Absentee Ballots

The Perils of Voting by Mail

by

by Steven F. Huefner

Anecdotal evidence of fraudulent absentee ballot harvesting in North Carolina in last month’s midterm election already demonstrates the need for greater vigilance in how states conduct voting by mail, whether or not North Carolina ultimately must rerun the election for its 9th Congressional District.

Bladen County, North Carolina, provides the latest object lesson for anyone genuinely interested in improving American elections. Each day this past week brought a new revelation about apparent absentee ballot fraud there, fraud that appears increasingly likely to lead North Carolina authorities (or the U.S. House of Representatives) to call for a new election for the state’s 9th Congressional District. But whether or not that entire congressional race must be rerun, the story that has emerged from Bladen County already makes clear the need for all states to be vigilant in how they manage their absentee voting processes.

At issue in North Carolina is the reliability of vote totals showing the leading candidate ahead by just over 900 votes, in light of questions about whether those vote totals accurately reflect the votes of over 14,000 voters in the 9th Congressional District who requested absentee ballots, including more than 3,000 such voters whose absentee ballots were not returned. North Carolina officials justifiably have refused to certify the results of this race pending an investigation into a panoply of allegations about these absentee ballots, many concerning the activities of the Red Dome Group (a political consulting firm working for the leading candidate) and one of Red Dome’s operatives, L. McCrae Dowless Jr.

For multiple reasons, absentee voting outside the watchful eyes of election officials, often called voting by mail (in contrast to early voting that occurs in-person at a voting center), has long been the weak link in the reliability of our elections. Central to the North Carolina investigation now underway is the practice of “ballot harvesting,” in which a candidate’s or a party’s supporters round up as many voted absentee ballots as they can for hand delivery. Arguably, an innocent version of this practice exists, a practice not much different from traditional Election Day get-out-the-vote drives, in which the harvested ballots are all cast legitimately by eligible voters and returned to election officials for counting. But unfortunately, absentee ballot harvesting all too often devolves into electoral fraud, as every indication now suggests has occurred in Bladen County and perhaps elsewhere in the 9th Congressional District.

At least three distinct kinds of fraud can occur when political operatives “assist” in returning absentee ballots. First, those collecting the ballots can intentionally discard (or conveniently lose or misplace) any ballots they suspect or know (perhaps even by opening the ballot envelopes) have been cast in favor of the “wrong” candidate(s). Second, those collecting the ballots can open the ballot envelopes and change or alter whatever votes the voter originally recorded. Third, those collecting the ballots can collect unvoted ballots (or partially voted ballots) and complete the ballots themselves.

Although this third type of fraud may sometimes depend on the complicity (or negligence) of an absentee voter in possession of an incomplete absentee ballot, the first two types of ballot harvesting fraud can occur without any wrongdoing on the part of the absentee voter, other than being duped into turning the ballot over to a ballot harvester. Moreover, even the third type of fraud sometimes can occur without the complicity of an eligible voter, if the perpetrator is able to request absentee ballots on behalf of eligible voters without those voters’ knowledge and then control the locations to which the ballots are delivered.

Yet a fourth type of problem can arise if the person collecting the ballots improperly influences the voters’ choices in marking the ballots. Although improper influence in the marking or casting of an absentee ballot can occur not only with harvested ballots but also with any other absentee ballot cast outside the presence of election officials, including undue influence exerted by family members within the same household, the practice of ballot harvesting exposes whole groups of absentee voters to greater risks of such influence. Some may be reluctant to call this conduct “fraud,” but it too is an unlawful distortion of a fair voting process.

While it is still early to be sure of the extent or impact of the misconduct in last month’s North Carolina election, preliminary investigation suggests that perhaps all four of the above-described types of misconduct may have occurred in the 9th Congressional District. The leading candidate’s most recent campaign finance disclosure report (filed after the election) revealed that the candidate owes the Red Dome Group some $34,000 for the “door to door” activities of “early voting poll workers” – in other words, for ballot harvesting. Meanwhile, an increasing number of stories specifically about the activities of Mr. Dowless suggest that the actual harvesting activities in which he engaged were not of the pure get-out-the vote kind, but instead ran the gamut of the kinds of vote harvesting fraud described above.

