Nevada Supreme Court Rules Mail Ballots Without Postmarks Shall Be Counted Days After ‘Election Day’

In an incredulous interpretation of a questionable election statute (see below), the Nevada Supreme Court has ruled that mail ballots without a postmark shall be counted for up to three days after “Election Day.”

According to state law, passed unilaterally by the Democrat majority during the pandemic, a mail ballot received by the county clerk must be postmarked on or before the day of the election and received no later than 5 pm on the fourth day after the day of the election. If a mail ballot is received no later than 5 pm on the third day following the election and the date of the postmark cannot be determined, the mail ballot shall be deemed to have been postmarked on or before “Election Day.” (emphasis added)

In their ruling, the Supreme Court initially finds that the plaintiffs do not have “standing.”

The Globe spoke to an election lawyer on the condition of anonymity who aptly reminded our readers that the majority of lawsuits brought against Nevada’s election laws have been dismissed or lost due to “standing,” as opposed to the merits of the argument or the compiled evidence.

The attorney told The Globe, “It’s fascinating that election law challenges in other states get decided on the merits, whereas Nevada judges automatically refuse to acknowledge standing by plaintiffs. These numerous rulings make clear that no one person or organization can challenge Nevada’s election laws. It also makes clear that Nevada judges have and will continue to have issues determining election law cases on merit. Many lawyers in this area of expertise have determined that Nevada judges have become nothing less than executioners for the DNC.”

Outside of standing, a majority of the justices inferred that Democratic legislators included mail ballots that lacked a postmark in the statute, despite the fact that a mail ballot lacking a postmark is not expressly included in the statute.

The court may look beyond the statute’s plain language when that language is ambiguous, meaning that it “is susceptible to more than one reasonable interpretation.”

…while our dissenting colleague notes that the Legislature could have clearly stated that it intended for subsection 2 to apply to mail ballots without postmarks, the converse is also true-if the Legislature meant for subsection 2 ot apply only ot “illegible” or “smudged” postmarks, it could have explicitly said that as well. Because the statute could therefore reasonably be interpreted in at least two ways, we look beyond the statute’s plain language to determine the Legislature’s intent.

In order to support the majority’s conclusion, the ruling refers to an exchange between former Assemblyman Andy Matthews and former Democratic Assembly leader Jason Frierson in their exchange during a 2021 committee hearing.

The legislative history is consistent with the interpretation advanced by the State and Vet Voice Foundation.

For example, during a hearing on the bill that would become NRS 293.269921, Assemblyman Andy Matthews asked Assemblyman Jason Frierson, the bill’s sponsor, about the “postmark cannot be determined” provision: “I am wondering why you believe it is good policy for us to accept mail ballots where the postmarkdate cannot be determined, and I am wondering fi we know how often that happens where a ballot comes back without a postmark date.”

In response, Assemblyman Frierson explained that the intent was to allow any ballots received within the specified period to be counted whether the envelopes “were not postmarked” or “the postmark was illegible, smudged, or otherwise damaged to where it could not be read”:

“To the extent that there were envelopes that were not postmarked or the postmark was illegible, smudged, or otherwise damaged to where it could not be read—I think similar to the postmark requirement of three days-any of those that came in within that same period of time would be counted and anything that came in after that would not be counted.”

Assemblyman Frierson also touched on the broader purpose of the bill, testifying that it was meant “to develop a system that continues to expand the freedom of Nevadans to vote.”

Therefore, the State and Vet Voice Foundation’s interpretation of NRS 293.269921(2) is consistent with Assemblyman Frierson’s comments that AB 321’s indeterminate postmark language encompasses ballots with no postmarks, and with AB 321’s stated purpose of expanding voting rights. Thus, we conclude the legislative history supports an interpretation of NRS 293.269921(2) where mail ballots without postmarks are counted when received by 5 p.m. on the third day after the election.

In his partial dissent, Justice Douglas Herndon challenges the majority’s interpretation of the statute. Herndon writes:

The statute is clear: “of the postmark” requires the existence of a postmark and “cannot be determined” requires the postmark to be indeterminable-meaning, for example: smudged, obscured, illegible, or torn. Read together, the statute clearly and unambiguously requires the existence of a postmark. The exception cannot exist without the triggering event. In other words, a postmark cannot be indeterminable unless there is a postmark to begin with. To read otherwise contravenes the plain text of the statute; under no reading of the statute can we omit the requirement that a postmark must exist. We therefore need not inquire into the Legislature’s intent when drafting the statute. The majority’s conclusion to the contrary runs afoul of our established statutory construction principles.

The majority errs in reading in terms that the Legislature omitted to the detriment of the statute’s plain text. If we were to take the majority’s view, the “postmark” language in the statute would be superfluous and there would be no need for the language entirely.

In sum, NRS 293.269921(2) is clear and unambiguous that a mail ballot must contain a postmark and, therefore, any inquiry into the Legislature’s intent is erroneous. We must read the statute as it is plainly written and resist reading terms into the statute that the Legislature omitted to ensure that the statutory language is meaningful. If the Legislature meant to include mail ballots void of a postmark, as the majority concludes, it would have done so. But it did not. And we cannot read into the statute exceptions that do not exist. To do so contravenes our well-established principles of statutory construction and interpretation.

Justice Kristina Pickering concurs, in part, with Justice Herndon, noting the interpretation of the statute by Democratic Secretary of State Cisco Aguilar:

While I agree with Justice Herndon that, by its plain terms, the statute seems to say that a mailed ballot must have a postmark to be counted, that is not the argument the appellants make. Instead, they argue that, while mailed ballots that arrive on or before election day do not need a postmark to be counted, ballots that arrive in the four days following election day must have a postmark to be counted.

While this reading of the statute has a plausible policy justification, it does not comport with the statute’s plain text…. It also conflicts with the Secretary of State’s interpretation, issued May 29, 2024, which instructs that mailed ballots that do not have postmarks will be counted so long as they are received by the third day following election day.

Pickering concludes, “It is not in the public interest to change the rules governing this election this close to election day. For this reason, while I disagree with the majority’s reading of NRS 293.269921, I concur in the decision to affirm the district court’s denial of preliminary injunctive relief.”

In a press release, defendant Vet Voice Foundation issued the following statement:

“We are encouraged by the Nevada Supreme Court’s decision, which reinforces the fundamental right to vote and upholds fair, accessible election standards in Nevada,” said Janessa Goldbeck, CEO of Vet Voice Foundation. “Today’s decision is a resounding victory for all those troops and their families who vote by mail and, through no fault of their own, have their ballots delayed in the mail. It is also a victory for all those veterans who cannot make it to vote in person. These proud Americans served this nation, and swore an oath to protect our democratic system and Constitution. Today’s ruling honors their service.”

At this time, it is unknown if the plaintiff’s will appeal the ruling to the U.S. Supreme Court. The Globe will continue to provide updates to these election law challenges.