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H.R. 8189 (116th): To amend the Help America Vote Act of 2002 to prohibit a State from counting a ballot cast in an election for Federal office which is received by the State after the date of the election.


Context

During the COVID-19 pandemic, an unprecedented number of people will vote by mail. Different states have different rules for whether the ballot has to arrive by Election Day, or merely has to be postmarked by Election Day (or the day before), even if it actually arrives up to several days afterwards. And although the stereotype is that blue states are more lenient with their vote-by-mail laws and red states are stricter, this is not always the case.

According to the National Conference of State Legislatures, 18 states (plus the District of Columbia) allow a mail-in ballot to arrive after Election Day, including such red states as Alaska, Kansas, Mississippi, North Dakota, Texas, Utah, and West Virginia. The other 32 states do not, including such blue states as Connecticut, Delaware, Hawaii, Massachusetts, Oregon, Rhode Island, and Vermont.

In September, Pennsylvania’s Supreme Court ruled 5–2 that the state must temporarily invalidate its existing law that mail-in ballots be received by Election Day, instead allowing them to be received up to three days later. Republicans appealed to the U.S. Supreme Court, which deadlocked 4–4 under a newly eight-member court following the death of Ruth Bader Ginsburg, thus letting Pennsylvania’s Supreme Court ruling stand.

However, the U.S. Supreme Court has issued mixed opinions on the issue, having also ruled 5–3 in October that mail-in ballots in Wisconsin had to be received by Election Day to count. The one-vote swing was Chief Justice John Roberts, who argued that the distinction was how the Wisconsin case concerned a lower federal court inappropriately overruling a state’s laws, while the Pennsylvania case concerned a state court reasonably interpreting its own laws.

What the bill does

This congressional bill would discount any ballot cast for a federal office — such as president, U.S. Senate, or House of Representatives — unless the ballot is received by Election Day. This would overturn the law in any state which requires the ballot be postmarked by Election Day, even if it’s received potentially several days later.

It was introduced in the House as bill number H.R. 8189, by Rep. Louie Gohmert (R-TX1). The bill does not appear to have an official title.

What supporters say

Supporters argue that the results should be known on Election Night.

“What we want election night to look like is a system that’s fair, a situation where we know who the president of the United States is on election night,” White House Press Secretary Kayleigh McEnany said on Fox News. “That’s how the system is supposed to work. And that’s ultimately what we’re looking for and what we’re hoping for.”

That may indeed be how the system is supposed to work in a perfect world, but the world isn’t always perfect. The 2000 presidential election took more than a month to resolve. On Election Night 2016, the result still looked potentially close enough that Hillary Clinton didn’t concede until the following day. And if you want to go way back, the 1876 election took several months (plural) to determine the winner.

What opponents say

Opponents counter that extending the deadline for when ballots can arrive, past Election Day itself, is not only valid but necessary given current circumstances.

The state “has estimated that nearly three million Pennsylvanians will apply for mail-in applications, in contrast to the 1.5 million cast during the primary,” Pennsylvania Supreme Court Justice Max Baer wrote for the majority. “In light of these unprecedented numbers and the near-certain delays that will occur in… processing the mail-in applications, we conclude that the timeline built into the [state’s] Election Code cannot be met by the USPS’s current delivery standards.”

While it may be feasible under normal conditions, it will unquestionably fail under the strain of COVID-19 and the 2020 presidential election, resulting in the disenfranchisement of voters.”

Odds of passage

The bill has not yet attracted any House cosponsors. It awaits a potential vote in the House Administration Committee.

Odds of passage are low in the Democratic-controlled chamber, especially so close to the election.

Last updated Oct 28, 2020. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Sep 8, 2020.


This bill generally prohibits states from counting ballots that are received after the date of a federal election. However, the prohibition does not apply to absentee ballots that are cast by uniformed service members, their family members, or overseas citizens.