Mail-in ballot

Nevada acceptance of mailed ballots after election day

On May 3, 2025, the Republican National Committee and others filed a complaint in Federal District Court for the District of Nevada against Nevada election officials seeking to prevent mail-in ballots not received by election day from being counted.

REPUBLICAN NATIONAL COMMITTEE; NEVADA REPUBLICAN PARTY; DONALD J.TRUMP FOR PRESIDENT 2024, INC.; and DONALD J. SZYMANSKI, Plaintiffs, v.CARI-ANN BURGESS, in her official capacity as the Washoe County Registrar of Voters; JAN GALASSINI, in her official capacity as the Washoe County Clerk; LORENA PORTILLO, in her official capacity as the Clark County Registrar of Voters; LYNN MARIE GOYA, in her official capacity as the Clark County Clerk; FRANCISCO AGUILAR, in his official capacity as Nevada Secretary of State, Defendants. Case 3:24-cv-00198.

Nevada contravenes those federal laws by counting mail ballots that are

received up to four business days after Election Day, Nev. Rev. Stat. §293.269921(1)(b), and by presuming that ballots received up to three days after Election Day “have been postmarked on or before the day of the election,” id. §293.269921(2). Nevada effectively extends Nevada’s federal election past the Election Day established by Congress.

Comment Similar actions can be expected in all other jurisdictions that have similar arrangements. One of the allegations cites the

Exercising that power [pursuant to the Electors Clause], Congress has established that “[t]he electors of President and Vice President shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day.” 3 U.S.C. §1. [emphasis added]

which could also be used to argue that electors must be appointed on election day andwhich could also be used to argue that electors must be appointed on election day and that no votes counted after midnight can be considered. However, that argument runs counter to 3 U.S.C. § 5

(a)In general.– (1) Certification.–Not later than the date that is 6 days before the time fixed for the meeting of the electors, the executive of each State shall issue a certificate of ascertainment of appointment of electors, under and in pursuance of the laws of such State providing for such appointment and ascertainment enacted prior to election day.

Pennsylvania envelope signature requirement

In reversing a U.S. District Court decision ruling that a Pennsylvania law invalidating mail-in ballots that lack a handwritten date on the envelope, the U.S. Third Circuit Court of Appeals observed

Pennsylvania, like all other States, has devised a web of rules that qualified voters must follow to cast a ballot that will be counted. Mail-in and absentee voters, for their part, must sign and date the declaration printed on the return envelope containing their mail ballot. The date requirement, it turns out, serves little apparent purpose. It is not used to confirm timely receipt of the ballot or to determine when the voter completed it. But the Supreme Court of Pennsylvania ruled that dating the envelope is mandatory, and undated or misdated ballots are invalid under its state law and must be set aside.

Section 10101(a)(2)(B) of the Civil Rights Act of 1964, called the Materiality Provision, prohibits denial of the right to vote because of an “error or omission” on paperwork “related to any application, registration, or other act requisite to voting,” if the mistake is “not material in determining whether [an] individual is qualified” to vote. Because the date requirement is irrelevant to whether a vote is received timely, the blink response is to believe a voter’s failure to date a return envelope should not cause his ballot to be disqualified.

However,

because the Materiality Provision

only applies when the State is determining who may vote. In other words, its role stops at the door of the voting place. The Provision does not apply to rules, like the date requirement, that govern how a qualified voter must cast his ballot for it to be counted.

Comment: Unless the Supreme Court takes up this case on its so-called shadow docket, this opinion settles the specific question for Pennsylvania only, but provides legal precedent that other jurisdictions may look to for deciding whether similar technical requirements for accepting or rejecting questioned ballots are valid under the Materiality Provision. Georgia is the only other of the swing states directly connected to the case. It was one of 16 states for whom Alabama appeared as amicus on the prevailing side.

Whether the signature requirement is invalid under the Equal Protection Clause is not yet settled. The decision applied to the 2022 election. The district court's summary judgment put the number of votes affected at under 10,000.

For an overview of state practices regarding mail in balloting, see Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options

©2024 Richard Careaga. All rights reserved. Last modified: May 08, 2024.