TALLAHASSEE — Upholding a judge’s decision that sided with former U.S. Sen. Bill Nelson and national Democrats, the 11th U.S. Circuit Court of Appeals on Friday ruled that a Florida law requiring voters’ signatures on mail-in ballots to match the signatures on file with elections officials imposes “a serious burden on the right to vote.”
Friday’s 2-1 opinion came more than three months after the November election in which former Republican Gov. Rick Scott narrowly edged out Nelson in one of the country’s most closely watched Senate campaigns.
Under state law, voters whose mail-in ballots are received by 5 p.m. the day before the election have an opportunity to “cure” rejected ballots by providing documentation to elections supervisors to show that they are who they claim to be. But people whose mail-in ballots are received after that, or voters who cast provisional ballots on Election Day, do not.
County canvassing boards make decisions about whether signatures match, and thus whether ballots should be counted. But counties don’t have uniform regulations to govern the decisions, Democrats argued.
The National Republican Senatorial Committee, former Attorney General Pam Bondi and Scott’s administration appealed a preliminary injunction issued by U.S. District Judge Mark Walker, who sided with Democrats in a case focused on how much time voters should have to “cure” mismatched signatures.
Walker in November gave an extra 48 hours to voters who were “belatedly notified” that their signatures did not match.
In Friday’s split ruling, appellate judges Robin Rosenbaum and Beverly Martin agreed with Walker and Democrats that the Florida process places undue burdens on the right to vote, while Judge Gerald Tjoflat dissented.
“Florida’s signature-match scheme subjects vote-by-mail and provisional electors to the risk of disenfranchisement in two ways,” Rosenbaum wrote in the majority opinion.
The way the state implements the law and “the very nature of matching signatures” caused the problems, the majority found. The state lacks uniform standards and does not require training or qualifications for those who do the job, Rosenbaum wrote.
“Florida allows each county to apply its own standards and procedures for executing the signature-match requirement, virtually guaranteeing a crazy quilt of enforcement of the requirement from county to county,” she wrote.
But in a 42-page dissent, Tjoflat railed at the majority for upholding Walker’s opinion, which he said was “inconsistent” with what Nelson and the Democrats requested. The Democrats had asked the federal court to force county supervisors to count all mail-in and provisional ballots that had been rejected due to signature mismatch, Tjoflat noted.
And, Tjoflat argued, a voter who waited “until the eleventh hour to submit his ballot ran the risk that his ballot might be rejected.”
It’s not the first time the courts have intervened in the state’s signature-matching requirement.
Shortly before the 2016 election, Walker ordered the state to come up with a way to allow voters to “cure” ballots that were rejected. Walker called state law “indefensible” and said it threatened to disenfranchise voters.
The inclusion of the “cure” provision in the state’s election code established “a fair expectation going into the 2018 election” that voters who used mail-in ballots “would no longer be subjected to a situation where they would be deprived of their right to vote,” Rosenbaum wrote.
“But the code’s remedy to make that expectation a reality turned out, in practice, to be illusory in some instances,” she found.
The deadline for county supervisors of elections to receive mail-in ballots was 7 p.m. on Election Day. While the “opportunity to cure signature mismatch should have been part and parcel of any constitutional use of the signature-match protection after the district court’s 2016 opinion,” the judge wrote, the “cure” had to submitted by 5 p.m. on the day before the election.
That meant “the deadline to cure a rejected ballot came before the deadline for the supervisor to receive the ballot in the first place,” Rosenbaum wrote.
Even more troubling, the federal judge said, county canvassing boards were not required to start counting mail-in ballots until a day after the election, which fell two days after the cure deadline.
Voters would have to anticipate that ballots would be rejected and take “affirmative steps like submitting a ballot well in advance of the published deadline,” which still would not guarantee that they would be notified of the signature mismatch “until it was too late to remedy the problem,” Rosenbaum wrote.
“Not only is this unrealistic and unreasonable, but as the voters’ declarations in this case show, it renders the opportunity to cure illusory in some circumstances,” the judge found, and “defeats the purpose of requiring Florida to add a cure provision,” as Walker instructed the state to do in 2016.
The signature-mismatch lawsuit was one of myriad election challenges related to Florida’s November election.
During a lengthy hearing held by Walker about a week after the November election, Florida Division of Elections Director Maria Matthews testified that 45 counties tossed a total of 3,668 mail-in ballots and 93 provisional ballots due to mismatched signatures. Two large counties — Duval and Miami-Dade — had not reported their results, and Walker estimated about 5,000 ballots statewide would have been rejected, far fewer than would have made a difference in the final election results in the U.S. Senate race.
Rosenbaum and Martin rejected Republicans’ arguments that allowing voters to cure mismatched signatures “diluted” the votes of those who followed the rules and undermined people’s faith in elections.
“In our view, doubling down on the disenfranchisement of vote-by-mail voters who complied with Florida’s published deadline is not the way to promote faith in elections,” Rosenbaum wrote.
Former Democratic Congressman Patrick Murphy was among the voters who learned their ballots had been rejected too late for them to do anything about it.
In a sworn declaration submitted to Walker, Murphy said he voted by mail in the November general election using the same signature he had used in the primary election earlier in the year.
“Because the cure deadline had already passed, Murphy could do nothing to have his ballot counted. And Murphy was not alone: the record contains other sworn declarations with stories of eligible voters who were similarly disenfranchised,” Rosenbaum wrote in Friday’s order denying the Republicans’ request to put Walker’s injunction on hold.
“On these facts alone, we have no trouble finding that Florida’s scheme imposes a serious burden on the right to vote,” she wrote.
In his dissent, Tjoflat wrote that vote by mail, or “VBM,” voters were aware that “a chain of events” had to happen before they successfully cured a rejected ballot. Voters had to receive a rejection notice in the mail, prepare a cure affidavit, and present the affidavit to the supervisor of elections by 5 p.m. the day before the election.
“Obviously, these things would take some time, so a VBM voter knew that it was risky to submit a VBM ballot near the deadline. A VBM voter thus had no one to blame but himself if the time ran out for curing a rejected ballot,” the judge wrote.
Tjoflat criticized Walker, who he said “abused his discretion,” for “changing the rules of an election after the voting is over and the ballots are being counted.”
The “new provision” Walker added to the state’s election code “was not needed,” the dissenting judge wrote.
“The statutory provisions the court overlooked informed VBM voters of everything they needed to know to cast a ballot and have it counted,” Tjoflat wrote. “If the provisions are inadequate, it is the responsibility of the Florida Legislature to refine them.”