Former Rep. Keith Esau requested the Kansas Legislature repeal a 2017 state law, which he previously championed, allowing advance ballots arriving by U.S. mail up to three days after Election Day to be counted. Gov. Laura Kelly vetoed such a bill earlier this year. (Kansas Reflector screen capture from Kansas Legislature’s YouTube channel)
TOPEKA — Former state Rep. Keith Esau said hindsight made clear it was a mistake for the 2017 Kansas Legislature by near-unanimous vote to create a three-day grace period for acceptance of mail-in advance ballots postmarked before polls closed on Election Day.
Esau, who was the Republican chairman of the House Elections Committee when the bill was adopted, told an interim House and Senate committee studying voter fraud on Friday the statute diminished public confidence in voting by mail because it led to daily revisions of vote totals. He said one of the law’s objectives was to assure processing of military ballots, but that issue was resolved by adoption of electronic transfer of those ballots.
“We were ensured that there was a way to check postmarks or bar codes on the returned ballots to verify they were sent before the close of elections. Unfortunately, that has turned out not to be true in most cases,” the former Johnson County legislator said. “Mail is not routinely postmarked anymore. A barcode that cannot be deciphered is used in many cases, if there is a mark at all. This makes it nearly impossible to tell whether a late ballot can be counted or not under this law.”
Absence of date marks on ballot envelopes has prompted county election officials in Kansas to throw out ballots arriving during the three-day window.
“It’s concerning the post office isn’t always putting a postmark,” said Sen. Mark Petersen, R-Wichita.
The GOP-led 2023 Legislature, which advanced baseless allegations of voter fraud in the 2020 presidential election, passed a bill to repeal the three-day grace period in Kansas. It was vetoed by Democratic Gov. Laura Kelly, who said the measure would disenfranchise rural and military voters. The Senate failed to produce the two-thirds majority required to proceed with an override the governor’s veto of the bill.
Rep. Pat Proctor, a Leavenworth Republican and chairman of the House Elections Committee, said it had to be difficult for Esau to admit to championing a law that he now believed should be deleted. Proctor said repeal legislation stalled during the 2022 session as support among some Republicans softened.
When the 2017 law establishing the ballot-acceptance extension was adopted in Kansas, the vote was 40-0 in the Kansas Senate and 123-1 in the Kansas House.
Kansas’ three-day window resembled the approach to mailed ballots in Virginia, North Carolina and Massachusetts. Other states have grace periods ranging from one day in Texas, four days in Nevada, five days in West Virginia, six days in New Jersey, seven days in Oregon, 10 days in Maryland, Ohio and Alaska, and 13 days in North Dakota.
Missouri and Nebraska enforce a mail-in ballot deadline tied to closure of polling stations on Election Day, while Colorado and Oklahoma set the stopping point at 7 p.m. Election Day. Overall, 31 states forbid ballots to be accepted after polls closed on the day of an election.
Connie Brown Collins, founder of Voter Rights Network of Wyandotte County, said the state should embrace laws to promote the three-day grace period, mail-in voting, advance ballot drop boxes, instant voter registration, accommodations for people with disabilities, extended voting hours and days, convenient locations for advance in-person voting and security protection of poll workers.
“We believe in facts and established research about voting and voting security, and reject conspiracy theories about voting fraud and integrity,” Collins said. “There is no evidence that voting by mail results in significant fraud.”
She said delayed postal service delivery of mail shouldn’t be leveraged to disenfranchise rural residents who deserved to get their votes counted. The state’s elderly or disabled voters who relied on mail-in voting should be granted adequate opportunity to return ballots, she said.
John Stepnoski, a resident of De Soto, told the interim elections committee voting controversy in Kansas would be moderated by simply mandating people present a valid photograph identification when voting, exclusively vote by paper ballot rather than electronic machines and forbid ballot drop boxes to county government offices under 24-hour video surveillance.
“There should be no three-day grace period for receiving ballots for elections,” he said. “By enforcing the rules in place today for voting in Kansas as well as going back to paper ballots and all ballots being received by Election Day, I believe we can restore more confidence in the election process.”
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