Mary Saucedo, et al. v. William Gardner, Secretary of State of the State of New Hampshire, in his official capacity, et al.

2018 DNH 160

• Court: District Court, D. New Hampshire
• Decided: August 14, 2018
• Docket: Civil No. 17-cv-183-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Mary Saucedo, et al.

v. Civil No. 17-cv-183-LM Opinion No. 2018 DNH 160 William Gardner, Secretary of State of the State of New Hampshire, in his official capacity, et al.

O R D E R

This case concerns New Hampshire’s signature-match

requirement for absentee ballots. The act of signing one’s name

is often viewed as a rote task, a mechanical exercise yielding a

fixed signature. A person’s signature, however, may vary for a

variety of reasons, both intentional and unintentional.

Unintentional factors include age, physical and mental

condition, disability, medication, stress, accidents, and

inherent differences in a person’s neuromuscular coordination

and stance. Variations are more prevalent in people who are

elderly, disabled, or who speak English as a second language.

For the most part, signature variations are of little

consequence in a person’s life.

But in the context of absentee voting, these variations

become profoundly consequential. The signature-match

requirement in RSA 659:50, III requires every local election

moderator to compare the signature on a voter’s absentee-ballot application to the signature on an affidavit that the voter

sends with the absentee ballot. If the signature on the

affidavit does not appear “to be executed by the same person who

signed the application,” the moderator must reject the voter’s

ballot. RSA 659:50, III. The purpose of the requirement is to

ensure that the same person executes both the absentee-ballot

application and the affidavit. In recent elections, however,

the signature-match requirement has disenfranchised hundreds of

absentee voters.

As will become evident, this signature-matching process is

fundamentally flawed. Not only is the disenfranchised voter

given no right to participate in this process, but the voter is

not even given notice that her ballot has been rejected due to a

signature mismatch. Moreover, moderators receive no training in

handwriting analysis or signature comparison; no statute,

regulation, or guidance from the State provides functional

standards to distinguish the natural variations of one writer

from other variations that suggest two different writers; and

the moderator’s assessment is final, without any review or

appeal.

Plaintiffs Mary Saucedo, Maureen P. Heard, and Thomas

Fitzpatrick are among the 275 absentee voters whose ballots were

rejected in the 2016 General Election as a result of RSA 659:50,

III. They bring suit against defendants William M. Gardner (New

2 Hampshire’s Secretary of State), and the New Hampshire Secretary

of State’s Office, alleging constitutional claims under 42

U.S.C. § 1983, and a claim under the Americans with Disabilities

Act (“ADA”). Before the court are the parties’ cross-motions

for summary judgment, as well as plaintiffs’ motion to strike.

For the following reasons, plaintiffs’ motion for summary

judgment is granted in part, defendants’ cross-motion for

summary judgment is granted in part, and plaintiffs’ motion to

strike is denied.

STANDARD OF REVIEW

A movant is entitled to summary judgment if it “shows that

there is no genuine dispute as to any material fact and [that

it] is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). In reviewing the record, the court construes all

facts and reasonable inferences in the light most favorable to

the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,

115 (1st Cir. 2013).

“On issues where the movant does not have the burden of

proof at trial, the movant can succeed on summary judgment by

showing ‘that there is an absence of evidence to support the

nonmoving party’s case.’” OneBeacon Am. Ins. Co. v. Commercial

Union Assur. Co. of Canada, 684 F.3d 237, 241 (1st Cir. 2012)

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

3 If the moving party provides evidence to show that the nonmoving

party cannot prove a claim, the burden shifts to the nonmoving

party to show that there is at least a genuine dispute as to a

factual issue that precludes summary judgment. Woodward v.

Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013).

BACKGROUND

The following facts are undisputed, unless otherwise noted.

As stated above, plaintiffs are voters who attempted to vote by

absentee ballot in the 2016 General Election. Plaintiff Saucedo

voted by absentee ballot due to a disability (blindness), and

plaintiffs Fitzpatrick and Heard voted by absentee ballot

because they were out of the state on Election Day. They

brought suit in May 2017, after learning that their absentee

ballots had been rejected. All of their ballots were rejected

on the basis of the signature-match requirement in RSA 659:50,

III. Defendant Gardner, as the Secretary of State, is the

“Chief Election Officer” under state law. RSA 652:23. Among

other things, defendants produce absentee-voting forms and

documents, and provide election information and materials to

local officials and the public. See RSA 652:22; RSA 652:23; RSA

657:4; RSA 657:7.

The court begins by describing the general procedure by

which absentee ballots are processed and counted in New

4 Hampshire, before discussing how that procedure played out in

the 2016 General Election. Then, the court summarizes the

evidence the parties have proffered in support of their

competing motions for summary judgment.

I. Absentee Voting in New Hampshire

New Hampshire authorizes absentee voting for certain

categories of voters—namely, those who cannot appear at the

polls because they are: (1) absent from the municipality on

Election Day; (2) observing a religious commitment; (3) unable

to vote in person due to physical disability; or (4) unable to

appear because of an employment obligation. RSA 657:1.

The first step in the absentee-voting process is for a

voter to apply for the absentee ballot. The Secretary of State

creates application forms and distributes them to

municipalities. RSA 657:4, I; RSA 657:5. A voter may request a

form from a town or city clerk, or from the Secretary of State.

RSA 657:6. Alternatively, a voter may receive a ballot from the

town or city clerk simply by providing a written statement

containing all of the necessary information. RSA 657:6.

In the absentee-ballot application, the voter must identify

the reason that she is qualified to vote by absentee ballot, and

must provide basic biographical information—including name,

address, phone number, and email address, though the phone

5 number and email address are optional sections. What is most

relevant here is that the application requires the voter to sign

her name. Prior to and in the 2016 General Election, there was

no notice on the application that the application signature

would be compared with another signature; instead, below the

signature line was the following statement: “Voter must sign to

receive an absentee ballot.” Doc. no. 49-9 at 2.

However, as a result of amendments to the absentee-ballot

statutory scheme in 2017, the application now contains the

following statement below the signature line: “The applicant

must sign this form to receive an absentee ballot. The signature

on this form must match the signature on the affidavit envelope

in which the absentee ballot is returned, or the ballot may be

rejected.” RSA 657:4, I. In addition, there is a new section,

which provides notice that “[a]ny person who assists a voter

with a disability in executing this form shall make a statement

acknowledging the assistance on the application form to assist

the moderator when comparing signatures on election day.” Id.

Below the notice, there are lines for the assistant to print and

sign her name.

Upon receipt of a properly executed application, the clerk

provides the voter with: (1) an absentee ballot; (2) an

6 affidavit envelope; and (3) a return envelope.1 RSA 657:15, I;

RSA 657:7, I-III. The voter marks the ballot and places the

ballot in the affidavit envelope. RSA 657:17. On the face of

the affidavit envelope is an affidavit that the voter must

execute. The affidavit requires the voter to again certify that

she is voting by absentee ballot for a qualifying reason, and

requires that the voter print and sign her name. As a result of

1 The Secretary of State’s Office also publishes a notice titled “NOTICE OF REQUIREMENTS TO USE ABSENTEE BALLOT.” See doc. no. 49-19 at 17. Prior to 2016, this notice stated in pertinent part:

The moderator will compare the signature on the written request for an absentee ballot to the signature on the Absentee Ballot Affidavit Envelope and your absentee ballot will be counted only if it appears that the same person signed both documents. Therefore, it is important to use the same signature on each form.

