Nevada Can Count Late Mail-In Ballots in Court Loss for GOP

(Bloomberg) -- The Nevada Supreme Court will allow state officials to count absentee ballots arriving without a postmark as many as three days after the Nov. 5 general election, rejecting a challenge brought by the Republican Party in the swing state.

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The decision on Monday is a setback for the national GOP organization in Nevada, where polls show a tight race in the presidential contest between Donald Trump and Vice President Kamala Harris.

A majority of the Nevada high court found that a state law allowing mail-in ballots to be counted if the postmark date “cannot be determined” applied to envelopes with no postmark at all. Republicans had argued that the law should only cover ballots with postmarks that aren’t legible.

It wasn’t immediately clear how many ballots might be affected by the ruling; the GOP offered an example of 24 ballots received by one county during this year’s primary. But the case is part of a broader effort by Republicans to impose more restrictions on absentee voting and question the security of the process. In 2020, a larger proportion of President Joe Biden’s supporters voted by mail compared to Americans who voted for Trump, according to a Pew Research Center report.

A spokesperson for the Republican Party did not immediately respond to a request for comment.

The Nevada justices wrote that the RNC hadn’t offered claims or evidence that unpostmarked ballots are vulnerable to fraud or that the state lacked tools to address any concerns about their security. There also wasn’t evidence that unpostmarked ballots favor one political party.

‘Public Interest’

“Rejecting timely mail ballots because of postal service omissions cuts against the strong public interest in exercising the right to vote,” the majority of justices wrote in the main opinion.

The decision follows a ruling last week by a federal appeals court in a fight over Mississippi’s election practices declaring that counting late-arriving mail ballots violates federal law. But that court, the 5th US Circuit Court of Appeals, declined to order any action ahead of Election Day, meaning Mississippi is likely to tally late-arriving ballots in the November contest.

The 5th Circuit’s ruling involved federal law — as opposed to the state law issue in the Nevada case — and would only apply to the federal courts under its jurisdiction in Mississippi, Louisiana and Texas.

Twenty-two states and US territories will count absentee ballots that arrive shortly after Election Day, and an additional 11 states count late-arriving ballots from overseas voters, according to the Justice Department.

Of the seven swing states expected to play a critical role in choosing the next president, Nevada is the only one that broadly accepts late ballots. Ballots postmarked by Election Day are accepted as many as four days later. State lawmakers also adopted the three-day rule to account for ballots with an illegible postmark; the state’s top election official declared it would apply to ballots with “no visible postmark.”

The Republican National Committee sued earlier this year in Nevada state court to challenge the rule for ballots that arrive without a postmark. A judge in Carson City in August denied the GOP’s request to block the law. She found that the committee lacked standing to sue — it was “inherently speculative” that late-arriving mail ballots would favor Democrats, she wrote — and that the case failed on the merits.

The state law said that the rule applied to ballots bearing a postmark with a date that “cannot be determined” but didn’t require a postmark to begin with, the judge wrote.

The RNC appealed directly to the state’s highest court, which agreed to put the fight on a fast track and heard arguments on Oct. 8.

The RNC separately sued the state in federal court over the four-day rule for mail ballots that do have a postmark and lost. The party is appealing that decision, but the 9th US Circuit Court of Appeals isn’t on track to rule before Election Day.

(Updated with additional information from the order.)

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