13 States Have No Laws Addressing Who Can Deliver Absentee Ballots
The November election is less than 100 days away. In most states, voters will soon be able to cast their ballots due to new rules allowing no-excuse absentee balloting.
In a recent Lincoln Network working paper, Sean Roberts and Alexiaa Jordan discuss the tradeoffs of widespread absentee voting. The biggest risk they identified is the potential for ballot harvesting.
The House Committee on Administration, which oversees federal election laws and policies, describes ballot harvesting as:
“....the practice in which political operatives collect absentee ballots from voters’ homes and drop them off at a polling place or election office. It may sound pretty innocuous, but this practice can and has been abused across the country. We saw this play out in the 2018 midterm elections in North Carolina's 9th Congressional District when a political operative abused the process of harvesting ballots, which resulted in the North Carolina State Board of Elections to call for reelection.”
This week, a New Jersey Judge ordered that a new election be helding in a Patterson City Council race. According to a New York Times report, in May, “postal workers became suspicious when they found hundreds of ballots bundled together,” which “triggered an investigation that led to charges of voter fraud against two local elected leaders and resulted in nearly 20 percent of the ballots being rejected.”
With the growing use of voting-by-mail in 2020, we could see similar problems around the country. In a recent Lincoln Network webinar, Congressman Rodney Davis (R-IL), the ranking member of the House Committee on Administration, warned that ballot harvesting could be a widespread problem in 2020 and encouraged greater oversight.
Rep. Davis led House Republicans in offering legislation, the Honest Elections Act, which would incentivize states to prohibit ballot harvesting. But in our discussion, Rep. Davis acknowledged that the bill had no chance of passing in the Democrat-controlled House of Representatives in 2020.
Longstanding Bipartisan Concerns About Voting-by-Mail and Ballot Harvesting
But Democrats and Republicans have historically shared concerns about how absentee balloting collection rules can encourage ballot harvesting, voter intimidation, and disenfranchisement.
The Commission on Federal Election Reform (chaired by former President Jimmy Carter and former Secretary of State James Baker) discussed these risks in its 2005 report:
“Absentee balloting is vulnerable to abuse in several ways: Blank ballots mailed to the wrong address or to large residential buildings might get intercepted. Citizens who vote at home, at nursing homes, at the workplace, or in church are more susceptible to pressure, overt and subtle, or to intimidation. Vote buying schemes are far more difficult to detect when citizens vote by mail.”
In 2006, the U.S. Election Assistance Commission issued a report in 2006 on election crimes and identified similar risks. The Commission found:
“One point of agreement is that absentee voting and voter registration by nongovernmental groups create opportunities for fraud. For example, a number of studies cited circumstances in which voter registration drives have falsified voter registration applications or have destroyed voter registration applications of persons affiliated with a certain political party. Others conclude that paying persons per voter registration application creates the opportunity and perhaps the incentive for fraud.”
The Carter-Baker Commission recommended laws to address the risks of ballot harvesting:
“State and local jurisdictions should prohibit a person from handling absentee ballots other than the voter, an acknowledged family member, the U.S. Postal Service or other legitimate shipper, or election officials. The practice in some states of allowing candidates or party workers to pick up and deliver absentee ballots should be eliminated.”
Ballot Harvesting Remains Legal in Many States
Despite these longstanding, bipartisan concerns, many states still allow unrelated or undesignated third-parties to collect ballots and do not have laws on the books to prohibit ballot harvesting. (To be clear, it is important to recognize that many voters, including the elderly and persons with disabilities, rely on trusted third parties or the Postal Service to deliver their ballots.)
The nonpartisan National Conference of States Legislatures (NCSL) recently updated its database of state-by-state laws, “Who Can Collect and Return an Absentee Ballot Other Than the Voter.” NCSL summarized its findings:
“Some states, such as Alabama, say the voter must return the ballot. Ten states allow a family member to return a ballot for a voter, and 26 states allow the voter to designate someone to return their ballot for them. Thirteen states are silent on the issue. Among the 26 states where a voter can designate someone to return their ballot, 12 have placed limits on the number of ballots any one agent can collect and return. Returning ballots for others is known as ballot collection or, pejoratively, “ballot harvesting.” The limits are based on the concern that saving people the task of returning their ballot can bleed into encouraging them to vote a certain way.”
According to NCSL’s review, the following 11 states have no laws on the books regarding “who can return an absentee or mail ballot on behalf of a voter” or “other restrictions on collecting absentee or mail ballots”: Hawaii, Idaho, Mississippi, New York, Rhode Island, Tennessee, Utah, Vermont, Washington, Wisconsin, and Wyoming. Many of the 26 states that allow third-parties to collect and deliver absentee ballots appear to have limited oversight or laws to prevent ballot harvesting.
Recommendations
With early and absentee voting set to begin in the coming weeks, state lawmakers have limited time to prevent ballot harvesting during the upcoming election when widespread voting-by-mail is expected. At least a dozen states are currently still holding legislative sessions as of late August. These states should quickly update their election laws to prohibit ballot harvesting, consistent with the Carter-Baker commission’s recommendations.
In addition, state election officials and the nonpartisan election administration community should provide leadership in informing voters about the risks of ballot harvesting and encourage absentee voters to cast their ballots through the Postal Service. Election officials should educate voters on the rules in their jurisdiction to recognize if they are potentially at risk of becoming a victim of ballot harvesting and to ensure their votes are cast properly. The Election Assistance Commission could share best practices among the election administration community to help state and local election officials prevent the negative consequences of ballot harvesting.
In all likelihood, Americans should anticipate ongoing concerns about fraud after November’s election, regardless of the winners of national and state elections. Congressional Committees have an opportunity to commit now to conducting bipartisan oversight following the election to examine the extent that fraud occurs. Doing so could strengthen voter confidence in future elections and encourage states to update their laws to prevent ballot harvesting.
Public watchdogs and all concerned citizens also have an important role to play. They should add ballot harvesting to their list of voter fraud tactics that they work to spot and prevent. As the November election approaches, Lincoln Network will be monitoring the risk of ballot harvesting and identifying ways that the public can play a constructive role in preventing fraud and ensuring the integrity of the democratic process.