President Donald Trump and the GOP have launched a new offensive in their long-running war on voting. Their latest target? Ballots that arrive after Election Day.
It’s a multi-pronged assault. The U.S. Supreme Court could soon take up a Republican lawsuit aimed at barring states from accepting mail votes that come in after Election Day. An executive order signed by Trump in March aims to crack down on the practice. GOP-controlled states are passing new laws to ban these ballots. Congress has held hearings on the issue. And even the chair of a federal voting agency has signaled he’s on board with the effort.
In sixteen states and Washington D.C., a grace period of varying lengths — Washington state’s is the longest at 21 days — allows mail ballots that arrive after Election Day to be counted as long as they were postmarked by Election Day, in part to ensure that voters aren’t disenfranchised by mail delays beyond their control. Several states created or lengthened their grace periods in response to the dramatic surge in mail voting spurred by the Covid crisis of 2020.
Scrapping grace periods for mail ballots could lead to hundreds of thousands of legitimate voters having their ballots rejected. In some states, advocates say, it could make voting by mail all but impossible.
For Republicans, that may be a feature, not a bug. Trump has spoken often about his disdain for mail voting, and his view that all voting should be done in person, on Election Day.
“Any time the mail is involved, you’re going to have cheating,” Trump said last year.
In recent years, the Republican National Committee has filed a slew of actions with the ultimate goal of killing off grace periods nationwide. Advocates at the time called the GOP claim that the Constitution requires Election Day to be only one day far-fetched, and lawsuits in Illinois, Nevada, North Dakota, and Mississippi all failed.
A ballot postmarked by Election Day was clearly cast on time, said Barbara Smith-Warner, executive director of the National Vote at Home Institute. ”
“You voted by Election Day, period,” Smith-Warner said. “There is no second sentence.”
But last year the 5th U.S. Circuit Court of Appeals — known as perhaps the nation’s most conservative federal appeals court — accepted the Republican argument, and overturned the ruling that had upheld Mississippi’s grace period of five business days.
“Basically they were looking for a state that had a grace period and was in a section of the courts that was friendly to anti-voting policy,” Smith-Warner said.
Now the U.S. Supreme Court, not known for its commitment to voting access, could get the chance to end grace periods once and for all. Last month, the district court paused the Mississippi case, saying the state had indicated it plans to ask SCOTUS to weigh in.
Republicans aren’t waiting on the Supreme Court’s guidance, though.
Trump signed an executive order March 25 attempting to vastly expand his own power over federal elections, which has drawn challenges from states and voting rights advocates. Nineteen states quickly sued to stop the order, objecting to numerous provisions, including one that directed the U.S. Election Assistance Commission to withhold federal funding from states that don’t comply with a requirement to reject mail ballots received after Election Day.
In the complaint, the states argued the Trump administration is “coercing” them to change their own election laws.
Making those changes likely would result in thousands of rejected ballots, particularly in states like Washington where mail voting is very common.
“In the 2024 General Election alone, more than 250,000 Washington ballots postmarked on time arrived after Election Day,” Secretary of State Steve Hobbs said in a statement responding to the order. “Had this rule been in effect, those voices would have been silenced, especially in rural areas where mail delivery can take longer.”
In Massachusetts, it’s particularly easy to see the difference a grace period makes. The state offers a grace period only during biennial state elections, but not during primaries. In the March 2024 presidential primary, Massachusetts rejected 2.7% of received ballots, including 10,042 due to late arrival, according to the Secretary of State’s office. But in the November general election, with three days to accept late arrivals, the state rejected 1.1% of received ballots, among them 2,587 ballots that arrived after the deadline.
Now, many states are preparing to defend their grace period policies in court. A hearing is set for June 6 on the states’ motion for a preliminary injunction.
But federal election officials may be eager to enforce the order.
Donald Palmer, chair of the U.S. Election Assistance Commission, told members of a House committee last month he thinks states should end grace periods.
“There should be a deadline for absentee or mail ballots prior to Election Day, and then they should be returned by Election Day,” said Palmer, a Republican former state elections director.
Palmer’s remarks came as part of an April 29 hearing on what Rep. Bryan Steil (R-Wisc.), the committee chair, called California’s “untimely” election counting process.
Steil argued voters are losing trust in election results because it takes too long to count ballots under California’s voter-friendly policies, such as accepting ballots delivered up to seven days after Election Day and giving voters up to 28 days to fix mistakes on a rejected ballot.
“On Election day, California doesn’t know how many ballots will be cast,” Steil said. “And so results for close elections can’t be announced in a timely manner.”
Meanwhile, red states across the country are passing legislation eliminating grace periods – including some that just created those grace periods not too long ago.
Kansas voted in 2019 to extend the mail ballot delivery deadline to the third day following Election Day. But the Republican-controlled legislature in March moved the deadline for mail ballots to arrive to 7 p.m. on Election Day. Gov. Laura Kelly (D) vetoed that legislation – but the House and Senate overrode Kelly’s veto.
Arizona Gov. Katie Hobbs (D) vetoed a similar Republican measure in February that would have moved up the deadline for voters to return a mail ballot without providing ID to 7 p.m. on the Friday before Election Day.
In North Dakota, lawmakers passed a measure last month getting rid of the state’s grace period, over the objections of the League of Women Voters of North Dakota.
The group warned that the law would “disproportionately impact rural voters, Native voters, seniors, voters with disabilities, and any voters who may need as much time as possible to submit a ballot and who should not be penalized in the event their ballot is not delivered by Election Day.”
A GOP-backed bill in Texas to eliminate the state’s one-day grace period died when Democrats raised a point of order against it.
And Utah has not only eliminated its mail ballot grace period but also will stop its long-standing practice of automatically sending a mail ballot to all registered voters.
Ultimately, Utah’s moves to roll back mail voting writ large are pointing to a shift in GOP politics and rhetoric — not public opinion, according to Michael McDonald, a political science professor at the University of Florida.
“I don’t think they’re doing it because they thought there was an overwhelming need or desire,” McDonald said, adding that mail voting is popular in Utah.
As Trump and his allies continue undermining elections, more voters could see their ballots go uncounted.