Saucedo v. Gardner

• Decision Date: 14 August 2018
• Docket Number: Civil No. 17-cv-183-LM
• Citation: 335 F.Supp.3d 202
• Parties: Mary SAUCEDO, et al. v. William GARDNER, Secretary of State of the State of New Hampshire, in his official capacity, et al.
• Court: U.S. District Court — District of New Hampshire

335 F.Supp.3d 202

Mary SAUCEDO, et al.

v.William GARDNER, Secretary of State of the State of New Hampshire, in his official capacity, et al.

Civil No. 17-cv-183-LM

United States District Court, D. New Hampshire.

Signed August 14, 2018

Claudia Center, Pro Hac Vice, San Francisco, CA, Dale E. Ho, Pro Hac Vice, Julie A. Ebenstein, Pro Hac Vice, New York, NY, Paul J. Twomey, Twomey Law Office, Chichester, NH, Gilles R. Bissonnette, American Civil Liberties Union of New Hampshire, Concord, NH, for Mary Saucedo, et al.

Laura E. B. Lombardi, NH Attorney General's Office (Civil), Matthew T. Broadhead, NH Department of Justice, Concord, NH, for William Gardner, Secretary of State of the State of New Hampshire, in his official capacity, et al.

ORDER

Landya McCafferty, United States District Judge

This case concerns New Hampshire's signature-match requirement for absentee ballots. The act of signing one's name is often viewed as a rote task, a mechanical exercise yielding a fixed signature. A person's signature, however, may vary for a variety of reasons, both intentional and unintentional. Unintentional factors include age, physical and mental condition, disability, medication, stress, accidents, and inherent differences in a person's neuromuscular coordination and stance. Variations are more prevalent in people who are elderly, disabled, or who speak English as a second language. For the most part, signature variations are of little consequence in a person's life.

But in the context of absentee voting, these variations become profoundly consequential. The signature-match requirement in RSA 659:50, III requires every local election moderator to compare the signature on a voter's absentee-ballot application to the signature on an affidavit that the voter sends with the absentee ballot. If the signature on the affidavit does not appear "to be executed by the same person who signed the application," the moderator must reject the voter's ballot. RSA 659:50, III. The purpose of the requirement is to ensure that the same person executes both the absentee-ballot application and the affidavit. In recent elections, however, the signature-match requirement has disenfranchised hundreds of absentee voters.

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.

Plaintiffs Mary Saucedo, Maureen P. Heard, and Thomas Fitzpatrick are among the 275 absentee voters whose ballots were rejected in the 2016 General Election as a result of RSA 659:50, III. They bring suit against defendants William M. Gardner (New Hampshire's Secretary of State), and the New Hampshire Secretary of State's Office, alleging constitutional claims under 42 U.S.C. § 1983, and a claim under the Americans with Disabilities Act ("ADA"). Before the court are the parties' cross-motions for summary judgment, as well as plaintiffs' motion to strike. For the following reasons, plaintiffs' motion for summary judgment is granted in part, defendants' cross-motion for summary judgment is granted in part, and plaintiffs' motion to strike is denied.

STANDARD OF REVIEW

A movant is entitled to summary judgment if it "shows that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In reviewing the record, the court construes all facts and reasonable inferences in the light most favorable to the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013).

"On issues where the movant does not have the burden of proof at trial, the movant can succeed on summary judgment by showing ‘that there is an absence of evidence to support the nonmoving party's case.’ " OneBeacon Am. Ins. Co. v. Commercial Union Assur. Co. of Canada, 684 F.3d 237, 241 (1st Cir. 2012) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). If the moving party provides evidence to show that the nonmoving party cannot prove a claim, the burden shifts to the nonmoving party to show that there is at least a genuine dispute as to a factual issue that precludes summary judgment. Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013).

