Critics of Alabama legislation criminalizing third-party absentee ballot collections are asking the question: Where’s the proof this is even a concern?

The answer they got last week was a report, provided by the Alabama Secretary of State’s Office, detailing absentee ballot percentages by county on the May 24, 2022, primary election. The results show a much higher percentage of absentee ballots cast in the mostly rural, poor Black Belt counties that tend to vote for Democrats.

The concerns from groups like the League of Women Voters foucus on whether SB1 is aimed as a voter intimidation and turnout suppression strategy by Republicans.

“This is meaningless data,” said Kathy Jones, president of the League of Women Voters of Alabama. “To sit there and say your rural, poverty-stricken counties in the Black Belt have a high absentee (ballot) rate is no indication of anyone doing anything wrong.”

In Alabama, the stakes are high: If the legislation becomes law, it will go immediately in effect and could loom over the 2nd congressional district race that Democrats are hoping to flip in November. That contest carries enormous consequences in Congress as it could play a factor in determining the partisan majority in the U.S. House.

Said State Sen. Robert Stewart, D-Selma, “Anytime you throw the word ‘felony, in my mind, that speaks to voter intimidation.”

Ballot harvesting

Republicans in the Statehouse overwhelmingly back SB1 that applies felonies against so-called “ballot harvesting” – gathering absentee ballots of disabled and elderly people and submitting them. They say that SB1 will prevent voter fraud during the absentee balloting process.

The legislation, sponsored by Sen. Garlan Gudger, R-Cullman, passed through the supermajority GOP state Senate last week along partisan lines. It heads to the Alabama House where it will likely be subject to another public hearing before the House Judiciary Committee. There is no hearing scheduled on SB1 for next week.

“(The legislation) prevents ballot harvesters from interfering with Alabama’s absentee elections process by making it illegal to pay or to be paid by a third-party organization to pre-fill and/or collect absentee ballot applications,” said Republican Secretary of State Wes Allen, who was elected in 2022. “This practice manipulates the absentee election process, threatens the security of Alabama elections, and has no place in Alabama.”

The legislation makes it illegal to “knowingly” provide an absentee ballot that is pre-filled with voter information. Voters are required to submit their own applications except if they have received emergency treatment by a licensed physician within five days before an election.

SB1 also makes it a Class C felony, punishable by up to 10 years in prison, for a third party to knowingly receive a payment or gift for handling someone else’s absentee ballot application, such as prefilling it. It is a Class B felony for someone to pay a third party to prefill or handle an absentee ballot application. A Class B felony can land someone in an Alabama state prison for up to 20 years.

There are exceptions that have recently been added to SB1 for people who require assistance if they are disabled, blind, or are unable to read or write. Overseas voters are also exempt.

Safe, secure, rare

The measure, if adopted, would further crack down on absentee voting in a state that has more safeguards in place than a majority of other states. Alabama is one of only 14 states requiring an excuse to vote absentee, according to the National Conference of State Legislatures. A majority of states do not require an excuse. Alabama is also the only state in the U.S. that requires the voter to physically return a ballot received through the absentee voting process.

“Safe, secure, and transparent elections are the foundation of our constitutional republic,” Allen said. “As Secretary of State, ensuring free and fair elections is a top priority. Alabama votes should not be for sale. That is why I am advocating for passage of SB1.”

Researchers have long said voter fraud, in general, is rare nationwide. They also say the concept of voter impersonation is almost nonexistent.

According to former Secretary of State John Merrill, during his term in office from 2015-2023, there were only eight instances of voter fraud that led to a conviction, with six of them having to do with the absentee election procedures and administration.

Merrill said the state, with provisions in place, has been recognized by three different national organizations for election integrity, including the conservative Heritage Foundation.

“I think anything you are trying to do to enhance election security, transparency and integrity, you need to make sure it’s complimenting current law that is in existence and that it’s happening in a way that enables us to become stronger,” Merrill said. “And not in a way that you’re trying to promote a particular candidacy or a legislator or draw more attention to one over the other.”

But it’s the lack of evidence about criminal activity that is stirring critics, most of whom are outside the voting decisions within the Legislature.

Data from the 2022 shows only four Alabama counties, all of which are majority Black and vote heavily Democratic – Bullock, Lowndes, Wilcox, and Perry – with double digit percentages of absentee voting. There is no proof of voter fraud occurring in those counties, despite the higher percentage of absentee votes compared to counties that are majority white and vote Republican.

Mia Turner, absentee ballot manager in Perry County said the excuses provided for voting absentee can vary, but are mostly job-related or are due to health concerns. Perry County, at 21.6%, had the highest percentage of absentee voting during the 2022 primary. The county’s demographics are nearly 70% Black.

