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The Canvass | April 2019

April 1, 2019

Lead Article: Trends in Ballot Collecting

According to the U.S. Election Assistance Commission’s Early, Absentee and Mail Voting Deep Dive, the percentage of voters voting by absentee and by mail has risen from 8.4 percent in 2004 to 23.1 percent in 2016. Research conducted after the 2018 general election claims it went even higher, to 27 percent, according to The Pew Research Center.

Chart showing increase in all three methods of pre-Election Day voting

Although the chart above (Credit: U.S. Election Assistance Commission, EAVS Deep Dive, Early, Absentee and Mail Voting) shows an increase in all three methods of pre-Election Day voting, there seems to be a particular interest, amongst the public and policymakers, in absentee and mail voting.

Twenty-eight states plus the District of Columbia already have no-excuse absentee voting and three more are all-mail voting states. While some states may be debating whether to expand their absentee policy, others are thinking of going to all mail. 11 states have bills discussing no-excuse absentee, while 20 states have legislation looking to address all-mail voting. Regardless of their current policies, all states are thinking about who can collect and return a voted absentee ballot (or mail ballot), aka ballot collecting.

In other words, states are addressing a question raised in part by the North Carolina 9th Congressional district race, where a new election has been called for based on the handling of absentee ballots by people other than the voter. Some call this “ballot harvesting.” NCSL calls it ballot collection, or the return of voted absentee ballots.

From a voter’s point of view, if they’ve completed their absentee ballot, sealed the return envelope and signed the outside, they may take it as a kindness if someone offers to put the envelope in the mail for them or drop it off at an official ballot drop-off site.

From an election integrity point of view, are unvoted ballots being collected from strangers as well as voted ballots, leaving room for out-and-out election fraud? Or is it possible that voted ballots might be collected but not be delivered, if the voter is of a different party than the collector—also fraud?

Ballot Collecting

Sometimes the voter may be unable to return a ballot in person or get it to a mailbox or post office in time for it to be counted. This could be because the voter has been confined to the hospital unexpectedly, has mobility issues or will be out of state at the time the ballot needs to be returned. In these cases, the voter may entrust the voted ballot to someone else to return the ballot.

State laws on who can or cannot return a voted ballot on behalf of a voter fall into four categories:

  • Not Specified in Statute
  • Voter Only or Via Mail
  • Family/Household Members
  • Authorized Agent or Designee

Some states go beyond who can or cannot return a voted ballot and specify the number of ballots an individual can return on behalf of others throughout an election or at one given time. For example, in Colorado, no individual, other than an authorized agent or election official, can receive more than 10 mail ballots in any election for mailing or delivery. In West Virginia, statute stipulates that no person may deliver more than two absentee ballots in any election. And in Oregon, if a person wishes to collect voted ballots to return, they must display a sign, in capital letters in bold, 50-point font, that reads “NOT AN OFFICIAL DROP SITE.”

“Essentially, legislators should ask themselves: if I am a voter who receives a ballot by mail in my state, are the instructions clear on how and when to return it? ” says Tammy Patrick of the Democracy Fund. "There are policies and practices states can adopt or consider to ensure a more secure election like utilizing ballot tracking through USPS, prepaying the postage on return ballots, allowing for options in dropping off ballots at secure locations like the polls, and allowing ballots to come in after the close of the polls if they contain official USPS information - demonstrating they were mailed on time - which all negate the need for a voter to hand over their ballot to a stranger to turn it in for them."

Current Legislation

The 2019 legislative session is in full swing and the topic of ballot collecting is being looked at in numerous states and by both sides of the aisle. Four relevant bills include:

  • Arizona SB 1046: Would permit only the voter to return an absentee ballot (known as an “early ballot” in Arizona)by mail. In 2016, Arizona enacted HB 2023, which specified that no one other than a family member, household member or caregiver can return a voter’s ballot, and made it a felony for others to do so.
  • Illinois SB 57: Would require any individual, campaign, party or organization who sends an absentee application to voters to also provide each voter with a return envelope addressed only to their appropriate local election official.
  • New York SB 145: Would first expand who can vote absentee in the state, and then would restrict any “agent” from collecting more than 15 absentee ballots, unless given approval from two inspectors from two different political parties.
  • Rhode Island AB 486: Would permit only a spouse, court-appointed guardian, cohabitant, or any adult related by blood or marriage to offer to return or return an individual’s mail ballot.

The discussion and debate on ballot collecting aren’t limited to the states. At the federal level, HR 1, a group of sweeping election law changes, recently passed the chamber 234-193. However, prior to the vote, there were concerns by some lawmakers that the bill did not address ballot collecting.

If the upward trend of voting by absentee or mail continues, questions surrounding ballot collecting (and other procedures relating to handling ballots such as verification of the voter’s identity), will become the norm.

