Here’s What California’s Ballot Harvesting Law Allows, What It Doesn’t, and Suggested Reforms

AP Photo/Lynne Sladky

As has been covered multiple times this week, there’s been a slight bit of controversy about what California’s “ballot harvesting” law allows and what it doesn’t allow. The disingenuous and mostly untrue comments from Attorney General Xavier Becerra, Secretary of State Alex Padilla, and Governor Gavin Newsom (all Democrats) have only served to stoke partisan fires in the state and make the fact that each party is expected to play by different rules all the clearer.

The California Republican Party stood up to the Democrats’ shenanigans, unflinchingly, for the first time in nearly two decades. From the time Arnold Schwarzenegger was sworn in in 2003 until the present time, establishment Republicans in the state have bowed down to the Democrats, attempting to become a less radical version of the increasingly insane progressive Democrat party. Under Schwarzenegger’s watch the share of elective positions in the state held by Republicans decreased dramatically, partly due to the to-two primary championed by State Sen. Abel Maldonado – whom Schwarzenegger appointed as his Lieutenant Governor. It’s no wonder Schwarzenegger had this to say about the CAGOP’s private ballot drop box program:

“It’s a stupid thing that they’re doing right now with those ballot boxes. I think it’s just Mickey Mouse stuff that, you know, has serious kind of effects. And I think that what they should do, really, is offer people hope and make everyone participate and make everyone be able to vote and those kind of things rather than make those fake ballot boxes.”

Schwarzenegger shows a total misunderstanding of the law, and zero ability to think strategically.

First of all, by placing ballot collection boxes at places where conservatives will still go even during a pandemic – churches and gun shops — the party is giving people the ability to vote.

Second, because of revisions to election law made in 2016 and 2018, these ballot boxes aren’t prohibited by law, and the way in which the CAGOP is operating them falls within the requirements of the revised law. And by pointing out how ridiculous the current law is, perhaps the CAGOP is forcing Democrats to go back and change the law.

In 2016 Assembly Bill 1921 changed regulations regarding how a vote-by-mail ballot could be returned. Prior to its passage, a voter could only designate:

“[H]is or her spouse, child, parent, grandparent, grandchild, brother, sister, or person residing in the same household as the vote by mail voter to return the vote by mail ballot.”

That designated person could then put the ballot in a mailbox, deliver it to an official ballot drop box location, or take it to the polls on Election Day. All ballots had to be received by the time the polls closed on Election Day.

BUT, if one of those people who were otherwise eligible to return the ballot happened to be a paid or volunteer worker of a campaign or PAC or other types of political organizations, their eligibility was done away with.

Assembly Bill 1921, authored by Asm. Lorena Gonzalez-Fletcher (D-UnionPlant), changed who could return a ballot, expanding the group of eligible ballot returners from a handful to essentially an entire stadium full of people. Just pick one:

“[A] vote by mail voter who is unable to return the ballot may designate any person to return the ballot to the elections official who issued the ballot.”

Any person. It literally means any person. Even someone volunteering for or being paid by a political campaign, PAC, or any other interested person, group, or organization. The only restriction placed on paid ballot harvesters is that they can’t be paid on the basis of how many ballots they harvested.

AB 1921 did not remove the requirement that the person designated to return the ballot print their name and relation to the voter on the outside of the envelope, and place their signature. It also didn’t create any requirement that county officials verify that the person delivering a ballot show identification matching the name on the ballot they’re delivering. So, as my colleague Miranda Morales argued, some random person — or political operative — who showed up at Grandma’s nursing home could return 90 ballots to the county and sign all of them “Marilyn Monroe” and state that they’re her psychic advisor and that would be completely above-board.

The law does require harvesters to deliver the vote-by-mail ballot within 72 hours after taking possession.

But even those slight attempts at creating a chain of custody were done away with, in Gonzalez-Fletcher’s “clean-up” bill in 2018. (Side note: Why are her bills always needing clean-up?) Her AB 306 prohibits officials from disqualifying a ballot solely because the harvester delivered it outside the 72-hour time frame.

