Short Circuit: A Roundup of Recent Federal Court Decisions

Vote hauling, signature verification, and extended deadlines.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the Short Circuit podcast: IJ attorneys Kirby West and Jeff Redfern consider the pressing issues of the day, such as how many Ninth Circuit judges does it take to change an en banc denial and can butterflies flutter over The Wall?

• Almost forty years ago, a defendant was convicted of killing a man on Christmas eve on the streets of Philadelphia. Twenty years ago, somebody else confessed to the murder. Ten years ago, a key witness for the prosecution recanted her testimony. Six years ago, two more witnesses recanted. Third Circuit: We view recantations with suspicion, but the number of recantations here warrants an evidentiary hearing.
• Last month, North Carolina elections officials, apparently wary of the Post Office's ability to deliver absentee ballots in time, extended the deadline for receipt from three to nine days after election day (ballots still must be mailed by election day). Much litigation ensues. The Fourth Circuit takes the unusual step of taking the case en banc after the panel had voted but before the panel opinion had been drafted. And the en banc court will not put a stop to the ballot-receipt extension, over some dissenters who are displeased both with the substance of the decision and the process it took to get there.
• Former co-owner of Dinero Express is convicted of money laundering: running it through washing machines, when it arrives smelling like mischief, but also running it through a series of money transfers. Fifth Circuit: While petitioner was a success at money laundering—both literal and figurative—his habeas petition raises issues that could have been raised in an earlier petition and is an abuse of the writ. Concurrence: I agree, but I also think we should reconsider our habeas case law to further restrict the writ.
• Texas's absentee-ballot system involves a "Signature Verification Committee"—a "politically diverse" group that is tasked with approving or rejecting signatures on mail-in ballots. The committee verifies signatures on the ballot application and the absentee ballot envelope, and it may also look to signatures from that voter within the last six years that are on file with the county clerk or voter registrar. If a majority of the committee votes to reject a signature, the voter must be notified but has no opportunity to challenge the rejection. Considering that absentee ballots are "the largest source of potential voter fraud" and voting by mail is a privilege rather than a constitutional right, says the Fifth Circuit, this system is fine, at least fine enough to apply to this election.
• For their entire lives, two teenage brothers in Mathis, Tex., have each kept a lock of their hair uncut as a promesa (a practice among American Catholics of Hispanic descent, which involves petitioning God with a request and vowing to fulfill a promise in return). In 2017, their public school informs them that they cannot participate in extracurricular activities unless their adhere to the school's grooming standards, which prohibit their long hair. District court enters preliminary injunction, finding that the school is likely violating the family's rights under the Texas Religious Freedom Restoration Act.  Fifth Circuit: And contrary to the school's protestations, Brother #1 did not have to comply with pre-suit notice requirements. But Brother #2 should have, meaning the preliminary injunction is vacated as to him.
• In 1998, Kentucky passed a law requiring abortion facilities to acquire a written agreement with a local hospital plus a written agreement with a local ambulance service to transport patients with abortion complications. Recently, state officials added a requirement that the hospitals be within a 20-minute drive. Sixth Circuit (over a dissent): There's no indication that both of the state's abortion facilities would close if the law is enforced, so it's not accurate to say that the regs impose an undue burden on the right to abortion. (Attn circuit-split watchers: The chief justice's concurrence in last term's June Medical Services continues to confound; the Sixth Circuit sides with the Eighth and splits from the Fifth as to the effect of the concurrence.)
• Allegation: Pretrial detainee smuggles cigarettes into jail, fails to bring enough for everyone, and suffers three beatings at the hands of envious inmates before Coffee County, Tenn. jail officials finally grant his request to transfer him to a safer cell block. Deliberate indifference? Jail officials: If he hadn't smuggled in those cigarettes, he wouldn't have gotten beaten up all those times. Sixth Circuit: No qualified immunity.
