Under the current Nevada law, absentee ballots must be postmarked by Election Day to confirm they were mailed on time. However, the law permits county clerks to accept postmarked ballots for up to four days after the election and to process those without postmarks within a three-day grace period. This provision could lead to voter fraud.
The Trump campaign, along with the Republican National Committee (RNC) and the Nevada GOP, sued Nevada's Secretary of State and several county clerks in June to stop counting all ballots with no postmark. Unfortunately, a Carson City District Court ruled in favor of the state due to voter access and protection from disenfranchisement in August. And now, the Nevada Supreme Court has upheld this decision.
"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 Nevada Supreme Court wrote in its majority opinion.
"Rejecting timely mail ballots because of postal service omissions cuts against the strong public interest in exercising the right to vote. Notably, the RNC presented no evidence or allegations that counting mail ballots without postmarks under [state law] would be subject to voter fraud, or that the election security measures currently in place are inadequate to address its concerns regarding these ballots." (Related: Mail-in ballots need to GO if American elections will ever again have integrity.)
The 5-2 decision saw five justices fully support the decision of the lower court. Justice Kristina Pickering questioned the interpretation but expressed hesitation about altering election protocols so close to the upcoming election on Nov. 5.
5th Circuit Court of Appeals rules against Mississippi's policy of counting mail-in ballots
In contrast, the 5th U.S. Circuit Court of Appeals ruled on Oct. 26 that Mississippi's policy of counting mail-in ballots arriving after Election Day violates federal law.
The panel of three judges supports the RNC and other conservative groups that filed the lawsuit, seeking an end to the post-Election Day counting of mail-in ballots. Mississippi, a traditionally Republican state with minimal mail-in voting, has become a focal point for the legal challenge, which could have implications for voting practices in other states.
"Congress statutorily designated a singular 'day for the election' of members of Congress and the appointment of presidential electors," the 5th Circuit panel said. "Text, precedent and historical practice confirm this 'day for the election' is the day by which ballots must be both cast by voters and received by state officials."
The panel also clarified that it was not addressing the counting process itself but rather the deadline for ballot receipt.
"That is not to say all the ballots must be counted on Election Day," the panel stated. "Even if the ballots have not been counted, the result is fixed when all of the ballots are received and the proverbial ballot box is closed. The selections are done and final. By contrast, while election officials are still receiving ballots, the election is ongoing: The result is not yet fixed, because live ballots are still being received."
For now, the ruling does not require immediate changes to the mail-in ballot policy of Mississippi for the upcoming election. Instead, the case will return to a lower court for further proceedings. Judge Andrew Oldham, alongside Judges James Ho and Kyle Duncan, advised the lower court to weigh the potential disruption of modifying voting practices so close to the election.
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