Id. After the 2017 amendments to the statute, the notice provides:

The signature on this affidavit must match the signature on the application for an absentee ballot. Your absentee ballot will be counted ONLY if it appears the same person signed both forms. Therefore, it is important to use the same signature on both forms. . . . The two signatures are not compared when the voter receives assistance, provided the person assisting the voter [fills out the relevant sections acknowledging such assistance].

Doc. no. 49-25 at 2. The Secretary of State’s Office encourages municipalities to send this notice to voters with their other absentee-ballot materials, but they are not required to do so. Some municipalities, including Hudson, Laconia, and Manchester, do not send the form to voters.

7 the 2017 amendments to the statute, below the signature line is

the following notice:

The signature on this affidavit must match the signature on the application for an absentee ballot or the ballot may be rejected. A person assisting a blind voter or voter with a disability who needs assistance executing this affidavit shall make and sign a statement on this envelope acknowledging the assistance in order to assist the moderator when comparing signatures on election day.

RSA 657:7, II. Below, there is a space for an assistant to

print and sign her name. See doc. no. 54-7 at 1.

After executing the affidavit, the voter places the

affidavit envelope in the return envelope, and submits the

package to the town or city clerk. RSA 657:17. The clerk

attaches the voter’s application to the received absentee-ballot

package, but does not open or otherwise process the package

prior to Election Day. RSA 657:18.

On Election Day, the clerk delivers the absentee-ballot

packages to the local moderator. RSA 657:23. The moderator is

a local, elected position with a two-year term. RSA 40:1.

Among other things, the moderator oversees the “conduct of

voting” and the implementation of New Hampshire’s election

statutes in her municipality. RSA 659:9. Moderators “are not

employees of the Department of State” and are only accountable

to local voters. Doc. no. 54 at 2, 31.

8 Generally, moderators begin processing absentee ballots at

1:00 p.m. on Election Day, though they may open the return

envelopes prior to that time. See RSA 659:49, I; RSA 659:49-b.

Processing is done in public view. The moderator begins

processing absentee ballots “by clearly announcing that he or

she is about to open the envelopes which were delivered to him

or her.” RSA 659:50. The moderator then removes each affidavit

envelope from the return envelope and compares the signature on

the affidavit with the signature on the voter’s application.

An absentee ballot is accepted if: (1) the name of the

voter is on the voter checklist; (2) the affidavit “appears to

be properly executed”; (3) the “signature on the affidavit

appears to be executed by the same person who signed the

application, unless the voter received assistance because the

voter is blind or has a disability”; and (4) the “signatures

appear to be the signatures of a duly qualified voter who has

not voted at the election.” RSA 659:50, I-IV. If all of these

requirements are met, and the ballot is not challenged by

another voter, see RSA 659:51, I, the moderator opens the

affidavit envelope and takes out the absentee ballot to be

counted. The moderator may begin counting accepted absentee

ballots after polls close. RSA 659:49, I. If one of the

requirements is not met, the moderator rejects the ballot, marks

9 the affidavit envelope with the reason for rejection, and does

not open the affidavit envelope. RSA 659:53.

There is no procedure by which a voter can contest a

moderator’s decision that two signatures do not match, nor are

there any additional layers of review of that decision. In

other words, the moderator’s decision is final. Moreover, no

formal notice of rejection is sent to the voter after Election

Day. Rather, after the election, a voter may determine whether

and why her absentee ballot was rejected via a website

maintained by the Secretary of State. See RSA 657:26.

Defendants remove this information from the website ninety days

after the election, however.

II. The Signature-Match Requirement

As noted above, each local moderator is tasked with

comparing the signature on the affidavit with the signature on

the application to determine whether “[t]he signature on the

affidavit appears to be executed by the same person who signed

the application.” RSA 659:50, III. As a result of the 2017

amendments to the statute, voters receiving assistance with the

execution of their voting materials due to blindness or

disability are exempt from the requirement. Id.

On its face, RSA 659:50, III gives no guidance on the

questions that inevitably arise in applying the requirement,

10 including what stylistic variations suggest that two signatures

were made by different individuals, and what threshold number of

variations is required to conclude that the signature on the

affidavit does not “appear to be” executed by the same person

who signed the application. No other state statute or

regulation elaborates the standard set forth in RSA 659:50, III,

and there does not appear to be any authoritative case law on

the subject.

The record discloses only two sources that provide

additional guidance to moderators: the Secretary of State’s

Office and, in the 2016 General Election, the New Hampshire

Attorney General’s Office. The Secretary of State’s Office

publishes an Election Procedure Manual, which offers the

following:

The test for whether the application and affidavit appear to be signed by the same person is whether this is more likely than not. Absentee ballots should be rejected because the signatures do not match only if the differences in the signatures are significant. . . .

Moderators should exercise careful judgment when rejecting an absentee ballot because the signature of the voter on the affidavit does not appear to be signed by the same person who signed the absentee ballot application. The test is whether it is more likely than not that the same person signed both forms. It is a natural and common occurrence that a person’s signature will change over time and will have differences even when the person writes out his or her signature several times, one immediately after another. A moderator deciding to reject an absentee ballot because the signatures do not match should be

11 prepared to explain to the Attorney General’s Office or a Superior Court judge what specific characteristics on the two signatures were the basis of the decision that they were more likely than not signed by different people. While signature verification is an important safeguard against voting fraud, as with all safeguards, the analysis starts with a presumption of validity and the decision to disenfranchise a voter must be made only when there is sufficient evidence to justify that act.

Doc. no. 49-19 at 14, 16. The Secretary of State’s Office also

conducts optional trainings for moderators prior to elections,

at which it reiterates, but does not further elaborate on, the

guidance set forth in the manual. Doc. no. 49-3 at 77, 79

(deposition of David Scanlan). The Secretary of State does not

regularly monitor rates of rejection due to signature mismatch

to ensure moderators’ compliance with the statute, see id. at

178, 180-83, and has never engaged in a review of any

statistical anomalies related to the requirement, id. at 185.

Prior to the 2016 General Election, the Attorney General’s

Office issued a memorandum to local election officials, which

contained the following guidance:

In determining whether signatures match, the moderator should decide whether it is more likely than not that the same person signed both forms. The more likely than not standard does not require a perfect match. . . . Moderators should be aware that a person’s signature often varies depending on the circumstances, and it is often hard to tell whether two signatures were written by the same person. Because a mistake will deprive a citizen of his/her constitutional right to vote, moderators should take

12 great care before ruling a ballot invalid because of signature differences.

Doc. no. 49-20 at 5.

In essence, the guidance provided to moderators constitutes

a burden of proof (more likely than not), and a requirement that

signature comparison be done based on objective criteria

(whatever those criteria may be). But moderators receive no

training in handwriting analysis, and they are not screened for

conditions, such as poor eyesight, that may impede their ability

to discern subtle variations in signatures. The assumption

seems to be that the substantive task of signature comparison is

one of common sense.

Defendants have also provided affidavits from a number of

local election officials to show “how cities and towns actually

implement RSA 659:50.”2 Doc. no. 54 at 8. Defendants state that

the practices of these officials are consistent with the

practices of election officials statewide. See doc. no. 58 at

7.

