In recent weeks, there has been much public discussion about how the Covid-19 pandemic could affect the upcoming general election on November 3, 2020. Of particular concern has been how a potential surge in ballots available for casting by mail could affect the reliability and timeliness of election results. One facet of this discussion often misunderstood is the differences between “voting by mail” and “absentee voting,” as those terms are used in election law.
Voting by mail usually refers to elections conducted entirely by mail, as in Colorado, Hawaii, Oregon, Washington, and Utah, and when counties have the option to choose to conduct elections entirely by mail, as in California, Nebraska, and North Dakota.
This year, voting by mail also refers to jurisdictions that, in response to the Covid-19 pandemic, have chosen to automatically send out ballots to all registered and/or eligible voters, as in California, New Jersey, Vermont, Nevada, and the District of Columbia.
Absentee voting, in contrast, refers to when an election is conducted by in-person voting, but a voter may request an absentee ballot in lieu of voting in person. In two-thirds of the states, any qualified voter may vote absentee without offering an excuse, and in one-third of the states, an excuse recognized by law—which vary by state—is required.
In Mississippi, for example, there is no voting by mail as described above. For absentee voting, Mississippi registered voters may be eligible because of, among other excuses: age (65 or older); temporary or permanently disability; absence from home on election day; work demands; temporary relocation for educational purposes; or affiliation with the U.S. Armed Forces. In response to Covid-19, the Mississippi Legislature passed legislation adding Covid-19 patients under physician-imposed quarantine, or anyone caring for a dependent who is such a patient, as also being eligible to vote absentee.
Absentee ballots in Mississippi may be voted in one of two ways: by appearing in the office of the county or municipal clerk and completing an application and ballot in person, or by requesting an application and ballot be mailed to the voter and by mailing back to the clerk a completed application and voted ballot.
In response to Covid-19, the Mississippi Legislature also passed legislation to allow mail-in absentee ballots to be counted as long as they are postmarked by election day and received by the clerk within five days of the election. Under the old law, ballots had to be received by the clerk the day before the election.
Absentee ballot applications—but not ballots—will be available in county circuit clerks’ offices beginning on September 4, 2020. The earliest day on which to vote by absentee ballot in person at circuit clerks’ office is September 21, 2020. The final day to vote by absentee ballot in circuit clerks’ office is October 31, 2020.
Spencer Ritchie is a Partner with Forman Watkins & Krutz LLP in Jackson, Mississippi, where he practices in the areas of political law, commercial litigation, and employment law. Ritchie is the former Executive Director of the Mississippi Republican Party.