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Another Judge Goes Rogue

There have been numerous examples of late of a low-level judge upending long-standing state or national practices. For example, in 2021, U.S. District Judge Roger Benitez threw out California's 30-year-old ban on assault weapons. In April of this year, Judge Matthew Kacsmaryk in a one-judge district in Texas banned the abortion pill nationally. There are plenty of other cases where some random low-level judge threw out a state or federal law or regulatory decision he didn't happen to like. These cases always get appealed and typically end up in the Supreme Court.

The latest example is a ruling last week by Yavapai County Superior Court Judge John Napper that the method of signature verification used for absentee ballots in much of Arizona is illegal. This is extremely important in this swing state because often two-thirds of the votes are by absentee ballot. Arizona has a long history of voting by mail, so this is not some flash in the pan due to the pandemic.

Napper ruled that the signatures on the envelopes containing the ballots must be compared to the signature on the voter's registration form. Although that sounds logical, in practice many older voters filled out their registration form 20, 30, 40, or even 50 years ago. Signatures change over that period of time. Parkinson's and other diseases can make signatures change. Names even change as voters get married or divorced. Signatures from decades ago might not even be available anymore to compare to the signature on the envelope.

As a practical matter, election officials in many counties use more recent signatures as the base signature to compare to what is on the envelope. For example, a signature on a driver's license or Medicaid application from 3 years ago is probably better than one on a registration from 50 years ago. The guide produced by the Secretary of State allows local election officials to use more recent official documents when that is likely to be more accurate than a very old registration signature. But the judge said NO CAN DO. The ruling isn't final yet, but it is certain to be appealed when it is.

As a sidebar, (Z) once dealt with this exact situation. He opened an account at a prominent national bank, one that later became famous for creating fake accounts for its customers, in his first year of college. Then, something like 25 years later, he needed the bank to approve something called a medallion signature, which is a much more stringent version of having something notarized. The bank staff pulled up the signature from the early 1990s and insisted that (Z) match it, despite his signature having evolved significantly. You can only get medallion verification from an institution you have a longstanding relationship with, so they were the only game in town. Consequently, (Z) was put in the odd position of, in effect, trying to forge his own signature.

Anyhow, if Napper's ruling holds, thousands of otherwise valid absentee ballots will be thrown out in 2024 due to a mismatch between the signature on the envelope and a possibly very old one on the registration form, assuming it can be found. If the decision is ultimately sustained by the Arizona Supreme Court, it could tilt the 2024 election in Arizona to the Republicans, since Democrats use absentee voting more than Republicans.

Normally County Superior Courts in Arizona handle felony prosecutions, civil cases over $10,000, probate matters, and divorces. Making major changes to how elections are conducted isn't usually on their plate. Usually that is up to the state legislature and secretary of state. Maybe it would be better if low-level judges stuck to putting criminals in prison, distributing inheritances, and dissolving marriages. But here we are (again). (V)

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