This article originally appeared in The Texas Tribune.
The U.S. Postal Service has warned Texas officials that some ballots cast by mail may not arrive in time to be counted for the November election thanks to certain state deadlines for mail-in ballots being incompatible with its delivery standards.
"This mismatch creates a risk that ballots requested near the deadline under state law will not be retuned by mail in time to be counted under your laws as we understand them," Thomas Marshall, general counsel and executive vice president of the USPS, wrote to Texas Secretary of State Ruth Hughs in a letter dated July 30. "As a result, to the extent that the mail is used to transmit ballots to and from voters, there is a significant risk that, at least in certain circumstances, ballots may be requested in a manner that is consistent with your election rules and returned promptly, and yet not be returned in time to be counted."
It is unclear how many Texas voters may be affected should such delays occur. A spokesperson for the secretary of state's office, which provided The Texas Tribune with a copy of the USPS letter, did not immediately answer questions about whether the agency plans to respond to the letter or will issue guidance to voters or local elected officials based on it. State lawmakers create elections deadlines and the secretary of state’s office does not have the power to change them, according to state statute.
USPS' warnings come as the agency undergoes overhauls due to financial shortfalls. Efforts to cut costs have delayed standard mail delivery in some places across the country.
In his letter, Marshall said the USPS was not claiming to "definitively interpret" the state's election law, nor was it "recommending that such laws be changed" to accommodate its delivery standards.
"By the same token, however," Marshall wrote, "the Postal Service cannot adjust its delivery standards to accommodate the requirements of state election law."
Texas was among 40 states, including Florida and Michigan, that received a warning from the USPS over their long-standing deadlines, according to The Washington Post. Six other states and Washington, D.C., received more mild warnings from the Postal Service that said some ballots may be delayed for a smaller group of voters.
Under current Texas law, mail-in ballots are available only if voters are 65 or older, cite a disability or illness, will be out of the county during the election period or are confined in jail.
The Texas election code defines disability as a “sickness or physical condition” that prevents a voter from appearing in person without the risk of “injuring the voter’s health.”
The Texas Supreme Court found in May that the lack of a coronavirus immunity alone does not meet the state election code's definition of disability, but it could be considered a factor as part of a voter’s medical situation. The court reiterated that it is up to voters to assess their own health and determine if they meet the election code's definition of disability.
In Texas’ July 14 primary runoff elections, some hopeful voters who submitted their applications for mail-in voting on time indicated they never received their ballots. Other voters received their mail-in ballots and sent them in to be counted, only to have them returned unopened. Some of those reached county elections offices after a second attempt, while others still appeared lost on election night.
In July, Gov. Greg Abbott extended the early voting period for the November election by six days, citing challenges related to the ongoing coronavirus pandemic. Early voting for the Nov. 3 election will begin Oct. 13 and end, as originally scheduled, on Oct. 30.
Voters can already apply fora mail-in ballot. Election officials must receive such applications by Oct. 23. Election officials generally must receive mail-in ballots by Election Day or the day after, depending on whether there is a postmark. Deadlines may differ for active military voters and other voters, depending on their specific circumstance.
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