2 Plaintiffs move to strike these affidavits on the ground that defendants did not disclose the witnesses in their initial disclosures. Because this evidence, if anything, merely supports plaintiffs’ claims, the court denies plaintiffs’ motion. See Fed. R. Civ. P. 37(c)(1) (“[A] party is not allowed to use . . . [an undisclosed] witness to supply evidence on a motion . . . unless the failure [to disclose] was substantially justified or is harmless”).

13 There are three practices that are worth highlighting.

First, moderators normally have a team of volunteers that help

them compare signatures and determine whether signatures match

for purposes RSA 659:50, III. Nevertheless, while volunteers

may help a moderator reach a decision, the final decision “rests

with the moderator.” Doc. no. 54 at 10.

Second, in deciding whether to accept an absentee ballot,

moderators “consider all of the evidence available to them,

including their personal knowledge of the voter or the personal

knowledge of another election official.” Id. at 11. For

example, one moderator states that, because he “know[s] the

addresses of the assisted living facilities” in his town, he

takes “that into account as a factor when conducting a signature

match,” and allows “for more variability in signatures in these

cases.” Doc. no. 54-15 at 2. Another moderator stated that, in

one instance, he rejected a ballot based on an assistant

moderator’s personal knowledge of the voter. The assistant

moderator had previously seen the voter’s signature on medical

documents, and the signature on the affidavit was inconsistent

with the signature on the medical documents.

At the hearing, defendants clarified how moderators

consider extrinsic evidence. They explain that state law

contemplates a two-step process, citing RSA 659:53 and RSA

14 659:54 in support.3 At the first step, a moderator compares the

signature on the affidavit envelope to the signature on the

application to determine whether the documents were executed by

the same person, as required by RSA 659:50, III. This

determination is made solely based on the signatures themselves

and without reference to extrinsic evidence. If the moderator

determines that the signatures do not pass muster under RSA

659:50, III based on an examination of the signatures alone,

there is a second step: the moderator proceeds to determine

whether there is any extrinsic evidence available to the

moderator or the assistants that would allow the moderator to

conclude that the same person did, in fact, execute both

documents. At the hearing, defense counsel gave the example of

an absentee voter who has his affidavit envelope notarized.

Third, the affidavits show that moderators conceive of the

relevant standard differently. One moderator stated that she

3 RSA 659:53 describes the procedure a moderator should follow if she “finds that the absentee voter is not entitled to vote.” Defendants infer from this language that the moderator must assess available extrinsic evidence—that is, make a “finding”—before rejecting a ballot due to a signature mismatch. Defendants bolster this interpretation by reference to RSA 659:54, which provides that “[n]o absentee ballot shall be rejected by the moderator for any immaterial addition, omission, or irregularity in the preparation or execution of any writing or affidavit required herein.” Defendants contend that, together, these provisions empower a moderator to take into account available extrinsic evidence before rejecting a ballot due to a signature mismatch.

15 will not reject an absentee ballot “unless the signatures on the

request form and affidavit envelope are drastically different.”

Doc. no. 54-13 at 2 (emphasis added). By contrast, another

averred that he does “not reject sets of signatures on the basis

that they don’t look the same, but only if there are no

characteristics which suggest that they could both have been

signed by the same person. In some instances, we are satisfied

if one or two letters . . . share a characteristic style.” Doc.

no. 54-14 at 2 (emphasis added).

III. Statistics from the 2016 General Election

In the 2016 General Election, .35% of all absentee ballots

submitted were rejected due to a signature mismatch (275

rejections out of 78,430 absentee ballots).4 See doc. no. 49-22

at 9. This extremely low rate of rejection due to a signature

mismatch is consistent with the rates seen in the 2012 and 2014

General Elections.

However, there were some variances between polling places

in the 2016 General Election. 74% of New Hampshire’s polling

places had no rejections due to a signature mismatch (236 of

318). Of the 26% that did, rates varied, sometimes

The parties vary in their calculations of the exact 4

figures, but the dispute is immaterial. The parties do not disagree that the rate of rejection due to a signature match is extremely low. In the 2016 General Election, well under 1% of the overall number of absentee ballots submitted were rejected.

16 significantly, both between municipalities and within them. For

example, in Portsmouth Ward 3, 5.21% of all absentee ballots

were rejected due to a signature mismatch; in Portsmouth Ward 2,

the rate was .43%; in Bedford, .88%; in Hudson, 1.68%; in

Manchester Ward 4, 2.17%; in Manchester Ward 6, .23%. See

generally doc. no. 49-23. The parties dispute the significance

of these disparities. Plaintiffs argue that these figures

demonstrate the lack of uniform application of the signature-

match requirement, while defendants assert that, absent further

statistical analysis, any differences could be attributed to

other variables.

Defendants provide some statistics of their own.

Defendants compared, for the 2016 General Election, the

municipalities whose election officials attended the training

session held by the Secretary of State’s Office and

municipalities whose officials did not. They found that six of

the eight towns with the highest rates of rejection due to

signature mismatch had failed to attend the training.

Defendants also found that the towns whose officials did not

attend had a higher rate of rejection due to signature mismatch—

more than double per town. On this basis, defendants contend

that this demonstrates that there is no fundamental flaw in the

statute, and that, at most, more training is required.

17 Plaintiffs challenge defendants’ analysis of the numbers as

“based on a meaningless calculation.” Doc. no. 62 at 5. They

argue, among other things, that analyzing rejections on a per

town basis, without consideration of total absentee ballots cast

and rejected in each town, masks disparities in rejection rates

among towns.5

IV. Dr. Mohammed

Finally, plaintiffs retained an expert, Linton Mohammed,

Ph. D, to support their claims. Defendants do not dispute Dr.

Mohammed’s opinions. Dr. Mohammed is a forensic document

examiner, specializing in handwriting and signature

identification. He opines that a person’s signature may vary

for a variety of reasons, both intentional and unintentional.

condition, disability, stress, accidental occurrences, inherent

variances in neuromuscular coordination, and stance. Variations

are more prevalent in writers who are elderly, disabled, ill, or

who speak English as a second language. Dr. Mohammed explains

that, in order to account for these variations and make an

accurate determination, one needs extensive training, adequate

5Plaintiffs also move to strike the evidence relating to these statistics. Because this evidence is not material to the legal analysis, the court denies plaintiffs’ motion. See doc. no. 56 at 15 nn.13-14 (explaining defects in defendants’ statistical evidence).

18 magnification and lighting equipment, sufficient time, and

excellent eyesight. Furthermore, a forensic document examiner

will normally require at least ten exemplar signatures to

compare to a questioned signature.

Dr. Mohammed opines that in applying RSA 659:50, III,

moderators will likely make erroneous determinations. Lay

moderators do not have the training, time, equipment, or number

of exemplars necessary to make a proper determination. In

addition, Dr. Mohammed states that laypeople erroneously tend to

focus on the “eye-catching” features of single letters, rather

than the holistic features of the signature, like alignment and

slant. Dr. Mohammed opines that holistic features are the more

significant characteristics in signature comparison.

Defendants also rely upon Dr. Mohammed’s opinion. They

cite his statement that “a signature is developed as a form of

identification” to argue that the signature-match requirement

serves to identify a voter and prevent voter fraud. Doc. no.

