Most South Dakota county auditors disagree with election drop box ban

When the question of using election drop boxes for South Dakota early voting was raised in a House State Affairs committee hearing in Pierre in early February, the discussion took on an ominous tone, mirroring national rhetoric over the integrity of American elections.

“It’s simply too easy for bad actors to abuse these drop-off sites to dump unauthorized ballots illegally,” said Republican Rep. Kirk Chaffee of Whitewood. He was the prime sponsor of House Bill 1165, which modified absentee voting rules and banned the use of unmonitored drop boxes in South Dakota.

T.J. Nelson, a lobbyist for Opportunity Solutions Project, a conservative advocacy group that has pushed for restrictions to absentee voting in state legislatures, also issued warnings while working with legislators and county auditors to make it “easier to vote but harder to cheat,” a mantra used by supporters of early-voting reforms.

“Other states have a lot of issues with people just going out and pre-filling these absentee request forms, doing the work for the voter except signing their name, and then dumping ballots,” Nelson testified. “We need to make sure someone isn’t taking a hundred ballots and stuffing them into a ballot box.”

These arguments proved persuasive.

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HB 1165 passed both houses and Republican Gov. Kristi Noem signed it on March 21, one of 10 election-related bills that House Majority Leader Will Mortenson said would “keep South Dakota the model for election integrity and voter access.”

But the premise used to outlaw the use of drop boxes – that they are vulnerable to fraud and used to rig electoral outcomes – is false, according to a South Dakota News Watch survey of every county auditor in the state.

Furthermore, most auditors said they oppose the ban because it will make it harder, not easier, for voters to participate in the democratic process.

No fraud tied to drop boxes in past two elections

South Dakota did not record a single case of voter fraud or other election-related crimes tied to the use of ballot drop boxes in 2020 or 2022, according to the survey that drew responses from 58 of 66 counties, including 29 of the top 30 by population.

Of the 58 respondents, 33 (57%) reported using drop boxes as receptacles for absentee ballots in 2020 or 2022 or both, a practice that became more common during the COVID-19 pandemic. Most of the boxes were connected to county buildings and were available to voters during non-business hours, which would not be allowed under the new law.

“I think we’re trying to correct a problem that doesn’t exist,” said Harding County Auditor Kathy Glines, who took office in 1991 and was part of a group of auditors who testified in Pierre.

“The legislators we worked with were very open and receptive to input we had. But there was also outlying pressure to correct issues that we haven’t had problems with.”

Pressure based on misinformation

That pressure has been felt by election officials across the country, spurred by former President Donald Trump’s refusal to concede the 2020 election despite no evidence of widespread electoral fraud as well as concerns raised by some Republicans about the broadening of absentee or early voting during the pandemic.

Drop boxes, used in nearly 40 states in 2020, became a target for election reformers after more than 40% of voters used the boxes to return ballots in that presidential election year, compared with about 15% in 2016, according to the Stanford-MIT Healthy Elections Project.

A movie praised by Trump, “2000 Mules,” purported to show a pattern of Democrat-aligned ballot “mules” paid to illegally collect and drop off ballots in swing states such as Arizona, Georgia, Michigan, Pennsylvania and Wisconsin. Election experts criticized the project’s flawed cellphone tracking analysis, while Trump’s efforts to establish ballot fraud through the court system proved unsuccessful due to lack of evidence.

“The thing that’s really troubling is that people are being played in this moment, which results in people donating millions and millions of dollars to lost causes that are based on lies and misinformation,” said Tammy Patrick, CEO of programs for the Election Center, a Texas-based nonprofit that trains and certifies election administrators throughout the country.

She points out that drop boxes were used without controversy in Western states such as Washington, Utah, Oregon and Arizona for decades before they became a partisan issue following the 2020 election. In South Dakota, where 50% of registered voters are Republican, GOP voters comprised 53% of the early vote in 2022 and 48% in 2020.

“What is particularly problematic is that many of these efforts are based on the fallacy that (early or absentee voting) is rampant with fraud, which it is not. And it’s also based on the fallacy that this will somehow benefit one party over another, which it will not,” Patrick said.

Top leaders critical of election drop boxes

An Associated Press survey of election officials in each state revealed no cases of fraud, vandalism or theft involving drop boxes that could have affected the results of the 2020 election.

Absentee ballots are verified by signature and tracked closely, Patrick said, often with an option for voters to see where their ballot is at any given time, a process that safeguards against votes being illegally cast.

Still, the criticism of drop boxes continues in South Dakota, to the highest levels of state government.

When Lincoln County Commissioner Joel Arends boasted on Twitter in April 2022 that the county would not use drop boxes that year and “it’s time to make sure we don’t have these in any other counties in South Dakota,” Noem tweeted “I agree!” from her personal account.

