At all times, but especially during the ongoing COVID-19 pandemic, voters need access to safe, secure, reliable options for voting. One option should be voting-by-mail or casting a mail ballot. About 6 in 10 voters plan to vote by mail or cast a mail-in nationwide, according to a Washington Post/University of Maryland poll released in September. In order to confirm the identity of the person submitting the ballot, at least 31 states rely on signature match procedures as part of their counting or verification procedures, to the best of Campaign Legal Center’s (CLC) knowledge.

Signature matching laws require election officials to compare the signatures voters provide on their ballots to the signatures on their voter registration or mail ballot request forms. If election officials determine the signatures do not match, the ballot is rejected and not counted. Signature evaluation is notoriously unreliable and error-prone. It can result in ballot rejections based on nothing more than poor penmanship.

These errors also do not affect all voters equally. Voters with disabilities, the elderly, non-native English speakers, and racial minorities are all more likely to have their ballots rejected due to signature match issues. This is especially troubling given that many of these groups are more susceptible to contracting a serious illness from COVID-19 and have experienced more harm due to anti-voter laws, like restrictive photo ID requirements, polling place closures and state voter roll purges. 

Therefore, when a state relies on signature matching to verify mail ballots, it must provide voters notice of signature problems, and a meaningful opportunity to verify their identity and ensure their votes are counted. These so-called “notice and cure” policies are mandated by U.S. Constitution.

Some notice and cure policies protect against erroneous rejection better than others. The most effective policies share two important features:

1. Notice and Cure by Phone. The most efficient and effective way to notify voters about signatures issues is by phone—not mail. In a quick call, a voter can verify their identity and have their vote counted. Mail can be delayed, especially near Election Day, making it difficult to fix issues before the election concludes. In the North Dakota’s June 2020 primary, as shown below, 83% of voters notified by phone were able to verify their ballot in time to be counted as compared to only 34% of voters notified by mail alone. States must make every effort to contact voters by mail and phone where possible, and permit voters to verify their ballot with any oral or written response.
2. Sufficient Time to Cure. Voters must have time to fix ballot problems before election results are finalized. States should create sufficient time in two ways: (i) allowing election officials to begin processing and verifying mail-in ballots as they are received or at least five days before Election Day, and (ii) permitting voters to fix ballot issues for a maximum possible time after Election Day.

So far, nine states—including Maine, North Dakota, New Jersey, New York, and Pennsylvania—have created notice and cure policies in 2020 after lawsuits or advocacy by CLC and allied organizations. Four states—Tennessee, Mississippi, Arkansas, and South Dakota—still do not have any notice and cure policy; all but South Dakota are now in pending litigation.

On Oct. 1, 2020, Texas Gov. Greg Abbott issued a proclamation prohibiting each of Texas’ 254 counties from providing more than one mail-ballot drop off location, regardless of geographic size or population. The governor’s order would significantly limit Texas voters’ options for hand-delivering their mail-in ballots in the 2020 General Election and upend weeks of planning by local election officials. This eleventh-hour decision to limit access to safe ballot drop off locations so close to the election threatens to sow mass confusion and prevent Texans from exercising their right to vote. It disproportionately affects Black and Latino voters living in major metro areas, and voters who are older or have disabilities, and thus are entitled under Texas law to vote by mail.

CLCA, alongside the League of United Latin American Citizens (LULAC) and the law firm Brazil & Dunn, represents the League of Women Voters of Texas, Texas LULAC, the Mexican American Legislative Conference of the Texas House of Representatives, and the Texas Legislative Black Caucus, as well as two individual Texas voters, in a federal lawsuit challenging Abbott’s proclamation. The lawsuit seeks to bar Abbott’s order from being implemented because it would violate the U.S. Constitution and the Voting Rights Act.

Abbott’s order threatens to restrict voting in highly populous counties like Harris County, which has 4.7 million residents and had set up 12 drop off locations spread out over roughly 1,700 square miles. The order forced the closure of 11 of those locations. And, in addition to harming voters living in high-population counties, Abbott’s order harms large rural counties, like Brewster County on the Southern border. At 6,184 square miles, Brewster County is larger in area than the states of Rhode Island and Delaware combined.

Texas was already one of the most difficult states to vote in amid the COVID-19 pandemic before Abbott’s Oct. 1 proclamation. Only voters who will be away on Election Day, have a disability, or are 65 years or older on Election Day are entitled to vote by mail, and Texas refused to expand these criteria in light of the pandemic. Unlike in many other states, Texans cannot use the fear of contracting COVID-19 as a valid reason to vote using a mail-in ballot. The Texas Supreme Court ruled earlier this year that while fear of COVID-19 is not itself a disability that qualifies Texans to vote by mail, “a voter can take into consideration aspects of his health and his health history that are physical conditions in deciding whether, under the circumstances, to apply to vote by mail because of disability."

If voters are unwilling or unable to return their ballot at the single location allowed in their county under the order, they will have to mail their ballots back. The Postal Service recommends that voters request mail-in ballots no later than 15 days before Election Day. Under Texas Law, voters can request ballots until 11 days before Election Day. Given this discrepancy, many voters will have to simply hope that their ballot will be delivered in time to be counted, or subject themselves to returning their ballots in-person on Election Day—precisely the outcome most voters are seeking to avoid in light of the pandemic.

Given all of the ways that the November General Election is already unusual, Abbott’s decision to upend election rules with practically no notice will place additional burdens on voters and county election officials with fewer than 30 days until Election Day.

What’s at Stake

Texas has been among the states hit hardest by COVID-19, with over 750,000 cases and nearly 16,000 fatalities. And this crisis is not abating. Recently, on Sept. 30, Texas reported a high of 5,335 new cases. Furthermore, fatalities from the virus have occurred at a disproportionately high rate in the groups that Abbott’s proclamation targets. For instance, while Latinos only represent 39.7% of the Texas population overall, they represent over 56% of fatalities in the state.

The pandemic will not end by the time that voters cast their ballots for this fall’s November election, so voters need options to vote safely, including options for returning mail-in ballots. Voters should not have to travel further distances, face longer waits, and risk exposure to COVID-19 to use the single ballot return location in their county.

If Abbott’s proclamation is allowed to stand, it will create voter confusion, restrict voting options for vulnerable groups, and limit voters’ ability to make a plan to vote safely. CLCA’s lawsuit seeks to uphold every voter’s fundamental right to cast their vote and make their voice heard in our political process. Amid the COVID-19 pandemic, Texas voters should not have to choose between their health and safety and participating in their state’s democracy.