Jurisprudence

Florida Republicans Launch Last-Minute Effort to Shut Down Ballot Drop Boxes

There’s absolutely no legal basis for the move. So what’s going on here?

A masked woman wheels a ballot drop box into the elections office.
A worker at the Miami-Dade County Elections Department brings an official ballot drop box into the building. Joe Raedle/Getty Images

Florida’s Republican secretary of state is attempting to shut down ballot drop boxes just days before in-person early voting begins, adding a new roadblock for absentee voters. The move, which is totally unsupported by law, marks another attempt by state GOP officials to suppress the vote. The move may also bolster President Donald Trump’s effort to cast doubt on the validity of absentee ballots after the election.

For years, Florida has allowed no-excuse absentee voting, which is now more popular than ever: Well over 2 million residents have already cast their ballots in the 2020 election. State law explicitly allows county supervisors of elections to facilitate early voting by setting up multiple ballot drop boxes where voters can deposit completed ballots. The Legislature has also compelled these supervisors to place drop boxes at their main office, each branch office, and each early voting site. Supervisors have already placed mandatory drop boxes outside their offices that are open 24 hours a day. They are preparing to open more 24-hour drop boxes at early voting sites on Oct. 19, when in-person early voting commences. These mandatory drop boxes are monitored by video or volunteers to prevent destruction of ballots.

Florida law also allows supervisors to set up discretionary drop boxes outside locations that qualify as early voting sites but aren’t being used for that purpose. So, for instance, supervisors can place drop boxes outside libraries, courthouses, and community centers that could be used for early voting but weren’t this year. Many supervisors have already set up these discretionary drop boxes, and they’ve proved extremely popular. By providing enough drop boxes to meet demand, they have avoided appalling scenes like those in Texas, where voters have waited in endless, snaking lines to place their ballots in the single drop box allowed per county.

On Wednesday, however, Secretary of State Laurel Lee tried to shutter a large number of both mandatory and discretionary boxes. In guidance sent to election supervisors and obtained by Slate, Brad McVay, general counsel of the Florida Department of State, imposed onerous new drop box regulations. McVay announced that mandatory drop boxes must be staffed by election officials at all times, and that these officials must ensure that each voter has signed and sealed their ballot envelope. He also declared that discretionary drop boxes may only remain open during early voting days and hours.

This guidance, if implemented, would force dozens of counties to close hundreds of drop boxes every day and remove others altogether. Florida’s counties do not have sufficient personnel to staff mandatory drop boxes 24 hours a day, or to devote the number of staffers necessary to screen each voter’s ballot. So supervisors would have to close these mandatory drop boxes for at least part of each day. Further, counties that use 24-hour discretionary drop boxes would have to shut them until Monday, when early voting begins. Then, starting Monday, they would have to either close these boxes early or keep them closed permanently. The result would be an abrupt and drastic contraction in the number of drop boxes available to Floridians.

But there’s a problem with McVay’s guidance: It has no legal basis. Florida law does not require mandatory drop boxes to be staffed at all times; it merely says that these boxes must be “secure.” As Ron Labasky, legal counsel for the Florida Supervisors of Elections association, told the Tampa Bay Times, there’s no definition of “secure” in the statute. Instead, the law leaves security “within the discretion of the supervisor.” And there is no legal reason why monitoring by 24-hour video or certified volunteers does not count as “secure.”

Nor does Florida law require that discretionary drop boxes be closed whenever early voting is not taking place. The statute merely states that discretionary drop boxes “must be staffed during the county’s early voting hours of operation by an employee of the supervisor’s office or a sworn law enforcement officer.” It does not command the closure of these boxes when early voting hours are over. To the contrary, it relieves counties of the duty to staff the boxes when early voting is not occurring.

Daniel Smith, a University of Florida political science professor, compared McVay’s guidance to Texas Republican Gov. Greg Abbott’s notorious order allowing each county just one drop box, forcing populous counties to close dozens.* He’s right, but there is a key difference: Unlike the Texas governor, the Florida Department of Elections has no legal power to shutter drop boxes. The Pinellas County Supervisor of Elections office, for instance, has already told the Tampa Bay Times that it will not scuttle plans to open multiple drop boxes that don’t comply with McVay’s guidance.

Lee, the Florida secretary of state, recently confirmed that her agency has no authority over county supervisors of elections. In election-related litigation earlier this year, Lee told federal courts that she was not a proper defendant because she couldn’t control the supervisors’ actions. A federal appeals court agreed, writing that “the Supervisors are independent officials under Florida law who are not subject to the Secretary’s control.” Thus, by Lee’s own admission—and as a matter of law—she can’t force supervisors to shutter drop boxes.

Why, then, did Lee’s agency issue this guidance in the first place? Probably for the same reason that Abbott closed Texas’ drop boxes: They are heavily used by voters in more populous, left-leaning counties, and early voters are disproportionately Democratic this year.* (In Florida, Democrats have dominated Republicans in early voting so far.) Lee may be trying to make voting harder for Democratic supporters.

There’s another, more sinister possibility. Presuming supervisors ignore McVay’s guidance, Florida’s largest counties will collect a huge number of absentee ballots in a manner deemed unlawful by the Department of State. If Joe Biden narrowly wins the state in November, Florida’s Republican-controlled government could argue that these ballots should be thrown out because they were cast through an illegal process. That claim could give rise to litigation that might allow the federal judiciary to call election results into question and invalidate ballots. The president has openly fantasized about such a scenario for months.

There is no reason to give Lee the benefit of the doubt. Her office has known for months that counties intended to set up plenty of drop boxes to accommodate all the Floridians who don’t want to vote in person due to the pandemic. This last-minute effort to sabotage these boxes may lay the groundwork for an impending brawl over the legitimacy of Florida’s election.

Correction, Oct. 16, 2020: This piece originally misidentified the governor of Texas as Ken Paxton, who is Texas’ attorney general. Greg Abbott is the governor of Texas.

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