• Tennesseans who registered to vote online or by mail may not vote absentee in the first election after they registered. District Court: That ban violates first-time voters' constitutional rights, so it's enjoined. Sixth Circuit: And we won't stay that injunction. For one thing, we don't understand why the government waited nearly a month to appeal and seek a stay given that the election is so quickly approaching.
• Michigan has long prohibited people from hiring cars to take voters to the polls unless they're physically unable to walk. The law was first enacted in 1895 to prohibit the classic form of bribery known as vote hauling, which is "cast as a way to get voters to the polls, [but is] often little more than an efficient vote-buying operation." And, 125 years later, two-thirds of this Sixth Circuit panel will allow the gov't to enforce the law for this election.
• Out of a total of 60 potential jurors for trial over 2007 Champaign, Ill. triple shooting, just two are African-American. The prosecutor strikes one of them who is familiar with the scene of the crime. (Defendant is convicted and sentenced to 90 years.) State court: Which is a perfectly reasonable reason to strike a venireperson. Seventh Circuit: Just so. The lack of African-Americans in the jury pool was a minor anomaly and is neither here nor there Batson-wise.
• FBI agent is ordered to turn over his laptop, which contains surreptitious recordings of Arkansas state senator (who is ultimately sentenced to 18 years for taking bribes). Instead, the agent pays a computer shop to erase the hard drive and scrubs it again himself after. Then he lies to his superiors and the court. Nonetheless, the recordings are recovered elsewhere, and they're not particularly helpful to the defense. So was there something else on the laptop that would make the agent risk criminal charges, his career? Eighth Circuit: Whatever it was, it doesn't help the senator (or his conspirators). Conviction affirmed.
• After blowing a deadline by which it was required to promulgate rules for managing landfill emissions, the EPA is ordered to wrap things up by November 2019. Instead, EPA conducts a rulemaking extending their deadline until August 2021. District Court: Nope, you'll stick to the November 2019 date. Ninth Circuit: Nope, it's an abuse of discretion to refuse to modify an injunction when the underlying law has changed.
• "What if the State of Washington passed a law that gave the reigning political party access to certain State-controlled, speech-enabling information, but denied that information to everyone else? It is hard to imagine anyone believing such a law would be constitutional under the First Amendment. So should it matter if the State enacted the same law, but instead of giving the information to the incumbent political party, it gave it to an incumbent public-sector union that serves as the exclusive bargaining representative for certain employees paid with public funds? That is what happened here when Washington voters enacted I-1501." So writes Judge Bress, dissenting from a panel opinion of the Ninth Circuit upholding the initiative.
• If you walk towards someone you allegedly assaulted earlier in the day, with a knife drawn, and while defying specific police orders to stop, do you have a clearly established right to be free from the use of deadly force? Ninth Circuit: You do not. Qualified immunity.
• Federal law taxes revenue from selling illegal drugs, but doesn't allow deductions for business expenses. Yikes! And that rule applies even where marijuana is legal as a matter of state law. Tenth Circuit: Over the past several years, numerous dispensaries in Colorado have resisted complying with IRS subpoenas seeking information about their revenues and expenses. As usual, their arguments fail.
• Long-haul trucker and his trainee are accosted by a woman in a Homewood, Ala. parking lot. She accuses the trucker of hitting her car on the highway. Police arrive, and matters escalate quickly. Trucker's allegations: Per company policy, I tried to photograph the alleged damage to the woman's car, and the officer tased me in the back without warning, kicked me, and broke my jaw, then tased me again, then pepper-sprayed me, and then two more officers arrived and continued to kick, strike, and choke me. Eleventh Circuit: At the summary judgment stage, the district court erred by not crediting the man's account. To trial the case must go.
• Florida man alleges state law enforcement agency wrongly continues to disseminate his personal information on its website after he completed probation for sex crimes against minors. District court: The man waited too long to sue; his case is barred by the statute of limitations. Eleventh Circuit: Affirmed.
• And in en banc news, the Eleventh Circuit will reconsider its holding that the Prison Litigation Reform Act prevents prisoners from recovering punitive damages for a constitutional violation unless they have been physically injured.

