When electors vote by mail, they typically have two options for returning their completed ballots – by mail or by dropping it off at a polling location.
Ballot harvesting, or third-party ballot return, occurs where individuals take advantage of this latter option and “harvest” or collect voters’ completed ballots to drop them off at the polls. 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.
How Ballot Harvesting Works
Ballot harvesting begins when a voter is given or requests to receive his or her ballot by mail. Once the voter’s 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 roll 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 will collect the completed ballot and return it to the polling location. Ballot harvesters will repeat this process to turn in any number of ballots up to the day of the election.
Ballot Harvesting Threatens the Fairness and Honesty of Elections
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 citizens with minimal accountability.
Ballot harvesters often have ulterior motives and incentives for collecting and delivering ballots to the polls. Partnered with 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 to discard. These harvesters can choose to only return ballots that vote in favor of their desired party or candidate and discard those that do not.
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 have not.
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 who they decide to vote for or even their decision to return their ballot altogether.
Ballot Harvesting is Already Affecting 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 five million ballots – 40% of the total ballots cast – were dropped off at the 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.
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 Election in several races across the country.
States have Different Stances Regarding Ballot Harvesting
As would be expected, states vary significantly concerning their stance on 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:
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.
Montana similarly limits the number of ballots a person can deliver to nine.
Texas prohibits the storage of ballots that have yet to be returned to the polling location.
North Dakota outlaws a ballot harvester’s ability to be compensated for collecting ballots.
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.
California has removed nearly every barrier to ballot harvesting and only prohibits ballot harvesters from receiving compensation for the number of ballots they collect.
Lastly, 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.
LDF is opposed to ballot harvesting. 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.
[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. Upon its passage, it was immediately challenged. Judge Douglas L. Rayes of the Arizona District Court upheld the law, and the 9th Circuit originally affirmed. The lawsuit was then reheard en banc by the 9th Circuit, and the law was struck down for violating Section 2 of the VRA. After an appeal by the Arizona Attorney General, the United States Supreme Court granted certiorari. Oral arguments are set for early March 2021.