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40-Year-Old Election Law That Let New Hampshire Throw Out Ballots Overturned

A federal judge has struck down as unconstitutional a 40-year-old election law that allowed local moderators in New Hampshire to toss out the absentee ballot of someone whose signature on an affidavit failed to match their completed ballot.

By Kevin Landrigan

A federal judge has struck down as unconstitutional a 40-year-old election law that allowed local moderators in New Hampshire to toss out the absentee ballot of someone whose signature on an affidavit failed to match their completed ballot.

In a 49-page ruling, the judge said it was constitutionally flawed that the state could reject these votes without prior notice to the voter or giving that person the right to contest the decision.

U.S. District Court Judge Landya McCafferty ruled in favor of the American Civil Liberties Union of New Hampshire and three voters who had their ballots rejected in 2016.

The civil liberties group had identified nearly 800 voters who had their ballots rejected in this way in the last three general elections.

The law violates the 14th Amendment of the federal Constitution that prevents any state from depriving someone of life, liberty or property without due process of law, the judge decided.

"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," Judge McCafferty wrote.

"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."

Mary Saucedo, a 94-year-old Manchester woman who spent her career working for the federal Department of Veterans Affairs, is legally blind and had been casting her ballot for the last 12 years with the help of her husband. Her ballot was thrown out due to signature mismatch in 2016.

Judge McCafferty noted that Saucedo's case moved the New Hampshire Legislature to change the law in 2017 so in the future this signature scrutiny could not apply to any voter who is "legally blind or has a disability."

"It shakes your very confidence in the process," said Gilles Bissonnette, legal director for the ACLU NH and the lead lawyer for those bringing the lawsuit. "None of these individuals knew they were disenfranchised until we told them. I can tell you when they learned that there was outrage and rightfully so."

Bissonnette noted: "This regime puts moderators in a very difficult situation. They have a very difficult job to begin with and this statute puts them in a real tenuous position."

Assistant Attorney General Matthew Broadhead argued that the state process for absentee voting is constitutionally sound, and that "erroneous disenfranchisement" is extremely rare, given the hundreds of thousands of ballots that are cast.

State prosecutors are reviewing the ruling and did not immediately have further comment on it.

(c)2018 The New Hampshire Union Leader (Manchester, N.H.)

Caroline Cournoyer is GOVERNING's senior web editor.
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