54-11 at 24. Plaintiffs challenge this inference, contending

that Dr. Mohammed’s point was merely to articulate the

difference between a signature and handwriting generally, not to

suggest that the signature-match requirement identifies the

voter.

Defendants also highlight Dr. Mohammed’s testimony

regarding the different styles of signatures. Dr. Mohammed

19 divides signatures into one of three categories: text-based,

mixed-style, and stylized. A text-based signature is one where

the letters can be fully read; a mixed-style signature is one

where some, but not all, of the characters can be read; and a

stylized signature is “basically a pattern and there’s . . . no

characters [one] can read within that signature.” Id. at 42-43.

Dr. Mohammed determined that 94 of the rejected voters from the

2016 General Election used different styles in their affidavits

and applications. Defendants contend that this finding shows

that these voters were correctly disenfranchised because they

failed to comply with the notice on the absentee-ballot

instructions—that a ballot “will be counted only if it appears

that the same person signed both documents.” Doc. no. 54-8 at

2. Plaintiffs respond that moderators are not trained to

evaluate signature styles and that, in any case, state law does

not require that a voter “use the same signature style” when

voting by absentee ballot. Doc. no. 62 at 9.

DISCUSSION

Plaintiffs bring four claims challenging RSA 659:50, III.

The first three are grounded in the U.S. Constitution.

Plaintiffs contend that the statute facially violates their

procedural due process rights (Count I), their fundamental right

to vote (Count II), and their right to have their votes treated

20 uniformly, under the principles enunciated in Bush v. Gore, 531

U.S. 98 (2000) (Count III). On behalf of Ms. Saucedo,

plaintiffs also bring an ADA claim.

Because the parties express some disagreement over how the

court should analyze plaintiffs’ claims, given that they are

facial challenges to RSA 659:50, III, the court will provide

some clarification before addressing the merits.

“The Supreme Court has articulated two formulations of the

standard for assessing facial challenges to statutes.”

Libertarian Party of N.H. v. Gardner, 843 F.3d 20, 24 (1st Cir.

2016). “In United States v. Salerno, 481 U.S. 739, 107 S.Ct.

2095, 95 L.Ed.2d 697 (1987), the Court held that a facial

challenge can only succeed where the plaintiff ‘establishes that

no set of circumstances exists under which the Act would be

valid.’” Id. Alternatively, a plaintiff bringing a facial

challenge to a statute must establish that it lacks any “plainly

legitimate sweep.” Hightower v. City of Boston, 693 F.3d 61, 77

(1st Cir. 2012). The First Circuit recently relied on the

latter formulation in a ballot-access case. See Gardner, 843

F.3d at 24. But see Pharm. Research & Mfrs. of America v.

Concannon, 249 F.3d 66, 77 (1st Cir. 2001) (citing Salerno test

favorably).

These standards may obscure the relevant inquiry, however,

as they could be taken to suggest that a court’s task is to

21 “conjure up” hypothetical situations “in which application of

the statute might be valid.” United States v. Sup. Ct. of N.M.,

839 F.3d 888, 917 (10th Cir. 2016). But, as courts have noted,

the Supreme Court “has often considered facial challenges simply

by applying the relevant constitutional test to the challenged

statute, without trying to dream up whether or not there exists

some hypothetical situation in which application of the statute

might be valid.” Bruni v. City of Pittsburgh, 824 F.3d 353, 363

(3d Cir. 2016) (collecting cases); see also Doe v. City of

Albuquerque, 667 F.3d 1111, 1124 (10th Cir. 2012).

Therefore, in practice, “[a] facial challenge is best

understood as a challenge to the terms of the statute, not

hypothetical applications, and is resolved simply by applying

the relevant constitutional test to the challenged statute.”

Sup. Ct. of N.M., 839 F.3d at 917 (internal quotation marks and

citation omitted); see also Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 449-50 (2008) (“In determining

whether a law is facially invalid, we must be careful not to go

beyond the statute's facial requirements and speculate about

‘hypothetical’ or ‘imaginary’ cases.”); Ezell v. City of

Chicago, 651 F.3d 684, 698 (7th Cir. 2011).

22 I. Procedural Due Process (Count I)

Plaintiffs first argue that RSA 659:50, III violates the

requirements of procedural due process because it lacks any pre-

deprivation process: voters receive neither prior notice of, nor

an opportunity to cure, a rejection due to a signature mismatch.

Defendants respond that the “extremely slight risk of an

erroneous deprivation,” in conjunction with the “significant

burden on the State” to create additional procedures, support

the conclusion that RSA 659:50, III does not violate procedural

due process. Doc. no. 54 at 22.

“To establish a procedural due process violation, [a]

plaintiff must identify a protected liberty or property interest

and allege that the defendants, acting under color of state law,

deprived [him] of that interest without constitutionally

adequate process.” González-Droz v. González-Colón, 660 F.3d 1,

13 (1st Cir. 2011) (internal quotation marks omitted). “No

rigid taxonomy exists for evaluating the adequacy of state

procedures in a given case; rather, due process is flexible and

calls for such procedural protections as the particular

situation demands.” Id. (internal quotation marks omitted).

Still, “[t]he basic guarantee of procedural due process is that,

before a significant deprivation of liberty or property takes

place at the state's hands, the affected individual must be

forewarned and afforded an opportunity to be heard at a

23 meaningful time and in a meaningful manner.” Id. (internal

quotation marks omitted).

Under Mathews v. Eldridge, 424 U.S. 319 (1976),

“determining what process is due requires balancing three

factors: first, the private interest that will be affected by

the official action; second, the risk of an erroneous

deprivation of such interest through the procedures used, and

the probable value, if any, of additional or substitute

procedural safeguards; and finally, the Government's interests.”

Collins v. Univ. of N.H., 664 F.3d 8, 17 (1st Cir. 2011)

(internal quotation marks and brackets omitted). In addition,

the Mathews court emphasized that “procedural due process rules

are shaped by the risk of error inherent in the truthfinding

process as applied to the generality of cases, not the rare

exceptions.” Mathews, 424 U.S. at 344. As a result, and given

that this is a facial challenge, the court conducts its analysis

by reference to the statute’s facial requirements and the

undisputed, material facts relevant to the signature-matching

process generally.

Two cases are particularly helpful to the court’s analysis.

The first is Zessar v. Helander, No. 05-C-1917, 2006 WL 642646

(N.D. Ill. Mar. 13, 2006), in which the Northern District of

Illinois considered an Illinois statute imposing a signature-

24 match requirement for absentee voters.6 The process for

obtaining and casting an absentee ballot in Illinois was similar

to that in New Hampshire. A voter received an absentee ballot

by executing and sending an absentee-ballot application to the

appropriate authority. Id. at *1. After marking the ballot,

the voter placed the ballot inside an envelope, on which was a

certification form that the voter would sign and date. Id. On

Election day, the package was delivered to the appropriate

precinct, and the election judge “cast” the ballot for the

absentee voter. Id. at *2. A ballot could be rejected if the

signature on the application did not correspond to the signature

on the ballot envelope or on the voter’s registration card.

Unlike New Hampshire law, a voter was mailed a notice after the

election if his ballot was rejected. Id. at *3. Illinois law

also had a procedure for provisional voting that could extend up

to fourteen days after the election. Id. at *4.

