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Ballot Harvesting

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When voters vote by mail, they typically have two options for returning their completed ballots – by mail or by dropping it off at a ballot collection location, such as a drop box, election office, or polling place.  Some voters who choose the second option to return their ballots need a family member or caregiver to assist them.

What is ballot harvesting and how is it a part of voting by mail?

 

Ballot harvesting occurs where individuals take advantage of this second option and “harvest” or collect voters’ ballots. While it may seem like a kind gesture to assist voters in submitting their ballots, ballot harvesting can severely undermine the fairness and honesty of elections and risks hurting the very voters it purports to help.

 

How does ballot harvesting work?

 

Once the voter’s absentee ballot arrives, he or she has the opportunity to complete and return it by Election Day. While the voter still has possession of the ballot, a ballot harvester will approach the individual, often with the aid of a voter list to know which voters received their ballots by mail, to offer the voter assistance in completing and/or returning the ballot.

 

If the voter consents, the ballot harvester may assist the voter in completing the ballot and will collect and return the completed ballot. Ballot harvesters will repeat this process to turn in any number of ballots for the election.

 

How would ballot harvesting lead to election fraud?

 

Ballot harvesting currently presents one of the greatest threats to election integrity for multiple reasons:

 

  • The first threat stems from the lack of oversight given to the handling of ballots in vote-by-mail systems and the chain of custody mail ballots pass through once they leave the supervision of election officials. During the election cycle, election administrators are tasked with maintaining and transporting thousands of ballots. But ballot harvesting puts this same power not in the hands of trained election officials but in the hands of private persons with minimal accountability.

 

  • Because of the lack of administrative oversight, bad actors can determine the fate of the ballots they collect. Put simply, ballot harvesters have the ability to choose which collected ballots to return and which discard. These harvesters can choose to only return ballots that vote in favor their desired party or candidate and discard those that do not. Such actions directly disenfranchise voters and are illegal, but ballot harvesting systems make it very difficult to detect such bad behavior.

 

  • The second threat is the influence these ballot harvesters can have on how and if an elector votes. When a voter request to receive their ballot by mail, it does not necessarily mean that the voter will choose to complete and return their ballot. But when a ballot harvester approaches a voter who has yet to complete his or her ballot, the voter may feel pressured to vote a certain way or to vote in general when they otherwise would not have chosen to vote.

 

  • Ballot harvesters often have ulterior motives and incentives for collecting and delivering ballots to the polls. In some states, harvesters can be paid based on the number of ballots they collect, creating perverse incentives that can lead to coercing voters and using questionable means to increase the number of ballots returned by a harvester. These questionable means can include filing absentee ballot requests on behalf of voters who never intended to vote, manipulating vulnerable populations like the elderly, and registering and requesting absentee ballots on behalf of people who are ineligible to vote.

 

Unlike when a voter casts his or her vote in person at a polling location in privacy, ballot harvesters are able to discuss with voters the candidates they should or should not vote for. Voters who have yet to make their decision may vote differently because of the ballot harvester’s influence. This infringes upon one of the most fundamental aspects of the American voting system – the secrecy of the ballot box. Additionally, it violates the voter’s freewill regarding for whom they decide to vote or even whether to return a ballot altogether.

 

Has ballot harvesting affected the outcome of any elections?

 

Developments in California and North Carolina after the 2018 Midterm Elections brought ballot harvesting to the national spotlight:

 

  • In California, several Republican congressional candidates led their Democratic competitors on election night by thousands of votes. However, as election officials spent days and, in some cases, weeks after the election tabulating millions of ballots that were dropped off at polling locations on Election Day, these candidates ended up losing.

 

  • Because California legalized ballot harvesting in 2016 with basically no restrictions,[i] a total of five million ballots – 40% of the total ballots cast – were dropped off at polling locations on Election Day and were counted after election night. As several Republican candidates slowly saw their leads dwindle after the polls closed, it raised alarms concerning the fairness and honesty of the election due to ballot harvesting. Even if all ballot harvesting operations were conducted according to California law, the large number of harvested ballots and delays in counting the ballots undermined voters’ confidence in the election results.

 

  • In North Carolina, the State Board of Elections refused to certify the 9th Congressional District race results after reporting substantial irregularities in the return of mail ballots. Eventually news broke that McRae Dowless, a consultant to the Republican candidate whose victory was nullified, and his employees illegally harvested hundreds of ballots and discarded those that went against the Republican candidate. The State Board of Elections voided the election and ordered a new one on account of Dowless’ actions.

