'It's egregious': thousands of mail-in ballots could be rejected over small errors

Rosalie Weisfeld doesn’t skip elections – she just doesn’t.

The 64-year-old lives in McAllen, near the Texas-Mexico border, and she votes in the contests that a lot of people sit out – races for school board, water district and local runoffs. In the more than 40 years she’s been registered to vote, Weisfeld only remembers missing one election.

But last year, her nearly-perfect record was broken. Weisfeld voted by mail in a local race, signed her ballot and mailed it in well ahead of election day. More than a month later, Weisfeld got a letter back saying election officials had rejected her ballot. They examined the signature Weisfeld put on the ballot, compared it to one they had on file, and determined they weren’t from the same person. By then, she had no recourse. The election was over.

“I was shocked, I was sad, I was upset. I became mad and angry that my right to vote was taken away from me without any kind of consultation,” said Weisfeld, now a plaintiff in a lawsuit challenging the way Texas rejects absentee ballots. “No one called me, no one sent me a letter. No one sent me an email to ask me ‘is this your signature?’”

As more Americans vote by mail this year amid the Covid-19 pandemic, there’s concern that thousands of eligible voters like Weisfeld could have their ballots rejected for small errors without a chance to fix them. Mail-in ballots were more likely to be rejected in the 2016 election than ones cast in person. In a typical election only a small percentage of mail-in ballots get rejected (318,728 ballots, around 1% of those returned, were uncounted in the 2016 general election), according to data compiled by the US Election Assistance Commission (EAC). That could rise starkly during the presidential election when an unprecedented number of people are expected to vote by mail.

“I have a hard time believing we aren’t going to see an increase in rejection rates across the country,” said Daniel Smith, a professor at the University of Florida who has closely studied mail-in ballot rejections. “The odds are you’re having more people who are not familiar with the process, they’re not going to have people there to help and assist as you would in person.”

The vast majority of ballots that go uncounted are rejected for three reasons: the ballot arrives late, there is a problem with the signature on it, or there is no signature at all, according to EAC data. Many states don’t count ballots if they arrive after election day, regardless of when they were put in the mail. But they can also reject ballots if election officials determine the signature on the ballot doesn’t match one in a voter’s file – a decision that can be left to the whims of election officials with little guidance.

Four months ahead of the election, there are already warning signs. In May, New Jersey officials rejected nearly 10% of mail-in ballots during local elections held entirely by mail. In Florida, just over 18,500 ballots were rejected during the state’s March primary. In Nevada, more than 6,700 ballots, were rejected because of signature matching issues. In Kentucky’s June primary, more than 3,800 ballots were rejected in Jefferson County, home of Louisville, because they lacked a required signature.

There is also evidence that first-time, young, and minority voters may be more likely to have their ballots rejected than other voters. In Florida’s 2018 election, first-time voters accounted for 5% of all vote by mail ballots cast in the state, but represented 12.7% of the ballots that went uncounted. In the state’s March primary, minority voters were twice as likely to have their ballots rejected than their white counterparts, according to the Stanford-MIT Healthy Elections Project.

“There’s not sort of any individual reason at the theoretical level why these voters, these groups of voters, would be more likely to make a mistake,” said Mara Suttman-Lea, a professor at Connecticut College, who has studied ballot rejections.

‘Less trust in the system because of arbitrary rejections’

Many states verify signatures on mail-in ballots as an anti-fraud measure, but signature comparison is extremely difficult and some states do not provide uniform guidance to election officials on how to do it.

Allowing election officials with no expertise to reject ballots without first notifying voters is extremely risky, say forensic document examiners, who are trained in handwriting analysis. No two signatures from the same person are exactly the same and it can take years of experience to determine whether a signature is a forgery. There can be a number of factors that influence someone’s signature, including the surface they’re writing on, the position they’re sitting in, or their state of mind.

“If you’re going to screen them and then don’t tell the voter, disenfranchise the voter without them knowing, that’s egregious,” said Linton Mohammed, a forensic document examiner who has served as an expert witness in several lawsuits challenging signature matching practices (he is also currently serving as an expert witness in the Texas case challenging signature practices). “It is subjective. You have to be really properly trained.”

In Texas, where Weisfeld’s ballot was rejected, the officials responsible for making signature comparisons are not handwriting experts and are appointed by political parties. They can reject a ballot if a majority of the committee reviewing the signatures agrees they don’t match. Neither the state nor the county is required to offer them training. A state handbook acknowledges those responsible for comparing the signatures are not experts and merely instructs them to use their “best judgment”. Election officials don’t even have to give voters a chance to verify their identity, and they don’t have to tell them the reason their ballot was rejected until 10 days after election day.

