Raleigh, N.C. — State Board of Elections members have changed a rule dealing with a small number of mail-in ballots that could lead to some votes not being counted in the future.
The issue revolves around mail-in absentee ballots that arrive at local boards of election offices after Election Day but during a three-day grace period following the close of in-person voting. State law says ballots postmarked by Election Day that arrive during that three-day window should count.
But what about ballots that don't carry a postmark at all?
That issue came up during a 2011 Morrisville Town Council election, in which eight votes separated two candidates while 11 absentee ballots were in dispute. Most of those disputed ballots were mailed but did not receive a postmark even though they arrived in the mail during the grace period. At the time, state and local elections officials decided they should count.
Those late absentee ballots can swing tight elections because election results don't become official until after a canvass period the follows the unofficial returns on Election Day.
However, new guidance from Attorney General Roy Cooper suggests that elections officials made the wrong call. Specifically, a recent memo says the plain meaning of the statute is clear and says ballots may be counted only if they are postmarked by the election. Ballots without a postmark don't fit the exception as it has been sketched out by lawmakers.
As a result, the state elections board told local boards Wednesday that such late-arriving ballots without postmarks will not count – at least for the 2013 municipal elections. Although that rule is unlikely to swing a statewide campaign or even state legislative race, closely split municipal races can be decided by just a handful of votes.
"There will be a handful of ballots that are not counted because they don't have postmark," said Board Chairman Josh Howard, a Republican. He ruled on the Morrisville issue in his previous post as a member of the Wake County Board of Elections.
The five-member state board, which includes three Republicans and two Democrats, voted unanimously for the change.
"Unfortunately, I think that has to be the case," said Democratic state board member Maja Kricker.
Elections board staff members say they are adding language to the envelopes used to mail back ballots to make clear to voters they need to make sure there is a postmark, especially if the ballot is mailed back close to an election.
Howard said he believed a recently passed elections bill will fix the language, making it clear that mail-in absentee ballots without a postmark should count if they arrive during the three-day grace period. But staffers pointed out that the bill may still leave that question unanswered, and lawmakers may need to make a further fix.