A daunting truth about the upcoming 2020 general election is that thousands of otherwise valid mail ballots in Florida will almost certainly be rejected before being counted. Why? Because under state law, they don’t count if they arrive at county elections offices after the state’s 7 p.m. Election Day deadline. This is a situation that the Florida governor can address.
Under current law, whether a mail ballot counts depends not on when it is mailed, but on when it is received by elections officials — something that voters cannot control themselves. Even if a Florida ballot was mailed well before the state’s receipt deadline, if it is a single day late, the ballot will be outright rejected. Rejected ballots do not count, and voters who cast them are left with no say in an election.
As the COVID-19 pandemic rages on, voters across the United States are opting for mail-in voting rather than going to the polls. In the Sunshine State’s March 2020 presidential primary, 46 percent of voters cast mail ballots, a jump of more than 50 percent in the use of mail ballots compared to the state’s 2016 presidential primary. Other states are witnessing similar trends. In Georgia’s June 2020 primary, 53 percent of voters cast mail-in ballots, up from less than four percent just four years earlier. Rates of mail ballots also skyrocketed in the primary elections in Nebraska, New York, Wisconsin and Ohio.
The opportunity to cast a vote by mail (VBM) ballot during a health crisis is a necessity. But voting by mail is not enough. It’s also essential to ensure that all VBM ballots cast in a timely fashion are counted.
According to our analysis of the state’s official election records, in the 2016 general election in Florida, the mail ballots of roughly 90,000 voters arrived at local election offices on Election Day itself. Some 80,000 more mail ballots arrived just one day earlier. These 170,000 or so mail ballots were on the edge of being late. Though on-time, mail ballots arriving on the heels of Election Day are highly vulnerable to small delays in the Postal Service’s delivery schedules. A one-day delay in mail deliveries in the 2016 General Election could have led to 90,000 Floridians losing the opportunity to have their votes count.
It doesn’t have to be this way. Having declared a state of emergency for the entire state of Florida on March 9, 2020, Gov. Ron DeSantis could sign an executive order, allowing mail ballots placed in the United States Postal Service’s mail stream prior to Election Day to be counted, even if they arrive after Election Day.
Taking executive action during a crisis to ensure the sanctity of the vote is not unprecedented. Indeed, on June 17, Gov. DeSantis issued Executive Order 20-149, granting the state’s 67 Supervisors of Elections the ability to begin canvassing mail ballots earlier than allowed under Florida law because of concerns of the surge of VBM ballots in this Tuesday’s primary election.
Unlike the coronavirus, having VBM ballots cast and counted after Election Day isn’t novel. Florida counts the ballots of thousands of overseas and domestic military personnel (and of their spouses) as well as of civilians living abroad, as long as they were mailed on or before Election Day, according to the date on the outside of the return envelope.
Voting by mail during a pandemic makes sense, as long as the rights of voters are protected. In Florida, as in many states, voters need not have an excuse or be physically absent from their residences to vote by mail. After receiving their VBM ballots, they can complete them at home, minimizing contact with others and thus maximizing safety in an environment in which person-to-person contact can pose health risks. This clear benefit of voting by mail is presumably why so many Americans have cast mail ballots in recent primary elections — and why so many signed up to have their ballots mailed to them before Tuesday’s primary.
But the potential for late — and thus uncounted — VBM ballots looms large. As has been widely reported, the United States Postal Service is under dire financial and staffing pressures. In several states, there have been reports of mail being delayed several days more than normal. Even a small perturbation in mail deliveries has the potential to wreak havoc on mail-in voting.
The risk of even minor mail disruptions is accentuated in a state like Florida, which is known for its razor-thin margins. In the Nov. 6, 2018, general election, three races — U.S. senator, Florida governor, and Florida Agriculture commissioner — were so close that they went to recounts. In this election, around 120,000 mail ballots arrived on Election Day and an additional 80,000, the day before. These 200,000 barely on-time ballots were roughly 20 times the number of votes that separated the Republican and Democratic candidates in the contest for U.S. Senate.
The number of mail ballots in the 2016 and 2018 elections in Florida that had literally no margin of error for delivery problems, or a margin of error of only one day, is staggering. Come this November, if thousands of mail-in ballots arrive the day after the election, the legitimacy of the November 2020 election in the Sunshine State could be at risk. Late vote-by-mail ballots should not be a partisan issue. Republicans and Democrats (and No Party Affiliates) will all be affected by postal delays should they occur this November, and, barring legislative action aimed at making Florida’s vote-by-mail system more robust in the face of potential mail problems, executive action may be necessary to ensure Florida’s electoral legitimacy come November.
Mail ballots postmarked (or otherwise indicated as received by the Postal Service) by Election Day should be presumed on their face to be on-time. If this sort of an open-ended process is too concerning for the state's Supervisors of Elections, a reasonable approach might be for these supervisors to accept mail ballots that are in the postal stream by Election Day and arrive up to ten days after the election, just like UOCAVA ballots. This would provide a margin of error for voters and ensure that delayed mail does not disenfranchise thousands of voters who are casting mail-in ballots in order to safeguard their health and the health of their fellow citizens.
At the very least, state and local elections officials in Florida (and across the country) should publicize the consequences of late mail ballots in stark and unambiguous language. Repeated reminders that “Late Ballots are Rejected!” should be on all election administrator web pages and on the material that administrators send to voters who request mail ballots.
The health risks of COVID-19 are deadly serious. Serious as well are the risks of having thousands of mail ballots not arrive on time to be counted. Now is the time to start planning so that this risk does not become an eventuality.
Michael C. Herron, is the William Clinton Story Remsen 1943 Professor of Government at Dartmouth College in Hanover N.H. Daniel A. Smith is professor and chair of Political Science at the University of Florida.