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Unauthorized Ballot Boxes and Ballot Collection in California

In the past week, news reports have surfaced that unofficial ballot drop boxes were placed in Fresno, Los Angeles, Orange, and Ventura counties. The California Republican Party has acknowledged that they own unofficial ballot boxes.  Boxes have been found at churches, gas stations, gun shops, and other businesses. Election officials are warning voters that these unofficial drop boxes, all in counties where there are highly competitive US House races in the 2020 general election, are not authorized by state law and may not be secured.

Secretary of State Alex Padilla and Attorney General Xavier Becerra sent out a cease-and-desist letter ordering the removal of the boxes, asserting that, under state law, no one can create ballot drop boxes other than appointed, qualified election officers. The California Republican Party responded to the letter by stating that it would continue its ballot collection program, insisting that its boxes do not run afoul of the law because they are not left unattended, placed outside, or labelled as official. This dispute highlights a lack of clarity in the law, and nonprofits who want to help their community members return their ballots securely are caught in the middle.

Legal Background

On May 8 2020, Governor Gavin Newsom signed an executive order declaring that, due to the global pandemic and health and safety concerns at polling locations, all active registered voters in California would automatically receive a vote-by-mail ballot for the November general election. This meant that for the first time in the state’s history, over 21 million voters would receive a ballot in the mail with a postage-paid envelope for return.

Under a law passed in 2016, voters can designate not only relatives but any individual to return their vote-by-mail ballots if they are unable to do so themselves.

California Nonprofits Can Collect Vote By Mail Ballots

Despite the recent headlines, California nonprofit staffers and volunteers can still legally collect ballots in California as long as certain procedures are followed.

A California voter can authorize a nonprofit staffer or volunteer to return their vote by mail ballot for them (California Elections Code Section 3017(a)(2)). State law requires that the ballot envelope reflect the name of the authorized person and the relationship of the authorized person to the voter even though no particular relationship is required. For this reason, it might be a good idea to fill in some applicable relationship, such as neighbor, coach, counselor, advocate, friend, etc., or even to write “none” rather than leaving that section blank. The designated individual must sign the ballot envelope. Although it is a best practice and may reduce liability in ballot collection efforts to complete the name, relationship, and signature of the individual delivering ballots to County election officials, the law does state that a ballot will still be counted if the person authorized to return it did not provide his or her name, relationship to the voter, or signature.

The designated person must return any ballot in person or put it in the mail no later than three (3) days after receiving it from a voter or before the polls close on election day, whichever time period is shorter.

It’s important to note that a person collecting ballots can be compensated to do so as part of their job responsibilities as long as they are not compensated based on the number of ballots they return.

People who collect ballots without following these procedures may be subject to stiff penalties for receiving a voted ballot from a voter or for performing any of the duties of an election officer such as handling ballots without being duly appointed and qualified.

The Drop-Box Question

The law is clear that a person can return another person’s ballot as outlined above. It’s also clear that no one should mislead the public by acting as an election officer if they are not, or by communicating the incorrect location of a ballot drop box or drop-off location to a voter.

However, what’s not clear is whether third party drop boxes are actually prohibited under state law and, if so, what an “unauthorized ballot drop box” actually is, i.e., when does any receptacle a group might use to store ballots become a ballot drop box.

State officials have taken the position that “providing unauthorized, non-official vote-by-mail ballot drop boxes is prohibited by state law” even if the containers are not designated misleadingly as official. However, members of both the Democratic and Republican parties are continuing to collect ballots, and in at least some cases are securing them in locked boxes until they are delivered to election officials.

Although it is not absolutely clear that it is prohibited, given the current uncertainty in the law and the way it is being enforced, nonprofits may want to avoid creating any ballot “drop box.” Certainly, it is a best practice to communicate as clearly as possible that any nonprofit ballot collection efforts are not “official” to avoid any confusion. Additional best practices would include making sure any place in which ballots are temporarily stored after they are collected and before they are delivered to elections officials is secure — either attended or locked — and that ballots are not left outside. Some ballot collection programs go beyond this to track the voter’s name, address, contact information, as well as the name of the individual who took responsibility for the ballot, and even a picture of the back of the ballot envelope.

Other Best Practices

Mere allegations of violating the rules can be distracting and costly for nonprofits, so when creating any ballot collection plans, make sure to consider the optics of the situation and any players in your community who may want to complain about your efforts. Of course, it’s always important to remember the rule that 501(c)(3)s cannot support or oppose any candidate for office and should target any Get Out the Vote or ballot collection efforts based on neutral, nonpartisan reasoning, such as focusing on communities with historically-low voter turnout rates.

Finally, if a nonprofit wants to encourage people to vote but does not want to take on the responsibility of ballot collection, it can help community members understand their voting options and make voting plans. Organizations can assist voters with locating their polling place or rides to the polls, since, even with the pandemic and the move to universal vote-by-mail, California voters may still choose to vote in-person. In California, each county largely controls voting locally, so check with the county registrar of voters for when in-person voting begins or go to https://caearlyvoting.sos.ca.gov/ for more information.

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