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The COVID-19 pandemic has radically restructured American elections. Over 100 million Americans cast their ballots before Election Day, utilizing expanded early voting or voting by mail. However, this process was not new to many states. Many western states, such as California and Oregon, have voted by mail for decades, with Oregon being the first state to hold an election entirely by mail. In California, each of the state’s 22 million registered voters received a mail-in ballot; state leaders are considering making that decision permanent, giving every voter the opportunity to vote by mail in future elections.
While some voters undoubtedly enjoy the relative ease of voting by mail, there are certain consequences to the process. One such consequence is that outstanding mail ballots leads to slower reporting of election results. Californian voters experienced this delay in 2018 when several competitive congressional races were decided weeks after Election Day, and again in the first half of 2020 when California lagged behind other Super Tuesday states to report the full results of its presidential primary. The rest of the nation experienced these delays on Election Day 2020, leading to President Donald Trump making unsubstantiated claims of fraud—despite voting by mail himself in the primary election.
While there is no evidence that voting by mail causes election fraud, the process of ballot collection has created legal controversy. Ballot collection—otherwise known as ballot harvesting—is a process by which an individual gives their ballor to someone else who in turn delivers the ballot to an election official. The process is allowed in several states, although there is typically a limit on how many ballots one can collect. The process is outright banned in other states, including Texas and Pennsylvania. In 2016, the California State legislature voted to expand ballot collection, giving anyone the ability to collect another person’s ballot instead of just a close relative. Campaigns in California utilized ballot harvesting in the 2018 elections, arguing that it was just another form of getting out the vote while many California Republicans criticized the process.
While there were no instances of fraud in California, a high-profile case in North Carolina involving illegal ballot harvesting and tampering led to multiple indictments and a redo of the election after a political consultant who was contracted by a North Carolinian Republican campaign instructed workers to collect ballots and falsely verify them. This case led to an outpouring of opposition from Republicans, with the President criticizing the practice and the North Carolina state legislature tightening the rules around ballot collection. However, many state officials have stood by the process, arguing that it makes it easier for people to vote during the COVID-19 pandemic.
Despite the criticism of the ballot harvesting process by California Republicans, party officials came under fire in October for attempting to collect ballots from voters in the state. In the month leading up to the election, unauthorized ballot drop boxes appeared in several counties, made to look like official county drop boxes with some even labeled as such. Ballot drop boxes are secure boxes where voters can deposit their mail-in ballots. Per state law, these drop boxes are operated by county election officials. However, these boxes were not placed by the county and instead were placed by the California Republican Party. The ballot boxes appeared at several businesses, churches, and Republican Party offices. California Secretary of State Alex Padilla, the state official in charge of elections, decried these boxes as illegal and dangerous, as the proper officials do not have oversight over them. To create a contactless form of voting, counties throughout the state installed secure drop boxes where voters could deposit their ballots. Instead of going through the postal service, voters could deposit their ballots in these locked boxes to be collected by county officials directly. Ballot drop boxes are usually operated by county governments, giving them control over when the ballots are collected and ensuring security. The Secretary of State’s office sent a cease-and-desist letter to the county branches of the state Republican party, stating that the drop boxes violate state law. The party defended itself, claiming the boxes were merely a form of ballot harvesting, and that they were abiding by California’s ballot collection laws. The law states that any individual may collect a ballot from someone else, and the state does not require witnesses to verify the collection. The law does not say that the ballots cannot be placed in an object before they are collected by an individual.
California Attorney General Xavier Becerra opened an investigation into the ballot boxes, and filed a subpoena asking for information regarding the unofficial ballot boxes. The subpoena focused on some of the ballot boxes being labeled as “official” and “authorized,” and contended that the boxes raise concerns over proper handling of ballots. The party claimed that the labelling was the work of party volunteers they described as “overzealous,” and that the labels were removed. A spokesman for the party further argued that the investigation was politically targeted and involved “thuggish voter intimidation and vote suppression.” The party refused to comply with the Attorney General’s subpoena asking for information, and stated they would not remove the boxes. They argued that as the law does not specify how the ballots should be collected; therefore, they had not violated any laws.
