The latest concern raised by the Trump campaign about mail-in voting is that some states run by Democrats will allow votes to be cast and counted after Election Day.
Specifically, Hogan Gidley, the national press secretary for the Trump campaign, warned that Nevada legislators have created a loophole that would allow voters to “wake up on Wednesday morning, see that they don’t like the results and then go drop their ballots in the mail,” and that those votes would be counted.
But Gidley is exaggerating the potential for what he called “massive fraud” in part because his concern is based on the faulty premise that the U.S. Postal Service does not postmark ballots with prepaid postage. It does, though there are “isolated incidents” of “some ballots not being postmarked,” as a Postal Service official recently explained in a government report.
Wayne Thorley, Nevada’s deputy secretary of state for elections, told us more than 450,000 ballots votes were cast via prepaid mail-in ballots during the primary election in June, and all of them included a postmark. In fact, more than 5,000 ballots were rejected statewide because they were postmarked after June 9 primary, he said.
Gidley made his remarks in an interview with CNN’s Michael Smerconish on Aug. 8.
Gidley, Aug. 8: I mean, listen, here at the campaign, we are concerned about voter fraud in this election, in part because in so many states Democrats are now suing to allow votes to come in after Election Day. Nevada is a great example of that and so when you’re talking about the potential for fraud, Nevada is going to be the poster child for it in this way. When they are going to send out 2 million ballots in the mail to their voters, they’re also putting out envelopes that are prepaid with postage already on them.
Now, the post office doesn’t date those with a postmark because they’re already prepaid. That means anyone could wake up on Wednesday morning, see that they don’t like the results and then go drop their ballots in the mail. It won’t receive a postal date stamp on it and so it has three days by Nevada law to actually get to the — to the location of the courthouse and then to be counted.
That is the potential for massive fraud. Not to mention the fact if you mail it in before the date of the election and it is postmarked with a date, they still give you several days after that, seven days in fact, for it to count toward the candidate you want too. So the potential for the election to change days later in Nevada is very real and that’s one of the things we’re most concerned about.
Nevada is among several states that have changed state law to expand mail-in voting in response to the coronavirus pandemic. As they did in the primary, Nevada lawmakers passed legislation in early August to send mail-in ballots to all registered voters. And those ballots will come with return envelopes that include prepaid postage.
According to Nevada law, in order to be counted, ballots must be postmarked on or before the day of the election and received by the elections clerk not later than seven days after the election. (Section 20.1b). Although most states require that absentee or mail-in ballots be received by the close of Election Day, Nevada is among the 18 states that allow ballots received in the days after the election to be counted, provided they are postmarked by Election Day, according to the National Conference of State Legislatures.
However, there is another provision in Nevada law that particularly concerns Trump campaign officials.
According to the law, “If a mail ballot is received by mail not later than 5 p.m. on the third day following the election and the date of the postmark cannot be determined, the mail ballot shall be deemed to have been postmarked on or before the day of the election.” (Sec. 20.2)
In other words, if the postmark is smudged or the date unreadable, the ballot would be counted even if it is received up to three days after the election. In addition, if the ballot had no discernible postmark at all, Thorley told us, it would also be counted if it is received up to three days after the election.
The Trump campaign filed a lawsuit against the Nevada Secretary of State Barbara Cegavske claiming a new election law, which passed along partisan lines, would “undermine the November election’s integrity.” (Cegavske, a Republican, actually opposed the revised procedures, but the law was passed by the Democratic-controlled state Senate and Assembly, and the law was signed by Democratic Gov. Steve Sisolak.) Among law’s provisions challenged by the Trump campaign was the one that would allow ballots without postmarks to be counted if received within three days of the election.
According to the lawsuit, the law “makes it likely that most mail ballots will lack a legible postmark showing when voters mailed them” because the law “instructs county and city clerks to send mail ballots to voters along with ‘a return envelope’ that ‘must include postage pre-paid by first-class mail.’ … The U.S. Postal Service generally does not apply postmarks to postage prepaid envelopes.”
The lawsuit cites a postal service handbook document about postmarks which states, “Postmarks are not required for mailings bearing a permit, meter, or precanceled stamp for postage, nor to pieces with an indicia applied by various postage evidencing systems.”
“So for the vast majority of mail ballots, election officials will not be able to rely on a postmark date to determine when voters cast them because most mail ballots will not have a postmark at all,” the lawsuit states, “Instead, the only objective indicator of whether voters have timely cast their mail ballots before Election Day will be whether elections officials received them on or before Election Day.”
In counties where mail is delivered quickly, ballots sent on the “Wednesday or Thursday after Election Day will likely be received … before 5 p.m. on the Friday after election without bearing a postmark,” the lawsuit states. “Under Section 20.2, those ballots must be counted. Section 20.2 thus effectively extends the congressionally established Election Day.”