Comments

[Rev. Arthur L. Kirkland]

That vote-suppressing decision (and procedure) with respect to Texas is part of the reason I do not expect Republicans' opinions to be of much interest to Democrats with respect to the next federal voting rights law.

Fight voting rights as you wish, Republicans, but do not expect to have your opinions count much when Democrats have the votes to reform the rules.

[Brett Bellmore]

That's not a vote suppressing decision. If they're notified, they can go vote in person.

[mse326]

Only if notified in time. And only if they will be present in state. I don't know why the voter shouldn't be allowed to say that is me. I can see saying that has to be done in some way in which ID can be confirmed (like in person or maybe notarized). Election officials are hardly handwriting experts, and even handwriting comparison is rather dubious as an objective thing.

[Brett Bellmore]

I agree that fingerprints might be preferable to signatures, but signatures ARE traditional ID checks, and voting needs to be on the basis of SOMETHING more secure than just the honor system.

Yes, you can imagine alternate implementations that might be better, but a law doesn't have to be the optimum law, to be a constitutional law.

Democrats like Kirkland have adopted a definition of "vote suppression" where as soon as they dream up any change to procedure that might yield a few more votes, it becomes constitutionally obligatory. I don't think that's a valid approach to voting rights.

[Rev. Arthur L. Kirkland]

" Democrats like Kirkland have adopted a definition of “vote suppression” where as soon as they dream up any change to procedure that might yield a few more votes, it becomes constitutionally obligatory. I don’t think that’s a valid approach to voting rights. "

Let's see what the next Congress comes up with.

[Krayt]

You like little-d democracy when your party is in control, but not the other.

[James Pollock]

He's not exactly alone in that. One of the parties tries to ensure that they stay in power by finding reasons not to count the votes of people who don't vote for their candidates.

[mse326]

Again I'm not saying it should be honor system, I'm saying there should be a process if they deny the ballot where the voter can say it is him. That process certainly can, and should, include something stronger than a signature. While it is indeed traditional it is far from an exact science even to those trained let alone political lackies. Nor do I think the law itself is voter suppression (I don't rule out the possibility that some of the panels may not implement it objectively and do so in a way that suppresses the other party's voters). I just don't think it is good policy.

As to the constitutionality, in my initial post I was only talking policy, I think it is a close question. The court opinion is certainly a reasonable one, I don't deny that. I do think there is an argument to be made that in allowing mail in ballots there is a statutorily created property right in it and the denial therefore requires due process. I don't have a strong opinion on which is "right" but I don't fault the 5th Circuit's opinion here. My concern is one of policy only

[Brett Bellmore]

I suppose the argument is that, if the reason that the signature didn't match was that somebody else wrote it, the ballot you were looking at might not have been filled out by the voter. Perhaps somebody was going around buying absentee ballots off people, or intercepting and replacing/altering them.

So the secure thing is to toss the ballot, and start over.

[Queen Amalthea]

If someone were going around 'intercepting and replacing/altering them' that would be easily evident, wouldn't it? If you did that with a lot of people you'd be bound to turn in a ballot for someone who knows they didn't vote, and then a check of public records would show that. We've had many states doing this kind of thing for a while and seen no evidence of that...

[Brett Bellmore]

Well, if you're buying ballots off people and filling them out yourself, they're not going to implicate themselves by telling authorities, they'll just say, "Yup, that was me!"

Whereas if you're intercepting and replacing/altering ballots on the way from the voter to the polls, you're not going to have people who knew they didn't vote. They did, so far as they know.

Now, I question whether the statistics on this are reliable, given that we hardly look for such fraud in the first place, and you can't find what you don't look for. But it's at least arguable that if the rate is low, it's precisely because there ARE security features in place, and you can't count on them remaining low if you abolish the safety features, like signature matching.

[Queen Amalthea]

"Well, if you’re buying ballots off people and filling them out yourself, they’re not going to implicate themselves by telling authorities, they’ll just say, “Yup, that was me!”"

Are you kidding? I mean, you don't think there's someone from the other side who wouldn't 'sell' their vote and then immediately call the authorities to become a star for reporting this malfeasance?

And if you 'intercept' a variable when it's mailed, well, lots of people who get them are not going to turn them in. All it takes is someone who knows they weren't.

As if often the case, mass conspiracies are unlikely because you have to have so many people cooperate, and that's unlikely.

[Sarcastr0]

Brett, you have outlined a conspiracy that by it's scale and use of strangers is fundamentally unable to keep secret.

[James Pollock]

"Brett, you have outlined a conspiracy that by it’s scale and use of strangers is fundamentally unable to keep secret."

But it's NOT a secret. Brett knows all about it.

[bernard11]

But it’s at least arguable that if the rate is low, it’s precisely because there ARE security features in place, and you can’t count on them remaining low if you abolish the safety features, like signature matching.

Sort of like preclearance requirement in the VRA.

[Brett Bellmore]

Kind of like burglary rates and locks on doors, or embezzlement rates and regular audits, I'd say.

