The Nevada Supreme Court (NSV) ruled that the state can count all mailed-in ballots, including those without a postmark, up to three days after the election.
Nevada counts ballots “postmarked on or before Election Day and received by clerk offices by the fourth day following to be counted.”
The RNC filed a June lawsuit alleging the election officials would count ballots without a postmark.
The RNC cited a deputy secretary of state for elections:
This lawsuit is necessary because the Nevada Deputy Secretary of State for Elections recently testified that this key safeguard of Nevada law will be ignored in upcoming elections and that mail ballots without a postmark will be counted if received up to 3 days after election day. See Deputy Secretary of State for Elections Mark Wlaschin, testimony before Nevada Advisory Committee on Perspiratory Democracy, April 23, 2024, available at 4/23/2024 – Secretary of State – Advisory Committee 11 on Participatory Democracy – YouTube (starting at 1:30:09).
Carson City District Court Judge James Russell denied the RNC and former President Donald Trump’s request for a preliminary injunction, which would pause counting ballots that did not have a clear postmark.
The Nevada Supreme Court ruling upholds Russell’s decision.
Here are a few of the court’s reasons for counting ballots without a postmark.
The RNC argued that a voter can ensure the ballot has a postmark.
Well, the justices appeared to take the Democrat voter ID argument:
The RNC asserts that a voter can ensure their ballot is postmarked by visiting a post office in person and requesting a postmark from the postal service associate when dropping off their mail ballot. While this may be possible for some voters, it may not be for other groups, such as homebound voters or those who live significantly far away from a post office and thus cannot physically drop off their mail ballot in person. Nor does the statute impose such a burden on voters. And doing so would cut against the stated purpose of expanding, rather than limiting, voting rights.
The majority of the justices concluded the RNC didn’t “demonstrate standing under a resource-diversion theory:”
The RNC asserts that it currently expends significant resources on election monitoring. but it would need to expend additional resources to specifically monitor mail ballots received without postmarks. But the RNC already monitors elections. Accordingly, any additional resources it would expend would merely constitute “continuing ongoing activities” or “business as usual.” See Friends of the Earth v. Sanderson Farms, Inc., 992 F.3d 939, 942 (9th Cir. 2021) (holding that a diversion-of-resources injury cannot be established based on:`continuing ongoing activities” or expenditures related to “business as usual”). Nor did the RNC allege the challenged action directly affects the RNC’s core business activity. Food & Drug Administration v. All. for Hippocratic Med., 602 U.S. 367, 395 (2024) (emphasizing that challenged governmental actions must “directly affect[ ] and interfere []” with a plaintiffs “core business activities” to establish a diversion-of-resources injury). Thus, the RNC lacks standing under a diversion-of-resources theory.
The justices also decided the RNC did not prove it would succeed on merits.
The court chose to go with the State and Vet Voice Foundation interpretation of the law NRS 293.269921(2):
The second interpretation, offered by the State and Vet Voice Foundation, is that subsection 2 applies to mail ballots without a postmark because in those circumstances, “the date” also “cannot be determined.” Notably, in Donald J. Trump for President, Inc. v. Cegayske, the federal district court interpreted a previous, identical provision, concluding that it established “a presumption that a ballot was cast in time, as long as it is received by election officials before 5 p.m. on the third day after the election, even if it lacks a postmark.” 488 F. Supp. 3d at 996 (emphasis added). And while our dissenting colleague notes that the Legislature could have clearly stated that it intended for subsection 2 to apply to mail ballots without postmarks, the converse is also true—if the Legislature meant for subsection 2 to apply only to “illegible” or smudged” postmarks, it could have explicitly said that as well. Because the statute could therefore reasonably be interpreted in at least two ways, we look beyond the statute’s plain language to determine the Legislature’s intent. See Valenti, 131 Nev. at 879, 362 P.3d at 85 (providing that to resolve an ambiguity, this court will look at the legislative history to interpret the statute in a way that conforms with reason and public policy).
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