Former AG McKenna: Supreme Court may agree that states can prohibit ballot harvesting

The big challenge between now and the next presidential election is coming up with reforms so that both sides will trust the vote, and a new case related to ballot harvesting may impact that. Arizona has a case before the Supreme Court now, involving some of the rules that are being enforced in that state, which some Democrats are challenging.

“There are two provisions of Arizona’s voting law that they’re challenging. The first prohibits what’s called ballot harvesting, which is the collection of other people’s ballots, bundling together, and then turning in the ballots,” said Rob McKenna, former state attorney general, on Seattle’s Morning News.

“You see that sometimes on college campuses in Washington state, where a student activist will be standing there with a big plastic tub saying, ‘Drop your ballots off here and I’ll deliver them for you.’ There are at least two dozen states which prohibit ballot harvesting,” McKenna said. “Arizona says that the only person who can return a ballot is the voter or voter’s family member.”

The second law relates to votes cast outside one’s precinct, pending confirmation of voter registration.

“The second rule being challenged out of Arizona invalidates provisional ballots that are cast by voters outside of the precinct where they live. So a provisional ballot is one that you might cast pending confirmation of your voter registration, for example,” he said.

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“In our state, Washington, you can go to any precinct in the state basically — at least you used to be able to — and cast a ballot and say, ‘I don’t live here’ — let’s say you’re college student — say, ‘I don’t live here, but I want to cast a ballot here.’ They’ll set the ballot aside and then later on make sure you didn’t also vote at home,” McKenna explained. “In Arizona, you’re not allowed to do that. You have to cast a provisional ballot in the appropriate precinct.”

Part of the issue is whether the rules have a disproportionate impact on groups of people having the ability and opportunity to vote.

“Based on the questions that were being asked by the Supreme Court justices this week, it looks like a majority of them agree that ballot harvesting can be prohibited by state. The issue here is whether the disparate impacts on groups of voters like Blacks, Native Americans, Latinos are enough to knock out any voting rule, or whether you actually have to meet a higher standard showing that people are effectively being denied the right to vote,” McKenna said.

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“In other words, is that enough to show that a voting rule has some disparate impact? For example, if you challenge the prohibition on ballot harvesting because people in a particular community don’t have cars as frequently and they need someone else to take their ballot in, is that enough? Or is the rule neutral enough, and the impacts incidental enough that the voting rule can be upheld?”

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