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Attorney General of Virginia

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Commonwealth of Virginia
Office of the Attorney General

Mark Herring
Attorney General

202 North Ninth Street
Richmond, Virginia 23219


For media inquiries only, contact:  
Charlotte Gomer, Press Secretary
Phone: (804)786-1022 
Mobile: (804) 512-2552
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.


~ Herring joins coalition of 13 attorneys general in arguing that extended deadline protects public health and vote-by-mail participation amid pandemic and post office delays ~

RICHMOND – Attorney General Mark R. Herring today joined a group of 13 state attorneys general in defending Minnesota’s deadline extension for receiving and counting mail-in ballots that were properly cast on or before Election Day. In an amicus brief filed in Carson v. Simon in the U.S. Court of Appeals for the Eighth Circuit, Attorney General Herring and his colleagues argue that local election officials should be allowed to administer the upcoming election in ways that protect voter safety and voter participation considering the COVID-19 pandemic and uncertainties with the United States Postal Service (USPS). The brief argues that extending the date by which a mail-in ballot must be received to count is a measure several states have taken to allow voters to cast their ballot by mail while also accounting for USPS’s recent delays.


“The numerous challenges surrounding this year’s election season have forced many localities and states to get creative and come up with solutions to make voting safe and easy,” said Attorney General Herring. “Local and state elections officials are the best people to come up with tailor-made solutions to the challenges they may be facing during these unprecedented times. Protecting voter safety and voter participation are top priorities during an election cycle unlike any we have ever seen before, and local elections officials must have the ability to do so in ways that are appropriate for each specific community.”


Amid the COVID-19 pandemic, states across the country have modified their election procedures to protect both voter participation and the health of voters and election workers. Extending receipt deadlines for mail-in ballots that are properly cast on or before November 3, 2020, is a popular option adopted by many states, especially given recent crises engulfing the USPS. Attorney General Herring joined several attorneys general in suing to stop USPS cuts that threatened mail service in advance of Election Day. The court there issued a preliminary injunction preventing the operational changes that would undermine mail delivery. Despite this win, USPS has indicated that it faces challenges to timely delivery of election mail, which makes extending receipt deadlines for mail-in ballots an important accommodation.


In May 2020, a Minnesota advocacy group filed a lawsuit in state court alleging that the state’s receipt deadline of 8 p.m. on Election Day was unconstitutional, especially in light of the increase in mail-in voting during the pandemic and USPS’s mail delays. The court entered a consent decree in which the Minnesota Secretary of State agreed to extend the deadline. The Secretary directed election officials to accept all mail-in ballots postmarked on or before November 3, 2020, and received by election officials within five business days (seven calendar days) of Election Day.


In September 2020, a lawsuit was filed in Minnesota federal court to prevent the Secretary from accepting mail-in ballots received after the original receipt deadline of Election Day. The district court declined to issue a preliminary injunction, and plaintiffs appealed that order to the Eighth Circuit and moved for an injunction pending appeal. 


In the amicus brief, the coalition supports Minnesota’s deadline extension for receiving mail-in ballots because:


  • States have a responsibility to protect voter safety and participation amid the pandemic and USPS concerns: The Supreme Court has recognized that states have the power to regulate elections and must do so in ways that preserve the right to vote. During the pandemic, states have taken reasonable, common-sense steps to encourage safe vote-by-mail options, including by extending receipt deadlines. These extensions help ensure properly cast ballots are counted and boost confidence in voting by mail. In Minnesota, more than 1.5 million registered voters have requested absentee ballots for the November election, up from 676,000 in the 2016 general election. Given the influx of expected absentee voters and uncertainty with USPS delivery, Minnesota’s deadline extension for receiving mail-in ballots is a reasonable move to ensure that all valid ballots cast on or before Election Day will count. 
  • Accepting mail-in ballots received after Election Day is a longstanding practice in many states: At least 22 states and the District accept absentee or mail-in ballots received after Election Day when the ballot is shown—via postmark or otherwise—to have been cast on or before Election Day. This practice has expanded during the COVID-19 pandemic, during which many states have extended their receipt deadlines to reduce the public health risks of voting in-person and accommodate potential delays in USPS service.


Because of the COVID-19 pandemic, Attorney General Herring has worked with Virginia's elections officials to find solutions to make sure Virginians can vote safely and easily. These solutions provide voters with safe alternatives to in-person voting, so that they are not putting the health and safety of themselves or that of their loved ones at risk. He and his team have been able to negotiate options to promote safe, secure voting for folks who cannot or do not want to risk their health to vote in person. For the November election he reached an agreement that waived the witness requirement for absentee ballots for Virginians who believe they may not safely have a witness present when completing their ballot, and another agreement that makes it easier for Virginians with print disabilities to participate in the election safely at home. Additionally, last week, Attorney General Herring reached an agreement to extend the voter registration deadline by two days, following a registration system outage that lasted several hours, preventing Virginians from registering to vote on the final day before the original deadline.


Joining Attorney General Herring in filing today’s amicus brief are the attorneys general of California, Connecticut, Illinois, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Washington, and the District of Columbia.  


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