A federal appeals court has upheld the Tennessee law requiring the verification of signatures on absentee ballots.

The Thursday, Oct. 15, ruling is significant because of the increased number of absentee ballots expected in the presidential general election.

Federal court allows absentee voting by mail for new voters

The role signature verification plays in the procedures for counting those votes on Election Day is also a crucial factor in how long it could take to count all the votes. The early voting period is already underway and absentee ballots completed by voters are already being received by election commissions across the state.

The challenge of the verification law was filed by the Memphis branch of the A. Philip Randolph Institute and other organizations including the Memphis and West Tennessee AFL-CIO Labor Council and the Tennessee State Conference of the NAACP.

It is one in a series of five lawsuits by the plaintiffs challenging the eligibility requirements for voting absentee in Tennessee, the state’s requirement that absentee ballots can only be sent to voters who specifically request them and the state law that bars newly registered voters from voting absentee and instead requiring them to vote in person — either during the early voting period or on election day — for the first time.

A federal judge has ruled that the vote in person requirement for those newly registered cannot be enforced during the ongoing pandemic.

The plaintiffs in the lawsuit challenged the signature verification process on the grounds that it violates constitutional rights to due process and to vote. They sought a preliminary injunction to bar the signature verification process, which was denied by the district court in August.

Absentee votes will complicate election night returns

Attorneys for the state contended in the case that the procedure is a “minimal burden” on the right to vote balanced by the state’s “interest in preventing election fraud.”

The appeals court ruled that the process of notifying someone in the event their signature is rejected means there isn’t a violation of constitutional rights and that the plaintiffs demonstrated no irreparable harm in keeping the requirement in place.

“If a ballot is improperly rejected and the voter has no ability to cure that rejection, that might amount to a restriction of a constitutional right,” federal appeals court Judge Julia Gibbons of Memphis wrote in the majority opinion. “The plaintiffs have not presented any evidence that demonstrates that members of their organizations are likely to have their ballots erroneously rejected under the current procedures.

“And the plaintiffs have not demonstrated that anyone whose ballot may be erroneously rejected will ultimately be unable to cast a ballot, either absentee or by provisional ballot,” the opinion reads. “Therefore, there is no evidence that anyone’s constitutional rights are likely to be infringed by the Tennessee procedures.”

First batch of absentee ballots in the mail

The appeal was heard by a three-judge panel of the appeals court that included Chad A. Readler and Karen Nelson Moore.

Moore dissented.

“Make no mistake: Today’s majority opinion is yet another chapter in the concentrated effort to restrict the vote,” Moore wrote in the opening line of her dissenting opinion.

“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. … I will not be a party to this passive sanctioning of disenfranchisement.”

Shelby County Elections Administrator Linda Phillips tentatively plans to do the signature verification at the election commission’s Shelby Farms operations center when the absentee vote count starts on the Nov. 3 Election Day. From there, those ballots with verified signatures would go to a group of 100 counting boards assembled at FedExForum.

The plan is tentative and depends on whether the ballots can be scanned at Shelby Farms and seen by the counting boards Downtown.

On The Daily Memphian Politics Podcast, Phillips said if the election commission were to get an influx of 3,000 or so completed absentee ballots with the first mail delivery of election day about 11:30 a.m., just the signature verification process would likely take into the early evening hours.

State law requires that the county elections administrator must verify the signature of voters when they request a ballot. It’s a comparison with the signature on a voter’s registration form.

As part of completing the mail-in ballot, a voter then signs an affidavit that is the outer flap on the ballot that is then put into another envelope for mailing.

First balloting in presidential election begins this week

That signature check by the administrator and her staff is the first step in sending the absentee ballots to a two-person team — one Democrat and one Republican — known as a “counting board.”

The administrator or her staff opens the outer envelope of the ballot to see the affidavit and its signature. If the signature is verified, the ballot is then opened and counted.

And by the training from the state to those verifying signatures, the standard is to accept “all but the most obvious of inconsistent signatures” — as quoted in the court ruling.

A signature is only rejected if three officials, including the administrator, judge it to be inconsistent with the signature on file.

And a voter notified in writing that his or her signature was not verified can resubmit an absentee ballot or cast a provisional ballot in person.