Updates on Absentee Ballot Processing in Competitive States

Throughout the drafting period of our Survey on Absentee Ballot Processing, things were in constant motion—court battles, state legislatures in special sessions, and governors around the country issuing executive orders at a breakneck pace to deal with the ever-changing landscape of the pandemic. In the week since my paper’s release, there have been developments and updates as to the absentee process and procedures in the states we highlighted. This article is the main update to the paper as we’re in the closing week before November 3rd, the final day of the election.

For another look at 2020 swing states, specifically through the lens risks that each of their absentee processes may entail, our Swing Dance Analysis on TrustTheVote Project blog is a valuable resource; it is being updated on a weekly basis through the election season (and that includes the final phase: counting), and contains a wealth of information with additional commentary from OSET’s Global Director of Technology Development & Open Standards, Eddie Perez.

In this article, I go state-by-state to highlight developments that may have changed the paradigm of absentee voting in the run-up to the final Election Day, and what their implications may be. If a state is not included in this article, but was discussed in my larger paper, it’s due to a lack of significant changes in the week since the paper’s publication.

To stay in the loop, as things may very well change again before Tuesday November 3rd or in its aftermath, follow us on Twitter at @OSET, where we actively report on election process/technology issues as they develop.

Arizona

A few changes have occurred in Arizona during the past week with regards to absentee voting and the conduct of their elections. According to a new ruling by the 9th Circuit Federal appeals court, a voter registration extension granted by a lower court that changed the deadline from October 5th to October 23rd was cut short, with the new deadline as October 15th.

Maricopa County will begin processing ballots on Tuesday, October 27th, to lessen the load of ballots requiring processing on or after Election Day. As we are coming closer to the end of the early voting period, the ability to process ballots early will be crucial in terms of getting the certified results of the election as soon as possible.

Florida

As absentee ballots pour into Florida, over 12,000 already require ‘cures’, meaning action must be taken by voters to correct any ballot errors in order to be counted. Advocacy groups such as Common Cause have been working tirelessly to call voters whose ballots were held up, and advise them on the steps to take in order to ensure their ballots are counted.

The issue of ballot rejection is not merely a Florida problem; upwards of one million ballots could be rejected this election— many of them could have been counted if voters knew the cure process in their state.

Maine

On October 24th, Maine’s Supreme Court rejected a lawsuit which hoped to extend the ballot return deadline to 10 days after election day so long as they’re postmarked by November 3rd; the Court ruled that ballots must be returned by the end of Election Day to be counted.

Ballots will begin being processed in the state on 9 a.m. on Election Day. According to Michael Bond, registration and elections deputy director of Aiken County, Maine, the process remains relatively unchanged from past years— just more absentee ballots to count.

Michigan

In late-summer, a state judge extended the deadline of absentee ballot returns to two weeks after Election Day, so long as ballots were postmarked by November 3rd. Just this past week, a Michigan appeals court overturned that extension, and declared that ballots must be received by 8 p.m. on election day to count.

Nevada

There are not many procedural updates in Nevada, but there is a new lawsuit filed by President Trump’s reelection campaign and the state Republican Party aiming to halt the early tabulation of mail-in ballots until “a meaningful election observation plan can be put in place.” The request was initially denied, but the judge decided to hear their arguments in the coming week.

New Hampshire

The New Hampshire Deputy Secretary of State David Scanlan has been advising voters to turn in their ballots as soon as possible, noting that even though the return deadline has not come to pass, voters mailing their ballots may not have them be counted if they arrive too late. This is New Hampshire’s first year with widespread ballot drop boxes, so voters will have the ability to leave their ballots there for near-instant delivery to election officials.

There is also controversy brewing within the state over ballot access and the potential for large-scale rejections. Voters may not have been aware when requesting an absentee ballot that they needed to sign their name under ‘Physical Disability’ to be counted as a COVID-19-related absentee request. Additionally, some of New Hampshire’s biggest and most diverse cities have not been contacting potential voters about errors in their absentee requests.

North Carolina

North Carolina has been the focus of many developments in the past weeks. There are court challenges regarding many aspects of their election administration, and one that could end in the Supreme Court. A federal court recently upheld the ballot return deadline extension of November 12th against a lawsuit by President Trump’s reelection campaign. The campaign is now appealing that decision up to the Supreme Court.

There has also been a lengthy legal battle over cure provisions in North Carolina; ballot curing was halted in the state as a result from October 4th until October 19th. The state’s board of elections declared that the legal issues were resolved on the 19th, and counties returned to informing voters on how they could fix issues pertaining to their ballots. This delay sets the curing process back two weeks, so elections officials will be working double time in order to reach out to as many voters as possible to fix their ballots.

On October 14th, a federal judge ruled that absentee ballots in the state must have a witness signature in order to be counted. The order barred any ballots previously set aside for lack of a witness signature from being cured or counted, which directly counters a previous state order.

Ohio

The ballot return deadline is quickly approaching, and in Ohio, there are worries that the USPS has been too slow in their delivery of election mail across the state. The standard for first-class mail is 95% on time, but in most of Ohio, this rate has fallen to 82.1%, meaning almost 20% of mail is arriving late. USA Today conducted a mail test within the state, and found that there is significant risk of late-mailed ballots not making it in time to be counted.

Some printing companies contracted by the state to create ballots have also “failed to meet expectations to deliver the absentee ballots on time when early voting began on Oct. 6.” According to the Secretary of State, only 7/16 counties that utilized private vendors to create their ballots are still using their services; the rest have moved to in-house production. This delay only adds to the potential for ballots not to make it to voters in time.

Lastly, almost 50,000 voters in the state were found as of October 9th that were sent incorrectly printed ballots. Corrected ballots were created, but instances like these could increase voter confusion and result in accidentally rejected ballots.

Pennsylvania

In a recent Supreme Court ruling, the justices held that ballots may be counted in Pennsylvania even if they arrive after Election Day. They may arrive as late as the Friday after Election Day, provided they are postmarked on or before November 3rd. This means that ballots arriving late due to any number of reasons, including potential delays through the USPS, will still be counted.

Texas

On October 23rd, the Texas Court of Appeals ruled that voters who contract COVID-19 and make an emergency absentee ballot request must provide a doctor’s note in order to qualify. This overturned a lower court ruling; the appellate court ruled “that not requiring a note “would change the longstanding requirements governing late mail-in ballots and risk voter confusion”.

Moreover, Texas’ State Supreme Court ruled that Governor Greg Abbot’s order of only one ballot drop box per county may remain in place while they review the case and order before them in the coming days. This stay was granted within hours of a Texas 3rd Court of Appeals ruling which struck down the Governor’s order for infringing on the right to vote, and the potential to increase lines and the spread of COVID-19. This is a quickly developing story, and we will be keeping tabs on its progress.

Wisconsin

The Supreme Court recently weighed in on a case involving a ballot return deadline extension in Wisconsin. They ruled that mail-in ballots received after election day may not be counted, in contrast with their ruling last week in Pennsylvania permitting that exact practice. Chief Justice John Roberts acknowledged this in the decision, writing “Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin”.