Mark Joseph Stern for Slate:
Florida law also allows supervisors to set up discretionarydrop boxes outside locations that qualify as early voting sites but aren’t being used for that purpose. So, for instance, supervisors can place drop boxes outside libraries, courthouses, and community centers that could be used for early voting but weren’t this year. Many supervisors have already set up these discretionary drop boxes, and they’ve proved extremely popular. By providing enough drop boxes to meet demand, they have avoided appalling scenes like those in Texas, where voters have waited in endless, snaking lines to place their ballots in the single drop box allowed per county.
On Wednesday, however, Secretary of State Laurel Lee tried to shutter a large number of both mandatory and discretionary boxes. In guidance sent to election supervisors and obtained by Slate, Brad McVay, general counsel of the Florida Department of State, imposed onerous new drop box regulations. McVay announced that mandatory drop boxes must be staffed by election officials at all times, and that these officials must ensure that each voter has signed and sealed their ballot envelope. He also declared that discretionary drop boxes may only remain open during early voting days and hours.
This guidance, if implemented, would force dozens of counties to close hundreds of drop boxes every day and remove others altogether. Florida’s counties do not have sufficient personnel to staff mandatory drop boxes 24 hours a day, or to devote the number of staffers necessary to screen each voter’s ballot. So supervisors would have to close these mandatory drop boxes for at least part of each day. Further, counties that use 24-hour discretionary drop boxes would have to shut them until Monday, when early voting begins. Then, starting Monday, they would have to either close these boxes early or keep them closed permanently. The result would be an abrupt and drastic contraction in the number of drop boxes available to Floridians.
But there’s a problem with McVay’s guidance: It has no legal basis. Florida law does notrequire mandatory drop boxes to be staffed at all times; it merely says that these boxes must be “secure.” As Ron Labasky, legal counsel for the Florida Supervisors of Elections association, told the Tampa Bay Times, there’s no definition of “secure” in the statute. Instead, the law leaves security “within the discretion of the supervisor.” And there is no legal reason why monitoring by 24-hour video or certified volunteers does not count as “secure.”