“Especially now where we have situation where more people are going to use mail-in ballot because of the Covid pandemic, there will be less trust in the system because of these arbitrary rejections,” said Hani Mirza, an attorney with the Texas Civil Rights Project who is helping represent Weisfeld. “The best you can do is try to sign it exactly the same way. But even that, you have no real control. It’s based on subjective control of other people.”

One of the easiest ways states can prevent this wrongful disenfranchisement is to give voters a chance to fix errors . But less than 20 US states have such policies in place, according to the National Conference for State Legislatures. States can also require uniform and robust training on comparing signatures – already the norm in some states like Colorado. The state, which conducts its elections entirely by mail, rejected less than 1% of mail-in ballots in 2016 according to the EAC data.

Those fixes could have helped Maria Fallon Romo get her ballot counted in North Dakota’s 2018 general election. Romo, 53, has multiple sclerosis, a condition that can make it difficult to sign and hold things. That year, she voted by mail for the election, but it wasn’t until two years later that she found out her ballot was rejected because officials determined the signature didn’t match the one on her mail-in ballot application.

“I don’t mean to be dramatic or anything, but it was unbelievably unfair that my voice didn’t count,” said Romo. “Clearly it was my signature. I mean yes my signature does look a little different at times because of my numbness in my hands, the grip of the pen, and my posture. Everything comes into play, but not to the point where it’s just chicken scratch.”

Romo voted again by mail this year in her local election. But before she sent in her application, she took a picture of her signature. When she mailed back her ballot, she opened the picture on her phone so she could mimic it.

In June, a federal judge ordered North Dakota not to reject any ballots without contacting the voter first.

‘It has motivated me to say it stops with me’

Aside from signatures, there is concern that many Americans will be disenfranchised by state cutoffs requiring voters to return their ballots by election day. While the election day cutoff may make it easier for election officials to process votes, it also means that a voter who puts their ballot in the mail a few days before election day might not have their vote counted if it isn’t delivered on time.

That’s what happened to Kirk Nielsen, a freelance journalist in Miami who mailed in his ballot eight days before election day in 2018. Florida requires mail-in ballots to arrive by 7pm on election night, but when Nielsen checked on the status of his ballot on election day, 6 November, he saw that it still hadn’t arrived. When he filed a public records request, Nielsen learned his ballot didn’t arrive at the Miami-Dade supervisor of election office until 14 November. It had taken more than two weeks for Nielsen’s ballot to travel 20 minutes across town.

Nielsen’s ballot was one of nearly 32,000 mail-in ballots rejected in the Florida’s general election that year, according to Smith’s research. In the same election, Rick Scott won a US Senate seat by just over 10,000 votes and Ron DeSantis won the governor’s race by just over 32,000 votes.

Just 14 states allow election officials to accept ballots postmarked on or before election day if they arrive in the days after, according to the Brennan Center for Justice (a few additional states have accepted late arriving ballots for their primary elections). During the primaries, many local election officials have been overwhelmed by a flood of absentee ballot requests and have struggled to get ballots to voters in time to return them by election day.

Democrats have filed a slew of lawsuits across the country seeking to require officials to count ballots as long as they are postmarked by election day and received shortly after (Nielsen is a plaintiff in one filed in Florida).

That small change that could make a huge difference. In Wisconsin, where Democrats secured a court order requiring the state to accept ballots with an election day postmark, more than 79,000 ballots came in after election day for the state’s April election and were ultimately counted (Trump won the state in 2016 by just under 23,000 votes).

In Pennsylvania, where state law requires absentee ballots to arrive by 8pm on election night, tens of thousands of ballots arrived after election day during the state’s 2 June primary. Many were only counted because of a one-time executive order issued by the governor on the eve of the election. Trump’s 2016 margin of victory in the state was just over 44,000 votes.

Even in states that accept late arriving ballots, however, a new problem is emerging: some ballots are arriving without postmarks because of the way the post office treats different kinds of mail. There’s uncertainty over whether election officials can legally count these ballots, again leading to the possibility some voters could be disenfranchised through no fault of their own.

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It’s been more than a year since her ballot was rejected, but Weisfeld, who loves to post pictures of her “I voted” sticker after an election, is still angry. She’s continued her habit of voting in elections since then, but she’s still incredulous that her ballot was rejected before she had a chance to fix it.

“It hasn’t stopped me. It has motivated me to say it stops with me,” she said. “What if someone else had gotten this letter, not me, and said ‘oh why did I even bother? I’m not gonna participate anymore. This doesn’t matter.’”

• Jimmy Tobias contributed to the reporting of this story