Frustrated by slowing mail delivery, particularly in rural areas, the Kansas legislature in 2017 passed a law to let elections officials count mail ballots that arrived after Election Day, for up to three extra days, so long as the ballots were postmarked before polls closed. Kansas politicos joined other states with such a policy in calling this a “grace period.”
“Because that’s exactly what it was,” Jamie Shew, the clerk and top elections official in Douglas County, home to the city of Lawrence, told Bolts last week. “It was providing some grace for someone who did what they were supposed to do. We wanted to make sure those ballots counted.”
The reform drew zero committee testimony in opposition. Lawmakers voted 163-1 for it. Even Kansas’ then-secretary of state, Republican Kris Kobach, a longtime champion of voter restrictions who that same year helped run President Trump’s commission to investigate election fraud, wrote a letter of support: Kansans voting by mail need a little wiggle room, he told lawmakers, as a result of the U.S. Postal Service reducing processing sites in the state.
“There was universal acceptance because it just made sense,” said Shew, who helped draft the legislation and is now in his third decade as county clerk.
This was a popular line of thought around the country, and by the 2020 election nearly half of U.S. states—blue, red, and swing alike—had adopted their own grace-period laws.
Fast forward to this year: Republican politicians nationwide now can’t stand grace periods.
This past March alone brought news that two states—Kansas among them—will repeal their grace periods; that conservative federal judges are on the brink of killing grace periods in two other states; and that Trump, who for years has falsely alleged rampant mail-voting fraud, wants to pressure the rest of the nation to reject every mail ballot that arrives after polls close.
In Kansas, the Republicans who control the statehouse passed a bill this spring to end the grace period they’d created in 2017. In elections starting in 2026, any mail ballot received after 7 p.m. on Election Day will be tossed, even if it was postmarked in time.
Governor Laura Kelly, a Democrat, vetoed the bill, but Republicans had enough votes to override her. The bill, Kelly wrote in a veto letter, would “disenfranchise thousands of Kansas voters,” and constitutes “an attack” on rural voters because mail service is often slower for them than for people in cities.
Utah Republicans adopted a similar change just two weeks before Kansas, ending their state’s grace period amid a broad crackdown on mail voting. West Virginia is considering a bill to join them. …
Category Archives: absentee ballots
NC elections, due process, and a friendly (?) amendment
Hi. Justin here. Rick Pildes just posted here about the significant federal due process problems with Friday’s state appellate opinion on the North Carolina state supreme court race.
I’ll go further: I think that the appellate decision raises a number of additional federal issues, all stemming from the fact that the only ballots challenged were early or mail ballots, despite the fact that the principal challenge (60,273 out of the 61,949 challenged ballots) has nothing to do with any invalidity in the method of voting. Instead, the challenges are based on allegedly missing voter registration data (more on that in a sec) also likely missing from unchallenged voters who went to the polls on election day. Because for purposes of whether their registrations are valid or invalid, the challenged voters and unchallenged voters are similarly situated, I don’t know why this isn’t an equal protection concern and a problem under 52 U.S.C. 10101(a)(2)(A). (There are other problems beyond these, as well – I don’t mean to be listing them all.)
But I agree with Rick that the federal due process problems are unmistakably front and center. Indeed, I think it may be even worse than he suggests.
Much of the reporting that has ventured into the weeds of these allegations says that the 60,273 challenged ballots were cast by voters who didn’t provide their driver’s license number or social security digits when registering. As Rick P. points out, that’s in part because the state registration form in the relevant period didn’t ask the voters for that info. Voters did what they were told to do, were told they were registered, and some had been voting for years. (There’s no indication anywhere in the case that any of these 60,273 voters are substantively ineligible under NC’s constitution.)
But there’s a further problem: in a passage wholly unrebutted by the majority, the dissenting opinion says that the description above just isn’t true. It’s not that 60,273 challenged ballots were cast by voters who didn’t provide their driver’s license or social security digits when registering. It’s that 60,273 challenged ballots don’t have those digits listed in the state database. Those things are NOT the same.
The dissent notes that, among other reasons, digits that are supplied but not matched to other systems aren’t kept in the state database. There are many reasons why the numbers for eligible voters may not match up, including typos by temps doing data entry, and discrepancies in how different databases store naming patterns. (All of these voters must show documentation of their identity before they vote for the first time, pursuant to both state law and HAVA.)