The problem with Congress not updating the preclearance list, was not so much the states stuck on it, as the states that remained home free. Which I take to be the reason it wasn't updated...

[mse326]

You are missing the point. I'm not debating whether it should be counted at that instant, but whether the supposed voter should have the opportunity to say it was him that filled it out.

[Brett Bellmore]

I think the supposed voter should have the opportunity to replace it.

[James Pollock]

"I think the supposed voter should have the opportunity to replace it"

In the NEXT election, he can have another.

[James Pollock]

"I agree that fingerprints might be preferable to signatures"

If you are one of those people who don't think that people can find two people with fingerprints that match, maybe. But I can remember the case of the Oregon lawyer arrested by the FBI because his fingerprint was found at the scene of an overseas terrorist attack. What they couldn't prove was that the fellow they arrested had ever been in the country where the attack occurred, and then another person was matched to the fingerprint. Oops.

[Rev. Arthur L. Kirkland]

" I don’t know why the voter shouldn’t be allowed to say that is me. "

Because Republicans suppress votes as a reflex, at best. Sometimes they suppress votes as a partisan weapon, disingenuously. I have observed -- and fought -- it for years.

[Rev. Arthur L. Kirkland]

In my state, the notification occurs, at best, on Election Day. On a website. At an unpredictable time.

[Queen Amalthea]

During a pandemic? I mean, I imagine you'd be upset about Black Panthers standing outside a polling place suppressing votes. For a lot of people, the risk of Covid is as real, y'know?

This is what gets me about so many conservatives. They act like the idea of not voting in person *must* be some diabolical plot hatched in a black UN helicopter. But in the midst of a pandemic, (even if you think it's exaggerated or whatever you do get that there's this concern out there, right?) you can't imagine why some people would want to be able to vote without going into an often crowded, public place?

[Brett Bellmore]

I'm grocery shopping in person, I'm not particularly scared of voting in person.

[Stephen Lathrop]

So why is your grocery shopping preference the standard, Brett? Are you immune suppressed, and just stupid? Or maybe you are in perfect health, and live where there hasn't been much virus.

I live where there has been a lot of disease, and a lot of death. I haven't been in a grocery store since early March. Why should that mean the dominant political party in my state gets power to suppress my vote?

[Queen Amalthea]

I find that many conservatives these days have a great deal of trouble imagining the circumstances of other people might be different than theirs.

[GKHoffman]

Nobody is suppressing your vote. Just go and cast your ballot. It doesn't require the courage of Leonidas, just a few grains of sand.

[Stephen Lathrop]

GKHoffman, it is not my vote which concerns me. I live in MA, where my vote has no meaning. The votes which concern me are those of like-minded voters elsewhere. I insist that my election interests include that their votes not be suppressed, as some states, some courts, the Administration, and the Republican Party have been attempting to do.

[Queen Amalthea]

"I take risks so I don't mind taking another one, and making others do so too, regardless of how unnecessary" is quite the argument.

[James Pollock]

"I’m grocery shopping in person, I’m not particularly scared of voting in person."

Being stupid is not a virtue.

[Zennyfan]

On Oct. 13, the first day of early voting here in Austin, people were reporting lines of upwards of 200 people. Callers to local radio were bemoaning “voter suppression” — apparently forgetting that early voting runs through Oct. 31, seven days a week, and the polls would be open on Election Day. These long lines came in the era of Covid, the threat of which is being used by Democrats to undo any and all protections against voter fraud (and yes, it does happen). As for counting ballots that arrive more than a week after the election, don’t the rest of us deserve to know the winner of the presidency in a timely manner?

[Stephen Lathrop]

As for counting ballots that arrive more than a week after the election, don’t the rest of us deserve to know the winner of the presidency in a timely manner?

No. If it means negating one vote which was properly cast, you do not deserve that. Don't like it? Shake your fist at heaven. Or ask yourself why the Trump administration didn't act to supply N95 masks for everyone.

[Queen Amalthea]

Deriving the actual consent of the governed > than 'wanting to know the results faster.'

"and yes, it does happen"

Very rarely it seems.

[James Pollock]

" don’t the rest of us deserve to know the winner of the presidency in a timely manner?"

You don't have a valid winner if the votes haven't all been counted.

[Brett Bellmore]

You do if all the legal votes have been counted.

