Ballots that arrive by mail can be counted up to three days after Election Day, the Nevada Supreme Court ruled on Oct. 28.
The state’s top court turned away a challenge to state law that says ballots that arrive without clear postmarks, provided they’re received no later than 5 p.m. on the third day after the election, shall be counted as having been postmarked on or before Election Day.
Nevada officials have interpreted the law as enabling the counting of ballots without any postmarks.
“A mail ballot that has no visible postmark should be interpreted to have an indeterminate postmark, and therefore should be accepted if it has been received by the clerk by mail not later than 5 p.m. on the third day following the election,” the Nevada secretary of state’s office said in guidance to county clerks earlier this year.
Republicans said the fact that the law states ballots must be “postmarked” to be counted and the exception is for ballots for which “the date of the postmark cannot be determined” means postmarks are still required.
“That caveat expressly requires the existence of ’the postmark' in order to apply,” they told the Nevada Supreme Court in an appeal.
In an order in August, Nevada District Court Judge James Russell had ruled that the provision lets mail ballots without postmarks be counted and that Republicans had failed to show it was “in the public’s interest to disenfranchise voters.”
Justices said both of the interpretations of the law are reasonable but pointed to how lawmakers, when discussing the bill, had talked about how they thought it would let ballots without postmarks be counted. They also noted that the purpose of the bill was, according to lawmakers, to expand the ways in which people vote and make it easier to vote.
“If a voter properly and timely casts their vote by mailing their 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 court said. “Indeed, there is no principled distinction between mail ballots where the postmark is ‘illegible’ or ’smudged' and those with no postmark.”
The Republican National Committee and the campaign of former President Donald Trump did not respond to requests for comment by publication time.
Justice Douglas Herndon said he concurred with his colleagues on Republicans not showing they will suffer irreparable harm absent an injunction but sees the law as unambiguously not allowing the counting of ballots without postmarks.
Justice Kristina Pickering said that Republicans were not arguing that every ballot needed a postmark but only ballots that arrive in the days after the election. She said she shared Herndon’s concern with the majority’s decision but that she was not convinced of the Republican interpretation either. Pickering also said that it would not be in the public interest to reverse the lower court order so close to the election.
