U.S. District Court District of New Jersey [LIVE] (Trenton) CIVIL DOCKET FOR CASE #: 3:20-cv-05990-MAS-LHG

LEAGUE OF WOMEN VOTERS OF NEW JERSEY et al v. WAY Assigned to: Judge Michael A. Shipp Referred to: Magistrate Judge Lois H. Goodman Cause: 42:1983 Civil Rights Act

Date Filed: 05/18/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Plaintiff
LEAGUE OF WOMEN VOTERS OF NEW JERSEY

represented by HENAL PATEL NEW JERSEY INSTITUTE FOR SOCIAL JUSTICE 60 PARK PLACE SUITE 511 NEWARK, NJ 07102 973-755-9897 Fax: 973-624-0704 Email: hpatel@njisj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

RYAN PAUL HAYGOOD New Jersey Institute for Social Justice 60 Park Place Ste 511 Newark, NJ 07102 917-400-4027 Email: tbrown@njisj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

ALANNA GAYLE KAUFMAN KAUFMAN LIEB LEBOWITZ & FRICK LLP 10 E. 40th STREET SUITE 3307 NEW YORK, NY 10016 212-660-2332 Email: akaufman@kllf-law.com ATTORNEY TO BE NOTICED

Plaintiff NAACP NEW JERSEY STATE CONFERENCE
Plaintiff WILLIAM M. RIGGS
Plaintiff SHAMISA ZVOMA Plaintiff DEBORAH J. RISKA V. Defendant

represented by HENAL PATEL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RYAN PAUL HAYGOOD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ALANNA GAYLE KAUFMAN (See above for address) ATTORNEY TO BE NOTICED
represented by HENAL PATEL (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
RYAN PAUL HAYGOOD (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ALANNA GAYLE KAUFMAN (See above for address) ATTORNEY TO BE NOTICED
represented by ALANNA GAYLE KAUFMAN (See above for address) ATTORNEY TO BE NOTICED
represented by ALANNA GAYLE KAUFMAN (See above for address) ATTORNEY TO BE NOTICED

TAHESHA WAY IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE OF THE STATE OF NEW JERSEY

represented by SUSAN MARIE SCOTT OFFICE OF THE NJ ATTORNEY GENERAL RJ HUGHES JUSTICE COMPLEX PO BOX 112 TRENTON, NJ 08625 (609) 376-2955 Fax: 6096338702 Email: susan.scott@law.njoag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

05/18/ 2020

1 COMPLAINT against TAHESHA WAY ( Filing and Admin fee $ 400 receipt number ANJDC-10824604), filed by LEAGUE OF WOMEN VOTERS OF NEW JERSEY, WILLIAM M. RIGGS, NAACP NEW JERSEY STATE CONFERENCE. (Attachments: # 1 Civil Cover Sheet)(KAUFMAN, ALANNA) (Entered: 05/18/2020)

05/18/ 2020

2 Request for Summons to be Issued by LEAGUE OF WOMEN VOTERS OF NEW JERSEY, WILLIAM M. RIGGS, NAACP NEW JERSEY STATE CONFERENCE as to TAHESHA WAY. (KAUFMAN, ALANNA) (Entered: 05/18/2020)

05/18/ 2020

Judge Michael A. Shipp and Magistrate Judge Lois H. Goodman added. (mg) (Entered: 05/19/2020)

05/19/ 3 SUMMONS ISSUED as to TAHESHA WAY. Attached is the official court

2020

Summons, please fill out Defendant and Plaintiffs attorney information and

serve. (mg) (Entered: 05/19/2020)

05/19/ 2020

4 Corporate Disclosure Statement by LEAGUE OF WOMEN VOTERS OF NEW JERSEY identifying League of Women Voters of the United States; League of Women Voters Education Fund as Corporate Parent.. (KAUFMAN, ALANNA) (Entered: 05/19/2020)

05/19/ 2020

5 MOTION for Leave to Appear Pro Hac Vice by LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP NEW JERSEY STATE CONFERENCE, WILLIAM M. RIGGS. (Attachments: # 1 Certification Weiner, # 2 Certification Paikowsky, # 3 Certification Lang, # 4 Certification Doshi, # 5 Certification Lebowitz, # 6 Text of Proposed Order Weiner, # 7 Text of Proposed Order Paikowsky, # 8 Text of Proposed Order Lang, # 9 Text of Proposed Order Doshi,

# 10 Text of Proposed Order Lebowitz)(KAUFMAN, ALANNA) (Entered: 05/19/2020)

05/19/ 6 NOTICE of Appearance by HENAL PATEL on behalf of All Plaintiffs (PATEL,

2020

HENAL) (Entered: 05/19/2020)

05/19/ 7 Corporate Disclosure Statement by NAACP NEW JERSEY STATE

2020

CONFERENCE identifying NAACP as Corporate Parent.. (PATEL, HENAL)

(Entered: 05/19/2020)

05/20/ 8 MOTION for Leave to Appear Pro Hac Vice by All Plaintiffs. (Attachments:

2020

# 1 Certification McChristian, # 2 Text of Proposed Order McChristian)(PATEL,

HENAL) (Entered: 05/20/2020)

05/21/ 2020

9 SUMMONS Returned Executed by LEAGUE OF WOMEN VOTERS OF NEW JERSEY, WILLIAM M. RIGGS, NAACP NEW JERSEY STATE CONFERENCE. TAHESHA WAY served on 5/19/2020, answer due 6/9/2020. (KAUFMAN, ALANNA) (Entered: 05/21/2020)

05/21/ 2020

Set Deadlines as to 8 MOTION for Leave to Appear Pro Hac Vice , 5 MOTION for Leave to Appear Pro Hac Vice . Motion set for 6/15/2020 before Magistrate Judge Lois H. Goodman. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (abr) (Entered: 05/21/2020)

05/29/ 1 NOTICE of Appearance by RYAN PAUL HAYGOOD on behalf of All 2020 0 Plaintiffs (HAYGOOD, RYAN) (Entered: 05/29/2020)

06/03/ 2020

1 AMENDED COMPLAINT against TAHESHA WAY, filed by LEAGUE OF 1 WOMEN VOTERS OF NEW JERSEY, WILLIAM M. RIGGS, NAACP NEW
JERSEY STATE CONFERENCE, SHAMISA ZVOMA, DEBORAH J. RISKA.(KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2020

1 MOTION for Preliminary Injunction by LEAGUE OF WOMEN VOTERS OF 2 NEW JERSEY, NAACP NEW JERSEY STATE CONFERENCE, WILLIAM
M. RIGGS, DEBORAH J. RISKA, SHAMISA ZVOMA. (Attachments: # 1 Text of Proposed Order)(KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2020

1 BRIEF in Support filed by LEAGUE OF WOMEN VOTERS OF NEW 3 JERSEY, NAACP NEW JERSEY STATE CONFERENCE, WILLIAM M.
RIGGS, DEBORAH J. RISKA, SHAMISA ZVOMA re 12 MOTION for Preliminary Injunction (KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2020

1 DECLARATION of Linton A. Mohammed re 12 MOTION for Preliminary 4 Injunction by LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP
NEW JERSEY STATE CONFERENCE, WILLIAM M. RIGGS, DEBORAH J. RISKA, SHAMISA ZVOMA. (KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2020

1 DECLARATION of Dana Paikowsky re 12 MOTION for Preliminary 5 Injunction by LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP
NEW JERSEY STATE CONFERENCE, WILLIAM M. RIGGS, DEBORAH J. RISKA, SHAMISA ZVOMA. (Attachments: # 1 Exhibit 1 - Middlesex Vote-ByMail FAQ, # 2 Exhibit 2 - Monmouth Vote-By-Mail FAQ, # 3 Exhibit 3 - NJ Exec. Order 144, # 4 Exhibit 4 - ACLU of Florida Vote-By-Mail Report, # 5 Exhibit 5 - EAVS 2016 Data, # 6 Exhibit 6 - EAVS 2018 Data, # 7 Exhibit 7 - NJ COVID-19 Information Hub, # 8 Exhibit 8 - CDC Election Guidance, # 9 Exhibit 9 - NJ Exec. Order 105, # 10 Exhibit 10 - Morris County 2016 Voter Records, # 11 Exhibit 11 - Morris County 2018 Voter Records, # 12 Exhibit 12 NJ Sec. of State 2020 Election Information)(KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2020

1 DECLARATION of Jessica Burns re 12 MOTION for Preliminary Injunction by 6 LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP NEW JERSEY
STATE CONFERENCE, WILLIAM M. RIGGS, DEBORAH J. RISKA, SHAMISA ZVOMA. (KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2020

1 DECLARATION of Richard Smith re 12 MOTION for Preliminary 7 Injunction by LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP
NEW JERSEY STATE CONFERENCE, WILLIAM M. RIGGS, DEBORAH J. RISKA, SHAMISA ZVOMA. (KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2020

1 DECLARATION of William M. Riggs re 12 MOTION for Preliminary 8 Injunction by LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP
NEW JERSEY STATE CONFERENCE, WILLIAM M. RIGGS, DEBORAH J. RISKA, SHAMISA ZVOMA. (KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2020

1 DECLARATION of Shamisa Zvoma re 12 MOTION for Preliminary 9 Injunction by LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP
NEW JERSEY STATE CONFERENCE, WILLIAM M. RIGGS, DEBORAH J. RISKA, SHAMISA ZVOMA. (Attachments: # 1 Exhibit A - Ballot Rejection Letter)(KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2020

2 DECLARATION of Deborah J. Riska re 12 MOTION for Preliminary 0 Injunction by LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP
NEW JERSEY STATE CONFERENCE, WILLIAM M. RIGGS, DEBORAH J. RISKA, SHAMISA ZVOMA. (KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2 DECLARATION of Olivia Brinton re 12 MOTION for Preliminary 2020 1 Injunction by LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP
NEW JERSEY STATE CONFERENCE, WILLIAM M. RIGGS, DEBORAH J.

RISKA, SHAMISA ZVOMA. (Attachments: # 1 Exhibit A - Ballot Rejection Letter)(KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2020

2 DECLARATION of Anfal Muhammad-Jenkins re 12 MOTION for Preliminary 2 Injunction by LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP
NEW JERSEY STATE CONFERENCE, WILLIAM M. RIGGS, DEBORAH J. RISKA, SHAMISA ZVOMA. (Attachments: # 1 Exhibit A - Ballot Rejection Letter)(KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2020

2 DECLARATION of Sarah Katherine Cespedes re 12 MOTION for Preliminary 3 Injunction by LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP
NEW JERSEY STATE CONFERENCE, WILLIAM M. RIGGS, DEBORAH J. RISKA, SHAMISA ZVOMA. (Attachments: # 1 Exhibit A - Ballot Rejection Letter)(KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2020

2 DECLARATION of Belina Grill re 12 MOTION for Preliminary Injunction by 4 LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP NEW JERSEY
STATE CONFERENCE, WILLIAM M. RIGGS, DEBORAH J. RISKA, SHAMISA ZVOMA. (Attachments: # 1 Exhibit A - Ballot Rejection Letter)(KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2020

2 CERTIFICATE OF SERVICE by LEAGUE OF WOMEN VOTERS OF NEW 5 JERSEY, NAACP NEW JERSEY STATE CONFERENCE, WILLIAM M.
RIGGS, DEBORAH J. RISKA, SHAMISA ZVOMA re 16 Declaration, 12 MOTION for Preliminary Injunction , 19 Declaration, 21 Declaration, 11 Amended Complaint, 13 Brief in Support of Motion, 22 Declaration, 20 Declaration, 14 Declaration, 15 Declaration,,, 17 Dec laration, 23 Declaration, 24 Declaration, 18 Declaration (KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2 Letter from Plaintiffs' Counsel Re: Briefing Schedule for Preliminary Injunction 2020 6 Motion. (KAUFMAN, ALANNA) (Entered: 06/03/2020)

06/03/ 2020

2 TEXT ORDER: The Court is in receipt of Plaintiffs' Motion for Preliminary 7 Injunction. (ECF No. 12 .) On June 4, 2020, at 2:00 P.M., the Court will hold a
Telephone Conference in this matter. Dial-in instructions will be provided to all counsel of record. So Ordered by Judge Michael A. Shipp on 6/3/2020. (gxh) (Entered: 06/03/2020)

06/04/ 2020

2 Minute Entry for proceedings held before Judge Michael A. Shipp: Telephone 8 Conference held on 6/4/2020. A briefing schedule for the 12 Motion for
Preliminary Injunction filed by Plaintiffs will be set. Order setting a briefing schedule to be issued. (Court Reporter: CATHY FORD.) (gxh) (Entered: 06/04/2020)

06/04/ 2 NOTICE of Appearance by SUSAN MARIE SCOTT on behalf of TAHESHA 2020 9 WAY (SCOTT, SUSAN) (Entered: 06/04/2020)

06/05/ 2020

3 TEXT ORDER: This matter comes before the Court upon the parties' proposed 0 briefing schedule on Plaintiffs' Motion for Preliminary Injunction (ECF No. 12 ).
(ECF No. 26 .) Defendant's opposition to the Motion shall be filed on or before Monday, June 15, 2020. Plaintiffs' reply shall be filed on or before Thursday, June 18, 2020. Should the Court require oral argument on the Motion, the Court will enter an appropriate Order. So Ordered by Judge Michael A. Shipp on 6/5/2020. (gxh) (Entered: 06/05/2020)

06/08/ 2020

Set Deadlines as to 12 MOTION for Preliminary Injunction . Motion set for 7/6/2020 before Judge Michael A. Shipp. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (abr) (Entered: 06/08/2020)

06/15/ 3 Letter from Deputy Attorney General Susan M. Scott seeking relief from the 2020 1 Court's June 5, 2020 Text Order re 30 Order,,. (SCOTT, SUSAN) (Entered:
06/16/2020)

06/16/ 3 LETTER ORDER granting the parties request a brief adjournment of the briefing 2020 2 schedule. Signed by Judge Michael A. Shipp on 6/16/2020. (abr) (Entered:
06/16/2020)

06/16/ 3 Letter from Deputy Attorney General Susan M. Scott re 12 MOTION for 2020 3 Preliminary Injunction . (Attachments: # 1 Text of Proposed Order)(SCOTT,
SUSAN) (Entered: 06/16/2020)

06/17/ 3 STIPULATION AND ORDER granting 12 Motion for Preliminary Injunction. 2020 4 Signed by Judge Michael A. Shipp on 6/17/2020. (abr) (Entered: 06/17/2020)

07/08/ 2020

3 Letter from Deputy Attorney General Susan M. Scott requesting a 30-day 5 extension of time to answer, move or otherwise reply to Plaintiffs' Complaint
with consent of Plaintiffs re 11 Amended Complaint. (Attachments: # 1 Text of Proposed Order)(SCOTT, SUSAN) (Entered: 07/08/2020)

07/09/ 3 LETTER ORDER extending time to answer from 6/17/2020 to 7/17/2020. 2020 6 Signed by Magistrate Judge Lois H. Goodman on 7/9/2020. (abr) (Entered:
07/09/2020)

07/16/ 3 ORDER granting 5 Motion for Leave to Appear Pro Hac Vice as to Dana 2020 7 Paikowsky, Ravi Doshi, Danielle Lang, Rob Weiner, and David Lebowitz, Esqs.

Signed by Magistrate Judge Lois H. Goodman on 7/16/2020. (abr) (Entered: 07/16/2020)

07/16/ 3 ORDER granting 8 Motion for Leave to Appear Pro Hac Vice as to Andrea L. 2020 8 McChristian, Esq. Signed by Magistrate Judge Lois H. Goodman on 7/16/2020.
(abr ) (Entered: 07/16/2020)

07/16/ 3 Letter from Plaintiffs' Counsel Re: Stipulation and Order Extending Fee Motion 2020 9 and Answer Deadlines. (Attachments: # 1 Stipulation and Order)(KAUFMAN,
ALANNA) (Entered: 07/16/2020)

07/17/ 2020

4 STIPULATION AND ORDER that the time for Plaintiffs to see an award of 0 attorneys' fees and costs is hereby extended through and included 9/30/2020; The
time for Defendant to answer or otherwise move in response is extended through and including 9/30/2020. Signed by Judge Michael A. Shipp on 7/17/2020. (abr) (Entered: 07/17/2020)

07/23/ 2020

4 Letter from Deputy Attorney General Susan M. Scott with consent of Plaintiffs' 1 counsel for an amendment to the June 17, 2020 Stipulation and Order Granting
Preliminary Injunction re 34 Order on Motion for Preliminary Injunction. (Attachments: # 1 Text of Proposed Order)(SCOTT, SUSAN) (Entered: 07/23/2020)

07/23/ 2020

4 Letter from Deputy Attorney General enclosing CORRECT Proposed Order on 2 consent re 34 Order on Motion for Preliminary Injunction, 41 Letter,.
(Attachments: # 1 Text of Proposed Order CORRECTED)(SCOTT, SUSAN) (Entered: 07/23/2020)

07/24/ 4 Notice of Request by Pro Hac Vice David Lebowitz to receive Notices of 2020 3 Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number ANJDC-11117161.)
(KAUFMAN, ALANNA) (Entered: 07/24/2020)

07/27/ 2020

4 STIPULATION AND ORDER that the 7/17/2020 40 Stipulation and Order 4 Granting Preliminary Injunction is modified as follows herein for Camden,
Middlesex, Monmouth and Somerset County Boards of Elections. Signed by Judge Michael A. Shipp on 7/27/2020. (jem) (Entered: 07/27/2020)

07/28/ 2020

Pro Hac Vice fee as to Danielle Lang, Dana Paikowsky, Rob Weiner, Ravi Doshi: $ 600, receipt number CAM011535 (rss, ) (Entered: 07/28/2020)

 
 Case 3:20-cv-05990-MAS-LHG Document 33-1 Filed 06/16/20 Page 1 of 9 PageID: 337

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP NEW JERSEY STATE CONFERENCE, WILLIAM M. RIGGS, SHAMISA ZVOMA, and DEBORAH J. RISKA,
Plaintiffs,
v.

No. 20-cv-05990-MAS-LHG
STIPULATION AND ORDER GRANTING
PRELIMINARY INJUNCTION

TAHESHA WAY, in her official capacity as Secretary of the State of New Jersey,

Defendant.

WHEREAS, on May 18, 2020, Plaintiffs League of Women Voters of New Jersey, NAACP New Jersey State Conference, and William M. Riggs filed their Complaint, ECF No. 1, against Defendant Secretary Tahesha Way (“Defendant”), in her official capacity as Secretary of the State of New Jersey, alleging that New Jersey’s existing signature verification procedures for mail-in voting violate the First and Fourteenth Amendments of the United States Constitution; and
WHEREAS, on June 3, 2020, Plaintiffs League of Women Voters of New Jersey, NAACP New Jersey State Conference, William M. Riggs, Shamisa Zvoma, and Deborah J. Riska (collectively, “Plaintiffs”) filed their
1

Case 3:20-cv-05990-MAS-LHG Document 33-1 Filed 06/16/20 Page 2 of 9 PageID: 338
Amended Complaint, ECF No. 11, against Defendant, alleging that New Jersey’s existing signature verification procedures for both mail-in and provisional voting violate the First and Fourteenth Amendments of the United States Constitution; and
WHEREAS, on June 3, 2020, Plaintiffs filed a motion for a preliminary injunction with supporting declarations and a supporting memorandum of law; and
WHEREAS, Plaintiffs and Defendant (collectively, the “Parties”) have agreed to the provisions set forth herein to resolve Plaintiffs’ pending motion for a preliminary injunction, which provisions shall govern only the primary election scheduled to take place in New Jersey on July 7, 2020; and
WHEREAS, the Parties agree that this Stipulation and Order is not a final judgment, does not resolve Plaintiffs’ claims except as to the July 7, 2020 primary elections, and is entered without prejudice to any claims, defenses, or potential relief respecting any future elections;
WHEREAS, this Stipulation and Order shall not be construed as an admission by Defendant as to the merits of Plaintiffs’ claims;
NOW, THEREFORE, IT IS STIPULATED AND AGREED, by and among the Parties, and HEREBY ORDERED by the Court, as follows:
2

Case 3:20-cv-05990-MAS-LHG Document 33-1 Filed 06/16/20 Page 3 of 9 PageID: 339
1. Plaintiffs’ motion for a preliminary injunction, ECF No. 12, is
granted.
2. Defendant shall forthwith direct all County Boards of Elections and
their members, agents, employees and representatives (collectively, the
“Evaluators”) who are responsible for authenticating or verifying mail-in ballots
pursuant to N.J. Stat. § 19:63-17 and/or authenticating or verifying ballots pursuant
to N.J. Stat. § 19:53C-13 (collectively, “Signature Matching”), as follows:
a. All Evaluators shall receive, and be directed to comply with,
written guidance stating as follows:
When verifying signatures, evaluators should keep in mind that everyone writes differently, and no one signs their name exactly the same way twice. Some variation in signatures is to be expected. There are many factors that can lead to signature variance, including but not limited to age, disability, underlying health conditions, writing implement/surface, level of concentration, and educational background. Studies have shown that evaluators are more likely to declare genuine signatures to be non-genuine than they are to accept a non-genuine signature as genuine. We hope to prevent these errors. Evaluators should presume that the documents were signed by the same person and must accept a signature as valid unless there is a clear discrepancy that cannot be reasonably explained.
b. Evaluators shall track all mail-in and provisional ballots that are
tentatively rejected due to Signature Matching or because a signature
is missing. Within 24 hours after the decision has been made to
tentatively reject a ballot due to a signature, Evaluators shall issue a
Cure Letter to the voter whose ballot has been tentatively rejected. The
3

Case 3:20-cv-05990-MAS-LHG Document 33-1 Filed 06/16/20 Page 4 of 9 PageID: 340
Cure Letter shall inform the voter that their ballot has been tentatively rejected because the ballot envelope did not have a signature or the signature could not be verified using the voter’s signature on file. c. Every Cure Letter sent pursuant to Subparagraph 2(b) above shall include:
i. A Cure Form, pre-printed with the voter’s name, which shall instruct the voter that they may cure the signature impairment by completing the form and returning it to the Board of Elections in person, by fax, or by email at or before 2:00 p.m. on July 23, 2020, or by mail such that it is received by the Board of Elections by close of business on July 23, 2020; and (ii) a postage-paid, addressed envelope that the voter may use to return the form if they elect to do so by mail. Cure Forms shall not be referred to as affidavits and shall not be required to be sworn. Voters shall not be required to submit any form of hard-copy identification document or copy thereof in order to cure a signature impairment, but may do so in accordance with Paragraph 2(d)(ii) below.
d. Cure Forms shall solicit the voter to: i. Declare that they submitted their provisional or mail-in ballot;
4

Case 3:20-cv-05990-MAS-LHG Document 33-1 Filed 06/16/20 Page 5 of 9 PageID: 341
ii. Verify their identity by either: 1. Providing their Driver License Number or Motor Vehicle Commission Non-driver ID Number; or, 2. If the voter does not have a Driver License Number or Motor Vehicle Commission Non-driver ID Number, providing the last four digits of their Social Security Number; or, 3. If the voter has neither a Driver License Number, Motor Vehicle Commission Non-driver ID Number, or the last four digits of their Social Security Number, attaching a legible copy of a state-accepted form of identification, which shall include a sample ballot which lists the voter’s name and address; an official federal, State, county or municipal document which lists the voter’s name and address; or a utility or telephone bill or tax or rent receipt; and
iii. Sign and date the form prior to returning it. e. If a voter timely returns a completed Cure Form and the information
provided verifies their identity, their otherwise valid mail-in or provisional ballot shall be counted in the final election results
5

Case 3:20-cv-05990-MAS-LHG Document 33-1 Filed 06/16/20 Page 6 of 9 PageID: 342
irrespective of any impairment previously identified as a result of Signature Matching. If a voter elects to attach a copy of a Stateaccepted identification document to their Cure Form pursuant to Paragraph 2(d)(ii)(3) above, the address listed on such document need not match the voter registration address provided that the document otherwise verifies the voter’s identity. f. Under no circumstances may Cure Forms be verified or authenticated using Signature Matching. g. A provisional or mail-in ballot may not be rejected due to signature impairment unless Evaluators comply with all provisions of this Paragraph 2. 3. Defendant shall issue guidance advising each County Board of Elections to, at a minimum, meet in advance of Election Day and eight days after Election Day in order to discharge their duties pursuant to Paragraph 2, and to thereafter meet regularly in order to accomplish the same. Such guidance shall encourage these meetings to occur in addition to any other statutorily mandated meetings of the Board. 4. Defendant shall direct each County Board of Elections to report to the New Jersey Division of Elections the following information on July 15, 2020:
6

Case 3:20-cv-05990-MAS-LHG Document 33-1 Filed 06/16/20 Page 7 of 9 PageID: 343
a. Whether they have completed processing all mail-in and provisional ballots pursuant to Paragraph 2(b); and
b. If such processing has not been completed, (i) the number of mail-in and provisional ballots pending staff review; (ii) by when staff review of the received mail-in and provisional ballots will be completed; (iii) the number of mail-in and provisional ballots that have been set aside for County Board of Elections review, but have not yet been acted on by the Board, and (iv) when the Board intends to meet to process those ballots.
5. Defendant shall provide to Plaintiffs’ counsel the information contained in the reports received pursuant to Paragraph 4.
6. Defendant shall direct the New Jersey Division of Elections to conduct a public awareness and education campaign in advance of the July 7, 2020 primary election concerning the importance of a voter’s signature on their mail-in or provisional ballot. Such campaign shall be reasonably designed so as to (i) alert voters that provisional and mailin ballots are verified using Signature Matching; (ii) inform voters that in the event a ballot is tentatively rejected as a result of Signature Matching, voters are entitled to receive notice of the tentative rejection and an opportunity to cure the purported impairment; and (iii) provide
7

Case 3:20-cv-05990-MAS-LHG Document 33-1 Filed 06/16/20 Page 8 of 9 PageID: 344
voters with a basic understanding of the notice and cure process set forth in Paragraph 2 above. The information described in this Paragraph 6 shall, at minimum, appear on the Division of Elections’ website and social media pages, and be made available to counties and advocacy groups to disseminate. 7. The relief set forth herein shall be implemented without delay and so as to be effective for the primary election scheduled to take place in New Jersey on July 7, 2020. 8. This Stipulation and Order is not a final judgment, does not resolve Plaintiffs’ claims except as to the July 7, 2020 primary election, and is entered without prejudice to any claims, defenses, or relief respecting future elections. 9. The bond requirement of Fed. R. Civ. P. 65(c) is waived.

