Why West Virginia is Right to Count Timely-Cast Absentee Ballots Received After Election Day
West Virginia is one of thirty-one states that permit absentee ballots mailed on or before election day to be counted if received within a reasonable time after election day. West Virginia’s choice reflects a balance of the need for finality in elections with the particular needs of our citizens. A bill introduced in the 2026 Legislature eliminating this practice failed to pass. This is a good thing. Our state is right to count these ballots, not as a partisan matter but as a matter of fairness and democracy.
What West Virginia Law Provides
In West Virginia, voters can vote an absentee ballot if they are confined because of disability or medical condition, or are unable to vote in person because of extreme advanced age. In addition, an absentee ballot is available to any voter absent from the county because of personal or business travel, attendance at a place of education or training, or employment outside the county. And overseas uniformed service personnel and U.S. residents of foreign countries may also vote by absentee ballot.
Absentee ballots are accepted if the ballot bears a USPS postmark dated no later than election day and is received no later than the hour the board of canvassers convenes to count the votes. The various county boards of canvassers convene on the fifth day after election day, Sundays excepted.
Why West Virginia’s Policy is Right
Poor mail service in West Virginia affects this whole question. The USPS ranks the mail delivery performance of each postal district in the country. West Virginia is in the Kentucky-West Virginia District. Districts are ranked 1 through 50, with 1 being the worst-performing. In 2025, the West Virginia-Kentucky District ranked as the 8th worst-performing district for timely mail delivery.
West Virginia is predominantly rural, and rural voters face more than just slow delivery times. Since 2000, West Virginia has closed 175 post offices, more than any other state. We can expect more closures since our existing post offices, on average, serve fewer customers than the national average. Rural voters aren’t to blame for postal service problems. We are right to give them a grace period for counting their absentee ballots because of these problems.
Overseas service personnel and U.S. citizens living abroad are a particular problem. While a law regarding overseas military voting permits filing absentee ballots electronically, approximately 40% of these voters still mail their ballots. These ballots, like all others, must be received by the deadline in each state. Domestic mail service might be slow, but international mail service is much worse, especially for service personnel posted in remote areas.
Some will argue that absentee voters should simply put their ballots in the mail sooner. In other words, these voters should calculate what delay is possible and make their voting choices earlier to account for the delay. But consider what that requires the absentee voter to do. Many of us are deciding how we will vote right up to the moment we engage the voting machine. Insisting that absentee voters mail their ballots well in advance of election day deprives them of the full time the rest of us enjoy to consider campaign arguments and make our choices. That makes absentee voters second-class voters.
The Supreme Court Case
Under the Elections Clause of the Constitution, states are responsible for determining “the time, places and manner for holding elections,” although Congress “may at any time by Law make or alter such Regulations.” This power relates only to federal elections, but both state and federal elections are held on the same day, and the ballots list candidates for both state and federal office. Congress has passed a law making an early Tuesday in November “the day for the election.”
In a case pending before the Supreme Court, the Republican National Committee has challenged a Mississippi law granting a grace period of five days for ballots mailed on or before election day to be received afterwards. This is virtually the same as West Virginia’s law. The question in the case is whether “election day” for federal elections means the day all votes must be cast, or the day all votes must be received. If the latter, a second question is whether this law overrides state laws regarding state elections.
This would not seem to be a hard case. We have a federal system in which states regulate much of life within their own borders and, early on, states chose vastly different days to hold elections. The federal law in issue was adopted simply to have a uniform day. It says nothing about casting ballots versus receiving them. States have been granting a grace period for receiving some ballots for over 100 years. In fact, Congress has deferred to state ballot receipt practices in the present law governing the receipt of military and overseas ballots. It is hard to imagine that Congress would overrule the practice without directly saying so.
If the RNC wins in the Supreme Court, the result would technically only apply to federal elections in Mississippi. States, including West Virginia, would still be bound by their own laws regarding ballot counting for state elections. This can’t be changed by edict from the Governor or Secretary of State. And no law could be passed conforming any of our practices to the Supreme Court ruling, even as to federal elections, until the legislature meets in January 2027 – too late for the 2026 midterm elections. This would lead to chaos and further litigation.
There is no throughline describing the states that have adopted grace periods for absentee ballots. They are red and blue, large and small, urban and rural. One wonders why the Republican National Committee would spend the huge sums necessary to litigate a case all the way to the Supreme Court simply to ensure that the only votes counted are those received on election day. Many Republican voters will be disenfranchised. The answer is that Donald Trump sees a political advantage in eliminating mail-in balloting of any kind. And that is sad.
