LAS VEGAS (KTNV) — The U.S. Supreme Court on Monday closely questioned an attorney for Mississippi about a state law that allows ballots postmarked by Election Day to be received and counted afterwards.
That law — similar to one governing elections here in Nevada — could be at issue in a lawsuit brought by the Republican National Committee.
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The GOP group's attorney, Paul D. Clement, argued that ballots must be cast and received by elections officials no later than Election Day in order to be counted.
Federal law stipulates that "The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States...."
Clement and U.S. Solicitor General C. John Sauer argued that "election day" is the day by which all votes must be cast and counted. "That ballot box has to be closed on Election Day," Sauer said.
But Mississippi Solicitor General Scott G. Stewart defended his state's law, which allows ballots to be counted so long as they were cast on Election Day, even if they were received afterwards. Thirty states have similar laws, including Nevada.
He argued that states have long allowed for post-Election Day counting of ballots, including during the Civil War. (In pre-statehood Nevada, senior military officers gathered the ballots of soldiers, which were later sent to be counted, he said.)
Some of the court's liberal justices suggested that Congress was well aware that states allow ballots received after Election Day to be counted, and has thus far failed to ban the practice. Justice Sonia Sotomayor said the rules should be a matter for states or Congress to decide.
(The Constitution says federal elections are to be run by states, but that Congress may pass rules that states must follow.)
Clement also argued that late-arriving ballots that change the outcome of elections contribute to the perception of fraudulent or rigged elections, and that those concerns must be addressed.
Nevada Secretary of State Cisco Aguilar attended the arguments in person in the Supreme Court's Washington, D.C. courtroom. After the hearing, he said the justices weren't told that, in Nevada at least, the number of actual votes coming in after Election Day was relatively small.
"You know, we really have to understand that less than 1.8% of mail ballots arrive after Election Day, and 95% of that 1.8% are received by the county clerks within 24 hours," Aguilar said. "So the fact that there are these large amount of ballots arriving days and days after the election is just not true, and none of that data was discussed during the hearing today to say how many voters this actually implicates."
Aguilar said, regardless of when they arrive or are counted, votes are cast by Election Day. (In Nevada, ballots that are postmarked can be received up to four days after Election Day, while ballots without postmarks or with illegible postmarks can be received three days after Election Day.)
"States need to decide what's in the best interest of their citizens," he said. "We should continue to let states do that, but understand and respect that Election Day occurs on a certain day, and we do that. We do make sure every valid vote is cast on Election Day."
Aguilar says he's sensitive to concerns of fraud, even though he insists Nevada has the safest, most secure and accessible elections in the nation.
"Because if the [Supreme Court] justices have those concerns, other voters have those concerns, and how do we deal with them from a policy perspective, to make sure we're being as transparent as possible with every single voter throughout the state of Nevada, he said.
Republicans in the Nevada Legislature decided the best way to handle those concerns was to make the issue moot by moving the ballot deadline up, so that mail ballots would be in clerks' and voter registrars' offices by Election Day.
"I believe it's the sentiment of the people," said state Sen. John Steinbeck, R-Clark County, the sponsor of a 2025 bill to move the deadline. "I think more people want that. They want trust in their election process. They want voter ID. They want to know that their vote counts. And then let the election lay where it may, right, whether it's their person that won or if there are more people that voted against them."
Steinbeck's bill — and at least three other Republican-sponsored bills with similar provisions — failed to advance in the Democrat-controlled Legislature, even after Gov. Joe Lombardo said that waiting up to a week for final, unofficial election results was "a national embarrassment."
Steinbeck repeatedly praised election workers and rejected the idea that Nevada's elections were compromised by fraud, but he said people's concerns should not be dismissed, even though there's no evidence of widespread fraud.
"We definitely need to take it into account and especially in the election process, right? Especially in a democratic process of choosing your leaders, we need to, within reason, address as many concerns as we can along with the process."
The Supreme Court is expected to issue a ruling this summer. The case is Watson v. Republican National Committee, No. 24-1260.