Put differently: some portion of these voters now presumptively disenfranchised by the appellate court’s opinion likely complied perfectly with state law. Judge Griffin apparently produced no evidence about how many voters are in this category, and how many are in the category Rick notes, in which the failure was the state’s fault and the voters did everything the state asked them to do. (On p. 32 of the dissent, Judge Hampson notes that the Board produced “evidence tending to show” that almost half of the voters likely did provide digits that aren’t now reflected in the database.)
I think that makes the due process problem that Rick P. highlighted even worse. If the dissent’s characterization of the evidence is accurate, for a set of the challenged voters, it’s not just that the rules have changed with respect to the notion that they might now, in rules shifting after the election, be held responsible for the state’s mistake. It’s that the rules have changed such that the court of appeals has ordered their ballots to be invalidated, after the election, without proof of any violation of North Carolina law.
“California elections officials rejected 122,000 ballots in 2024 election. Here’s why”
Nice look at the data in the Sacramento Bee.
Federal court finds several Texas election provisions from SB1 in 2021 run afoul of federal statutes
A long opinion from the district court in La Unión Del Pueblo Entero v. Abbott is here. Several portions of SB1 relating to mail-in voting and voter assistance were found to violate the Americans with Disabilities Act and the Rehabilitation Act. (There have been other legal issues previously adjudicated in this complicated case.) There are a lot of parties, a lot of sections of the bill in dispute, and a lot of subtlety in which parts are or are not enjoined, but it is mostly a win for the plaintiffs–for more, dig into the opinion.
“A bipartisan mail ballot bill in Nevada? It’s not as crazy as it sounds.”
Anything is possible in the Nevada Legislature — including a bipartisan bill on the politicized issue of mail ballots.
The top Democrat and Republican in the Assembly are joining forces on a bill that would require all sample ballots to be sent to voters before mail ballots are distributed. An amendment also would provide a clearer timeline for when mail ballots must be sent to voters.
Assembly Minority Leader Gregory Hafen (R-Pahrump) is the lead sponsor of AB148, and on Tuesday, Assembly Speaker Steve Yeager (D-Las Vegas) joined as a sponsor. The bill was heard Tuesday in the Assembly Committee on Legislative Operations and Elections, where it was supported by the Nevada Republican Party and progressive groups such as Silver State Voices and All Voting is Local.
Nevada Secretary of State Cisco Aguilar, a Democrat, also supports the bill.
By 10-5 vote, 5th Circuit opts not to take en banc decision that found Mississippi absentee ballots must be returned by Election Day to count in federal races
The opinions in the decision to deny the en banc petition are here, in RNC v. Wetzel. From the intro of the original panel decision, as a refresher of the issue:
Congress statutorily designated a singular “day for the election” of members of Congress and the appointment of presidential electors. Text, precedent, and historical practice confirm this “day for the election” is the day by which ballots must be both cast by voters and received by state officials. Because Mississippi’s statute allows ballot receipt up to five days after the federal election day, it is preempted by federal law. We reverse the district court’s contrary judgment and remand for further proceedings.
The principal dissent in the en banc decision is by Judge Graves:
I would grant the petition for rehearing. At a minimum, this case presents a question of exceptional importance: whether federal law prohibits states from counting valid ballots that are timely cast and received by election officials within a time period designated by state law. The substantial, if not overwhelming, weight of authority—including dictionary definitions, federal and state caselaw, and legislative history—counsels against the preemptive interpretation that the panel adopted. Moreover, the opinion conflicts with the tradition that forms the bedrock for our nation’s governance—federalism—which vests states with substantial discretion to regulate the intricacies of federal elections. Simply stated, federal law does not mandate that ballots be received by state officials before Election Day’s conclusion, and the panel’s contrary holding is erroneous.
It’s worth noting this decision formally only binds federal courts deciding cases in Mississippi, Texas, and Louisiana, but it could obviously influence how other courts think about the issue in the rest of the country (especially as far more states have late-arriving absentee ballot deadlines), and it may affect the strategy of litigants deciding whether to take the case to the Supreme Court.
Speaking of influence, here’s the lede from the San Diego Union-Tribune on another lawsuit: “Issa sues to block California from accepting mail-in ballots after Election Day.”
(It’s also worth noting this is a federal statute that sets Election Day for federal offices.)
Earlier ELB coverage is here (my look at questions about a private right of action), here (Rick H.’s take), here (Chris Geidner’s take), here (Justin Levitt’s perspective ahead of 2024), and here (on Adam Unikowsky’s take).
