New Hampshire 'Signature Mismatch' Law for Absentee Ballots Ruled Unconstitutional

By Christopher Coble, Esq. on August 17, 2018 | Last updated on March 21, 2019

In 2009, the National Academy of Sciences released a report concluding that almost all commonly used forensic techniques, including handwriting analysis, have never been properly scientifically tested. And yet, the State of New Hampshire was requiring untrained local election moderators review and compare handwritten signatures on absentee ballots, and reject ballots with questionable signatures.

That practice will now be ended, after a federal court ruled the procedure unconstitutional. The court found "the current process for rejecting voters due to a signature mismatch fails to guarantee basic fairness," and you can see the full ruling below:

Irremediable Disenfranchisement

While U.S. District Judge Landya McCafferty conceded that New Hampshire "has legitimate interests in preventing voter fraud and protecting public confidence in elections," she found the current signature mismatch law (which requires poll workers compare the signature on the absentee ballot to the signature on an affidavit that the voter sends in with the ballot) did little to alleviate that concern. The state could only present two total cases of absentee-related voter fraud, but "neither instance of absentee-voter fraud was uncovered through the signature-matching process."

In comparison, an estimated 740 absentee voters had their ballots rejected in the last three general elections due to signature mismatch. "It cannot be emphasized enough," Judge McCafferty wrote, "that the consequence of a moderator's decision -- disenfranchisement -- is irremediable."

Sole, Unreviewable Discretion

The other problem pointed out by the court was that the law gives moderators "sole, unreviewable discretion" to discard absentee ballots:

As will become evident, this signature-matching process is fundamentally flawed. Not only is the disenfranchised voter given no right to participate in this process, but the voter is not even given notice that her ballot has been rejected due to a signature mismatch. Moreover, moderators receive no training in handwriting analysis or signature comparison; no statute, regulation, or guidance from the State provides functional standards to distinguish the natural variations of one writer from other variations that suggest two different writers; and the moderator's assessment is final, without any review or appeal.

There could be many innocent reasons why a signature doesn't match, the court noted, including "age, physical and mental condition, disability, medication, stress, accidents, and inherent differences in a person's neuromuscular coordination and stance," and variations in handwritten signatures "are more prevalent in people who are elderly, disabled, or who speak English as a second language."

All of these factors combined mean New Hampshire absentee voters could be unconstitutionally disenfranchised. Here is the court's order:

NH Absentee Voter Signature Match Order by FindLaw on Scribd

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