by Steven F. Huefner
[With UPDATE after Supreme Court stay.] Today’s Ninth Circuit en banc decision in Feldman v. Arizona Secretary of State’s Office misses the mark.
UPDATE: The post below was written Friday evening, November 4, 2016. This morning, Saturday November 5, 2016, the U.S. Supreme Court, in a brief unsigned order without any noted dissent, stayed the injunction that the Ninth Circuit had issued yesterday. The result is that the Arizona prohibition on absentee ballot harvesting by third-party organizations is back in effect through Election Day.
As the original post below suggested, this is a sound result, given the legitimate reasons for Arizona to have adopted the measure. Of course, today’s Supreme Court ruling may have little to do with the merits of the challenge to the Arizona law, and everything to do with the Purcell principle against last-minute changes to otherwise stable election processes. But regardless of the factors that may have influenced today’s apparently unanimous disposition, what is most gratifying about it is to see the judiciary resolve a question of election administration, fraught as the question may be with potential partisan effects, without the Court itself dividing along ideological lines. This salutary feature adds immeasurably to the stability and strength of democratic processes, in terms of both perception and reality, and therefore deserves as much emulation as possible at all levels of our courts in resolving other election law questions.
ORIGINAL POST: Earlier today, a closely divided en banc panel of the United States Court of Appeals for the Ninth Circuit issued an order enjoining Arizona from enforcing a new law prohibiting the “harvesting” of absentee ballots. The decision was almost immediately appealed to Justice Kennedy (the member of the U.S. Supreme Court designated as the Circuit Justice over the Ninth Circuit), and he has called for a response by 9:00 a.m. tomorrow. At issue are a number of important questions concerning two independent areas of election administration. One set of questions, which this post will not address further, involves the Purcell principle, or the circumstances under which it is appropriate for courts to intervene in established election procedures when the election is imminent.
The other set of questions involves the substance of the Arizona law itself, and what procedures and limits are appropriate for securing a state’s absentee voting regime. Until this election, Arizona law had allowed third-party groups to collect voted absentee ballots from absentee voters, and to return these voted ballots by hand in bundles and boxes to the appropriate election officials for processing and counting. These third-party groups engaged in this absentee ballot “harvesting,” at least in part, in order to assist voters for whom returning their voted ballots would otherwise involve some genuine burden. For instance, as the complaint alleged in the case before the Ninth Circuit today, some Arizona absentee voters who live on one of several American Indian Reservations in the state not only are a substantial distance from the local election office, making it difficult for them to drop off their ballots in person, but also do not have reliable home mail delivery or easy access to the U.S. Postal Service. Private ballot harvesters provide a service for these voters.
But there is a potential nefarious side to absentee ballot harvesting, to which the Ninth Circuit decision gives short shrift. To the extent that modern election systems are vulnerable to electoral fraud, it is the absentee voting process that by far is most at risk. Individuals or groups who seek to meddle in the outcome of an election through the modern equivalent of ballot box stuffing may seek to gain access not just to one but to scores or hundreds of absentee ballots, whether through (1) fraudulent absentee ballot requests, (2) interception of validly transmitted ballots that are on their way out (unvoted) to legitimate voters, or (3) interception of validly voted ballots on their way back to election officials. (The creation of “counterfeit” absentee ballots is not a realistic option, because they would not be counted unless they could be matched with a request for an absentee ballot on file with election officials.)
As an additional concern, the process of harvesting absentee ballots can sometimes itself give rise to (4) improper influence. The Detroit City Clerk was kicked out of office a decade or so ago after it became known that a number of official election “ambassadors” whom the Clerk had dispatched to care centers to assist voters to mark their absentee ballots had provided a little too much assistance. At its extreme, this influence might extend as far as providing a voter with some form of benefit or compensation for a particular vote.