[James Pollock]

You're still trying to work as if votes cast for candidates you don't like are "illegal", and that's just not true.

[jb]

Eh, this is longstanding practice in Texas and they're not letting anyone new vote by mail. There's some voting rights decisions that give me heartburn, but verifying signatures on mail-in ballots strikes me as a pretty reasonable balance between voting access and ballot security (even though it probably fails my general test of disqualifying more legitimate ballots than it discourages in terms of fraud).

[James Pollock]

Verifying signatures is fine, but if you're going to discard a vote, you need fairly strong evidence that it is invalid. If you don't have that, how do you make it up to the person (=lawful voter) you've just disenfranchised?

[Brett Bellmore]

In this case, it was being discarded in advance of the election, so the voter had the option of voting in person, or requesting another absentee ballot. Or maybe the first absentee ballot, depending on *why* the signature didn't match.

[James Pollock]

If your fraud detection system produces false positives, it should also have a way of resolving the false positives in favor of the voter casting a ballot that counts. If it does not, you don't get to bristle when it's labeled a "vote-suppression" system.

[Brett Bellmore]

The system in Texas does have a way: The person who supposedly cast the vote is notified, and then can either go obtain another absentee ballot, or vote in person.

[Rev. Arthur L. Kirkland]

"The system in Texas does have a way: The person who supposedly cast the vote is notified, and then can either go obtain another absentee ballot, or vote in person."

Several sources indicate that assertion is wrong. Some states have notified a voter that the ballot was rejected for signature fidelity but provided no opportunity for cure. Other states did not notify the voter -- and, in some cases, did not respond to voter inquiry concerning whether a ballot was rejected.

[James Pollock]

""The person who supposedly cast the vote is notified, and then can either go obtain another absentee ballot, or vote in person."

If they have time to go obtain another absentee ballot, if they can vote in person. And if not, they can try again next time, right?

[James Pollock]

"In this case, it was being discarded in advance of the election, so the voter had the option of voting in person, or requesting another absentee ballot."

I live in the state where the President of the United States told people to vote absentee and then go to their polling place and try to vote for him again. I hope you're in favor of disenfranchising anyone who tries that particular trick, as well as the people who might try to vote for the other guy?

[Commenter_XY]

You don't. Maybe tell them to pay more attention to their signature the next election, if you want to be nice about it.

[Queen Amalthea]

They deserve to be disenfranchised...I've found when you talk to a lot of conservatives it doesn't take too long for it to come around to this...

I often think that to vote you should have to complete an actual obstacle course with physical impediments. Hey, if you didn't train for it, maybe pay more attention to the required physical feats next election!

[Brett Bellmore]

Well, yeah: Conservatives tend to think people have some obligation to actually put in some effort to do things right, and that it's OK if, failing to put in that effort, they suffer some consequences. That we shouldn't warp all of society to make life easy for those who can't be bothered to read the instructions.

[Queen Amalthea]

A fundamental aspect of democracy is that government legitimacy rests upon 'the consent of the governed.' It doesn't say 'the consent of the governed who put in the amount of effort Brett Bellmore says is sufficient'. It's a very anti-libertarian view to say 'well, the governed need to *prove* themselves.' It's the governors who need to prove themselves, to the governed, even those who don't seem to take it as seriously as you'd like (I'm sure there are people who would think *you* aren't serious enough [maybe you don't have, say, an advanced degree or whatever]).

In elections our government, our servants, should bend over backward to discern and abide by the consent of all those they govern.

[Brett Bellmore]

"A fundamental aspect of democracy is that government legitimacy rests upon ‘the consent of the governed.’"

Most democracies get by just on the "acquiescence" or "resignation" of the governed, half the people who could vote don't. "Consent" is more an aspiration than a reality. And democracy is pretty broken in most countries due to the mismatch between the number of choices you can make voting, and the number of choices the people you vote on get to make.

No, I don't think we need any bending over backwards, do absurd things like provide limousine rides to the polls. We need to do a reasonable job of making voting possible for anybody who's qualified and goes to a little trouble to do it, ease of voting is not an absolute value that trumps all competing values such as economy or preventing fraud.

[Stephen Lathrop]

Brett, QA is right, and you are hopelessly wrong. Voting is a sovereign power, not just a right. That means that with regard to voting procedure decisions, the government is in a subordinate position, not in a superior one. In an election, the voters are everything, and the vote counters are nothing. If the vote counters attempt to ascend above nothing, and make policies to affect the outcome, they act illegitimately.

