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Commentary

The Perils of Voting by Mail

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.

Steven F. Huefner has wide-ranging election law experience and interests, including the specific areas of contested elections, term limits in state legislative elections, military and overseas voting, legislative redistricting, and poll worker responsibility and training. Prior to joining the faculty at Moritz, Professor Huefner spent five years in the U.S. Senate's Office of Legal Counsel, where his responsibilities included advising the U.S. Senate in matters of contested Senate elections, as well as assisting in the 1999 presidential impeachment trial. View Complete Profile

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