Amid Covid Mail-In Push, CA Officials Mum on Ballot Harvesting

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California Secretary of State Alex Padilla is concerned about safeguarding voters’ health during the coronavirus pandemic and remains outraged over Republican maneuvers to stop expanded mail-in voting in the Wisconsin primary election earlier this month.

“Forcing voters to risk their health in order to vote – this is unconscionable and unnecessary,” Padilla said last week during a phone call with Democratic National Committee Chairman Tom Perez and reporters aimed at promoting vote-by-mail expansions across the country. The end result in Wisconsin, Padilla said, was forcing voters to show up at the polls and wait in long lines to cast their ballots, which put them at greater risk of catching the coronavirus.

“We must act now to safeguard our elections against the pandemic or risk chaos in November,” he said on the phone call.

But Padilla (pictured) has been curiously quiet over the last week when asked about the health-safety implications of California’s expansive procedures regarding the bundling of mail-in ballots. The controversial practice, known as ballot harvesting, allows campaign workers, union members, and volunteers to go door-to-door collecting mail-in ballots and then hand-delivering them to election officials to be counted.

In some documented cases, the workers collecting the ballots have entered into voters’ homes to help them retrieve and fill out their ballots. Such practices are allowed under a California law signed by Gov. Jerry Brown in 2016. Republicans, including then-Speaker Paul Ryan, argued that the law is at least partially to blame for Democrats flipping several traditionally GOP-held House seats across the state in the 2018 midterm election.

But the Democrats’ recent push to expand mail-in voting further because of the coronavirus pandemic  has the unintended consequence of negating the rationale for ballot harvesting, opponents argue.  If everyone has the ability to drop their ballots in the mail for any reason, as Californians already do, there’s no need for campaign surrogates or those from a third party to go door to door, endangering the public health, critics of the practice say.

So far, however, the Democratic officials who control California politics are pointedly avoiding the topic, even with a closely watched special congressional election three weeks away and no end in sight for California’s statewide COVID-19 lockdown. In recent days, Gov. Gavin Newsom has announced steps for areas of the state to reopen but has declined to give a specific date or provide a goal for doing so. Padilla spokesman Sam Mahood won’t directly say whether ballot harvesting violates federal and state social distancing guidelines.

Instead, he told RealClearPolitics that “California law allows voters the freedom to designate a person they trust to return their vote-by-mail ballot.”

“We encourage all voters and campaigns to follow public health guidelines during this pandemic,” he added in an emailed statement. A spokesperson for the California Department of Public Health on Thursday said the agency and Padilla “are assessing various California election practices to ensure they can be carried out safely with proper guidance.”

Basic statewide COVID guidelines advise Californians to “avoid people outside your household,” “maintain safe social distance of 6 feet” from others “whenever outside the house” and “to wear a cloth face covering if you do go outside.”

Amid the national push to expand mail-in voting options, all California voters already receive ballots in the mail. It’s how they can return them that’s in question. California Republican Party Chairwoman Jessica Millan Patterson sent a letter to Newsom last week calling on the governor to clarify his March “stay-at-home” order and how it applies to the May 12 special congressional election when it comes to ballot harvesting.

“To keep Californians safe, we must stop ballot harvesting for the special election,” Millan Patterson said last week. “At this time, ballot harvesting is a threat to the health and well-being of Californians because it directly violates social distancing measures and causes the exchange of a physical item that has been in a person’s household and likely contains saliva, which is known to spread COVID-19.”

California voters must put their mail-in ballots in envelopes and seal them for the ballots to count. Rep. Tom Emmer, who heads the National Republican Congressional Committee, the campaign arm for the GOP, argues that Newsom’s stay-at-home order clearly should make ballot harvesting in the 25th Congressional District contest illegal.

“We will need to see if this order will also apply to the general elections in November,” he told the Associated Press last week. “Only then will we know what changes can be ascertained from this.”

The special election for control of the swing 25th District is seen as a bellwether for Republicans’ ability to retake at least some of the seven seats they lost in the state in 2018. It’s also being viewed nationally as a test for other races across the country using expanded mail-in elections during the coronavirus crisis and in the months following. The race is taking place to fill the seat previously occupied by Rep. Katie Hill, a rising star in the House Democratic ranks until she resigned earlier this year amid a sex scandal.

