The Nevada Supreme Court has ruled that election officials can count mail ballots with no postmark received as many as three days after Election Day.
In a recent decision, five of the high court’s seven justices disagreed with the Republican National Committee’s (RNC) interpretation of the law at the center of the lawsuit and determined it would not be in the public interest to change election procedures this late in the cycle. Justices Douglas Herndon and Kristina Pickering agreed with the ruling but disagreed with the majority’s interpretation of the law in question.
The ruling upholds a Carson City judge’s denial of the Republicans’ request in August to stop the counting of these ballots. It is the latest defeat in the barrage of lawsuits filed by state and local Republicans related to Nevada’s mail ballot laws and voter roll maintenance, none of which have resulted in GOP victories, though one is pending a ruling and the others are in various stages of appeal.
In a statement last Monday, an RNC spokesperson accused the court of ignoring the postmark requirement in state law and said it “has undermined the integrity of Nevada’s elections.”
"Requiring ballots to be postmarked on or before election day is a critical election integrity safeguard that ensures ballots mailed after election day are not counted,” the statement said.
Bradley Schrager, a Nevada lawyer who typically represents Democrats in election-related proceedings, commended the ruling in a statement.
“We are gratified that the Nevada Supreme Court recognized not only that state laws should be construed to favor the rights of voters to cast their ballots and have them counted, but also that lawsuits like this one so close to the general election tend to promote confusion and chaos rather than orderly democratic processes,” the statement said.
The Nevada Secretary of State’s Office also said in a statement that the ruling ensures the state’s elections will “continue uninterrupted, without the risk of disenfranchising voters through no fault of their own.”
In June, former President Donald Trump’s campaign, along with the Nevada GOP and RNC, filed the lawsuit that sought to stop counting all ballots with no postmark. Democrats and Republicans acknowledged that the suit addressed a miniscule number of ballots, but such a decision could still prove crucial in a state where margins could be razor-thin.
The suit centered on the state law that allows officials to count mail ballots postmarked with a date that “cannot be determined” and received within the three days following Election Day. It argued that counting non-postmarked mail ballots — as suggested by the Nevada Secretary of State’s Office in a May memo to county clerks — was a misreading of the law, and that the law was not being followed by Washoe and Clark county officials during the June primaries. The GOP said it was aware of 24 ballots in June that were not postmarked and were received after Election Day.
During oral arguments earlier this month, Michael Francisco, the GOP’s lawyer, argued that the state’s counting of ballots with a postmark date that “cannot be determined” indicates that there must be a postmark on a ballot for it to be considered valid.
Meanwhile, David Fox, a Washington, D.C.-based lawyer who frequently represents Democrat-backed causes, argued that the “cannot be determined” phrase is intentionally vague and should also include ballots without a postmark.
The high court’s majority concluded that the statute can be reasonably interpreted both ways, but sided against Republicans because of the legislative history of the law. For example, former Assembly Speaker Jason Frierson (D-Las Vegas) said in a 2021 hearing related to the legislation that the statute is intended to include non-postmarked ballots.
However, Herndon disagreed with this rationale, writing that the law “is clear and unambiguous that a mail ballot must contain a postmark.” Still, he agreed with the overall ruling — on the basis that the Republicans failed to demonstrate they would suffer an “irreparable harm” if non-postmarked ballots are counted.
Pickering, who also disagreed with the majority’s interpretation of the law but supported the ruling, did so because she does not want to change election procedures so close to Election Day.
“With mailed ballots already sent to voters and early voting underway, clarity and consistency in election rules are of paramount importance,” Pickering wrote. “It is not in the public interest to change the rules governing this election this close to election day.”
The court’s majority also held a similar view.
“If a voter properly and timely casts their vote by mailing their ballot before or on the day of the election, and through a post office omission the ballot is not postmarked, it would go against public policy to discount that properly cast vote,” the majority wrote.