By Steven F. Huefner
The allegations in the Trump Campaign’s Nevada Lawsuit raise an important issue of federal law.
Late yesterday, the Trump for President Campaign filed a lawsuit in a Nevada state court alleging that one early voting site in Clark County, Nevada, had violated state law when it extended its early voting hours beyond the hours previously announced and publicized, when state law required that this announcement and publication occur in advance of the election. The suit requested that the Nevada Secretary of State secure the voting machines used at the site and not count the votes on those machines until any potential that allegedly unlawful votes on those machines might affect the outcome had been resolved.
Earlier today, the local trial court denied the requested relief, at least partly on the basis that the Trump campaign had not exhausted its administrative remedies with the Nevada Secretary of State. The issues raised in the complaint may not go away so easily, however, so let’s take a closer look at the complaint’s allegations (with the crucial caveat that the defendant, the Clark County Registrar of Voters, has not filed an answer to the complaint, and could well controvert or deny many of the critical allegations).
For present purposes, the critical allegations of the complaint are that: (1) Clark County had previously set 8 p.m. as the end of early voting hours on Friday November 4 at the Cardenas Market early voting location; (2) in the afternoon of November 4, the election officials operating the Cardenas Market early voting location announced that the Clark County Registrar had directed them to keep the early voting location open until 10 p.m.; and (3) a number of voters arrived at the Cardenas Market early voting location after 8 p.m., all of whom were allowed to vote.
As for the legal landscape, the complaint recites that Nevada law provides that one week before early voting begins, the county clerk in each county shall publish the hours of early voting at each early voting location in the county. Clark County (the Nevada county with the largest population, home to Las Vegas) has numerous early voting locations, and the hours are not the same at every location. Clark County’s posted hours apparently did recite that the early voting hours at Cardenas Market would close at 8 p.m. on November 4.
The complaint alleges only a violation of state law. Under state law, it may (or may not) be a complicated question of whether the county clerk or the county register of voters has lawful administrative authority to make adjustments to their published early voting hours, even (or especially) once early voting is underway. But the allegations also could give rise to an essential issue of federal law.
The Help America Vote Act of 2002 includes a provision that requires the use of provisional ballots when polls are kept open beyond their announced closing time. The provision reads as follows:
Any individual who votes in an election for Federal office as a result of a Federal or State court order or any other order extending the time established for closing the polls by a State law in effect 10 days before the date of that election may only vote in that election by casting a provisional ballot under subsection (a) of this section. Any such ballot cast under the preceding sentence shall be separated and held apart from other provisional ballots cast by those not affected by the order.
It is not clear, either from this HAVA provision itself or from subsequent judicial interpretations of it, whether it applies only to Election Day voting, or also applies to early voting. If this HAVA provision applies to early voting, and if the allegations of the Trump campaign’s complaint are true, then it would appear that voters who were not in line at the Cardenas Market early voting location as of 8 p.m. on November 4 but were allowed to vote that evening should have been, but were not, required to cast a provisional ballot.
To be clear, this conclusion depends both on (1) the legal determination that the HAVA provision applies to adjustments to early voting hours, and (2) the factual determination that the early voting hours in fact were extended. The factual issue is beyond the scope of this analysis, but the legal issue of the HAVA provision’s scope merits brief comment. There are powerful arguments that although HAVA may be ambiguous on the point, its provisional voting requirements should apply to early voting as well as Election Day voting. These arguments mean that the Trump campaign could yet have a colorable federal law claim arising out its allegations.
The most common judicial or administrative extensions of voting hours occur on Election Day because of unanticipated problems that prevent some voters from taking advantage of the previously published voting hours. But because any such extension might advantage one candidate or party over another, a last-minute decision to alter voting hours ought to be subject to careful subsequent judicial review to ensure that it was a proper response to a genuine problem. Use of provisional ballots permits meaningful review, because in the event that the extension is determined to have been inappropriate, the affected ballots can be excluded from the certified results.
Extensions of voting hours may be less common in the early voting context, because the types of unanticipated problems that trigger such extensions in Election Day voting will be less likely to leave voters without recourse, because they can still vote on another day. And conversely, voters who are enabled to vote through an extension of early voting might also have readily been able to vote another day had the early voting hours not been extended. Nevertheless, any change to pre-announced voting hours, whether for early voting or Election Day voting, should be subject to subsequent review to ensure it was an appropriate change.
One difficulty arises, however, in applying the HAVA provisional voting requirement to extensions of early voting hours. When the extension instead involves Election Day voting, if subsequent review determines that those provisional votes should not be counted because the extension was inappropriate, then the affected voters are in no worse position than they would have been in had the extension never been ordered. In either case, they are not able to have their voting preferences incorporated in the election results. But when at issue are provisional ballots cast during a period of early voting, if those provisional ballots are subsequently determined ineligible for inclusion, the affected voters are excluded from the election when they might well have yet had an opportunity to participate had they not been required to cast a provisional ballot. That is, had the voting hours not been extended, presumably some of the voters would have returned on another day of early voting or on Election Day. So unless, at the time that they are casting a provisional ballot during the extended hours of early voting they are told that the only way to ensure that they can participate in the election is to return and cast a regular ballot, these voters are in a worse position through the application of the HAVA provisional voting requirement to an extension of early voting. And it might even be that if these voters return on a subsequent voting day in order to ensure they cast a valid ballot, they might be required to cast a provisional ballot yet again, for the very different reason that election records reflect that they have already voted. Sorting out these categories of provisional balloting would introduce additional opportunities for administrative error.
The result is that determining the applicability of the HAVA requirement to early voting may be a complex though important question. It is surely a question that could tie up the resolution of a close Nevada race in court for weeks, unless the factual allegations in the complaint filed yesterday can be clearly rebutted.