Late guidance from Florida’s elections chief could affect counties’ plans for mail ballot drop boxes

“This seems like a last-minute desperate plea to make it more difficult for Floridians to vote,” said Daniel Smith, a University of Florida political science professor who studies elections.
"I voted" stickers in English, Spanish, and Creole are available at an official ballot drop box location for vote-by-mail ballots for the general election on Nov. 3, at the Miami-Dade County Elections Department, Wednesday, Oct. 14, 2020, in Doral, Fla. (AP Photo/Lynne Sladky)
"I voted" stickers in English, Spanish, and Creole are available at an official ballot drop box location for vote-by-mail ballots for the general election on Nov. 3, at the Miami-Dade County Elections Department, Wednesday, Oct. 14, 2020, in Doral, Fla. (AP Photo/Lynne Sladky) [ LYNNE SLADKY | AP ]
Published Oct. 16, 2020|Updated Oct. 16, 2020

Late guidance this week from the Florida Department of State on mail ballot drop boxes has forced many county elections officials to reconsider their plans only days before the start of early voting in the 2020 general election.

Vote-by-mail drop boxes must be staffed at all times they are in use by either an elections employee or a sworn law enforcement officer, according to a Wednesday memo from the department’s general counsel, Brad McVay, to Florida’s 67 supervisors of elections.

That interpretation of how state law applies to drop boxes — given by McVay only after 2 million had already voted by mail — conflicts with several counties that had planned to use surveillance cameras or other methods to secure drop boxes.

McVay’s letter addressed several other questions that he said had been asked by elections supervisors. It stated that drop boxes set up in locations other than elections offices or early voting sites must be available the same days and hours as early voting — no more, no less. It said 24-hour drop boxes are okay, if they are manned, but only at certain sites.

His memo also stated that poll watchers who get credentials from elections offices are allowed to observe drop boxes, that the boxes can be placed indoors and outside, and that they cannot be placed at polling places on Election Day.

It is unclear why the guidance was issued with less than three weeks left in voting. The Department of State had held a workshop with elections supervisors on Sept. 16 and previously answered some, but not all, of these questions.

“This seems like a last-minute desperate plea to make it more difficult for Floridians to vote,” Daniel Smith, a University of Florida political science professor who studies elections, said after reading McVay’s letter.

Smith and a colleague recently surveyed the 67 counties and found more than 50 had planned to use 24-hour drop boxes. He said he did not ask those counties how they planned to secure those 24-hour boxes, but said he thought that most planned to use surveillance cameras.

Related: Column: All counties should offer secure 24/7 drop boxes for mail ballots

“This is a ham-handed effort to crack down on the ability of voters to safely drop off their mail ballots in person in secure locations and I fully suspect the supervisors will ignore this guidance,” Smith said.

A Tampa Bay Times survey of counties found that many elections offices already required drop boxes be manned by elections staff at all times. Counties reported using locks and seals to prevent tampering. Some described fortified boxes and each said they had procedures to keep the boxes and the ballots within them safe. Several who offered 24-hour drop boxes during the August primary reported using surveillance cameras to monitor them.

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McVay’s letter said the need for onsite staff to monitor drop boxes is to ensure the boxes “remain secure from those who intend to do harm to the boxes,” saying that surveillance cameras can’t prevent someone from throwing “foreign substances or small incendiary devices” into the box. He wrote that onsite staff “can also help ensure that vote-by-mail ballots are sealed and signed.”

The timing of MacVay’s guidance has vexed elections supervisors, who must now figure out what changes, if any, they will now make to comply with his letter.

The Hillsborough County Supervisor of Elections, which is offering a 24-hour drop box at its main elections office, decided after reviewing the state’s letter to hire security to monitor the box during the hours the office is closed “out of an abundance of caution,” said spokeswoman Gerri Kramer.

Hillsborough also has drop boxes set up at its other offices that are available when employees are present, and will soon have them available at the other sites when early voting starts Monday.

