By: Liz DePatie

On Monday, August 3rd, the Nevada governor signed Assembly Bill No.4 (AB4) into law. On Tuesday, August 4th, President Trump’s campaign filed a lawsuit claiming the law was unconstitutional. Thus, Donald J. Trump for President v. Cegavske was born.

AB4 was drafted and passed by the Nevada legislature in response to the ongoing COVID-19 pandemic. The goal of the bill is to make mail-in and early voting easier and safer for Nevadans during times of crisis. Among other things, the bill validates and counts ballots with unclear postmark dates to be counted if received within three days of Election Day

Not all mail, by default, is postmarked. And while USPS tries to ensure that election mail is postmarked, many facilities will be dealing with ballots in record numbers and/or in new forms. New York invalidated thousands of ballots in their primary for issues related to postmarking. It was only after citizens brought suit under the First and Fourteenth Amendments that a portion of the ballots were re-instated and counted. The argument, echoed by the Trump campaign in Cegavske, revolved around ballots potentially being counted which were not cast by the congressionally mandated Election Day. The Trump campaign argued that this provision of AB4 is in violation of federal election law.

First and foremost, it should be noted that this provision on un-postmarked ballots was already in place during Nevada’s summer primaries under NRS 293.317 (passed by the 2019 legislature). AB4 merely reenforces what the Nevada statute already allows—specifically for disasters such as the COVID-19 pandemic. Further, the validity of the primary has not been challenged. However, an important legal distinction exists between primaries and the federal election: who picks the date.

The day we vote for President is a power imbued in Congress by Article II, Section 1, Clause 4. Specifically, this clause states that the day—determined by Congress—in which votes are cast will be “the same throughout the United States.” In contrast, primary and state elections are determined by the state. The Trump campaign argued that Nevada’s acceptance of ballots with unclear or unmarked postmarks up to three days post-Election Day unconstitutionally extends and expands the election for Nevadans. In short, the Trump campaign argued that this provision of AB4 violates congressional authority to determine the election day.

Nevada is not the only state facing challenges to mail-in ballots. The Pennsylvania Supreme Court recently ruled that ballots received after Election Day (but postmarked by Election Day) would be considered valid—a decision the GOP is asking the Supreme Court to review. New Jersey is also facing a similar lawsuit from the Trump campaign—although that is largely focused on the governor’s role in ballot reform.

While the Nevada District Court has since dismissed Cegavske, and Nevadans can thus cast their votes without uncertainty to their validity at the moment, it was done so only on the principle of standing. The constitutional question raised in Cegavske remains un-answered. If Congress has the sole power to choose our Election Day, can a state law which seems to add flexibility to that day be valid? With a particularly contentious election, compounded by the ongoing COVID pandemic and states’ varied attempts to ensure voters can safely cast their ballots, that unanswered question leaves the potential for massive contention going forward. The validity of our election depends on the validity of our ballots. Without resolving the postmark date, we leave the way open for ballots to be discarded or discounted in the future through no fault of the American voters.

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