(Updated to reflect Legislature’s action; also corrects story to reflect that 603 ballots came in after the grace period and were not counted).
The Kansas Legislature on Tuesday overrode Gov. Laura Kelly’s veto of a bill repealing a 2017 law that gives voters a three-day grace period for their mail ballots to arrive at election offices.
The Senate voted 30-10 to override the veto, with its supporters saying it will bring a uniform end to voting at 7 p.m. on Election Day.
The House later voted 84-41 – the slimmest majority possible – to override the governor’s veto of the bill with a two-thirds vote.
Supporters in the Senate questioned whether the original law was constitutional, citing a federal appeals court decision from last year and a Supreme Court decision involving Wisconsin in 2020.
“By shortening the grace period, we’re just saying if you’re going to vote by mail, you need to make sure you’re going to get it done quickly,” said Republican state Sen. Mike Thompson of Shawnee.
“We need this uniform end to the election just so that we know that all voters are operating on the same time frame,” Thompson said.
“By ending the grace period, we just ensure those ballots are received at the same time as all other voters. It’s as simple as that,” he said.
Opponents said the bill works against voters who may rely on the mail to vote and may not be able to get to the polls to cast a ballot.
“I promise you this is about discrimination,” said Dinah Sykes, the top Democrat in the Senate. “This is discriminating against those who are disabled, those who may not have a car, and those who rely on our mail.
“And yes, our mail has serious problems right now, and we should be addressing that, not disenfranchising our voters,” Sykes said.
The governor vetoed the bill, calling it an “attack on rural Kansans.”
“The three-day grace period for mail ballots was a bipartisan solution approved by the Legislature in 2017 to address delays in processing of mail by the United States Postal Service, particularly in rural areas,” Kelly said in a statement.
“The goal was to ensure that all Kansans had their votes counted, no matter where they lived,” the governor said in a statement.
“Not only will removing the three-day grace period for mail ballots disenfranchise thousands of Kansas voters, but it also shows a lack of understanding of our elections in Kansas,” she said.
Republican state Rep. Pat Proctor of Leavenworth carried the bill on the House floor.
“We have a voter confidence problem in this country,” Proctor said.
“We owe it to Kansans to be able to ensure them that their votes going to be counted,” Proctor said.
“Right now, with the three-day grace period, there’s a one-in-three chance that if their ballot shows up in that three-day grace period, it’s going to be counted,” he said.
Data from the secretary of state’s office shows that out of 163,405 ballots sent by mail last year, about 1.5%, or 2,110, came in after Election Day within the grace period and were counted. Another 603 came in after the grace period but were not counted.
Thirty-two states require a mail ballot to arrive by Election Day to be counted, according to the National Conference of State Legislatures.
Kansas, Massachusetts and Virginia have three-day grace periods, according to NCSL.
Democratic stat Rep. Nikki McDonald of Olathe called the bill a “blatant attempt at voter suppression” that will make it more difficult to vote for college students, rural residents, seniors and those with disabilities.
“They will all be disenfranchised,” McDonald said.
“Shame on those who make it harder to vote rather than easier,” she said.
“That is un-American.”
Supporters of the bill in the Senate counted on a federal appeals court ruling against a Mississippi law that allowed absentee ballots postmarked on or before the date of the election to be accepted no more than five business days after the election.
It was very similar to a Kansas law, which allows ballots postmarked on or before Election Day to be accepted for three days after the election.
The 5th U.S. Circuit Court of Appeals ruled that the Mississippi law was preempted by federal law.
The court cited two constitutional provisions, including one allowing legislatures to set the time, manner and place of elections, but allowing Congress to alter those rules for federal elections.
“Congress statutorily designated a singular ‘day for the election’ of members of Congress and the appointment of presidential electors,” wrote Judge Andrew S. Oldham, who was appointed to the court by President Donald Trump in his first term.
“Text, precedent and historical practice confirm this ‘day for the election’ is the day by which ballots must be both cast by voters and received by state officials,” the court ruled.
“Federal law requires voters to take timely steps to vote by Election Day,” Oldham wrote.
“And federal law does not permit the state of Mississippi to extend the period for voting by one day, five days, or 100 days. The state’s contrary law is preempted.”
Thompson also quoted from a U.S. Supreme Court case from 2020 when the high court refused to allow the modification of election rules to adjust for the pandemic, that included extending the deadline for the receipt of absentee ballots
Thompson quoted from a preliminary ruling in that case from Justice Brett Kavanaugh.
“To state the obvious, a state cannot conduct an election without deadlines,” Kavanaugh said in that case.
“A deadline is not unconstitutional merely because of voters’ ‘own failure to take timely steps’ to ensure their franchise,” Thompson said in quoting Kavanaugh’s opinion.
Democratic state Sen. Ethan Corson of Fairway said Republicans were placing too much emphasis on the Mississippi case, saying there are other instances from around the country upholding a grace period.
“This Mississippi case is really an outlier among the cases,” Corson said.
“It was one case decided by an extremely conservative court of appeals,” he said.
He added that the bill would give Kansas the shortest time frame in the country in the number of days voters to have to return their ballots.
“Is there a reason we want to be the shortest in the entire country?” he said.
“Mississippi, which we keep going back to, they have a 45-day period where ballots can be mailed and returned,” he said.
“That’s more than double the period Kansas allows.”