STIPULATED AND AGREED AS TO FORM AND ENTRY:

CAMPAIGN LEGAL CENTER

NEW JERSEY OFFICE OF THE ATTORNEY GENERAL

/s Danielle Lang

.

Danielle Lang*

Rob Weiner*

Ravi Doshi*

Dana Paikowsky*^

1101 14th Street NW, Suite 400

Washington, DC 20005

_s/_S__us_a_n _M__. _S_co_tt_______ Susan M. Scott Deputy Attorney General 25 Market Street P.O. Box 112 Trenton, NJ 08625

Counsel for Defendant
8

Case 3:20-cv-05990-MAS-LHG Document 33-1 Filed 06/16/20 Page 9 of 9 PageID: 345
KAUFMAN LIEB LEBOWITZ & FRICK LLP ___________________ Alanna Kaufman David A. Lebowitz* 10 East 40th Street, Suite 3307 New York, NY 10016 NEW JERSEY INSTITUTE FOR SOCIAL JUSTICE __/s__R_y_a_n_H__a_y_g_o_o_d____ Ryan Haygood Andrea McChristian* Henal Patel 60 Park Place, Suite 511 Newark, New Jersey 07102 Counsel for Plaintiffs * Applications for admission pro hac vice pending ^Licensed in CA only; supervision by Danielle Lang, D.C. Bar member.
SO ORDERED AND ENTERED:
This ____ day of _____________, 2020.
Michael A. Shipp United States District Judge
9

 
 Case 3:20-cv-05990-MAS-LHG Document 13 Filed 06/03/20 Page 1 of 44 PageID: 119

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP NEW JERSEY STATE CONFERENCE, WILLIAM RIGGS, SHAMISA ZVOMA, and DEBORAH J. RISKA,

No. 3:20-cv-05990-MAS-LHG

Plaintiffs,

v.

TAHESHA WAY, in her official capacity as Secretary of the State of New Jersey,

Defendant.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

i

Case 3:20-cv-05990-MAS-LHG Document 13 Filed 06/03/20 Page 2 of 44 PageID: 120
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...............................................................................IV
INTRODUCTION .................................................................................................1
STATEMENT OF FACTS ....................................................................................3
I. Vote By Mail in New Jersey......................................................................3 II. Provisional Voting in New Jersey..............................................................7 III. New Jersey’s Signature Verification Procedure for Mail-In and
Provisional Ballots Is Unacceptably Error-Prone ....................................10 IV. New Jersey’s Constitutionally Deficient Signature-Verification Process
Denies the Right to Vote to Thousands of Voters ...................................13 V. New Jersey’s Constitutionally Deficient Signature-Verification Process
Will Affect a Growing Number of Voters ...............................................15
ARGUMENT ....................................................................................................... 19
I. Plaintiffs Will Succeed on the Merits of Their Claims............................20 A. Plaintiffs Will Prevail on the Merits of Their Procedural Due Process Claim ................................................................................20 1. The Private Interest at Stake Is Fundamental ..............................22 2. New Jersey’s Procedures Guarantee Erroneous Deprivations, And the Additional Safeguards Plaintiffs Seek Would Avoid These Errors ................................................................................24 3. The State’s Interest in Rejecting Ballots Without Meaningful Pre-Deprivation Process Is Minimal ...........................................27 B. Plaintiffs Will Prevail on the Merits of Their Claim that New Jersey Unconstitutionally Burdens the Fundamental Right to Vote. .............................................................................................29 1. New Jersey’s Use of an Error-Prone Signature Match System Severely Burdens Plaintiffs’ Right to Vote.................................30
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2. New Jersey’s Interest in Maintaining its Signature Match Procedures Does Not Outweigh the Severe Burden It Places on Plaintiffs’ Right to Vote..............................................................31
C. Plaintiffs Will Prevail on the Merits of Their Equal Protection Claim ...............................................................................................32
II. Plaintiffs Will Face Irreperable Harm Absent An Injunction .................35 III. The Balance of Harms and the Public Interest Weigh Heavily in
Plaintiffs’ Favor .......................................................................................35 CONCLUSION .................................................................................................... 37
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TABLE OF AUTHORITIES CASES Alvin v. Suzuki, 227 F.3d 107 (3d Cir. 2000) ..........................................................20 Anderson v. Celebrezze, 460 U.S. 780 (1983) ..................................................29, 32 Augustin v. City of Philadelphia, 897 F.3d 142 (3d Cir. 2018)...............................21 Barefoot v. City of Wilmington, 306 F.3d 113 (4th Cir. 2002)................................20 Burdick v. Takushi, 504 U.S. 428 (1992) ...............................................................29 Bush v. Gore, 531 U.S. 98 (2000) ....................................................................32, 34 Cook v. Randolph County, 573 F.3d 1143 (11th Cir. 2009)....................................20 Council of Alternative Political Parties v. Hooks, 121 F.3d 876 (3d Cir. 1997)
......................................................................................................................34, 35 Dee v. Borough of Dunmore, 549 F.3d 225 (3d Cir. 2008) ....................................24 Democratic Executive Committee of Florida v. Lee, 915 F.3d 1312 (11th Cir.
2019) ... .................................................................................................31, 33, 36 Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214
(1989) .................................................................................................................36 Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016) .....................................................34 Florida Democratic Party v. Detzner, No. 16 Civ. 607, 2016 WL 6090943
(N.D. Fla. Oct. 16, 2016) ............................................................................27, 31 Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir. 2004)...............19 La Follette v. Padilla, No. CPF-17-515931, 2018 WL 3953766 (Cal. Super.
Ct. Mar. 5, 2018) ...............................................................................................26 League of Women Voters of North Carolina v. North Carolina, 769 F.3d 224
(4th Cir. 2014) ...................................................................................................35 League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008) ........34
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Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994) ........................................................37 Martin v. Kemp, 341 F. Supp. 3d 1326 (N.D. Ga. 2018) ...........................22, 26, 28 Mathews v. Eldridge, 426 U.S. 319 (1976) ......................................................21, 22 McCutcheon v. FEC, 572 U.S. 185 (2014) ............................................................22 Montanez v. Secretary Pennsylvania Department of Corrections, 773 F.3d
472 (3d Cir. 2014) .............................................................................................24 Morrissey v. Brewer, 408 U.S. 471 (1972) .............................................................20 Nken v. Holder, 556 U.S. 418, 435 (2009) .............................................................35 Northeast Ohio Coalition for the Homeless v. Husted, 696 F.3d 580 (6th Cir.
2012) .................................................................................................................30 O’Brien v. Skinner, 414 U.S. 524 (1974) ...............................................................23 Patriot Party of Allegheny County v. Allegheny County Department of
Elections, 95 F.3d 253 (3d Cir. 1996) ...............................................................29 Paul v. Davis, 424 U.S. 693 (1976) ........................................................................22 Pierce v. Allegheny County Board of Elections, 324 F. Supp. 2d 684 (W.D.
Pa. 2003) ...........................................................................................................32 Raetzel v. Parks/Bellemont Absentee Election Board, 762 F. Supp. 1354 (D.
Ariz. 1990) ........................................................................................................22 Reynolds v. Sims, 377 U.S. 533 (1964) ..................................................................34 Robb v. City of Philadelphia, 733 F.2d 286 (3d Cir.1984) .....................................20 Schmidt v. Creedon, 638 F.3d 587 (3d Cir. 2011) ..................................................21 Saucedo v. Gardner, 335 F. Supp. 3d 202 (D.N.H. 2018) ..............................passim United States v. Velasquez, 64 F.3d 844 (3d Cir. 1995)..........................................24 Wilkinson v. Austin, 545 U.S. 209 (2005) ..............................................................22
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Wilmouth v. Secretary of N.J., 731 F. App’x 97 (3d Cir. 2018) .............................29 Zessar v. Helander, No. 05 Civ. 1917, 2006 WL 642646 (N.D. Ill. Mar. 13,
2006) ............................................................................................................22, 26
STATUTES N.J. Stat. § 19:50-1....................................................................................................6 N.J. Stat. § 19:53C-1 .................................................................................................8 N.J. Stat. § 19:53C-3 .................................................................................................7 N.J. Stat. § 19:53C-6 .................................................................................................8 N.J. Stat. § 19:53C-10 ...............................................................................................8 N.J. Stat. § 19:53C-13 ...............................................................................................9 N.J. Stat. § 19:53C-18 ...............................................................................................9 N.J. Stat. § 19:61-5..............................................................................................6, 28 N.J. Stat. § 19:62-2....................................................................................................3 N.J. Stat. § 19:63-3....................................................................................................3 N.J. Stat. § 19:63-8....................................................................................4, 6, 26, 28 N.J. Stat. § 19:63-9....................................................................................................4 N.J. Stat. § 19:63-11..................................................................................................5 N.J. Stat. § 19:63-13..............................................................................................4, 5 N.J. Stat. § 19:63-17............................................................................................4, 27
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INTRODUCTION Every election cycle, New Jersey election officials throw away thousands of valid mail-in and provisional ballots because they mistakenly believe there is some defect or discrepancy with voters’ signatures. New Jersey does not tell voters when their vote is rejected. It gives them no opportunity to object or to demonstrate that their vote was properly cast. In sum, New Jersey disenfranchises these voters, unfairly, irrevocably, and without warning. This system is as inaccurate as it is peremptory. The State offers no training in signature analysis to the officials making these determinations. It provides no formal guidance as to how they should assess the authenticity of mail-in and provisional ballots. It has adopted no standards to ensure that signature verification of mail-in and provisional ballots is uniform or reliable. Instead, election officials have unbridled discretion to refuse to count properly cast ballots based on their arbitrary assessment of the voter’s penmanship. Unsurprisingly, rejection rates vary wildly from county to county; a voter from one of the state’s larger and more diverse municipalities is many times more likely to have her ballot rejected than the average New Jerseyan. Counties with the most Black people and non-English speakers often have the highest rates of rejection due to signature match. Worse still, the populations that rely most on mail-in voting— people with disabilities, older voters, and those with chronic health conditions—are
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often less able to produce consistent signatures and thus are disproportionately disenfranchised by this unconstitutional system.
New Jersey must provide all citizens who vote by mail and provisional ballot with the opportunity to cure signature verification issues before it discards their ballots. The COVID-19 pandemic makes the threat of disenfranchisement under this system particularly acute, as almost every New Jersey voter will vote either by mail or provisional ballot in the upcoming July 7 primary election.
New Jersey’s May 12, 2020 all-mail local elections provided a window into the dangers of proceeding under this system. Voters across the state—who had no choice but to vote by mail because changes the State made in light of COVID-19— had their validly cast mail-in ballots thrown away because the State mistakenly believed their signatures did not match, diminishing the voters’ confidence in New Jersey’s vote-by-mail system and casting doubt on the legitimacy of the outcome of close elections.
With statewide primary and general elections impending, the State’s failure to provide the most basic procedural protections to mail-in and provisional voters subjects Plaintiffs to a risk of imminent and irreparable harm, threatens public confidence in elections, and subverts the critical public interest in ensuring that citizens can exercise their right to vote. Because New Jersey’s signature matching procedure deprives voters of their right to vote, violates due process, and denies them
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equal protection under the law as required by the Fourteenth Amendment to the United States Constitution, Plaintiffs seek a preliminary injunction pending disposition of their claims.
FACTS I. VOTE BY MAIL IN NEW JERSEY
In New Jersey, any qualified voter may request a mail-in ballot. N.J. Stat. § 19:63-3(a).
Certain qualified municipalities with populations of 500 people or less can conduct all elections entirely by mail, and voters in those jurisdictions automatically receive mail-in ballots. N.J. Stat. § 19:62-2(a-b).
Generally, though, to request a mail-in ballot, a voter must provide their name, the address at which they are registered to vote, the address to which they want their ballot sent, their phone number, and their signature. N.J. Stat. § 19:63-3(a-b). The voter may also provide their email address and opt to enroll in the permanent bymail voter list to receive mail-in ballots in future elections without submitting any further request. N.J. Stat. § 19:63-3(e)(1). As a result, some mail-in voters submit their signed mail-in ballot applications months or years before the election in which they will cast mail-in ballots.
Once the county clerk in the voter’s county of registration receives a mail-in ballot application, the clerk must attempt to verify the voter’s identity by comparing
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the signature on the ballot request form to the signature the voter provided when they registered to vote. N.J. Stat. § 19:63-8. If the clerk deems the signatures a match, she approves the vote-by-mail application and adds the voter to the rolls of individuals who may vote by mail. Id. If the clerk believes the signatures do not match, she disapproves the application and notifies the voter. Id. The law also allows the clerk to also use “any other available information” to make the eligibility determination. Id.
Beginning 45 days prior to an election, the State sends mail-in ballots to voters on the vote-by-mail rolls. N.J. Stat. § 19:63-9.
To cast their vote by mail, citizens must sign a certification on the inner envelope included with the mail-in ballot. N.J. Stat. § 19:63-13. Promptly upon receiving a mail-in ballot, the county board of elections in the voter’s county of registration must examine a voter’s ballot envelope to determine if the ballot was valid. If the county board of elections determines that a voter’s signature is missing or does not “match” either the signature on the voter’s mail-in ballot application form or their signature in the statewide voter registration system, they reject the ballot as invalid and do not count it. N.J. Stat. § 19:63-17.
Neither the State nor any of New Jersey’s 21 county clerks’ offices warns voters that the signatures they provide in returning their ballot will be compared to earlier signatures to determine the validity of their ballots. See N.J. Stat. §§ 19:63-
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11, 19:63-13. Nor does the State or counties inform voters that if their local election official finds a supposed discrepancy with their signature, the official will reject their ballot entirely. Indeed, in at least some New Jersey counties, including Middlesex and Monmouth, officials give mail-in voters false information, advising them that all mail-in ballots are counted and included in the election results. Ex. 1 (Middlesex County Elections FAQ)1; Ex 2 (Monmouth County Vote by Mail).2
While providing voters no pre-rejection notice of ballot impairments or opportunity to contest the State’s error-prone handwriting analysis, the State does virtually nothing to ensure that the analysis is accurate. The State does not require that officials of the 21 county boards of elections receive training in signature or handwriting analysis. It provides them no written standards or guidelines to aid in this assessment. It neither dictates nor even suggests that officials spend any minimum amount of time comparing the signature exemplars when examining mailin ballots. It does nothing to ensure that county officials across the State follow the same approach. In sum, New Jersey essentially guarantees that the mail-in voting
1 Middlesex County NJ, FAQ About Elections, http://www.middlesexcountynj.gov/Government/Departments/CS/Pages/County% 20Clerk/FAQ%20About%20Elections.aspx (last visited May 13, 2020). 2Hudson County NJ, FAQ About Elections, Monmouth County Votes, Vote By Mail, https://www.monmouthcountyvotes.com/voter-information/vote-by-mail/ (last visited May 13, 2020).
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process will be riddled with errors, and then prevents voters from doing anything about it.
Indeed, New Jersey law requires only that the State provide voters with a “free-access system,” such as a toll-free hotline or website, that they may access after the election to determine whether their ballot was counted, and if not, why. N.J. Stat. § 19:61-5. At that point, if a voter learns that New Jersey has rejected their ballot—either by affirmatively inquiring themselves or through any post-deprivation notice provided by the county—the election is over, and the voter’s disenfranchisement is irreparable.
The State could give mail-in voters notice before rejecting their vote and afford a meaningful opportunity to cure. Indeed, for mail-in ballot applications, the State does just that, notifying the voter of any deficiency related to their signature and affording the opportunity to renew their application or vote in person. N.J. Stat. § 19:63-8. Further, the State has authority to train election officials and issue guidelines to standardize signature verification across the state. State law charges Defendant Way with overseeing the training of local election officials. N.J. Stat. § 19:50-1(b). And, more broadly, the law specifically authorizes the Secretary of State to adopt rules and regulations to govern the vote by mail system. The State has let these powers lie dormant while errors proliferate and New Jersey citizens needlessly lose their right to vote.
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Implementing a pre-rejection notice and opportunity to cure procedure for voters would not significantly burden the State. State and local election officials already have access to voter files containing voter information such as addresses, phone numbers, and emails, which they could use to provide mail-in voters whose ballots have signature related impairments with notice that their ballot may be rejected and an opportunity to cure. II. PROVISIONAL VOTING IN NEW JERSEY
When voters seek to cast their ballots in-person, issues arise sometimes as to whether they can lawfully vote. Sometimes, the person may not be permitted to vote or may be required to go to a different polling place. N.J. Stat. §§ 19:53C-3. In other circumstances, a voter has the right to vote by provisional ballot. Id.
Specifically, any registered voter who appears at a polling place on Election Day may vote by provisional ballot if (a) they moved within a municipality, but to a different election district, and did not update their address; (b) they moved within a county and did not update their address; (c) their registration information is missing; or (d) they applied for a mail-in ballot and did not receive or submit it. Id.
On May 15, 2020, Governor Murphy signed Executive Order 144, which mandates that: “Any voter who appears at a polling place on the day of the July
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primary shall vote via a provisional ballot, except that a voter with disabilities may vote on an ADA-accessible voting machine.” Ex. 3 (Exec. Order No. 144).3
A voter casting a provisional ballot at a polling place is handed a provisional ballot packet prepared by the county clerk, or municipal clerk in a municipal election. The packet includes an envelope, affirmation statement, and a written notice. N.J. Stat. § 19:53C-1. The affirmation statement includes space for the voter’s name, the reason for voting provisionally, space to provide the voters’ most recent prior voter registration address, address on the day of the election, and the voter’s date of birth. Id.
In addition, the affirmation includes the statement: “I swear or affirm, that the foregoing statements made by me are true and correct and that I understand that any fraudulent voting may subject me to a fine of up to $15,000, imprisonment up to five years or both, pursuant to R.S.19:34-11.” Id. The voter must sign the affirmation statement prior to or immediately after casting the provisional ballot. N.J. Stat. § 19:53C-6. Upon completing the provisional ballot, the voter must place it in the envelope, seal the envelope, and then hand it to a member of the district board. Id. § 19:53C-10. The member of the district board hands the voter a written notice of instructions on how the voter may access information regarding the status of the
3 See N.J. Exec. Order No. 144, ¶ 10 (May 15, 2020), https://nj.gov/infobank/eo/056murphy/pdf/EO-144.pdf.
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provisional ballot, whether their vote was counted, and if rejected, the reason for rejection. Id. Neither in this notice nor any other is the State required to warn the voter that their provisional ballot may be rejected because of a signature match issue. Id.
Once the provisional ballot is delivered to the county for counting, the process is nearly identical to the one governing mail-in ballots. County election officials are required to compare the “name, signature and other information contained on the form as supplied by a voter” with the same information in the voter registration system for the voter. N.J. Stat. § 19:53C-13. In other words, officials compare the voter’s signature on the provisional ballot to the signature on their voter registration form. These officials, again, are not handwriting experts.
There is no requirement that the State notify the voter of the issues regarding their signature, unless the voter calls the hotline or checks the Division of Elections’ website to determine their status. The voter also has no opportunity to cure provisional ballot defects. The county board decides by majority vote whether to accept or reject the voter’s provisional ballot, and that decision is “final.” N.J. Stat. § 19:53C-18.
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III. NEW JERSEY’S SIGNATURE VERIFICATION PROCEDURE FOR MAIL-IN AND PROVISIONAL BALLOTS IS UNACCEPTABLY ERROR-PRONE Signature verification is an inherently flawed means of determining whether
a mail-in or provisional ballot is fraudulent or inappropriately cast. No two signatures, even if written by the same person, are exactly alike. Many
factors affect the consistency of a signature from one signing (i.e., the mail-in ballot application or voter registration) to another (i.e., the mail-in ballot), including such factors as the type of pen, writing surface, stress, or other writing conditions. Declaration of Linton A. Mohammed (“Mohammed Decl.”) ¶¶ 34-35.
Signature variance is more common among certain populations of voters, including those with disabilities, those with less formal education, elderly and young voters, and voters for whom English is a second language. Parkinsonism and other neurological disorders can also significantly affect handwriting characteristics, engender unfounded scrutiny over the authenticity of signatures, and impede accurate assessment of them. Id. ¶¶ 40-42; see also Declaration of William Riggs (“Riggs Decl.”) ¶¶ 6-7.
And while New Jersey does not maintain the racial or demographic data of those whose ballots are rejected, a study in Florida found that Black and Latina/o voters were more likely to have their ballots rejected. In 2016, 1.9% of Black voters’ ballots and 1.8% of Hispanic voters ballots in Florida were rejected, compared to a
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rejection rate of only 0.7% among white voters. Ex. 4.4 Indeed, higher rejection rates in some of New Jersey’s most diverse counties suggest a similar trend in this State. See infra Facts Section IV.
Even experienced forensic document examiners (FDEs) can find it difficult if not impossible to distinguish natural variations in a person’s signature from fraudulent ones, especially where the reviewer has limited exemplars to compare. Mohammed Decl. ¶¶ 27-29.
Laypersons, such as New Jersey election officials, have a significantly higher rate of error in determining whether signatures are genuine. Laypersons are also more likely to wrongly determine that authentic signatures are not genuine than to make the opposite error. In one study, laypeople incorrectly judged authentic signatures to be inauthentic more than 26% of the time. Id. ¶ 29.
Thus, in every election, the untrained election officials responsible for signature verification under New Jersey’s mail-in ballot verification system reject validly cast ballots because of erroneous judgments on signature matching issues. See, e.g., Declaration of Belina Grill (“Grill Decl.”) ¶ 4 & Ex. A; Declaration of Sarah Katherine Céspedes (“Céspedes Decl.”) ¶ 6; Declaration of Jessica Burns (“Burns Decl.”) ¶ 6; Declaration of Shamisa Zvoma (“Zvoma Decl.”) ¶ 4;

4 See Daniel A. Smith, Vote-By-Mail Ballots Cast in Florida, AMERICAN CIVIL

LIBERTIES

UNION

OF

FLORIDA

(Sep.

19,

2018),

https://www.aclufl.org/en/publications/vote-mail-ballots-cast-florida.

