Iowa secretary of state backpedals on ballot drop box crackdown

Iowa Secretary of State Paul Pate will not seek to prevent county auditors from setting up drop boxes outside their offices for voters to hand-deliver absentee ballots, he announced on Iowa Public Television's "Iowa Press" program on August 28.

The same day, state elections director Heidi Burhans told county auditors in writing that "a no-contact delivery system" for absentee ballots will be allowed "at your office or in the immediate outside area of your office building."

Pate still maintains county auditors cannot set up drop boxes "throughout the community," a warning shot at Linn County Auditor Joel Miller.

The latest controversy over absentee voting in Iowa began during an online Election Administration Training the Secretary of State's office provided for county auditors from August 19 through 21. Three slides were labeled "Drop Boxes Not Permitted." They stated in part,

Iowa law provides that absentee ballot may be returned to the County Auditor in 1 of 3 ways:

1. Via the USPS [U.S. Postal Service]
2. Delivered to the County Auditor’s Office by the voter
3. Delivered to the County Auditor’s Office by the voter’s designee

Because the Legislature has been specific about who and how voted ballot may be returned, a County Auditor does not have the authority to establish drop box system in their county

The Secretary of State's office didn't respond to Bleeding Heartland's inquiry but told the Des Moines Register's Stephen Gruber-Miller on August 20,

During auditor training sessions today, the Secretary of State's legal counsel informed county auditors that the Iowa Attorney General's Office clarified that they can set up a no-contact delivery system for voters in their office to use during regular business hours.

That was news to auditors who had set up drop boxes for years. The whole point is for voters to be able to hand-deliver ballots at any time of the day or night, not only during regular business hours.

With the U.S. Postal Service leadership recently imposing several policies that have slowed down mail deliveries, Iowans are rightly concerned about relying on the mail to get their ballots to county election offices on time. All the more so because Republicans shortened the early voting window from 40 days to 29 days in 2017. Whereas Iowa county auditors used to be able to mail ballots to voters beginning in late September, the first day ballots can go out this year will be October 5.

Lynn Hicks, communications director for the Attorney General's office, said he could not comment on the substance of advice provided to the Secretary of State's office, since Pate's staff had neither released the document nor waived privilege. Hicks later confirmed that the Attorney General's office had not been asked to weigh in on this matter before this summer.

The Secretary of State's office declined to release the legal reasoning to county auditors or to the media.

Gary Dickey, a Des Moines attorney with expertise on Iowa election law, told Bleeding Heartland via email that "nothing in [Iowa Code] Chapter 53 prohibits the use of drop-boxes by any third-party, including a county auditor."

For example, 53.17(1)(a) expressly allows a voter to designate a third-party to return the ballot to the county auditor upon the condition that the ballot is enclosed in the return envelope and third-party delivers it to the auditor’s office within seventy-two hours of retrieving it from the voter:

a. The sealed return envelope may be delivered by the registered voter, by the voter’s designee, or by the special precinct election officials designated pursuant to section 53.22, subsection 2, to the commissioner’s office no later than the time the polls are closed on election day. However, if delivered by the voter’s designee, the envelope shall be delivered within seventy-two hours of retrieving it from the voter or before the closing of the polls on election day, whichever is earlier.

Iowa Code section 53.17(1)(a). Under this provision, a county auditor (or anyone else) can serve as a designee to deliver the voter’s return envelope on the voter’s behalf so long as they deliver the envelop to the auditor’s office within seventy-two hours. That would be true regardless of whether the auditor picks it up directly from the voter or the voter places it in a drop-box designated by an auditor.

Gruber-Miller and Zachary Oren Smith reported for the Des Moines Register on August 26 that "at least 39 county auditors said they have used some sort of drop box system in the past."

Some auditors said their offices have used them for years. Many said they purchased drop boxes to place outside their offices this spring when courthouses and county buildings were closed to the public because of the coronavirus pandemic.

"During the primary, individuals did use drop boxes and nothing was said," Roxanna Moritz, Scott County auditor and president of the Iowa State Association of County Auditors, told the Register.

In an August 28 email to auditors and staff, obtained by Bleeding Heartland, state elections director Burhans wrote,

In last week’s election administration training, we reviewed with you that you can establish a no-contact delivery system at your office location for absentee ballots. Since then you have provided a lot of feedback. We hear what you are saying, and we are going to work with you to help make this successful. You will be able to have a no-contact delivery system at your office or in the immediate outside area of your office building. We are finalizing guidelines for keeping it safe and secure and will get them to you soon.

Pate addressed the matter during the latest edition of "Iowa Press" on Iowa PBS, which was recorded and broadcast on August 28. The secretary of state discussed absentee voting alongside Polk County Auditor Jamie Fitzgerald; the relevant portion begins around the 7:20 mark of this video. Excerpts from the transcript:

Pate: All the auditors should be able to have a drop mechanism there on their property for returning those ballots. That is my understanding, that's how we're interpreting it and we're advising the auditors. We're going to provide them with some guidelines on what that should look like to make sure that it can be as secure as possible. That will be allowed. The ones in question were the ones that were spread out throughout a community and parking lots at grocery stores, places like that. There is where the attorney general was involved and stating that those do not meet the present standards of the law. [...]

David Yepsen: Mr. Pate, just quickly, what changed in the law? I don't recall any change in the law. Was some interpretation changed? Why make this change?

Pate: Well, this was a good example of terrible line of communication, ok? And my office will take some of that on our shoulders. We're not telling people they can't have the drop box again at the auditor's office outside. The confusion was when you start putting them throughout the community.

Yepsen: Why is that a problem?

Pate: That's the way that Iowa Code reads on elections. It does not give the auditors the authority to put these type of mechanisms around the county. If they want something like that, they need to go to the legislature and have them include that in the bill.

Pate was alluding to Linn County, where Auditor Joel Miller placed drop boxes outside three Hy-Vee grocery stores in Cedar Rapids and Marion, in addition to the one outside the county government offices. Miller has said he plans to keep the boxes in place outside the grocery stores for the general election. Gruber-Miller and Oren Smith reported,

The Linn County Board of Supervisors voted Wednesday [August 26] to designate the drop boxes as "county-provided accessories of the Linn County Auditor's Office."

"Basically, the goal is to, through whatever means possible, classify all the drop boxes as part of the auditor's office, because the secretary of state is saying people can only hand off absentee ballots to the auditor's office," Miller said.

I'll keep an eye on Linn County developments after ballots drop in October.

It's good news that Pate won't interfere with other counties that have drop boxes installed outside government buildings. That would have been senseless voter suppression.

Normally I prefer to vote early in person, but to facilitate social distancing amid the COVID-19 pandemic, I have requested a mailed ballot and plan to hand-deliver it to the Polk County elections office in October.

Whether or not your county sets up a drop box, Iowans in all 99 counties can hand-deliver their absentee ballots to the county elections office during business hours, if they are worried about relying on the mail. The deadline for hand-delivering a ballot is 9:00 pm on election day.

Mailed ballots must be postmarked on or before the day before election day and must arrive by the Monday following election day in order to be counted. Given the increasing postal service delays, I wouldn't mail an absentee ballot any later than two weeks before the November election.

UPDATE: Miller commented via Twitter on August 30,

Iowa is a Home Rule State, i.e., whatever is not in conflict with State law is left to the cities and counties. This is another strike by the @IowaSOS, a former mayor, against local control ... and the end goal is to inconvenience voters. #VoterSuppression

Top image: Screen shot from "Iowa Press" episode that aired on August 28, 2020.

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