In nearly 40 states, election officials check the signatures on the ballot envelopes that voters send back against the ones on file — usually from voter registration forms or motor vehicle departments. A handful of states require voters to fill out their ballot in front of a witness, who must also sign.
If a signature doesn’t appear to match, or the necessary signatures are missing, what happens next depends on the state — and even the county — a voter lives in. Some states require county election officials to give the voter a chance to verify their identity or fix a mistake; others don’t, and their ballots are tossed out.
“There are more opportunities to get tripped up and to have your ballot not counted in mail voting than in in-person voting, said Wendy Weiser, the vice president for democracy at the Brennan Center for Justice. “That said, it’s not going to happen to most people.”
Nearly 1% of absentee ballots cast — 318,000 of 33 million — were rejected in the 2016 general election, according to the U.S. Election Assistance Commission. Of those, nearly half weren’t counted because of a missing signature or a mismatch.
This election, 74 million mail ballots have already been requested by voters in 37 states and the District of Columbia, with deadlines for requesting ballots still weeks away in most states, according to a count by Michael McDonald, an elections specialist at the University of Florida, of states that have reported those data.
The risk of voter disenfranchisement has led to a flurry of legal challenges. Democrats argue there’s a larger than usual chance that valid ballots won’t count because of voter laws that haven’t adjusted to the circumstances of the pandemic. Republicans accuse Democrats of using the coronavirus crisis to rewrite election rules.
The outcome of those legal cases — over whether or not election officials need to help voters fix signature issues, how long voters have, and whether they need witness signatures — could affect thousands of ballots.
The solution to preventing voter disenfranchisement isn’t to stop mail voting but “to close those loopholes [and] ensure that people are not losing their votes because of either technical problems or mistakes or postal delays,” Weiser said.
A key issue is whether states give voters a chance to “cure,” or fix, ballots. Only 29 states require that voters be notified if there are issues with their ballots such as missing or mismatched signatures, according to the Voting Rights Lab, an advocacy group that tracks election laws. Eleven of those states introduced ballot cure processes this year.
Megan Lewis, Voting Rights Lab executive director, said that states would ideally check ballot signatures immediately after they are received, provide timely notice to voters by phone, email or mail if there is an issue with the signature and give voters until the final certification of the election’s results to cure their signature issues.
“Given that we are going to see an absolutely rapidly expanded absentee voting landscape in the context of this election, for obvious reasons, this is going to be even more important,” Lewis said.
Court rulings have been mixed, with some judges in favor of making it easier to have ballots counted and some backing legal precedent that voting laws shouldn’t be changed close to an election. In Texas and North Dakota, federal judges ruled that voters must be given a fair chance to verify their identity if election officials believe their signature doesn’t match. But cases involving missing signatures or witness requirement have been more complicated.
In Arizona, a presidential election battleground, a district court ruled last month that the state must give voters who failed to sign their absentee ballot five business days after the election to fix the mistake. On Oct. 6, a federal appeals court put the decision on hold pending an appeal, leaving the statutory election day deadline in place.
In a South Carolina case, the U.S. Supreme Court decided Oct. 5 to allow election officials to enforce the state’s long-standing witness requirement; a lower court judge had put the requirement on hold during the pandemic.
And in North Carolina, another key state in the presidential election, the ballot cure process is at the center of one of the state’s most contentious election legal fights.
The North Carolina Alliance for Retired Americans sued state election officials in August to block them from rejecting ballots over signature issues without giving voters a chance to fix them and to suspend the state’s absentee ballot witness requirement for people who live alone. (A bill passed in June changed the requirement from two witnesses to one.) The group reached an agreement last month with the North Carolina State Board of Elections that voters with any issues with their ballot — including a missing or misplaced signature by the voter or witness — could fill out a form verifying their identity.
GOP critics said that essentially invalidated the witness signature requirement. The two Republicans on the five-person state election board, who had voted for the changes, resigned under fire from state party leaders, according to the Charlotte News & Observer. A federal judge temporarily blocked the agreement this month, and county election officials have been told to neither accept nor reject ballots with missing witness signatures until the case is resolved.
The Republican National Committee and the Trump campaign have committed $20 million to lawsuits over voting rules and are involved in about 40 cases across the country, including several involving signature rules.
“Our objectives in our litigation are to protect the existing safeguards in the absentee voting process,” said Justin Riemer, the RNC’s chief legal counsel.
President Trump has said the “biggest risk” to his reelection campaign is losing lawsuits to block the expansion of mail voting. Though experts say voter fraud is rare, Trump has repeatedly claimed without evidence that mail ballots will lead to widespread cheating, while also encouraging his supporters in some states to request absentee ballots. He’s falsely accused Nevada officials of not requiring or allowing any sort of signature verification on ballots.
That’s just wrong, said Wayne Thorley, Nevada’s deputy secretary of state for elections. Nevada codified its existing signature verification policies in an election bill passed in August. Ballots are challenged when two reviewers agree that a ballot envelope signature “differs in multiple, significant and obvious respects” from the signatures on file for a voter, according to the recent law.
“We do signature verification on every single mail ballot that comes back,” said Thorley. “It’s not a sample or a random pick of ballots that we do; it’s every single one. So it’s absolutely not true to say Nevada doesn’t do signature verification.”