Those are the principles. When it gets down to the practicalities, fair procedures, to protect all voters' rights, must be organized. What the principles dictate is that every decision required to do that must, insofar as possible, side with the individual voter, and preservation of his franchise.

For instance, a system based on signature matching, as judged by potential political partisans, probably can't get over that bar. Perhaps if the system were based on some standard, such as "gross dis-similarity," supported by adequate examples which rule out any subjective errors, and give the benefit of all doubts to the voter, then it could pass muster. But that isn't what you want, right?

[Commenter_XY]

lathrop, the question of protecting voters rights, and the standards used to determine whether a vote cast is a proper and valid vote are two different things.

If TX sees their standards as onerous, or wrong, they will change them. Yeah, it sucks for the voter whose vote was disallowed under the standard. My thought is that disallowed votes under the standard represent a very small number.

At some point, personal agency and accountability come into play.

[Queen Amalthea]

"At some point, personal agency and accountability come into play."

Do you think this generally about things people have a right to do? That government can put restrictions and obstacles regarding the exercise of in the name of 'personal agency and accountability?'

[James Pollock]

" My thought is that disallowed votes under the standard represent a very small number."

If you go with the working theory that any disenfranchised voters is too many, it's actually a very large number.

Try the Golden Rule... would it be okay with you if your vote didn't count?

[Stephen Lathrop]

Commenter_XY: At some point, personal agency and accountability come into play.

Actually, no. Once again, this is sovereign power we are talking about. By definition sovereign power is unconstrained. And in practice, purported constraint of the sovereign by government gets the constraint question backward. It is the sovereign which constrains the government. It is a one-way street. The government never gets to constrain the sovereign back. Under popular sovereignty, there is no purer, unmixed exercise of sovereign power than assertion of the constitutive power by voting.

More generally, a great deal of opinion about government from today's commenters fails to take account of the eminent place among the founders for the role of the sovereign. British history during the founding era—and stretching back for more than 150 years previously—had been all-but-dominated by controversies over the role and nature of sovereignty.

The American revolution proved to be not the first armed conflict over such questions, but more like the last of them. The model of governance the American revolution delivered somewhat put the entire controversy to rest.

Since then, the ever-present-but-mistaken tendency to think of government itself as sovereign has increasingly reasserted itself. It has come to the point where many folks now attempt to think about governance without giving any credence at all to the notion that a sovereign other than government exists, and remains paramount.

That tendency is particularly salient among lawyers, whose interests are served in near-proportion to their collective willingness to encourage acceptance of the mistaken notion that government itself is sovereign. That habit of thought has dug a deep pitfall in the path before the legal community, as it tries to approach what it imagines to be the goal of originalist interpretation. The closer to the founding era the subject matter under study, the more acute become the problems created by misjudging the founding era's notions about sovereignty.

This thread of comments about voting, and restrictions on voting, examples the effects of disordered thinking which follow when people try to discuss constitutive power without reference to a sovereign to exercise it.

[Commenter_XY]

James Pollock...You ask a fair question: Try the Golden Rule… would it be okay with you if your vote didn’t count?

Would I be 'Ok' with it? Well if I messed up my signature, then I have no one but myself to blame. That is on me. In that instance, where it is my responsibility, the answer is yes.

[James Pollock]

"Would I be ‘Ok’ with it? Well if I messed up my signature, then I have no one but myself to blame. That is on me. In that instance, where it is my responsibility, the answer is yes."

OK. Your signature is messed up. Your vote doesn't count. Ever again. Don't bother complaining. It's all on you. But we've decided that your vote(s) simply do not count.

[Stephen Lathrop]

A bit more on signature matching. If I attempt to repeat my own signature, I cannot do as good a job—from one attempt to another—as could any barely competent forger, who had an example of my signature to look at. Every example I produce shows variations sufficient for even casual study to discern. In 10 samples, none will precisely match any of the others, and many of the differences will be visual standouts. I doubt I am unique in this disability—or even particularly uncommon.

What that means is that any unconstrained signature matching test applied to me by someone hostile to my enfranchisement will too-often result in disqualification of my ballot. If I can't match the work of a bad forger, who is to say the example in question is not a forgery?