Party committees and outside groups are pouring money into the race between former Navy fighter pilot Mike Garcia, a Republican, and Democratic state Assemblywoman Christy Smith. A Smith campaign spokesperson told RCP that her campaign “is not conducting any ballot collection efforts at this point in the crisis,” to stay in line with the state’s social distancing guidelines and stay-at-home order, but could not account for outside groups’ activities. Any coordination between the campaign and outside groups’ activity can raise legal questions.

“We are trying to operate with caution and make sure our volunteers are not doing any door-to-door voter interactions at this time,” the spokesperson said. Instead, the Smith campaign is relying on virtual phone-banking and Zoom calls with volunteers, as well as a “robust paid media effort” involving digital ads. Garcia is involved in similar online campaign events and outreach. On Tuesday the California Republican Party held a virtual townhall featuring Garcia, as well as Millan Patterson and House Minority Leader Kevin McCarthy.

A Democratic National Committee spokesman said state officials should determine what works best in their states and slammed Republicans for what he characterized as pursuing “voter suppression on steroids since the coronavirus started impacting elections.”

“What happened in Wisconsin is Exhibit A, of Republican efforts to force voters to make an impossible choice to participate in a democracy or focus on their health and safety,” DNC spokesman David Bergstein said in an interview. “We want to make it as accessible and as safe for voters as possible, and that’s going to be different in each state.”

Other outside advocates for expanding mail-in voting amid the coronavirus outbreak and its aftermath were more circumspect about whether ballot harvesting should continue in California or elsewhere.

“My overall view is partisan effects of any process changes will be small, if they exist at all, so we should make all of our decisions through the lens of public health,” said Eric McGhee, a senior fellow with the Public Policy Institute of California. “Any practice that can’t be conducted safely should be scaled back or discontinued.”

Rick Hasen, a leading election law expert at the University of California, Irvine’s law school, has a more nuanced position than most party operatives. Hasen doesn’t support the unlimited collection of absentee ballots but instead favors a Colorado law that limits ballot carrying to 10 ballots per person. “That’s important to promote public confidence, because absentee ballot fraud is rare (though more common than other kinds of election crime),” he told RCP.

When it comes to ballot harvesting for the upcoming election in California, Hansen said public health officials should make that determination. “If the health officials say it is safe, then I see no health issue,” he said. “If they say it is unsafe, then of course it should not be done.”

Conservative groups don’t see it as a close call. Judicial Watch attorney Robert Popper said California election law allows some of the most expansive ballot harvesting practices in the nation. It allows, and even encourages, partisan activists to “cross the threshold” into voters’ homes to help them retrieve and fill out their ballots. Noting major recent cheating scandals in everything from college admissions to Major League Baseball, Popper asked, “Why is it that they think voting is the one activity where they won’t cheat?”

He added, “I resist as long as I can questioning other people’s motives, but when Democrats say that vote-by-mail is necessary in order to stop the spread of the illness and then they keep ballot harvesting, which if used will undoubtedly spread illness, it makes you think they are not that concerned about spreading illness but really just want the rules to be as loose as possible because it benefits their party.”

The Democratic Party rebuttal is that Republicans favor tighter voting requirements for the same reason they did before the pandemic: because it helps them “suppress” the votes of African Americans and other minorities who usually vote Democratic. And liberals are not shy about taking this position in court.

Churchwell, the PILF spokesman, says all secretaries of state, Democrat and Republican, are fearful of being sued by the ACLU for changing any aspect of existing voting laws during the pandemic. For instance, the ACLU is threatening to sue Virginia’s State Board of Elections for requiring a witness signature on an absentee mail-in ballot.

Meanwhile, Marc Elias, a Democratic lawyer who represented Hillary Clinton’s presidential campaign, is threatening to sue the state of Nevada unless it immediately suspends prosecutions for ballot harvesting before the June 9 primary, along with a number of other demands.  Elias, who is representing the Nevada Democratic Party, argued in a letter to state officials that many voters “will not be able to return their mail-in ballots themselves and do not have family members – or are separated from these family members because of social distancing – who can do so for them.” 

Churchwell said he feels “kind of sorry for Padilla right now – the ACLU has his back against the wall. If they get one toe out of line, they are going to get hammered.”

Still, he added, protecting locked-down voters from ballot harvesting is simply common sense, and California Democrats’ dragging their heels to make it illegal right now is telling, especially because every voter in the state is allowed to simply slip their ballot into a mailbox.

“[It’s] absolutely moronic to believe that [ballot harvesting] is behavior that is sanitary and essential,” Churchwell said. “How in the world is bouncing from house to house asking for ballots sanitary?”

Susan Crabtree is RealClearPolitics' White House/national political correspondent.

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