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Declaration of Olivia Brinton (“Brinton Decl.”) ¶¶ 4-5; Declaration of Anfal Muhammad-Jenkins (“Muhammad-Jenkins Decl.”) ¶ 4; Ex. 5 (EAVS 2016);5 Ex. 6 (EAVS 2018).6
Also, because election officials undertake this task without standardized guidelines or procedures governing their analysis, they reject ballots based on arbitrary, variable criteria. Vote-by-mail and provisional ballot rejection rates for signature matching issues therefore vary significantly from county to county in New Jersey. For example, in the 2016 general election, Hudson County, New Jersey’s most diverse county, rejected mail-in ballots based on failure to match signatures at a rate 172 times the rejection rate in Gloucester County, one of the least diverse counties in the state. Ex. 5 (EAVS 2016). In 2014, Essex County, the county with the highest Black population in New Jersey, had the highest rejection rate in the State based on signature issues. Id. In 2018, Camden County, where one of New Jersey’s most diverse cities, Camden, is located, had the highest percentage of total provisional ballots cast rejected because of signature match. Ex. 6 (EAVS 2018).
Similarly, the unintentional omission of a voter’s signature from their mail-in or provisional ballot often reflects innocent user error rather than fraud or
5 Election Administration and Voting Survey Datasets (“EAVS 2016”) (2016), https://www.eac.gov/research-and-data/datasets-codebooks-and-surveys. 6 Election Administration and Voting Survey Datasets Version 1.2 (“EAVS 2018”) (Feb. 18, 2020), https://www.eac.gov/research-and-data/datasets-codebooks-andsurveys.
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misconduct. The State could easily resolve such an error simply by providing the affected voter with notice of the problem and an opportunity to fix it. IV. NEW JERSEY’S CONSTITUTIONALLY DEFICIENT SIGNATURE-
VERIFICATION PROCESS DENIES THE RIGHT TO VOTE TO THOUSANDS OF VOTERS Each election, New Jersey’s signature verification system affects thousands of New Jersey voters, often at least one percent of all mail-in voters, who have their ballots rejected for benign, or nonexistent, signature-related deficiencies, such as an omitted signature or a signature that could not be “matched” to either the vote-bymail application or the voter registration form. Ex. 5 (EAVS 2016). During the 2016 presidential general election, for example, over 355,000 New Jersey voters cast their ballots by mail. About 4,000 of those voters, representing approximately one percent of the by-mail votes cast in the election, did not have their votes counted because of a signature-related problem, including over 1,100 rejected because of the perceived signature mismatch. Id. Eleven percent of absentee ballot rejections statewide in the 2016 election were attributable to a perceived signature mismatch. Id. However, the likelihood of a signature-related ballot rejection varied significantly depending on the absentee voter’s county of residence. For example, 11.76% of rejected absentee ballots were for signature mismatch issues in Union County, compared to 38.97% of rejected absentee ballots in Hudson County. Id.
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Two years later, in the 2018 midterm election, the results were no better. Out of the approximately 400,000 New Jersey voters who cast their ballots by mail, approximately 6,000, or about 1.5% of all by-mail voters, had their ballots rejected— and their votes consequently not counted—based on a signature-related deficiency, including nearly 2,000 due to the perceived lack of a signature match. Ex. 6 (EAVS 2018).
Again, the likelihood of a signature-related ballot rejection varied based on the absentee voter’s county of residence. Whereas in the 2018 election, 16.4% of absentee ballots rejected statewide were rejected for signature match issues, the rate of rejection varied dramatically from county to county. Id. For example, only 3.3% of rejected absentee ballots were rejected in Union County for signature match issues, compared to 34.9% in Hudson County. Id.
Some voters, like Plaintiff Deborah J. Riska, have been disenfranchised in multiple elections due to signature match issues. Ms. Riska’s validly cast mail-in ballots were discarded in both 2016 and 2018 due to purported signature impairments. Declaration of Deborah J. Riska (“Riska Decl.”) ¶ 3; Ex. 10 (Morris County Mail-in Ballot Rejections 2018 November Election); Ex. 11 (Morris County Mail-in Ballot Rejections 2016 November General Election). Ms. Riska did not learn of her 2018 disenfranchisement until January of 2019, when she received a letter notification three months after the election. Id. ¶ 4. She did not learn of her 2016
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disenfranchisement until recently. Id. ¶ 3. To avoid being disenfranchised again, Ms. Riska attempted to vote in-person at her polling location in 2019, but was not allowed to because she was on the mail-in ballot list. Id. ¶ 5. She was even refused the opportunity to vote provisionally. It was made clear to Ms. Riska that her only option was voting by mail—an undertaking that she believed to be futile based on her prior experience. As a result, she simply did not vote in 2019. Id.
Signature mismatch issues have disenfranchised provisional ballot voters as well. County boards have rejected hundreds of provisional ballots in previous elections—almost 300 in 2018—because of signature mismatch issues. Ex. 6 (EAVS 2018). This number will only increase this year as provisional voting will be the only in-person voting option for the vast majority of voters.
New Jersey’s unreliable signature verification procedures advance no legitimate state interest. Nor does the State’s failure to provide notice and an opportunity to cure an ostensible signature-related defect serve any legitimate governmental purpose. V. NEW JERSEY’S CONSTITUTIONALLY DEFICIENT SIGNATURE-
VERIFICATION PROCESS WILL AFFECT A GROWING NUMBER OF VOTERS The number of New Jerseyans who will vote by mail or provisional ballot— and thus the number of voters whose ballots will be rejected through New Jersey’s signature-verification process—has increased and is likely to increase dramatically
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in upcoming elections, including the July 7, 2020 primary election and the November 3, 2020 general election. Burns Decl. ¶ 4; Declaration of Richard Smith (“Smith Decl.”) ¶ 7.
Even before the May 12, 2020 election, which was conducted entirely by mail, the number of people voting by mail in New Jersey had already begun to increase, and New Jersey’s recent expansion of its vote-by-mail law made it easier for them to do so.
The ongoing COVID-19 pandemic has accelerated, and will continue to accelerate, New Jersey’s dramatic shift towards mail-in voting. Burns Decl. ¶ 5; Smith Decl. ¶ 6. The State, echoing the Centers for Disease Control and Prevention (“CDC”), recommends that to protect themselves from COVID-19, all citizens should “stay at home . . . except to get essentials” and that “additional steps” may be warranted for older adults and those with chronic or underlying conditions that place them at increased risk of complications from the disease. Ex. 7 (NJ COVID-19 Information Hub).7 Moreover, the CDC’s first recommendation for election officials
7 New Jersey COVID-19 Information Hub, https://covid19.nj.gov/faqs/njinformation/general-public/how-can-i-protect-myself-from-covid-19/novelcoronavirus (last updated May 7, 2020).
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in the midst of this pandemic is to “[e]ncourage mail-in methods of voting.” Ex. 8 (CDC Recommendations).8
Heeding the CDC’s advice, Governor Murphy issued Executive Order 105 on March 19, 2020. Ex. 9 (Executive Order 105).9 Pursuant to this Order, the over 30 local elections scheduled for May 12, 2020 were all10 vote-by-mail. Id.; Ex. 12 11(New Jersey Division of Elections 2020 Election Information). Counties mailed all registered voters in those municipalities a ballot with prepaid postage. Ex. 9 (Executive Order 105). Without an application, the signature on the voter’s ballot was compared to the voter’s registration form. This eliminated the nominal notice process New Jersey law has of alerting voters of the rejection of their vote-by-mail application because of a signature match issue. Moreover, it ensured that the signatures compared to the signed ballot envelopes will be even staler, potentially dating back decades.
8 Ctrs. for Disease Control and Prevention, Recommendations for Election Polling Locations, https://www.cdc.gov/coronavirus/2019-ncov/community/electionpolling-locations.html (last updated Mar. 27, 2020). 9 N.J. Executive Order No. 105 (March 19, 2020), https://www.state.nj.us/infobank/eo/056murphy/pdf/EO-105.pdf. 10 As an accommodation, counties provided certain members of the disability community with the ability to vote electronically or in-person. 11 N.J. Department of State, Division of Elections, 2020 Election Information, https://www.state.nj.us/state/elections/election-information-2020.shtml#may12 (last visited June 2, 2020).
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The result, as expected, was the disenfranchisement of many eligible New Jersey voters who properly submitted their mail-in ballots. For example, Essex County resident Sarah Katherine Céspedes received a letter on May 22, 2020 indicating that her May 2020 ballot was “not eligible to be counted” because the signature on the ballot did not match the one currently on the voter roll. Céspedes Decl. ¶ 6. The mayoral race in her town was decided by fewer than 200 votes, and Ms. Céspedes knows of several other people in her community whose ballots were also rejected. Id. ¶ 8. Plaintiff Shamisa Zvoma received a similar letter on the same date, indicating that her ballot was rejected because the signature on the ballot did not match the one on the voter roll. Declaration of Shamisa Zvoma (“Zvoma Decl.”) ¶ 4 & Ex. A. Both rejections were erroneous. Id.
Similarly, On May 20, 2020, Monmouth County voter Belina Grill received a letter from the Monmouth County Board of Elections Commissioners informing her that the county had rejected her ballot because the signature on the ballot did not match the one in their records. Grill Decl. ¶ 4 & Ex. A. After her husband called the County Board of Elections Commissioners to ask about the rejection, they sent her a copy of the two signatures used for comparison. Both belonged to Ms. Grill. Id. ¶¶ 5-6.
Some voters were not even afforded even the opportunity to compare the signatures at issue. Essex County resident Olivia Brinton received a letter on May
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22, 2020 informing her that her ballot was rejected, and when she called to complain, she was simply told to submit a written complaint. Brinton Decl. ¶¶ 4-5.
On May 15, 2020, Governor Murphy issued Executive Order 144 regarding the July 7, 2020 primary elections. Ex. 3. To reduce lines for in-person voting and to encourage people to vote by mail, this Order provided that all active registered Democrats and Republicans will receive vote-by-mail ballots with prepaid postage. Id. All unaffiliated voters and inactive registered Democrats and Republicans will receive a vote-by-mail application with prepaid postage. Id. Thus, once again, many voters will have no vote-by-mail application signature to which county officials can compare the signature on their ballot certifications, and the only exemplar for comparison will be stale voter registration signatures. While there will be limited inperson polling places open in all municipalities, other than as an accommodation for certain members of the disability community, all in-person voting will be through provisional ballots. Id. Accordingly, absent relief from this Court, a significant proportion of voters will be erroneously disenfranchised.
ARGUMENT “A party seeking a preliminary injunction must show: (1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief.” Kos Pharm.,
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Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004). Because New Jersey’s errorprone signature matching procedures subject voters to a constitutionally unacceptable risk of arbitrary disenfranchisement without meaningful notice and recourse, Plaintiffs satisfy each of these factors. I. PLAINTIFFS WILL SUCCEED ON THE MERITS OF THEIR
CLAIMS A. Plaintiffs Will Prevail on the Merits of Their Procedural Due
Process Claim In assessing whether a state action violates the due process clause, the Court employs a “‘familiar two-stage analysis,’ inquiring (1) whether ‘the asserted individual interests are encompassed within the fourteenth amendment's protection of life, liberty, or property’; and (2) whether the procedures available provided the plaintiff with ‘due process of law.’” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (quoting Robb v. City of Philadelphia, 733 F.2d 286, 292 (3d Cir.1984)). The right to vote is unquestionably a core liberty interest protected by the Due Process Clause.12 Thus, “once it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). To
12 See, e.g., Cook v. Randolph Cty., 573 F.3d 1143, 1152 (11th Cir. 2009) (noting that “[t]he Constitution guarantees procedural and substantive due process when a liberty interest is at stake,” including “the right to vote”); Barefoot v. City of Wilmington, 306 F.3d 113, 124 n.5 (4th Cir. 2002) (“The right to vote . . . is certainly a protected liberty interest.”).
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make that determination, the Court uses the three-factor test announced by the United States Supreme Court in Mathews v. Eldridge, balancing: “(1) ‘the private interest that will be affected by the official action’; (2) ‘the risk of an erroneous deprivation of such interest through the procedures used’ and the value of ‘additional or substitute procedural safeguards’ in avoiding such errors; and (3) the governmental interest, ‘including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement[s] would entail.’” Augustin v. City of Philadelphia, 897 F.3d 142, 149 (3d Cir. 2018) (quoting Mathews v. Eldridge, 426 U.S. 319, 335 (1976)). Although the Eldridge framework is flexible, an “essential principle” guiding its application is that the government may not “postpone the hearing until after the deprivation has already occurred” except in “extraordinary situations” where crucial governmental interests are at stake. Schmidt v. Creedon, 638 F.3d 587, 595-96 (3d Cir. 2011) (internal quotation marks omitted).
New Jersey’s signature verification regime fails this test. New Jersey rejects voters’ ballots using a standardless, arbitrary, and unreliable ballot verification process, denying the fundamental right to vote without any pre-deprivation notice or opportunity to cure ballot impairments.
Courts considering challenges to signature matching regimes that, like New Jersey’s, lack any pre-deprivation protections for voters, have uniformly enjoined
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them. See, e.g., Martin v. Kemp, 341 F. Supp. 3d 1326, 1338-40 (N.D. Ga. 2018); Saucedo v. Gardner, 335 F. Supp. 3d 202, 214-22 (D.N.H. 2018); Zessar v. Helander, No. 05 Civ. 1917, 2006 WL 642646, at *6-*9 (N.D. Ill. Mar. 13, 2006); Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F. Supp. 1354, 1358 (D. Ariz. 1990). This court should do the same.
1. The Private Interest at Stake Is Fundamental The first Eldridge factor weighs heavily in Plaintiffs’ favor. “There is no right more basic in our democracy than the right to participate in electing our political leaders.” McCutcheon v. FEC, 572 U.S. 185, 191 (2014). Thus, courts considering similar challenges to procedurally deficient signature matching regimes have uniformly found that the first Eldridge factor strongly favors plaintiffs because of the foundational importance of voting rights. See, e.g., Martin, 341 F. Supp. 3d at 1338 (finding that “the private interest at issue implicates the individual’s fundamental right to vote and is therefore entitled to substantial weight”); Saucedo, 335 F. Supp. 3d at 217 (according private interest factor “significant weight” in light of constitutional significance of voting rights). Nor is the private interest at stake diminished merely because New Jerseyans’ right to vote by mail is creature of state law. “A liberty interest . . . may arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005); accord Paul v. Davis, 424 U.S. 693, 710-11 (1976). Having
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affirmatively created a vote by mail regime as a means by which all eligible voters may exercise their fundamental right to vote, the State may not arbitrarily disenfranchise citizens who avail themselves of that process. Saucedo, 335 F. Supp. 3d at 217 (“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.”).
The weight of this interest only increases where, as here, mail-in and provisional voting will be functionally the only means available to many voters to safely exercise their constitutional right to vote. See O’Brien v. Skinner, 414 U.S. 524, 530 (1974) (sustaining a constitutional challenge to absentee voting rules under which prisoners were “simply not allowed to use the absentee ballot and [were] denied any alternative means of casting their vote although they [were] legally qualified to vote”). Thus, because of COVID-19 and the sharp expected increase in ballots cast by mail and provisional ballots in New Jersey during the 2020 primary and general elections, Plaintiffs and voters across the State have an even greater liberty interest in ensuring they will not be disenfranchised by New Jersey’s mail-in ballot verification procedures.
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2. New Jersey’s Procedures Guarantee Erroneous Deprivations, And the Additional Safeguards Plaintiffs Seek Would Avoid These Errors
The second Eldridge factor—the probable value of additional process in reducing the risk of erroneous deprivations—also favors Plaintiffs. By providing voters with pre-deprivation notice and opportunity to cure signature impairments, New Jersey can give eligible voters a chance to correct erroneous determinations and ensure they are not disenfranchised because of a benign signature issue, or an error by the State. Indeed, the requirement of pre-deprivation notice is a “default rule” in procedural due process cases. Montanez v. Sec’y Pennsylvania Dep't of Corr., 773 F.3d 472, 483 (3d Cir. 2014). As the Third Circuit has recognized, “when an individual is not provided with any form of pre-deprivation process, as in this case, the risk of an erroneous deprivation of his constitutionally protected interest— i.e., the second factor of the Mathews balancing—is heightened considerably.” Dee v. Borough of Dunmore, 549 F.3d 225, 232 (3d Cir. 2008).
This is especially true here, because New Jersey’s signature match procedures are virtually certain to erroneously reject valid ballots. As Plaintiffs’ expert Dr. Linton A. Mohammed explains, “[d]etermining whether a signature is genuine is a difficult task for even a trained [Forensic Document Examiner],” and laypeople “have a significantly higher rate of error in determining whether signatures are genuine.” Mohammed Decl. ¶ 21; see also United States v. Velasquez, 64 F.3d 844,
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850 (3d Cir. 1995) (noting that “the field of handwriting analysis consists of scientific, technical or other specialized knowledge” that is uniquely the province of trained experts). Yet New Jersey tasks untrained laypeople with analyzing the signatures of mail-in voters to make one of the most constitutionally consequential decisions imaginable: whether or not to count a citizen’s vote.
County election officials in New Jersey “lack the tools and training to properly account for signature variation, which leads to erroneous mismatch determinations that are particularly pronounced in populations with greater signature variability, such as the elderly, disabled, individuals suffering from poor health, young voters (ages 18 to 21), and non-native English speakers.” Mohammed Decl. ¶ 22. Officials rely on impressionistic comparisons using inadequate signature samples and are not required to take the minimum of two hours necessary for even a trained examiner to accurately conduct a signature analysis. Id. ¶ 24. Accordingly, they are “particularly prone to making erroneous signature match determinations” and improperly reject ballots that have been properly cast. Id. ¶ 47.
Pre-deprivation notice and hearing are essential here. Under New Jersey’s current system, once the non-expert examiners make erroneous determinations, voters have no recourse. The right to vote in the affected election is gone. Without pre-deprivation process, “[i]t cannot be emphasized enough that the consequence of a moderator’s decision—disenfranchisement—is irremediable.” Saucedo, 335 F.
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Supp. 3d at 218. Courts have therefore routinely found that providing notice of an alleged signature defect only after the voter’s ballot is rejected is constitutionally insufficient. See, e.g., La Follette v. Padilla, No. CPF-17-515931, 2018 WL 3953766 (Cal. Super. Ct. Mar. 5, 2018) (finding that posting a list of affected voters online does not provide sufficient notice); Saucedo, 335 F. Supp. 3d at 218 (finding that providing voters with the ability to use the state’s website to see if their ballots had been invalidated did not provide adequate notice); Zessar, 2006 WL 642646 at *9 (finding post-election notice postcards did not meet constitutional notice requirements).
Notably, New Jersey law already permits election officials to consider “any other available information” in determining whether the signature on a mail-in ballot application is authentic. N.J. Stat. § 19:63-8. “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.” Saucedo, 335 F. Supp. 3d at 219.
Providing pre-deprivation notice and an opportunity to cure perceived mailin ballot deficiencies would significantly reduce the risk of erroneous disenfranchisement. See Martin, 341 F. Supp. 23d at 1339 (holding that “permitting an absentee voter to resolve an alleged signature discrepancy . . . has the very
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tangible benefit of avoiding disenfranchisement”); Saucedo, 335 F. Supp. 3d at 219; Zessar, 2006 WL 642646, at *9. In light of the high risk of erroneous deprivations and the indisputable effectiveness of the simple notice-and-cure procedure Plaintiffs seek, the second Eldridge factor—and simple fairness—favors granting relief.
3. The State’s Interest in Rejecting Ballots Without Meaningful Pre-Deprivation Process Is Minimal
The third Eldridge factor also favors Plaintiffs. States have no legitimate interest in disenfranchising eligible voters without due process of law. Indeed, insofar as the purpose of New Jersey’s existing signature matching regime is to ensure “that the voter is legally entitled to vote,” N.J. Stat. § 19:63-17, adding procedural safeguards advances that purpose by expanding the information available to officials in making the determination. “Thus, if anything, additional procedures further the State’s interest in preventing voter fraud while ensuring that qualified voters are not wrongly disenfranchised.” Saucedo, 335 F. Supp. 3d at 220; see also Fla. Democratic Party v. Detzner, No. 16 Civ. 607, 2016 WL 6090943, at *7 (N.D. Fla. Oct. 16, 2016) (observing that “letting mismatched-signature voters cure their vote by proving their identity further prevents voter fraud—it allows supervisors of elections to confirm the identity of that voter before their vote is counted”).
Moreover, there is no reasonable argument that providing mail-in and provisional voters with notice and an opportunity to cure signature issues would place an undue fiscal or administrative burden on the State. New Jersey already has
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the information and infrastructure it needs to affect this change. The State collects voters’ contact information through their registration and ballot request forms and uses this information to inform them when there are signature impairments on their mail-in ballot request forms pre-election, N.J. Stat. § 19:63-8, and of ballot impairments post-election, N.J. Stat. § 19:61-5. The State can easily use this infrastructure to provide voters with the constitutionally required pre-rejection notice and opportunity to cure ballot defects. See Martin, 341 F. Supp. 3d at 133940 (“Because many of the procedures Plaintiffs request are already in place, the Court finds that additional procedures would involve minimal administrative burdens while still furthering the State’s asserted interest in maintaining the integrity of its elections.”); Saucedo, 335 F. Supp. 3d at 221 (concluding that pre-deprivation “would not entail significant administrative burdens,” especially when “procedures already exist which could be readily extended”).
Particularly because of New Jersey’s error-prone signature matching procedures to authenticate mail-in and provisional ballots, the State must provide voters with meaningful notice of any perceived signature match issue and an opportunity to resolve it to avoid erroneous deprivation of their fundamental right to vote. Plaintiffs are therefore likely to succeed on the merits of their due process claim.
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B. Plaintiffs Will Prevail on the Merits of Their Claim that New Jersey Unconstitutionally Burdens the Fundamental Right to Vote.
Plaintiffs are likely to prevail on their claim that New Jersey’s signature match procedures unconstitutionally burden the fundamental right to vote. This claim is assessed “under what has come to be known as the Anderson-Burdick balancing test.” Wilmouth v. Sec’y of N.J., 731 F. App’x 97, 102 (3d Cir. 2018), so named after the Supreme Court’s decisions in Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) and Burdick v. Takushi, 504 U.S. 428, 433 (1992).
Under Anderson-Burdick, “[t]o determine whether a state election law violates the U.S. Constitution,” courts “first examine whether the challenged law burdens rights protected by the First and Fourteenth Amendments.” Patriot Party of Allegheny Cty. v. Allegheny Cty. Dep’t of Elections, 95 F.3d 253, 258 (3d Cir. 1996). “If the law does burden protected rights,” the court “must gauge the character and magnitude of the burden on the plaintiff and weigh it against the importance of the interests that the state proffers to justify the burden,” taking into account “not only the legitimacy and strength of the state’s proffered interests, but the necessity of burdening the plaintiff’s rights in order to protect those interests.” Id. If the burden on the plaintiff’s rights is severe, the state’s interest must be compelling, and the law must be narrowly tailored to serve the state’s interests.” Id.
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1. New Jersey’s Use of an Error-Prone Signature Match System Severely Burden’s Plaintiffs’ Right to Vote
New Jersey’s signature matching procedures impose a severe burden on the right to vote. Every election, New Jersey’s error-prone signature match procedures cause the summary rejection of eligible voters’ validly cast ballots and completely deprive these voters of their right to vote. COVID-19 has amplified this burden by making in-person voting unsafe and, in some cases, impossible. And for voters like Plaintiff Riggs, whose age and underlying health conditions affect the variability of their handwriting and make it impossible for them to produce a consistent signature, the burden is especially severe. Riggs Decl. ¶¶ 6-7. Perversely, such voters with underlying health conditions or disabilities—voters who are among those most likely to rely on vote by mail to access the franchise under ordinary circumstances, and especially during the COVID-19 pandemic—are also disproportionately likely to have their ballots rejected for signature issues. Mohammed Decl. ¶¶ 22, 26, 34. Voters like Mr. Riggs face arbitrary and erroneous disenfranchisement with no recourse or remedy. It is difficult to conceive of a more severe burden on the fundamental right to vote.
Other courts that have considered standardless, procedurally deficient signature matching systems like New Jersey’s have found them to pose substantial burdens on the right to vote under the Anderson-Burdick framework. See, e.g., Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1321 (11th Cir. 2019)
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(finding that error-prone signature matching process “imposes at least a serious
burden on the right to vote”); see also Ne. Ohio Coal. for the Homeless v. Husted,
696 F.3d 580, 593 (6th Cir. 2012) (holding that disqualification of provisional ballots
cast in the wrong precinct was a “substantial burden on provisional voters”). As one
court observed in enjoining a signature matching regime similar to New Jersey’s:
During this election cycle, millions of voters across the state will march happily to their mailbox and attempt to exercise their fundamental right to vote by mailing their vote-by-mail ballot. After the election, thousands of those same voters—through no fault of their own and without any notice or opportunity to cure—will learn that their vote was not counted. If disenfranchising thousands of eligible voters does not amount to a severe burden on the right to vote, then this Court is at a loss as to what does. Detzner, 2016 WL 6090943, at *6.
2. New Jersey’s Interest in Maintaining its Signature Match Procedures Does Not Outweigh the Severe Burden It Places on Plaintiffs’ Right to Vote.
No legitimate state interest justifies New Jersey’s procedurally deficient signature matching procedures, much less an interest significant enough to justify the severe burdens the State’s scheme imposes on voting rights.
Under Anderson-Burdick, the Court must consider whether important State interests “make it necessary to burden” Plaintiffs’ rights. Anderson, 460 U.S. at 789 (emphasis added). The State has the resources it needs to provide voters with notice and an opportunity to cure signature issues. There is simply no reason New Jersey “cannot have both a robust signature-match protection and a way to allow every eligible vote-by-mail . . . voter whose ballot is mistakenly rejected an opportunity to
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verify their identities and have their votes count.” Lee, 915 F.3d at 1322 (noting absence of any “fraud-prevention interest that justifies depriving legitimate vote-bymail . . . voters of the ability to cure the signature mismatch, thereby disenfranchising them”). The relief Plaintiffs seek would also further, not undermine, the State’s interest in promoting fairness and confidence in the integrity of its elections, because “public faith in elections benefits from providing injured voters the opportunity to have their legitimately cast ballots counted when the reason they were not counted was not the voters’ fault.” Id. at 1326.
New Jersey’s signature matching procedures for authenticating mail-in and provisional ballots severely burden the right to vote without furthering any legitimate State interest. Accordingly, Plaintiffs are likely to succeed on the merits of their constitutional claims.
C. Plaintiffs Will Prevail on the Merits of Their Equal Protection Claim
Because they fail to ensure that counties and election officials across the State employ uniform standards for ballot rejection, New Jersey’s signature match procedures violate the Equal Protection Clause.
“Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value on person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000). The use of differing ballot authentication procedures across the state violates this principle. “A state must impose uniform statewide standards in each county in order to protect the legality of a citizen’s vote.
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Anything less implicates constitutional problems under the equal protection clause of the Fourteenth Amendment.” Pierce v. Allegheny Cty. Bd. of Elections, 324 F. Supp. 2d 684, 697 (W.D. Pa. 2003); see also Bush, 531 U.S. at 106 (finding equal protection violation where “the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another”).
The State has promulgated no guidance to county officials to ensure New Jersey’s signature matching process is uniformly imposed. In Lee, the Eleventh Circuit affirmed the grant of a preliminary injunction requiring Florida to provide mail-in voters with an opportunity to demonstrate their eligibility before rejecting their ballots on signature mismatch grounds. 915 F.3d. Just like New Jersey, “Florida ha[d] not enacted uniform standards for matching signatures, nor ha[d] it created qualifications or training for those who engage in the job.” Id. at 1319. And Florida, like New Jersey, “allow[ed] each county to apply its own standards and procedures for executing the signature match requirement, virtually guaranteeing a crazy quilt of enforcement of the requirement from county to county.” Id. at 1320. New Jersey’s failure to ensure uniform application of its statutory signature matching requirement across the State, like Florida’s, violates the Equal Protection Clause.
Evidence from prior election confirms that, in the absence of statewide standards, New Jersey’s mail-in voters are subject to arbitrary disenfranchisement
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based on where they live. Mail-in ballot rejection rates for signature matching issues vary wildly from county to county in New Jersey. For example, in the 2016 general election, Hudson County rejected mail-in ballots based on failure to match signatures at a rate of 172 times the rejection rate in Gloucester County. Notably, Hudson County is New Jersey’s most diverse county, while Gloucester is one of the whitest counties in the state. Such disparities are irreconcilable with equal protection principles. See Bush, 531 U.S. at 107 (finding equal protection violation where one county “used a more forgiving standard” during a recount than another “and uncovered almost three times as many new votes”); League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 478 (6th Cir. 2008) (sustaining equal protection claim where state election system burdened citizens’ right to vote “depending on where they live”).
The Constitution does not permit states, through arbitrary and inconsistent enforcement of election procedures, to condition voters’ franchise on the place where they happen to reside. Reynolds v. Sims, 377 U.S. 533, 560 (1964). New Jersey’s standardless signature matching procedures run afoul of this principle by disenfranchising voters at vastly unequal rates across the state.
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II. PLAINTIFFS WILL FACE IRREPERABLE HARM ABSENT AN INJUNCTION A finding of irreparable harm “clearly follows” from the infringement of
constitutional voting rights. Council of Alt. Political Parties v. Hooks, 121 F.3d 876, 883 (3d Cir. 1997). This is particularly true in voting rights cases, “[b]ecause there can be no ‘do-over’ or redress of a denial of the right to vote after an election.” Fish v. Kobach, 840 F.3d 710, 752 (10th Cir. 2016). For this reason, “[c]ourts routinely deem restrictions on fundamental voting rights irreparable injury.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) (collecting authorities). As the court held in Saucedo, “[i]t cannot be emphasized enough that the consequence of a moderator’s decision—disenfranchisement—is irremediable.” 335 F. Supp. 3d at 218; see also Hooks, 121 F.3d at 883 (unconstitutional state-imposed burdens on voting “cannot be alleviated after the election”). The injury voters face from voting under New Jersey’s existing signature match procedures is thus paradigmatic irreparable harm.
III. THE BALANCE OF HARMS AND THE PUBLIC INTEREST WEIGH HEAVILY IN PLAINTIFFS’ FAVOR Finally, the balance of harms and public interest weigh in favor of granting a
preliminary injunction. While the usual inquiry on a motion for preliminary injunction “calls for assessing the harm to the opposing party and weighing the
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public interest,” the Supreme Court has clarified that “[t]hese factors merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009).
This Circuit has recognized that, “[i]n the absence of legitimate, countervailing concerns, the public interest clearly favors the protection of constitutional rights,” including voting rights. Hooks, 121 F.3d at 883-84. “By definition,” then, “the public interest favors permitting as many qualified voters to vote as possible.” League of Women Voters of N.C., 769 F.3d at 247 (internal alterations omitted). Here, preliminary relief will ensure that when eligible New Jersey voters cast valid ballots on July 7 and beyond, the State will either count their ballots or notify them of ballot impairments and give them an opportunity to fix the issue so their votes can count. This relief thus supports the public interest in protecting the fundamental right to vote.
Preliminary relief also supports the public’s strong interest in maintaining public confidence in the integrity of elections. As the Eleventh Circuit explained in Lee:
[P]ublic knowledge that legitimate votes were not counted due to no fault of the voters—and with no reasonable notice to the voters that their votes would not be counted and no opportunity to correct that situation—would be harmful to the public’s perception of the election’s legitimacy. Yet protecting public confidence in elections is deeply important—indeed, critical—to democracy. 915 F.3d at 1327; see also Marks v. Stinson, 19 F.3d 873, 887 (3d Cir. 1994) (“The integrity of the election process lies at the heart of any republic.”). As long as New
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Jersey continues to silently reject validly cast ballots on the basis of an error-prone signature verification system, voters cannot have the confidence they deserve that their election results reflect the will of New Jersey’s people.
While demonstrating that public interest favors granting preliminary relief is enough here, it is also true that Defendant Way will suffer no harm if relief is granted. To the contrary, the State—like the public at large—has an affirmative interest in protecting voters’ confidence in the integrity of elections. Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989). New Jersey has the information it needs to provide voters with notice when there is a signature issue impairing their ballot. Implementing a system for pre-deprivation notice and an opportunity to cure would require few additional resources from the State, a cost well worth the value of protecting the integrity of New Jersey’s elections and safeguarding Plaintiffs’ most precious fundamental right.
CONCLUSION Plaintiffs bring serious, meritorious challenges to the constitutionality of New Jersey’s signature matching procedures for authenticating mail-in and provisional ballots. No legitimate government interest justifies reliance on error-prone processes to reject ballots without meaningful notice and an opportunity to cure. Preliminary relief is needed to protect Plaintiffs from the imminent risk of erroneous disenfranchisement. Such relief will further the public interest by promoting
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confidence in New Jersey’s elections and ensuring that validly cast votes are not wrongfully rejected. Plaintiffs’ motion for a preliminary injunction should be granted.