Let the standard change, however, and add one simple constraint, and the problem could be solved. What constraint? The standard should be dissimilarity of signatures of the sort expected from a forger who had never seen my signature, and had nothing to go on but guesswork. Those results would be reliably so far from my own signature—in all its variations—that there could be no question.

Would that be a perfect system? No. Sufficient effort by forgers who did have access to voters' signatures could accomplish fraud, but probably only on a scale modest enough to remain insignificant to election outcomes in almost every case. Running that low level of risk would avoid the far higher risk of frequent illegitimate disenfranchisements from unconstrained signature comparisons.

That standard seems robust enough to enable competent quality control of the matching process. If needed, it would provide an adequate basis for judicial review.

If advocates of signature matching are sincere about guarding against fraudulent election outcomes, and not merely seeking selective dis-enfranchisements for their own sake—or for the sake of systematic vote suppression—then endorsement of a standard highly protective of voters with naturally variable signatures accomplishes that goal.

[Rev. Arthur L. Kirkland]

"If advocates of signature matching are sincere"

They're not sincere.

They're grasping at any straw that might enable them to avoid counting as many votes as possible.

[Queen Amalthea]

"They’re not sincere."

I'm increasingly inclined to agree. Conservatives seem to have given up on selling their ideas and instead jumped on the idea of limiting the number of buyers...

[Stephen Lathrop]

One final point about signature matching. It is daunting to suppose what could ensue if the outcome of the upcoming election were effected by unconstrained judicial review of the kinds of signature variances which my own efforts routinely deliver. A court decision of that sort could not deliver anything but an arbitrary and capricious outcome to a fraught election. That is more danger than the nation should have to endure.

[Commenter_XY]

lathrop, what part of, "If TX sees their standards as onerous, or wrong, they will change them" did you miss? TX made the standard. That is the way it works. We don't supplant the judgement of the Legislature that passed the standard into law.

Petition the TX legislature.

[James Pollock]

" TX made the standard."
No it didn't. The land just sat there, quietly. People made the decision to limit voting rights.

[Queen Amalthea]

I should think we should try to live up to our aspirations. Your argument is like saying 'well, since most people don't exercise their 2nd amendment rights it's fine to put restrictions on that right.' As Lathrop points out re the right to vote the voter is everything and the vote counter (government) small in comparison. I would think this would be a popular position of libertarians.

[Brett Bellmore]

There's a basic and relevant difference here between the right to vote, and the right to keep and bear arms.

The right to keep and bear arms is a free floating right, like freedom of speech or of religion. You exercise it when you want, as often as you want, where you want, at your own discretion, and with only minor restrictions in regards to venues others have the right to control and exclude you from.

The right to vote is a very context dependent right, similar to the right to a trial by jury: You can't wake up tomorrow morning, think, "I feel like a trial by jury today!", and head over to the court house to demand on. You only get a trial by jury if you're being prosecuted.

You only have a right to vote, once per election, in a specific place, window of time. Not any time or any place you feel like.

So, proving you're who you claim to be, proving that a given ballot was filled out by who it purports to have been cast by, is a central element of the right, in a way it isn't an element of your 2nd amendment right.

[Stephen Lathrop]

Brett, limitations on the right to vote are pursuant to constraints the sovereign People put upon themselves, not constraints government is empowered to impose. Government never gets to constrain the People in their exercise of sovereign power.

[James Pollock]

"There’s a basic and relevant difference here between the right to vote, and the right to keep and bear arms."

Depends entirely on what you think the part about being a well-regulated militia means.

[James Pollock]

" Conservatives tend to think people have some obligation to actually put in some effort to do things right"

If Donald Trump had been informed of this, no way would he be a Republican today.

[Rev. Arthur L. Kirkland]

" You don’t. Maybe tell them to pay more attention to their signature the next election, if you want to be nice about it. "

Hold that thought, Commenter_XY, so that it might provide some solace while people like me are shoving more progress down your whining, backward, bigoted clinger's throat.

Open up, clinger. The reckoning approaches. Prepare to comply.

[Commenter_XY]

You know Arthur, the closer we get to the election, the more testy you seem to get. Why is that? Nerves, perhaps? Yeah, I'd be a little nervous too if I were on your Team D side, and I was looking at the narrowing polls and mail returns to date.

