Kentucky Absentee Ballot Rejections
In Kentucky’s June 23, 2020 presidential preference primary 1,003,678 persons successfully cast ballots, for a turnout rate of those eligible to vote equal to 30.3%, the highest turnout rate for a modern primary election, slightly eclipsing 2008’s 29.2% turnout rate. The election was hailed as a success by Kentucky election officials. Amber McReynolds, chief executive officer of Vote at Home — an organization that promotes mail balloting — lauded the election thusly, “I think Kentucky could be a model for states that have not done a lot of absentee voting prior, or they’ve had excuse absentee, in terms of scalability.”[1] Basking in this success, Republican Secretary of State Michael Adams asked detractors — which included notable people like Hillary Clinton and LeBron James — apologize for criticizing the state for allowing only one in-person polling location per county, including the counties containing the large cities of Louisville and Lexington.[2]
Kentucky’s high turnout is laudable, but turnout should not be the only measure of election success as there are many idiosyncratic factors that determine turnout, particularly in primary elections. Turnout could increase if a high profile office has a competitive election, such as was the case for the Democratic U.S. Senate primary. For this reason, among others, the Pew Charitable Trusts’ Election Performance Index is a composite of seventeen indicators of a healthy election, including turnout.[3] We should examine factors other than turnout before affirming all is well with election performance.
Absentee Ballot Rejections
An important question to ask is, how well did Kentucky’s election system serve the voters who attempted to participate? In an election where, by Secretary Adams’ estimate, 75% of voters cast mail ballots,[4] a measure of election success is to examine how many absentee ballots that voters returned to election officials, those officials rejected.
To their credit, Kentucky provides ballot rejection data. Local election officials reported to the state the number of absentee ballots they rejected, along with a short description of the reason for the rejection. In all, election officials rejected 32,349 absentee ballots, which represents 3.1% of all ballots cast in the election (the unofficial total turnout of 1,003,678 votes cast plus the 32,349 rejected ballots). At this time, the Kentucky State Board of Elections has not reported the total number of absentee ballots. Using the Secretary of State’s estimate that 75% of all voters cast an absentee ballot, the absentee ballot rejection rate is 4.1%.
There is variation across the Kentucky’s counties. The Louisville Courier-Journal, speaking with local election officials, reported that the absentee ballot rejection rate for Jefferson County (where Louisville is located) was 4.4%, and in Fayette (where Lexington is located) the absentee ballot rejection rate was an alarming 8.0%.[5] According to the Census Bureau, whereas Kentucky as a whole is 84.1% non-Hispanic White, Jefferson County 66.5% non-Hispanic White and Fayette County is 70.7% non-Hispanic White. The absentee ballot rejection reports are aggregate statistics that do not identify individual voters, but it is troubling these higher ballot rejection rates occurred in Kentucky counties with substantial minority communities.
Perhaps more than half of the ballots rejected in these two populous counties, and in the entire state, were rejected for a reason Kentucky election officials know to be a problem, and has a simple cure.
Kentucky requires absentee voters to sign two envelopes: An inner envelope contains a voter’s ballot and an outer envelope that the inner envelope is placed into. A voter is required to provide a signature on the flap of the inner envelope, which, for no good reason, is perforated.
Statewide, 3,932 of the 32,349, or 12.2%, rejected absentee ballots were rejected because the inner envelop flap was missing. This is such a common problem in past Kentucky elections that the absentee ballot rejection form local election officials are asked to fill out helpfully includes “inner flap missing” as a suggested rejection reason.
Another 3,332 ballots, or 10.3%, were rejected statewide because the inner envelope was not sealed. Presumably, if the flap is missing, then it cannot be sealed. Cumberland County election officials even rejected two absentee ballots of voters who attempted to fix an envelope sealing issue with tape.[6]
Together, a missing flap or unsealed inner envelope resulted in 7,264 rejected absentee ballots, or 22.5% of all rejected absentee ballots.
Local election officials rejected another 1,484 absentee ballots, or 4.6% of all rejected absentee ballots, for a missing signature on the inner envelope. If the inner envelope flap was missing, then the signature would be missing, too. However, I cannot say definitely that the missing flap was the cause.