Dated: June 3, 2020

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/s/ Alanna Kaufman Alanna Kaufman David A. Lebowitz* 10 East 40th Street, Suite 3307 New York, NY 10016 Telephone: (212) 660-2332

NEW JERSEY INSTITUTE FOR SOCIAL JUSTICE

* Pro hac vice admission pending ^Licensed in CA only; supervision by Danielle Lang, D.C. Bar member.

Ryan Haygood Andrea McChristian* Henal Patel 60 Park Place, Suite 511 Newark, New Jersey 07102 Telephone: (973) 624-9400
Counsel for Plaintiffs

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP NEW JERSEY STATE CONFERENCE, WILLIAM M. RIGGS, SHAMISA ZVOMA, and DEBORAH J. RISKA,

Civil Action No: 3:20-cv-05990MAS-LHG

Plaintiffs,

FIRST AMENDED COMPLAINT

v.

TAHESHA WAY, in her official capacity as Secretary of State of the State of New Jersey,

Defendant

INTRODUCTION 1. This case raises fundamental legal questions about the integrity of New Jersey’s democratic processes generally, and its disparate impact on voters with disabilities, the elderly and very young voters, Black, Latina/o, and other voters of color, and voters for whom English is a second language. New Jersey’s failure to provide mail-in and provisional voters with prompt notice of, and opportunity to cure, signature-related issues is unconstitutional. 2. The State of New Jersey guarantees every voter the right to cast their ballot by mail, and guarantees every voter, under certain circumstances, the right to vote by provisional ballot at polling places on Election Day. But each election,

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thousands of mail-in and provisional voters are effectively disenfranchised when the State rejects their mail-in or provisional ballots because of inadvertent signaturerelated errors or matters of penmanship. The State gives the voter no opportunity to remedy the perceived impairment so that their vote may be counted.
3. New Jersey’s failure to provide mail-in and provisional voters with notice and an opportunity to cure signature-related errors before rejecting their voteby-mail and provisional ballots is unconstitutional under any circumstance, depriving mail-in voters of their fundamental right to vote in violation of the First and Fourteenth Amendments to the United States Constitution, as well as their right to due process of law in violation of the Fourteenth Amendment to the United States Constitution.
4. This year, amidst the COVID-19 pandemic, the issue takes on greater urgency because of New Jersey’s already demonstrated—and dramatic—shift towards voting by mail. While historically fewer than 10 percent of New Jersey voters voted by mail, pursuant to an executive order issued by Governor Phil Murphy directing all-mail elections to protect public health, all voters who participated in the May 12, 2020 elections had no choice but to do so.1 Likewise, the July 7, 2020 primary and November 3, 2020 general elections will see a multifold increase in vote
1 See N.J. Exec. Order No. 105 (Mar. 19, 2020), https://nj.gov/infobank/eo/056murphy/pdf/EO-105.pdf.
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by mail. Other than an accommodation for certain members of the disability community, the July 7, 2020 Election will be conducted wholly through vote-bymail and provisional ballots.2
5. Mail-in and provisional voters deserve the same confidence that their vote will be counted as if they voted by machine at their local polling site on Election Day. But current New Jersey law precludes such confidence. In the upcoming elections, the State’s procedurally flawed signature-verification system will likely cause thousands, or even tens of thousands, of vote-by-mail and provisional ballots to go uncounted, and thus result in thousands or tens of thousands of New Jerseyans losing their voice in the political process.
THE PARTIES 6. Plaintiff League of Women Voters of New Jersey (“LWVNJ”) is a membership organization dedicated to promoting civic engagement and protecting democracy through advocacy, voter education, and voter assistance. As part of its mission, LWVNJ advocates for expansion of voting opportunities, including through vote-by-mail, and provides information directly to members who wish to vote by mail, including by providing links on its website where members can find information about voting by mail, download an application to vote by mail, and view
2 See N.J. Exec. Order No. 144 (May 15, 2020), https://nj.gov/infobank/eo/056murphy/pdf/EO-144.pdf.
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a guide to completing the application. LWVNJ has about 1,450 members across the state. A substantial number of them have previously voted by mail and even more members intend to vote by mail in New Jersey’s upcoming elections. LWVNJ’s membership is broad and diverse and includes many individuals who due to age or disability are at heightened risk of being denied the right to vote because of signature issues. Members have likely been denied the right to vote due to signature issues in previous elections and are statistically likely to be denied the right to vote due to signature issues in upcoming elections.
7. Plaintiff NAACP New Jersey State Conference (NJ NAACP) is an affiliate of the National Association for the Advancement of Colored People, a nonprofit corporation. The mission of the NJ NAACP is to ensure the political, educational, social, and economic equality of rights of all persons and to eliminate racial discrimination. The NJ NAACP has approximately 7,000 active members across the state. The NJ NAACP is active in Hudson County, the most diverse county in New Jersey, and the county that had the highest rate of ballot rejections due to signature issues in the state during the 2016 election.3 The NJ NAACP also has a robust presence in Newark. Newark, the state’s most populous city, has a population that is 50 percent Black. In 2014, Essex County, the county in which Newark is
3 Election Administration and Voting Survey Datasets (“EAVS 2016”) (2016), https://www.eac.gov/research-and-data/datasets-codebooks-and-surveys.
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located, had the highest rate of ballots rejected because of a signature issue in the state.4
8. A substantial number of NJ NAACP members have previously voted by mail and even more members intend to vote by mail in New Jersey’s upcoming elections. NJ NAACP’s members have likely been denied the right to vote due to signature issues in previous elections and are statistically likely to be denied the right to vote due to signature issues in upcoming elections. Moreover, because of the State’s failure to provide mail-in voters with notice of and an opportunity to cure signature-related issues, in Hudson and Essex Counties, as well as in other counties in the state with large Black and Brown communities, NJ NAACP’s local branches must heighten efforts to educate voters about vote-by-mail, signature issues, and how to determine whether their ballots have been counted.
9. Plaintiff William M. Riggs is a 78-year-old citizen of the State of New Jersey, residing in Middlesex County, who is registered to vote by mail and intends to vote by mail in all future elections. Plaintiff Riggs has Parkinson’s Disease, a progressive nervous system disorder that affects movement. In 2004, he was diagnosed with Essential Tremor, a nervous system disorder that causes involuntary and rhythmic shaking. He was formally diagnosed with Parkinson’s Disease in 2016.
4 Election Administration and Voting Survey Datasets (“EAVS 2014”) (2014), https://www.eac.gov/research-and-data/datasets-codebooks-and-surveys.
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Mr. Riggs’s symptoms include a hand tremor—which varies unpredictably in severity—as well as physical instability.
10. Mr. Riggs used to have excellent handwriting—often described as beautiful. But now, his hand tremor, which varies significantly in severity over time without predictability, has severely affected his penmanship. As a result, he sometimes finds his own signature to be illegible. Moreover, whereas he used to routinely sign his full name, he now often can sign his name only as “W.M. Riggs.” As such, he reasonably believes that there is a substantial risk that his signature will be erroneously deemed inauthentic if compared to an earlier exemplar of his signature.
11. Mr. Riggs used to vote exclusively in person but has ceased to vote in person because he no longer has a driver’s license and due to his progressive disease, he is no longer able to safely drive. Moreover, given his age and health conditions, it would not be safe for him to vote in person in light of the current COVID-19 crisis.
12. Plaintiff Shamisa Zvoma is a registered New Jersey voter who has been disenfranchised by New Jersey’s unconstitutional signature matching regime. Plaintiff Zvoma resides in Montclair, New Jersey and is a member of the League of Women Voters of New Jersey.
13. Ms. Zvoma is a longtime, avid voter, who votes in every election that she can. Because of the COVID-19 crisis, her town held its May 12, 2020 municipal
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elections entirely by mail. As such, she—like all other voters in her town—had no choice but to cast her vote by mail-in ballot. Ms. Zvoma followed the instructions she was provided, filled out her ballot, signed it, and sent it back to the Essex County Board of Elections well in advance of Election Day.
14. On May 22, 2020, Ms. Zvoma received a letter from the County Board informing her that her ballot “was not eligible to be counted” because they had determined the signature they had in her voter registration file did not match the one she provided on her ballot certification. The Board did not provide Ms. Zvoma with any opportunity to verify her ballot and have her vote counted in the May election.
15. Plaintiff Zvoma is outraged and disheartened that her ballot was rejected. If the County had provided Ms. Zvoma with the opportunity to remedy the signature issue and have her ballot counted, she would have taken whatever steps were necessary to do so. This experience has diminished Ms. Zvoma’s confidence in New Jersey’s vote-by-mail system, and she fears that this will happen to her again in future elections.
16. Plaintiff Deborah J. Riska has been disenfranchised by New Jersey’s unconstitutional signature verification system in the last two general elections—in 2016 and again in 2018.
17. Plaintiff Riska has been a registered New Jersey voter for 20 years. She resides in Ledgewood, New Jersey and is a regular voter. Ms. Riska has voted by
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mail intermittently over the years. She is a mother and found that mail-in voting made voting more accessible, particularly when her children were young.
18. In 2016, Ms. Riska was automatically enrolled on the permanent voteby-mail list for her county. Since then, every time she has voted, she has voted by mail-in ballot, including in the 2016 general election. Ms. Riska’s validly cast 2016 ballot, however, was not counted because of a perceived signature mismatch. She was not aware there was any issue with the ballot she cast in 2016 until recently, nearly four years after the election in question had concluded.
19. In 2018, Ms. Riska cast her ballot for the November general election by mail for a second time. Again, her validly cast ballot was rejected and never counted because of a perceived signature mismatch. She was not informed that there was any issue with her ballot until she received a letter in January of 2019 notifying her that her ballot had been rejected because of a signature discrepancy. This was three months after the election, and Ms. Riska was not provided with any opportunity to remedy the ballot impairment to have her vote counted. If she were provided such an opportunity, Ms. Riska would have taken whatever steps were available to her to remedy the issue and have her vote counted.
20. To avoid being disenfranchised again, Ms. Riska attempted to vote inperson at her polling location in 2019. When she arrived, though, she was told she could not vote in-person because she was on the mail-in ballot list. Ms. Riska was
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refused the opportunity to vote provisionally. Plaintiff Riska believed voting by mail would be pointless, because her ballot would simply be rejected again. As a result, Ms. Riska decided not to vote in that election at all.
21. This experience has shaken Plaintiff Riska’s confidence in New Jersey’s election system. Ms. Riska no longer trusts that her ballot will be counted if she casts it by mail, and she has doubts about the integrity and legitimacy of the ballot counting process. While Ms. Riska intends to participate in future elections, she will not feel secure casting a mail-in ballot until this problem has been addressed.
22. Defendant Tahesha Way is the Secretary of State of New Jersey and serves as New Jersey’s chief election official. N.J. Stat. § 52:16A-98. She is responsible for administering elections in New Jersey, including through the promulgation of rules and regulations necessary to effectuate elections conducted by mail, N.J. Stat. §§ 19:62-13 and 19:63-3, and the signature verification process specifically, N.J. Stat. § 19:62-3(c).5 Through the Administrative Procedures Act, N.J. Stat. §§ 52:14B-1 to 24, she has broad powers to promulgate rules to effectuate
5 Although § 19:62-3(c) and § 19:62-13 refer to rules and regulations promulgated by the Attorney General, “any references to the Attorney General relative to any elections matter appearing in the statutory law shall be a reference to the Secretary of State, unless the context or language of the statute provides otherwise.” N.J. Stat. § 52:16A-98(b).
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the language and spirit of New Jersey’s election statutes. She is being sued in her official capacity.
JURISDICTION AND VENUE 23. Plaintiffs bring this action under 42 U.S.C. § 1983. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a). 24. This Court has jurisdiction to grant both declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202. 25. This Court has personal jurisdiction over the Defendant, who resides in this district and is sued in her official capacity. 26. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).
FACTS Vote By Mail in New Jersey 27. In New Jersey, any qualified voter may request a mail-in ballot. N.J. Stat. § 19:63-3(a). 28. Certain qualified municipalities with populations of 500 people or less may elect to conduct all elections entirely by mail, and voters in those jurisdictions are automatically provided with mail-in ballots. N.J. Stat. § 19:62-2(a-b). 29. To request a mail-in ballot, a voter must provide their name, the address at which they are registered to vote, the address to which they want their ballot sent, their phone number, and their signature. N.J. Stat. § 19:63-3(a-b) The voter may also
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provide their email address and opt to enroll in the permanent by-mail voter list to receive mail-in ballots in all future elections without submitting any further request. N.J. Stat. § 19:63-3(e)(1). As a result, some mail-in voters submit their mail-in ballot request months or years before the upcoming election in which they will cast a ballot.
30. Once the county clerk in the voter’s county of registration receives their mail-in ballot application, the clerk must verify the voter’s identity by comparing the signature on the ballot request form to the signature the voter provided when they registered to vote. N.J. Stat. § 19:63-8. If the clerk deems the signatures a match, the vote-by-mail application is approved, and the voter is added to the rolls of individuals who may vote by mail. Id. If the clerk believes the signatures do not match, the application is disapproved, and the voter is notified of the disapproval and the reason therefor. Id. Alternatively, the clerk may also use “any other available information” to make the eligibility determination. See N.J. Stat. § 19:63-8.
31. Beginning 45 days prior to an election, the State sends mail-in ballots to voters on the vote-by-mail rolls. N.J. Stat. § 19:63-9.
32. Although voters generally complete this process independently and in secret, they can receive assistance from a family member. N.J. Stat. §§ 19:63-13, 19:63-16.
33. On information and belief, neither the State, nor any of New Jersey’s 21 county clerks’ offices, warns voters that the signatures they provide throughout
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this process will be examined to determine the validity of their ballots once they are cast. N.J. Stat. §§ 19:63-11, 19:63-13. Nor do the State or counties inform voters that if their local election official finds a discrepancy with their signature, the official will reject their ballot entirely.
34. Rather, in at least some New Jersey counties, including Middlesex and Monmouth, mail-in voters are informed that all mail-in ballots are counted and included in the election results.6
35. Promptly upon receiving a mail-in ballot, the county board of elections in the voter’s county of registration must examine a voter’s ballot envelope to determine if the ballot was validly cast. If the county board of elections determines that a voter’s signature is missing or does not “match” either the signature on the voter’s mail-in ballot application form or their signature in the statewide voter registration system, the ballot is rejected as invalid and not counted. N.J. Stat. § 19:63-17.
36. Upon information and belief, New Jersey does not require that officials of the State’s 21 county boards of elections receive any training in signature
6 See Middlesex County NJ, FAQ About Elections, http://www.middlesexcountynj.gov/Government/Departments/CS/Pages/County% 20Clerk/FAQ%20About%20Elections.aspx (last visited May 13, 2020); Monmouth County Votes, Vote By Mail, https://www.monmouthcountyvotes.com/voter-information/vote-by-mail/ (last visited May 13, 2020).
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or handwriting analysis, nor does it provide them with written standards or guidelines to aid in this assessment.
37. Upon information and belief, New Jersey does not require officials in any of the State’s 21 counties to spend any minimum amount of time comparing the signature exemplars when examining mail-in ballots.
38. New Jersey does not provide voters whose mail-in ballots are deemed to have signature-related defects with any pre-deprivation notice, nor does it give the voter any opportunity to cure the defect.
39. Indeed, New Jersey law only requires that the State provide voters with a “free-access system,” such as a toll-free hotline or website, that they may access after the election has concluded to determine whether their ballot was counted, or the reason for its rejection, if applicable. N.J. Stat. § 19:61-5. At that point, if a voter learns that New Jersey has rejected their ballot—either by affirmatively inquiring themselves or through any post-deprivation notice—the voter has no opportunity to have their vote counted.
40. This contrasts sharply with New Jersey’s process for mail-in ballot applications, where the voter is notified if there is any deficiency related to their signature that results in the rejection of their application, enabling them to renew their application or choose to vote in person. N.J. Stat. § 19:63-8.
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41. Similarly, New Jersey law requires that signature comparisons performed by election officials during in-person voting occur openly and publicly. If any challenge is raised concerning the authenticity of a voter’s signature during in-person voting, the voter is permitted to establish, in real time, their right to vote by appropriate proof. N.J. Stat. §§ 19:15-17(a), 19:15-18.1. Mail-in voters are given no such opportunity.
42. Mail-in voting need not be conducted this way. New Jersey law specifically authorizes Defendant Way to adopt rules and regulations to govern the vote by mail system. State law also charges Defendant Way with overseeing the training of local election officials. N.J. Stat. § 19:50-1(b).
43. It is within Defendant’s power to ensure that mail-in voters are provided with pre-rejection notice and a meaningful opportunity to cure, and to implement any other trainings or guidelines necessary to standardize the signature verification process across New Jersey’s 21 counties. Defendant has issued no rules or regulations, prepared no guidelines, and conducted no trainings to standardize the signature verification process or provide absentee voters with pre-deprivation notice of signature mismatches and an opportunity to cure.
44. Implementing a pre-rejection notice and opportunity to cure procedure for voters would not significantly burden the State. State and local election officials already have access to voter files containing voter information such as addresses,
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phone numbers, and emails, which they could use to provide mail-in voters whose ballots have signature related impairments with notice that their ballot may be rejected and an opportunity to cure.
Provisional Ballots in New Jersey 45. While in-person voting in New Jersey is typically by machine, there are certain circumstances when a voter is not permitted to vote by machine. If a question regarding the voter’s eligibility to vote in the precinct arises, the ordinary resolution is a provisional ballot that can later be verified. 46. In New Jersey, any registered voter who appears at a polling place on Election Day may vote by provisional ballot if (a) they moved within a municipality, but to a different election district, and did not update their address; (b) they moved within a county and did not update their address; (c) their registration information is missing; or (d) if the voter has applied for a mail-in ballot and did not receive nor submit it. N.J. Stat. § 19:53C-3. 47. On May 15, 2020, Governor Murphy signed Executive Order 144. The Order mandates that: “Any voter who appears at a polling place on the day of the July primary shall vote via a provisional ballot, except that a voter with disabilities may vote on an ADA-accessible voting machine.”7
7 See N.J. Exec. Order No. 144, ¶ 10 (May 15, 2020), https://nj.gov/infobank/eo/056murphy/pdf/EO-144.pdf.
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48. When voting via a provisional ballot, a voter at a polling place is handed a provisional ballot packet. This packet is prepared by the county clerk, or municipal clerk in a municipal election, and includes an envelope, affirmation statement, and a written notice. N.J. Stat. § 19:53C-1. The affirmation statement includes space for the voter’s name, the reason for voting provisionally, space to provide the voters’ most recent prior voter registration address, address of the day of the election, and the voter’s date of birth. Id.
49. In addition, the affirmation includes the statement: “I swear or affirm, that the foregoing statements made by me are true and correct and that I understand that any fraudulent voting may subject me to a fine of up to $15,000, imprisonment up to five years or both, pursuant to R.S.19:34-11.” Id. This language is followed immediately by space for the voter’s signature and printed name. Id. The affirmation statement must be completed and signed by the voter prior to or immediately after casting the provisional ballot. N.J. Stat. § 19:53C-6.
50. While a written notice is included in the provisional ballot packet, the notice is not required to inform the voter that the ballot could be rejected because of a signature match issue. N.J. Stat. § 19:53C-1.
51. Once the voter casts their ballot, the voter must place the ballot in the envelope, seal it, and hand it to a member of the district board. N.J. Stat. § 19:53C10. The member of the district board hands the voter a written notice of instructions
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on how the voter may access information regarding the status of the provisional ballot, whether their vote was counted, and if rejected, the reason for rejection. Id. There is no requirement for the notice to include a warning that the ballot may be rejected because of a signature match issue. Id.
52. Once delivered to the county for counting, the process looks nearly identical to that governing mail-in ballots. Election officials are required to compare the voter’s signature on their provisional ballot to the signature on their voter registration form. N.J. Stat. § 19:53C-13. If they do not match, the provisional ballot is rejected. Again, the officials who do these signature comparisons are not handwriting experts and receive no standard training or guidance from the State.
53. There is also, similarly, no affirmative or pre-rejection notice requirement for provisional ballot rejections. While the State does allow provisional voters to call the hotline or check the Division of Elections’ website to determine their status, they can only do so after the election has ended and votes are finalized. There is also no opportunity to cure. Instead, the majority of the county board makes a decision about the voter’s ballot and that decision is “final.” N.J. Stat. § 19:53C18.
54. Hundreds of provisional ballots in previous elections have been rejected because of signature mismatch issues. In 2018, almost 300 provisional
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ballots were rejected because of no or mismatched signature.8 This number will only increase this year as the only in-person voting option for the vast majority of voters will be via provisional ballot. New Jersey’s Signature Verification Procedure for Mail-In and Provisional Ballots
Is Unacceptably Error-Prone 55. Signature verification is an inherently flawed means of determining whether a mail-in or provisional ballot is fraudulent or inappropriately cast. 56. No two signatures are exactly alike because of the many factors that affect the consistency of a person’s signature from one signing (i.e., the mail-in ballot application or voter registration) to another (i.e., the mail-in ballot), including very variable factors such as type of pen, writing surface, stress, or other writing conditions. 57. Signature variance is more common among certain populations of voters, including those with disabilities, those with less formal levels of education, elderly and young voters, and voters for whom English is a second language. Parkinsonism and other neurological disorders can also significantly affect handwriting characteristics, engender unfounded scrutiny over the authenticity of signatures, and impede accurate assessment of them.
8 Election Administration and Voting Survey Datasets Version 1.2 (“EAVS 2018”) (Feb. 18, 2020), https://www.eac.gov/research-and-data/datasets-codebooks-andsurveys.
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58. And while New Jersey does not maintain the racial or demographic data of those whose ballots are rejected, a study in Florida found that Black and Latina/o voters were more likely to have their ballots rejected. In 2016, 1.9% of Black voter ballots were rejected, 1.8% of Hispanic voter ballots were rejected, while only 0.7% of white voter ballots were rejected.9
59. Even experienced forensic document examiners (FDEs) can find it difficult if not impossible to distinguish natural variations in a person’s signature from fraudulent ones, especially where the reviewer has limited exemplars to compare.
60. Laypersons, such as New Jersey election officials, have a significantly higher rate of error in determining whether signatures are genuine. Laypersons are also more likely to wrongly determine that authentic signatures are not genuine than to make the opposite error. In one study, laypeople incorrectly judged authentic signatures to be inauthentic more than 26% of the time.
61. Thus, in every election, the untrained election officials responsible for signature verification under New Jersey’s mail-in and provisional ballot verification system reject validly cast ballots because of erroneous judgments on signature matching issues.
9 See Daniel A. Smith, Vote-By-Mail Ballots Cast in Florida, American Civil Liberties Union of Florida (Sep. 19, 2018), https://www.aclufl.org/en/publications/vote-mail-ballots-cast-florida.
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62. Also, because election officials undertake this task without standardized guidelines or procedures governing their analysis, they reject ballots based on arbitrary, variable criteria. Absentee ballot rejection rates for signaturematching issues therefore vary significantly from county to county in New Jersey. For example, in the 2016 general election, Hudson County, New Jersey’s most diverse county, rejected mail-in ballots based on failure to match signatures at a rate 172 times the rejection rate in Gloucester County, one of the whitest counties in the state. EAVS 2016, supra note 2.
63. Similarly, the rates of rejection for provisional ballots due to signature match vary by county. In 2018, Camden County, where one of New Jersey’s most diverse cities, Camden, is located, the highest percentage of total provisional ballots cast were rejected because of signature match. In comparison, Warren and Cape May Counties—two of the whitest counties in New Jersey—appear to not have rejected any provisional ballots because of signature mismatch. EAVS 2018, supra note 8.
64. The unintentional omission of a voter’s signature from their mail-in or provisional ballot often reflects innocent user error rather than fraud or misconduct. Such an error could be easily resolved by providing the affected voter with notice of the problem and an opportunity to fix it. New Jersey’s Constitutionally Deficient Signature-Verification Process Denies the
Right to Vote to Thousands of Voters
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65. Each election, New Jersey’s signature verification system impacts thousands of New Jersey voters, often constituting at least one percent of all mail-in voters and hundreds of provisional ballot voters, who have their ballots rejected for benign signature-related deficiencies, including that they did not sign the ballot envelope or that their signature could not be “matched” to either the vote-by-mail application or the voter registration form.
66. During the 2016 Presidential General Election, for example, over 355,000 New Jersey voters cast their ballots by mail. About 4,000 of those voters, representing nearly one percent of the by-mail votes cast in the election, did not have their votes counted because of a signature-related problem, including over 1100 rejected because of the perceived lack of a signature-match. EAVS 2016, supra note 2.
67. Over 11% of all absentee ballots rejected statewide in the 2016 election were rejected based on a perceived lack of signature-match. Id. However, the likelihood of a signature-related ballot rejection varied significantly depending on the absentee voter’s county of residence. For example, whereas 11.76% of rejected absentee ballots were for signature-mismatch issues in Union County, 38.97% of rejected absentee ballots were for signature-match issues in Hudson County. Id.
68. Two years later, in the 2018 Midterm Election, the results were no better. Out of the approximately 400,000 New Jersey voters that cast their ballots by
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mail, approximately 6,000, or about 1.5% of all by-mail voters, had their ballots rejected—and their votes consequently not counted—based on a signature-related deficiency, including nearly 2,000 due to the perceived lack of a signature-match. EAVS 2018, supra note 8.
69. Again, the likelihood of a signature-related ballot rejection varied based on the absentee voter’s county of residence. Whereas in the 2018 election, 16.4% of absentee ballots rejected statewide were rejected for signature-match issues, the rate of rejection varied dramatically from county to county. Id. For example, while 3.3% of rejected absentee ballots were rejected in Union County for signature-match issues, 34.9% of rejected mail-in ballots were rejected in Hudson County because of alleged signature mismatch. Id.
70. There is similar variance among counties with respect to provisional ballot rejections because of signature issues. For example, 1 percent of total provisional ballots cast in Camden County were rejected because of signature mismatch, while 0% of those cast in Cape May County were rejected because of signature mismatch. Id.
71. Upon information and belief, none of the voters whose ballots were rejected in the 2016 or 2018 elections received pre-rejection notice that their ballots were impaired by a signature defect, nor did they have any opportunity to cure the issue and have their vote counted. Upon information and belief, if these absentee or
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provisional voters had been provided notice and an opportunity to cure before their ballots were rejected, many would have been able to verify their identity notwithstanding the signature-related discrepancy. As a result, the State rejected valid ballots cast by many eligible New Jersey voters.
72. There is no legitimate state interest advanced by New Jersey’s unreliable signature verification procedures, or by its failure to provide notice and an opportunity to cure when a ballot is rejected because of an ostensible signaturerelated defect. New Jersey’s Constitutionally Deficient Signature-Verification Process Will Affect
a Growing Number of Voters 73. The number of New Jerseyans who will vote by mail—and thus the number that will have their ballot rejected through New Jersey’s signatureverification process—is likely to increase significantly in upcoming elections, including the July 7, 2020 primary election and the November 3, 2020 general election. 74. Even before the May 12, 2020 election, which was conducted entirely by mail, voters in New Jersey had already begun choosing to vote by mail in increasing numbers, and their ability to do so was recently made even easier by New Jersey’s expansion of its vote-by-mail law. 75. The ongoing COVID-19 pandemic is expected to further accelerate New Jersey’s dramatic shift towards mail-in voting. The State, echoing the Centers
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for Disease Control and Prevention (“CDC”) recommends that to protect themselves from COVID-19, all citizens should “stay at home . . . except to get essentials,” and that “additional steps” may be warranted for older adults and those with chronic or underlying conditions that place them at increased risk of complications from the disease.10 Moreover, the CDC’s first recommendation for election officials in the midst of this pandemic is to “[e]ncourage mail-in methods of voting.”11
76. New Jersey also heeded the CDC’s advice for the May 12, 2020 local elections, when Governor Phil Murphy ordered that all ballots be cast by mail. As a result, counties mailed all registered voters a vote-by-mail ballot. Without an application, the signature on the voter’s ballot will be compared to the voter’s registration form. This eliminated the nominal notice process New Jersey law has of alerting voters that their vote-by-mail application was rejected because of a signature match issue. Moreover, it ensured that the signature comparison process will be based upon even staler signatures dating back potentially decades.
77. On May 15, 2020, Governor Phil Murphy announced the upcoming July primary elections will be held primarily by mail. Mail-in ballots will be sent to
10 New Jersey COVID-19 Information Hub, https://covid19.nj.gov/faqs/njinformation/general-public/how-can-i-protect-myself-from-covid-19/novelcoronavirus (last updated May 7, 2020). 11 Ctrs. for Disease Control and Prevention, Recommendations for Election Polling Locations, https://www.cdc.gov/coronavirus/2019-ncov/community/electionpolling-locations.html (last updated Mar. 27, 2020).
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all registered Democratic and Republican voters and applications for mail-in ballots will be sent to all unaffiliated registered voters. In-person polling locations will be limited and, other than as an accommodation for members of the disability community, all voters will have to vote via provisional ballot. Between the expansion of vote-by-mail and the requirement for most voters who choose to vote in person to vote by provisional ballots, the vast majority of voters in New Jersey will be subject the State’s signature match policy.
78. Based on these state and federal recommendations, and out of their own sense of health and safety, New Jersey voters are expected to cast their ballots by mail in historic numbers in the upcoming July and November elections. By voting by mail where possible, New Jersey citizens can do their part to protect public health and reduce crowds and lines at polling locations that may be maintained to serve populations that rely on or strongly prefer in-person voting, including some people of color, voters with disabilities or language needs, or those with unreliable postal service.
79. As a growing number of New Jersey voters rely on the State’s mail and provisional voting system, whether by choice or necessity, more voters risk having their ballot rejected because of a signature-related impairment. Court intervention is necessary to ensure the State provides these voters with constitutionally necessary
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notice and an opportunity to cure and to safeguard these voters’ fundamental right to vote.
FIRST CLAIM FOR RELIEF 42 U.S.C. § 1983: Denial of Due Process Under the Fourteenth Amendment
80. Plaintiffs reallege and incorporate by reference the allegations in the preceding paragraphs.
81. An individual has a liberty interest in the fundamental right to vote that is protected by the right to due process. New Jerseyans also have a statutorily protected liberty interest in voting by mail.
82. At a minimum, procedural due process requires that the State provide its vote-by-mail and provisional voters with notice and a meaningful opportunity to be heard before being denied their protected liberty interest.
83. The requirement for pre-deprivation notice is particularly important when deprivation will result in irreparable injury, as is the case with voting.
84. New Jersey’s failure to provide vote-by-mail and provisional voters with any opportunity to cure signature-related deficiencies with their ballot— particularly given the unreliability of signature matching and election officials’ unfettered discretion to reject ballots—does not meet these minimum requirements of procedural due process and is thus unconstitutional.
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85. Such an opportunity to cure is particularly warranted here given the balance of implicated interests and harms. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). First, absent relief, vote-by-mail and provisional voters may be erroneously deprived of their fundamental right to vote. Second, the risk of erroneous deprivation caused by the unreliability of signature matching and election officials’ unfettered discretion to reject ballots is high. Finally, the implementation of procedures to provide vote-by-mail and provisional voters with notice and an opportunity to cure would impose only a minimal burden on the State, which already maintains records during the ordinary course of business containing voter contact information, and already has infrastructure in place to carry out notice requirements given its existing legal obligation to inform mail-in voting applicants when their application is rejected because of a signature issue.
86. Absent the implementation of procedural safeguards, including notice and a meaningful opportunity to cure perceived signature-related deficiencies before a vote-by-mail or provisional ballot is rejected, mail-in and provisional voters in New Jersey will continue to face a substantial risk of being deprived of their fundamental right to vote without due process.
87. The State has no legitimate interest in permitting untrained local officials to reject voters’ ballots based on an unreliable signature authentication process without providing voters any notice or opportunity to cure.
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88. New Jersey’s current signature-verification procedure denies New Jersey voters procedural due process in violation of the Fourteenth Amendment.
SECOND CLAIM FOR RELIEF 42 U.S.C. § 1983: Denial of the Fundamental Right to Vote in Violation of the
First and Fourteenth Amendments 89. Plaintiffs reallege and incorporate by reference the allegations in the preceding paragraphs. 90. “There is no right more basic in our democracy than the right to participate in electing our political leaders.” McCutcheon v. FEC, 572 U.S. 185, 191 (2014). The Supreme Court has recognized that “voting is of the most fundamental significance under our constitutional structure.” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)). 91. When analyzing the constitutionality of a restriction on voting, the Court “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). Unreasonable,
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severe, or discriminatory burdens on the right to vote are subject to particularly close constitutional scrutiny.
92. Defendant’s unreliable signature-verification process rejects a significant number of validly cast ballots every election cycle as a result of benign discrepancies or technical errors. Defendant denies the individuals who cast these ballots the right to vote without any pre-deprivation notice or opportunity to verify their ballots. This system operates without uniform standards across counties and therefore puts voters’ ballots at risk of rejection based on arbitrary, variable criteria. Such a system imposes a severe burden on voters’ fundamental right to vote.
93. The severity of this burden is exacerbated by voters’ increasing need to rely on mail and provisional ballots to effectively cast a ballot while safeguarding their health. Voters should not be required to risk their health or lives to cast a ballot they can be confident will count.
94. As discussed above, each time a county board of elections—comprised of laypersons with no expertise in handwriting analysis—subjectively believes there is a mismatch between the signature accompanying the voter’s mail-in or provisional ballot and the signature in the voter’s file, that ballot is not counted, notwithstanding the many benign factors that can cause signature variation. And those factors place certain voters at heightened risk on the basis of their age, disability, national origin,
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race, or educational background without notice that their votes, once cast, could be rejected, or that they cannot be cured once their ballots are rejected.
95. In contrast to the mail-in and provisional voting system, voters facing signature verification issues at their polling location are afforded the opportunity to verify their identity and cast a ballot. New Jersey law affords no similar opportunities to mail-in and provisional voters.
96. Defendant can proffer no justification for this error-prone and procedurally deficient system that would outweigh the injury the rejection of thousands of ballots each election inflicts on the eligible voters who cast those ballots.
97. New Jersey’s current signature verification procedure unduly burdens the right to vote in violation of the First and Fourteenth Amendments.
THIRD CLAIM FOR RELIEF 42 U.S.C. § 1983: Denial of Equal Protection Under the Fourteenth
Amendment 98. Plaintiffs reallege and incorporate by reference the allegations in the preceding paragraphs. 99. The Equal Protection Clause of the Fourteenth Amendment requires “that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment,
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value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000).
100. In the absence of any state-wide standards, New Jersey’s unreliable and error-prone signature-verification procedures subject mail-in and provisional voters to arbitrary differences in the way signatures are analyzed depending on the county in which they reside.
101. This standardless system has led to significantly disparate rates of signature matching rejections from county to county in New Jersey.
102. New Jersey’s reliance on signature matching to verify mail-in and provisional voters, without any standardized guidance, training, or procedures in place to provide such voters with notice and an opportunity to cure signature-related ballot rejections, does not further any compelling or legitimate state interest sufficient to justify the unequal treatment of voters.
103. New Jersey’s current signature verification procedure violates the Equal Protection Clause of the Fourteenth Amendment.
PRAYER FOR RELIEF WHEREFORE, the Plaintiffs respectfully request that this Court:
(a) Issue a declaratory judgment that New Jersey’s existing signature verification procedures for mail-in and provisional voting unlawfully
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infringe the right to due process in violation of the Fourteenth Amendment to the Constitution of the United States; (b) Issue a declaratory judgment that New Jersey’s existing signature verification procedures for mail-in and provisional voting unlawfully impose an undue burden on the right to vote in violation of the First and Fourteenth Amendments to the Constitution of the United States; (c) Issue a declaratory judgment that New Jersey’s existing signature verification procedures for mail-in and provisional voting unlawfully infringe the guarantee of equal protection in violation of the Fourteenth Amendment to the Constitution of the United States; (d) Issue preliminary and permanent injunctions enjoining Defendant, her agents, employees, and successors, and all those persons acting in concert or participation with them from implementing signature verification procedures that infringe constitutional rights; (e) Preliminarily and permanently order Defendant to establish a procedure by which voters may attempt to cure deficiencies in their mail-in and provisional ballots, to include providing timely notice of such deficiencies and a meaningful opportunity to cure; (f) Grant Plaintiffs’ attorney’s fees, costs, and litigation expenses pursuant to 42 U.S.C. § 1988 and 42 U.S.C. § 12133; and
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(g) Grant other and further relief that the Court may determine to be necessary or proper.
Dated: June 3, 2020 Respectfully submitted,