Secretary of State Monae Johnson, who has refused to publicly acknowledge that President Joe Biden legitimately won the 2020 election, prevailed in last year’s GOP primary over incumbent Steve Barnett by accusing him of not being vigilant enough on election security.

Johnson, who declined an interview request from News Watch, didn’t bring any bills during the 2023 session. But she has supported stricter voter ID laws and hand-counting of ballots in some cases while vowing to keep South Dakota one of just eight states that doesn’t offer online registration.

‘Democracy starts to die’

Patrick, who has testified before the U.S. Senate and U.S. House of Representatives on voting systems and security, has a South Dakota background. Her parents grew up northeast of Brookings in White and she’s concerned by what she sees in the Mount Rushmore State.

“As election officials, legislators and auditors, we should be looking at how we can better serve our voters and accommodating them in their modern way of life,” she said.

“This (drop box ban) is going to negatively impact voters who live in remote areas, where they have to go all the way into the country seat rather than drop their ballot off in a location closer to them. We also know that some of these rural locations have challenges with postal delivery. This is going to affect farmers and ranchers and really anyone who works non-traditional hours because if it’s only internal to the building, that’s going to severely limit access.

“South Dakotans are the heart of this country,” she added. “They’re hard-working, generous people, they’re practical and they’re honest. So it pains me to see individuals being used so nefariously in this way, to push this narrative that the 2020 election was illegitimate. That is deeply problematic beyond the surface of what candidate won or lost because when voters and the general population start to question the legitimacy of their election systems, democracy starts to die.”

Minnehaha County stopped using drop boxes

The primary purpose of drop boxes is to allow absentee or early voters an opportunity to submit ballots at a time and place convenient to their schedule or circumstance. Some might use it to save postage, avoid a crowded indoor setting or merely because they’re concerned about meeting the mail-in deadline for ballots.

Lincoln County Auditor Sheri Lund, whose office used a ballot drop box on the front steps of the courthouse in 2020 but not 2022, points out the irony of banning drop boxes but allowing ballots to be deposited in mailboxes, many of which lack the security and surveillance of county-supervised drop boxes.

“One form of drop box is still able to be used, and you can find them on almost every corner,” Lund said. “They’re blue and are marked USPS.”

More News Watch: Republicans criticize program that provided $3.8B to state

Minnehaha County Auditor Leah Anderson, who was elected in November 2022 but didn’t begin her term until March 2023, noted that Minnehaha used two drop boxes for the 2020 election due to the pandemic but then adjusted when COVID-19 policies changed. In 2022, the state’s largest county used drop boxes only for city elections and not for the primary and general.

Anderson, who defeated incumbent Ben Kyte in the Republican primary by trumpeting election integrity as a campaign theme, has aligned herself with Secretary of State Johnson on positions such as calling for post-election audits and opposing online registration.

Anderson was the only auditor in the News Watch survey who explicitly supported banning drop boxes in South Dakota, pointing out a state law (SDCL 12-3-5) that allows employees time away from work to vote.

“Many citizens and business owners do not realize this law exists,” Anderson wrote in an emailed response. “Also, our state has the longest period (45 days) for early voting and absentee voting as compared to other states. I personally believe that citizens have plenty of time and multiple ways to cast a ballot without the use of ballot drop boxes.”

Election drop boxes ‘convenient’ for voters

Other auditors were more likely to point to voter appreciation of the delivery method during the 2020 election and the effectiveness of drop boxes in getting ballots banked early.

Pennington County, the state’s second-largest, utilized a drop box in elections prior to 2020 in the foyer of the administration building in Rapid City.

“The box is in a locked area and then the box itself is locked. And only the auditor’s office has a key to that box,” said Cindy Mohler, one of the auditors who met with lawmakers in Pierre. “In Pennington, (the new law) really did nothing more than remove a convenient way for voters to return their ballots during non-business hours or return their ballot without having to come all the way into the building.”

Hand County Auditor Doug DeBoer said his office in Miller used “a large metal box” as a drop box for the 2020 election “made by a local blacksmith and built to endure some abuse.”

The slot was large enough for election envelopes, but his office mostly received applications for absentee ballots. Though DeBoer said he does not personally believe in drop boxes, he noted that his constituents support them.

“I normally eat out or spend my noon hours visiting with people, and I routinely ask them their opinion on things. And all but one person thought the ballot drop box was a great idea,” he said. “Especially for those who can’t do stairs (our elevator is broken) and those who don’t want to come inside.”

In Leola, McPherson County Auditor Lindley Howard, a member of the state board of elections, said banning drop boxes “reduces voter choice and access.” Hughes County Auditor Thomas Oliva, based in Pierre, said of the new law: “I think it only made things harder for the voter. It was a nice convenience for the voter that is no longer an option.”

‘It starts with misinformation and wild accusations’

Groups seeking to modify or restrict absentee voting have found their footing in Republican-led states since the 2020 election, using Trump-fueled allegations from prominent election deniers such as MyPillow founder Mike Lindell to build support.