BACKGROUND

The following facts are undisputed, unless otherwise noted. As stated above, plaintiffs are voters who attempted to vote by absentee ballot in the 2016 General Election. Plaintiff Saucedo voted by absentee ballot due to a disability (blindness), and plaintiffs Fitzpatrick and Heard voted by absentee ballot because they were out of the state on Election Day. They brought suit in May 2017, after learning that their absentee ballots had been rejected. All of their ballots were rejected on the basis of the signature-match requirement in RSA 659:50, III. Defendant Gardner, as the Secretary of State, is the "Chief Election Officer" under state law. RSA 652:23. Among other things, defendants produce absentee-voting forms and documents, and provide election information and materials to local officials and the public. See RSA 652:22 ; RSA 652:23 ; RSA 657:4 ; RSA 657:7.

The court begins by describing the general procedure by which absentee ballots are processed and counted in New Hampshire, before discussing how that procedure played out in the 2016 General Election. Then, the court summarizes the evidence the parties have proffered in support of their competing motions for summary judgment.

I. Absentee Voting in New Hampshire

New Hampshire authorizes absentee voting for certain categories of voters-namely, those who cannot appear at the polls because they are: (1) absent from the municipality on Election Day; (2) observing a religious commitment; (3) unable to vote in person due to physical disability; or (4) unable to appear because of an employment obligation. RSA 657:1.

The first step in the absentee-voting process is for a voter to apply for the absentee ballot. The Secretary of State creates application forms and distributes them to municipalities. RSA 657:4, I; RSA 657:5. A voter may request a form from a town or city clerk, or from the Secretary of State. RSA 657:6. Alternatively, a voter may receive a ballot from the town or city clerk simply by providing a written statement containing all of the necessary information. RSA 657:6.

In the absentee-ballot application, the voter must identify the reason that she is qualified to vote by absentee ballot, and must provide basic biographical information-including name, address, phone number, and email address, though the phone number and email address are optional sections. What is most relevant here is that the application requires the voter to sign her name. Prior to and in the 2016 General Election, there was no notice on the application that the application signature would be compared with another signature; instead, below the signature line was the following statement: "Voter must sign to receive an absentee ballot." Doc. no. 49-9 at 2.

However, as a result of amendments to the absentee-ballot statutory scheme in 2017, the application now contains the following statement below the signature line: "The applicant must sign this form to receive an absentee ballot. The signature on this form must match the signature on the affidavit envelope in which the absentee ballot is returned, or the ballot may be rejected." RSA 657:4, I. In addition, there is a new section, which provides notice that "[a]ny person who assists a voter with a disability in executing this form shall make a statement acknowledging the assistance on the application form to assist the moderator when comparing signatures on election day." Id. Below the notice, there are lines for the assistant to print and sign her name.

Upon receipt of a properly executed application, the clerk provides the voter with: (1) an absentee ballot; (2) an affidavit envelope; and (3) a return envelope.¹ RSA 657:15, I; RSA 657:7, I-III. The voter marks the ballot and places the ballot in the affidavit envelope. RSA 657:17. On the face of the affidavit envelope is an affidavit that the voter must execute. The affidavit requires the voter to again certify that she is voting by absentee ballot for a qualifying reason, and requires that the voter print and sign her name. As a result of the 2017 amendments to the statute, below the signature line is the following notice:

The signature on this affidavit must match the signature on the application for an absentee ballot or the ballot may be rejected. A person assisting a blind voter or voter with a disability who needs assistance executing this affidavit shall make and sign a statement on this envelope acknowledging the assistance in order to assist the moderator when comparing signatures on election day.

RSA 657:7, II. Below, there is a space for an assistant to print and sign her name. See doc. no. 54-7 at 1.

After executing the affidavit, the voter places the affidavit envelope in the return envelope, and submits the package to the town or city clerk. RSA 657:17. The clerk attaches the voter's application to the received absentee-ballot package, but does not open or otherwise process the package prior to Election Day. RSA 657:18.

On Election Day, the clerk delivers the absentee-ballot packages to the local moderator. RSA 657:23. The moderator is a local, elected position with a two-year term. RSA 40:1. Among other things, the moderator oversees the "conduct of voting" and the implementation of New Hampshire's election statutes in her municipality. RSA 659:9. Moderato...