Election Law Recent Case

Recent Case: Richardson v. Hughs

As the global pandemic rages on, mail-in ballot counts are expected to skyrocket in the general election, which is predicted to have a higher voter turnout rate than any election in the past one hundred years.  Yet signature matching threatens to invalidate a record number of mail-in ballots.  Recently, in Richardson v. Hughs, a Fifth Circuit panel stayed an injunction against Texas’s procedures for rejecting ballots with signatures appearing not to match those in election officials’ files.  It did so because “Texas’s strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state’s voting procedures place on the right to vote.”  This decision could have ramifications for the 2020 general election.

In August of 2019, plaintiffs—organizations engaged in voter registration, education, outreach, and support, as well as two individuals whose absentee ballots had been rejected in previous elections—sued the Secretary of State and other election officials.  The plaintiffs contended that Texas’s signature-comparison and voter notification procedures violated: “(1) the Due Process Clause of the Fourteenth Amendment, (2) the Equal Protection Clause of the Fourteenth Amendment, (3) the Americans with Disabilities Act, and (4) the Rehabilitation Act of 1973.”  In August of 2020, the plaintiffs requested an injunction to force election officials to offer voters notice of ballot rejection, to lessen absentee voter identification requirements, and to institute a process for voters to challenge rejected ballots.  The U.S. District Court for the Western District of Texas granted the plaintiffs’ summary judgment motion in part on its Fourteenth Amendment claims.  It also issued an injunction mandating that the Secretary complete three tasks.  First, she had to notify election officials within ten days that ballot rejection based on matching signatures is unconstitutional.  Second, she had to “either issue an advisory to local election officials requiring them to follow the court’s newly devised signature-verification and voter-notification procedures, or else promulgate an advisory requiring that officials cease rejecting ballots with mismatched signatures altogether.”  Third, she had to act against any election officials in non-compliance with the new provisions.  The Secretary filed a motion to stay the order pending appeal at the Fifth Circuit, which the court subsequently granted.

The Fifth Circuit panel stayed the injunction.  Writing for the panel, Judge Smith concluded that the Secretary was “likely to succeed on the merits” in showing that “the district court erred in its analysis of plaintiffs’ claims” and that “Texas’s signature-verification procedures are constitutional.”  First, the court found that signature comparisons did not implicate due process rights.  It examined “whether there exists a liberty or property interest which has been interfered with by the State” and “whether the procedures attendant upon that deprivation were constitutionally sufficient.”  It located no precedent stating that the right to vote was a property interest or that “state-created liberty interests exist outside the context of bodily confinement.”  The plaintiffs would encounter even more difficulty in asserting that the right to vote by mail is a liberty interest, the panel declared.

Second, the court counseled that the district court’s use of Matthews v. Eldridge was incorrect; for the judges, Anderson-Burdick was the appropriate standard for constitutional challenges to states’ election laws.  The panel acknowledged that other districts have employed Eldridge for due process challenges of signature-comparison procedures, but it eschewed such invocations because “none of those courts provided reasoning for its selection of the Eldridge test,” and Anderson-Burdick “is better suited to the context of election laws than is the more general Eldridge test.”

Third, the panel determined that “the signature verification procedures withstand scrutiny under Anderson-Burdick.”  While the Eldridge test allows courts to ascertain “‘the pros and cons of various balloting systems,’” Anderson-Burdick recognizes states’ interest in regulating elections.  The court argued that adhering to Eldridge would usurp the states’ constitutional commitments and supplant them with judicial intervention.  The panel did not investigate the Secretary’s likelihood of proving that the State’s procedures do not violate the Equal Protection Clause, as the district court surmised. 

Analogizing to Crawford v. Marion County Election Board, the panel found that the State’s signature verification—and the lack of notice and opportunity to cure rejected signatures—did not constitute a severe burden under Anderson-Burdick because “the Constitution does not demand such a toothless approach to stymying voter fraud.”  The court, therefore, balanced the interests of the State against the burden the law imposed.  It supported the Secretary’s position that “Texas’s interest in preventing voter fraud justifies its signature-verification requirement.”  Detailing how fraud could impact the outcome of an election, the panel claimed that Texas “seeks to stop voter fraud where the problem is most acute—in the context of mail-in voting.”  Additionally, it argued that the State did not need to show specific evidence of fraud to justify its protective measures and that signature confirmation was a reasonable rather than severe burden in light of the State’s “legitimate interest” in forestalling fraud.  

The Fifth Circuit panel relied on erroneous assumptions in applying Anderson-Burdick balancing.  It asserted that voter fraud is pervasive while occurrences of voter disenfranchisement through signature matching are “small.”  But troves of publicly available data show otherwise.  A recent Pew Research Center poll reveals that one in four Americans believes that “voter fraud has been a major problem with voting by mail.”  Yet little empirical evidence exists to support widespread allegations of voter fraud.   The conservative Heritage Foundation has identified only 1,298 instances of voter fraud since 1982, a period over which hundreds of millions of votes may have been submitted.  On the other hand, in the 2016 general election, about one percent (or 317,728) of the thirty-three million absentee ballots were rejected, and the most common reason was a mismatched signature (27.5 percent of 317,728).  Consequently, 87,450 votes were not counted due to these supposed inconsistencies.  Likewise, Texas election officials rejected—at minimum—3,746 mail-in ballots in the 2018 general election and 1,567 mail-in ballots in the 2016 election for mismatched signatures.  Thus, signature-comparison disenfranchises more citizens in a single Texas general election than the number of voter fraud cases nationwide over the past thirty-eight years.  Such discrepancy illuminates that the current system is inflicting greater injury than the harm it was intended to guard against.

With the surge in voting across Texas, Democrats may narrowly win control of the statehouse, six competitive U.S. house races, a U.S. Senate seat, or perhaps, the State’s thirty-eight electoral votes.  Unlike other states, Texas’s mail-in voting is restricted to citizens with disabilities, those 65 years and older, people outside the country, and individuals in jail.  Its signature-verification system may disproportionately affect at least some of these groups who are especially vulnerable to COVID-19.  The specter of voter fraud should not silence their voices: a possibility that presents an arguably greater threat to the democratic process in 2020.