Lawsuit claims Nevada’s late ballot counting law is unconstitutional

The Republican National Committee (RNC) is heading up a lawsuit challenging a Nevada law that permits mail-in ballots to be counted several days after the election — even if they lack a postmark.

The RNC, the Nevada Republican Party, and the Trump campaign — along with a registered Nevada voter — contend that the 2021 state statute contradicts federal election law, which designates the Tuesday after the first Monday of November as Election Day. The 2021 Nevada measure closely mirrors a temporary pandemic-related measure that first extended the mail-in ballot deadline in 2020.

The lawsuit, filed May 3, states that Congress “has established a uniform, national day to elect members of Congress and to appoint presidential electors” but that Nevada “contravenes those federal laws by counting mail ballots that are received up to four business days after Election Day … and by presuming that ballots received up to three days after Election Day ‘have been postmarked on or before the day of election.’”

“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 alleges. “Dilution of honest votes, to any degree, by the casting of fraudulent or illegitimate votes violates the right to vote.”

The RNC contends that one reason it has standing to bring the claim is that the belated ballot deadline causes “competitive electoral harms.” Democrats are more inclined to use mail ballots than Republicans, the lawsuit notes, and “voting by mail is even more polarized by party in Nevada specifically. For example, in Nevada’s 2020 general election, 60.3% of Democratic voters voted by mail, compared to just 36.9% of Republican voter.”

“Nevada’s ballot receipt deadline clearly violates federal law and undermines election integrity in the state,” RNC Chairman Michael Whatley said in a statement. “Ballots received days after Election Day should not be counted.”

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This isn’t the first challenge to Nevada’s extension of mail-in ballot deadlines.

A 2020 challenge by the Trump campaign to the initial pandemic-era law, enacted just months before the November election, was dismissed by a judge for lack of standing. That law extended the deadline for mail-in ballots, allowed certain ballots lacking postmarks to be counted, and sent mail-in ballots to every voter unprompted; additionally, it only applied to elections “adversely affected by certain emergencies or disasters.” The Democrat-run legislature then codified the “emergency” mail-in ballot extension with a nearly identical bill in June of 2021.

During the 2020 presidential election, in which the state sent mail-in ballots to every voter regardless of whether they had requested one, a man named Fred Strokes Jr. was mailed his ballot on Oct. 9. The ballot was later returned to the county and marked as “completed,” as my colleague Tristan Justice reported.

But Stokes Jr. died in 2017 at the age of 92, according to a gravestone. The Nevada Republican Party sent a staffer to the address listed on his registration, and a female resident confirmed that Stokes Jr. died in 2017 but had previously resided at the location. The woman did note that a Fred Strokes III was living and voted at the same address, but Stokes III voted in person on Oct. 23 as a registered Democrat, according to county records.

Brianna Lyman is an elections correspondent at The Federalist.