Congress Has Given the USPS a Delivery Time Requirement for Absentee Ballots
by Michael L. Rosin
Michael L. Rosin is a guest contributor and a constitutional historian. He is the author of amicus briefs in Equal Citizens’ previous Electors’ Freedom Litigation in Colorado and Washington. He can be reached at mlrosin@att.net.
As Donald Trump spews distrust of “mail in” voting, it would serve us well to make sure we understand what federal law says about absentee ballots and the role of the United States Postal Service.
Start with the basics: In the hierarchy of federal law, the Constitution comes first followed by statutes and then agency regulations. Agency operating plans are farther down the totem pole.
The Constitution gives Congress the power “To establish post offices and post roads.” The First Congress created the Post Office in 1789. Darrell Issa, a recent Republican Chairman of the House Committee with oversight of the USPS, has recognized that “a core purpose of the Postal Service is to help bind the nation together,” restating the opening paragraph of the 1970 statute creating the USPS out of the old Post Office Department:
The United States Postal Service shall be operated as a basic and fundamental service provided to the people by the Government of the United States, authorized by the Constitution, created by Act of Congress, and supported by the people. The Postal Service shall have as its basic function the obligation to provide postal services to bind the Nation together through the personal, educational, literary, and business correspondence of the people. It shall provide prompt, reliable, and efficient services to patrons in all areas and shall render postal services to all communities. The costs of establishing and maintaining the Postal Service shall not be apportioned to impair the overall value of such service to the people.
By law, the USPS is required to “carry” absentee ballots mailed at post offices it has established at military bases overseas “expeditiously and free of postage.” A different federal law concerning absentee ballots carried domestically comes into play in a much more substantial way.
One of the 1970 Amendments to the Voting Right Act of 1965 states
No citizen of the United States who is otherwise qualified to vote by absentee ballot in any State or political subdivision in any election for President and Vice President shall be denied the right to vote for the choice of electors for President and Vice President, or for President and Vice President, in such election because of any requirement of registration that does not include a provision for absentee registration.
52 U.S.C. 10502(f). Specifically, federal law requires that
each State shall provide by law for the casting of absentee ballots for the choice of electors for President and Vice President, or for President and Vice President, by all duly qualified residents of such State who may be absent from their election district or unit in such State on the day such election is held and who have applied therefor not later than seven days immediately prior to such election.
52 U.S.C. 10502(d). (Emphasis added)
Aha, the Trump supporters may declare, seeing that the passage just cited focuses on persons “who may be absent from their election district.” Surely, state efforts to offer a mail in ballot to anyone who wants one goes well beyond the statutory text just presented.
Indeed they do — just as Congress envisioned:
Nothing in this section shall prevent any State or political subdivision from adopting less restrictive voting practices than those that are prescribed herein.
52 U.S.C. 10502(g).
These provisions in the Voting Rights Act create a mandate on both the government of each state and the government of the United States. The USPS, “provided to the people by the Government of the United States,” may or may not be able to formulate a cost effective operating plan allowing it to process all intrastate (mostly intra-county) mail fast enough to allow business-to-residence-back-to-business mail to be carried in no more than seven days. If so, it must develop a plan that distinguishes absentee ballots (and applications) and satisfies Congress’s seven day delivery cycle requirement for absentee ballots.
In 1970 no one in Congress expressed any doubt that the Post Office, soon to become the USPS, could meet the absentee ballot delivery time requirement it was enacting into law.
What lion of the Senate do you think sponsored this mandate on the states and the federal government in 1970? Ted Kennedy would be a good guess but you would be wrong. Hubert Humphrey would not be back in the Senate for another year. Eugene McCarthy? No. George McGovern? No.
Here are two very brief excerpts from the sponsor’s testimony to the Senate Judiciary Committee Subcommittee on Constitutional Rights.
In fact it wasn’t a Democrat at all. It was a Republican and it wasn’t a liberal Republican from the northeast like Jacob Javits. It was Barry Goldwater whose bona fides as a conservative Republican are beyond dispute. Today’s Republicans in Washington should heed their distinguished predecessor from Arizona and make sure that the USPS carries absentee ballots in the timely fashion required by law.
