by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
I spoke today at the General Assembly in favor of S326, entitled “Election Day Integrity Act.” The bill would return the deadline for county boards of election to receive absentee-by-mail ballots to 5:00 PM on election day. The deadline over the past decade has been three days after election day if the ballot container envelope is postmarked by election day.
Here is my prepared testimony for the Senate Redistricting and Elections Committee hearing on the bill.
I am speaking in support of returning the deadline for county boards of elections to receive absentee by mail ballots to 5:00 PM on election day.
The reliance on postmarks under current law is problematic for several reasons. We know of problems of ballots returned without a postmark or with an illegible postmark. We know that the State Board of Elections felt compelled in Numbered Memo 2020-22 to instruct county election boards to hunt down postal workers or commercial carriers to try to figure out when a ballot was mailed. We saw county election board hearings in 2020 during which the Paul Newby and Cheri Beasly campaigns argued over whether a ballot was “in the mail stream” and should be counted or not. We also saw at least one instance, in Wake County, when a postal worker had to testify that he or she had stamped the wrong date on absentee ballot container envelopes*[see update below].
In addition, as Judge William Osteen note on October 14, 2020 in Moore v Circosta and Wise v NC State Board of Elections there is no statutory definition for postmark. That leaves the postmark requirement under current law vulnerable to lawsuits.
Also, let’s not hide in the false belief that current law guarantees that everyone will have their absentee by mail ballot counted. According to absentee ballot data compiled by the NC State Board of Elections, even with a deadline of 9 days after election day imposed by a lawsuit settlement, 813 ballots were not accepted in the 2020 general election due to their being “returned after deadline.” Putting a ballot in the mailbox on election day under current law is no guarantee that a voter’s ballot will be counted and it is a disservice to voters to tell them otherwise.
North Carolina should rejoin the majority of other states by returning our deadline to receive absentee ballots to election day.
Because there was little time left in the hearing, the period for testimony was cut from two minutes per speaker to one, so I did not have time to read the paragraph starting with “the reliance” during my testimony.
Much of the information in my testimony is included in an article I wrote back in March proposing reforms along the lines of those in the bill. Data on absentee ballots “returned after deadline” came from the North Carolina State Board of Elections. See page 64 of Moore v Circosta and Wise v NC State Board of Elections for Judge Osteen’s comment about a lack of a statutory definition for postmark in North Carolina Law.
The Senate Redistricting and Elections Committee favorably reported S725 by voice vote. Its next stop is the Senate Rules Committee before consideration by the full Senate.
*UPDATE: The mistakenly postmarked ballots in Wake County that the postal service was able to catch were delivered to the county board of elections by the postmaster and the board of elections was informed in the hearing by board staff, not the postmaster (WRAL):
A third batch of five had to be reviewed because a postal worker at one office used the wrong date stamp on them. They were hand-delivered to the county elections office by the postmaster, who explained what happened, and the board approved them.