NV Supreme Court Orders Counting Mail Ballots Without Postmark

In a blow against fair and honest elections, the Nevada Supreme Court ruled on Monday that mail-in ballots lacking a postmark may be counted in the days after the election.

In its decision, the Silver State’s highest court denied declaratory and injunctive relief sought by the Trump campaign, Republican National Committee (RNC), Nevada GOP, and a state resident in its challenge to Nevada’s counting of non-postmarked ballots. State law stipulates, “If a mail ballot is received by mail not later than 5 p.m. on the third day following the election and the date of the postmark cannot be determined, the mail ballot shall be deemed to have been postmarked on or before the day of the election.”

Unlike most states, Nevada requires local clerks to automatically mail a ballot to all individuals listed on the state’s active voter registration list during each election cycle, according to Ballotpedia.

According to Monday’s ruling, the office of Democrat Secretary of State Cisco Aguilar has interpreted the statute “such that a mail without a postmark that is received by 5 p.m. on the third day following the general election must be counted [emphasis added].” In their lawsuit challenging this interpretation, plaintiffs argued that “[c]ounting non-postmarked mail ballots is not permitted by Nevada law, which allows late-arriving mail ballots to be counted in only two circumstances: (1) the ballot is accompanied by a valid postmark indicating it was mailed on or before election day, or (2) the ballot has a postmark but ‘the date of the postmark cannot be determined.’”

Plaintiffs’ request for an injunction preventing the state from counting ballots that lack a postmark received after Election Day was denied by a district court in August, prompting them to appeal to the Nevada Supreme Court.

In upholding the district court’s denial of the injunction request, the high court’s majority argued that the RNC and co-plaintiffs failed “to demonstrate a likelihood of success on the merits and irreparable harm” if an injunction weren’t put in place by the court. Specifically, the five justice-majority concluded, “the legislative history supports an interpretation of [the statute] where mail ballots without postmarks are counted when received by 5 p.m. on the third day after the election.”

“If a voter properly and timely casts their [sic] vote by mailing their [sic] 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 decision reads.

In his concurring opinion, Justice Douglas Herndon agreed with the majority’s determination that plaintiffs “made an insufficient showing that they will suffer irreparable harm in the absence of an injunction,” but disagreed with its conclusion that the statute permits officials to count mail-in ballots received after Election Day “that do not contain a postmark.”

State law “is clear and unambiguous that a mail ballot must contain a postmark, and, therefore, any inquiry into the Legislature’s intent is erroneous. We must read the statute as it is plainly written and resist reading terms into the statute that the Legislature omitted to ensure that the statutory language is meaningful,” Herndon wrote. “If the Legislature meant to include mail ballots void of a postmark, as the majority concludes, it would have done so. But it did not. And we cannot read into the statute exceptions that do not exist.”

“To do so contravenes our well-established principles of statutory construction and interpretation,” he added.

In her opinion “concurring in the result only,” Justice Kristina Pickering agreed with the majority’s denial of plaintiffs’ request but differed with its interpretation of the statute.

Similar to Herndon, she expressed “concern with the majority’s decision endorsing the Secretary of State’s interpretation” of the statute, but noted she is “not convinced that the [plaintiffs’] reading is correct either.” The justice further argued it would “not be in the public interest” for the high court to reverse the district court “this close to an election.”

“With mailed ballots already sent to voters and early voting underway, clarity and consistency in election rules are of paramount importance,” Pickering wrote.