Kramer shared an email from the legal counsel for the Florida Supervisors of Elections association, Ron Labasky, who wrote that he didn’t see any requirement in Florida law addressing the staffing or hours of operation for drop boxes at elections office or early voting sites.

“There is no definition of secure, so in my view that is within the discretion of the supervisor,” Labasky wrote in an email shared by Kramer.

Labasky added that Wednesday’s letter from the state is not a formal advisory opinion or a directive but is the department’s interpretation of the law.

“As such I think a supervisor can take it as they choose to,” Labasky wrote.

Florida’s supervisors of elections are mostly elected positions and they do not report to Laurel Lee, Florida’s secretary of state.

“The supervisors have a large area of discretion,” said Tallahassee lawyer Barry Richard, who specializes in constitutional law and who represented George W. Bush in the contentious 2000 Florida election recount.

Richard said that, this election year especially, “it seems like if it’s possible for there to be a legal challenge, there’s going to be one." But he said it might be difficult to make a case that an elections supervisor has violated something by not following the state guidance on drop boxes.

A spokesman for the Pinellas County Supervisor of Elections said Friday that it is planning to move ahead with 25 drop boxes at its five early voting sites and 20 other locations. Its boxes will be staffed, but some locations will not have them available for the full hours of early voting, something MacVay’s guidance said is required for discretionary sites.

“While we appreciate the guidance to the state, we have already notified our voters about when and where they can drop off their mail ballots and that is our position,” said spokesman Dustin Chase. He said that there are longstanding precedents that rules should not be changed close to an election because doing so could confuse voters and cause other problems.

Other counties around the state said they’ll continue using surveillance cameras. Terry Vaughn, the elections supervisor for Bradford County, which is between Jacksonville and Gainesville, said he’ll use cameras after hours for the 24-hour drop box at his elections office.

“Our voters are well protected as far as their ballots go,” Vaughn said.

But just south of Bradford, Alachua County scrambled to contract with a security company to provide after-hours staffing of the 24-hour drop box at its office, said spokesman TJ Pyche.

Pasco County Supervisor of Elections Brian Corley said Friday that the state’s memo doesn’t affect his county. He currently has drop boxes set up inside his three office locations that can be used during business hours. When early voting opens Monday, drop boxes that are manned by poll workers will be available at those 14 sites during early voting hours.

Florida law requires county elections officials provide secure drop boxes at elections offices, including branch locations, and at early voting sites. Drop boxes can also be added at places that would otherwise qualify as an early voting site — such as libraries — but that are not being used as such; in those instances, the law says those sites “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.”

Counties have set up drop boxes in different ways. Some offer drive-through options or 24-hour access. Some boxes are small and portable. Other drop boxes look like fortified mail boxes and are bolted to the ground. Some counties allow voters to slip their ballots through a slot on an outside wall of the elections office, where it then drops into a secured room or box.

Any voter can choose to drop off their completed vote-by-mail ballot in a drop box in their county instead of mailing it. All mail ballots must be received by the county elections office by 7 p.m. on Nov. 3 to be counted.

Related: Have questions about voting in Florida? We have answers

Smith on Friday compared the state’s last-minute guidance to efforts in some other states to restrict the use of drop boxes, such as the push by Texas Gov. Greg Abbott to limit drop boxes to one per county.

“This is all out of the same playbook: last-ditch efforts by Republican governors to tilt the playing field to help the president,” Smith said.

Smith noted that more than 2 million Floridians have already cast ballots, including tens of thousands who have opted to drop off mail ballots in person.

A spokesman for the Department of State did not respond to two emails and a voicemail sent Friday asking for more information.

Smith said that Wednesday’s letter reminded him of a 2013 letter that then-Secretary of State Ken Detzner sent to then-Pinellas County Supervisor of Elections Deborah Clark that ordered her not to “solicit return” of absentee ballots at locations other than an elections office.

Clark ignored the order and Detzner ended up dropping the issue.

Related: 2013: Pinellas Supervisor of Elections says she'll ignore state order on absentee ballot drop-off sites

Tampa Bay Times elections coverage

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