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October 26, 2020 - Herring Defends North Carolina’s Extended Deadline for Receiving Mail-In Ballots

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Commonwealth of Virginia Office of the Attorney General

Mark Herring Attorney General

202 North Ninth Street Richmond, Virginia 23219


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~ Herring joins coalition of 15 attorneys general in filing an amicus brief in the Supreme Court arguing that the deadline extension protects public health and vote-by-mail participation amid pandemic, USPS delays ~

RICHMOND – Attorney General Mark R. Herring today has joined a group of 15 state attorneys general in filing an amicus brief in the U.S. Supreme Court defending North Carolina’s deadline extension for receiving and counting mail-in ballots that were properly cast on or before Election Day. In their amicus brief filed in Wise v. Circosta and Moore v. Circosta in the U.S. Supreme Court, Attorney General Herring and his colleagues argue that state election officials should be allowed to administer the upcoming election in ways that protect voter safety and voter participation considering the COVID-19 pandemic and uncertainties with the United States Postal Service (USPS). The brief argues that extending the date by which a mail-in ballot must be received to count is a reasonable measure several states have taken to allow voters to cast their ballot by mail while also accounting for USPS’s recent delays.


“State and local elections officials have had to be flexible and come up with creative solutions to the numerous challenges that this year’s election season has brought to make sure voting remains safe and easy,” said Attorney General Herring. “Protecting voter safety and participation should be a top priority no matter the circumstances, but especially in the middle of a nationwide pandemic, and local elections officials must be able to come up with appropriate solutions for their communities.”


Amid the COVID-19 pandemic, states across the country have modified their election procedures to protect both voter participation and the health of voters and election workers. Extending receipt deadlines for mail-in ballots that are properly cast on or before November 3, 2020, is a popular option adopted by many states, especially given recent crises engulfing the USPS. Several states and the District recently sued to stop USPS cuts that threatened mail service in advance of Election Day, and the trial court in that case issued a preliminary injunction preventing the operational changes that would undermine mail delivery. Despite this win, USPS has indicated that it faces challenges around timely delivery of election mail, which makes extending receipt deadlines for mail-in ballots an important accommodation.


In September 2020, as part of a consent decree, the North Carolina Board of Elections extended the deadline by which absentee ballots must be received in order to be counted from three days to nine days after Election Day. State and national Republican leaders and the Trump Campaign sued to block the extension, and a federal district court and the U.S. Court of Appeals for the Fourth Circuit denied their requests for an injunction. The plaintiffs have filed an emergency application with the Supreme Court to block the deadline extension.


In the amicus brief, the coalition supports North Carolina’s deadline extension for receiving mail-in ballots because:


  • States have a duty to protect voter safety and participation amid the pandemic and USPS concerns: The Supreme Court has recognized that states have the power to regulate elections and must do so in ways that preserve the right to vote. During the pandemic, states have taken reasonable, common-sense steps to encourage safe vote-by-mail options, including by extending receipt deadlines. These extensions help ensure properly cast ballots are counted and boost confidence in voting by mail. As of October 12, more than 1.3 million registered voters in North Carolina requested absentee ballots for the November election, up from 170,000 by the same time in the 2016 general election. Given the influx of expected absentee voters and uncertainty surrounding USPS delivery, North Carolina’s deadline extension for receiving mail-in ballots is a reasonable move to ensure that all valid ballots cast on or before Election Day will count. 
  • Accepting mail-in ballots received after Election Day is a longstanding practice in many states: At least 22 states and the District accept absentee or mail-in ballots received after Election Day when the ballot is shown—via postmark or otherwise—to have been cast on or before Election Day. This practice has expanded during the COVID-19 pandemic, during which many states have extended their receipt deadlines to reduce the public health risks of voting in-person and accommodate potential delays in USPS service.


Last week, Attorney General Herring joined a coalition of 13 attorneys general in filing a similar amicus brief defending Minnesota’s deadline extension for receiving and counting mail-in ballots that were properly case on or before Election Day.


Because of the COVID-19 pandemic, Attorney General Herring has worked with Virginia's elections officials to find solutions to make sure Virginians can vote safely and easily. These solutions provide voters with safe alternatives to in-person voting, so that they are not putting the health and safety of themselves or that of their loved ones at risk. He and his team have been able to negotiate options to promote safe, secure voting for folks who cannot or do not want to risk their health to vote in person. For the November election he reached an agreement that waived the witness requirement for absentee ballots for Virginians who believe they may not safely have a witness present when completing their ballot, and another agreement that makes it easier for Virginians with print disabilities to participate in the election safely at home. Earlier this month, Attorney General Herring reached an agreement to extend the voter registration deadline by two days, following a registration system outage that lasted several hours, preventing Virginians from registering to vote on the final day before the original deadline.


Joining Attorney General Herring in filing today’s amicus brief are the attorneys general from California, Connecticut, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Vermont, Virginia, Washington, and the District of Columbia.


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