Legislative Update

From the Chair

Senator Elaine Bowers (R) represents the 36th Senate District in Kansas and chairs the Senate Ethics, Elections and Local Government Committee. District 36 is the second largest Senate district in Kansas and is composed of 11 whole counties (Cloud, Jewell, Lincoln, Mitchell, Osbourne, Ottawa, Republic, Rooks, Russell, Smith and Washington) and parts of two more counties (Marshall and Phillips). Bowers is also the president of NCSL’s Women’s Legislative Network.

Q: How do you approach your position as chair of the committee? What values do you hold regarding elections?

As the chair, I try to be fair to all members of the committee, no matter which party they belong to and allow the topic to have a thorough discussion. I’ve always thought a bill is simply someone’s idea. And their idea may not work for everyone at first, but by listening and discussing the issue, we may be able to improve upon it. I believe there is often an answer for everyone somewhere near the middle.

Q: What are you proud of for your state?

Kansans are pretty independent people, however, we still work together to try to find common solutions. When I look at election legislation, it’s not just about me or Topeka—it’s about my constituents or my local officials, and the state as a whole.

Q: What does the future of elections policy look like in Kansas? What issues are you considering?

After eight years, we have a new secretary of state, Scott Schwab. We (legislators) plan on meeting with him soon to see what his ideas and plans may be for the office and elections in Kansas this year and moving forward. We’re looking forward to hearing from him. I also ask our local officials to present a review of the year and bring us ideas for legislation they would like to see acted upon.

Q: What is your relationship with local election officials? How important is that relationship?

I so respect our local election officials and I highly value their thoughts, opinions and ideas. They are the “boots on the ground” and if we get something wrong here in Topeka, it can make their lives more difficult. So, it matters to me greatly what my county clerks think when we change something because it directly impacts them and our voters at home.

In fact, the county clerk’s association will be coming before the committee soon to speak with us. I want to make sure I am conscious of their concerns, what they’d like to see us do as a committee and how we can work with them. What we are doing here in Topeka affects people back home, not just the clerks, but everyone. This last part is very important to me.

Q: Anything else you think your peers in other states might find interesting? What is your advice to other legislators?

In the 2018 Republican primary, we had several gubernatorial candidates who were high school students. Last year, I learned, to my surprise, that Kansas did not have an age requirement for running for governor. Kansas also did not require a candidate for governor to be a resident either. The Legislature passed a bill with both an age requirement set at 25 (non-retroactive so not to interfere with the teenage candidates who had already filed) and a residency requirement. It was a fascinating process to work with the House members and conferees to pass a bill which solved problems that were unforeseen in the past and avoid possible difficulties in the future.

My best advice as a chair is to be fair and allow the conferees to have equal time to discuss the topic and find a way to compromise with all of the facts before the committee.

From the Election Administrator’s Perspective

ohn Odum is the city clerk for Montpelier, Vt. With roughly 7,500 inhabitants, Montpelier is the smallest capital city in the country (nearly half the size of runner-up Pierre, S.D.). Odum notes that “cities” in Vermont are on a whole different scale than in other states. Not only is Montpelier a “Vermont city," it is also the capital and must provide the needs and functionality that any state capital must offer.

Q: How did you get into the business of elections?

Before I became the city clerk, I had done work in the political realm, working for political candidates and being a field director/organizer. Eventually, I was approached and recruited to run of the office and here I am today, seven years later. I had thought this was to be my retirement from “politics,” but that may have been optimistic. I will mention that I was also an IT guy and I think it is those skills that have been the most compatible to this the position of city clerk.

Q: What are you most proud of when it comes to running good elections?

I am proud to work with a staff that runs a tight ship. We have improved the ways (speed, efficiency, etc.) that we deliver election services to the people and we have done this while reducing our budgetary needs. I also feel that my position has allowed me to play more of an ombudsman role. As an elected official, I have more freedom with how I can interact with the public and it is easier for me to address citizen concerns and if required, be people’s voice.

Q: What are some of the election issues that you see right now? How are you tackling these challenges?

The biggest issue is security, particularly cybersecurity. I’m a certified ethical hacker and network defense architect. I don’t get to use those skills a lot, but it is a passion of mine. We are fortunate that the Vermont secretary of state has made cybersecurity a priority. We are working closely with the secretary to constantly improve the way we do things, at both the state and local levels. But, cybersecurity is a constantly moving target.

One area of threat that we are looking to minimize is the exchange of information that flows between the state and our jurisdiction. We are piloting a data-in-transit program that will use a blockchain technology to help secure the transfer of information between us and the state and vice versa. I think my background also helps me speak with the public to inform them of what to expect in the “hackable world” we live in.