I believe there is a strong legal case that a duplicate signature is unnecessary, and that no absentee ballot should be rejected for failing to have this second signature. In the 2018 Georgia case Martin v. Crittenden,[7] the court ruled that Gwinnett County could not reject absentee ballots for failure to provide a year of birth because the Civil Rights Act prohibits the practice of disqualifying voters “because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material to determining whether such individual is qualified under State law to vote in such election.”[8] The signature on the outer envelope is sufficient to determine a voter’s identity.
Further evidence is that other states use a similar system of an inner and outer envelope. However, in these other states, the inner envelope is often called a “privacy envelope” in that there are no identifying markings on it. When election officials determine a voter provided the required information on the outer envelope, the inner envelope is separated from the outer envelope and is placed with other ballots to be counted. The pile of anonymous inner envelopes and ballots thus ensures the secrecy of voters’ ballots because, once separated from the outer ballot, there is no way to correspond the inner envelope and the ballot it contains with an individual voter. There is no clear purpose for signing the inner envelope other than to trip up voters and provide an excuse to reject their absentee ballots. Again, this is a known, persisting issue to Kentucky election officials.
Indeed, the law is likely not administered uniformly throughout the state. Twenty-eight counties with a total of 139,619 voters reported rejecting no absentee ballots for a missing inner envelope flap, an unsealed inner envelope, or a missing inner envelope signature. That is more than the 80,300 votes cast in Fayette, which reported 3,798 missing flaps or unsealed inner envelopes. It is extremely unlikely that so many Fayette County voters made this mistake, whereas none of the voters in these twenty-eight smaller, rural counties made no such errors.
Granted, an explanation may be in how counties choose to report the inner envelope issue. Some election officials provide an ambiguous missing signature rejection reason that could indicate a problem with the inner or outer signature. Local election officials reported a total of 11,670 ballots rejected for a missing signature.
Even if I allow for this reporting inconsistency, it is still very likely Kentucky local election officials are not applying the same scrutiny to absentee ballots across the state. Thirteen counties totaling 50,687 votes cast reported no rejecting no absentee ballots for a missing inner envelope flap, an unsealed inner envelope, a missing inner envelope signature, or any ambiguous missing signature. The baseline Fayette County had a total of 5,713 ballots rejected for any of these reasons. Reasonably, there should be at least some absentee ballots rejected for one of these four reasons in these thirteen rural counties.
Furthermore, if I include these along with the clearly identified inner envelope issue, as many as 20,418 absentee ballots, or 63.1%, were rejected statewide for a problem with the inner envelope. That’s a lot of ballots.
The Bottom Line
Kentucky held a high turnout 2020 primary election, which is laudable in times of the coronavirus pandemic and bodes well for conducting the November election.
That does not mean that the election was without flaws. I focus on one such here issue, absentee ballots that were rejected because of a design flaw occurring on the inner ballot return envelope: an envelope flap that can be detached and where voters are required to provide an unnecessary signature.
The good news is these issues can be easily fixed. Election officials should provide voters with an inner envelope where the flap does not detach. Kentucky should not require a second signature, which is unnecessary to establish a voter’s identity. It appears some rural local election officials already forgive their voters for these errors, so this should be the practice statewide.
Michael McDonald is a Professor of Political Science at the University of Florida. You can follow him on Twitter @ElectProject
[1] https://www.politico.com/news/2020/07/04/coronavirus-voting-kentucky-primary-348611
[2] https://kentucky.gov/Pages/Activity-stream.aspx?n=SOS&prId=324
[3] https://www.pewtrusts.org/en/research-and-analysis/data-visualizations/2014/elections-performance-index
[4] https://www.politico.com/news/2020/07/04/coronavirus-voting-kentucky-primary-348611
[5] https://www.courier-journal.com/story/news/politics/elections/kentucky/2020/07/07/kentucky-elections-jefferson-county-rejects-more-than-8-000-ballots/5389986002/
[6] I do not count these in the 3,332 since the reason code is ambiguous as the which envelope had the problem: “INNER ENVELOPE & OUTER ENVELOPE ALL TAPED UP”.
[7] Martin v. Crittenden, №1:18-cv-4776-LMM, 2018 WL 5917860, at *7 (N.D. Ga. Nov. 13, 2018)
[8] See: 52 U.S.C. § 10101(a)(2)(B)