South Dakota was fertile ground for such efforts, with far-right Freedom Caucus legislators aligning with the citizen-led South Dakota Canvassing Group, partly inspired by Lindell’s Cyber Symposium in Sioux Falls in August 2021, which promised and failed to prove election fraud.

“There were cookie-cutter versions of election security bills being circulated across the country,” said Democratic Rep. Kameron Nelson of Sioux Falls. “It starts with misinformation and wild accusations of voter fraud. And then it sort of spirals down to whoever gloms onto it and runs with it through the legislative process. And it has significant consequences at the end of the day.”

Lindell was sued for $1.3 billion by Dominion Voting Systems, which claims it was harmed by unfounded statements from Lindell and other Trump allies that Dominion rigged its machines in favor of Biden in 2020. In allowing the lawsuit to proceed, a judge ruled that Dominion “has adequately alleged that Lindell made his claims knowing that they were false or with reckless disregard for the truth.”

Auditors under fire from canvassing group

The Freedom Caucus sent an August 2022 letter to Noem and then-Attorney General Mark Vargo urging them to preserve 2020 election records by directing our “county Auditors to uphold the rights of our citizens to oversee and review the election process to further strengthen our elections, and to honor our commitment to our citizens for government transparency.”

Senate President Pro Tempore Lee Schoenbeck, a Watertown Republican, dismissed leaders of the canvassing group as having “an obsession or fetish” that amounted to harassment of election officials.

Schoenbeck helped defeat bills brought by Freedom Caucus member Republican Sen. Julie Frye-Mueller of Rapid City. The measures would have required more vigorous investigation of voter addresses and identities by auditors, who were already besieged with Freedom of Information Act requests related to 2020 election data in South Dakota, where Trump won with 62% of the vote.

“Those requests are bogging down these small election offices, a third of which don’t have a full-time employee,” said Patrick, who served 11 years as federal compliance officer for the Maricopa County Elections Department in Phoenix.

“Now they’re spending hundreds of hours fulfilling these records requests for every email they’ve ever sent or ballot images that they don’t necessarily retain or voter signatures that aren’t allowed by law to be released to the public. I’ve had election officials tell me, ‘I do FOIA requests from 9 to 5 and then I do my election work at night.’ That’s untenable. Election officials are exhausted.”

Auditors were key players in election law changes

Mortenson, a Pierre Republican, and Senate Majority Leader Casey Crabtree, a Republican from Madison, emphasized their work with county auditors in building support for successful 2023 bills that addressed voter-roll updates, residency requirements, post-election audits and the testing of tabulation equipment.

More radical efforts such as Frye-Mueller’s measures and HB 1217, a proposal from Republican Rep. Scott Odenbach of Spearfish to shorten the early voting period from 45 days to 30, drew strong rebukes from election officials and ran out of steam.

“The bills that were vetted by the auditors are pretty much the ones that passed,” said Lincoln County’s Lund.

HB 1165, described by GOP leadership as a “comprehensive clean-up bill” for absentee voting, included 22 sections after amendments were tacked on, the second-to-last of which made South Dakota the 11th state in the country to ban ballot drop boxes, while five other states have restrictions.

Several auditors described the process as a negotiation with Republican legislators and Nelson, the lobbyist for Opportunity Solutions Project. That same group worked to get drop box restrictions passed in Iowa in 2021 and an outright ban approved in Missouri last year. Nelson declined an interview request from News Watch, deferring to auditors and lawmakers involved in the legislation.

“There was a little give and take on both sides,” said Mohler, the auditor for Pennington County. “People are very interested in election integrity. We knew there would be some things that would come out of the legislative session and hopefully we could influence a little bit of what was happening.”

‘Hope that it’s going to get better’

Though some auditors reached by News Watch thought the law would still allow drop boxes if they are placed within the county office, Section 21 states that an election official “may not establish or place, or allow any individual to establish or place, an absentee ballot drop box within the official’s jurisdiction.”

It goes on to exclude from the ban receptacles used to “physically secure a completed absentee ballot, including a secured and monitored receptacle at the office of the individual in charge of the election,” which could be interpreted as secure storage of ballots rather than a place for voters to submit them.

The law states that the state board of elections, chaired by the secretary of state, will make rules “prescribing the requirements to ensure the security of the receptacle or the container located at the office of the individual in charge of the election.”

County auditors are making plans to adjust to the new laws, expressing appreciation for being part of the legislative process but wary of continued attacks on the integrity of South Dakota’s voting systems as another major election looms in 2024.

“It’s really disappointing to see how many people thought we weren’t following the law or doing the best that we could to make sure that our elections were safe and secure,” said Mohler. “I have hope that it’s going to get better, but we’re headed into a presidential election year, so I don’t know if that’s the case.”