But the handbook cited in the lawsuit doesn’t apply to postmarks for election mail, which is treated differently.
In fact, the Postal Service policy is to postmark all ballots. According to a July report from the USPS’ Office of Inspector General, a postal service memo issued in 2018 “states that all ballots should be postmarked by machine or by hand.” (See footnote 8 in the IG report.)
The IG report came in response to some issues that arose with the handling of absentee ballots in the Wisconsin primary election in April. Initially, election officials did not include 390 absentee ballots (out of nearly 1 million) in the official count, because the return envelopes lacked postmarks or the postmarks were illegible. According to the report, “The Postal Service worked with the election office after the election to help determine the validity of postmarks and was able to validate all but about 40 postmarks.”
In response to the IG report, David E. Williams, CEO and executive VP of the USPS, and Salvatore N. Vacca, acting VP of the USPS’ Great Lakes Area, wrote that while “The Postal Service’s policy provides that all returned ballots must be postmarked,” they acknowledged there are “isolated incidents” from “breakdowns or exceptions in the postmark process” that “may lead to some ballots not being postmarked.” (See Appendix A of IG report.)
In New York’s April primary election, thousands of ballots did not get postmarks, despite USPS policy stating that they should, according to a federal judge who ruled there was evidence the ballots were mailed on time and should be counted.
Turning its attention to the 2020 general election and a nationwide view, the Postal Service IG report acknowledged that, “there can be breakdowns or exceptions to this process which would prevent a ballot from receiving a postmark. For example, ballots may be double fed on a machine, machines applying postmarks may run out of ink, or ballots may be comingled with certain mail that is not processed on machinery that applies a postmark.”
Among the IG’s recommendations were that the postal service use Intelligent Mail Barcode on ballot envelopes to help track and verify the ballots.
Charles Stewart III, a political science professor at MIT who specializes in elections, said that while a ballot that has a postage-paid indication and is marked as election mail should get a postmark, “not all postal workers know this rule, and therefore a lot of pre-paid postal mail doesn’t get postmarked.”
Stewart also advocates for use of intelligent barcodes that have the date the piece entered the mail stream. “A few states explicitly acknowledge the intelligent bar code, but most don’t, and so it’s a bit of the wild west there,” Stewart told us via email.
Complicating the issue is that President Donald Trump — an outspoken critic of expanded mail-in voting — has said he opposes extra funding to allow the postal service to prepare for an expected surge in mail-in voting in the 2020 presidential election.
In an Aug. 13 interview, Trump said that he opposes a coronavirus pandemic relief bill crafted by the House Democrats because it includes funding the Postal Service and state election officials. Without the funding, Trump said, “you can’t have universal mail-in voting because they’re not equipped to have it.”
Regardless, Thorley, Nevada’s deputy secretary of state for elections, told us via email that Gidley’s claim is flawed as it relates to Nevada because ballots with prepaid postage do get postmarks. And, he said, the proof came in the primary election in June, when Nevada also sent out prepaid mail-in ballots to all registered voters.
“Two months ago we had a statewide primary election in Nevada, and for that election we mailed all registered voters a ballot and a postage prepaid ballot return envelope,” Thorley said. “Over 450,000 people voted by mail at our June primary election, and all the ballots that were returned by mail using the postage prepaid ballot return envelope included a dated postmark from USPS. There were a handful of one-off issues where a ballot originally didn’t include a dated postmark, but we were able to contact USPS and get those ballots postmarked prior to counting.
“It is simply untrue to claim a Nevada voter can wait until the day after the election to cast their ballot and expect to have their ballot counted,” he added. “For our primary election, 5,355 ballots were rejected because they were postmarked after June 9, so ballots are definitely being postmarked.”
Thorley said Nevada election officials contacted national and local USPS representatives prior to the primary to “let them know about the postmark requirement in our state law, and they said that is not a problem … Mail ballots in Nevada are definitely postmarked.”
Thorley said, based on the law, election officials would count a ballot that bore no postmark if it were received within three days of the election.
“But again that would be the rare exception,” Thorley said. “If your plan is to wait until the day after the election to vote, then I can say with almost 100 percent certainty your ballot won’t be counted.”
Jessica A. Levinson, a professor who specializes in election law at Loyola Law School in California, agreed.
“Theoretically, a voter could vote the morning after Election Day, put it in the mail and pray for an ineligible postmark and quick delivery,” Levinson told us via email. “This is not exactly a scenario ripe for fraud and abuse.”
In short, there is a theoretical possibility that a small number of votes cast after Election Day could be counted — provided they were stamped with an unreadable postmark, or got no postmark at all, and were delivered quickly by the postal service.
But Gidley’s warning about the “potential for massive fraud” assumes that ballots with prepaid postage would not get a postmark. And in the primary election in Nevada in June, almost all of them did.
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