John Locke Update / Research Brief

It is time to end absentee ballot postmark games

posted on in Government Reform, Law & Regulation, Legal Update
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  • North Carolina law currently allows ballots to be returned up to three days after election day if postmarked by election day
  • The delay allowed with the postmark rule creates confusion and opportunities for mischief
  • Those who vote by mail should submit their ballot by election day

When should election officials receive your ballot? For most voters, the answer is easy: election day or (in the case of early voting) before.

For voters submitting their ballots by mail, however, the functional deadline is three days after election day. That different treatment of mail ballots creates problems for voters, candidates, and election officials. It should be corrected.

What is the current law on the return deadline for absentee ballots?

North Carolina law (GS 163-231.(b)) requires that the county board of elections receive ballots “not later than 5:00 p.m. on the day of the statewide primary or general election or county bond election.”

There are currently three exceptions to that deadline:

  • If federal law requires a different deadline
  • If the voter is uniform military or lives overseas
  • If the ballot is postmarked by election day and arrives at the county board of elections within three days of election day

The first reason is required by the Supremacy Clause of the US Constitution, and the second is a reasonable accommodation to the vagaries of military schedules and international mail.

The third exception, that of ballots being accepted up to three days after the election if postmarked by election day, appears to be a reasonable attempt to let absentee-by-mail voters cast their ballots on the same day as those who vote in person. Nevertheless, it creates problems and confusion for voters and election officials and undermines confidence in the integrity of our elections.

Confusion, conflict, and “postmark games”

The 2020 election gave examples of how the three-day postmark exception creates confusion and conflict.

Postmarks are required for ballots that election officials receive after election day because they need to know that those ballots were not mailed after initial election results are known. Sometimes, however, there are problems of ballots received without a postmark or with an illegible postmark. The State Board of Elections instructed county boards receiving ballots without legible postmarks to “conduct research with the USPS or commercial carrier to determine the date it was in the custody of USPS or the commercial carrier” (Numbered Memo 2020-22).

Allowing a three-day delay with a postmark also creates confusion for voters and election boards.

After Paul Newby’s razor-thin victory over Cheri Beasley in the NC Supreme Court race for chief justice last November 3, both campaigns lodged complaints with county boards of elections about ballots they believed were inappropriately counted or not counted. Some of those complaints concerned the postmarking of ballots that came in after election day.

One example was the subject of argument from both campaigns at a meeting of the Cleveland County Board of Elections last December 7 about the ballot of Monica Barker:

Counsel for Candidate Beasley asked the Board to take judicial notice of the fact that a ballot received by November 5 must have been placed in the mail by November 3, and that Barker’s ballot must have been placed in the mail stream, if not formally postmarked, by November 3. See generally N.C. R. Evid. 20l(c). Since the ballot must have been placed in the mail stream by November 3, counsel argued, the ballot should have been counted.

Counsel for Candidate Newby argued that the ballot was not postmarked on or before election day and was received after election day, and the Board was therefore correct not to count it. Counsel further argued that attempting to ascertain when a piece of mail was likely placed into the mail stream presented a slippery slope, and that doing so exceeded the Board’s statutory mandate.

The board eventually voted not to count Barker’s ballot.

Then there is the plain silliness the postmark exception creates, such as when a small batch of ballots had to be reviewed by the Wake County Board of Elections because a postal worker had stamped the wrong postmark date on them:

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.

Don’t change the deadline, but remove the exception

So, how can legislators fix this problem?

The good news is that state law already has the correct deadline in place: 5:00 p.m. on election day. The General Assembly simply needs to strike the 3-day exception (GS 163-231.(b)(2)b) from that part of the law. Military and overseas ballots would not be affected.

Requiring absentee ballots to be received by election day would put North Carolina in the norm on absentee ballot deadlines. According to the nonpartisan National Conference of State Legislatures, 32 states, including all-mail states like Oregon and Colorado, require election officials to receive absentee ballots on or before election day. The change would also remove the problem of how to handle mail-in votes with no legible postmark on them.

To make sure that voters do not inadvertently submit their ballots too late to make the election-day deadline, officials must do two things. First, election officials must inform absentee-by-mail voters of the election-day deadline, both through public information campaigns and by conspicuously noting the election-day deadline on absentee ballot container envelopes.

Second, the General Assembly should move up the deadline for requesting an absentee ballot so that all ballots reach voters sooner. GS 163-230.1.(a) currently states that county boards of elections must receive absentee ballot requests “not later than 5:00 P.M. on the Tuesday before the election.” That text should be changed to “not later than 5:00 P.M. on the third Monday before the election.” That change would give voters ample time to request, vote, and return their absentee ballots by election day. That change would be in line with the US Postal Service’s recommendation that voters request ballots at least 15 days before election day.

For clarity and to reassure voters about the integrity of absentee-by-mail voting, North Carolina should require that regular absentee ballots be received by election day.

As Director of the Civitas Center for Public Integrity at the John Locke Foundation, Andy focuses on government compliance with the law and best practices, particularly regarding election policy and law. He researches and writes on public and election integrity,… ...

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