“For a lot of people, Perry County is limited in jobs and a lot of people do work elsewhere,” Turner said. “We get people who work in Vance for Mercedes and the parts plant between Woodstock and Tuscaloosa. There is an excuse on there (for work-related excuses outside the county), and people spend a lot of time on the roads going back and forth going to work because there are just not many jobs here. That tends to weigh on this as well.”

‘Big Lie’

Critics of SB1 also say the Alabama Republicans are following a national effort of restricting voter access based on reactions to the 2020 presidential election and the so-called “Big Lie,” spread by former President Donald Trump and his associates about widespread election fraud that cost him the election.

Almost all of the 62 lawsuits contesting the election or voting processes in nine states were dismissed or dropped due to a lack of evidence. But concerns over elections have taken root in Republican politics, where an overwhelming majority of people identified as GOP voters and who have been polled in recent years do not believe that President Joe Biden was elected legitimately.

In fact, a rising number of Republicans continue to deny the election’s outcome. According to a December poll by the Washington Post and University of Maryland, only 31% of Republicans say Biden’s win was legitimate – down from 39% in 2021. And among Republican Iowa caucus goers in January, 66% said Biden’s win was illegitimate.

“What is driving this issue is Republican fear of various demographics in society exercising their right to vote, because when they do so, Republicans lose,” said Sheena Gamble, spokesperson with the Alabama Democratic Party. “Alabama has not reported mass instances of voter fraud but because former President Trump lost and is driving Republicans to act upon his big lie, they feel the need to stack the deck and prosecute folks for helping a little old lady in a nursing home exercise her right to vote.”

Conecuh County Sheriff

Alabama State GOP Chairman John Wahl said the issue goes beyond Trump, and he is citing an absentee ballot concern in Conecuh County as an example that it’s an issue in Alabama.

“The Democrat Party is obviously out of touch with what is happening with the election process in Alabama,” Wahl said. “This is not about Donald Trump, but about making sure every single person’s vote is secure and safeguarded. We believe the election process should stand for honesty and integrity and no one’s vote should ever be stolen or usurped by illegal ballot harvesting.”

Wahl noted an election contest in Conecuh County “concerning potential misuse of the absentee voting process.”

That election, part of a circuit court case filed in December 2022, contests the outcome of the sheriff’s race won by Democrat Randy Brock over Republican Mike Blackmon by a two-vote margin, according to the canvassing board.

The civil complaint alleges Brock won thanks to two straight-party ticket ballots that were not previously determined to be votes for him. Brock also received the benefit of an absentee ballot marked as “straight party ticket” for the Democratic Party that was not recorded by electronic counters for all Democratic candidate nominees, according to the lawsuit.

The end result, according to Blackmon’s attorney, was “illegal votes deemed to be votes for Brock,” which were allowed by a canvassing board that determined Brock the winner.

There has not been an update in the case since May 26, 2023, and Brock’s attorney, J. Milton Coxwell of Monroeville, said it was up to Blackmon’s legal team to decide what to do next.

Joel Blankenship, a Hoover-based attorney representing Blackmon, did not return a call for comment.

Terrie Ryan, chairperson of the Conecuh County Republican Party, said the county’s GOP believes there was mishandling of ballots in the election, and that hopefully the court case will shine a light on what occurred.

“With as many Republicans running, we want to make sure there is election integrity coming up in November,” Ryan said.

Court challenge

The Conecuh County sheriff’s race, however, has yet to reveal the smoking gun ballot that would undo the outcome.

The lack of evidence of problems associated with absentee balloting, which could reverse election results, mirrors the overall election integrity battles throughout the country, political observers note.

“It doesn’t surprise me that there isn’t really an empirical basis for any fear about ballot harvesting in Alabama,” said Lorraine Minnitte, an associate professor at Rutgers University-Camden, and author of the 2010 book, “The Myth of Voter Fraud.”

“That’s been my experience for 20 years on studying voter fraud is that empirical reality has nothing to do with it,” she added. “That matters in the courts, and the challengers to these laws have a shot because the courts require and define what evidence is. But in a broad world, the difficulty has been trying to show the lack of something and coming up against the national narrative that people can tap into and say that they are afraid of something.”

A court challenge could be coming if the legislation is adopted. Joe Reed, chairman of the Alabama Democratic Conference, said it’s the only way to combat legislation that he says is “designed to discourage people in the civic participation” of voting.

“We’ll try to get it to the courts and kill it there, but why should we spend our time and money on that?” Reed said. “The bottom line is we spend our time and money and energy trying to undo bad things. We come to Montgomery and (Republicans) spend all of this time seeing how many folks we can hurt. What benefit does Alabama gain from such a bill? What’s the benefit? It’s unfair. But hell, that’s what we have had to deal with all our lives.”