Nevada high court decides mail ballots with smudged or missing postmarks can be counted

LAS VEGAS — The Nevada Supreme Court ruled Monday that mail-in ballots with smudged, indecipherable or missing postmarks can be counted for up to three days after polls close on Election Day.

The state’s highest court rejected a bid by state and national Republicans, former President Donald Trump’s presidential campaign and a voter, Scott Johnston, to block them from being counted. Among the GOP arguments was that mail ballots unfairly benefit Democratic voters.

The court challenge came after Nevada Secretary of State Cisco Aguilar, a Democrat, told county election officials in May that ballots without a visible postmark should be counted until 5 p.m. the Friday after Election Day. This year, that is Nov. 8.

Aguilar said the ruling “will allow election administration in Nevada to continue uninterrupted, without the risk of disenfranchising voters through no fault of their own.” In a statement, he also praised election workers "who have dedicated additional resources to securely process mail more efficiently this cycle.”

Republican National Committee spokesperson Claire Zunk said in a statement the court decision "undermined the integrity of Nevada’s elections.”

The ruling upheld a decision in August by state court Judge James Todd Russell in Carson City, and followed oral arguments before the seven-member court Oct. 8. It was not clear Monday if plaintiffs will ask the seven justices to reconsider.

Five justices acknowledged that state law covering vote counting was not clear about ballots that have a postmark or processing date that cannot be determined. But the decision said state lawmakers apparently intended to “expand the freedom of Nevadans to vote.” Two justices concurred but provided separate written opinions.

Nevada in 2020 became one of several states with universal mail voting. All registered voters are mailed a ballot unless they opt out. Voters can cast ballots in person early or on Election Day. Signed mail ballots with postmarks are accepted and counted until 5 p.m. the Saturday after polls close, according to the law.

The court noted the Republican National Committee argued that Democrats vote by mail more than GOP voters and that “counting allegedly invalid mail ballots received after Election Day would benefit Democratic candidates.”

Nevada has nearly 2 million active registered voters, and Aguilar's office reported Monday that more than 643,000 mail, early and overseas votes have been cast. Of those, nearly 40% were registered Republicans, almost 35% were Democrats and about 25% were neither of those parties. Early voting ends Friday.

The Supreme Court ruling cited a federal judge conclusion in a Trump campaign challenge of the Nevada election result in 2020 that allowing three days for mail missing a postmark to arrive at an election office allows for “a presumption that the ballot was cast in time.”

The ruling noted that plaintiffs identified just 24 ballots among more than 383,000 cast statewide in the June primaries in Nevada as having no postmark, and attributed postmark errors to "random postal service omissions.” Two-thirds of ballots cast in Nevada primaries arrived by mail, according to Secretary of State records.

Justices said the committee also did not demonstrate it had standing to seek a court order to block the ballot count or that it would suffer “irreparable harm" if votes are counted.

Nevada is one of seven battleground states where the result in next week’s presidential election is expected to be very close, along with Arizona, Georgia, Michigan, North Carolina, Pennsylvania and Wisconsin.

It is one of eight states with what is commonly called all-mail elections, and one of 19 states that allows for counting of postmarked ballots after Election Day.

A three-judge panel of the 5th Circuit Court of Appeals ruled Friday that Mississippi cannot count mail-in ballots that arrive shortly after Election Day, but the decision was not expected to affect the Nov. 5 election. The ruling noted that federal courts have in the past discouraged taking actions that change established procedures shortly before an election.

There are 13 active election-related court cases in Nevada, including the one decided Monday by the state Supreme Court.

In one, national and state Republicans have an appeal pending before the 9th Circuit Court of Appeals in San Francisco of the dismissal in July of a lawsuit that sought to bar counting any mail ballots received after Election Day.

On Monday, the U.S. Postal Service issued a statement urging voters using mail ballots to submit them by this Tuesday to be delivered by Election Day.