In an attempt to expedite the process, Attorney General Becerra filed a petition to compel the party to hand over the information. However, a state court declined to order the party to comply, with Judge David I. Brown writing that there was “no immediate harm or irreparable injury” in the case. The judge’s ruling essentially shut down a legal fight over the boxes before Election Day, but does not completely clear the party of wrongdoing. The Orange County District Attorney has opened an investigation into the ballot boxes, stating that “anyone who chooses to violate any section of the election code in Orange County and interfere with the sanctity of the election will be prosecuted to the fullest extent of the law.” Furthermore, the state could still pursue further legal action against the party after Election Day, as the case could still be made that the boxes violated state law concerning the operation of drop boxes. If the Attorney General’s office believes they can create a case around this violation, a legal challenge could be raised. However, as the election has passed and the state court ruled that there was no immediate harm of the ballot boxes being placed, the issue may be moot.
The dispute between the state party and the California government raises many questions about the Republican Party and election security. National Republicans have claimed that ballot harvesting was an unsecure process: former House Speaker Paul Ryan questioned California’s voting system and President Donald Trump falsely claimed that ballot harvesting led to a fraudulent election. House Minority Leader Kevin McCarthy stated that ballot harvesting “invites fraud and abuse,” and that the process allows for “potential corruption.” The California GOP even sought to limit ballot harvesting during the 2020 legislative session, and in April sued Gavin Newsom’s office over ballot harvesting. At the same time, the party admitted that ballot collection is an important form of getting out the vote, and that they are playing by the rules that the state legislature set. The conflict between these positions raises questions about the intentions of the California Republican Party.
There is a possibility that the party is trying to utilize California’s ballot harvesting law, and that they are operating a legitimate get-out-the-vote effort. This explanation is not entirely out of the question: the judge in the case referenced a similar program employed by the campaign of Democratic Congressman Harley Rouda, in which voters can drop off their ballots at the home of a supporter who returns the ballots to the county elections office. Dale Neugebauer, a freelance Republican political consultant, even stated that he has “professional admiration” for campaigns who had successfully utilized the process to make sure their supporters get their ballots delivered. This could be the state party coming to terms with the state’s laws surrounding the process, and agreeing to play by the rules.
However, the other explanation of the state party’s actions is more in line with the legal actions taken by the national Republicans: to interfere with election rules, and then use their own interference to cast doubt on the legitimacy of the process. There is no clearer example of this contradiction than in Pennsylvania, where state Republicans would not allow for mail-in ballots to be counted before Election Day. This inaction led to a days-long delay in getting a final count—the state was eventually called for Vice President Joe Biden. During the delay, the Trump campaign sued the state to stop counting ballots. Despite Republican legislators not allowing the votes to be counted before Election Day, the Trump campaign is now saying that ballots must not be counted. Even though President Trump has made repeated false claims that mail-in ballots lead to fraud and the party has filed multiple lawsuits around the issue, Republicans still encouraged voters to use mail-in voting in key states.
While California is a reliable Democratic state overall, there are several competitive House races in the state where Republicans are hoping to win back seats lost in the 2018 midterms. Several of these key races have yet to be decided as mail-in ballots are still being counted. When a similar situation occurred in 2018, candidate Young Kim accused her opponent Gil Cisneros of tampering with ballots after he overtook her lead on Election Day. Kim ended up losing the election, and ran against Cisneros again in 2020. Kim eventually beat Cisneros, but the race was only called after mail in ballots had been counted. If Republicans lose races that come down to mail in ballots in the future, they could challenge the results in court as they have on the federal level. Whether these lawsuits would succeed is unclear—many of the election lawsuits Republicans filed have been unsuccessful. Yet, if Republicans want to create an image that the results of this election are fraudulent, they may point to the process of ballot collection or the insecurity of ballot drop boxes as a prime example.