CAMPAIGN LEGAL CENTER

KAUFMAN LIEB LEBOWITZ & FRICK LLP

Danielle Lang* Rob Weiner* Ravi Doshi* Dana Paikowsky*^ 1101 14th Street NW, Suite 400 Washington, DC 20005 Telephone: (202) 736-2200

/s/ Alanna Kaufman Alanna Kaufman David A. Lebowitz* 10 East 40th Street, Suite 3307 New York, NY 10016 Telephone: (212) 660-2332

NEW JERSEY INSTITUTE FOR SOCIAL JUSTICE

* Pro hac vice application pending ^Licensed in C.A. only; supervision by Danielle Lang, D.C. Bar member.

Ryan Haygood Andrea McChristian* Henal Patel 60 Park Place, Suite 511 Newark, New Jersey 07102 Telephone: (973) 624-9400
Counsel for Plaintiffs

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 Case 2:20-cv-05990 Document 1 Filed 05/18/20 Page 1 of 26 PageID: 1

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP NEW JERSEY STATE CONFERENCE, and WILLIAM M. RIGGS,
Plaintiffs,
v.
TAHESHA WAY, in her official capacity as Secretary of State of the State of New Jersey,

COMPLAINT

Defendant.

INTRODUCTION 1. This case raises fundamental legal questions about the integrity of New Jersey’s democratic processes generally, and its disparate impact on voters with disabilities, the elderly and very young voters, Black, Latina/o, and other voters of color, and voters for whom English is a second language. New Jersey’s failure to provide mail-in voters with prompt notice of, and opportunity to cure, signaturerelated issues is unconstitutional. 2. The State of New Jersey guarantees every voter the right to cast their ballot by mail. But each election, thousands of mail-in voters are effectively disenfranchised when the State rejects their mail-in ballots because of inadvertent
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signature-related errors or matters of penmanship. The State gives the voter no opportunity to remedy the perceived impairment so that their vote may be counted.
3. New Jersey’s failure to provide mail-in voters with notice and an opportunity to cure signature-related errors before rejecting their vote-by-mail ballots is unconstitutional under any circumstance, depriving mail-in voters of their fundamental right to vote in violation of the First and Fourteenth Amendments to the United States Constitution, as well as their right to due process of law in violation of the Fourteenth Amendment to the United States Constitution.
4. This year, amidst the COVID-19 pandemic, the issue takes on greater urgency because of New Jersey’s already demonstrated—and dramatic—shift towards voting by mail. While historically fewer than 10 percent of New Jersey voters voted by mail, pursuant to an executive order issued by Governor Phil Murphy directing all-mail elections to protect public health, all voters who participated in the May 12, 2020 elections had no choice but to do so.1 Likewise, the July 7, 2020 primary and November 3, 2020 general elections will see a multifold increase in vote by mail.
5. Mail-in voters deserve the same confidence that their vote will be counted as if they voted at their local polling site on Election Day. But current New
1 See N.J. Exec. Order No. 105 (Mar. 19, 2020), https://nj.gov/infobank/eo/056murphy/pdf/EO-105.pdf
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Jersey law precludes such confidence. In the upcoming elections, the State’s procedurally flawed signature-verification system will likely cause thousands, or even tens of thousands, of vote-by-mail ballots to go uncounted, and thus result in thousands or tens of thousands of New Jerseyans losing their voice in the political process.
THE PARTIES 6. Plaintiff League of Women Voters of New Jersey (“LWVNJ”) is a membership organization dedicated to promoting civic engagement and protecting democracy through advocacy, voter education, and voter assistance. As part of its mission, LWVNJ advocates for expansion of voting opportunities, including through vote-by-mail, and provides information directly to members who wish to vote by mail, including by providing links on its website where members can find information about voting by mail, download an application to vote by mail, and view a guide to completing the application. LWVNJ has about 1,450 members across the state. A substantial number of them have previously voted by mail and even more members intend to vote by mail in New Jersey’s upcoming elections. LWVNJ’s membership is broad and diverse and includes many individuals who due to age or disability are at heightened risk of being denied the right to vote because of signature issues. Members have likely been denied the right to vote due to signature issues in
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previous elections and are statistically likely to be denied the right to vote due to signature issues in upcoming elections.
7. Plaintiff NAACP New Jersey State Conference (NJ NAACP) is an affiliate of the National Association for the Advancement of Colored People, a nonprofit corporation. The mission of the NJ NAACP is to ensure the political, educational, social, and economic equality of rights of all persons and to eliminate racial discrimination. The NJ NAACP has approximately 7,000 active members across the state. The NJ NAACP is active in Hudson County, the most diverse county in New Jersey, and the county that had the highest rate of ballot rejections due to signature issues in the state during the 2016 election.2 The NJ NAACP also has a robust presence in Newark. Newark, the state’s most populous city, has a population that is 50 percent Black. In 2014, Essex County, the county in which Newark is located, had the highest rate of ballots rejected because of a signature issue in the state.3
8. A substantial number of NJ NAACP members have previously voted by mail and even more members intend to vote by mail in New Jersey’s upcoming elections. NJ NAACP’s members have likely been denied the right to vote due to
2 Election Administration and Voting Survey Datasets (“EAVS 2016”) (2016), https://www.eac.gov/research-and-data/datasets-codebooks-and-surveys. 3 Election Administration and Voting Survey Datasets (“EAVS 2014”) (2014), https://www.eac.gov/research-and-data/datasets-codebooks-and-surveys.
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signature issues in previous elections and are statistically likely to be denied the right to vote due to signature issues in upcoming elections. Moreover, because of the State’s failure to provide mail-in voters with notice of and an opportunity to cure signature-related issues, in Hudson and Essex Counties, as well as in other counties in the state with large Black and Brown communities, NJ NAACP’s local branches must heighten efforts to educate voters about vote-by-mail, signature issues, and how to determine whether their ballots have been counted.
9. Plaintiff William M. Riggs is a 78-year-old citizen of the State of New Jersey, residing in Middlesex County, who is registered to vote by mail and intends to vote by mail in all future elections. Plaintiff Riggs has Parkinson’s Disease, a progressive nervous system disorder that affects movement. In 2004, he was diagnosed with Essential Tremor, a nervous system disorder that causes involuntary and rhythmic shaking. He was formally diagnosed with Parkinson’s Disease in 2016. Mr. Riggs’s symptoms include a hand tremor—which varies unpredictably in severity—as well as physical instability.
10. Mr. Riggs used to have excellent handwriting—often described as beautiful. But now, his hand tremor, which varies significantly in severity over time without predictability, has severely affected his penmanship. As a result, he sometimes finds his own signature to be illegible. Moreover, whereas he used to routinely sign his full name, he now often can sign his name only as “W.M. Riggs.”
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As such, he reasonably believes that there is a substantial risk that his signature will be erroneously deemed inauthentic if compared to an earlier exemplar of his signature.
11. Mr. Riggs used to vote exclusively in person but has ceased to vote in person because he no longer has a driver’s license and due to his progressive disease, he is no longer able to safely drive. Moreover, given his age and health conditions, it would not be safe for him to vote in person in light of the current COVID-19 crisis.
12. Defendant Tahesha Way is the Secretary of State of New Jersey and serves as New Jersey’s chief election official. N.J. Stat. § 52:16A-98. She is responsible for administering elections in New Jersey, including through the promulgation of rules and regulations necessary to effectuate elections conducted by mail, N.J. Stat. §§ 19:62-13 and 19:63-3, and the signature verification process specifically, N.J. Stat. § 19:62-3(c).4 Through the Administrative Procedures Act, N.J. Stat. §§ 52:14B-1 to 24, she has broad powers to promulgate rules to effectuate the language and spirit of New Jersey’s election statutes. She is being sued in her official capacity.
4 Although § 19:62-3(c) and § 19:62-13 refer to rules and regulations promulgated by the Attorney General, “any references to the Attorney General relative to any elections matter appearing in the statutory law shall be a reference to the Secretary of State, unless the context or language of the statute provides otherwise.” N.J. Stat. § 52:16A-98(b).
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JURISDICTION AND VENUE 13. Plaintiffs bring this action under 42 U.S.C. § 1983. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a). 14. This Court has jurisdiction to grant both declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202. 15. This Court has personal jurisdiction over the Defendant, who resides in this district and is sued in her official capacity. 16. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b).
FACTS Vote By Mail in New Jersey 17. In New Jersey, any qualified voter may request a mail-in ballot. N.J. Stat. § 19:63-3(a). 18. Certain qualified municipalities with populations of 500 people or less may elect to conduct all elections entirely by mail, and voters in those jurisdictions are automatically provided with mail-in ballots. N.J. Stat. § 19:62-2(a-b). 19. To request a mail-in ballot, a voter must provide their name, the address at which they are registered to vote, the address to which they want their ballot sent, their phone number, and their signature. N.J. Stat. § 19:63-3(a-b) The voter may also provide their email address and opt to enroll in the permanent by-mail voter list to receive mail-in ballots in all future elections without submitting any further request.
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N.J. Stat. § 19:63-3(e)(1). As a result, some mail-in voters submit their mail-in ballot request months or years before the upcoming election in which they will cast a ballot.
20. Once the county clerk in the voter’s county of registration receives their mail-in ballot application, the clerk must verify the voter’s identity by comparing the signature on the ballot request form to the signature the voter provided when they registered to vote. N.J. Stat. § 19:63-8. If the clerk deems the signatures a match, the vote-by-mail application is approved, and the voter is added to the rolls of individuals who may vote by mail. Id. If the clerk believes the signatures do not match, the application is disapproved, and the voter is notified of the disapproval and the reason therefor. Id. Alternatively, the clerk may also use “any other available information” to make the eligibility determination. See N.J. Stat. § 19:63-8.
21. Beginning 45 days prior to an election, the State sends mail-in ballots to voters on the vote-by-mail rolls. N.J. Stat. § 19:63-9.
22. Although voters generally complete this process independently and in secret, they can receive assistance from a family member. N.J. Stat. §§ 19:63-13, 19:63-16.
23. On information and belief, neither the State, nor any of New Jersey’s 21 county clerks’ offices, warns voters that the signatures they provide throughout this process will be examined to determine the validity of their ballots once they are cast. N.J. Stat. §§ 19:63-11, 19:63-13. Nor do the State or counties inform voters
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that if their local election official finds a discrepancy with their signature, the official will reject their ballot entirely.
24. Rather, in at least some New Jersey counties, including Middlesex and Monmouth, mail-in voters are informed that all mail-in ballots are counted and included in the election results.5
25. Promptly upon receiving a mail-in ballot, the county board of elections in the voter’s county of registration must examine a voter’s ballot envelope to determine if the ballot was validly cast. If the county board of elections determines that a voter’s signature is missing or does not “match” either the signature on the voter’s mail-in ballot application form or their signature in the statewide voter registration system, the ballot is rejected as invalid and not counted. N.J. Stat. § 19:63-17.
26. Upon information and belief, New Jersey does not require that officials of the State’s 21 county boards of elections receive any training in signature or handwriting analysis, nor does it provide them with written standards or guidelines to aid in this assessment.
5 See Middlesex County NJ, FAQ About Elections, http://www.middlesexcountynj.gov/Government/Departments/CS/Pages/County% 20Clerk/FAQ%20About%20Elections.aspx (last visited May 13, 2020); Hudson County NJ, FAQ About Elections, Monmouth County Votes, Vote By Mail, https://www.monmouthcountyvotes.com/voter-information/vote-by-mail/ (last visited May 13, 2020).
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27. Upon information and belief, New Jersey does not require officials in any of the State’s 21 counties to spend any minimum amount of time comparing the signature exemplars when examining mail-in ballots.
28. New Jersey does not provide voters whose mail-in ballots are deemed to have signature-related defects with any pre-deprivation notice, nor does it give the voter any opportunity to cure the defect.
29. Indeed, New Jersey law only requires that the State provide voters with a “free-access system,” such as a toll-free hotline or website, that they may access after the election has concluded to determine whether their ballot was counted, or the reason for its rejection, if applicable. N.J. Stat. § 19:61-5. At that point, if a voter learns that New Jersey has rejected their ballot—either by affirmatively inquiring themselves or through any post-deprivation notice—the voter has no opportunity to have their vote counted.
30. This contrasts sharply with New Jersey’s process for mail-in ballot applications, where the voter is notified if there is any deficiency related to their signature that results in the rejection of their application, enabling them to renew their application or choose to vote in person. N.J. Stat. § 19:63-8.
31. Similarly, New Jersey law requires that signature comparisons performed by election officials during in-person voting occur openly and publicly. If any challenge is raised concerning the authenticity of a voter’s signature during
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in-person voting, the voter is permitted to establish, in real time, their right to vote by appropriate proof. N.J. Stat. §§ 19:15-17(a), 19:15-18.1. Mail-in voters are given no such opportunity.
32. Mail-in voting need not be conducted this way. New Jersey law specifically authorizes Defendant Way to adopt rules and regulations to govern the vote by mail system. State law also charges Defendant Way with overseeing the training of local election officials. N.J. Stat. § 19:50-1(b).
33. It is within Defendant’s power to ensure that mail-in voters are provided with pre-rejection notice and a meaningful opportunity to cure, and to implement any other trainings or guidelines necessary to standardize the signature verification process across New Jersey’s 21 counties. Defendant has issued no rules or regulations, prepared no guidelines, and conducted no trainings to standardize the signature verification process or provide absentee voters with pre-deprivation notice of signature mismatches and an opportunity to cure.
34. Implementing a pre-rejection notice and opportunity to cure procedure for voters would not significantly burden the State. State and local election officials already have access to voter files containing voter information such as addresses, phone numbers, and emails, which they could use to provide mail-in voters whose ballots have signature related impairments with notice that their ballot may be rejected and an opportunity to cure.
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New Jersey’s Signature Verification Procedure for Mail-In Ballots Is Unacceptably Error-Prone
35. Signature verification is an inherently flawed means of determining whether a mail-in ballot is fraudulent or inappropriately cast.
36. No two signatures are exactly alike because of the many factors that affect the consistency of a person’s signature from one signing (i.e., the mail-in ballot application or voter registration) to another (i.e., the mail-in ballot), including very variable factors such as type of pen, writing surface, stress, or other writing conditions.
37. Signature variance is more common among certain populations of voters, including those with disabilities, those with less formal levels of education, elderly and young voters, and voters for whom English is a second language. Parkinsonism and other neurological disorders can also significantly affect handwriting characteristics, engender unfounded scrutiny over the authenticity of signatures, and impede accurate assessment of them.
38. And while New Jersey does not maintain the racial or demographic data of those whose ballots are rejected, a study in Florida found that Black and Latina/o voters were more likely to have their ballots rejected. In 2016, 1.9% of Black voter
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ballots were rejected, 1.8% of Hispanic voter ballots were rejected, while only 0.7% of white voter ballots were rejected.6
39. Even experienced forensic document examiners (FDEs) can find it difficult if not impossible to distinguish natural variations in a person’s signature from fraudulent ones, especially where the reviewer has limited exemplars to compare.
40. Laypersons, such as New Jersey election officials, have a significantly higher rate of error in determining whether signatures are genuine. Laypersons are also more likely to wrongly determine that authentic signatures are not genuine than to make the opposite error. In one study, laypeople incorrectly judged authentic signatures to be inauthentic more than 26% of the time.
41. Thus, in every election, the untrained election officials responsible for signature verification under New Jersey’s mail-in ballot verification system reject validly cast ballots because of erroneous judgments on signature matching issues.
42. Also, because election officials undertake this task without standardized guidelines or procedures governing their analysis, they reject ballots based on arbitrary, variable criteria. Absentee ballot rejection rates for signaturematching issues therefore vary significantly from county to county in New Jersey.
6 See Daniel A. Smith, Vote-By-Mail Ballots Cast in Florida, American Civil Liberties Union of Florida (Sep. 19, 2018), https://www.aclufl.org/en/publications/vote-mail-ballots-cast-florida.
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For example, in the 2016 general election, Hudson County, New Jersey’s most diverse county, rejected mail-in ballots based on failure to match signatures at a rate 172 times the rejection rate in Gloucester County, one of the whitest counties in the state. EAVS 2016, supra note 2.
43. Similarly, the unintentional omission of a voter’s signature from their mail-in ballot often reflects innocent user error rather than fraud or misconduct. Such an error could be easily resolved by providing the affected voter with notice of the problem and an opportunity to fix it. New Jersey’s Constitutionally Deficient Signature-Verification Process Denies the
Right to Vote to Thousands of Voters 44. Each election, New Jersey’s signature verification system impacts thousands of New Jersey voters, often constituting at least one percent of all mail-in voters, who have their ballots rejected for benign signature-related deficiencies, including that they did not sign the ballot envelope or that their signature could not be “matched” to either the vote-by-mail application or the voter registration form. 45. During the 2016 Presidential General Election, for example, over 355,000 New Jersey voters cast their ballots by mail. About 4,000 of those voters, representing nearly one percent of the by-mail votes cast in the election, did not have their votes counted because of a signature-related problem, including over 1100 rejected because of the perceived lack of a signature-match. EAVS 2016, supra note 2.
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46. Over 11% of all absentee ballots rejected statewide in the 2016 election were rejected based on a perceived lack of signature-match. Id. However, the likelihood of a signature-related ballot rejection varied significantly depending on the absentee voter’s county of residence. For example, whereas 11.76% of rejected absentee ballots were for signature-mismatch issues in Union County, 38.97% of rejected absentee ballots were for signature-match issues in Hudson County. Id.
47. Two years later, in the 2018 Midterm Election, the results were no better. Out of the approximately 400,000 New Jersey voters that cast their ballots by mail, approximately 6,000, or about 1.5% of all by-mail voters, had their ballots rejected—and their votes consequently not counted—based on a signature-related deficiency, including nearly 2,000 due to the perceived lack of a signature-match.7
48. Again, the likelihood of a signature-related ballot rejection varied based on the absentee voter’s county of residence. Whereas in the 2018 election, 16.4% of absentee ballots rejected statewide were rejected for signature-match issues, the rate of rejection varied dramatically from county to county. EAVS 2018, supra note 8. For example, while 3.3% of rejected absentee ballots were rejected in Union County for signature-match issues, 34.9% of rejected mail-in ballots were rejected in Hudson County because of alleged signature mismatch. Id.
7 Election Administration and Voting Survey Datasets Version 1.2 (“EAVS 2018”) (Feb. 18, 2020), https://www.eac.gov/research-and-data/datasets-codebooks-andsurveys.
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49. Upon information and belief, none of the voters whose ballots were rejected in the 2016 or 2018 elections received pre-rejection notice that their ballots were impaired by a signature defect, nor did they have any opportunity to cure the issue and have their vote counted. Upon information and belief, if these absentee voters had been provided notice and an opportunity to cure before their ballots were rejected, many would have been able to verify their identity notwithstanding the signature-related discrepancy. As a result, the State rejected valid ballots cast by many eligible New Jersey voters.
50. There is no legitimate state interest advanced by New Jersey’s unreliable signature verification procedures, or by its failure to provide notice and an opportunity to cure when a ballot is rejected because of an ostensible signaturerelated defect. New Jersey’s Constitutionally Deficient Signature-Verification Process Will Affect
a Growing Number of Voters 51. The number of New Jerseyans who will vote by mail—and thus the number that will have their ballot rejected through New Jersey’s signatureverification process—is likely to increase significantly in upcoming elections, including the July 7, 2020 primary election and the November 3, 2020 general election. 52. Even before the May 12, 2020 election, which was conducted entirely by mail, voters in New Jersey had already begun choosing to vote by mail in