 

These two examples are likely only the beginning. Ballot harvesting will likely have a significant effect on the upcoming November 2020 Election in several races across the country.

 

Is ballot harvesting illegal?

 

As would be expected in our federalist system of election administration, states vary significantly concerning their rules regarding ballot harvesting. With each new legislative cycle, states’ policies on ballot harvesting change and develop.

 

  • According to an assessment by the National Conference of State Legislatures, 27 states and Washington, D.C. permit ballot harvesting so long as the voter designates the collector as his or her agent. These states include Alaska, Arkansas, California, Colorado, Connecticut, District of Columbia, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Minnesota, Montana, Nebraska, New Jersey, North Dakota, Oregon, Pennsylvania, South Carolina, South Dakota, Texas, Virginia and West Virginia.

 

  • Of these 27 states, 12 limit the number of ballots a designated agent is permitted to return. The states that limit the number of ballots a harvester can return are Arkansas, Colorado, Georgia, Louisiana, Maine, Minnesota, Montana, Nebraska, New Jersey, North Dakota, South Dakota and West Virginia.

 

  • Nine states allow absentee ballots to be returned only by the voter’s family member or caregiver. These states include Arizona, Massachusetts, Michigan, Missouri, Nevada, New Hampshire, New Mexico, North Carolina and Ohio.

 

  • Alabama is the only state that completely prohibits anyone other than the voter from returning the voters’ ballot.

 

  • Finally, thirteen states – Delaware, Hawaii, Idaho, Mississippi, New York, Oklahoma, Rhode Island, Tennessee, Utah, Vermont, Washington, Wisconsin and Wyoming – are silent on the issue of ballot harvesting.

 

Beyond these four generalizations, there are many nuances between the laws of the several states. For example:

 

  • Arizona is the only state to make ballot harvesting a felony.[ii]
  • Arkansas allows anyone to serve as a voter’s designated agent; however, harvesters may only deliver a maximum of two ballots.
  • California has removed nearly every barrier to ballot harvesting and only prohibits ballot harvesters from receiving compensation for the number of ballots they collect.
  • Maine, Maryland, Nebraska, New Jersey, North Dakota and South Carolina all prohibit a candidate or his or her employee from serving as a voter’s designated agent.
  • Montana similarly limits the number of ballots a person can deliver to nine.
  • North Carolina prohibits the public release of the names of voters who have requested to receive their ballot by mail until Election Day in efforts to prevent harvesters from targeting specific voters.
  • North Dakota outlaws a ballot harvester’s ability to be compensated for collecting ballots.
  • Texas prohibits the storage of ballots that have yet to be returned to the polling location.

 

Can ballot harvesting lead to disenfranchising otherwise eligible voters?

 

Ballot harvesting is not a good policy and poses a significant risk of disenfranchising and harming voters, particularly in vulnerable populations. The lack of administrative oversight under vote-by-mail election systems affords too great an opportunity for ballot harvesters to undermine the fairness and honesty of elections and further interfere with the freewill and autonomy of voters who alone have the responsibility to determine who to vote for or whether to vote at all.

 

Resources

 

America’s Hidden Voting Epidemic? Mail Ballot Failures (Commentary by Hans. von Spakovsky and J. Christian Adams)

 

Brnovich v. Democratic National Committee (Petition for Certiorari to the U.S. Supreme Court regarding Arizona’s Ballot Harvesting Ban)

Petition for a Writ of Certiorari

Brief of Amici Curiae Election Integrity Project California, Inc.

Brief of Amicus Curiae Helen Purcell

Brief Amicus Curiae of American Constitutional Rights Union

 

Mail-In Absentee Ballot Anomalies in North Carolina’s 9th Congressional District (Article by Michael Herron in the Election Law Journal)

 

Political Weaponization of Ballot Harvesting in California (Report by Committee on House Administration Republican Staff)

 

Standards for Absentee Ballots and All-Mail Elections: Doing It Right…and Doing It Wrong (Report by The Heritage Foundation)

 

Vote Harvesting: A Recipe for Intimidation, Coercion, and Election Fraud (Report by Hans von Spakovsky for The Heritage Foundation)

 

 

[i] See California Assembly Bill 1921 (2016).

[ii] Arizona made ballot harvesting a class 6 felony in 2016 with the enactment of H.B. 2023. The law has since been challenged. The U.S. District Court and Ninth Circuit upheld the law, but the lawsuit was then reheard by the entire Ninth Circuit (en banc), and the law was struck down as unconstitutional. The Arizona Attorney General is currently seeking to appeal the decision to the United States Supreme Court.