States must decide if fake ballots are a real problem that justifies major spending
Among the controversies arising in connection with the recent mid-term elections are allegations of fake or fraudulent absentee ballots. Election officials in numerous states — from Washington to Florida — are peering at an official signature and a signed ballot, and declaring, on a ballot by ballot basis — “this one is good,” “this one is bad.”
In many states – like New Hampshire and Georgia – officials discard ballots based on their subjective opinion of the signature on it, without any notice to the voter that he or she has been disenfranchised. In others, like Florida and Arizona, voters have an opportunity to ratify or “cure” their ballots.
Nonetheless, tens of thousands of ballots are disallowed in each election cycle. Despite consistent data indicating that voter fraud in U.S. elections is highly unusual, an ACLU suit challenging the signature match process in California asserted that, in that state alone, more than 45,000 mail-in votes were discarded by state officials in the 2016 election, without any notice to the voters involved.
Last week, President Donald Trump weighed in on signature matching, tweeting, “Just out — in Arizona, SIGNATURES DON’T MATCH. Electoral corruption Call for a new Election? We must protect our Democracy!” In Florida, Democratic Sen. Bill Nelson has filed a legal challenge against the disqualification of votes by untrained election officials based on perceived signature mismatches.
These reactions bring into sharp focus the questionable initial premise of the controversy– an assumption that state officials who are not trained document examiners can reliably determine whether a signature is genuine.
Arizona and Florida law are similar in that they require a signature on a mail-in ballot and election officials are required to match each signature to the one on file with the voter’s registration. We presume that there are instances in which this is possible – where a signature is wholly absent from a mail-in ballot or where an obviously different name is signed. But in any close question, it is highly unlikely that an untrained lay-person can reliably determine whether a signature is authentic – and it is almost certain that such a determination cannot be made based on a comparison between an original signature on a ballot and the copy of one from an “official record.”
We start with the premise that it is virtually impossible – even for a trained professional – to determine accurately whether a signature is genuine by comparing a single questioned signature to a single known signature. In Florida as well as Arizona, the single known signature is from a voter registration application which may be a copy and may pre-date the signature on the ballot by a decade or more. Moreover, a formal signature, made on an official document, may differ considerably from an individual’s less formal signature made on every day documents.
If real data suggest that a state has a problem with fake absentee ballots, then that state should take seriously its responsibility to identify them. But having an official “eyeball” two signatures for superficial matching is not an accurate way to accomplish this laudable goal. Signature authentication is a well-established field with professional training, certification and standards and is carried out using specialized equipment. The lack of detail in copies significantly reduces the likelihood of an accurate determination. Most importantly, everyone’s signature varies from day to day and over time.
The professional document examiner establishes the range of natural variation in a signature by studying a number of genuine signatures made close in time to the questioned signature. Without being able to establish this range of natural variation, no conclusions whatsoever can be drawn as to the significance or otherwise of any differences between the signature on the ballot and that on the official document being used as the control. Physical disability, age, and consumption of alcohol or drugs (legal or not) may also affect the appearance of a genuine signature.
Professional examination of questioned signatures would, of course, require a serious commitment of time and money. But the competing values that are purportedly at stake are important ones – the integrity of the U.S. election process and the importance of counting each vote. Other remedies – like the President’s suggestion that the election be re-run – would also cost a good deal of money.
If the U.S. democracy is truly in peril, then a commitment of resources would seem to be warranted. Eighty percent of Arizona’s voters, and 60 percent of California’s, choose to vote by mail.
If, however, the issue of potentially fake ballots is not sufficiently important to warrant the use of professionals to examine the signatures, one can only wonder whether the insistence on signature matching, with the potential disqualification of thousands of votes in any given state, is really motivated by concerns about fake votes, or whether some other political interest is really at stake.
Katherine Toomey is a Washington, D.C.-based partner at Lewis Baach Kaufmann Middlemiss. She is experienced in the litigation of frauds involving forged documents.
Audrey Giles is a forensic scientist specializing in the scientific examination of documents and handwritings. She was formerly the head of the Questioned Documents Section at Scotland Yard.