WASHINGTON — A federal appeals judge on Thursday accused her colleagues and other judges across the country of sanctioning “a systematic effort to suppress voter turnout and undermine the right to vote.”
Judge Karen Nelson Moore of the US Court of Appeals for the 6th Circuit wrote a scathing dissent in a case about how Tennessee handles absentee voting — she disagreed with her two colleagues in the majority who rejected a challenge to the state’s signature match rules for mail-in ballots. But Moore’s dissent went further, criticizing judges across the US who have sided with states seeking to limit mail-in voting this year.
Moore called the Tennessee decision “another drop in the bucket that is the degradation of the right to vote in this country,” and then cited examples of other decisions this year that affected voting in Florida and Wisconsin.
“Hiding behind closed courthouse doors does not change the fact that ruling by ruling, many courts are chipping away at votes that ought to be counted. It is a disgrace to the federal courts’ foundational role in ensuring democracy’s function, and a betrayal to the persons that wish to participate in it fully,” Moore wrote.
Moore’s dissent came as judges across the country are racing to resolve a flood of lawsuits this year challenging how states are handling voting during the coronavirus pandemic. President Donald Trump’s campaign, the Republican National Committee, and state Republican party organizations have argued in favor of states that place restrictions on mail-in voting, relying on unfounded and debunked claims of voter fraud, while their Democratic counterparts have argued in favor of expanding the practice given the health risks of in-person contact.
In Tennessee, voting rights groups filed a lawsuit challenging a variety of state rules that limit absentee voting, but the decision released by the 6th Circuit on Thursday was only about the signature match requirement. Under Tennessee’s election laws, a county election official must compare the signature on the envelope of an absentee ballot with the signature on file for that voter’s registration record. If they don’t match, the ballot gets tossed out.
Election officials notify Tennessee voters when their ballots are rejected because the signatures don’t match, and those voters can either submit a new absentee ballot or vote in person. Voting rights groups argued that that process was unconstitutional, and asked for a court order requiring the state to give voters a chance to fix ballots with inconsistent signatures before rejecting those ballots altogether.
A federal district judge in Tennessee denied the injunction request. Sixth Circuit Judge Julia Smith Gibbons, joined by Judge Chad Readler, wrote that the voting rights groups that sued lacked standing to bring the case because they failed to show there was a “threat of actual, imminent harm.”
Gibbons wrote that the challengers didn’t present any “official data” to show that absentee ballots would be wrongly rejected based on signature match problems. Election officials went through training about how to evaluate signatures, and were directed to “accept all but the most obviously inconsistent signatures,” the judge wrote. If a ballot is rejected, Gibbons wrote that officials “go to great lengths” to quickly notify voters, who can then send another absentee ballot or cast a ballot in person.
Moore wrote that the challengers had cited data about previous rates of ballot rejection in Tennessee and presented evidence from an expert that many rejections were likely to be faulty because of “inadequate training” for election officials. She wrote that the voting rights groups had presented enough evidence that voters would be affected by the signature match rules and that gave the groups standing to sue. Moore explained that she would also find the groups had standing to sue based on the resources they had to redirect to educate voters about the signature requirement.
On the merits of the constitutional challenge to Tennessee’s signature match rules, Moore wrote that she would find that voters’ rights were violated by the lack of notice and chance to “cure” a ballot with a signature issue before that ballot is rejected. The judge wrote that there was no guarantee a voter would be notified that their ballot was tossed out in time to request another one.
“As a result of today’s decision, Tennessee is free to—and will—disenfranchise hundreds, if not thousands of its citizens who cast their votes absentee by mail. Masking today’s outcome in standing doctrine obscures that result, but that makes it all the more disquieting,” Moore wrote. “I will not be a party to this passive sanctioning of disenfranchisement. I dissent.”
A spokesperson for the Tennessee secretary of state’s office did not immediately return a request for comment.