A long-promised directive from Wyoming Secretary of State Chuck Gray came Wednesday when he told the state’s 23 county clerks they should not provide ballot drop boxes for the upcoming 2024 election.
In a two-page letter, Gray announced that he’s rescinding the 2020 directive issued by former Secretary of State Ed Buchanan, which explicitly allowed the use of drop boxes in Wyoming elections because of COVID-19 concerns. These boxes were offered in certain locations to voters during the 2020 and 2022 elections.
“Given the differing interpretations of my predecessors’ support for drop boxes, I want to be unequivocally clear: I do not believe drop boxes represent a safe, secure or statutory basis for absentee voting,” Gray wrote. “For this reason, they should not be used in the 2024 election and beyond.”
Gray did not respond when asked by Cowboy State Daily if he would consider recommending Attorney General Bridget Hill take legal action against counties that continue to offer ballot drop boxes in the upcoming election. His letter also stops short of explicitly banning their use.
Platte County Clerk Malcolm Ervin, who’s also president of the Wyoming County Clerks Association, said Gray gave him a call Tuesday night to inform that the letter would be coming the next day. As a result, the 23 county clerks held a meeting Wednesday afternoon to discuss the matter, after which they issued a formal statement in response.
In short, the clerks disagree with Gray and believe it's within the discretion of each clerk to determine if drop boxes are legal and a right fit for their election.
“Our great state offers a myriad of differences from one corner to the next, and for that reason a blanket solution does not always serve those distinct populations in the most practical manner,” the clerks wrote in their response.
When speaking to Cowboy State Daily following the meeting, Ervin said he’s aware of eight counties at this point that still plan to offer drop boxes despite Gray’s directive, but added this number could still increase or decrease before election day.
Julie Freese, Fremont County clerk, told Cowboy State Daily prior to the meeting that her county planned to offer the boxes this election.
What Does The Law Say?
Ballot drop boxes aren’t specifically addressed anywhere in state law. W.S. 22-9-113 states that each qualified elector shall have their ballots “delivered to the clerk” in their county, but makes no closer reference than that. The clerks argue that, “Without judicial interpretation or legislative clarity, we continue to hold our interpretation as the same.”
“As the chief election officers of our respective counties, we are consistently listening to the concerns of our constituents,” the clerks wrote. “The voices of our constituents as a whole help guide our decisions on this, and many other, important election administration decisions.”
Gray argues that a strict interpretation of the law should be taken on election code. He finds the fact that certain counties are allowing drop boxes is “problematic” as the state election code is supposed to be applied uniformly throughout the state.
“Consistent interpretation of the election code, not interpretation based on reaching a preset conclusion, is pivotal,” he wrote.
Ervin said Buchanan’s directive did not initiate the first use of ballot drop boxes in Wyoming and that they were used in certain counties for a long time prior to 2020. During the 2022 election, seven counties used the boxes.
11th Hour?
Only about a month and a half remains before early voting begins in Wyoming for the public at large. Ervin said certain counties had already sent out letters to printers with instructions about their drop boxes by the time Gray sent his letter out.
Although he described Gray’s letter as “cutting it close,” in regard to the timing of the upcoming election, Ervin also doesn’t believe it would have made much difference if it had been sent a few months earlier.
“If it had been sent out earlier there would have been an opportunity to talk about that more, but I wouldn’t say it was the 11th hour,” Ervin said. “Earlier would have been better.”
The Boxes And Gray
Gray’s stance on the issue of ballot drop boxes was hardly a mystery beforehand as he made banning them a hallmark promise of his 2022 campaign.
During the campaign, Gray even hosted free showings of “2000 Mules,” a controversial movie that relied on questionable evidence to argue that drop boxes had led to the 2020 presidential election being rigged.
Gray’s Wednesday letter stops short of trying to ban drop boxes altogether through internal rulemaking, but makes it clear he finds them already illegal under Wyoming law. He does not find the boxes a safe or legal mechanism for delivering an absentee ballot.
Further, Gray argues that since most Wyoming counties don’t use the boxes, it shows that the people of Wyoming don’t want them.
“Instead of writing off the public’s fears and using worn-out mainstream media-driven slogans like ‘misinformation,’ I believe you should listen to their concerns,” Gray wrote. “Listening is paramount to election integrity.”
Ervin disagreed and said just because a county doesn’t use them doesn’t mean they find them to be illegal.
“I would hate to say just because a county is not using one means they disagree with its use,” he said.
Many proponents of the boxes argue they make it easier for voters to turn in their ballots and participate in elections. Farther right conservatives like Gray want more restrictive measures put in place for elections and argue the boxes operate as a vehicle for election fraud.
The clerks disagree that ballot drop boxes are illegal.
“We hold that the use of ballot drop boxes as a method of ballot delivery is safe, secure and statutorily authorized,” the clerks wrote.
Although Gray argued that the boxes are “unattended” and “unstaffed,” Ervin said every drop box used during the 2022 election in Wyoming was under 24/7 camera surveillance. He also stressed that not every ballot turned in at ballot drop boxes is automatically accepted.
As far as the possibility of being sued for offering the boxes, Ervin said that’s a risk the clerks face on a myriad of issues every election.
“I always prepare for that inevitability,” he said.
Leo Wolfson can be reached at leo@cowboystatedaily.com.
