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In ballot box battle, Dems and GOP both claim victory. Why this fight fizzled.

State Democratic officials said the GOP heeded its warnings — but the GOP's not moving its unofficial ballot boxes.
Credit: Photo by Anne Wernikoff for CalMatters
A voter deposits her ballot at an official box at Emeryville City Hall on Oct. 15, 2020. The California GOP has run afoul of Democratic state elections officials for placing its own boxes in or outside of gun shops, churches and other spots. Photo by Anne Wernikoff for CalMatters

CALIFORNIA, USA — In a press conference seemingly designed to deescalate a week-long legal standoff, declare victory and profoundly confuse the California press corps, Attorney General Xavier Becerra and Secretary of State Alex Padilla said they would not be taking legal action against the California Republican Party for its makeshift ballot box program. 

But the two Democrats insisted that the GOP had changed policy in response to their warnings — a claim the Republicans denied. 

“We are not going to mother or shepherd someone through every day of activity, but what we are trying to do is make it clear what the law requires,” said Becerra, two days after he threatened the California Republican Party with criminal prosecution. 

“We are prepared to enforce those requirements of the law and we wait to see what the Republican Party does. Based on what we find the evidence to be in terms of their activities, that will determine what we do.”

When reporters noted that state Republican Party officials said that, in fact, they would be continuing on with their program as planned, the attorney general said that it was “the deeds not the words that count.” He also said that his office is issuing subpoenas and would continue to monitor the program.  

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State GOP spokesperson Hector Barajas also declared a win: “If they had something, then something would have been charged today. There would have been an injunction or there would have been a lawsuit.”

He also said the party has not yet received a subpeona.

This is but the latest combative, confusing development in what has been a thoroughly combative and confusing saga. 

It began last weekend when photos of a Republican campaign staffer touting on social media a questionably legal ballot-collecting scheme went viral

On Monday, Padilla and Becerra cried foul and blasted out a cease-and-desist letter. Though California law allows voters to entrust their sealed ballot to a third party who vows to cast it on their behalf, the ballot must be given to a person with a pulse, not a metal box, they argued. 

And, they insisted, the ballot must also be signed over to the would be deliverer in order to create legal accountability should the ballot go missing. 

The makeshift ballot boxes quickly made national headlines. Democratic Gov. Gavin Newsom lambasted the program, President Donal Trump tweeted out his defense urging his fellow Republicans to “fight on,” and Becerra promptly sent out a campaign fundraising email off the incidents. Orange County Democratic Rep. Harley Rouda wondered whether the Republican program was all a ploy to systematically “throw away the Dem ballots.”

The GOP’s leadership responded that they would neither cease nor desist. They said that there is nothing in the law that specifically prohibits them from collecting ballots in this way and accused the Democratic secretary of state of hypocrisy for tolerating ballot collection programs operated by Democrats, such as when union members go door-to-door harvesting them. 

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In Fresno, Orange and Los Angeles counties, the unofficial drop boxes were placed at presumed haunts for conservative voters — gun shops, churches and GOP headquarters. “As to the conspiracy theory that the Republican Party is somehow gathering these ballots and not delivering them, that is just dumb on its face,” said Republican lawyer and GOP National Committeewoman Harmeet Dhillon. 

Legal experts have said that the GOP’s strategy exists in a legal gray area. San Diego Assemblymember Lorena Gonzalez, the Democrat who authored the state’s 2016 third-party ballot collection law, said the situation “wasn’t anticipated in the law.”

With an ultimatum from one side, a refusal to back down from the other and accusations of fraud and voter suppression being hurled both ways, California election watchers tuned in to Becerra and Padilla this morning, waiting for the hammer to drop. 

It didn’t. Not yet, anyway. 

“We continue to exercise legal options,” said Padilla, insisting the GOP had blinked.

“Despite their rhetoric in the press, we know that what the Republican Party has agreed to do is to no longer deploy these unstaffed, unsecured, unofficial and unauthorized ballot drop boxes,” he said.

Not so, said California GOP party spokesperson Hector Barajas. “There are no changes to the program.”

In a press call today, California Republican’s lawyer Thomas Hiltachk said that the party would continue to accept vote-by-mail ballots via secure ballot boxes, although they would not be labeled as official, left outside or left unattended. 

Hiltachk insisted that this was not a response to the state’s legal threat, but had always been party policy. Any claims to the contrary, he said, were either incorrect or, in the case of the GOP ballot boxes that had been slapped with an “official” label, the work of a misguided campaign worker and that the label was removed “within two to three hours.”

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With the president of the United States repeatedly sowing doubt about the security of voting by mail — despite evidence that improper voting is vanishingly rare — Becerra and Padilla stressed in both press conferences this week that their aggressive action against the state GOP was meant to preserve public confidence in the state election system. 

Hiltachk said it did just the opposite. “Had they simply just asked us, there would never have been a need for a press conference or a cease-and-desist letter,” he said.

But even if the party’s ballot boxes are kept inside, secure and monitored, one legal question remains. 

California election law states that ballot collectors should include their name, their relationship to the voter and their signature on the ballot envelope.

The Republican Party counters that because the law also instructs county officials not to disqualify a ballot solely for lacking that information, it isn’t illegal to set up a ballot collection operation that doesn’t require a signature.

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“I wish there was a chain of custody requirement in the law, but there isn’t,” said Hiltachk.

The attorney general’s office declined to respond when asked whether operating a ballot collection program without a specific signature requirement would violate state election law. 

“To protect its integrity, we are unable to comment on an ongoing investigation,” a press spokesperson said in an email. 

The very technical debate over where and how a ballot envelope should be signed when transferred from a voter to a third party is based on a very real concern over election interference. In 2018, Republican operatives in North Carolina were charged with setting up an illegal “ballot harvesting” scheme in which they collected ballots from voters with a promise to deliver them, but then filled in unmarked down ballot races without the voters’ knowledge. When the scheme was uncovered, the state board of elections ordered the re-do of a congressional race.

Unlike in North Carolina, California voters are allowed to entrust their ballot to anyone for delivery. The signature requirement is meant to ensure that “someone is taking responsibility for that ballot,” said Kim Alexander, president of the nonpartisan California Voter Foundation. 

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She called this week’s ballot box brouhaha “an unfortunate side show.”

“There are so many more important messages that voters need to be hearing right now,” she said. “To have to add to it, ‘don’t put your ballot in an unauthorized ballot box’ — that is not helpful.”

Voters can find a list of their local drop boxes and voter centers on the website of the California Secretary of State. Voters can also sign up to receive text or email notification when their ballot is sent, received and processed.

CALmatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics