Petitioners tell Washington Supreme Court signature-matching rejects thousands of ballots; state defends process

Kevin Hamilton, counsel for the petitioners, told the Washington Supreme Court on Oct. 31 that the state's practice of comparing mail-ballot signatures to exemplars "infringes and burdens the right to vote" and has "operated to deprive more than 170,000 fully qualified Washington voters of the right to vote just since 2016." He told the justices that many of those ballots are cast by voters who complied with all statutory requirements but nonetheless had their votes rejected because of penmanship, and that the burden falls disproportionately on younger and minority voters.

Deputy Solicitor General Carl Smith, arguing for Secretary of State Steve Hobbs, countered that "In Washington, it is easier for a voter to cast a ballot than it has ever been," and urged the court to apply the high bar for a facial challenge. Smith said signature verification helps identify invalid ballots and that county election officials and experts have shown the process can detect ballots submitted by someone other than the registered voter. Citing a local review, Smith told the court an examiner agreed in "92% of cases" that sampled rejected signatures were not written by the registered voter.

At the heart of the argument was which legal test governs. Hamilton urged the court to apply strict scrutiny under the Washington Constitution, arguing the signature-matching system effectively strips roughly 20,000 ballots from voters who did everything required to vote and that the cure process does not reach many affected voters (for example, people who did not receive notice or who cannot comply because of illness or travel). "I don't care who votes. I care who counts the votes," Hamilton said in rebuttal, quoting the aphorism his side used to stress the point.

Smith responded that the statute permits a cure process and that regulators and the secretary's office have changed procedures to reduce challenges and make curing easier, including adding accepted new signatures to a voter's registration history and altering the standard for initial challenges. He argued alternative identity-verification schemes (photo ID, notarization, biometrics) would be more burdensome and could suppress turnout, particularly among young voters and voters of color.

The justices pressed both sides on the record and on doctrinal approach: whether the case should be treated as a facial challenge under a "no set of circumstances" test or whether a sliding-scale approach (similar to Anderson-Burdick) should govern review. Counsel for the state urged a sliding-scale approach that adjusts scrutiny to the magnitude of the burden; petitioners emphasized text and history of Article I, Section 19 and urged strict scrutiny.

The court heard evidence and argument about CURE data, statutory procedures for challenges, expert reports cited by each side, and changes the secretary's office has implemented. After rebuttal the case was submitted for decision and the court adjourned.

The decision will determine whether the court treats signature verification as a constitutional burden requiring strict scrutiny or as a regulable time, place and manner rule subject to lesser review.