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increasing numbers, and their ability to do so was recently made even easier by New Jersey’s expansion of its vote-by-mail law.
53. The ongoing COVID-19 pandemic is expected to further accelerate New Jersey’s dramatic shift towards mail-in voting. The State, echoing the Centers for Disease Control and Prevention (“CDC”) recommends that to protect themselves from COVID-19, all citizens should “stay at home . . . except to get essentials,” and that “additional steps” may be warranted for older adults and those with chronic or underlying conditions that place them at increased risk of complications from the disease.8 Moreover, the CDC’s first recommendation for election officials in the midst of this pandemic is to “[e]ncourage mail-in methods of voting.”9
54. New Jersey also heeded the CDC’s advice for the May 12, 2020 local elections, when Governor Phil Murphy ordered that all ballots be cast by mail. As a result, counties mailed all registered voters a vote-by-mail ballot. Without an application, the signature on the voter’s ballot will be compared to the voter’s registration form. This eliminated the nominal notice process New Jersey law has of alerting voters that their vote-by-mail application was rejected because of a signature
8 New Jersey COVID-19 Information Hub, https://covid19.nj.gov/faqs/njinformation/general-public/how-can-i-protect-myself-from-covid-19/novelcoronavirus (last updated May 7, 2020). 9 Ctrs. for Disease Control and Prevention, Recommendations for Election Polling Locations, https://www.cdc.gov/coronavirus/2019-ncov/community/electionpolling-locations.html (last updated Mar. 27, 2020).
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match issue. Moreover, it ensured that the signature comparison process will be based upon even staler signatures dating back potentially decades.
55. On May 15, 2020, Governor Phil Murphy announced the upcoming July primary elections will be held primarily by mail. Mail-in ballots will be sent to all registered Democratic and Republican voters and applications for mail-in ballots will be sent to all unaffiliated registered voters. In-person polling locations will be limited.
56. Based on these state and federal recommendations, and out of their own sense of health and safety, New Jersey voters are expected to cast their ballots by mail in historic numbers in the upcoming July and November elections. By voting by mail where possible, New Jersey citizens can do their part to protect public health and reduce crowds and lines at polling locations that may be maintained to serve populations that rely on or strongly prefer in-person voting, including some people of color, voters with disabilities or language needs, or those with unreliable postal service.
57. As a growing number of New Jersey voters rely on the State’s mail voting system, whether by choice or necessity, more voters risk having their ballot rejected because of a signature-related impairment. Court intervention is necessary to ensure the State provides these voters with constitutionally necessary notice and an opportunity to cure and to safeguard these voters’ fundamental right to vote.
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FIRST CLAIM FOR RELIEF 42 U.S.C. § 1983: Denial of Due Process Under the Fourteenth Amendment
58. Plaintiffs reallege and incorporate by reference the allegations in the preceding paragraphs.
59. An individual has a liberty interest in the fundamental right to vote that is protected by the right to due process. New Jerseyans also have a statutorily protected liberty interest in voting by mail.
60. At a minimum, procedural due process requires that the State provide its absentee voters with notice and a meaningful opportunity to be heard before being denied their protected liberty interest.
61. The requirement for pre-deprivation notice is particularly important when deprivation will result in irreparable injury, as is the case with voting.
62. New Jersey’s failure to provide absentee voters with any opportunity to cure signature-related deficiencies with their absentee ballot—particularly given the unreliability of signature matching and election officials’ unfettered discretion to reject ballots—does not meet these minimum requirements of procedural due process and is thus unconstitutional.
63. Such an opportunity to cure is particularly warranted here given the balance of implicated interests and harms. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). First, absent relief, absentee voters may be erroneously deprived of their
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fundamental right to vote. Second, the risk of erroneous deprivation caused by the unreliability of signature matching and election officials’ unfettered discretion to reject ballots is high. Finally, the implementation of procedures to provide absentee voters with notice and an opportunity to cure would impose only a minimal burden on the State, which already maintains records during the ordinary course of business containing voter contact information, and already has infrastructure in place to carry out notice requirements given its existing legal obligation to inform mail-in voting applicants when their application is rejected because of a signature issue.
64. Absent the implementation of procedural safeguards, including notice and a meaningful opportunity to cure perceived signature-related deficiencies before a vote-by-mail ballot is rejected, mail-in voters in New Jersey will continue to face a substantial risk of being deprived of their fundamental right to vote without due process.
65. The State has no legitimate interest in permitting untrained local officials to reject voters’ ballots based on an unreliable signature authentication process without providing voters any notice or opportunity to cure.
66. New Jersey’s current signature-verification procedure denies New Jersey voters procedural due process in violation of the Fourteenth Amendment.
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SECOND CLAIM FOR RELIEF 42 U.S.C. § 1983: Denial of the Fundamental Right to Vote in Violation of the
First and Fourteenth Amendments 67. Plaintiffs reallege and incorporate by reference the allegations in the preceding paragraphs. 68. “There is no right more basic in our democracy than the right to participate in electing our political leaders.” McCutcheon v. FEC, 572 U.S. 185, 191 (2014). The Supreme Court has recognized that “voting is of the most fundamental significance under our constitutional structure.” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)). 69. When analyzing the constitutionality of a restriction on voting, the Court “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). Unreasonable, severe, or discriminatory burdens on the right to vote are subject to particularly close constitutional scrutiny.
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70. Defendant’s unreliable signature-verification process rejects a significant number of validly cast ballots every election cycle as a result of benign discrepancies or technical errors. Defendant denies the individuals who cast these ballots the right to vote without any pre-deprivation notice or opportunity to verify their ballots. This system operates without uniform standards across counties and therefore puts voters’ ballots at risk of rejection based on arbitrary, variable criteria. Such a system imposes a severe burden on voters’ fundamental right to vote.
71. The severity of this burden is exacerbated by voters’ increasing need to rely on mail ballots to effectively cast a ballot while safeguarding their health. Voters should not be required to risk their health or lives to cast a ballot they can be confident will count.
72. As discussed above, each time a county board of elections—comprised of laypersons with no expertise in handwriting analysis—subjectively believes there is a mismatch between the signature accompanying the voter’s mail-in ballot and the signature in the voter’s file, that ballot is not counted, notwithstanding the many benign factors that can cause signature variation. And those factors place certain voters at heightened risk on the basis of their age, disability, national origin, race, or educational background without notice that their votes, once cast, could be rejected, or that they cannot be cured once their ballots are rejected.
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73. In contrast to the mail-in voting system, voters facing signature verification issues at their polling location are afforded the opportunity to verify their identity and cast a ballot. New Jersey law affords no similar opportunities to mail-in voters.
74. Defendant can proffer no justification for this error-prone and procedurally deficient system that would outweigh the injury the rejection of thousands of ballots each election inflicts on the eligible voters who cast those ballots.
75. New Jersey’s current signature verification procedure unduly burdens the right to vote in violation of the First and Fourteenth Amendments.
THIRD CLAIM FOR RELIEF 42 U.S.C. § 1983: Denial of Equal Protection Under the Fourteenth
Amendment 76. Plaintiffs reallege and incorporate by reference the allegations in the preceding paragraphs. 77. The Equal Protection Clause of the Fourteenth Amendment requires “that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000).
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78. In the absence of any state-wide standards, New Jersey’s unreliable and error-prone signature-verification procedures subject mail-in voters to arbitrary differences in the way signatures are analyzed depending on the county in which they reside.
79. This standardless system has led to significantly disparate rates of signature matching rejections from county to county in New Jersey.
80. New Jersey’s reliance on signature matching to verify absentee voters, without any standardized guidance, training, or procedures in place to provide such voters with notice and an opportunity to cure signature-related ballot rejections, does not further any compelling or legitimate state interest sufficient to justify the unequal treatment of voters.
81. New Jersey’s current signature verification procedure violates the Equal Protection Clause of the Fourteenth Amendment.
PRAYER FOR RELIEF WHEREFORE, the Plaintiffs respectfully request that this Court:
(a) Issue a declaratory judgment that New Jersey’s existing signature verification procedures for mail-in voting unlawfully infringe the right to due process in violation of the Fourteenth Amendment to the Constitution of the United States;
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(b) Issue a declaratory judgment that New Jersey’s existing signature verification procedures for mail-in voting unlawfully impose an undue burden on the right to vote in violation of the First and Fourteenth Amendments to the Constitution of the United States;
(c) Issue a declaratory judgment that New Jersey’s existing signature verification procedures for mail-in voting unlawfully infringe the guarantee of equal protection in violation of the Fourteenth Amendment to the Constitution of the United States;
(d) Issue preliminary and permanent injunctions enjoining Defendant, her agents, employees, and successors, and all those persons acting in concert or participation with them from implementing signature verification procedures that infringe constitutional rights;
(e) Preliminarily and permanently order Defendant to establish a procedure by which voters may attempt to cure deficiencies in their absentee ballots, to include providing timely notice of such deficiencies and a meaningful opportunity to cure;
(f) Grant Plaintiffs’ attorney’s fees, costs, and litigation expenses pursuant to 42 U.S.C. § 1988 and 42 U.S.C. § 12133; and
(g) Grant other and further relief that the Court may determine to be necessary or proper.
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Dated: May 18, 2020

Respectfully submitted,

CAMPAIGN LEGAL CENTER

KAUFMAN LIEB LEBOWITZ & FRICK LLP

Danielle Lang* Rob Weiner* Ravi Doshi* Dana Paikowsky*^ 1101 14th Street NW, Suite 400 Washington, DC 20005 Telephone: (202) 736-2200

/s/ Alanna Kaufman Alanna Kaufman David A. Lebowitz* 10 East 40th Street, Suite 3307 New York, NY 10016 Telephone: (212) 660-2332

NEW JERSEY INSTITUTE FOR SOCIAL JUSTICE

Ryan Haygood* Andrea McChristian* Henal Patel 60 Park Place, Suite 511 Newark, New Jersey 07102 Telephone: (973) 624-9400

Counsel for Plaintiffs

* Applications for admission pro hac vice forthcoming

^Licensed in CA only; supervision by Danielle Lang, D.C. Bar member."

26

 
 Case 3:20-cv-05990-MAS-LHG Document 15 Filed 06/03/20 Page 1 of 4 PageID: 188

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP NEW JERSEY STATE CONFERENCE, WILLIAM RIGGS, SHAMISA ZVOMA, and DEBORAH J. RISKA

No. 20-cv-05990-MAS-LHG

Plaintiffs,

Declaration of Dana Paikowsky

v.

TAHESHA WAY, in her official capacity as Secretary of the State of New Jersey,

Defendant.

DECLARATION OF DANA PAIKOWSKY
I, Dana Paikowsky, pursuant to 28 U.S.C. § 1746, declare as follows: 1. I am a Legal Fellow at the Campaign Legal Center (“CLC”) and counsel for plaintiffs in
this case. I am over 18 years of age, and the testimony set forth in this Declaration is based on first-hand knowledge, about which I could and would testify competently in open court if called

Case 3:20-cv-05990-MAS-LHG Document 15 Filed 06/03/20 Page 2 of 4 PageID: 189

upon to do so. This Declaration is submitted in support of Plaintiffs’ Motion for a Preliminary

Injunction.

2. Attached as Exhibits 1 and 2 are true and correct copies of information that Middlesex and

Monmouth Counties provide to the public on the vote by mail process. The documents were

retrieved

from

http://www.middlesexcountynj.gov/Government/Departments/CS/Pages/County%20Clerk/FAQ

%20About%20Elections.aspx

and

https://www.monmouthcountyvotes.com/voter-

information/vote-by-mail/.

3. Attached as Exhibit 3 is a true and correct copy of New Jersey Executive Order No. 144,

issued by Governor Philip Murphy on May 15, 2020.The order is electronically available from

https://nj.gov/infobank/eo/056murphy/pdf/EO-144.pdf

4. Attached as Exhibit 4 is a true and correct copy of a publicly accessible report by the

American Civil Liberties Union of Florida on vote-by-mail ballots cast in Florida in the 2012 and

2016 general election, retrieved from https://www.aclufl.org/en/publications/vote-mail-ballots-

cast-florida.

5. Attached as Exhibits 5 and 6 are tables compiling true and correct copies of publicly

accessible data from the Election Assistance Commission, retrieved from

https://www.eac.gov/voters/new-jersey-state-elections-office.

6. Attached as Exhibit 7 is a true and correct copy of a publicly accessible article from New

Jersey’s COVID-19 Information Hub webpage, retrieved from https://covid19.nj.gov/faqs/nj-

information/general-public/how-can-i-protect-myself-from-covid-19/novel-coronavirus.

Case 3:20-cv-05990-MAS-LHG Document 15 Filed 06/03/20 Page 3 of 4 PageID: 190
7. Attached as Exhibit 8 is a true and correct copy of publicly accessible Center for Disease Control guidance for election polling locations, retrieved from https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html.
8. Attached as Exhibit 9 is a true and correct copy of New Jersey Executive Order No. 105, issued by Governor Philip Murphy on March 19, 2020.The Order is electronically available from https://www.state.nj.us/infobank/eo/056murphy/pdf/EO-105.pdf.
9. On April 9, 2020, CLC submitted a public records request to, inter alia, the Morris County, New Jersey Board of Elections, seeking information related to the November 2016 and 2018 elections, including absentee ballots rejected for signature mismatch.
10. In response to CLC’s public records request, Morris County produced datarelated to all absentee ballots issued in the 2016 and 2018 elections. A true and correct copy representation of a subset of the information produced by Morris County, which identifies voters who had their absentee ballot rejected in the November 2016 and 2018 elections, is attached as Exhibits 10 and 11, respectively. The data have been redacted to remove personal information for all voters, not including Plaintiff/Declarant Deborah Riska (see Declaration of Deborah Riska in Support of Plaintiffs’ Motion for Preliminary Injunction).
11. Attached as Exhibit 12 is a true and correct copy of a publicly accessible document from the New Jersey Secretary of State’s Division of Elections providing information about the New Jersey’s 2020 elections. It was retrieved from https://www.state.nj.us/state/elections/electioninformation-2020.shtml#may12.

Case 3:20-cv-05990-MAS-LHG Document 15 Filed 06/03/20 Page 4 of 4 PageID: 191
Executed on June 3, 2020 at San Francisco, California. I declare under penalty of perjury that the foregoing is true and correct.
______________________ Dana Paikowsky 

Case 3:20-cv-05990-MAS-LHG Document 15-1 Filed 06/03/20 Page 1 of 4 PageID: 192
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EXHIBIT 2

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EXHIBIT 3

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EXECUTIVE ORDER NO. 144
WHEREAS, in light of the dangers posed by COVID-19, I issued Executive Order No. 103 (2020) on March 9, 2020, the facts and circumstances of which are adopted by reference herein, which declared both a Public Health Emergency and State of Emergency; and
WHEREAS, to further protect the health, safety, and welfare of New Jersey residents by, among other things, reducing the rate of community spread of COVID-19, I issued Executive Order No. 104 (2020) on March 16, 2020, the facts and circumstances of which are also adopted by reference herein, which established statewide social mitigation strategies for combatting COVID-19; and
WHEREAS, on March 21, 2020, I issued Executive Order No. 107 (2020), superseding Executive Order No. 104 (2020) and requiring New Jersey residents to remain home or at their place of residence subject to limited exceptions, cancelling social gatherings, and limiting all restaurants and other dining establishments to offering only food delivery and/or take-out services; and
WHEREAS, on April 7, 2020, I issued Executive Order No. 119 (2020), which declared that the Public Health Emergency declared in Executive Order No. 103 (2020) continues to exist; and
WHEREAS, on May 6, 2020, I issued Executive Order No. 138 (2020), which again declared that the Public Health Emergency declared in Executive Order No. 103 (2020) continues to exist; and
WHEREAS, as of May 14, 2020, according to the Centers for Disease Control and Prevention (“CDC”), there were more than 4,248,000 confirmed cases of COVID-19 worldwide, with over 292,000 of those cases having resulted in death; and

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WHEREAS, as of May 14, 2020, there were more than 1,384,000 confirmed cases of COVID-19 in the United States, with over 83,000 of those cases having resulted in death; and
WHEREAS, as of May 14, 2020, there were over 142,000 positive cases of COVID-19 in New Jersey, with at least 9,946 of those cases having resulted in death; and
WHEREAS, on March 19, 2020, I issued Executive Order No. 105 (2020), which declared that certain elections set to take place in March and April were postponed until May 12, 2020 and that all registered voters would receive vote-by-mail ballots because allowing those elections to proceed as they were originally planned during this unprecedented COVID-19 health crisis would have created hardships and health risks for voters, poll workers and candidates alike; and
WHEREAS, pursuant to Executive Order No. 120 (2020), the primary elections set to take place on June 2, 2020, were postponed until July 7, 2020 (“July primary elections”), because preparing for elections to take place in June during the potential height of the COVID-19 emergency would have negatively impacted election officials’ preparation efforts; and
WHEREAS, the COVID-19 emergency and its impact are likely to extend for an as-yet-undetermined period of time; and
WHEREAS, the COVID-19 emergency makes it difficult for election officials, candidates, and voters to properly plan and prepare for and fully participate in the July primary elections if they were to proceed as they would under normal circumstances; and
WHEREAS, States generally have discretion to dictate the time, manner, and place of elections in the absence of controlling federal law; and

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WHEREAS, allowing the July primary elections to proceed as they would under normal circumstances during this unprecedented COVID-19 health crisis will create hardships and health risks for voters, poll workers and candidates alike; and
WHEREAS, election officials require flexibility and sufficient lead time to adapt the State’s voting infrastructure to confront the magnitude of the public health and safety risks of the COVID-19 pandemic; and
WHEREAS, the full participation of voters and candidates is critical to a robust democracy; and
WHEREAS, as of May 1, 2020, there are over 6.1 million registered voters in New Jersey – over 2.4 million are Unaffiliated voters, over 2.3 million are registered Democrats, and over 1.3 million are registered Republicans; and
WHEREAS, failing to take proactive actions to mitigate the adverse impacts of the current health crisis on the upcoming primary carries the risk of disenfranchising countless citizens; and
WHEREAS, social distancing measures are required for a period of as-yet-undetermined duration, and the COVID-19 outbreak may have significant effects on New Jersey’s voting systems as long as social distancing measures are in place and for some time thereafter; and
WHEREAS, failing to offer voters a ready alternative to reporting to public polling places to vote in July in the midst of the COVID-19 crisis will hinder public participation in the democratic process, particularly among elderly and immune-compromised voters, and undermine the legislative intent of provisions like N.J.S.A. 19:8-2 and 19:8-3.1, which are designed to ensure that such voters can exercise their right to vote; and

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WHEREAS, voting by mail is already an authorized mode of voting in New Jersey pursuant to Title 19, subtitles 62 and 63; and
WHEREAS, at least 34 states and the District of Columbia already allow voters to cast their ballot via mail and five states run entirely vote-by-mail elections; and
WHEREAS, in-person voting has declined over the years, while the total number of voters who voted by mail has steadily increased; and
WHEREAS, voting-by-mail may have a disproportionate impact on historically disenfranchised voters such as disabled voters, low-income voters, voters with unstable housing, limitedEnglish-speaking voters, and voters of color; and
WHEREAS, election officials can address this potential inequity by providing historically disenfranchised voters with an alternative to voting by mail; and
WHEREAS, pursuant N.J.S.A. 19:63-20(b), an individual who receives a vote-by-mail ballot but has not voted and returned that ballot, may show up to their polling place and vote a provisional ballot; and
WHEREAS, opening a limited number of public polling places that meet public health standards to mitigate the spread of COVID-19 will support historically disenfranchised citizens’ ability to vote; and
WHEREAS, New Jersey citizens are presently faced with the choice of exercising their constitutional franchise, or endangering their health and safety; and
WHEREAS, the Constitution and statutes of the State of New Jersey, particularly the provisions of N.J.S.A. 26:13-1 et seq., N.J.S.A. App. A: 9-33 et seq., N.J.S.A. 38A:3-6.1, and N.J.S.A.

