Commentary: Legislative session sees no election integrity measures, approval of drop boxes

The drop boxes represent another move away from a great American get-together known as Election Day.

Ted Eytan/Flickr

The 2021 legislative session was a bust as far as election integrity is concerned. Republican demands for voter ID and provisional balloting were dropped, along with DFL demands allowing felons who complete their sentences to vote and other progressive “voter access expansion” ideas. Call that a standoff by a divided legislature.

But an absentee ballot drop-box provision made it into law. Drop boxes arguably favor the DFL so if I am scoring the session just on election integrity measures, the DFL won this round.

It would be easy to beat up on Republican leadership for not standing their ground, and even easier to mock the DFL’s dishonest rhetoric about voting rights. But Minnesota voters have failed over and over to send great conservative candidates to the legislature. At some point voters have to own the problem of divided government and help good people get elected.

That said, I think Republican leaders missed many opportunities to leverage their Senate majority, and the drop-box law is a case in point.

On June 30, Gov. Tim Walz signed into law “security and integrity” rules governing drop boxes. Drop boxes, relatively new to Minnesota, grew in number and popularity last year during the Wuhan Flu-related state lockdown.

Republican leaders may have reasoned that it was better to have some security measures in place since the drop boxes are already in use, rather than none at all. But last I checked, there is no health emergency or pandemic that warrants the permanent use of drop boxes.

I heard about the legislative deal when Secretary of State Steve Simon gleefully reported the change in law on MPR News recently. When he is happy about something, reach for your vote. Simon said it was a good change because state law was entirely silent on the use of drop boxes by election officials.

Why was Simon sound so darned happy? I do not think of Secretary Simon as someone who is passionate (at all) about election security; he is, however, very passionate about getting as many ballots counted as possible, even if the ballots may not be valid votes.

My take? I think Simon was thrilled because now drop boxes are legitimate — and chances are, we will never get rid of them, for better or worse.

I have a question for Secretary Simon: If state law was silent about drop boxes until now, and the security of the boxes was thus not spelled out in law, why were drop boxes for absentee ballots allowed in 2018 (or earlier) and in 2020? Who made that decision?

My guess is the widespread use of drop boxes in DFL-strongholds, like Minneapolis and St. Paul, was just another example of what I call “Simon Says.” Simon has a tendency to draw outside legal lines, knowing he can get away with it, even if it conflicts with or is not allowed under state law. Especially if the practice favors DFL voters over GOP voters.

A good example of this is Simon’s disregard for “party balance” on the ballot boards that count all the absentee ballots. Party balance is required by state law, but Simon encourages election officials to hire so-called “non-partisan” staff instead of using citizen election judges from the major parties. This is no small thing when 1.9 million out of 3.2 million votes cast were by absentee ballot in 2020.

The most glaring example, however, is the consent decrees he signed with an organization closely aligned with the Democratic National Committee that degraded the security of absentee ballots in 2020. The collusive decree was found by a federal court to violate the authority of our state legislature, and thus our republican form of government.

I assume that the legislature intended for the drop boxes to be monitored, at a minimum, by a camera, but it is hard to tell. The language just says, “ [E]ach drop box must be continually recorded during the absentee voting period.” This is bad drafting; what does “continually recorded” mean? The Star Tribune reported that the bill would require “security cameras” to constantly monitor the sites but that is not what the law actually says. Maybe that language can be clarified before the next election.

Security cameras and hundreds of hours of video footage will not do any good if no one is paying attention in real time, or if the people in a position to monitor the boxes are either biased or indifferent about the law. I suppose if bad guys know that the drop boxes are under surveillance, it might have some deterrent effect.

In theory it is great to have video but only if something happens to make officials go back and check it. I think we have learned that lesson with all the video footage of absentee ballot boards. In addition to the problem of monitoring hundreds of hours of activity (how many people have time for that?), it can be hard to discern what is happening on video.

This law sounds like a good idea but in practice may encourage rather than prevent fraud or even innocent mistakes that would not occur if the ballots had to be dropped off in person.

So am I just being a cranky critic? Maybe a little, but hear me out.

I suppose one could make the case for using drop boxes. They are certainly convenient for voters. But even if convenient and, for the sake of argument, largely secure, are they a good policy?

When it comes to voting, I always like to ask, “What could possibly go wrong?”

The drop boxes may be physically secure, which this new Minnesota law requires (e.g. the 24-hour drop boxes must be tamper-proof, weather-proof and bolted to the ground or a building, and emptied each day). Great. One vendor brags about how their drop box was struck by an SUV and stayed intact. But that does not prevent people from putting fraudulent ballots (or ballots with vote-cancelling errors) into the boxes.

One can find other grounds on which to object. As Madison said in Federalist 51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

Let’s start with the fact that drop boxes are not required by this new law to be available around the state; other states have recently adopted drop-box measures, too, but Republican lawmakers required the boxes to be spread out geographically, so the practice does not heavily favor one political party, or one region.

So far, unless I am mistaken, drop boxes in Minnesota have only been located in more populous areas controlled by the DFL. So while small-town or “out-state” Minnesota has experienced a dramatic shift to mail-in ballots (affecting 1,345 out of about 4,000 precincts), and away from in-person voting (e.g. narrowing choices for those voters), the legislature just made it easier for people living in big DFL-run cities to turn in absentee ballots.

And while ballot harvesting is technically illegal in Minnesota, people are allowed to drop off ballots for up to three voters. Ballot boxes offer the perfect opportunity for ballot “harvesters” to drop off multiple ballots at different times and in different locations.

Who is going to know?

The new law requires drop-box locations to be published on city, county and the secretary of state’s websites (so voters and bad guys will know where to find them), but the new law is silent on where drop boxes can or should be placed, apparently leaving the use and location of drop boxes up to local officials, or perhaps locations are determined by rules created solely by Secretary Simon. (The secretary has rule-making authority on a wide range of election practices.)

And while I am concerned mostly about fraud, the drop boxes also represent another move away from a great American get-together known as Election Day. Yes, I know it is small-town corny of me to romanticize going to my precinct or city hall, and seeing my neighbors or even just the clerk while I vote. Especially since I usually vote a day or so early because I work the elections as a volunteer lawyer.

But I love Election Day. It seems to be getting lost to convenience and ho-hum indifference like so many other great American traditions. I am not just being nostalgic; voting in person makes it less likely that you will make a mistake on your ballot or that you will be intimidated into voting for a candidate or party that you would not otherwise choose.

Drop boxes are certainly better than the U.S. mail but I for one will still be voting in person at my precinct or city hall.

You can look at the statute governing drop boxes (MN Stat. 203B.082) and other statutory changes signed into law here.