Nevada allowed to continue counting ballots received after Election Day, judge rules
Er”>part of a trend of states expanding access to mail-in voting in response to the COVID-19 pandemic, and the RNC filed a lawsuit in May claiming the law is unconstitutional.
“Without postal delays, ballots would place the organization at a competitive disadvantage, creating a significant risk of dilution,” the suit argued, claiming that accepting ballots beyond Election Day violates the Equal Protection Clause of the Constitution. The suit also alleged that because voting is not a right “every voter should expect [their] vote not to be wiped out by a vote that [is] cast contrary to law,” claiming the legislature “forcibly diluted” voters’ rights.
But Du said that was not enough to prove harm.
“This theory asks the Court to simply assume that changes in voting procedures have an effect on election results and certainly does not support a conclusion that those effects will harm a party if standing is improper,” Du wrote, adding that “without a causal chain, theory does not show a concrete and particularized injury-in-fact that is fairly traceable to the challenged conduct and redressable in a judicial forum.”
The judge also noted that the RNC could not show the four-day extension hurt any particular competitive disadvantage.
“The other theory more specific to Nevada involves the four-day receipt window for ballots sent by mail without a postmark,” Du wrote. “There is no basis for the court to agree that these votes, giving Nevada’s relatively small population and presidential election turnout, will illegally dilute Organization Plaintiffs’ votes in Nevada or any federal election, much less in a way that is traceable to the Chief Election Officer letting counties tally these ballots among all the others proper for counting, or indeed to other Nevada state officials interpreting and enforcing Nevada law in line with that interpretation.”
While the state has created a window for counties to accept ballots up to four days after Election Day, state law also still provides that any officially postmarked ballot cast on or before Election Day is to be counted, Du noted.
“Nevada law also specifies exactly who decides whether a voter’s ballot is stamped with an official United States Postal Service (USPS) cancellation mark proven to get it in the mail by Election Day,” Du wrote. “An intelligence or capability, even near certainty, that some fraudulent vote will be accepted is a long way from holding that widespread fraud occurred.”
The ruling came after the RNC sent out a fundraising email claiming that the lawsuit had been dismis
A federal judge dismissed a challenge from the Republican National Committee (RNC) and former President Donald Trump’s campaign that argued accepting mail-in ballots up to four days after Election Day is unconstitutional.
Chief U.S. District Judge Miranda Du dismissed the suit on standing after Nevada officials argued the RNC and Trump campaign did not prove the extended deadline created a disadvantage.
“The causal link between counting mail ballots received after Election Day in Nevada and Organizational Plaintiffs’ alleged electoral injuries is too speculative to support standing,” Du ruled.
After President Joe Biden won Nevada in 2020 by 33,596 votes, the state legislature officially extended the deadline for which counties could accept mail-in ballots post-marked by Election Day to four days after Election Day. The statute is similar to a temporary pandemic-related measure that extended the mail-in ballot deadline to seven days post-election in 2020. It also permits ballots “whose date of postmark cannot be determined” to be accepted so long as they arrive before 5:00 p.m. on the third day after Election Day, according to the ruling.
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The RNC and Trump campaign argued the extension “violates federal law” that establishes a uniform Election Day.
“The result of Nevada’s violation of federal law is that timely, valid ballots are diluted by untimely, invalid ballots, which violates the rights of candidates, campaigns, and voters under federal law,” the suit filed in May alleged.
“Dilution of honest votes, to any degree, by the casting of fraudulent or illegitimate votes violates the right to vote,” it continues.
Republicans pointed to the inclination Democrats have toward using mail-in ballots in the state, noting in their suit that during the 2020 general election, 60.3 percent of Democratic Nevada voters voted by mail compared to just 36.9 percent of Republican voters.
Du, an Obama appointee, has a history of siding with leftist election priorities. During 2020, she permitted Fair Maps Nevada to continue collecting voter signatures to get a question on the ballot regarding the creation of a Nevada redistricting commission, despite the deadline having passed. Du argued the state stay-at-home order prevented Fair Maps Nevada from being able to collect the necessary signatures. Although the measure did not ultimately make it on the ballot, if passed it “would have transferred the power to draw the state’s congressional and legislative districts from the state legislature to a seven-member independent redistricting commission,” according to Ballotpedia. Du also rejected a challenge from True the Vote in 2020 which sought to prevent the state from having an all-mail primary election. Du argued the motion lacked standing and ruled that “protecting the health and safety of Nevada’s voters … in light of the COVID-19 pandemic” by using widespread mail balloting outweighed concerns about potential dilution of votes, according to The Nevada Independent. The group put forward an amended request but was again denied by Du.
Du also rejected a church’s motion for an emergency court order in May 2020 when they argued that the state’s 50-person limit on religious gatherings violated their First Amendment right.
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