Reader J.W. has posted an interesting response to my thoughts on the uses and abuses of curbside voting. For those of you who might have missed the exchange, here it is in full:
Re: “The curbside voting law doesn’t require that a voter pass some test or exhibit some condition proving inability to enter the polling place, and the curbside voting law isn’t enforced through criminal penalties like those applicable to assistance of a voter in the voting booth.”
Agreed. And you are right that this is the battlefront once mail-in ballot abuse is curbed. We’re seeing this in several counties where action has been taken against ballot harvesters. It seems there should at least be a procedure where the voter confirms inability to enter polling place. Under 64.009, the entire procedure must be “at the voter’s request.” So, procedurally, the politiquera (or whomever) comes in, tells officials a voter needs curbside, an official goes out to the car and confirms that the voter is requesting curbside and cannot physically enter the building. The process should not be offered to a voter who has not requested it, period. Just like a person “assisting” a voter should be chosen by the voter, and not vice-versa, but I digress.
Regardless, would you say that 64.036 still very much applies to the curbside voting process, and that an assistant still cannot (1) assist a voter who is not eligible for assistance with the ballot (i.e. they can read and physically mark the ballot); (2) prepare the voter’s ballot in a different way than directed, or without direction; (3) suggest to the voter in any way how to vote; and of course (4) assist a voter who hasn’t requested assistance from them?
We’re seeing some politiqueras bringing in vanloads of voters who have already been armed with push cards of whom to vote for and marked sample ballots, before arriving at the polling place. The voters are then “assisted” in the voting booth by the politiquera, who is ostensibly there for the purpose of ensuring the voter votes for the candidates indicated on the literature that’s been pre-provided. Obviously, if the assistant were providing the voter with that information on the spot, in the voting booth, it would be unlawful assistance, by suggesting to the voter whom to vote for. But, the sample ballot changed hands in the van. Depending on the facts, what was said in the van, whether it was said by the assistant, whether the assistant him/herself handed the sample ballot to the voter, and the proximity of the delivery of the sample ballot to the vote assistance, I think a case could still be made for unlawful assistance, albeit a difficult one.
Certainly if the assistant directs the voter to the material, that would be an unlawful suggestion. Marking the ballot without direction would be unlawful as well. But — “oh, I see you have a list of candidates marked here – is that who you want to vote for?” “Um, yeah, I guess.” Done. — that’s more difficult. At that point, the best enforcement strategy might be to focus on eligibility of the voter for assistance. It’s a bit of a cat and mouse game with these guys, and we have to accept that no system is perfect, or ungameable, but we can raise the bar little by little and make it more difficult and less profitable for politiqueras to exploit elderly voters and manipulate election outcomes for paying candidates.