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Mississippi’s Ballot-Harvesting Ban Disenfranchises Disabled Voters, Lawsuit Says

Michael Watson at a election rally
Disability Rights Mississippi, the Mississippi Center for Justice, the American Civil Liberties Union and the Southern Poverty Law Center filed a lawsuit challenging Senate Bill 2358 on May 31, 2023, arguing that the anti-“ballot harvesting” law diminishes access to the ballot for disabled Mississippians. Mississippi Secretary of State Michael Watson, pictured, backed the law. Photo by Ashton Pittman

William Earl Whitley, a Black, disabled U.S. Army Veteran who lost both legs in Vietnam, often relies on neighbors in Okolona, Miss., for help with his daily activities—including collecting and mailing his absentee ballots in at election time.

In the past, Okolona residents Yvonne Gunn, 73, and Mamie Cunningham, 83, have helped collect and mail his ballots for him. But after the Mississippi Legislature passed and Gov. Tate Reeves signed Senate Bill 2358 into law this year, the 78-year-old veteran fears they could face criminal penalties.

The anti-“ballot harvesting” law penalizes Mississippians who collect and transmit mailed absentee ballots on another person’s behalf. A coalition of voting rights groups is now asking a federal court to block the law on behalf of the three Okolona residents along with Disability Rights Mississippi and the League of Women Voters of Mississippi.

The Mississippi Center for Justice, the national and state branches of the American Civil Liberties Union and the Southern Poverty Law Center joined forces with DRMS to file the lawsuit in the U.S. District Court for the Southern District of Mississippi on Wednesday.

The plaintiffs said in a press release Wednesday that S.B. 2358 “significantly diminishes access to the ballot for Mississippians with disabilities” in future elections.

The complaint says Cunningham and Gunn have long helped register and cast absentee ballots. It says Whitley, who lost his legs after exposure to Agent Orange, “suffers daily from phantom pain.”

“Mr. Whitley has relied on both Ms. Cunningham and Ms. Gunn in the past to assist him in voting, including the mailing of his completed absentee ballot,” it continues. “Mr. Whitley wishes to continue to have them assist him but he does not want to put them at risk of facing criminal penalties.”

“That right to assistance applies to all aspects of the voting process—from registration, to casting a ballot, to having that vote counted properly—and regardless of the method by which the voter lawfully chooses to vote,” the plaintiffs stated in the complaint filing.

According to the Centers for Disease Control, 37% of Mississippi adults are disabled.

The new ballot-harvesting law is set to take effect on July 1. Individuals who disobey the legislation will be subject to a misdemeanor charge and face up to a year in prison or a fine of up to $3,000.

The defendants in the lawsuit are Hinds County Attorney Gerald A. Mumford and Chickasaw County Attorney Elizabeth Ausbern, who will enforce S.B. 2358; Mississippi Attorney General Lynn Fitch, who defends the constitutionality of Mississippi statutes; and Mississippi Secretary of State Michael Watson, the state’s chief elections officer who issues guidance on the absentee voting process.

“Happy to learn today of Gov. Reeves’ support of our efforts to ban ballot harvesting,” Watson wrote in a tweet on March 22.

S.B. 2358 specifies five exceptions that allow election officials, employees of the U.S. Postal Service and individuals authorized by federal law to handle a voter’s ballot. Additionally, family and household members, along with the caregiver of the person to whom the ballot was mailed and common carriers that transport “goods to from one place to another for a fee” are also permitted to carry another voter’s ballot.

“It blocks anyone—including a friend, neighbor, or volunteer from a voter services group—from helping a Mississippi voter submit an absentee ballot unless they are an election official, family member, or caregiver,” the voting rights groups said in their statement Wednesday. “Since the term caregiver isn’t defined, staff of health care institutions are also chilled from helping residents with voting.”

The complaint warns that voters “may no longer rely on social workers, voter services organizations, neighbors, or even trusted friends to assist them in returning their mail-in absentee ballots without exposing them to criminal liability.”

After Gov. Reeves signed the bill into law on March 22, he claimed that “national Democrats are pushing for a federal takeover of elections and are advocating to push ballot harvesting on states all across the U.S.” He was referring to H.R. 1, a failed voting rights bill Democrats proposed in 2021 that would have allowed voters in all states to designate a third party to return “a voted and sealed absentee ballot to the post office, a ballot drop-off location, tribally designated building, or election office.”

In 1982, the U.S. Congress amended the Voting Rights Act of 1965 to allow “a person of the voter’s choice” to help people who are disabled or illiterate cast their ballots with one exception: “the voter’s employer or agent of that employer or officer or agent of the voter’s union” cannot provide assistance. The plaintiffs argue that S.B. 2358 infringes the VRA and should be considered unlawful.

“That right to assistance applies to all aspects of the voting process—from registration, to casting a ballot, to having that vote counted properly—and regardless of the method by which the voter lawfully chooses to vote,” the complaint says.

The plaintiffs wrote that Disability Rights Mississippi and the League of Women Voters are diverting already-limited resources to educate voters and their members about the new law.

ACLU Staff Attorney Ming Cheung said the organization will continue supporting Mississippi voters to ensure they are able to cast their ballots.

“Every voter in the state of Mississippi has the right to participate in their democracy,” Cheung said in a press release. “Voting in Mississippi is extraordinarily difficult, and many voters experiencing disabilities and other challenges must rely on their friends and community members for assistance with absentee voting.”

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