the United States. LWVUS’s work is dedicated to protecting the right to vote for all eligible voters through advocacy, voter education, and direct assistance to voters.