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38A:2-4 and all amendments and supplements thereto, confer upon the Governor of the State of New Jersey certain emergency powers, which I have invoked;
NOW, THEREFORE, I, PHILIP D. MURPHY, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and by the Statutes of this State, do hereby ORDER and DIRECT:
1. All elections that take place on July 7, 2020, shall be conducted primarily via vote-by-mail ballots, which will automatically be sent to all “Active” registered Democratic and Republican voters without the need for an application to receive a vote-by-mail ballot. The County Clerk shall send vote-by-mail applications to “Active” voters who are registered as “Unaffiliated,” and to all “Inactive” registered Democrats, Republicans, and “Unaffiliated” voters.
2. To provide “Unaffiliated” voters, "Inactive" registered Democrats, and "Inactive" registered Republicans every opportunity to return a vote-by-mail application and receive a vote-by-mail ballot for the July 7, 2020 Primary Election, the deadline for returning a vote-by-mail application in person in N.J.S.A. 19:63-3(d) shall be suspended.
3. All vote-by-mail return envelopes and vote-by-mail applications shall have prepaid postage in order to guarantee the proper delivery of all cast vote-by-mail ballots and completed applications.
4. The Secretary of State shall prepare a vote-by-mail application form specific to the July 7, 2020 Primary Election to address issues created by sending applications and vote-by-mail ballots in accordance with this Order.

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5. The requirements of N.J.S.A. 19:23-30 that sample ballots be sent shall be suspended. In lieu of sending a sample ballot, the appropriate county official, as identified in N.J.S.A. 19:23-30, shall send notice of the voter’s polling place, information on where to obtain a sample ballot prior to the election, a statement indicating that a sample ballot will be available at the polling place on the day of the election, and, if applicable, information on a county website where a sample ballot may be viewed.
6. To the extent possible, each county shall procure at least 5 secure ballot drop boxes and place them in locations that are readily accessible to the registered voters within the county. The security of the ballot drop boxes and schedule of ballot pickup shall conform with standards set forth by the Secretary of State.
7. Each county shall open a minimum of at least 1 polling place in each municipality. Provided that sufficient poll workers are available, each county shall open a minimum of 50 percent of its polling places, and may open more than the minimum number of polling places. To the best of their ability, the County Boards of Elections shall select polling places based on geographic location and population density to best serve the voters of each municipality. County Boards of Elections must ensure that polling places and poll workers implement, at a minimum, the following requirements:
a. Limit occupancy within a polling place to a number that permits voters to maintain a distance of six feet between each other and poll workers at any time;
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b. Ensure six feet of distance between voters and ensure six feet of distance between voters and poll workers through the demarcation of six feet of spacing in voter lines and poll worker stations to demonstrate appropriate spacing for social distancing;
c. Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
d. Provide poll workers break time for repeated handwashing throughout their shifts;
e. Require frequent sanitization of high-touch areas in polling places consistent with CDC guidelines as of the date of the election;
f. Place conspicuous signage at entrances and throughout the polling place alerting poll workers and voters to the required six feet of physical distance;
g. Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to poll workers, voters, and those accompanying voters;
h. Require poll workers to adhere to CDC guidelines as of the date of the election regarding face coverings while in the polling place, except where doing so would inhibit that individual’s health, and require poll workers to wear gloves when in contact with voters and those accompanying voters. County boards of elections must provide any required face coverings and gloves for poll workers, without charge to the poll workers. If a

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poll worker refuses to wear a required cloth face covering for non-medical reasons, then a county board of elections may decline entry to the individual. Nothing in the stated policy should prevent poll workers from wearing a surgical-grade mask or other more protective face covering if the individual is already in possession of such equipment. Where a poll worker declines to wear a required face covering at a polling place due to a medical condition that inhibits such usage, they shall not be required to produce medical documentation verifying the stated condition; and i. Strongly encourage voters and those accompanying voters to adhere to any CDC guidelines as of the date of the election regarding face coverings while inside polling places except where doing so would inhibit that individual’s health. County boards of elections may provide such face coverings for voters and those accompanying voters, without charge to them. If a voter or person accompanying a voter refuses to comply with the CDC guidelines, a poll worker shall not deny entry to the voter or person. Nothing in the stated policy should prevent voters from wearing a surgical-grade mask or other more protective face covering if the individual is already in possession of such equipment. 8. In accordance with Executive Order No. 120 (2020), the deadline to certify a list of polling places for the July 7, 2020 Primary Election is June 15, 2020. That certification need only

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include those polling places to be used in the July 7, 2020 Primary Election. The deadline for certification of polling places for the remainder of the year, pursuant to N.J.S.A. 19:8-4, is hereby extended to September 15, 2020.
9. The Secretary of State may modify the requirements of N.J.S.A. 19:31-21 concerning the use of poll books and the information contained therein as necessary to address the procedure by which the July 7, 2020 Primary Election will be conducted under this Order, and the needs resulting therefrom.
10. Any voter who appears at a polling place on the day of the July primary shall vote via a provisional ballot, except that a voter with disabilities may vote on an ADA-accessible voting machine.
11. Voted mail-in ballots may not be returned to a polling place established pursuant to paragraph 5 of this Order.
12. The time restrictions of N.J.S.A. 19:63-9 shall be suspended, and vote-by-mail ballots shall be mailed in compliance with a schedule to be prepared by the Secretary of State in a manner to ensure the timely receipt and return of ballots for counting in the July 7, 2020 elections.
13. Vote-by-mail ballots shall be processed and canvassed in accordance with guidelines provided by the Centers for Disease Control and Prevention, the State Department of Health, and the respective county departments of health.
14. To account for the increase in vote-by-mail ballots and to ensure that registered voters’ efforts to vote are not impacted by delays in the postal service, the ballot-return deadline in N.J.S.A. 19:63-22 shall be suspended. Every vote-by-mail ballot that is postmarked on or before July 7, 2020, and that is received

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by July 14, 2020, at 8:00 p.m. shall be considered valid and shall be canvassed.
15. To account for the increase in vote-by-mail ballots and to provide the county Boards of Elections sufficient time to canvass the returned ballots, N.J.S.A. 19:63-18 is hereby suspended. The county Boards of Elections may continue the counting of ballots beyond the close of polls on July 7, 2020, and adjourn counting to the following day, and any day thereafter, within the limits of this Order, until the counting is completed.
16. To allow for greater flexibility in obtaining poll workers, the county-resident requirement for poll workers set forth in N.J.S.A. 19:6-2 is hereby suspended.
17. Due to the limited number of polling places that will be open for July 7, 2020 Primary Election, the 1,000 foot limitation on the location of polling places set forth in N.J.S.A. 19:8-2 shall be suspended.
18. Due to the suspension of N.J.S.A. 19:63-22 and N.J.S.A. 19:63-18, the deadlines in the following statutes are all hereby extended by five (5) days: the impoundment period for voting machines in N.J.S.A. 19:52-6; the filing of selection of column and designation, pursuant to N.J.S.A. 19:14-9; the certification of the election results in N.J.S.A. 19:23-54; the filing of an election contest petition, pursuant to N.J.S.A. 19:29-3; the certification of results, pursuant to N.J.S.A. 19:23-55; the filing of a recount petition, pursuant to N.J.S.A. 19:28-1; the application for voting machine recheck, pursuant to N.J.S.A. 19:52-6; and the time to prepare reports pursuant to N.J.S.A. 19:53B-21 and 19:53C-21. 

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19. The Secretary of State shall establish other appropriate

standards for ensuring that all eligible voters, including but not

limited to those voters with disabilities, are able to exercise

their right to vote in the July 7, 2020 elections.

20. The Secretary of State and county election officials, as

appropriate, shall coordinate with the United States Postal

Service to facilitate proper delivery of ballots by the United

States Postal Service.

21. The Secretary of State and county election officials, as

appropriate, shall act to facilitate the public’s understanding of

the rules governing the July 7, 2020 elections.

22. The Secretary of State shall establish a hotline number

for reports of violations of the election laws and this Order in

connection with the July 7, 2020 elections.

23. Any actions taken by the Secretary of State pursuant to

this Order shall not be subject to the requirements of the

Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq.

24. This Order shall take effect immediately.

[seal]

GIVEN,

under my hand and seal this 15th day of May,
Two Thousand and Twenty, and of the Independence of the United States, the Two Hundred and Forty-Fourth.

/s/ Philip D. Murphy

Governor

Attest: /s/ Matthew J. Platkin Chief Counsel to the Governor

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EXHIBIT 4

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Exhibit 51

County

2016 Election Administration and Voting Survey (EAVS) Data By-Mail Ballots

By-mail Ballots Returned

By-mail Ballot Rejection Rate Rate of Rejected

Ballots Rejection for Sig.

Ballots Rejected for

Rejected Rate

Mismatch

Sig. Mismatch

ATLANTIC 9537

BERGEN

32060

BURLINGTON 20125

CAMDEN

39798

CAPE MAY 6130

CUMBERLAND 4171

ESSEX

16218

GLOUCESTER 16908

HUDSON

9716

HUNTERDON 8779

MERCER

13280

MIDDLESEX 38751

MONMOUTH 30742

MORRIS

22340

OCEAN

28954

PASSAIC

11887

SALEM

2371

SOMERSET 15807

SUSSEX

6097

UNION

16818

WARREN

4968

STATE-WIDE 355457

154 1734 510 410 126 263 324 212 857 185 398 944 782 1258 423 352 88 484 26 306 121 9957

1.61% 5.41% 2.53% 1.03% 2.06% 6.31% 2.00% 1.25% 8.82% 2.11% 3.00% 2.44% 2.54% 5.63% 1.46% 2.96% 3.71% 3.06% 0.43% 1.82% 2.44% 2.80%

0.09% 0.17% 0.54% 0.15% 0.21% 0.38% 0.23% 0.02% 3.44% 0.34% 0.23% 0.24% 0.15% 0.31% 0.10% 0.59% 0.34% 0.47% 0.18% 0.21% 0.54% 0.33%

5.84% 3.11% 21.37% 14.15% 10.32% 6.08% 11.42% 1.89% 38.97% 16.22% 7.54% 9.96% 6.01% 5.56% 6.86% 19.89% 9.09% 15.50% 42.31% 11.76% 22.31% 11.66%

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Case 3:20-cv-05990-MAS-LHG Document 15-6 Filed 06/03/20 Page 1 of 3 PageID: 219
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Exhibit 6, Table 12

2018 Election Administration and Voting Survey (EAVS) Data By-Mail Ballots

County

By-mail Ballots Returned

By-mail Ballots Rejected

Ballot Rejection
Rate

Rejection Rate for
Sig. Mismatch

Rate of Rejected Ballots
Rejected for Sig. Mismatch

By-mail Ballots Rejected for Sig. Mismatch

ATLANTIC

11808 110 0.9% 0.2%

24.5%

27

BERGEN

36288 1392 3.8% 0.2%

7.1%

99

BURLINGTON 26428 699 2.6% 0.5%

22.7%

159

CAMDEN

41726 376 0.9% 0.1%

22.9%

86

CAPE MAY

6258 111 1.8% 0.1%

9.9%

11

CUMBERLAND 5664 119 2.1% 0.2%

12.6%

15

ESSEX

22965 323 1.4% 0.3%

28.8%

93

GLOUCESTER 17537 311 1.8% 0.2%

17.0%

53

HUDSON

10497 820 7.8% 1.7%

34.9%

286

HUNTERDON 10654 153 1.4% 0.2%

13.7%

21

MERCER

17256 570 3.3% 0.6%

25.1%

143

MIDDLESEX 40030 1356 3.4% 0.3%

11.2%

152

MONMOUTH 27989 578 2.1% 0.3%

18.2%

105

MORRIS

28450 1799 6.3% 0.6%

13.5%

242

OCEAN

31366 955 3.0% 0.1%

3.1%

30

PASSAIC

15325 556 3.6% 0.7%

31.8%

177

SALEM

2909 132 4.5% 0.3%

7.6%

10

SOMERSET

19349 572 3.0% 0.5%

20.5%

117

SUSSEX

7228 135 1.9% 0.3%

23.7%

32

UNION

20521 523 2.5% 0.1%

3.3%

17

WARREN

6077 104 1.7% 0.5%

36.5%

38

STATE-WIDE 406325 11694 2.9% 0.3%

16.4%

1913

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Case 3:20-cv-05990-MAS-LHG Document 15-6 Filed 06/03/20 Page 3 of 3 PageID: 221

Exhibit 6, Table 23

2018 Election Administration and Voting Survey (EAVS) Data Provisional Ballots

County

% of

Provisional

rejected % of total

Ballots Provisional

provisional provisional

Provisional Rejected: Ballots Percent of ballots ballots cast

Provisional Ballots Non- Rejected: provisional rejected rejected

Ballots: Rejected: matching No

ballots for sig. for sig.

Total

Total

Sig. Signature rejected issues issues

ATLANTIC 2760 199

16

4

7.2% 10.1% 0.7%

BERGEN

9212 1561 77

9

16.9% 5.5% 0.9%

BURLINGTON 4576 755

2

3

16.5% 0.7% 0.1%

CAMDEN

7556 763

75

0

10.1% 9.8% 1.0%

CAPE MAY 584

18

0

0

3.1% 0.0% 0.0%

CUMBERLAND 710

72

0

2

10.1% 2.8% 0.3%

ESSEX

7703 128

0

1

1.7% 0.8% 0.0%

GLOUCESTER 2432 214

3

0

8.8% 1.4% 0.1%

HUDSON

4748 420

0

0

8.8% 0.0% 0.0%

HUNTERDON 912

149

0

1

16.3% 0.7% 0.1%

MERCER

3140 844

0

0

26.9% 0.0% 0.0%

MIDDLESEX 8353 1750 6

12

21.0% 1.0% 0.2%

MONMOUTH 6561 965

25

8

14.7% 3.4% 0.5%

MORRIS

3389 151

0

1

4.5% 0.7% 0.0%

OCEAN

3932 499

4

1

12.7% 1.0% 0.1%

PASSAIC

5334 214

16

2

4.0% 8.4% 0.3%

SALEM

350

39

0

1

11.1% 2.6% 0.3%

SOMERSET 2957 472

5

2

16.0% 1.5% 0.2%

SUSSEX

415

10

2

0

2.4% 20.0% 0.5%

UNION

4772 806

1

6

16.9% 0.9% 0.1%

WARREN

592

94

0

0

15.9% 0.0% 0.0%

STATE-WIDE 80988 10123 232

53

12.5% 2.8% 0.4%

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Case 3:20-cv-05990-MAS-LHG Document 15-9 Filed 06/03/20 Page 1 of 8 PageID: 230
EXHIBIT 9

Case 3:20-cv-05990-MAS-LHG Document 15-9 Filed 06/03/20 Page 2 of 8 PageID: 231
EXECUTIVE ORDER NO. 105
WHEREAS, in light of the dangers posed by COVID-19, I issued Executive Order No. 103 (2020) on March 9, 2020, the facts and circumstances of which are adopted by reference herein, which declared both a Public Health Emergency and State of Emergency; and
WHEREAS, to further protect the health, safety, and welfare of New Jersey residents by, among other things, reducing the rate of community spread of COVID-19, I issued Executive Order No. 104 (2020) on March 16, 2020, the facts and circumstances of which are also adopted by reference herein, which established statewide social mitigation strategies for combatting COVID-19 and; and
WHEREAS, as of March 18, 2020, according to the Centers for Disease Control and Prevention (“CDC”), there were more than 191,000 confirmed cases of COVID-19 worldwide, with over 7,800 of those cases having resulted in death; and
WHEREAS, as of March 18, 2020, there were more than 7,000 confirmed cases of COVID-19 in the United States, with at least 97 of those cases having resulted in death; and
WHEREAS, as of March 18, 2020, there were 427 positive cases of COVID-19 in New Jersey, spread across numerous counties; and
WHEREAS, State and Federal public health experts, including officials at CDC, believe that infections will continue to spread at exponential rates unless aggressive action is taken to minimize person-to-person contacts and to reduce any unnecessary interactions; and
WHEREAS, the COVID-19 emergency is unfolding alongside numerous contemporaneous local, State and Federal elections; and 

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WHEREAS, the New Jersey Secretary of State is legally obligated to ensure that all qualified voters within the State are able to fully exercise their constitutionally protected right to vote; and
WHEREAS, allowing certain upcoming elections to proceed during this unprecedented COVID-19 health crisis as they were originally planned will create hardships and health risks for voters, poll workers and candidates alike; and
WHEREAS, election officials require flexibility and sufficient lead time to adapt the State’s voting infrastructure to confront the magnitude of the public health and safety risks of the COVID-19 pandemic; and
WHEREAS, social distancing measures are required for a period of as-yet-undetermined duration, and the COVID-19 outbreak may have significant effects on New Jersey’s voting systems as long as social distancing measures are in place and for some time thereafter; and
WHEREAS, the full participation of voters and candidates is critical to a robust democracy; and
WHEREAS, failing to take proactive actions to mitigate the adverse impacts of the current health crisis on certain upcoming elections carries the risk of disenfranchising countless citizens; and
WHEREAS, pursuant to N.J.S.A. 19:23-14, petitions for candidates for the June 2, 2020 primary election are due by 4:00 p.m. on March 30, 2020; and
WHEREAS, allowing candidates to submit their petitions electronically, in addition to by hand delivery, will help limit unnecessary person-to-person contact; and 
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WHEREAS, allowing voters to fill out and submit petitions electronically, so that candidates and campaigns need not physically gather petitions by going to individual voters in person, will help limit unnecessary person-to-person contact; and
WHEREAS, the COVID-19 emergency will significantly hinder otherwise qualified candidates from meeting the nomination requirements set forth in N.J.S.A. 19:23-7, 19:23-11, 19:23-14, 19:23-15, 19:25-3, 19:34-8, and 19:24-4; and
WHEREAS, temporarily modifying the requirements of N.J.S.A. 19:23-8, 19:23-14, 19:24-4, and 19:25-3 to allow for electronic submission of petitions is needed to keep voters engaged during this unprecedented crisis; and
WHEREAS, States generally have discretion to dictate the time, manner and place of elections in the absence of controlling federal law; and
WHEREAS, requiring voters to report to public polling locations to vote under the current circumstances will hinder public participation in the democratic process, particularly among elderly and immune-compromised voters, and undermine the legislative intent of provisions like N.J.S.A. 19:8-2 and 19:83.1, which are designed to ensure that such voters can exercise their right to vote; and
WHEREAS, voting by mail is already an authorized mode of voting in New Jersey pursuant to Title 19, subtitles 62 and 63; and
WHEREAS, at least 34 states and the District of Columbia already allow voters to cast their ballot via mail and five states run entirely vote-by-mail elections; and


Case 3:20-cv-05990-MAS-LHG Document 15-9 Filed 06/03/20 Page 5 of 8 PageID: 234
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WHEREAS, in-person voting has declined over the years, while the total number of voters who voted early, absentee or by mail has steadily increased; and
WHEREAS, New Jersey citizens are presently faced with the choice of exercising their constitutional franchise, or endangering their health and safety; and
WHEREAS, a temporary delay in certain elections that are rapidly approaching will give the county and municipal election officials enough time to send vote-by-mail ballots to all registered voters for these elections, allowing voters to exercise their constitutional franchise without jeopardizing their health and safety; and
WHEREAS, in order to prepare vote-by-mail ballots for all registered voters in the upcoming elections, state, county and municipal election officials need sufficient preparation time; and
WHEREAS, the Constitution and statutes of the State of New Jersey, particularly the provisions of N.J.S.A. 26:13-1 et seq., N.J.S.A. App. A: 9-33 et seq., N.J.S.A. 38A:3-6.1, and N.J.S.A. 38A:2-4 and all amendments and supplements thereto, confer upon the Governor of the State of New Jersey certain emergency powers;
NOW, THEREFORE, I, PHILIP D. MURPHY, Governor of the State of New Jersey, in order to protect the health, safety and welfare of the people of the State of New Jersey and in accordance with the authority vested in me by the New Jersey Constitution and statutes of the State of New Jersey, hereby ORDER and DIRECT the following:
1. In addition to accepting hand delivery of candidate and delegate petitions that are due by 4:00 p.m. on March 30, 2020, the Secretary of State, county clerks, and municipal


Case 3:20-cv-05990-MAS-LHG Document 15-9 Filed 06/03/20 Page 6 of 8 PageID: 235
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clerks shall allow for these candidate and delegate petitions to be submitted electronically.
2. The Secretary of State, county clerks, and municipal clerks shall also accept petitions with signatures collected via an online form created by the Secretary of State, which shall be available for use by Thursday, March 19, 2020. Following the availability of the online form, the Secretary of State, county clerks, and municipal clerks shall require that signatures be gathered via the online form. Hand signatures obtained prior to the effective date of this Executive Order shall also be accepted.
3. The online form shall be provided to county clerks and municipal clerks as a means of accepting petitions that are due to them by 4:00 p.m. on March 30, 2020.
4. The verification requirements of N.J.S.A. 19:23-11, insofar as they are not included on the online form created by the Secretary of State, shall be suspended for petitions due by 4:00 p.m. on March 30, 2020.
5. The requirements of N.J.S.A. 19:23-7 and N.J.S.A. 19:23-15 that a candidate provide a notarized oath of allegiance with their petition shall be suspended for petitions due by 4:00 pm on March 30, 2020. Candidates who have not already signed and notarized an oath of allegiance shall attach a signed pledge of allegiance to their petitions containing the same language as prescribed in N.J.S.A. 41:1-1.
6. The special election scheduled for March 21, 2020, in the Fire District 1 for the Township of Old Bridge in the County of Middlesex, the special election scheduled for March 31, 2020, in the Township of West Amwell in the County of Hunterdon, and the special election scheduled for March 31, 2020, in the City of Atlantic City in the County of Atlantic shall be postponed


Case 3:20-cv-05990-MAS-LHG Document 15-9 Filed 06/03/20 Page 7 of 8 PageID: 236
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until May 12, 2020, to be held concurrently with the elections currently scheduled for that date.
7. The elections that are scheduled for April 21, 2020, shall be postponed until May 12, 2020, also to be held concurrently with the elections currently scheduled for that date.
8. Any election scheduled for a date between March 19, 2020 and May 12, 2020, not specifically referenced in Paragraph 6 and 7, shall be postponed until May 12, 2020. Further, no other elections may be held or proceed prior to May 12, 2020.
9. All elections that take place on May 12, 2020, including those previously scheduled for that date and those rescheduled as a result of this Order, shall be conducted solely via vote-by-mail ballots, which will automatically be sent to all registered voters without the need for an application to receive a vote-by-mail ballot.
10. The requirements of N.J.S.A. 19:14-25 that sample ballots be sent shall be suspended. All registered voters will be receiving vote-by-mail ballots and there will be no polling places in the May 12, 2020 elections.
11. The time restrictions of N.J.S.A. 19:63-9 shall be suspended, and vote-by-mail ballots shall be mailed in compliance with a schedule to be prepared by the Secretary of State in a manner to ensure the timely receipt and return of ballots for counting in the May 12, 2020 elections.
12. To ensure that all registered voters, whether active or inactive, are provided with the opportunity to exercise their right to vote through the use of vote-by-mail ballots in the May 12, 2020 elections, N.J.S.A. 19:63-3(f), which prohibits the county clerk from sending a vote-by-mail ballot to inactive voters, shall be suspended.


Case 3:20-cv-05990-MAS-LHG Document 15-9 Filed 06/03/20 Page 8 of 8 PageID: 237
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13. Vote-by-mail ballots shall be processed and canvassed

in compliance with standards established by the Secretary of

State and in accordance with guidelines provided by the State

Department of Health and where necessary, superseding the

statutory deadlines established at N.J.S.A. 19:63-17 and 19:63-

22, including the allowance of the early counting of vote-by-

mail ballots prior to May 12, 2020.

14. All vote-by-mail return envelopes shall have prepaid

postage in order to guarantee the proper delivery of all cast

vote-by-mail ballots.

15. The Secretary of State shall establish appropriate

standards for ensuring that all eligible citizens are able to

exercise their right to vote through the use of vote-by-mail

ballots in the May 12, 2020 elections.

16. This Order shall take effect immediately.

[seal]

GIVEN,

under my hand and seal this 19th day of March,
Two Thousand and Twenty, and of the Independence of the United States, the Two Hundred and Forty-Fourth.

/s/ Philip D. Murphy

Governor

Attest: /s/ Matthew J. Platkin Chief Counsel to the Governor



Case 3:20-cv-05990-MAS-LHG Document 15-12 Filed 06/03/20 Page 1 of 7 PageID: 289
EXHIBIT 12

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Case 3:20-cv-05990-MAS-LHG Document 17 Filed 06/03/20 Page 1 of 4 PageID: 300
DECLARATION OF RICHARD SMITH
Pursuant to 28 U.S.C. § 1746, I, Richard Smith, declare as follows:
1. I am the President of the NAACP New Jersey State Conference (“NJ NAACP”), a nonpartisan, nonprofit organization located in Trenton, New Jersey. I have been working with the NJ NAACP for over 25 years in various roles, and have served as President since October 2013. In my capacity as President, I manage statewide NJ NAACP activities, coordinate with the 41 local NJ NAACP chapters and about 7,000 active members throughout New Jersey, and am instrumental in the direction of NJ NAACP priorities.
2. The NJ NAACP is an affiliate of the National Association for the Advancement of Colored People, a non-profit corporation. The mission of the NJ NAACP is to ensure the political, educational, social, and economic equality of rights of all persons and to eliminate racial discrimination. NJ NAACP is the largest affinity group representing the Black community in New Jersey. Our vision is to ensure a society in which all individuals have equal rights without discrimination based on race. To achieve this, one of our primary objectives is to remove all barriers of racial discrimination through democratic processes. We are committed to voter education and to ensuring voting rights for all people in New Jersey.
3. One of our core functions is voter education, including organizing and voter registration efforts, creating and disseminating voter education materials, and providing voter assistance. We also actively engage in policy advocacy, including advocating for and testifying in support of legislation regarding voting and democracy issues before the New Jersey Legislature and to the Governor of New Jersey. This year, as the COVID-19 pandemic has spread, disproportionately impacting Black and Brown communities, we are committed to encouraging our members and the community, through voter education materials, to vote by mail for their own safety.

