Supreme Court to Rule on Provisional Ballots and Ballot Harvesting

Voters cast their ballots at the Boca Raton Fire Rescue Station in Palm Beach County, Fla., on Nov. 4, 2008. (Marc Serota/Getty Images)

The Supreme Court is expected to render a decision this month on an Arizona case heard on March 3 that will determine how the nation will proceed on state laws concerning elections. At issue is how provisional ballots will be cast on Election Day nationwide and the legality of anti-ballot harvesting state laws.

Arizona has state provisions that discard provisional ballots cast by individuals who appear at a polling site on Election Day when they are not listed on the precinct’s voting rolls and were later found to have gone to the wrong location. Arizona also bans ballot harvesting by party activists or get-out-the-vote activists that collect mail-in ballots at the homes of voters and deliver them in bulk to election offices.

The Arizona legal case was brought to the U.S. Supreme Court by Arizona Attorney General Mark Brnovich, a 2022 Republican candidate for the U.S. Senate, after losing in the Ninth Circuit.

A friend-of-the-court brief supporting Arizona (pdf) was written by the Landmark Legal Foundation and supported with 11 years of evidence and over 700 signed statements (out of a total of 1,200 statements) gathered by Election Integrity Project California’s citizen observers as well as citizens working with Election Integrity Project Arizona.

On the opposing side, joining with the Democratic National Committee (DNC), were two dozen organizations including Mi Familia Vota and the Arizona Center for Empowerment.

The claims between the two sides have divided the nation. Republicans believe elections have been stolen through lax voting procedures and large-scale ballot harvesting operations focused on producing lopsided voting margins.

Democrats believe that alleged discrimination against minorities—Hispanics, blacks, and Native Americans in particular—requires election reforms to allow everyone more opportunities to vote.

The legal issue revolves around the Voting Rights Act (VRA) which was first enacted in 1965 to enforce the Fifteenth Amendment of the U.S. Constitution which states in Section 1: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

The VRA has been amended five times in 1970, 1975, 1982, 1992, and 2006, and contained 19 sections when first written. Specifically, the legal case argued before the Supreme Court was geared around Section 2, which authorizes the federal government and private citizens to challenge discriminatory voting practices or procedures that diminish or weaken minority voting power.

While courts have most frequently applied Section 2 in the context of challenges to redistricting plans, in the past few years, litigants have invoked Section 2 to challenge certain state voting and election administration laws.

The DNC and the Ninth Circuit Court challenged Arizona’s policy of wholly discarding, rather than counting or partially counting ballots cast in the wrong precinct; as well as Arizona House Bill 2023, a 2016 statute that criminalized the collection and delivery of another person’s ballot (ballot harvesting), saying it was “enacted with discriminatory intent” and “unduly burden minorities’ right to vote.”

In 2016, the DNC sued Arizona’s Secretary of State and Attorney General in federal district court for 3,709 out-of-precinct ballots cast in the 2016 election which impacted minority voters at twice the rate of white voters.

Meanwhile, the Election Integrity Project (EIP) has trained thousands of citizens in California and Arizona to monitor elections by collecting and analyzing voter registration and voting data, as well as county policies and procedures for election management and ballot processing.

The organization’s motto is “Every Lawfully Cast Vote Accurately Counted.” According to the EIP California, “Ballot harvesting flouts that principle by facilitating unlawful voting through undue influence, duplicative votes from out-of-date registrations, and other tactics.”

The legal argument put forward by EIP is that “the Constitution of the United States delegates the power to regulate the time, place, and manner of elections to the individual states (Article 1, Section 4). This design allows states to tailor election processes to local conditions and preferences; to address issues arising in a state’s electoral experience; and to facilitate elections,” said Linda Paige, president and co-founder of the EIP California.

The arguments on behalf of Arizona established that abusive ballot harvesting is a common vulnerability in vote-by-mail and absentee ballot systems and California serves as a warning of the dangers of unchecked and unregulated vote-by-mail voting and ballot harvesting, with the Los Angeles Times reporting on Aug. 9, 2019, that “84,000 duplicate voter records found in audit of California’s ‘motor voter’ system.”

Meanwhile, data analysis of Arizona’s voter rolls obtained from the Election Assistance Commission and tabulated by the EIP California as of October 2019 discovered:

• 2,289 deceased voters on the voter rolls
• 315 double votes cast in 2018 across state lines
• 85 double votes cast in 2018 across county lines
• 3,277 double votes cast in 2016 by individuals with two active registrations at the same address
• 3,077 double votes cast in 2016 by individuals with two active registrations at the same address
• 884 voters using commercial addresses as their residence

The legal argument between Republicans and Democrats before the Supreme Court boils down to who controls elections, the federal or state government.