Pa. Justices Say Signatures Alone Can't Disqualify Ballots

Law360 (October 23, 2020, 2:03 PM EDT) -- Mail-in ballots in Pennsylvania can't be challenged or thrown out based on whether the voter's signature on the outer envelope matches what's on their voter registration, the Pennsylvania Supreme Court ruled Friday.

The high court said in its unanimous ruling that the state Election Code had no specific language directing county election officials to compare signatures when verifying a voter's eligibility, and noted that revisions to the code over the years had actually cut out a signature comparison requirement back when mail-in ballots only applied to military members serving away from their homes.

"We draw two inferences from this early history. First, the Legislature understands how to craft language requiring signature comparisons at canvassing when it chooses to do so, as it did in 1937. Second, in the 1937 code, the Legislature drew a clear distinction between assessing the sufficiency of the ballot affidavit … and a comparison of the ballot signature," Justice Debra Todd wrote for the court. "The Legislature having subsequently stripped out the signature comparison language from the code, we ought not to construe, as intervenors suggest, the remaining sufficiency determination as incorporating a signature comparison."

The court granted a request from Secretary of the Commonwealth Kathy Boockvar for a declaration that signature comparisons were not necessary, over arguments from intervenors, including President Donald Trump's reelection campaign, that signature comparison was a necessary part of determining if a voter was who they said they were.

A federal lawsuit from the League of Women Voters had sought to bar counties from doing signature comparisons, arguing that signatures can naturally change over time and therefore the comparisons posed a risk that legitimate votes could be thrown out based on a mismatch. That suit was dropped after Boockvar issued guidelines in September that said counties couldn't toss ballots based on signatures.

In its own federal suit, the Trump campaign wanted the court to make signature comparisons a requirement for the precanvassing process, when election officers look at voters' declarations on the outer envelope of their mail-in ballots to verify the voters' identities and eligibility to vote, before opening the outer envelope and sending the inner envelope and the ballot within it to be counted.

Boockvar asked the justices to weigh in on the state Election Code, and the federal judge tossed the campaign's lawsuit Oct. 10.

The justices said Friday that in other areas of the Election Code not pertaining to mail-in ballots, the state Legislature had clearly indicated when signatures should be compared to state records and when they could be challenged based on those signatures, including when someone signs in to vote in person, or when they submit a provisional ballot.

But the Legislature removed the signature requirement for military voters' mail-in ballots in 1945, expanded mail-in voting in 2019 by eliminating the requirement that voters swear they are unable to vote in person, and made further accommodations in 2020 for the COVID-19 pandemic and eliminated all time-of-canvassing challenges.

"Presumably, in expanding voting by mail, the Legislature sought to streamline the process for canvassing such ballots, perhaps to avoid undermining the expansion effort by eliminating the prospect that voters — including a potentially large number of new mail-in voters — would be brought before the board or the courts to answer third-party challenges," the opinion said.

"Intervenors would have us interpret the Election Code, which now does not provide for time-of-canvassing ballot challenges, and which never allowed for signature challenges, as both requiring signature comparisons at canvassing, and allowing for challenges on that basis," the justices said. "We reject this invitation."

The justices also noted that the recent changes to the law had affected what went into the "registered absentee and mail-in voters file," which the intervenors had alleged that election officials were supposed to compare to the ballot signatures. The Legislature had cut out the requirement that the file contain copies of voter registration records with the voters' earlier signatures, the opinion said.

"It seems this file, previously utilized, is now a virtually empty relic," the opinion said. "The only informational remnant in the file, if it is still being maintained, is … a voter's absentee and mail-in ballot application number to be entered in the file. Manifestly, there is no present requirement that the file contain the type of signature information necessary to perform the signature comparison intervenors contend is mandatory."

Pennsylvania Attorney General Josh Shapiro, whose office helped represent the state, hailed the ruling as a win for voters.

"Voters who use a mail-in ballot have their identity verified in the initial application, often using a drivers' license number," he said in a statement. "Pennsylvania's voter identification system is safe and secure. We are protecting every eligible vote and ensuring each is counted."

Boockvar also lauded the ruling, sending a tweet that said it was a "Huge victory for free and fair elections in Pennsylvania! And on my birthday no less!"

Representatives for the Trump campaign did not immediately respond to requests for comment Friday.

"Secretary Boockvar's work to undermine the security features embedded in our Election Code is ongoing. People voting in person are now being held to a higher standard than those who mail in their ballots," said state Senate Majority Leader Jake Corman, a Republican who had filed an amicus brief in the case siding with the Trump campaign, in a statement. "Never did we contemplate that Secretary Boockvar would interpret the statute in a way which would result in signatures required on the mail-in ballots being meaningless."

The Pennsylvania Department of State and Boockvar are represented by Daniel T. Donovan, Susan Davies, Michael Glick, Sara Shaw Tatum, Madelyn Morris and Kristen Bokhan of Kirkland & Ellis LLP; Daniel T. Brier, Donna A. Walsh and John B. Dempsey of Myers Brier & Kelly LLP; Timothy E. Gates and Kathleen M. Kotula of the State Department's Office of Chief Counsel; Kenneth L. Joel and M. Abbegael Giunta of the Governor's Office of General Counsel; and Josh Shapiro, Karen M. Romano, Keli M. Neary, Howard G. Hopkirk, Nicole Boland and Stephen Moniak of the Pennsylvania Attorney General's Office.

The Trump campaign and the Republican National Committee are represented by Ronald L. Hicks Jr., Jeremy A. Mercer and Russell D. Giancola of Porter Wright Morris & Arthur LLP and Matthew Morgan and Justin R. Clark of Elections LLC.

The case is In re: November 3, 2020 General Election, case number 149 MM 2020, before the Supreme Court of Pennsylvania.

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