More than 900 ballots were not counted during the August primary in Hawaii because of a state law that sets a hard deadline of 7 p.m. on Election Day to return ballots.

Those ballots could have been accepted, however, if Hawaii’s law was like that of more than a dozen other states, which all take ballots received after Election Day so long as those ballots are postmarked on that day.

Hawaii officials like the finality the hard deadline gives voters because it means election results come sooner. Officials in other states that accept ballots after Election Day like the extra time it gives voters.

The state Office of Elections is asking anyone who wants to mail their ballots to do so no later than Oct. 27. Any later, and voters should drop their ballots off in one of 44 drop boxes or take the ballot to a voter service center.

Levi Viloria a City & County of Honolulu election official empties a ballot collection box outside the Honolulu Hale in Honolulu, HI, Saturday, August 8, 2020. (Ronen Zilberman photo Civil Beat)

Hawaii has a hard deadline of 7 p.m. Election Day for ballots to be returned.

Ronen Zilberman/Civil Beat

A total of 18 states and the District of Columbia rely on the postmark date as opposed to a hard deadline or close of polls like Hawaii, according to a review of state laws by the National Conference of State Legislatures.

Those states include: Alaska, California, Illinois, Iowa, Kansas, Maryland, Mississippi, Nevada, New Jersey, New York, North Carolina, North Dakota, Ohio, Texas, Utah, Virginia, Washington and West Virginia.

And in the wake of the coronavirus pandemic changing the way elections are conducted, more states are adopting rules — or being taken to court to change rules — to accept ballots after Election Day.

On Monday, the U.S. Supreme Court allowed a Pennsylvania court’s ruling that ballots can be accepted three days after Election Day to stand. Wisconsin voters are also appealing a case to the high court to allow ballots to come in after Nov. 3.

Typically, election officials in other states will continue to accept ballots either three or five days after Election Day. Illinois has the longest period, allowing ballots to come in up to 14 days after the election.

States that recently adopted statewide vote-by-mail laws, like Nevada and California, also use the postmark date instead of a deadline. 

Since Washington adopted its vote-by-mail law in the early 2000s, it’s gone by the postmark date.

“It takes the guesswork out of when a voter has to have their ballot in by,” said Halei Watkins, a spokeswoman with the King County elections office in Washington.

She says the only disadvantages in the system are for election workers, noting that they must work longer and results are slower to come. Still, it’s not a system they want to see changed.

“People would be pretty upset by that,” Watkins said. “We would oppose that too.”

Even when Hawaii only mailed early absentee ballots, those were still required to come in by the time polls closed, according to Scott Nago, Hawaii’s elections chief.

The law would have to be changed in the Legislature. But Nago thinks that is unlikely.

“If it were to change, they would have changed it this election because of the whole shift to mail,” Nago said.

A recent report on mail ballots in Milwaukee by the United States Postal Service Office of the Inspector General noted the difficulties states that utilize postmarks may face. 

“For example, ballots may be double fed on a machine, machines applying postmarks may run out of ink, or ballots may be commingled with certain mail that is not processed on machinery that applies a postmark,” the report says.

State of Hawaii Chief Elections Officer Scott Nago at hearing on Mail in Ballot3.

Hawaii Chief Elections Officer Scott Nago says ballot deadlines are important so that the public can get election results quickly.

Cory Lum/Civil Beat

A hard stop for receiving ballots on Election Day means the public and campaigns have more timely notice of election results. Without that, Nago says, there may be no finality on election night. 

On Nov. 3, the public should expect two batches of results coming at 7 p.m. and 10 p.m., with the earlier printout expected to include about 90% of ballots cast.

Over 960 ballots did not meet the 7 p.m. deadline in the August primary. If those ballots were added to the total, they would account for just a quarter of 1% of the more than 400,000 ballots cast in Hawaii’s first all-mail election. Almost all of those late ballots were reported from Oahu voters, who make up a majority of all ballots cast.

Nationwide, 50,000 mail ballots were rejected this year because they did not get to election officials by state deadlines, a National Public Radio analysis found. Like Hawaii, rejected ballots in other states accounted for 1% or less of the total turnout.

While the number might not seem like much, some races are decided by thin margins. In the August primary, three races faced automatic recounts because they were so close.

The time ballots must come in also figured prominently in the 2018 elections challenge brought by Honolulu City Councilman Tommy Waters against then-Councilman Trevor Ozawa. The state Supreme Court invalidated the results of that race over ballots received after the close of polls.

Janet Mason, legislative chair of the League of Women Voters Hawaii, supports the 7 p.m. cutoff, and notes it helps to resolve some of the confusion from the Ozawa-Waters election challenge. It also gives the clerks a clear deadline to accept ballots, another issue that came up before the Supreme Court in the elections case.

“It simplifies collections and allows for prompt and accurate processing,” Mason said. “It’s a very good standard.”

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