Amid national election controversy, legislators consider voting law tweaks

Andrew Bahl
Topeka Capital-Journal
Residents of Shawnee County walk toward the elections office, 3420 S.W. Van Buren, for advance voting ahead of the November 2020 general election. (November file photo/ The Capital-Journal)

Amid a national debate over voting by mail and a 2020 general election in Kansas that, by all accounts, went off without a hitch, slight changes to the state's election laws are still on the table.

Most notably, legislators are weighing a proposal to ban residents from dropping off an advance ballot on behalf of a neighbor or friend, with arguments that such a move is necessary to crack down on potential "ballot harvesting."

That term refers to someone collecting a mass of ballots on behalf of others and then submitting them. It gained widespread prominence as part of President Donald Trump's unverified claims of fraud in mail voting during the 2020 election.

But the practice isn't necessarily illegal unless it violates a state's election laws in other ways, such as if fraud was committed. 

For instance, a Republican in North Carolina was charged with illegally collecting ballots from voters in 2018, a case that garnered national attention. Similar events are rare, however, and there haven't been any ballot harvesting incidents uncovered in Kansas. 

Under state law, an individual currently bringing a ballot to a polling place or elections office on behalf of someone else would need to sign the envelope, certifying that they didn't aim to influence the vote in any way.

"But it is pretty difficult for us to certify the truth of that statement," said Andrew Howell, election commissioner in Shawnee County.

Republicans have argued the state needs to tighten its laws to prevent potential malfeasance.

Elections proceeded smoothly in Kansas last November, said Rep. Bill Sutton, R-Gardner, but changes were needed to "plug up" some areas.

Legislation reviewed by the House Elections Committee on Thursday would make the delivery of an advance ballot by someone other than a family member or caregiver a felony. The legislation doesn't explicitly lay out who would be considered family or a caregiver, nor how election administrators would verify those claims.

Sutton argued that electioneering, or influencing a voter's decision, at a polling place is banned and maintained the change to the advance voting law would make it more difficult to commit fraud or pressure a person to change their vote.

"We just need to be able to affirm to our voters that, in Kansas, their election is absolutely legitimate," Sutton told the committee. "We saw what happens when, across the country, people questioned the legitimacy of their voting."

But opponents countered that it was already a crime to influence someone to change their advance vote, as is destroying or altering someone else's advance ballot.

"I've never met someone who was willing to take that risk for a vote," said Rep. Vic Miller, D-Topeka.

Instead, critics argued the legislation would merely make it harder for certain groups of residents to get their advance ballot counted. 

It is widespread practice for senior citizens, individuals with disabilities and those without transportation to hand off a ballot to a neighbor or a friend to transport. 

Miller noted he had done just that for an elderly acquaintance and said the change would open the state up to a legal challenge.

"There is no justified rationalization for why this bill is needed or why it was even written because there is no issue that it is actually addressing," said Glenda Overstreet Vaughn, representing the NAACP of Kansas.

Other changes to the mail voting process are also being considered.

Under current law, voters have to postmark their advance ballot on Election Day at the latest. The ballot then has to arrive at the county clerk's office by the Friday after Election Day, three days later, otherwise it won't count.

But the secretary of state has the ability to suspend that provision, although they have never done so. Sen. Richard Hilderbrand, R-Galena, wants to nix that flexibility going forward.

"You put one person with the unilateral ability to change something and the pressure on that one individual to change something for any reason is always there," Hilderbrand said. "And that is a big burden to put on one individual for 3 million Kansans."

Hilderbrand said "it is already proven that we don't need the statute" and the office of Secretary of State Scott Schwab has indicated it doesn't object to the change.

But critics point to delays with the U.S. Postal Service ahead of the 2020 election as evidence that the flexibility might be nice to have.

Moreover, there is concern that if a tornado or natural disaster devastated an area, like the 2007 Greensburg tornado, steps would need to be taken during an election to ensure voters could have their voices heard.

Austin Spillar, a policy associate for the American Civil Liberties Union called the bill "an overt act of voter suppression."

"There is so much unknown in our lives, and we need to accept the fact that the U.S. Postal Service may not always be capable of delivering mail within that three-day time frame," he said.