Fact check: Colorado’s vote by mail system is constitutional

Nate Trela, USA TODAY
·4 min read

The claim: Colorado mailing ballots to all voters is unconstitutional

Mail-in voting in the U.S. dates back in some form to colonial times, but it was never utilized at a scale that compares to what was seen during the COVID-19 pandemic. An estimated 43% of votes in the 2020 presidential election were cast with mail-in ballots.

Some states decided to send ballots to all registered voters to mitigate the risk of COVID-19 spreading at the polls in 2020, enabling what are called vote-at-home systems. Colorado is among a handful of states that was doing so before the pandemic started.

But an Oct. 22 Instagram post claims Colorado mailing ballots to all eligible voters is unconstitutional. The post includes two images of a mail-in ballot and a caption that reads in part, "So when you get this…mailed unconstitutionally to every Colorado voter whether they requested one or not, ignore the instructions to vote early."

When contacted by USA TODAY, the user said that “mail in voting is supposed to be only for people that are out of the state due to military or business commitments or physically unable to vote in person and request a mail in ballot."

But experts say Colorado's mail-in ballots initiative is indeed constitutional, as no court has ruled otherwise. Colorado’s state constitution does not directly address having a vote-at-home system, but state law has explicitly authorized the sending of ballots to all registered voters since 2013.

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No successful challenges citing Colorado, U.S. constitutions

Annie Orloff, a spokesperson for the Colorado Secretary of State’s Office, said in an email to USA TODAY that no attempts to challenge the constitutionality of Colorado’s vote-at-home system have succeeded.

Article VII, Section 8 of the Colorado constitution says that all elections "shall be by ballot” but does not address the practice of mailing ballots to all registered voters. That system was first authorized under the state’s 2013 Voter Access and Modernized Elections Act. That law, along with others refining the system, allows residents to mail back completed ballots, drop them off or complete them at a polling location.

Voters who are blind or otherwise unable to read a print ballot, active-duty military members and their immediate families and U.S. citizens overseas may also mark and submit ballots through an online system, under newer laws.

At the federal level, the key case establishing the constitutionality of mail-in voting from home is a 2001 ruling by the U.S. 9th Circuit Court of Appeals, according to Phil Keisling, chair and acting executive director of the National Vote at Home Institute. The case upheld Oregon’s universal absentee election law, which was authorized in 1998 and is the oldest in the country.

The court held that although an 1872 law called for a single federal election on the first Tuesday after the first Monday of November, throwing out Oregon’s voting system could not be done without throwing the entire concept of absentee voting into question.

“What persuades us of the proper outcome in this difficult case is the long history of congressional tolerance, despite the federal election day statute, of absentee balloting and express congressional approval of absentee balloting when it has spoken on the issue,” he wrote.

Keisling, Oregon’s secretary of state from 1991 to 1999, told USA TODAY the claim about the Colorado mail-in balloting system was utterly “bogus.”

“No court – district, appeal, or the Supremes – has ever declared this approach unconstitutional,” he said via email.

Colorado is among eight states that have laws requiring ballots be mailed to all registered voters for all elections, according to the National Conference of State Legislatures. An additional 14 states allow mail-in elections in some cases.

The legality of mail-in voting from home differs from state to state. For example, the Delaware Supreme Court ruled on Oct. 7 that a universal vote-by-mail system approved this year violated that state’s constitution. But that ruling has no bearing on Colorado’s system.

PolitiFact and the Associated Press have also debunked the claim about Colorado's voting system.

Our rating: False

Based on our research, we rate FALSE the claim that Colorado mailing ballots to all voters is unconstitutional. No court has issued a ruling declaring this in Colorado. Colorado’s state constitution does not specifically enable a vote-at-home system, but state law requires sending ballots to all eligible voters.

Our fact-check sources:

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DENVER, CO - JUNE 28: An election judge rolls up "I Voted" stickers during voting in the State Primaries on June 28, 2022 at the Wellington E. Webb Municipal Office Building in Denver, Colorado. Many people running for office in the state support former President Donald Trump and his view of the 2020 election. (Photo by Marc Piscotty/Getty Images) ORG XMIT: 775832100 ORIG FILE ID: 1241597177

This article originally appeared on USA TODAY: Fact check: Colorado's vote from home system is constitutional