Bending Toward Justice: California to stop invalidating votes without notice

Photo: Joe Raedle/Getty Images

Even the bluest of states sometimes have laws that interfere with voting rights. A California court ruled that one such law is unconstitutional.

The homepage of California Secretary of State Alex Padilla’s website touts the California Voter’s Choice Act, a law passed in 2016 to reduce barriers to voting by mailing a ballot to every registered voter 28 days prior to an election.

Voters can then either vote by mail, drop off the ballot at a secure county drop box, or deliver the ballot to a county vote center. Several California counties will use this new voting process for the 2018 election. All counties will be able to transition to the new process by 2020.

The website says the new law provides “greater flexibility and convenience for voters.” What it doesn’t tell you is that if a county election official decides the signature on your mail-in ballot doesn’t match the signature the county has on file, your vote won’t be counted, and you will not be notified of the discrepancy or that your vote wasn’t counted.

That is what the California Elections Code says.

In the 2016 election, more than half of the 14.6 million votes cast in California were by mail-in ballot. Of those, between 33,000 and 45,000 votes were not counted because a county election official decided that the signature on the ballot didn’t match the signature on file.

One voter didn’t find out his vote didn’t count until months after the 2016 election, when he looked up his voting record online. When he saw that he’d been disenfranchised, he asked the ACLU to sue to invalidate this provision of the California Elections Code.

On Monday, a San Francisco Superior Court judge ruled in his favor.

Judge Richard B. Ulmer Jr. held that a voter is denied due process if their vote isn’t counted because signatures don’t match and they aren’t provided an opportunity to clear up the discrepancy before the election results are certified.

Judge Ulmer invalidated that Elections Code provision as unconstitutional, and ordered California’s Secretary of State to inform every county election official about the ruling.

This ruling is consistent with court decisions addressing similar provisions in other states. Illinois, Florida, and Arizona all had laws requiring that mail-in ballots be invalidated if signatures didn’t match. In those states, voters were notified after the fact, so that the discrepancy could be cleared up for future elections.

Still, federal courts in all three states held that it violated due process to invalidate a mail-in ballot without giving the voter an opportunity to cure the signature issue before the election was certified.

California’s provision was worse, because it didn’t provide for any notification to the voter. A voter could go on voting by mail for years without learning that one or more of their ballots were invalidated.

“Tens of thousands of people were being denied their right to vote because a government official was making arbitrary decisions about penmanship,” Michael Risher, senior staff attorney with the ACLU Foundation of Northern California, said in a statement. “Handwriting varies and a perceived mismatch does not give election officials the right to refuse to count a vote.”

The California Secretary of State’s office did not respond to a request for comment on the court’s ruling.