Some might view the return of a group of ballots in a single batch as a potential indicator that one or both of the first two types of absentee ballot fraud described above have occurred. Indeed, in prior elections, video of volunteers delivering batches of voted absentee ballots en masse to election offices was often trumpeted – falsely – as evidence of the perpetration of election fraud, as if election officials were receiving and processing numerous fake ballots. But the larger problem with absentee ballot harvesting is that it provides an opportunity to engage in the third type of absentee ballot fraud, or to exert improper influence or even buy votes.
As for fraud, those who collect ballots for batch submission are then in a position to tamper with what they deliver, either by making their own predictive judgments about the likely votes contained on the ballots inside the sealed envelopes, in order to decide which ballots to return and which to destroy, or by finding an undetected way to open the sealed envelopes before returning them in order to alter or destroy those ballots found to contain votes for a candidate (or candidates) whom the harvesters oppose. Of course, destroying ballots is not likely to meet with much success in a state, like Arizona, that provides voters a means of tracking the status of their absentee ballot, unless the perpetrators replace the destroyed ballots with counterfeits so that the tracking system records the ballots as having arrived. Nevertheless, both replacing or otherwise tampering with voted absentee ballots remain realistic concerns in an election system that permits third-party vote harvesting.
As for improper influence and vote buying, if the harvesting effort also provides an opportunity for harvesters to exert pressures or enticements, subtle or not, for the voters to mark their ballots for certain candidates, the system is corrupt. Furthermore, whether or not the harvesters are present at the time that the voters mark their ballots, it may require that voters take an additional leap of faith that their privacy will be respected if they plan to turn their marked absentee ballots over to a third party.
So it is understandable that in an era of increasing concern about the potential for manipulation of the electoral system, Arizona decided to prohibit third-party collection groups from returning batches of absentee ballots (while allowing family members and caregivers to deliver them). To be clear, and as the Ninth Circuit noted, Arizona provided no evidence that absentee ballot harvesters had ever delivered even one invalid absentee ballot in Arizona. But the above types of potential misconduct to which absentee ballot harvesting is vulnerable, including not only fraud but also improper influence and vote buying, have been proven to occur in other states in the modern era, even though they may often be hard to detect. It therefore is difficult to say that Arizona did not have a substantial basis for adopting its new anti-harvesting law.
Indeed, earlier this year the American Law Institute approved a set of principles (which can be found here) for conducting early and absentee voting, one of which is akin to Arizona’s anti-harvesting law. (I serve as the Associate Reporter for this ALI project.) That ALI principle essentially provides that absentee voters should only be permitted to return their ballots by mail or by hand, either personally or by an agent or family member who should be allowed to deliver only two ballots at a time. This principle reflects a careful balancing of a number of relevant interests at stake in how elections are conducted, and makes eminent sense for the vast majority of voters who do have reliable access to the U.S. mail, and who also can conveniently drop off their ballots in person. As Judge Bybee’s dissenting opinion in today’s Ninth Circuit decision noted, the 2005 bipartisan Commission on Federal Election Reform also had called for similar limitations on absentee ballot harvesting, which a number of states besides Arizona have long had in place.
The harder question is how to balance the reasonable justifications for these general prohibitions on absentee ballot harvesting against the burden such a prohibition may impose on a small minority of affected voters who are far from the election offices and lack access to reliable mail service, as for instance the voters identified in the complaint in the Arizona case. Yet the Ninth Circuit presumably could have limited its order to that subset of voters, rather than enjoining Arizona’s new law in its entirety. Meanwhile, with respect to all other voters, those groups who wish to harvest their absentee votes could be allowed instead to provide postage, rather than hand delivery, for their ballots.
Instead, today’s Ninth Circuit decision unfortunately has essentially rejected Arizona’s legitimate reasons for the anti-harvesting law as it applies to most of the absentee voters in the state. At the least, the court ought to have explored a narrower injunction.
Disclaimer: The views in this Comment are the author’s alone, and not those of either Election Law @ Moritz or the American Law Institute.