We’ve all heard about Brnovich v. DNC, a high profile U.S. Supreme Court case decided last summer. The ruling further weakened the Voting Rights Act. What’s less well known is the Arizona law that prompted this case.
In 2016, Arizona’s Republican-controlled Legislature passed a law that criminalized ballot collection and required ballots cast in the wrong precinct to be rejected. Motivated by the potential for voter fraud, the first of these provisions made it a felony to return someone else’s signed and sealed ballot, with very limited exemptions for family or caregivers. This practice, also known as ballot collection, was particularly popular among Latino and Native American communities in the Grand Canyon State.
Behind this law, crucially, was a video that a trial court described as “racially charged.” In legislative hearings, it was the main evidence of fraud cited by lawmakers. The video showed an apparently Latino man who was legally returning numerous mail-in ballots to an elections office. The video’s creator, the former head of the Maricopa County Republicans, said he didn’t know if the man was an “illegal alien” but definitely knew he was “a thug.”
Arizona’s story is just the beginning. There was a flurry of litigation surrounding ballot collection rules in advance of the increased use of mail-in ballots during the 2020 election. Yet, the Republican Party has largely dominated the narrative, leading many to confound illegal tampering with legitimate assistance — at the expense of the communities that rely on the practice the most.
What is community ballot collection?
In many states, designated individuals or family members may collect a voter’s signed and sealed ballot and deliver the ballot to election officials on the voter’s behalf. This is called third-party ballot collection, community ballot collection or pejoratively, “ballot harvesting.”
As the former secretary of state of California, Sen. Alex Padilla (D-Calif.) characterized community ballot collection as giving “voters the power to decide who they most trust to return their vote-by-mail ballot for them if they so choose.”
Over 30 states have some form of guidelines on how a ballot is returned on behalf of a voter and who can deliver such a ballot. Alabama is the only state that specifies that the voter, and the voter alone, can return their ballot. Otherwise, restrictions often specify the amount of ballots a designated bearer can return, the amount of time that bearer can have those ballots in their possession or restrictions on financial compensation. In many of these states, the authorized returnee must be a family member, household member or caregiver.
With more people voting by mail than ever, the 2020 elections exposed the problems with strict ballot collection rules. Not much has changed though.
In the face of a public health crisis, the most widespread change in voting rules in 2020 was for states to loosen their requirements to vote by mail. Consequently, at least 84% of voters had the option of casting a mail-in ballot in the general election.
Voting by mail provided a safe way to cast a ballot during a pandemic, but its expanded use brought in a new range of challenges. Early in 2020, Marc Elias, a voting rights lawyer and founder of Democracy Docket, wrote about the “four pillars” of vote by mail — the four interrelated policy measures that are necessary to ensure voters can successfully cast a ballot in this new way. One of the pillars outlined that “community organizations should be permitted to help collect and deliver voted, sealed ballots.”
In the “most litigious election ever,” Democratic groups pushed in courtrooms to make technical changes to absentee voting rules ahead of the 2020 election. The lawsuits to expand ballot collection practices proved unsuccessful in many places like Florida, Maine, Minnesota and North Carolina. “I think that some courts saw [ballot collection] as more in the control of the voter,” said Elias, in comparing this outcome to other court-ordered election changes. “It wasn’t clear that the voters were victimized by the system. It was just that they were not adjusting their behavior to the system. I don’t agree with that.”
There were a few wins though. In Nevada, lawmakers proactively enacted a law in August 2020 that revised the state’s strict ballot collection rules for the 2020 elections. In 2021, Nevada permanently codified those changes, allowing any person authorized by the voter to return that voter’s ballot, as long as the ballot is returned within three days.
Red states have taken the opposite route: Iowa, Kentucky and Montana are among the states that enacted more restrictions on ballot collection in 2021 and increased the penalties for violators. This year, new bills have been introduced in Idaho and Utah and a ballot initiative is circulating in Nevada, seeking to undermine the expansions there.
The GOP conflates illegal tampering with legitimate assistance, hurting the communities that rely on ballot collection.
Ballot collection critics routinely turn to the same example to prove their exaggerated claims of voter fraud — a high-profile case out of a 2018 congressional race in North Carolina. Here, a Republican campaign operative created a scheme to collect mail-in ballots from voters and tamper with them. In this case, the operative didn’t exploit a pre-existing law since collecting a ballot on behalf of anyone who’s not a close relative is not permitted in the state. Instead, he committed a crime; ballot tampering is illegal in North Carolina, as it is everywhere.
There is a clear distinction between this bizarre case (which resulted in a new election and felony charges) and legal voter assistance. Yet, even the mainstream media has embraced framing ballot collection within the possibilities for fraud, no matter how unlikely.
“I think Republicans have done a pretty good job branding ballot collection in a pejorative way. And that is probably dissuading some Democrats from embracing it in their states,” Elias added, describing how the GOP is winning the war of words. “We can’t let Republicans vilify voters the way they have.”
The outsized focus on fraud has harmful impacts on the communities that rely on ballot collection the most. “While the majority of Montanans can easily access the vote by mail process by either mailing in their ballots or dropping their ballots off at election offices, Native Americans living on reservations rely heavily on ballot collection efforts in order to vote in elections,” wrote a state judge in striking down the Montana Ballot Interference Prevention Act (BIPA) in 2020. “They rely on these efforts because of difficulty sending and receiving traditional mail due to lack of traditional mailing addresses, irregular mail services, and the geographic isolation and poverty that makes travel difficult.”
Keaton Sunchild, the political director of Western Native Voice, a nonprofit organization aimed at increasing Native American voter participation, further explained to Democracy Docket: “There’s lots of different reasons that are unique to reservation culture and community, but a lot of it comes back to the economics that are just the harsh reality of living on a reservation.”
“Not everybody can afford to drop off their ballot,” Sunchild concluded.
Passed in 2018 and enacted the following year, BIPA, among other restrictions, limited the number of ballots one person could return to six, punishable by a fine of $500 for each ballot unlawfully collected. In 2018, the nonprofit organizations Western Native Voice and Montana Native Vote had hired local organizers who collected at least 853 ballots for Native voters.
While this practice remains a lifeline for certain communities, its future remains uncertain. After BIPA was struck down in 2020, new laws have been promulgated in Montana. “We thought we had put it to rest,” said Sunchild, describing the feeling after the 2020 lawsuit. “The mail-in [voting] in 2020 brought it back up, and I think it gave opponents of ballot collection a breath of life to revive the argument that ballot collection isn’t secure, even though there’s no evidence of that.”
In the meantime, Western Native Voice is preparing its get-out-the-vote plan for the 2022 elections. But, until ongoing lawsuits are resolved, the organization is developing several different strategies hingeing on the outcome of the litigation — a plan that includes ballot collection and one that doesn’t.