LWVNJ v. Way

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Issues

At a Glance

CLC is challenging New Jersey’s policy of rejecting mail-in ballots under an error-prone signature verification process without first informing voters there is a problem with their ballot or giving them an opportunity to fix it and have their vote count.

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The Latest

As New Jersey continues to deal with the COVID-19 pandemic, Gov. Phil Murphy announced recently that mail ballots will automatically be sent to voters. The resultant surge in mail ballots underscores the urgent need for procedural safeguards to assure voters that they can cast their mail ballots with confidence.

With a ‘signature match’ system...

Issues
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About this Case

Under current New Jersey law, when a mail-in ballot is submitted, local election officials must compare the signature the voter provided on their ballot envelopes to the one on their mail-in ballot request form and voter registration form. If the officials – who are untrained in signature analysis and provided with no meaningful guidance as to how to make these comparisons – determine the signatures do not correspond, the ballot is rejected and not counted. The voter who cast that ballot is not provided with a chance to verify their ballot and have their vote count.

Signature matching is a flawed and error-prone process for verifying mail-in ballots. 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 or three 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. In New Jersey, they are untrained and lack meaningful guidelines for how to conduct these assessments.

Under this system, certain populations of voters are at heightened risk of having their ballots rejected because of their signature variability, including voters with disabilities, elderly voters, very young voters, and voters for whom English is a second language.

Because New Jersey embraces this unreliable ballot verification mechanism, 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

Previously, New Jersey voters had a choice as to whether they wanted to cast a ballot by mail. Now, because of COVID-19, New Jerseyans no longer have a choice. By executive order, Governor Phil Murphy mandated that the May 12, 2020 elections be conducted entirely by mail. While the fate of the state’s July 9, 2020 primary and November 3, 2020 general remains uncertain with respect to what voting options will be available, it is clear that, whatever the situation is, social distancing and precautionary measures will continue to be crucially important, especially for elderly voters and voters with underlying conditions who are particularly at-risk during this crisis.

As more New Jersey voters are forced rely on the state’s vote by mail system to exercise their fundamental right to vote, more of them will be at risk of being disenfranchised because the state erroneously detects issues with their signatures.

Our Case

Campaign Legal Center (CLC) is representing William Riggs, the League of Women Voters New Jersey (LWVNJ), and the NAACP of New Jersey (NAACPNJ) in a lawsuit seeking to ensure that New Jersey counts all validly cast absentee ballots.

Mr. Riggs is a longtime New Jersey voter who suffers from Parkinson’s Disease, which causes him severe hand tremors. Because of the progression of his disease, Mr. Riggs can no longer reliably sign his name and does not always even recognize his own handwriting. However, because of his illness, he can no longer vote in person and relies on mail-in voting in order to exercise his constitutional right to vote.

LWVNJ is a nonpartisan, nonprofit organization with members across New Jersey. LWVNJ’s work is dedicated to protecting the right to vote for all eligible voters through advocacy, voter education, and providing direct assistance to voters.

NAACPNJ is a nonpartisan, nonprofit organization dedicated to securing political, educational, social, and economic equality of rights in order to eliminate race-based discrimination and ensure the health and well-being of all persons.

*Kaufman Lieb Lebowitz & Frick LLP is serving as co-counsel.

(Kaufman Lieb Lebowitz & Frick LLP is a New York City-based litigation boutique law firm with a civil rights focus)

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