BTW, district court judge #162 was confirmed Thursday. Amy's Seventh Circuit replacement has been nominated, after Amy becomes Justice Barrett. Twelve more district court judges are already on the executive calendar, ready for a floor vote. By the end of the year, the first term results will have been pretty good.

Three (3) SCOTUS Justices
Fifty-three (53) Circuit Court judges
~180 district court judges
~20 article I and article IV judges

They'll be around for a while. 🙂

[James Pollock]

"Yeah, I’d be a little nervous too if I were on your Team D side, and I was looking at the narrowing polls and mail returns to date."

Meh. History suggests "Team D" will be fine. They tend to win when voter turnout is high, and Trump has done a good job of getting out the votes for them. If "Team R" can suppress enough of the voters who don't root for their team, they can hold on to power, but early returns suggest they haven't managed to do so.

Question is, will putting Team D in charge this year push enough people to wanting more Team R next time around?

[Commenter_XY]

We'll see...I don't think anyone really knows how this will turn out.

But....At least my vote has been counted. 🙂

[James Pollock]

"At least my vote has been counted"

Unless it doesn't.

[Queen Amalthea]

"Because Texas’s strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state’s voting procedures place on the right to vote,"

Yeah, just. Wow. This is so dumb, at least politically, it must be planting a flag on a stupid hill.

[Jerry B.]

"FBI agent is ordered to turn over his laptop, which contains surreptitious recordings of Arkansas state senator (who is ultimately sentenced to 18 years for taking bribes). Instead, the agent pays a computer shop to erase the hard drive and scrubs it again himself after."

I'm sure the Bidens want to get in touch with this agent.

[James Pollock]

Rudy will want to debrief him first.

[anorlunda]

"That ban violates first-time voters' constitutional rights"

What evidence exists that these first-time voters are actual people?
Those applications could all have been submitted by those 6 bad guys in Russia.

If the anti-suppression activists succeed in making it impossible to determine if voters are real people, then the hackers are destined to take over the world.

[Stephen Lathrop]

anorlunda, your problem is that voters are sovereign, and actually exercising sovereign power when they vote. That means government is subordinate to voters, and better be kept that way. Inviting government instead to attempt to restrict the sovereign in the exercise of its own power is a quick route to illegitimate government and general chaos. Not a wise route to take.

[anorlunda]

So you think bots are sovereign?

[Stephen Lathrop]

anorlunda, if bots are positioned to compete for sovereignty, then I think it is up to the sovereign People themselves to decree a solution. If they choose to direct government to protect them from bots, they can specify by what methods, and undoubtedly will be appropriately jealous of their own power when choosing the method. What can't happen is letting government, on its own initiative, prescribe a method which restricts the sovereign's exercise of its own powers, not even a little. Licensing that is a danger to sovereignty notably more imposing than bots.

[ReaderY]

I do think that government has to have some way of verifying that people are who they say they are.

On the one hand, government can’t use verification as a method of wholesale disenfranchisement. On the other hand, there is a bit of a classic elephant whistle problem, the metaphor Roberts used in Shelby County.

Just because there hasn’t been a fire in a long time doesn’t prove that fire departments are unnecessary and having one is irrational. The reason there hasn’t been a fire might be because the fire department’s preventative work was effective.

[ReaderY]

When Shelby County was decided, I disagreed with it. I said Robert’s elephant whistle argument was incorrect. Legislatures have to be able to take preventive action to address problems that are conceivable but have not yet arisen.

I stand by what I said then.

[Stephen Lathrop]

ReaderY, why does government have ANY interest in verifying that people are who they say they are when they vote? Indeed, where is any such power delegated to government? Isn't that question the sole concern of the People themselves, who would suffer the injury?

As I think about it now, in light of your comment, perhaps you point the way to the right resolution of the problem. Let the People themselves decree whatever remedy they choose to protect themselves from fraudulent competitors for their power. Let the courts tell government that without such authorization, government is powerless to constrain the sovereign's chosen means for exercising its power.

[James Pollock]

"I do think that government has to have some way of verifying that people are who they say they are."

So the signatures should be made in blood instead of ink? Does the government already have a DNA database of all its citizens, or are you proposing making one?

[James Pollock]

"If the anti-suppression activists succeed in making it impossible to determine if voters are real people, then the hackers are destined to take over the world."

They already took over. Welcome to the future.