Election bill passes House but still has major problems

Published June 4, 2020

By Andy Jackson

I wrote on May 27 that there were three major problems with H1169, the Bipartisan Elections Act of 2020:

1.   Reducing the witness requirement for absentee ballots from 2 to 1 lessens absentee ballot security.
2.  The reduction of the witness requirement combined with changes in the duties of multipartisan assistance teams (MATs) would make MATs vulnerable to exploitation by political operatives.                                                                                                                                                                       3.  The online absentee ballot request portal the law mandates can be exploited to skirt the ban on political operatives submitting absentee ballot requests.

The good news is that the gap in the bill that would have allowed the exploitation of MATs by political operatives was closed by an amendmentin the House Committee on Elections and Ethics Law adding Section C.(2) to the bill. That section specifies that MATs will work in teams of members of both major parties.

The bad news is that the bill passed the House on May 28 on a 116-3 vote without the other two problems being corrected.

I wrote on April 30 why reducing the witness requirement would be a bad idea:

"In addition to verifying that the voter made the choices on the ballot, the witness requirement is also crucial in suspected ballot harvesting cases for establishing who took possession of the absentee ballots, since it is invariably the witnesses who take them. Finding the same names on numerous absentee ballot container envelopes was an important signal that ballot harvesting operations were taking place in Bladen County in 2018.

"Requiring two signatures is superior to requiring one since it prevents one-person ballot harvesting or vote-buying operations. In addition, it makes ballot harvesters sign as witnesses on more ballots. For example, a 10 person ballot harvesting crew trying to harvest 200 ballots would have to average 40 signatures per worker, something more likely to be noticed by election officials and reporters…

"Reducing the witness requirement would allow ballot harvesters to operate with less of a “footprint” per worker, reducing the chance that their operation would be noticed."

It is clear that this bill went through a lot of backroom negotiations and reducing the witness requirement to one for the 2020 election was likely seen as a way of splitting the difference between the current requirement of two witnesses and proposals for eliminating the witness requirement (it automatically goes back to two witnesses after this fall’s general election). Stripping the witness requirement reduction could make the entire bill collapse, increasing the chances that courts could use one of the ongoing lawsuits to imposed election law changes.

I had previously laid out how political operatives could exploit the online absentee ballot request portal as it is currently written in the bill:

"S683, passed last year in response to ballot harvesting in Bladen County, states that only the voter, the voter’s near relative or verifiable legal guardian, or a member of a multipartisan team can fill out or submit an absentee ballot request form. While the current bill states that the voter, or the voter’s near relative or verifiable legal guardian, must provide all the information on a standard absentee ballot request form and an electronic signature, ballot harvesters might be able to exploit the web site by going door-to-door with portable electronic devices. The ballot harvesters would then have that information stored on their devices or, at a minimum, have knowledge of when ballots would likely be in voters’ homes."

A couple of changes could be made to Section 7.(a) of the bill to address that vulnerability:

Make it illegal for political operatives to use their devices to submit others’ absentee ballot requests.
The current bill states that the portal “must be able to track the IP address of anyone who accesses the Web site”. That section should be expanded to not accept requests from devices that have blocked their IP addresses. (UPDATE: Rather than IP address tracking, the website should use device fingerprinting with all data deleted after the State Board of Elections certifies election results.)

A different way to address that is to have local boards send a confirmation return postcard for the voter to sign before sending the ballot.

The Senate should make corrections to H1169.