Monthly Archives: March 2019

Texas Voters Whose Mail-in Ballots Were Rejected for Claimed Signature Discrepancies Challenge Statewide Law as Unconstitutional

Arguments Tuesday, March 19, in McAllen Federal District Court

Najvar Law Firm press release:

MCALLEN, TEX.—Texas law currently vests local “ballot boards” with the authority to eyeball a voter’s signature on the “carrier” envelope (containing the completed mail-in ballot) to determine if the signature looks sufficiently similar to the voter’s signature on his or her application to vote by mail.  If the ballot board—composed of laypersons with no expertise or training in handwriting analysis—perceives a discrepancy in the signatures, it must reject the ballot.  The voter is disenfranchised in that election with no notice and no opportunity to verify the validity of his or her ballot.  Four elderly South Texas voters, all of whose ballots were improperly rejected in the March 2018 Democratic primary election, have joined a constitutional lawsuit challenging this deficient process. Defendants are the Texas Secretary of State, represented by the Office of the Attorney General, and the members of the Starr County Early Voting Ballot Board.

All four plaintiff voters have verified that they personally signed their applications and carrier envelopes.  The four voters’ experiences illustrate the practical deficiencies in the operation of Texas’s signature-match requirement. 

Plaintiff Amelia Martinez, now deceased, was legally blind.  She was 73 years old when she completed her mail ballot at home, with the help of her daughter, in early 2018.  Ms. Martinez took pride in voting, and always insisted on signing her own name, in cursive, on her mail-ballot application and carrier envelope.  A quick review of the documents reflects that her signatures appear nearly identical on the application and carrier envelope from 2018, but they proceed at different angles, which appears to be the mere result of the angle at which she was sitting in relation to the paper as she signed.  Ms. Martinez passed away in December 2018, and her daughter Magaly Serna seeks to carry her claims forward.

Another Plaintiff voter, Maria Guerrero, 79 years old at the time she completed her mail ballot in 2018, was very careful and deliberate in signing her application.  She consciously left two letters out of her last name because she was concerned that there was not enough room in the box provided, and she did not want to write over the word “Date” on the application.  There is no such box on the carrier envelope, and therefore she was able to write all of the letters when she signed the envelope.  Despite the identical appearance of the handwriting, her ballot was rejected, presumably as the ballot board noticed the discrepancy from the missing letters.   

Maria’s husband Vicente Guerrero, 83 years old at the time he completed his ballot, also had his ballot rejected for a claimed signature discrepancy. 

Under Texas’s current law, the ballot board is required to compare the voter’s signature on the carrier envelope with the signature on the application and reject any ballot for which a discrepancy is perceived.  The law only requires that notice of the rejected ballot be provided to the voter ten days after election day, and provides no opportunity to correct or explain any perceived discrepancy or validate the ballot so that it can be counted in that election.  While records from the 2018 primary election reflect that less than 1% of mail ballots are rejected for signature discrepancies in most counties, the Starr County ballot board rejected an incredible 13.5% of all submitted mail ballots for alleged signature mismatch.

Plaintiffs are represented by Jerad Najvar and Austin Whatley of Houston-based Najvar Law Firm, PLLC, a litigation boutique specializing in election and constitutional litigation.  “Texas already has a system for provisional ballots, allowing voters to present any necessary documentation to local election officials within six days after an election so their ballot can be counted,” Najvar said.  “There is no reason that the same opportunity should not be made available to those Texas voters whose ballots are slated for rejection for a perceived signature discrepancy.  We are asking the court to require that such voters be contacted and provided the same opportunity as provisional voters to validate their ballot.  That will not interfere with the timelines or procedures for elections, but it is immensely important for any voter who would otherwise be disenfranchised.” 

This is the first lawsuit challenging Texas’s signature-match requirement as a violation of due process.  However, similar regimes have been declared unconstitutional in several other states recently, including in Florida in 2016 and New Hampshire and Georgia in 2018.  See Florida Democratic Party v. Detzner, No. 4:16-cvg-607 (N.D. Fla. Oct. 16, 2016); Saucedo v. Gardner, 335 F. Supp. 3d 202 (D. N.H. 2018); and Martin v. Kemp, 341 F. Supp. 3d 1326 (N.D. Ga. 2018), respectively.

The case is Galvan v. Whitley, et al., No. 7:18-cv-00113, in the U.S. District Court for the Southern District of Texas at McAllen.  All briefing is complete, and a full hearing on the merits is expected Tuesday, March 19, at 2:30 pm before Judge Hinojosa. Plaintiffs seek an order that the Texas law is unenforceable in any Texas election without timely notice and an opportunity for voters whose ballots are marked for rejection based on the signature to validate their ballot.

Plaintiffs’ First Amended Complaint is here; Plaintiffs’ Motion for Summary Judgment is here.

Najvar Law Firm, PLLC, based in Houston, specializes in litigation and appeals in election and constitutional matters. NLF has successfully litigated several constitutional cases, including a case against the Texas Ethics Commission in which the Fifth Circuit struck down a waiting period on Texas PACs, and other successful constitutional cases against Houston, Dallas, and Austin.