When a federal judge in New York ordered the US Postal Service earlier this month to prioritize mail-in ballots, a Postal Service spokesperson promised the agency was “fully committed” to ensuring the timely delivery of election mail. Two other federal judges have issued similar injunctions against the USPS. As the November election gets closer, ballot postmarks are in the spotlight.
Officials across the country are still scrambling to prepare for the flood of mail-in ballots during the pandemic. And one thing is clear—ballot postmarks will remain a challenge for voters and local clerks alike. Despite recent court orders, some local clerks may face a gray area around whether to count a ballot that arrived after Election Day without a legible postmark. Was that ballot cast by Election Day and simply working its way through the Postal Service? “Watch for postmarks to become the new hanging chads of 2020,” Barton Gellman wrote in The Atlantic.
State laws vary significantly when it comes to ballot postmarks and deadlines. That variability, plus the sudden uncertainty that changes at the USPS have injected into election season, contribute to voters’ uncertainty around mail-in ballots: How late can I drop my ballot in the mail and still have my vote counted? What do my state’s deadlines mean, if they don’t guarantee that my ballot makes it to the election office in time? Can I trust USPS to handle my ballot?
More states this November—18 total—will accept mail-in ballots received days later with a postmark by Election Day. But US Postal Service workers don’t postmark all mail. In Wisconsin’s April primary, the US Supreme Court issued a ruling the day before the election ordering clerks to accept ballots postmarked by Election Day. But when ballots arrived without legible postmarks, local clerks weren’t sure whether to accept them. The Wisconsin Elections Commission days later issued guidance on counting ballots and stated they “may not necessarily contain a postmark” as a result of USPS policy. A federal judge last week extended Wisconsin’s receipt deadline six days after Election Day, if postmarked by November 3. “While the Legislature would opt to disregard the voting rights of these so-called procrastinators, Wisconsin’s election system sets them up for failure in light of the near certain impacts of this ongoing pandemic,” US District Judge William Conley wrote in his strongly worded order.
Conley also acknowledged the problems around ballot postmarks in April. He suggested that election officials err on the side of accepting ballots without a clear postmark unless given a reason to suspect it was filled out after Election Day—but the ambiguity relies on local clerks to use their discretion on whether or not to count someone’s vote.
Wisconsin is far from the only example of a state where the capacity, practices, and competence of the postal service could impact election results. A group of voters and political candidates from New York sued President Donald Trump and Postmaster General Louis DeJoy over USPS funding to try to ensure their ballots get counted in the November election. Federal judges since then have issued injunctions to stop any funding cuts to USPS or operational changes. But New York’s history of mail delays and USPS mistakes may indicate that one week isn’t enough time to guarantee a mail-in ballot gets to election offices.
“A flurry of steps taken by DeJoy all but guarantee that thousands upon thousands (if not millions) of ballots will simply not reach their destinations on time, will likely lack postmarks that are required by state law,” the complaint said. One plaintiff, Kathy Rothschild, currently lives in Costa Rica but is a registered voter in New York. The lawsuit said that it currently costs $72 to mail an envelope to the US. “Because of the travel time involved, if USPS is too slow, it is very possible that—and beyond Ms. Rothschild’s control—her ballot will not reach the New York City Board of Elections in time to be counted, even if she mails it long in advance of the election.” The complaint said USPS during the New York primary “made herculean efforts” to deliver more than 30,000 absentee ballots within the next day. Many New York residents have requested their mail-in ballots and have yet to receive them weeks later. And without ballot tracking—a way for voters to automatically receive updates on where their ballots are—they’re left in the dark about whether these ballots will make it to their homes in time to vote.
Some states’ USPS workers are more prepared than others. In Washington, which has been holding all vote-by-mail elections since 2011, postal workers are taught to prioritize mail-in ballots and place postmarks on them as soon as they arrive. “Every year they kind of beat it into us,” says Ryan Harris, president of the Washington State American Postal Workers Union.
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Currently 17 states provide prepaid postage on mail-in ballots permanently. Another seven states plus DC will pay for postage on mail-in ballots for the November election—and while prepaid postage limits the burden on the voter, it also adds another layer of complexity into processing mail-in ballots in states where they’re still a novelty. Ballots with prepaid postage should be classified as first-class mail, the same as ballots with stamps attached by the voter, but there’s no guarantee all USPS workers will postmark them all.
The federal judge in the New York suit ruled that local clerks must count ballots that arrive within a week after Election Day, even those missing a postmark. While the order is an important step to ensuring fewer voters are disenfranchised by factors beyond their control, New York state officials appealed the ruling and said it would overburden local clerks. Without comprehensive ballot tracking, or a simple policy to send a mail-in ballot to all registered voters, these court directives are difficult to implement or oversee. It’s unclear whether these court rulings will be enough to guarantee that USPS workers give the attention, and timeliness, that votes by mail deserve.
Sightline Institute is a 501(c)3 non-profit organization and does not support, endorse, or oppose any candidate or political party.
Hayat Norimine, research contributor, is a freelance writer who grew up in Washington on the border of Idaho. She previously covered city halls and politics for The Dallas Morning News, Seattle Met magazine, and The Daily News in Longview, Washington. She has an MA in journalism from the Medill School of Journalism and a BA in English from the University of Washington. For Sightline, she researches and writes about democracy reform and elections issues and reports on fossil fuel proposals along the Thin Green Line.