By james art The Nevada Supreme Court has rejected an appeal by the Republican National Committee that sought to block the counting of some unpostmarked ballots in the Nov. 5 general election.
The RNC claims that ballots without a postmark may have been mailed after Election Day ended, but still arrived within the three-day window after the election to be counted.
The RNC asked the court to rule that without proof of a mailing date, those ballots should not be counted.
The court did not oblige.
“If a voter duly and timely casts a ballot by mailing his or her ballot before or on election day, and because of an oversight in the post office the ballot is not postmarked, it would be contrary to public policy to reject the properly cast ballot,” said the majority opinion.
The RNC also claims that Republicans use mail-in ballots at a much lower rate than Democrats. Because of this, it is argued, mail-in ballots without stamps are likely to be Democratic ballots, and thus Republicans will be disadvantaged in their counting.
The justices upheld a Carson City District Court ruling that denied the RNC’s request.
The decision was made by five of the court’s seven judges: Chief Justice Elisa Kadish, Linda Bell, Patricia Lee, Lydia Stiglich and Ron Paraguire.
Reactions from the RNC, Nevada Secretary of State’s Office
RNC spokeswoman Claire Zunk said requiring ballots to be postmarked on or before Election Day is a critical measure that ensures ballots mailed after Election Day are not counted.
“By allowing Nevada officials to ignore the law’s postmark requirement,” Zunk said, “the state’s highest court has undermined the integrity of Nevada’s elections.”
An emailed statement from the Secretary of State’s office encouraged voters to take their mail-in ballot to a county box to ensure their vote is received before the deadline.
“This ruling,” he added, “will allow the administration of Nevada elections to continue without risk of disenfranchising voters through no fault of their own.”
No evidence of harm
In its rejection, the court said the RNC had not shown it would be financially harmed or that Democrats would be unfairly advantaged.
“In particular,” the majority wrote, “the RNC presented no evidence or allegations that the counting of unpostmarked mail-in ballots under (Nevada’s law) would be subject to voter fraud or that the election security measures that apply currently, are insufficient to address his concerns about these bulletins.”
They also noted that the RNC did not show mail-in ballots without lean Democratic postmarks.
The RNC provided two dozen Clark County unpostmarked ballots during the June primary, the majority said, but did not include evidence that those ballots “have affected any race during this election cycle or that such ballots would affect any race in the 2024 general election.”
Does voting by mail in Nevada require postage stamps?
Two dissenting justices took issue with the majority opinion, although they agreed with the decision not to stop the ballot counting.
Nevada law “clearly and unambiguously requires the presence of a postmark,” Judge Douglas Herndon wrote. “If the Legislature intended to include unpostmarked ballots, as the majority concludes, it would have done so.”
The majority states that Nevada law is open to two interpretations of postmarks, and one of them would involve the acceptance of unpostmarked ballots.
Head to the Nevada Legislature’s intent for more insight. The postmark bill’s sponsor — Rep. Jason Frierson — testified that he intended the ballots to be counted even if they weren’t postmarked.
The majority also cites the federal district court’s decision in the Nevada case of “Donald J. Trump for President, Inc. v. Cegavske,” which said there is a “presumption that the ballot was cast on time as long as it is received by election officials before 5 p.m. on the third day after the election, even if it is missing a postmark.”
Justice says it is too late to make changes in the 2024 election
In her dissent, Judge Christina Pickering noted that the RNC says it’s OK to count an unpostmarked mail-in ballot if it’s received on or before Election Day.
She said a strict reading of Nevada law indicates that ballots missing a postmark should not be counted. Many ballots in the mail do not receive a postmark due to the Post Office’s automated mailing processes, the US Postal Service acknowledges.
But that’s an argument for another day, she said, because she also thinks no changes should be made to the ballot count now.
“It is not in the public interest to change the rules governing this election so close to Election Day,” she wrote.
Mark Robison is the state political reporter for the Reno Gazette Journal, occasionally dabbling in other topics. Email comments to [email protected] or comment on Mark’s Greater Reno Facebook page.