LAS VEGAS (KTNV) — Nevada's laws allowing the counting of mail-in ballots that arrive up to four days after Election Day — so long as they are postmarked by that date — are constitutional under a Monday ruling from the U.S. Supreme Court.
WATCH | Senior political reporter Steve Sebelius breaks down what this means:
In a 5-4 ruling, justices upheld a challenge to a Mississippi law that's similar to Nevada's statute. Justice Amy Coney Barrett and Chief Justice John Roberts joined with the court's three liberal members, Sonia Sotomayor, Elena Kagan and Katanji Brown Jackson, to uphold the law.
Conservatives Samuel Alito, Clarence Thomas, Brett Kavanaugh and Neil Gorsuch dissented.
The ruling affects 30 states, all of which allow some ballots received after Election Day to be counted. That includes Nevada, which allows ballots postmarked by Election Day to be received and counted up to four days later, and ballots without a postmark to be received and counted up to three days later.
Plaintiffs in the case — including the Republican National Committee and the Mississippi Republican Party — had contended that federal laws referring to "elections" mean both the casting and counting of ballots, which they said must occur on Election Day.
"The federal election-day statutes do not preempt Mississippi's law because the defining element of an 'election' has always been the electorate's choice of candidate," the case summary reads. "And a related federal statute — the Uniformed and Overseas Citizens Absentee Voting Act — confirms that while federal law dictates when ballots must be cast, state law governs when they must be received."
In Nevada, critics have contended that late-arriving ballots erode confidence in elections, because they delay learning final election results for days and, in some close races, can change the outcome.
Gov. Joe Lombardo has called the weeklong wait for final, unofficial results "a national embarrassment."
Plaintiffs in the case made similar arguments, but were turned away by the court.
"As we have said time and again, however, policy arguments are properly directed to legislatures, not courts," the ruling reads. "Election fraud and its appearance are serious issues. Like other such issues, however, they must be addressed through the democratic process."
Several attempts to require ballots to be received by Election Day have been introduced in Nevada's Legislature, but none have been successful in the Democratically controlled body.
Secretary of State Cisco Aguilar has argued that the overwhelming majority of ballots are in and counted by Election Day, and only the closest races may be changed by late-arriving ballots. He's advocated for more resources for county clerks and voter registrars to be able to count mail ballots more quickly.
Under the ruling, nothing will change for Nevada voters going to the polls in four months to vote in the November election. But officials still encourage voters to send in their mail ballots early, or to put them in drop boxes at voting centers during early voting or on Election Day.
Officials react to ruling
Gov. Joe Lombardo, in a statement, said he still believes the deadline for voting should be Election Day.
"Today's ruling from the Supreme Court reaffirms my stance that states should determine how their own elections are conducted, but there is still a need to enhance transparency and security in Nevada's elections," he said in the statement. "I fully support the Voter ID ballot measure [Question 7 on the November ballot] and will work to ensure our election laws reflect a simple, common-sense principle: Election Day should mean the end of voting, and ballots should be received by Election Day so the results are timely, secure, and trusted by the public."
Nevada Secretary of State Cisco Aguilar, in an interview, told Channel 13 that he didn't think the decision would come out the way it did.
"To be honest with you, I was completely shocked," Aguilar said. "I was not expecting what happened today, given what's happened with the Voting Rights Act, given other decisions that the Supreme Court has made."
Aguilar said he attended the oral arguments over the hearing in Washington, D.C., and could trace Coney Barrett's questions to her eventual ruling.
"I think she also recognized the fact that states' rights are states' rights. There are certain responsibilities the federal government has, but when it comes to the Constitution, she [Coney Barrett] was pretty clear that states have the responsibility to run elections."
Aguilar said the focus of the dissenting justices — on the perception of fraud as late-arriving ballots change the results of an election — needs to be countered with the truth.
"At the end of the day, fear is not something we can operate off of," Aguilar said. "Give me facts, give me information, let's actually invest in our elections. If the federal government really cared about our elections, and they cared as much as they say they do, they would be making sure that states and local governments had the resources to do what we need to do."
Barbara Wells, president of the League of Women Voters of Nevada, called the ruling "well-reasoned" and said it saved some voters from likely disenfranchisement.
She said her organization sponsors a website with important voting information — vote411.org — but the best advice she can give is to get your mail ballots in the mail early.
"We're at the mercy of the [U.S. Postal Service]," Wells said. "I'm not saying that anything is, quote/unquote, their fault. However, there have been instances where a letter I mailed took a week to get across Las Vegas. And so a lot of people I know say, 'Oh, don't worry, it only takes a couple of days.' Not always."
Wells, a former executive chef and restaurant owner, likened the lag time for mail-in ballots to people delayed by traffic or unforeseen circumstances for a reservation. Establishments usually give them a grace period to arrive.
"If all mail ballots are due on Election Day, with no grace period, this unfortunately allows different factors to perhaps hijack the best of intentions," she said.
Nevada Attorney General Aaron Ford hailed the ruling in a statement sent to media on Monday.
"Today’s decision by the Supreme Court is a win for Nevada and for the sovereign right of states to conduct their elections in the manner they see fit," the statement reads.
"Nevada’s elections are free, fair and safe, and Nevadans benefit from a range of choices in how to cast their vote — mail ballots included. Our state has made it clear that we believe our citizens deserve to cast their ballots in the way that is easiest for them, and today’s decision ensures that Nevadans who cast their mail ballot by Election Day will have their legal votes counted.
"Decisions on elections must be made based on the rights and needs of American citizens, not on political narratives. As long as I am attorney general, I will always stand for the rights of Nevadans and for Nevada’s sovereign rights to conduct elections," Ford added,
But Trump, in a post on Truth Social, denounced the ruling and said it pointed out the need for the Senate to pass the SAVE Act, which would require photo ID to vote and documentary proof of citizenship.
"In light of the tremendous loss in the Supreme Court today concerning Voter’s Rights, and the fact that 'people’s' votes are allowed to be counted LONG AFTER an Election is over, it is more important than ever to pass THE SAVE AMERICA ACT," Trump wrote.
"The House of Representatives has approved this vital Act, THREE TIMES. The United States Senate seems unable to do so. In a time when there is a powerful Communist Movement taking place in our Country, one more dangerous than World War I, World War II, Pearl Harbor, or September 11th, all Dumocrats, and our five Republican Senate Hold Outs, Lisa Murkowski, Susan Collins, Thom Tillis, Bill Cassidy, and Mitch McConnell must vote to SAVE OUR COUNTRY."