The plaintiff in Zessar, whose vote was rejected due to a

signature mismatch, sued a number of local and state officials,

arguing that the lack of notice and an opportunity to cure for

rejected voters was unconstitutional as a matter of procedural

due process. See id. at *5. The district court agreed. On the

6 The Seventh Circuit subsequently vacated the district court’s decision on the ground that it had become moot with the passage of new absentee-voting legislation in Illinois. See Zessar v. Keith, 536 F.3d 788 (7th Cir. 2008).

25 first Mathews factor, it found that, while “[t]he right to vote

by absentee ballot is not, in and of itself, a fundamental

right,” a voter has a sufficient liberty interest once “the

State permits voters to vote absentee.” Id.

On the second factor, the Zessar plaintiff suggested that

voters should receive immediate notice of the rejection,

followed by an informal administrative hearing in front of an

election authority to confirm that the absentee ballot belongs

to the voter. Id. at *8. The defendants responded that such

procedures would be “hugely disproportionate” to the problem,

and questioned whether they would even be effective for absentee

voters who are absent from their residences for an extended

period. Id. The Zessar court agreed that there was not a

“tremendous” risk of erroneous deprivation, given that only

approximately .43% of all absentee ballots returned to election

authorities were rejected for any reason.7 See id.

Nevertheless, the court found that the probable value of

additional procedures was great in light of the otherwise

irremediable denial of absentee voters’ right to vote.

On the third factor, defendants argued that election

authorities “face a cascade of statutory obligations in the time

7 Specifically, 1,100 absentee ballots were rejected out of the “253,221 absentee ballots [that] were returned to election authorities and 191,177 absentee ballots [that] were counted.” Id. at *8.

26 period leading up to and following the election,” which would

make additional procedures “an untenable burden.” Id. at *9.

The Zessar court was not persuaded. The court did recognize

that new procedures would pose “some additional administrative

and fiscal burden on the election authorities,” but even so, the

procedures would be fairly circumscribed affairs, given that

election authorities have already verified that absentee voters

are entitled to vote prior to issuing the absentee ballots. For

that reason, the court found that any burden “would [not] be so

great as to overwhelm plaintiff's interest in protecting his

vote.” Id.

Other courts have reached similar conclusions to that of

the Zessar court. See Raetzel v. Parks/Bellemont Absentee

Election Bd., 762 F. Supp. 1354 (D. Ariz. 1990) (concluding that

Arizona absentee-voting statute, which failed to provide

absentee voters with any post-deprivation notice or opportunity

to be heard when their votes were challenged and rejected, did

not afford adequate procedural due process); La Follette v.

Padilla, No. CPF-17-515931 (Cal. Super. Ct. Mar. 5, 2018)

(concluding that provision of California Election Code, which

required election officials to reject a ballot if the signatures

did not “compare,” was facially unconstitutional because it

failed to provide pre-deprivation notice or an opportunity to

cure), available at doc. no. 49-4.

27 Lemons v. Bradbury, 538 F.3d 1098 (9th Cir. 2008), is the

only case the court could find in which a signature-match

requirement was upheld against a procedural due process

challenge based on the fundamental right to vote.8 There, the

Ninth Circuit upheld Oregon’s procedure for verifying signatures

on referendum petitions. Oregon voters may approve legislation

by referendum, and a referendum qualifies for statewide vote

upon submission of a petition with a sufficient number of

signatures. Lemons, 538 F.3d at 1100. In order to verify the

petition signatures, the Secretary of State uses a statistical

sampling method, whereby approximately five percent of the

submitted signatures are cross-referenced with voter

registration records. Id. If a petition signature is

“genuine,” it is counted. Id.

The plaintiffs argued that this procedure violated, among

other things, their right to procedural due process. Id. at

1101. The Ninth Circuit disagreed, despite holding that

Oregon’s regulations on the referendum process “implicate the

8 There are a few other cases in which courts have upheld such requirements against procedural due process challenges, but those courts gave less weight to the rights at issue than is given to the right to vote. See Protect Marriage IL v. Orr, 458 F. Supp. 2d 562, 573-75 (N.D. Ill. 2006) (denying procedural due process claim relating to petition signature-match requirement, and reasoning that “petition signers do not have a fundamental right to have their advisory question placed on the ballot”); State ex rel. Potter v. Harris, No. E2007-00806, 2008 WL 3067187, at *8-10 (Tenn. Ct. App. Aug. 4, 2008).

28 fundamental right to vote.” Id. at 1102. The court determined

that the value of additional procedures was negligible. Id. at

1105. The court reasoned that the verification process was

“already weighted in favor of accepting questionable

signatures,” citing a number of elements of Oregon’s procedure:

(1) voters were notified on the referendum cover sheets that

they must sign their name as they did on their voter

registration; (2) the public could observe the process and

object to signature-verification decisions; (3) all rejected

signatures were subject to multiple layers of review; and (4)

officials limited their review to a comparison between the

petition signature and registration signature.

While the Ninth Circuit found additional procedures of

negligible value, it assigned great weight to the administrative

burden of additional procedures. Election officials might

process more than 100,000 signatures in each election cycle, and

it could take several minutes to “identify [each] signer, find

the corresponding voter registration card, determine whether the

signer is an active, registered voter, and then compare the

signatures.” Id. at 1104. The court therefore rejected the

plaintiffs’ claim, noting that “[r]equiring the state to provide

thousands of petition signers with individual notice that their

signatures have been rejected and to afford them an opportunity

to present extrinsic evidence during the short thirty-day

29 verification period would impose a significant burden on . . .

elections officials.” Id. at 1104-05.

With these cases in mind, the court weighs the Mathews

factors in the present case.

a. Private Interest

Plaintiffs argue that the individual interest at issue is

the fundamental right to vote. Defendants respond that “the

rights claimed by Plaintiff[s] should be afforded less weight

than traditionally afforded the right to vote” because there is

no right to vote by absentee ballot. Doc. no. 66 at 4.

The court accords this factor significant weight. It is

beyond dispute that “[t]he right to vote is of the most

fundamental significance under our constitutional structure.”

Ayers-Schaffner v. DiStefano, 37 F.3d 726, 727 (1st Cir. 1994)

(internal quotation marks omitted); see also Griffin v. Burns,

570 F.2d 1065, 1075 (1st Cir. 1978) (noting that the right of

suffrage is “a fundamental political right” because it is

“preservative of all rights”). While “there is no corresponding

fundamental right to vote by absentee ballot,” Griffin v.

Roupas, No. 02-C-5270, 2003 WL 22232839, at *4 (N.D. Ill. Sept.

22, 2003), the privilege of absentee voting is certainly

“deserving of due process,” Raetzel, 762 F. Supp. at 1358;

accord Zessar, 2006 WL 642646, at *5; Doe v. Walker, 746 F.

30 Supp. 2d 667, 681 (D. Md. 2010). Having induced voters to vote

by absentee ballot, the State must provide adequate process to

ensure that voters’ ballots are fairly considered and, if

eligible, counted.

b. Risk of Erroneous Deprivation and Probable Value of Other Procedures

The parties dispute both elements of this factor.