This year’s ballot harvesting fraud in North Carolina is hardly the first time such problems have occurred. On the contrary, comparable absentee balloting abuses have been all too frequent, if not as high-profile. For instance, absentee ballot fraud resulted in a state court throwing out the results of a Miami mayoral contest in 1997, and an ostensibly above-board absentee ballot harvesting effort proved the undoing of the Detroit City Clerk in 2005.

Because of the various risks of absentee ballot harvesting, many states, including North Carolina, laudably have laws that prohibit or regulate the practice. In North Carolina, a statute already on the books provides that only a voter or a voter’s family member (or the U.S. Postal Service) may legally return a voted absentee ballot. Yet from the reports this week, apparently many North Carolina absentee voters are unaware of this anti-harvesting provision, while at least some North Carolina county election offices accept hand-delivered absentee ballots without regard to whether they have been returned in compliance with the anti-harvesting measure.

Other observers of elections also have recognized the problems of ballot harvesting. Earlier this year, a federal district court in Arizona upheld over a Democratic Party challenge a state statute adopted in 2016 to prohibit the practice. Meanwhile, the American Law Institute, in its just published volume Principles of the Law: Election Administration [for which I served as the Associate Reporter], has articulated the principle that anyone returning absentee ballots on behalf of another person must not be allowed to return more than two ballots per day. However, other states, as well as various advocacy groups, continue to defend or promote absentee ballot harvesting as a way to offer additional voting convenience and (arguably) to increase turnout.

But the North Carolina story makes clear that it behooves states to do more to promote the security of absentee voting by mail. For starters, reform advocates must recognize that the convenience of absentee voting comes with a cost. By contrast, in-person voting, whether on Election Day or beforehand, has none of the risks that the unfolding scandal in North Carolina has exposed. (Additionally, though unconnected to the problems of ballot harvesting, in-person voting also has much lower rates of lost votes or invalid ballots than does mail-in voting.)

Meanwhile, efforts to impose strict voter identification requirements ostensibly to secure voting against the hypothetical and seldom realized possibilities of in-person “voter fraud” do nothing to reduce the very real – and frequently realized – risks of absentee voting fraud, and if anything serve to misdirect attention away from where it is needed. Instead, measures necessary to promote the integrity of absentee voting include, among others, prohibitions on ballot harvesting, enforcement of these prohibitions through monitoring of the ballot return process, public education about the proper way to return a voted absentee ballot, and absentee ballot tracking tools for voters.

Indeed, absent public awareness of the hazards of ballot harvesting, the first form of ballot harvesting fraud – when operatives collect a batch of absentee ballots only to discard them – can be especially difficult to detect and prevent. So it also behooves each voter both to know that delivering a voted ballot to any intermediary is fraught with risk (and may be illegal, depending on the state), as well as to take advantage of whatever mechanisms election officials make available to track the status of an absentee ballot to make sure that the voter’s voted ballot has reached the election officials. But after witnessing what has happened this past election in Bladen County, no state should hesitate to make absentee ballot harvesting illegal, and to take steps to increase awareness and enforcement of this prohibition.

The Perils of Allowing Absentee Ballot Harvesting

by

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.

The Sixth Circuit’s Distinction between Absentee and Provisional Ballots: Why?

by

This comment originally appeared as a guest post at Rick Hasen’s Election Law Blog.

One thing I don’t understand about the majority opinion in yesterday’s NEOCH decision is the distinction that the majority draws between absentee and provisional ballots for the purpose of applying Anderson-Burdick balancing to the invalidation of ballots for a voter’s clerical error in writing the voter’s birthdate or address on the envelope in which the ballot (absentee or provisional) is submitted.

The majority finds an Equal Protection violation under Anderson-Burdick for the invalidation of ABSENTEE ballots for this type of clerical error, but rejects the equivalent Equal Protection claim with respect to the invalidation of PROVISIONAL ballots for the identical type of clerical error.  This disparate disenfranchisement of comparably situated voters (by the Sixth Circuit majority) itself invites Equal Protection inquiry under a Bush v. Gore type of analysis.

What does the Sixth Circuit majority say to justify this distinction?  Not much; it doesn’t really address the comparison of absentee and provisional ballots directly, but rather just analyzes each separately in turn under its application of the Anderson-Burdick balancing test.