Q: Do you regularly work with state legislators?

I work with legislators on occasion. Montpelier recently passed a city charter change to allow non-citizens to vote in municipal elections. I started the conversation in the city and now consider myself an advocate when speaking to legislators. I look to answer their questions and discuss how the process will work, because it is what the people voted for. (Vermont city charters are enshrined in state statute.)

I, meaning the office, also took an active role in pushing for Election Day registration several years ago and automatic registration, which passed last year. This did put me at odds with many other local election officials.

Q: What would you like state legislators to know about elections?

First,I would like them to know that, in my view, elections are much more of a local issue than a state-level issue. It’s easy to focus on the secretaries of state and statewide security, access and functionality. But this can also cause some to overlook how much of the work comes to the local level. So, I would encourage legislators to look inward, towards their constituencies and communities, more than to the state level.

Second, election systems have been designated critical infrastructure by the federal government and for good reason. The way I see it, the infrastructure of elections is the infrastructure of democracy. And at the end of the day, elections, and therefore democracy, are not something you want to do on the cheap—it will take money.

Federal Election Action

HR 1: For the People Act of 2019

The U.S. House of Representatives passed HR 1, the “For the People Act” on March 8, 2019. This 571-page bill is a comprehensive look at election access, integrity and security, as well as campaign finance, redistricting and ethics issues. NCSL has examined the portions of the bill that discuss election administration.

HR 1 contains several provisions that NCSL views as pre-emptions of state authority, namely mandatory online voter registration, mandatory automatic/automated voter registration, mandatory same day or Election Day registration, uniform requirements for early voting and mandatory pre-registration of teens. The bill also contains provisions relating to election security, including authorization for grants for election security, poll-worker training and financial support for elections infrastructure. There is no actual appropriation in the bill to guarantee these funds because authorized funding does not equal appropriated funding.

HR 1 also seeks to undo the U.S. Supreme Court’s ruling in Shelby County v. Holder and restore Section 4 of the Voting Rights Act. It further grants voting rights to residents of the District of Columbia and the U.S. territories. The legislation also addresses redistricting by requiring that it be conducted by an independent state redistricting commission comprised of 15 members. States would also have to establish a nonpartisan agency in the legislative branch of the state that will appoint the 15 members of the independent redistricting commission for the state. HR 1 also contains extensive campaign finance reform disclosure and reporting provisions.

The Senate has no plans to take up this bill.

—By Susan Parnas Frederick, NCSL’s senior federal affairs counsel on elections

Worth Noting

  • Congressional Research Service: The Congressional Research Services recently released an updated two-page paper on the designation of election systems as critical infrastructure. It covers what the designation means, who has a role in federal elections and why the initial designation was controversial.
  • Mid-Term Election Report: The Organization for Security and Co-operation in Europe (OSCE) released its final report on the limited Nov. 6, 2018, mid-term election observation mission. Although the report contains many recommendations, areas specific to election administration include voting technology, cybersecurity, voter registration and early voting, to name a few.
  • Integrating GIS in Elections: The National State Geographic Information Council released its first case study from Utah. Noting deficiencies in its old system and a desire to improve, Utah began the process of integrating GIS in elections in 2010. Although the state did face some challenges, the case-study does include some advice, success and benefits. You can read the full report here.
  • Securing Your Warehouse: Recently, Hart InterCivic, an elections vendor, released a whitepaper focusing on the physical security risks of storing and securing equipment. It focuses on four areas of risk that election officials should consider: monitoring events and patterns, controlling access, managing inventory and assets, and planning for continuity of operations.
  • Vote at Home Reference Library: Vote at Home, an advocacy group, recently published its reference library. The library contains a list of resources and research for those interested in learning more about “vote at home” policies.
  • 2018 Midterm Turnout Report: “America Goes to the Polls” is a collaborative report between Nonprofit VOTE and the U.S. Elections Project. The report takes a look at the national turnout, turnout differences between states, and the potential impact policies had on voter turnout.
  • Hot Off the Presses: In March, the American Law Institute published "Principles of the Law, Election Administration: Non-Precinct Voting and Resolution of Ballot-Counting Disputes." As the name implies, the project focuses on ballot counting and is meant to be usable by a wide audience.

From the NCSL Elections Team

With this edition of The Canvass, NCSL is beginning the migration to a new format. Comments on functionality are welcome! We recognize that reading a newsletter is just one way of getting information—and not an efficient way to get what you need when you need it. In fact, the core of our mission is to provide customized research for legislators and legislative staff, and in so doing we’ve built up a substantial online data collection, with even more data kept on our internal drives. If there’s something you need, just ask us by email. We are happy to share with everyone.

Thanks for reading.
Dylan Lynch and Wendy Underhill

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