California’s slow voting system is facing changes as the Supreme Court’s decision on late voting approaches
California’s slow vote-counting process — still ongoing and controversial after last week’s primary election — may be forced to change ahead of November’s midterm elections, as the US Supreme Court prepares to rule on whether ballots must be received on Election Day to be counted.
Whether those changes will speed things up — and help quell unsubstantiated claims from President Trump and others that undercounts are proof of fraud — will depend on a variety of factors, election experts say, including how the high court rules, how state lawmakers and local election officials respond, and whether they push for any additional measures to speed up the count.
“We’re all on the edge of our seats, waiting to see what the Supreme Court does,” said Kim Alexander, president of the California Voter Foundation.
“We’re certainly planning for a bad Supreme Court decision in this case, but we don’t really know all of our options for how to respond until we see the court’s decision,” said Assembly member Gail Pellerin (D-Santa Cruz), chair of the Assembly Elections Committee and former chief elections officer for Santa Cruz County.
Pellerin said he has been working on emergency plans with other state officials – including Gov. Gavin Newsom, Secretary of State Shirley Weber and Atty. Gen. Rob Bonta – and asked for $35 million in state funds to educate voters about any new midterm deadlines, though that money has not yet been allocated.
Federal law, dating back to 1872, sets “election day” as the first Tuesday following the Monday in November, and gives Congress oversight of the election of the president and members of Congress. However, most of the authority to conduct elections falls to the states.
California currently provides a grace period for ballots to be counted as long as they are marked and received within seven days of election day. More than a dozen states have similar laws allowing the counting of late ballots, and many states accept such ballots from members of the military serving overseas.
In March, the state’s highest court heard arguments about Mississippi’s five-day grace period, with the court’s conservative majority appearing skeptical. Many observers expect from those debates that the Supreme Court will rule, at the end of this month, that votes – at least for federal races – must be available on election day to be counted.
That result – in the case of Watson vs. Republican National Committee – considered a possibility but not confirmed, and some election experts believe that the supreme court has no legal precedent to support such a conclusion.
“That’s a false interpretation of the law,” said Rick Hasen, an election law expert and director of the Project on Defending Democracy at UCLA Law. “It violates what the law says as a matter of text and history, and how it’s been understood since the Civil War basically.”
Hasen and others doubt the change will have much of an impact on speeding up California’s vote-counting process, given that many mail-in ballots that are dropped off at ballot boxes or arrive at processing centers on or just before Election Day will still be counted — and will drag out the counting process for days after the election.
In 2024, California counted more than 406,000 late votes, but they represent about 2.5% of the total.
“The biggest problem is actually not the votes that come after the election day. The obstacle is the votes that come before or on the election day,” said Hasen. “So I don’t think the Watson case — however it comes out — is going to really change the time in California where they’re going to get enough votes counted in a close race to be called by the news organizations.”
Still, state and local election officials are preparing for changes — and looking at other ways to speed up the vote count, which, as of Monday, has resulted in more than 7.7 million ballots counted since the start of last week, but more than 1.7 million remain to be processed.
The state’s plans are unclear
If the Supreme Court were to rule that ballots cast in state elections must be accepted on Election Day, California would need to respond quickly.
A texting campaign will be needed to inform millions of voters about the new rules, and it will be necessary to decide when to tell voters to send their ballots in to be counted, experts said. That figure could be partially shaped by the Trump administration’s efforts to assert federal control over the mail-in voting process through the US Postal Service, which California and other states are fighting in court.
California officials may also need to decide whether to create a “double counting process” with separate rules for primary and general elections and separate rules for state races and state and local races with the same votes, Alexander said, since the Supreme Court ruling may not apply to all equally.
“That’s a big policy decision that lawmakers are going to have to make, and I’m not sure how that’s going to go,” Alexander said, citing a lack of detailed public plans from state and local election officials.
Weber – who urged voters to vote early in last week’s election – did not respond to a request for comment.
Brandon Richards, a spokesman for Newsom, said the governor’s office does not comment on “speculative matters,” but said Newsom is “planning for all things to happen, including but not limited to attacks on our democracy and interference with our elections.”
Bonta’s office said it is “contacting election officials and actively preparing for the possibility that the US Supreme Court may require changes to California’s election process,” but could not provide details.
Dean Logan, head of the LA County Registrar-Recorder/County Clerk’s office, said he was “not in a position to discuss the specifics of emergency planning” since the high court has yet to issue a ruling, but his office is “monitoring the case closely and has begun assessing the potential implications for election officials.”
If the changes are required by the court, Logan said his office is “willing to conduct an extensive voter education and outreach effort to ensure that voters understand any new requirements, deadlines, or voting options,” which would be “multilingual, multichannel, and designed to reach voters directly throughout Los Angeles County, particularly in communities that rely heavily on mail-in voting and those that have historically done so.”
Funds needed to calculate quickly
Alexander’s group supported Pellerin’s request for $35 million for a marketing campaign to encourage voters to submit midterm ballots early, and advocated for another $55 million in state funding to support county efforts to improve their ballot processing capabilities.
HD Palmer, a spokesman for the California Department of Finance, said it was “premature” to comment on those requests, but “discussions were ongoing and ongoing.”
Both Alexander and Hasen said California should invest more in its vote-processing capabilities even if the current process is fair and secure and claims of fraud are unfounded, because those claims have succeeded in undermining trust.
“On the one hand, this is a manufactured problem. There’s nothing really wrong with counting the race less,” Hasen said. “On the other hand, we live in an era of great distrust in institutions and the integrity of elections, in no small part because of Donald Trump.”
In 2012, just over half of all California votes were cast by mail. However, that number has increased significantly since, thanks in part to an increase during the COVID-19 crisis, and nearly 89% of ballots were cast by mail in last year’s special election.
Alexander said throughout that time, California lawmakers have passed new laws to expand access to elections but haven’t provided counties with the funding needed to keep up with the volume — meaning “counties are left holding the bag.”
Alexander said California should fix that by providing consistent state funding for new vote-counting machines, modern and efficient workplaces, and expanding a program supported by Pellerin and available in some states that already allows voters to drop off ballot envelopes in person to actually turn those ballots into in-person ballots at the time — which Alexander called an “integrated time processing” option for a large number of states.
He said the state has spent millions to educate voters about new mail-in voting procedures related to COVID and deadlines in 2020, and it has led to record responses and quick counts — proving access and speed are not mutually exclusive.
“We’re being asked to make a false choice,” Alexander said. “It is possible to have an accessible, secure, reliable and verified election, and a quick vote count.”
Times staff writer David G. Savage in Washington contributed to this report.