Plaintiffs assert that the risk of erroneous deprivation is

“great” and that such risk could be easily remedied through

additional procedures like a “simple telephone call.” Doc. no.

48-1 at 34, 40. Defendants counter that the risk is “extremely

slight” and that plaintiffs’ alternative is not workable. Doc.

no. 54 at 19, 22.

Defendants are correct that, based on the data available to

the court, the overall rates of rejection due to a signature

mismatch have been low in recent general elections. But those

rates should be put into perspective. In the first place, even

rates of rejection well under one percent translate to the

disenfranchisement of dozens, if not hundreds, of otherwise

qualified voters, election after election. See doc. no. 49-3 at

193-94 (deposition of David Scanlan) (stating that there is no

indication that, in 2016 General Election, voters rejected due

to signature mismatch were otherwise ineligible to vote). Given

how close some races are in New Hampshire, that is a risk with

31 real consequences. See, e.g., doc. no. 48-1 at 47 (noting one

state senate race in 2016 that was decided by only seventeen

votes).

More importantly, the task of handwriting analysis by

laypersons, as it is contemplated under RSA 659:50, III, is

fraught with error. Dr. Mohammed opines that individuals will

naturally vary their signatures as a result of a number of

intentional and unintentional factors. To account for such

variations when conducting handwriting analysis, a person needs

sufficient knowledge, training, equipment, and experience. The

procedure under RSA 659:50, III, however, imposes none of these

safeguards. Among other things, Dr. Mohammed notes that neither

state law nor any guidance from state agencies sets forth

functional standards for comparing signatures and assessing

variations; election officials are not required to undergo any

training in handwriting analysis;9 moderators are not screened

for disabilities that may impair the ability to make such

comparisons; moderators are not required to have proper

magnification or lighting equipment; and moderators do not have

sufficient time to conduct each comparison. Dr. Mohammed’s

9 The Secretary of State does hold trainings at which the statute is discussed, but Deputy Secretary of State David Scanlan testified that these trainings do no more than reiterate the guidance set forth in the Election Procedure Manual. See doc. no. 49-3 at 77 (deposition of David Scanlan).

32 uncontroverted conclusion is that, as a result, election

officials are likely to make erroneous signature-comparisons.

In fact, laypersons are more likely “to wrongly determine that

authentic signatures are not genuine than to make the opposite

error.” Doc. no. 49-21 at 8.

The absence of functional standards is problematic, and the

likelihood of error resulting therefrom is only compounded by

the lack of meaningful review or oversight. There is no

feedback mechanism to ensure that moderators are applying

appropriate standards: neither voters nor the general public may

object to a determination; there is no appeal or review process;

and the Secretary of State does not regularly monitor rates of

rejection to ensure that moderators are properly applying RSA

659:50, III. Furthermore, the absence of direct notice to

affected voters is not only troubling in itself, see Gorman v.

Univ. of Rhode Island, 837 F.2d 7, 12 (1st Cir. 1988) (stating

that notice is one of the “essential requisites of procedural

due process”), it also impairs voters’ ability to monitor the

conduct of moderators. In law and in practice, the ultimate

determination is left to the sole discretion of the moderator

and is almost entirely insulated from meaningful scrutiny. As

Dr. Mohammed’s undisputed conclusions establish, that total

reliance on untrained laypersons entails tangible risks. RSA

659:50, III is thus a far cry from the procedure upheld in

33 Lemons, where the public could object to determinations and

there were multiple layers of review. Lemons, 538 F.3d at 1104.

It cannot be emphasized enough that the consequence of a

moderator’s decision—disenfranchisement—is irremediable. See

Zessar, 2006 WL 642646, at *8-9. The one caveat is the

procedure by which moderators evaluate extrinsic evidence to

determine whether a ballot should be accepted notwithstanding a

signature mismatch. But the evidence before the court shows

that this safety valve as it currently exists is haphazard at

best, since it is limited to the personal knowledge of, and

information immediately available to, election officials. The

instance where a moderator confirmed a rejection based on an

assistant’s knowledge of the voter’s signature, which she had

seen on medical documents, is illustrative.

Defendants counter that the risk of rejection will be

significantly lower in future elections because the new absentee

ballot application and affidavit envelope provide notice to the

voter that the signatures must match. In support of this

conclusion, they rely on Dr. Mohammed’s analysis of signature

styles in the 2016 General Election, which shows that 94 of the

rejected ballots had signatures with different styles.

Defendants argue that the new forms will “put voters on notice

that they must use the same signature style when signing each

34 document.” Doc. no. 54 at 22. This is beside the point,

however, because even excluding those 94 ballots, it still means

that dozens, if not hundreds, of rejected voters used the same

signature style and were still rejected in the 2016 General

Election. Nor does mere notice ameliorate any of the problems

identified by Dr. Mohammed that contribute to the risk of

erroneous deprivation. The natural variations in a person’s

handwriting—many of which are unintentional or uncontrollable,

like mental or physical condition—when combined with the absence

of functional standards, training, review, and oversight, create

a tangible risk of erroneous deprivation. Cf. League of United

Latin Am. Citizens of Iowa v. Pate, No. CVCV056403 (Iowa Dist.

Ct. July 24, 2018), available at doc. no. 71-1 at 18 (stating

that “there is potential for erroneous determinations of a

mismatch” under Iowa signature-match requirement for absentee

ballots, where election officials had “unbridled discretion to

reject ballots based on signatures they find do not match,” but

did not have “official guidance or handwriting expertise”),

aff’d in part, No. 18-1276 (Iowa Aug. 10, 2018), available at

doc. no. 71-2 (affirming temporary injunction of Iowa signature-

match requirement based on Iowa Constitution).

On the other hand, additional procedures would provide a

tangible benefit. Plaintiffs point out that the absentee-ballot

35 application already provides sections to allow a voter to submit

her phone number and email address. They contend that a

procedure whereby a moderator simply reaches out to the voter in

one form or another would be of great value. The court agrees.

As defendants stated at the hearing, moderators already

engage in a process of considering extrinsic evidence to, in

defense counsel’s words, “salvage” a ballot that could otherwise

be rejected. Necessarily, the premise of such a process is that

the consideration of extrinsic evidence can be useful in

determining whether the same person executed both the affidavit

envelope and application. Plaintiffs seek no more than to open

up that process to allow for consideration of evidence from the

best source—the voter.10 To be sure, it may not be a perfect

solution. Because many absentee voters are voting by absentee

ballot due to work, religious commitment, or disability, they

may not be available at the time the moderator is reviewing the

10 Defendants argue that a phone call would be inadequate because a moderator would not be able to verify a voter’s identity over the phone. In making that argument, defendants move the goalposts. In its current form, RSA 659:50, III does not verify a voter’s identity. Rather, its purpose is to ensure that the same person signs both the application and affidavit envelope; the signatures are not otherwise cross-referenced with a genuine exemplar of the voter’s signature. Regardless, defendants’ contention falls flat because they themselves assert that moderators may disregard mismatched signatures on the basis of other extrinsic evidence. Plaintiffs’ suggested procedures do no more than enhance that process.