“Utah Was a Rare Red State to Champion Mail Voting. That Era Is Likely Ending.”
“How Wisconsin’s inconsistent voting instructions raise the risk of disenfranchisement”
Whether a voter can accurately cast a ballot can come down to some very technical issues, and for that reason, we at Votebeat are used to going down some really narrow — but important — rabbit holes.
For example, I’ve been looking into an issue lately that’s been bubbling up in Wisconsin: whether states require their county and local election officials to give voters a uniform set of instructions for absentee ballots. (I’m great at parties!)
It turns out the answer to that question is very important for your right to vote: In some states, a lack of required uniform instructions on how to cast and return absentee ballots is leading to voter confusion and sometimes disenfranchisement, disability and voting advocates say.
I was surprised to find out that in Wisconsin, the state election agency has a set of uniform instructions, but local clerks aren’t explicitly required to use them. In Arizona and Michigan, by contrast, state law requires election officials to include specific instructions on mail ballot envelopes.
Such standardization became increasingly common after the 2000 presidential election, said John Lindback, an election administration consultant who used to head the Electronic Registration Information Center, a consortium that helps check voter rolls for accuracy.
In that election, a misleading “butterfly” ballot design caused thousands of Democratic voters in Florida to mistakenly select Reform Party presidential candidate Pat Buchanan instead of Democrat Al Gore. The ensuing fight over that tight Florida contest prompted a nationwide movement toward better ballot design and more specific voting instructions, Lindback said.
The instructions now required in many states tell voters how to fill out and return their ballots. But there are significant differences in how those rules play out across the country, Lindback said….
“Universal vote by mail is popular in Utah. GOP lawmakers continue to move away from it in a revised bill.”
9th Circuit affirms limits on AZ proof of citizenship laws
Justin here. A 9th Circuit panel is out with 156 pages’ worth of opinion in Mi Familia Vota v. Fontes, the latest in the battles revolving around Arizona’s laws requiring documentary proof of citizenship to vote. There’s (obviously) quite a lot going on in an opinion this size, but it’s a pretty clear win for plaintiffs across the board, affirming most of the trial court’s May 2024 decision. To distill:
- Voters using the federal voter registration form have to be registered for federal elections when they swear to their citizenship even without additional documentary proof (that’s Arizona v. Inter-Tribal Council of Arizona). The panel here held that’s true for voters voting by mail and voters voting for President as well.
- Voters using the state voter registration form have a legal right, subject for the moment to a SCOTUS stay, to be registered for federal elections when they swear to their citizenship even without additional documentary proof (that’s a consent decree in LULAC v. Reagan, which today’s panel held valid – but on this point the decision is still subject to a SCOTUS stay). If voters (using the state or federal forms) submit documentary proof or have their citizenship confirmed through a check of DMV systems, those voters have to be registered for state elections too.
- Voters using the state voter registration form have to be registered for federal elections when they swear to their residency even without additional documentary proof.
- Naturalized citizens can’t be singled out (distinct from natural-born citizens) for citizenship checks using the SAVE database, because such a screen would not be uniform.
- Arizona can’t conduct systematic list maintenance to remove records of alleged noncitizens within the NVRA’s “pencils-down period” 90 days before an election (but can conduct such maintenance outside of the 90-day period).
- Voters who provide documentary proof of their citizenship can’t be disenfranchised if they don’t check a box on the state form affirming their citizenship (this is due to the Civil Rights Act’s materiality provision, and full disclosure – I submitted an amicus brief on this point)
- Voters can’t be disenfranchised based on their birthplace or their failure to list a birthplace (also under the materiality provision, with the same amicus brief caveat)
And the court remanded for the district court to reconsider the issue of whether the proof-of-citizenship laws were passed with discriminatory intent.
UPDATE: Foolishly forgot the obvious tie-in: the opinion should make for an even more interesting discussion at Rick’s March 4 SDP conversation w/ Adrian Fontes, Walter Olson, and Nina Perales…
Connecticut: “Arrest warrants detail charges of voter fraud in Bridgeport”
State prosecutors took a big step Friday when they charged five Bridgeport Democrats with more than 150 election-related crimes, but arrest warrants suggest the sprawling investigation into voter fraud and ballot harvesting might not end there.
