Federal judge blocks Mississippi law restricting ballot harvesting, Congress introduces similar law

A federal judge in Mississippi has temporarily blocked the enforcement of a state law to prevent so-called ballot harvesting, despite most states having enacted and kept such laws on the books and as Congress considers its own version. 

On Tuesday, the U.S. District Court for the Southern District of Mississippi’s Northern Division blocked a law that makes it illegal to “knowingly collect and transmit a ballot that was mailed to another person.” 

Ballot harvesting is a practice in which political operatives, volunteers, union workers and other third parties gather and submit voters’ completed absentee or mail-in ballots. 

Supporters say the practice is necessary to help voters like the elderly and disabled, while critics say it's too vulnerable to voter fraud.

The Mississippi law, which was enacted in May by GOP Gov. Tate Reeves, prohibits people from "transmitting a ballot mailed to another person" with four exceptions: 

• an election official legally engaged in official duties;
• a USPS worker legally engaged in official duties;
• anyone else who is legally allowed to collect and transmit mail while they are legally engaged in official duties
• a "family member, household member, or caregiver of the person” who was mailed the ballot. 

The court took issue with the final exception, saying that the terms “family member, household member, or caregiver” aren’t defined in the law. 

“The statute’s prohibition, which requires criminal penalties, and the statute’s unclear definition of key terms promise to deter otherwise lawful assisters from providing necessary aid to a vulnerable population,” U.S. District Judge Henry Wingate wrote in his order. 

The court later wrote: “An estimated one in five adults, more than 850,000 people, in Mississippi suffer from a disability. In the 2000 elections, over 100,000 Mississippians voted absentee by mail. This court is sorely concerned with the effect of this statute upon these voters, due to the statute’s broad and vague nature.” 

Wingate also said that the lack of definitions might be related to the lack of data regarding the practice in the state. 

“When questioned by this court, Defendants were unable to provide any data illustrating whether Mississippi has a widespread ballot harvesting problem,” he wrote. “Seemingly, no fact-findings or committee-finding investigations or legislative committee inquiries have focused upon this perceived threat. This may explain why the definitional approach of the statute is so barren.” 

Three Mississippi voters, along with Disability Rights Mississippi and the League of Women Voters of Mississippi, brought the lawsuit in May, claiming it violates the Voting Rights Act for voters with disabilities. The American Civil Liberties Union and the Southern Poverty Law Center are representing the plaintiffs. 

“Ballot harvesting is when a political operative collects and handles massive amounts of absentee ballots,” Reeves said when signing the bill into law in March, “This process is an open invitation for fraud and abuse and can occur without the voter ever even knowing.”

The law was supposed to go into effect July 1 and violators would face a misdemeanor charge of a maximum one year in jail and/or a $3,000 fine.

Mississippi is one of 33 states that have significant restrictions on the practice, according to an analysis by the Movement Advancement Project. Of them, five allow only the voter to return their mail-in ballot. Those states are Alabama, South Dakota, Tennessee, Virginia and Wisconsin. 

A total of 17 states and Washington, D.C., have little or no restrictions.

Those states are Alaska, California, Colorado, Delaware, Hawaii, Idaho, Illinois, Montana, Nebraska, Nevada, New York, Oregon, Rhode Island, South Carolina, Vermont, Washington, and Wyoming. 

The practice has been a top concern among election integrity advocates, particularly since the 2020 presidential election, which then-incumbent President Trump continues to say was "rigged," and the movie “2000 Mules,” which highlighted the issue. 

Earlier this month, House Administration Committee Chairman Bryan Steil introduced an election integrity bill, the "American Confidence in Elections Act," which prohibits states from using federal funds to administer federal elections unless they enact laws that make ballot harvesting illegal. 

The bill states the committee received reports through its official Election Observer Program for the 2018 general election and the 2020 general election, and from other stakeholders that ballot harvesting occurred “throughout California and other states.” 

The bill makes the same exceptions as the Mississippi bill on who can return a voter’s mail-in ballot. But unlike the state bill, the House GOP one defines the terms "Family member" "household member" and "caregiver."

• Caregiver is defined as “an individual who provides medical or health care assistance to such person in a residence, nursing care institution, hospice facility, assisted living center, assisted living facility, assisted living home, residential care institution, adult day health care facility, or adult foster care home.” 
• Household member is defined as “an individual who resides at the same residence as such person.” 
• Family member is defined as “an individual who is related to such person by blood, marriage, adoption or legal guardianship.”