While AB 1921 contemplated that there would be paid ballot gatherers, the lack of instruction, regulation, or oversight of those paid ballot gatherers (or even individuals) provided for in either that bill or AB 306 essentially leads us to where we are today.

Since there is no requirement that the harvester signs their name on the outside of the ballot there is no way to know if that person is the one the voter designated — and in the case of a paid gatherer, oftentimes the voter wouldn’t even know what the harvester’s name is anyway.

Under California law, ballot harvesters are the only people who handle ballots who don’t have to undergo training. They just have to be over 18. They don’t have to be citizens. They don’t have to be literate. They could be on probation for a felony and still gather ballots and be paid for it. They aren’t instructed that it’s improper for them to coach the voter or direct them toward particular candidates.

California law doesn’t regulate how ballots are to be stored during that 72-hour period between harvesting and delivery. They could be in a burlap sack. The envelope could be steamed open and the ballot replaced with one marked the way the sponsoring organization wants it.

County elections workers don’t note that a particular person returned a certain number of ballots or which ballots they returned unless the harvester has willingly placed their information on the outside of the envelope. And in today’s atmosphere, if a harvester knew that the ballot would still be counted even without their attestation, why in the hell would a harvester on the up-and-up put their real name on the envelope? It’s a recipe for harassment and being blamed for something. And if the harvester isn’t on the up-and-up, they’re definitely not going to put their name on the outside of the ballot.

Why would officials make such a vague law that’s sure to lead to confusion and fraud? It was intentional. My fellow contributor Scott Hounsell shared his experiences working on the 2010 California Attorney General race — the one which Kamala Harris won by just .8 percent, thanks to what was then illegal ballot harvesting carried out by the Democrats. Harvesting activities were mainly carried out by throngs of union employees, so it’s not surprising that once Asm. Gonzalez-Fletcher, a former AFL-CIO boss, got a little power in Sacramento she authored a bill to make legal another cash stream for the unions.

While the Los Angeles Times didn’t seem to have a problem with ballot harvesting in the 2018 midterms, they clearly articulated the problems with AB 1921 in a 2017 editorial, during a Dem-on-Dem special election, also noting that while the bill was being debated concerns were raised (sounds like AB5, right?):

[T]here are reports that some canvassers in the District 51 race [are] asking voters to complete and hand over their vote-by-mail ballots. Lopez’ campaign has warned supporters about intimidation from Carillo canvassers asking for ballots….

At the time, voting security advocates raised concerns that the provision would throw open the door to voter coercion, giving groups such as labor unions or megachurches another tool to pressure members….Also troubling is the potential for malfeasance or negligence, given that the law provides no safeguards to ensure that the ballots make it to official election facilities in time to be counted. And although the law forbids campaigns to pay for ballot collecting, there’s no clear way to enforce the ban.

It’s one thing to trust the U.S. Postal Service, which presumably doesn’t have an interest in state and local races, to deliver your ballot. It’s quite another to trust a stranger who shows up at the door one day promising to make sure your vote gets counted.

Noting that Gonzalez-Fletcher planned clean-up legislation during the next session, the Times’ editorial board had a few suggestions:

“[A]t the very least, she should consider limiting the number of ballots a single person can collect and requiring ballots be turned in swiftly and by Election Day. More broadly, lawmakers should reassess the wisdom of allowing unlimited and unverified third-party ballot-collection before the 2018 campaigns begin in earnest.”

It’s clear that after the California Republican Party essentially pantsed the Democrat establishment with this private ballot return box operation, more clean-up legislation will be planned next year. Short of getting rid of the ability to harvest ballots entirely (either people vote in person, mail their ballot, or drop their ballot off at an official drop box themselves), legislators must set clear, unambiguous regulations on the conduct of ballot harvesters, qualifications, required education/registration, and a secure chain of custody.