Case 3:20-cv-05990-MAS-LHG Document 17 Filed 06/03/20 Page 2 of 4 PageID: 301
4. The NJ NAACP has grave concerns about New Jersey’s signature matching requirements for mail-in ballots and their impact on communities of color. Hudson County, the most diverse county in New Jersey, had the highest rate of ballot rejections due to signature match issues during the 2016 election. In 2014, Essex County had the highest rate of ballots rejected because of signature match issues. Essex County has the highest Black population in New Jersey. New Jersey’s signature matching law is significantly impacting the counties that have the highest populations of people of color. The NJ NAACP has a robust presence in Hudson and Essex Counties, with an active chapter in Jersey City and five chapters in Essex County, including one of our largest chapters in Newark. It is clear that our members are at greater risk of disenfranchisement in New Jersey under the current signature match requirement.
5. Our diverse membership also includes the elderly and people with health conditions and disabilities that make producing a consistent signature difficult and put them at even greater risk of disenfranchisement.
6. This is particularly concerning this year with the ongoing public health crisis caused by COVID-19. More and more people are voting by mail to protect their health and we are encouraging people to do so as well. However, due to historical suppression, many people, particularly in the Black community and among NJ NAACP members, do not trust that their vote will be counted unless they can press a button or pull a lever themselves. New Jersey’s signature match law only compounds their well-founded concerns. In order to trust that their votes will be counted if they vote by mail, our members need to know that their votes will not simply be thrown out because the ballot did not match a signature on a registration form that could be decades old.

Case 3:20-cv-05990-MAS-LHG Document 17 Filed 06/03/20 Page 3 of 4 PageID: 302
7. Many of our members also prefer to vote in person. The vast majority of our members who will choose that option for the July 7, 2020 primary election will only be able to vote by provisional ballot. Provisional ballots are subject to the same signature match policy as vote-bymail ballots. Camden County had the highest percentage of total provisional ballots cast rejected because of signature match. The NJ NAACP has a significant presence in Camden and signature match will put our members’ votes at high risks of being rejected.
8. The NJ NAACP has approximately 7,000 members throughout New Jersey and we represent the interests of communities of color. Our members vote on every decision made by our organization, and as such, are directly responsible our direction and activities. Our members, through our local chapters, are the NJ NAACP’s presence in communities. They host registration drives and engage in voter education. They advocate directly to local officials and represent the interests of the community.
9. We expect many of our members to vote by mail in the upcoming elections due to safety concerns. I understand that in past elections, one percent or more of mail ballots have been rejected due to signature issues. Most of our members who will vote in person in July will have to vote by provisional ballot and will therefore be subject to signature match. As a result, it is statistically almost certain that at least one, but more likely many, of our members will be disenfranchised by this system.
10. New Jersey’s laws must reflect the interests of the people of New Jersey, foremost being that their ballots are counted.

Case 3:20-cv-05990-MAS-LHG Document 17 Filed 06/03/20 Page 4 of 4 PageID: 303

Case 3:20-cv-05990-MAS-LHG Document 18 Filed 06/03/20 Page 1 of 3 PageID: 304

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP NEW JERSEY STATE CONFERENCE, WILLIAM M. RIGGS, SHAMISA ZVOMA, and DEBORAH J. RISKA,

No. 20-cv-05990-MAS-LHG

Plaintiffs,

v.

TAHESHA WAY, in her official capacity as Secretary of the State of New Jersey,

Defendants.

DECLARATION OF PLAINTIFF WILLIAM RIGGS Pursuant to 28 U.S.C. § 1746, I, William Riggs, declare under penalty of perjury that the following is true and correct: 1. My name is William Riggs, and I am a Plaintiff in this lawsuit. 2. I reside in Middlesex, New Jersey. 3. I am 78 years old. 4. In 2004, I was diagnosed with Essential Tremor, a nervous system disorder that causes me to experience involuntary and rhythmic

Case 3:20-cv-05990-MAS-LHG Document 18 Filed 06/03/20 Page 2 of 3 PageID: 305
shaking. In 2016, I was diagnosed with Parkinson’s Disease, a progressive nervous system disorder that affects my movement.
5. My symptoms of Parkinson’s Disease include a hand tremor— which varies unpredictably in severity—as well as physical instability.
6. When I was younger, I used to have excellent handwriting— often described as beautiful. But my hand tremor has severely affected my penmanship. Because the tremor varies significantly in severity and is unpredictable, sometimes my signature is legible, and other times it is not. Sometimes, the tremor is so severe that I cannot even sign my full name, and I am only able to write “W.M. Riggs.”
7. Though I used to vote exclusively in person, I registered to vote by mail beginning in 2019. Due to my Parkinson’s Disease, I am no longer able to safely drive and do not have a driver’s license. It is therefore difficult for me to get to my polling location.
8. Further, it would not be safe for me to vote in person during the 2020 elections because I am at heightened risk for COVID-19 due to my age and health conditions.
9. I intend to vote by mail in the New Jersey primary election on July 7, 2020, as well as in the general election on November 3, 2020.

Case 3:20-cv-05990-MAS-LHG Document 18 Filed 06/03/20 Page 3 of 3 PageID: 306
10. Because my signature varies so significantly due to my tremor, I fear that the signature on my mail-in ballot application will be deemed inauthentic if compared to an earlier or even contemporary example of my signature.
11. It is extremely important to me that my vote is counted in the primary and general elections this year, as well as in future elections.
Executed on June 3, 2020.* I declare under penalty of perjury the foregoing is true and correct.
_/s_/ W__illi_am__R_igg_s_____________________________ William Riggs
*Due to his health, Mr. Riggs was physically unable to personally subscribe this declaration and instead verbally authorized his counsel to affix an electronic signature on his behalf.

Case 3:20-cv-05990-MAS-LHG Document 19 Filed 06/03/20 Page 1 of 2 PageID: 307
DECLARATION OF SHAMISA ZVOMA
Pursuant to 28 U.S.C. § 1746, I, Shamisa Zvoma, declare as follows:
1. I am over 18 years of age and competent to testify. 2. I live and vote in Montclair, New Jersey, and I am a member of the League of Women Voters of New Jersey. Voting is incredibly important to me. I registered to vote when I was 18 years old. Since then, I have been an active voter and voted in every election that I could for as long as I can remember. I plan to continue to vote in all future elections. 3. I voted by mail in Montclair’s 2020 municipal election, which was held on May 12, 2020. I filled out my ballot, signed it by hand, and mailed it back to Essex County at least two weeks prior to the election. 4. I was shocked to receive a letter on May 22, 2020 indicating that my ballot was rejected because the signature on the ballot did not match the one that is currently on the voter roll. Ex. A. This finding was in error. 5. If I had known there was an issue with the signature on my ballot and been given an opportunity to remedy it, I would have taken whatever steps were available to me to correct the error and have my vote counted. Before receiving the letter on May 22, 2020, I had no reason to suspect that there was any issue with my signature or my ballot. 6. I am outraged that my vote did not count. I am incredulous and disheartened that in this country, which is supposed to be a beacon of democracy, I can be a law-abiding, tax-paying citizen and can have my voice taken away. I feel a sense of helplessness that my vote could be rejected again in future elections.

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Executed on May 3_0_, 2020 at Montclair, New Jersey. I declare under penalty of perjury the foregoing is true and correct.
______________________________________ Shamisa Zvoma

Case 3:20-cv-05990-MAS-LHG Document 19-1 Filed 06/03/20 Page 1 of 1 PageID: 309 EXHIBIT A

dotloop signature verification: dtlp.us/mTOG-j1re-dAw4
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DECLARATION OF DEBORAH J. RISKA
Pursuant to 28 U.S.C. § 1746, I, Deborah J. Riska, declare as follows:
1. I live and vote in Ledgewood, New Jersey. I have been a registered New Jersey voter for approximately 20 years, and I vote regularly.
2. I have voted by mail a few times throughout my years as a New Jersey voter. Especially when my kids were young, I found that mail-in voting made voting more accessible for me. In 2016, I received a letter from the State informing me that I had been automatically enrolled on a permanent mail-in voter list that I could opt out of by replying to the letter. At the time, I decided not to opt out. Every time I have voted since, it has been by mail.
3. I now know that the ballots I cast in the 2016 and 2018 general elections were rejected and never counted because of signature issues. I did not learn of the issue with my 2016 ballot until a few weeks ago, which is almost four years after I cast that ballot. As far I know, the State never took any steps to contact me or notify me about that issue.
4. The State did notify me that my 2018 ballot was rejected because of a signature mismatch. They sent me a letter in January of 2019, explaining the rejection. This was more than three months after the election had passed, and there was nothing I could to do fix the issue. If I had been informed there was an issue with my ballot, I would have taken whatever steps were available to me to verify my ballot and have my vote counted.
5. In 2019, I tried to vote in person to avoid this issue. However, when I arrived at my polling location I was told I could not vote in-person because I was on the mail-in voter list. I was not offered a provisional ballot. I decided not to cast a mail-in ballot in that election, because I figured my ballot would just be rejected again anyways.

dotloop signature verification: dtlp.us/mTOG-j1re-dAw4
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6. Because of these experiences, I do not trust our system of elections. I am disheartened and angry that two of my validly cast ballots were rejected without my knowledge and without providing me any opportunity to remedy the issues election officials believed they found.
7. I would feel more comfortable voting by mail in the future if there were an opportunity to fix any issues with my signature before my ballot is rejected.

dotloop signature verification: dtlp.us/mTOG-j1re-dAw4
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Executed on June _2 _, 2020 at L_e_d_g_e_w_o_o_d__, New Jersey. I declare under penalty of perjury the foregoing is true and correct.
Deborah Riska dotloop verified 06/02/20 11:14 AM EDT
________________________K_IZ_Z-O_H_MQ_-7_HK_6-_5Z_7E_____ Deborah J. Riska

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Case 3:20-cv-05990-MAS-LHG Document 21-1 Filed 06/03/20 Page 1 of 1 PageID: 315

Case 3:20-cv-05990-MAS-LHG Document 22 Filed 06/03/20 Page 1 of 2 PageID: 316
DECLARATION OF ANFAL MUHAMMAD-JENKINS
Pursuant to 28 U.S.C. § 1746, I, Anfal Muhammad-Jenkins, declare as follows:
1. I am over 18 years of age and competent to testify. 2. I live and vote in Newark, New Jersey. I am 45 years old and first registered to vote when I was 18 years old. I have voted in every election I could because voting is important to me. 3. I voted by mail in the Newark School Board and Municipal Budget election on May 12, 2020. I filled out my ballot, signed the envelope, and mailed my ballot to Essex County on or about May 7, 2020. 4. On May 22, 2020, I received a letter from Essex County stating that my ballot was rejected because the signature on my ballot did not match the one in my voter file. (Ex. A). 5. The letter was unsealed and I initially thought it may have been a prank. I could not believe it because I had voted in every election since moving to Newark three years ago and had never had a problem before. I just could not imagine that my vote would be rejected so easily. However, the letter was real. 6. It is ridiculous that my vote was not counted because of a signature mismatch and that I was informed after the races were certified. 7. If I had been provided notice that there was an issue with my ballot and been given opportunity to fix it, I definitely would have taken it. They should have reached out while they were still counting ballots. I would have done what was needed to have my ballot counted.

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Executed on June __, 2020 at __________, New Jersey. I declare under penalty of perjury the foregoing is true and correct.
______________________________________ Anfal Muhammad-Jenkins

Case 3:20-cv-05990-MAS-LHG Document 22-1 Filed 06/03/20 Page 1 of 1 PageID: 318

Case 3:20-cv-05990-MAS-LHG Document 23 Filed 06/03/20 Page 1 of 3 PageID: 319
DECLARATION OF SARAH KATHERINE CÉSPEDES
Pursuant to 28 U.S.C. § 1746, I, Sarah Katherine Céspedes, declare as follows:
1. I am over 18 years of age and competent to testify. 2. I live and vote in Montclair, New Jersey. Voting is very important to me. 3. I am 44 years old and first registered to vote when I was 18 or 19 years old. Since then, I have been an active voter and have voted in every election that I could over the last several years. 4. I voted by mail in the May 12, 2020 municipal election in Montclair. 5. For the May 12, 2020 municipal election, a ballot was mailed to me at my address. I filled out my ballot, signed it by hand, and mailed my completed sealed ballot back to Essex County on approximately May 5, 2020. 6. I was shocked to receive a letter on May 22, 2020 indicating that my ballot was “not eligible to be counted” because the signature on the ballot did not match the one that is currently on the voter roll. In the last few years, when I have voted in person at my polling place, I have noticed that my signature in the signature book belongs to me, but it is not the same signature that I provided when I registered to vote. The signature in my voter file appears to be an electronic signature. Although I know this signature belongs to me, I do not know how it became part of my voter file. 7. If I had known there was an issue with the signature on my ballot and been given an opportunity to remedy it, I would have taken whatever steps were available to me to correct the error and have my vote counted. Before receiving the letter on May 22, 2020, I had no reason to suspect that there was any issue with my signature or my ballot. I voted by mail in the 2016 presidential election and would have expected election officials to inform me if there was a problem. I now question whether my vote counted in that election.

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8. I am extremely disheartened that my vote did not count. The mayoral race in our town that was on the May 12th ballot was decided by fewer than 200 votes. I know of at least four or five other people in my community whose ballots were rejected. Because of the close race and these issues with peoples’ ballots, members of our community have started to doubt the integrity of our elections system and the legitimacy of the result. I believe that this would not be the case if voters whose ballots were affected had been told of the issue and been given an opportunity to fix it before they were disenfranchised.
9. I am now being asked to return a new Voter Registration Form with a “legible signature,” but this will not change the fact that my vote was discarded. I also have no confidence that this problem will not reoccur, even if I submit another signature. The signature that is in my file is my own, and my ballot was still disqualified. I believe this system needs to change to prevent people from being disenfranchised in the future.

Case 3:20-cv-05990-MAS-LHG Document 23 Filed 06/03/20 Page 3 of 3 PageID: 321
Executed on May __, 2020 at Montclair, New Jersey. I declare under penalty of perjury the foregoing is true and correct.
______________________________________ Sarah Katherine Céspedes

Case 3:20-cv-05990-MAS-LHG Document 23-1 Filed 06/03/20 Page 1 of 1 PageID: 322 EXHIBIT A

Case 3:20-cv-05990-MAS-LHG Document 24 Filed 06/03/20 Page 1 of 3 PageID: 323
DECLARATION OF BELINA GRILL
Pursuant to 28 U.S.C. § 1746, I, Belina Grill, declare as follows:
1. I am over 18 years of age and competent to testify. 2. I reside in Deal, NJ and have been registered to vote in Monmouth County for over 24 years. While I initially registered when I was about 18 years old, I registered under my married name after I married my husband in 1996. 3. Because of COVID-19, the May 12, 2020 local elections for my town were held entirely by mail. I was sent a mail-in ballot by my county, Monmouth County, and there was no way for me to vote in-person. After receiving my ballot, I filled it out according to the instructions, signed it, and submitted it at least one week prior to the election. 4. On May 20, 2020—more than a week after the election and two weeks after I submitted my ballot—I received a letter from the Monmouth County Board of Elections Commissioners informing me that my ballot had been rejected because the signature on the ballot did not match the one in their records. Ex. A. 5. My husband called the County Board of Elections Commissioners to inquire further about the reason behind the rejection. In response, the Board sent us a copy of the two signatures they used for comparison. 6. I can confirm this rejection was in error. I have inspected the vote-by-mail ballot signature and signature that the County Board of Elections had on file and confirm that the signatures both belong to me. The signature that the County Board of Elections had on file was from May 30, 1996, when I registered to vote 24 years ago. My signature has changed over the last two and a half decades.

Case 3:20-cv-05990-MAS-LHG Document 24 Filed 06/03/20 Page 2 of 3 PageID: 324
7. I have not been a frequent voter. I have been disillusioned about our election system, and often feel my vote will not count even if I cast it. I only voted this time because my husband encouraged me to. It was incredibly disheartening to take this step only to have my mail-in ballot rejected. This experience has only reaffirmed my distrust of the system.
8. I believe that we should have a system that actually counts voters’ validly cast mail-in ballots. If I could be confident that my vote would count in the future, I would cast another ballot.

Case 3:20-cv-05990-MAS-LHG Document 24 Filed 06/03/20 Page 3 of 3 PageID: 325

Case 3:20-cv-05990-MAS-LHG Document 24-1 Filed 06/03/20 Page 1 of 1 PageID: 326 EXHIBIT A

 
 Case 3:20-cv-05990-MAS-LHG Document 34 Filed 06/17/20 Page 1 of 9 PageID: 346

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

LEAGUE OF WOMEN VOTERS OF NEW JERSEY, NAACP NEW JERSEY STATE CONFERENCE, WILLIAM M. RIGGS, SHAMISA ZVOMA, and DEBORAH J. RISKA,
Plaintiffs,
v.

No. 20-cv-05990-MAS-LHG
STIPULATION AND ORDER GRANTING
PRELIMINARY INJUNCTION

TAHESHA WAY, in her official capacity as Secretary of the State of New Jersey,

Defendant.

WHEREAS, on May 18, 2020, Plaintiffs League of Women Voters of New Jersey, NAACP New Jersey State Conference, and William M. Riggs filed their Complaint, ECF No. 1, against Defendant Secretary Tahesha Way (“Defendant”), in her official capacity as Secretary of the State of New Jersey, alleging that New Jersey’s existing signature verification procedures for mail-in voting violate the First and Fourteenth Amendments of the United States Constitution; and
WHEREAS, on June 3, 2020, Plaintiffs League of Women Voters of New Jersey, NAACP New Jersey State Conference, William M. Riggs, Shamisa Zvoma, and Deborah J. Riska (collectively, “Plaintiffs”) filed their
1

Case 3:20-cv-05990-MAS-LHG Document 34 Filed 06/17/20 Page 2 of 9 PageID: 347
Amended Complaint, ECF No. 11, against Defendant, alleging that New Jersey’s existing signature verification procedures for both mail-in and provisional voting violate the First and Fourteenth Amendments of the United States Constitution; and
WHEREAS, on June 3, 2020, Plaintiffs filed a motion for a preliminary injunction with supporting declarations and a supporting memorandum of law; and
WHEREAS, Plaintiffs and Defendant (collectively, the “Parties”) have agreed to the provisions set forth herein to resolve Plaintiffs’ pending motion for a preliminary injunction, which provisions shall govern only the primary election scheduled to take place in New Jersey on July 7, 2020; and
WHEREAS, the Parties agree that this Stipulation and Order is not a final judgment, does not resolve Plaintiffs’ claims except as to the July 7, 2020 primary elections, and is entered without prejudice to any claims, defenses, or potential relief respecting any future elections;
WHEREAS, this Stipulation and Order shall not be construed as an admission by Defendant as to the merits of Plaintiffs’ claims;
NOW, THEREFORE, IT IS STIPULATED AND AGREED, by and among the Parties, and HEREBY ORDERED by the Court, as follows:
2

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1. Plaintiffs’ motion for a preliminary injunction, ECF No. 12, is
granted.
2. Defendant shall forthwith direct all County Boards of Elections and
their members, agents, employees and representatives (collectively, the
“Evaluators”) who are responsible for authenticating or verifying mail-in ballots
pursuant to N.J. Stat. § 19:63-17 and/or authenticating or verifying ballots pursuant
to N.J. Stat. § 19:53C-13 (collectively, “Signature Matching”), as follows:
a. All Evaluators shall receive, and be directed to comply with,
written guidance stating as follows:
When verifying signatures, evaluators should keep in mind that everyone writes differently, and no one signs their name exactly the same way twice. Some variation in signatures is to be expected. There are many factors that can lead to signature variance, including but not limited to age, disability, underlying health conditions, writing implement/surface, level of concentration, and educational background. Studies have shown that evaluators are more likely to declare genuine signatures to be non-genuine than they are to accept a non-genuine signature as genuine. We hope to prevent these errors. Evaluators should presume that the documents were signed by the same person and must accept a signature as valid unless there is a clear discrepancy that cannot be reasonably explained.
b. Evaluators shall track all mail-in and provisional ballots that are
tentatively rejected due to Signature Matching or because a signature
is missing. Within 24 hours after the decision has been made to
tentatively reject a ballot due to a signature, Evaluators shall issue a
Cure Letter to the voter whose ballot has been tentatively rejected. The
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Cure Letter shall inform the voter that their ballot has been tentatively rejected because the ballot envelope did not have a signature or the signature could not be verified using the voter’s signature on file. c. Every Cure Letter sent pursuant to Subparagraph 2(b) above shall include:
i. A Cure Form, pre-printed with the voter’s name, which shall instruct the voter that they may cure the signature impairment by completing the form and returning it to the Board of Elections in person, by fax, or by email at or before 2:00 p.m. on July 23, 2020, or by mail such that it is received by the Board of Elections by close of business on July 23, 2020; and (ii) a postage-paid, addressed envelope that the voter may use to return the form if they elect to do so by mail. Cure Forms shall not be referred to as affidavits and shall not be required to be sworn. Voters shall not be required to submit any form of hard-copy identification document or copy thereof in order to cure a signature impairment, but may do so in accordance with Paragraph 2(d)(ii) below.
d. Cure Forms shall solicit the voter to: i. Declare that they submitted their provisional or mail-in ballot;
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ii. Verify their identity by either: 1. Providing their Driver License Number or Motor Vehicle Commission Non-driver ID Number; or, 2. If the voter does not have a Driver License Number or Motor Vehicle Commission Non-driver ID Number, providing the last four digits of their Social Security Number; or, 3. If the voter has neither a Driver License Number, Motor Vehicle Commission Non-driver ID Number, or the last four digits of their Social Security Number, attaching a legible copy of a state-accepted form of identification, which shall include a sample ballot which lists the voter’s name and address; an official federal, State, county or municipal document which lists the voter’s name and address; or a utility or telephone bill or tax or rent receipt; and
iii. Sign and date the form prior to returning it. e. If a voter timely returns a completed Cure Form and the information
provided verifies their identity, their otherwise valid mail-in or provisional ballot shall be counted in the final election results
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irrespective of any impairment previously identified as a result of Signature Matching. If a voter elects to attach a copy of a Stateaccepted identification document to their Cure Form pursuant to Paragraph 2(d)(ii)(3) above, the address listed on such document need not match the voter registration address provided that the document otherwise verifies the voter’s identity. f. Under no circumstances may Cure Forms be verified or authenticated using Signature Matching. g. A provisional or mail-in ballot may not be rejected due to signature impairment unless Evaluators comply with all provisions of this Paragraph 2. 3. Defendant shall issue guidance advising each County Board of Elections to, at a minimum, meet in advance of Election Day and eight days after Election Day in order to discharge their duties pursuant to Paragraph 2, and to thereafter meet regularly in order to accomplish the same. Such guidance shall encourage these meetings to occur in addition to any other statutorily mandated meetings of the Board. 4. Defendant shall direct each County Board of Elections to report to the New Jersey Division of Elections the following information on July 15, 2020:
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a. Whether they have completed processing all mail-in and provisional ballots pursuant to Paragraph 2(b); and
b. If such processing has not been completed, (i) the number of mail-in and provisional ballots pending staff review; (ii) by when staff review of the received mail-in and provisional ballots will be completed; (iii) the number of mail-in and provisional ballots that have been set aside for County Board of Elections review, but have not yet been acted on by the Board, and (iv) when the Board intends to meet to process those ballots.
5. Defendant shall provide to Plaintiffs’ counsel the information contained in the reports received pursuant to Paragraph 4.
6. Defendant shall direct the New Jersey Division of Elections to conduct a public awareness and education campaign in advance of the July 7, 2020 primary election concerning the importance of a voter’s signature on their mail-in or provisional ballot. Such campaign shall be reasonably designed so as to (i) alert voters that provisional and mailin ballots are verified using Signature Matching; (ii) inform voters that in the event a ballot is tentatively rejected as a result of Signature Matching, voters are entitled to receive notice of the tentative rejection and an opportunity to cure the purported impairment; and (iii) provide
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voters with a basic understanding of the notice and cure process set forth in Paragraph 2 above. The information described in this Paragraph 6 shall, at minimum, appear on the Division of Elections’ website and social media pages, and be made available to counties and advocacy groups to disseminate. 7. The relief set forth herein shall be implemented without delay and so as to be effective for the primary election scheduled to take place in New Jersey on July 7, 2020. 8. This Stipulation and Order is not a final judgment, does not resolve Plaintiffs’ claims except as to the July 7, 2020 primary election, and is entered without prejudice to any claims, defenses, or relief respecting future elections. 9. The bond requirement of Fed. R. Civ. P. 65(c) is waived.

STIPULATED AND AGREED AS TO FORM AND ENTRY:

CAMPAIGN LEGAL CENTER

NEW JERSEY OFFICE OF THE ATTORNEY GENERAL

/s Danielle Lang

.

Danielle Lang*

Rob Weiner*

Ravi Doshi*

Dana Paikowsky*^

1101 14th Street NW, Suite 400

Washington, DC 20005

_s/_S__us_a_n _M__. _S_co_tt_______ Susan M. Scott Deputy Attorney General 25 Market Street P.O. Box 112 Trenton, NJ 08625

Counsel for Defendant
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