The ironic California drop box controversy

There's a double irony in California's ballot drop box controversy, where the state Republican Party has placed private ballot collection boxes in several counties. Though the boxes are intended to make voting more convenient, the California secretary of state has issued a cease-and-desist order prohibiting them.

First, it's ironic that in several other states Republicans are the ones asking courts to limit ballot collection boxes. When voting rights groups (for instance in Ohio and Texas) or state officials (for instance in Pennsylvania) have attempted to increase the number of official ballot collection boxes, Republicans have said this isn't explicitly authorized by state law. The boxes aren't sufficiently secure, or they would lead to voter confusion, Republicans said.

Alleged security issues with official drop boxes have little basis in reality, but there are real concerns about the unofficial drop boxes in California. No state or local election officials are responsible for these unauthorized boxes. A voter who entrusts a mail-in ballot to a private organization leaves the ballot at the mercy of that organization.

This is the controversy behind "ballot harvesting," when private actors collect and return large batches of mail-in ballots. A voter who places a ballot in an unofficial collection box can't know whether the ballot will be manipulated while it's there, or even that it will ever reach election officials. Widespread private collection of mail-in ballots may undermine confidence in the election. That's why California officials view these private collection boxes as both dangerous and unauthorized.

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The California Republican Party claims that its actions are legal, and that a recent law permits voters to designate a third party to return their mail-in ballots. The secretary of state agrees that third parties now may collect and return batches of ballots, but argues that they can't use unofficial drop boxes to do so. Each voter is supposed to designate the person who is returning the ballot on their behalf, the secretary says. That safeguard reduces the risks of large-scale ballot harvesting.

That leads to the second irony in the California controversy. In states like Arizona, the Republican Party has fought to prevent private organizations from collecting batches of mail-in ballots, because the practice makes them more vulnerable to fraud. Yet this is the exact problem the unofficial drop boxes are creating in California.

As a legal matter, there's nothing wrong with political actors making the most of specific provisions in state law to their political advantage. But we see a party deploying unsecure, unsupervised private collection boxes for voter convenience in one state, and the same party arguing it's a problem for other states to expand the number of official — and therefore properly secured and supervised — ballot collection boxes. The party can't have it both ways.

Steven Huefner is professor of law and deputy director of the election law program at The Ohio State University's Moritz College of Law. Read more from The Fulcrum's Election Dissection blog.