Supreme Court weighs lawsuit challenging Washington’s signature verification system

The Wash­ing­ton State Supreme Court should imme­di­ate­ly take up and toss out a flawed sig­na­ture ver­i­fi­ca­tion sys­tem before it dis­en­fran­chis­es thou­sands of vot­ers in the upcom­ing pri­ma­ry and gen­er­al elec­tions, coun­sel for plain­tiffs in a legal chal­lenge argued before a high court com­mis­sion­er on Wednesday.

“With­out direct review, tens of thou­sands of ful­ly qual­i­fied vot­ers will be dis­en­fran­chised for noth­ing more than their pen­man­ship,” argued attor­ney Kevin Hamil­ton, rep­re­sent­ing three groups who have sued the Wash­ing­ton Sec­re­tary of State and King Coun­ty Elections.

The law­suit cur­rent­ly rests before the state court of appeals. It has been vig­or­ous­ly defend­ed, with Sec­re­tary of State Steve Hobbs argu­ing that ver­i­fi­ca­tion is the linch­pin of cred­i­bil­i­ty in our state’s vote-by-mail system.

The state Repub­li­can Par­ty and Repub­li­can Nation­al Com­mit­tee, like­wise, have stepped for­ward to argue that if the legal chal­lenge is suc­cess­ful, “it will only dimin­ish con­fi­dence in our elec­tions system.”

While red states move to cre­ate dif­fi­cul­ties, par­tic­u­lar­ly to vot­ing by mail or drop­ping off bal­lots, Wash­ing­ton has enact­ed incre­men­tal reforms designed to boost par­tic­i­pa­tion. The most recent, a cause cham­pi­oned by the North­west Pro­gres­sive Insti­tute, is mov­ing local elec­tions to even-num­bered years.

Sig­na­ture ver­i­fi­ca­tion is one notable remain­ing impediment.

The case for its removal is root­ed in fair­ness, as out­lined by Hamil­ton dur­ing a recent appel­late court argument:

• A total of 170,000 bal­lots have been reject­ed over the last sev­en years, with thou­sands more cit­i­zens sub­ject­ed to the “undue bur­dens” of hav­ing to “cure” their bal­lots in order to have them counted.
• The rejec­tion rate falls heav­i­est among younger vot­ers. A statewide audit found a rate of 2.68 per­cent among vot­ers aged 18 to 21, and 2.04 per­cent in the 22 to 25 age cat­e­gories. The state’s high­est rates of reject­ed bal­lots are from Franklin and Adams Coun­ties, both with a high Lati­no population.
• Minori­ties are more like­ly to have their sig­na­tures reject­ed. The rejec­tion rates were 2.49% for African Amer­i­cans, 1.59% for Native Amer­i­cans and 1.57% for Lati­no vot­ers. The com­pa­ra­ble fig­ure for white vot­ers was 0.63%.
• Sig­na­tures change due to age and ill­ness. At a neigh­bor­hood break­fast ear­li­er this year, I lis­tened to a retired attor­ney’s lucid analy­sis of ex-Pres­i­dent Trump’s bid to block ver­i­fi­ca­tion of 2020 elec­toral votes. How­ev­er, the man’s hands shook as he spoke. It is entire­ly pos­si­ble his sig­na­ture could be flagged.

The cur­rent ver­i­fi­ca­tion regime is being chal­lenged by a trio of plain­tiffs: the VetVoice Foun­da­tion, the Wash­ing­ton Bus and El Cen­tro de la Raza.

The plain­tiffs have pro­duced six­ty sworn dec­la­ra­tions from per­sons whose bal­lots, or those of fam­i­ly mem­bers, were legal­ly signed but rejected.

The legal defense, as argued by assis­tant attor­ney gen­er­al William McGin­ty, is that vot­ers have up to twen­ty days to “cure” their reject­ed bal­lots, and “mul­ti­ple and easy ways” of so doing (e.g. using the last four dig­its of one’s Social Secu­ri­ty num­ber). “We need a way to prove to vot­ers of Wash­ing­ton that elec­tions are pure,” he told the appel­late panel.

The state’s legal brief puts it blunt­ly: “It (ver­i­fi­ca­tion) allows the broad­est pos­si­ble access while ensur­ing that only reg­is­tered vot­ers are able to cast their bal­lots and pro­mot­ing pub­lic con­fi­dence that vote by mail is safe and secure.”

But, argued Hamil­ton, “Vot­ers are inno­cent until proven guilty, not the oth­er way around.” Evi­dence of fraud is almost non-exis­tent, despite the fan­ning of sus­pi­cions by the far-right. Out of 56,000 bal­lots reject­ed in King, Sno­homish and Clark Coun­ties dur­ing the 2020 and 2022 elec­tion cycles, just a tiny frac­tion of one per­cent mer­it­ed refer­ral to coun­ty prosecutors.

While it isn’t pos­si­ble to know the future, the legal chal­lenge to sig­na­ture ver­i­fi­ca­tion has the ben­e­fit of a tailwind.

For instance, the Wash­ing­ton State Con­sti­tu­tion lays out the right to vote more fun­da­men­tal­ly than the Unit­ed States Constitution.

Hamil­ton, with the Perkins Coie law firm, has a nation­al and statewide record for win­ning elec­tion cas­es: He and Jen­ny Durkan were lead coun­sel in defend­ing Gov­er­nor Chris Gre­goire’s even­tu­al 133-vote vic­to­ry in 2004. Hamil­ton suc­cess­ful­ly defend­ed Joe Biden’s 11,000-vote win in Geor­gia three years ago.

The case for fast track­ing is obvi­ous. The state has a spring pres­i­den­tial pri­ma­ry. Vot­ers will cull the field for open posts of gov­er­nor, attor­ney gen­er­al and state land com­mis­sion­er in the August Top Two elec­tion. And the future of our democ­ra­cy itself is at stake in November.