The charges, which were leveled against campaign staffer Margaret Joyce, Bridgeport’s Democratic vice chair Wanda Geter-Pataky and city council members Alfredo Castillo, Jazmarie Melendez and Maria Pereira, are some of the most far-reaching allegations of election crimes in the state’s history.
The arrest warrants paint a picture of competing political camps that aggressively and illegally pursued absentee votes for Mayor Joe Ganim and Democratic primary challenger John Gomes — by forging signatures, registering non-citizens to vote, telling people how to vote, changing votes after they were cast and harvesting dozens of absentee ballots so they could be delivered to drop boxes in the city….
“Kansas bills would end grace period for mail ballots and ban ranked-choice voting”
Kansas’s two election committees are fast at work in the Kansas Statehouse this year and have already had hearings on some of the more controversial election bills being considered.
Kansas has taken on a flurry of election security bills since 2020, when President Donald Trump baselessly blamed widespread voter fraud for his defeat. Some of the laws that passed in the Statehouse fell flat in the courts, namely the prohibition of “impersonating an election employee.”
Democrats have signalled that they’re not willing to work on many of the bills being considered.
“Anything that makes voting more difficult for Kansans is going to be a nonstarter with us,” said Senate Minority Leader Dinah Sykes, D-Lenexa….
In 2017, the Kansas Legislature approved a three-day grace period for ballots that were sent before Election Day, but received by a county election office up to three days after the election. A bill that would make a hard deadline of 7 p.m. on Election Day for ballots was recommended to be passed by the Senate Committee on Federal and State Affairs despite substantial pushback from opponents….
Sen. Mike Thompson, R-Shawnee, introduced a bill that would ban ranked-choice voting in Kansas, which hasn’t been adopted by any city thus far. Current state law doesn’t have a method for ranked-choice voting outlined in statute, meaning cities couldn’t do it unless lawmakers passed a law allowing it according to the Kansas Revisor of Statutes.
Madeline Malisa, a visiting fellow at Opportunity Solutions Project, argued that ranked-choice voting has been a “nightmare” in Maine, where she lives. She said the tabulation process throws out ballots, is too complicated and increases the chance of less-popular candidates to gain office.
Maine adopted ranked-choice voting in 2018, but several Republican-led states have soured on the idea after Alaska elected its first Democrat in decades in its first ranked-choice election…..
“Despite Trump’s Attacks, Republicans Made Big Gains in Mail Voting”
Republicans made almost universal gains in mail voting during the 2024 election, eroding a key Democratic advantage in nearly every state that tracks party registration, according to a data analysis by The New York Times.
The Republican rise in the use of mail voting was almost always accompanied by a drop in registered Democrats casting a mail ballot, allowing Republicans to make significant inroads in battleground states like Pennsylvania, red states like Florida and blue states like Connecticut.
The turnaround was remarkable given Republicans’ yearslong skepticism toward mail voting, fueled by President-elect Donald J. Trump’s false claims about fraud. The method was once widely embraced by Republicans in Southern and rural states but fell out of favor during and after the 2020 election as Mr. Trump and his allies argued that the only safe way to vote was in person on Election Day.
Making up ground in mail voting was a critical goal for Republicans heading into last year’s election, as G.O.P. strategists worried that the party had created an opening for Democrats. Election experts in both parties have long believed that it is best to bank votes early, shrinking the universe of voters to target on Election Day and limiting the effects of bad weather or other unforeseen circumstances on turnout.
Mr. Trump, apparently cognizant of the Republican warnings, softened his stance in the final months of the 2024 election but still declared that he wanted “single-day voting.”
Coupled with a Republican surge in early in-person voting, the G.O.P. improvement in mail voting cut heavily into what had been a major strategic advantage for Democrats. The development is yet another warning sign for the Democratic Party as it debates its failures and looks to the 2026 midterm elections. With dwindling structural advantages in addition to a fraying coalition, Democrats will need to improve their Election Day get-out-the-vote efforts, particularly among low-frequency voters…
Happy California official canvass deadline day, to all who celebrate
December 5 (30 days after election day) is the final final day for certifying elections in California. Usually, many California counties have certified before today. But this year, as a one-time only change responding to some 60,000 ballots left uncounted in 2022 due to signature issues, the state legislature left a longer period for voters to cure those mistakes, effectively precluding certification for most counties until December 3.
Paraphrasing Natalie Adona (who was paraphrasing Doug Chapin, who was paraphrasing any number of election gurus past and future): fast, accurate, cheap: pick any two.