36 signatures. Some may not be reachable by phone, and others may

not have access to email. But with proper notice to voters that

they may be contacted, a phone call or similar measure would

make the process a more constructive exercise. As it stands

currently, moderators consider limited and far less probative

extrinsic evidence. In addition, there is evidence in the

record that moderators consider evidence submitted with the

affidavit envelope in deciding whether to accept an absentee

ballot.11 That could provide an option to absentee voters who

know they will be unreachable on Election Day and wish to ensure

that their ballots will be accepted.

11For example, one section of the 2016 Election Procedure Manual describes the procedures that should be taken if a voter has a physical disability that prevents the voter from signing her name:

The best practice would be for the clerk to appoint someone neutral to take the absentee ballot to the voter and to verify that the stamped name is legitimate as the voter’s signature. The clerk’s appointee should countersign both the application and the affidavit envelope next to the stamped signature or submit a written and notarized statement to accompany the sealed affidavit envelope verifying that the voter himself or herself caused the ballot to be marked and the affidavit to be stamped with the voter’s signature.

Doc. no. 54-9 at 115 (emphasis added); see also doc. no. 49-3 at 104 (deposition of David Scanlan) (stating that, prior to enactment of exemption to RSA 659:50, III, if a disabled voter needed assistance to complete her affidavit envelope, the assistant should have made a notation on the envelope “that the voter was unable to sign the ballot and a brief explanation as to why and then submit that to the moderator”).

37 In short, based on the undisputed facts in the record,

“[i]t is apparent that the risk of erroneous deprivation of the

protected interest in absentee voting is not enormous, but the

probable value of an additional procedure is likewise great in

that it serves to protect the fundamental right to vote.”

Zessar, 2006 WL 642646, at *9.

c. Government’s Interests

The third factor involves consideration of the government’s

interests, which may include “the function involved and the

fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.” Mathews, 424

U.S. at 335. Defendants argue that RSA 659:50, III furthers the

State’s interest in preventing voter fraud and protecting public

confidence in the integrity of the electoral process. Further,

defendants contend that, because the New Hampshire Constitution

requires that all votes be counted on Election Day, it would be

“extremely burdensome” to require moderators “to seek out and

verify the identity of hundreds of absentee voters.” Doc. no.

54 at 20.

The court agrees that the State has legitimate interests in

preventing voter fraud and protecting public confidence in

elections. See Crawford v. Marion Cty. Election Bd., 553 U.S.

181, 194-97 (2008). That being said, in comparison to the two

38 instances of absentee-voter fraud that defendants cite as

support, one in the 2012 General Election and the other in the

2016 General Election, hundreds of voters (approximately 740 by

plaintiffs’ estimate) were disenfranchised under RSA 659:50, III

in the 2012, 2014, and 2016 General Elections.12 See doc. no.

48-1 at 21-22. Furthermore, plaintiffs point out that neither

instance of absentee-voter fraud was uncovered through the

signature-matching process.

In any case, the court fails to see how additional

procedures would harm these interests. Moderators already

consider limited forms of extrinsic evidence. Additional

procedures would simply allow for more probative extrinsic

evidence to be considered. Thus, if anything, additional

procedures further the State’s interest in preventing voter

fraud while ensuring that qualified voters are not wrongly

disenfranchised. See Fla. Democratic Party v. Detzner, No.

4:16cv607, 2016 WL 6090943, at *7 (N.D. Fla. Oct. 10, 2016)

(“[L]etting mismatched-signature voters cure their vote by

12In discussing the existence of absentee voter fraud, defendants also state that “the signature match process prevented at least 6 ballots from being cast that were signed by a person with a different name than the person who had requested the ballot.” Doc. no. 54 at 26. However, RSA 659:50, IV would appear to have required rejection of those ballots regardless of the signature-match requirement. See RSA 659:50, IV (requiring that the “signatures appear to be the signatures of a duly qualified voter who has not voted at the election”).

39 proving their identity further prevents voter fraud—it allows

supervisors of elections to confirm the identity of that voter

before their vote is counted.”). Likewise, improving the

currently opaque, unreviewable process by which moderators

compare signatures and consider extrinsic evidence would only

serve to enhance voter confidence in elections. Two of the

plaintiffs have expressed their anger and frustration at the

treatment of their votes under the current system. See doc. no.

48-2 at 2-3; doc. no. 48-3 at 3.

Next, contrary to defendants’ argument, plaintiffs’

proposed procedures would not entail significant administrative

burdens. Moderators already engage in a practice of considering

extrinsic evidence before rejecting a ballot due to a signature

mismatch. Consequently, this is a case not of foisting wholly

novel procedures on state election officials, but of simply

refining an existing one to allow voters to participate and to

ensure that the process operates with basic fairness.

While the current procedure would need to be expanded so

that moderators could reach out to voters, no individual

district is likely to be materially impacted. In the 2016

General Election, for example, 74% of polling places would not

have been impacted at all, because they did not reject any

ballots due to a signature mismatch. Only 5 of New Hampshire’s

40 318 polling places had ten or more such rejections. That

procedures already exist which could be readily extended to

provide basic guarantees of due process to voters militates

against defendants’ argument. See Detzner, 2016 WL 6090943, at

*7 (finding statute requiring rejection of absentee ballot based

on signature mismatch unconstitutional, where, among other

things, voters who failed to sign their ballot received

opportunity to cure, but voters whose signatures did not match

received no such opportunity); La Follette, doc. no. 49-4, at 4

(same).

Defendants respond that the analysis is not so simple.

They posit that, “[i]f plaintiffs’ argument was extended to its

logical conclusion, . . . then notice and an opportunity to cure

could be required for every absentee ballot rejected for any

reason,” further burdening moderators. Doc. no. 66 at 5. The

court is not persuaded. The court’s conclusion rests on a

careful, context-sensitive balancing of the Mathews factors.

See, e.g., Mathews, 424 U.S. at 334 (“(D)ue process is flexible

and calls for such procedural protections as the particular

situation demands.”). The need for additional process with

respect to RSA 659:50, III does not inevitably lead to the

conclusion that other reasons for rejection will demand similar

process.

41 Defendants make two final arguments that merit only brief

comment. First, on the basis of their statistical evidence

allegedly showing the success of their trainings, defendants

argue that at most moderators merely applied the statute

unconstitutionally in 2016. They argue that the proper remedy

would be to require them to conduct additional training for

those moderators who have higher rejection rates. The court is

not persuaded. Defendants’ statistical evidence is insufficient

for the reasons articulated by plaintiffs in their briefing.

Furthermore, additional training would not be a useful exercise,

since defendants merely reiterate the limited guidance set forth

in the Election Procedure Manual. See note 9, supra.

Second, defendants argue that plaintiffs cannot succeed on

a facial challenge because they do not dispute that the absentee

ballots of some voters—specifically, those who (1) omit

signatures, (2) use the wrong name on a document, or (3) use a

digital signature—were correctly rejected. But “[t]he proper

focus of the constitutional inquiry is the group for whom the

law is a restriction, not the group for whom the law is

irrelevant.” City of Los Angeles, California v. Patel, 135 S.

Ct. 2443, 2451 (2015). Voters in those categories would be

rejected regardless of RSA 659:50, III, as they would fail to

meet independent requirements of RSA 659:50. See RSA 659:50, II

42 (requiring that the affidavit be properly executed); RSA 659:50,

IV (requiring that the signatures appear to be the signatures of

a duly qualified voter). For the same reason, defendants are

incorrect when they argue that striking down RSA 659:50, III

would prevent moderators from rejecting ballots that are

unsigned or signed by a person with a different name than the

d. Conclusion

“Procedural due process guarantees fair procedure, not

perfect, error-free determinations.” Aurelio v. R.I. Dep’t of

Admin., Div. of Motor Vehicles, 985 F. Supp. 48, 56 (D.R.I.