The majority seems to think that process of verifying provisional ballots, to make sure that the provisional voter is registered and authentic (ID matches, so that the person casting the ballot is really the person entitled to cast it) justifies disqualifying a provisional ballot if the voter accidently writes the wrong information for the voter’s birthdate or address—for example, accidently writing the current date rather than one’s birthdate.  The relevant sentence of the majority’s opinion, on page 22, is this:  “Ohio’s important interests in provisional-voter registration and identification eclipse the small burden of accurately completing the two fields—a burden that actually impacts just a few hundred voters each election, an impact wholly in their own control.”

But then the very next sentence is: “However, we agree with the district court that Ohio has made no such justification for mandating technical precision in the address and birthdate fields of the absentee-ballot identification envelope.”  Ohio’s defense was the same in both contexts: the need to make sure that the person submitting the absentee ballot was in fact registered and authentically the person in whose name the ballot is being cast.  But here the majority rejects the defense as theoretical and speculative, not grounded in actual evidence of a problem.  As the majority puts it, “some level of specificity is necessary to convert that abstraction into a definite interest for a court to weigh.”  (Id.)  But why wasn’t that point equally applicable to the same defense regarding provisional ballots?

It is as if the majority opinion believes that provisional ballots are inherently more suspicious than absentee ballots, enough so that an innocent clerical mistake is enough grounds to toss the ballot out, thereby disenfranchising the voter.  But this position makes no sense to me.  The constitutional claim in the case, as the Sixth Circuit majority itself defines it, concerns the invalidation of the ballot solely because of the clerical error regarding the birthdate—the mistaken writing of the current date, for example (as I discussed in a previous post on this case before it reached the Sixth Circuit).  But if this is the sole reason for rejecting the provisional ballot, then the election officials already know that the provisional voter’s registration status has been confirmed, and that the provisional voter’s required ID number (driver’s license or last 4 digits of SSN) has dispelled doubt about the voter’s authenticity.  In this situation, there is no need to disqualify the ballot just because of the inconsequential clerical error regarding the birthdate.  As the majority acknowledges elsewhere regarding ABSENTEE ballots, the state’s justification for “requiring mail-in voters to complete the address and birthdate fields” as information that potentially aids election officials in the verification process is not an adequate justification “to reject ballots containing technical errors” when those errors do not defeat the ability of officials to verify the ballot in question (slip op. at 24; emphasis in original).  The very same point applies equally to provisional ballots, but the Sixth Circuit majority just seemed to miss it in that context.

There is some language in the Sixth Circuit’s majority opinion that suggests that it might make a difference to the Anderson-Burdick balancing that numerically fewer provisional ballots are rejected each election because of these clerical errors than absentee ballots 620 provisional ballots, compared to 1712 absentee ballots, in 2014 & 2015 (slip op. at 21).  But that numerical difference would seem irrelevant under the way that the Crawford “plurality” — the Justice Stevens opinion — understood Anderson-Burdick balancing (in contrast to Justice Scalia’s alternative approach in his Crawford concurrence), and the Sixth Circuit majority acknowledges the Stevens opinion in Crawford to be “controlling”.  In this regard, the Sixth Circuit majority refers to the Anderson-Burdick claims before it as “facial challenge[s]” (slip op. at  21), but I had understood the Anderson-Burdick claims in this case – in contrast to Crawford itself – to be as-applied challenges on behalf of the subset of voters represented by the plaintiffs (the homeless and other specifically disadvantaged groups).

This leads me to wonder whether, even after yesterday’s decision, there is still the possibility of a valid AS-APPLIED challenge on behalf of any provisional voter whose ballot is rejected solely because of a clerical error regarding a birthdate or address—and that the upshot of the decision is that the equivalent rule regarding absentee ballots is facially invalid, and thus absentee voters do not need to seek an as-applied remedy for this kind of disenfranchisement, whereas provisional voters still do.  Even so, I still don’t understand the basis for the Sixth Circuit majority’s distinguishing between absentee and provisional voters, even for purposes of the kind of claims that the majority characterized as equivalent “facial challenge[s].”  But at least that would not rule out the possibility of protecting provisional voters from disenfranchisement solely because of a clerical error that the Sixth Circuit majority itself defines as inconsequential to verifying the voter’s eligibility and identity.

I welcome hearing from others about their thoughts on how best to understand the Sixth Circuit’s distinction between provisional and absentee ballots with regard to rejecting them for clerical errors.