Many states count mail ballots that arrive after Election Day. Those grace periods could go away

There will be just one Election Day for this fall’s midterm elections — Nov. 3. But voters in 14 states who cast their votes by mail will be given a grace period ranging from a day later to several weeks in which their ballots can be received and counted.

Whether that extra time should be allowed is at the heart of a case that will be argued Monday before the U.S. Supreme Court. If the court strikes down those grace periods, it will leave those states — and their voters — scrambling to adjust with only a few months before absentee ballots are sent out for this fall’s midterm elections.

The implications could extend well beyond the 14 states that give a grace period for regular ballots, depending on how the court ultimately rules. A total of 29 states allow for the late arrival of military and overseas ballots, according to the National Conference of State Legislatures and the Voting Rights Lab.

In a filing with the court, a group of state and big-city election officials cited “the risks of confusion and disenfranchisement” if mail ballot grace periods were ended suddenly in states where voters have counted on them for years.

Stuart Holmes, director of elections for the Washington Secretary of State’s office, said 127,000 ballots were received after Election Day in 2024, so voters should expect about that many ballots to be rejected if Mississippi loses the case. Washington has the longest grace period of any state, 21 days after Election Day.

If the ruling is that a ballot is invalid even if it’s postmarked by Election Day, “it might as well have never been received,” he said.

“There’s no way to resolve that issue,” Holmes said. “There’s no second chance.”

‘Election Day is E
lection Day’

The practice of counting ballots after Election Day has been a target of President Donald Trump since he sought to “STOP THE COUNT” after the 2020 election. He and his allies argue it delays results and leads to suspicions about the vote tallies. It’s part of Trump’s broader attack on most mail balloting, which he has said breeds fraud despite findings to the contrary and years of experience in numerous states.

The Republican National Committee and the Libertarian Party of Mississippi brought the lawsuit against Mississippi Secretary of State Michael Watson, a Republican, arguing that federal Election Day statutes envision a single day for casting ballots. Grace periods for receiving mail ballots — also in place in the District of Columbia and three U.S. territories — violate federal law, they argue.

“Election Day is Election Day for a reason,” Ohio state Sen. Theresa Gavarone, a Republican, said during debate over her state’s ban on the practice last year. “Allowing ballots to be delivered days after the election does nothing but hurt the integrity and credibility of our elections.”

In briefs supporting Mississippi, voting rights groups, local election officials and organizations representing military and overseas voters defend the right of states to write their own voting rules. The Constitution gives states the authority to set the “times, places and manner” of elections.

Supporters of ballot grace periods told the court that upholding the U.S. 5th Circuit Court of Appeals’ decision to strike down Mississippi’s law would threaten to create chaos and confusion in this year’s midterm elections.

“State legislatures have recognized this issue and set election deadlines that balance the interests of canvassing speed and ballot security depending on the specific needs of each individual state,” a group of local election officials and local governments told the court.

The groups said eliminating grace periods could affect ballot verification activities, provisional ballot processing, and the processing of military and overseas ballots that often happens after Election Day.

Some states already are modifying their laws

All 50 states require ballots to be cast or postmarked on or before Election Day. The 14 states with grace periods for regular ballots accept and count mailed ballots for periods ranging from a single day after the election in Texas to 21 days afterward in Washington state. Mississippi’s disputed grace period is five days.

A 30% of voters across the U.S. during the 2024 presidential election.

With the Mississippi case looming, some states have begun to act on their own.

Four states — Ohio, Kansas, North Dakota and Utah — eliminated grace periods last year, according to the National Conference of State Legislatures and Voting Rights Lab. A fifth, Minnesota, shortened its ballot deadline from the close of polls on Election Day to 5 p.m.

In signing Ohio’s law, Republican Gov. Mike DeWine — who had vowed he wouldn’t sign any more election restrictions championed by fellow Republicans — said the Mississippi lawsuit forced his hand.

“I believe that this four-day grace period is reasonable, and I think for many reasons it makes a lot of sense,” he said at the time, noting that he would prefer to veto the legislation.

But DeWine said a ruling against Mississippi would jeopardize similar laws in other states, including Ohio, and leave inadequate time to adjust.

For Adriane Mohlenkamp, Ohio’s previous grace period provided extra comfort over concerns that circumstances outside her control would prevent her ballot from counting.

“I live in a rural part of the state and sometimes our mail has to go to a larger city and then come back,” said Mohlenkamp, 48, a stay-at-home mom and volunteer in Athens who is not affiliated with either major party. “It gave me a safe feeling, because, even if I do my due diligence and return it in enough time, I can’t always anticipate what it does when it leaves my hands.”

States grapple with postmark uncertainty

Katy Owens Hubler, elections program director at the National Conference of State Legislatures, said that in some large states, it can be difficult to distribute all mailed ballots and have them returned within the allotted timeframe.

She said the postmark issue has become trickier for states after recent changes to mail processing at the U.S. Postal Service.

An updated agency policy, enacted in December, said postmarks might not indicate the first day the Postal Service receives the mail, but rather the day it was handled at one of its processing centers. Those centers can be farther away from some communities because of consolidations, a group of U.S. senators told the postmaster earlier this year.

In response to potential Postal Service processing delays, some states have proposed extending their ballot deadlines — California by three days, Virginia by five hours and Kansas by an hour, depending on the county, according to the NCSL.

Owens Hubler said informing voters of any changes resulting from the Supreme Court’s ruling in the Mississippi case will need to happen quickly.

“It’s not ideal to do it in a big election year like this year,” she said. “Voters do adapt, but if there is a change from a postmarked-by to a received-by date, that needs to be communicated and signaled well in advance.”