1997) (internal quotation marks omitted). One could, by taking

in isolation various facets of the current process, conclude

that RSA 659:50, III passes constitutional muster. But taken as

a whole, and in light of the fundamental importance of the right

to vote, the current process for rejecting voters due to a

signature mismatch fails to guarantee basic fairness. The

infirmity with the statute begins with vesting moderators with

sole, unreviewable discretion to reject ballots due to a

signature mismatch. Such discretion becomes constitutionally

intolerable once other factors are taken into account: the

natural variations in voters’ signatures combined with the

absence of training and functional standards on handwriting

43 analysis, and the lack of any review process or compliance

measures. And there is an easy fix—an existing procedure that,

with minor refinement, could reduce the risk that qualified

voters are wrongly disenfranchised and bolster the State’s

interests in preventing voter fraud and safeguarding voter

confidence in elections.

Therefore, in light of the undisputed, material facts in

the record, plaintiffs are entitled to summary judgment on their

procedural due process claim. The court grants plaintiffs’

request for declaratory relief insofar as RSA 659:50, III is

unconstitutional under the Fourteenth Amendment of the United

States Constitution.

The court also grants plaintiffs’ request for permanent

injunctive relief. Outside of their arguments on the merits,

defendants do not argue that the elements for a permanent

injunction are not satisfied. See Esso Standard Oil Co. v.

López-Freytes, 522 F.3d 136, 148 (1st Cir. 2008) (listing

elements for permanent injunction). The court concludes that

plaintiffs have demonstrated an entitlement to permanent

injunctive relief. Because “a successful facial attack means

the statute is wholly invalid and cannot be applied to anyone,”

Ezell, 651 F.3d at 698, the court enjoins defendants from

enforcing RSA 659:50, III. Although the enforcement of the

44 provision falls primarily on local election officials, i.e.,

nonparties, the court is confident that the Secretary of State

will take appropriate steps to ensure that this injunction is

enforced.

II. Remaining Claims (Counts II, III, IV)

Having resolved Count I in plaintiffs’ favor, the court

declines to go further and address plaintiffs’ remaining claims.

This is because plaintiffs are afforded complete relief by

virtue of their success on their procedural due process claim:

they will receive the declaratory relief they request and

corresponding injunctive relief.

This is not to say that plaintiffs’ remaining

constitutional claims are “moot” in the technical sense. A case

does not become moot for purposes of Article III merely because

a court finds that the plaintiff is entitled to relief under one

of a number of alternative theories. See Novella v. Westchester

Cty., 661 F.3d 128, 149 (2d Cir. 2011) (“[I]t is cases rather

than reasons that become moot with the meaning of Article III.”

(internal quotation marks omitted)); Air Line Pilots Ass’n,

Int’l v. UAL Corp., 897 F.2d 1394, 1397 (7th Cir. 1990)

(“Whether a court gives one or ten grounds for its result is not

a question to which Article III prescribes an answer.”). But

courts also use the term “moot” to “refer to an issue that need

45 not be decided in light of the resolution in the same opinion of

another issue.” UAL Corp., 897 F.2d at 1397. The decision to

reach or avoid an unnecessary issue falls within the court’s

discretion, and will depend on the circumstances presented. See

Novella, 661 F.3d at 149; Clark v. Dep’t of Army, 997 F.2d 1466,

1470 (Fed. Cir. 1993), superseded by statute on other grounds as

recognized in Kewley v. Dep’t of Health & Human Servs., 153 F.3d

1357, 1361-62 (Fed. Cir. 1998). “Courts recognize that it may

be valuable to decide alternative grounds, even though not all

are necessary, and also understand that there may be excellent

reasons to avoid alternative grounds.” 13B Charles Alan Wright,

Arthur R. Miller & Edward H. Cooper, Federal Practice &

Procedure § 3533 (3d ed.) (collecting cases).

In this case, the court concludes that it is neither

necessary nor prudent to reach plaintiffs’ other constitutional

claims. In Count II, plaintiffs target the same basic defects

in the statute as they do in Count I, albeit under the auspices

of a different test. And although Count III presents a distinct

question, as it rests on the alleged lack of uniformity wrought

by RSA 659:50, III, it raises sensitive legal questions,

including the applicability of Bush v. Gore to this context, the

standard by which such a claim should be evaluated on a facial

challenge, etc. While these claims may not be moot under

Article III, the same considerations undergirding the

46 constitutional rule—judicial economy and the reluctance to opine

on abstract propositions—support the court’s decision here. See

Thomas R.W. v. Mass. Dep’t of Educ., 130 F.3d 477, 479 (1st Cir.

1997); Soto v. City of Cambridge, 193 F. Supp. 3d 61, 69 (D.

Mass. 2016).

By contrast, plaintiffs’ ADA claim is moot under Article

III. As a result of the 2017 amendments to RSA 659:50, III, an

absentee voter who receives assistance “because the voter is

blind or has a disability” is exempt from the requirement. RSA

659:50, III. In her deposition, Ms. Saucedo testified that she

will “definitely” rely on her husband’s assistance when she

votes in the future. Doc. no. 49-5 at 7 (brackets omitted).

Therefore, Ms. Saucedo—the only plaintiff with a disability—is

and will be exempt from RSA 659:50, III, and consequently no

longer has a legally cognizable interest in the outcome of the

ADA claim. See Horizon Bank & Trust Co. v. Massachusetts, 391

F.3d 48, 53 (1st Cir. 2004) (“A case is moot when the issues are

no longer live or the parties no longer have a legally

cognizable interest in the outcome.”). Put differently, because

the court can no longer give any effectual relief to Ms. Saucedo

on this claim, the claim is moot and the court may not entertain

it. See id.; cf. Steir v. Girl Scouts of the USA, 383 F.3d 7,

16 (1st Cir. 2004) (“A federal court may not entertain a claim

47 by any or all citizens who no more than assert that certain

practices of officials are unlawful.” (internal brackets

omitted)).

For these reasons, the court does not address Counts II,

III, and IV.

CONCLUSION

For the reasons stated herein, plaintiffs’ motion for

summary judgment (doc. no. 48) is granted with respect to Count

I, and is otherwise denied. Summary judgment on Counts II and

III is denied in light of the complete relief afforded to

plaintiffs on Count I, and summary judgment on Count IV is

denied because the claim is moot. Counts II, III, and IV are

therefore dismissed without prejudice. Defendants’ cross-motion

for summary judgment (doc. no. 52) is granted on Count IV to the

extent that Count IV is dismissed without prejudice as moot, and

is otherwise denied. Plaintiffs’ motion to strike (doc. no. 56)

is denied.

As to relief under Count I, the court grants plaintiffs’

unconstitutional under the Fourteenth Amendment of the United

States Constitution. The court also grants plaintiffs’ request

48 for permanent injunctive relief, and defendants are hereby

permanently enjoined from enforcing RSA 659:50, III.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

August 14, 2018

cc: Counsel of Record