Nevada

Nevada Early Voting: Analysis of Issues

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Plausible competing arguments show value of provisional ballots as holding pattern.

One of the things about fast-moving emergency litigation on Election Day is that, in addition to uncertainty about the relevant facts, there may be superficially plausible legal arguments on both sides, with no time to settle definitively which side is definitively correct.

As a result, the main question in this context should be: what is the proper “holding pattern” while the competing legal arguments are evaluated and the relevant facts determined?

Provisional ballots play an important role in dealing with this “holding pattern” situation. While there are collateral consequences of provisional ballots, which can be counted after Election Day, they do have the benefit of letting voters vote, but in a way that the legal system can evaluate the competing arguments on whether those votes are entitled to be counted.

That principle may play a useful role given today’s dispute in Nevada, and indeed my Ohio State colleague Steve Huefner has carefully analyzed whether a proper understanding of the federal Help America Vote Act might lead to the conclusion that, even with respect to early voting, any voter who arrives after the scheduled closing time for that polling place must cast a provisional ballot, rather than a regular ballot.

With that prefatory point in mind, what can be said about the relevant Nevada law concerning the closing of polling places during early voting?

Nevada law has two different types of polling places for early voting: permanent and temporary. Nevada statutes contain rules for closing times at permanent early voting polling places, and these rules give county clerks some limited discretion in some circumstances to set the time at 8pm, instead of 6pm, but otherwise is definite that there will be a specific closing time. See N.R.S. 293.3568.

As for temporary early voting polling places, the statutory law is much more flexible; this is N.R.S. 293.3572:

Voting at a temporary branch polling place may be conducted on any one or more days and during any hours within the period for early voting by personal appearance, as determined by the county clerk.

Thus, for example, a county clerk could set the closing time for a temporary early voting polling place at 10pm, instead of 6pm or 8pm.

But this statutory flexibility is limited, insofar as the county clerk must announce the chosen closing hour ahead of time. N.R.S. 293.3576, entitled “Schedule of locations and times for early voting,” provides:

The county clerk shall publish during the week before the period for early voting and at least once each week during the period for early voting in a newspaper of general circulation a schedule stating:

(a) The location of each permanent and temporary polling place for early voting.

(b) The dates and hours that early voting will be conducted at each location.

Thus, voters, candidates, and political parties are all entitled to know the set closing hour ahead of time, so that they can plan accordingly. Moreover, the statutory requirement that this schedule be fixed—and not change, at least not absent a good reason—is underscored by another subsection of the same provision: “No additional polling places for early voting may be established after the schedule is published pursuant to this section.”

Therefore, once the closing time is set—even for a temporary early voting polling place—it’s set, and is not supposed to change.

Okay, so now what happens to voters who have been waiting patiently in line at a temporary early voting polling place, who arrived long before the scheduled and posted closing time, but never make it to the very front of the line by that closing hour? Can they be told to go home and come back the next available day for voting, either another day of early voting if the period of early voting is still going on, or instead on Election Day? That would seem awfully harsh, considering that the voters did everything proper: they showed up before closing hour, as they were supposed to do—and indeed, may have been waiting already an extremely long time.

Well, it turns out that the provisions of Nevada statutory law on early voting have nothing to say on this crucial point. Instead, there is a separate provision, which was adopted long before the advent of early voting, and thus written with traditional Election Day voting in mind, but also written in general language that, by its explicit terms (or “plain language,” as lawyers like to say), can also apply to early voting.

What is this provision? It’s N.R.S. 293.305, and it comes in a chapter called “Voting at the Polls”. It’s entitled “Closing of polls; admissions of voters and other persons”. It says:

If at the hour of closing the polls there are any registered voters waiting to vote, the doors of the polling place must be closed after all such voters have been admitted to the polling place. Voting must continue until those voters have voted.

This is the statute that, even though not written with early voting specifically in mind, protects voters who are already in line at closing time even during early voting, and not just on Election Day. It’s the law that would make it unlawful for election official to say to these voters, waiting perhaps two hours or more, “Sorry, you must come back another day.”

But to invoke an old cliché, what’s good for the goose is good for the gander. This same statute, although not the most artfully written, makes clear that no voter who arrives after closing time is permitted to vote. The last person standing in line at closing time is the cut-off point; anyone else gets turned away.

Now the argument is being made that this same provision should not be interpreted this way for the specific purpose of early voting. Instead, although it protects early voters already in line at closing time, anybody who arrives afterwards (while those patient early voters are still be processed), should be allowed in—notwithstanding the specific statutory language of the “doors of the polling place must be closed”—because as long as there is still one more day available of voting (either another day of early voting or only Election Day itself), then this late voter could just come back that other day. So, why put that voter to the trouble? Just let the voter vote, despite the fact that this late voter arrived after the scheduled and posted closing time.

This argument seems to be, on first impression, an inappropriate construction of the statute. After all, it is the very same statutory provision– N.R.S. 293.305—which protects the patient voter already in line. This statute, moreover, comes as a package deal: if you are already in line, your “in” and can cast your ballot; but if you are not already in line, you’re “out” and can’t cast a ballot. I don’t think a judge appropriately can say, “I’ll enforce the first part of this package deal for early voting, but not the second part.” That interpretation would seem a distortion, or manipulation, of the previously established voting rules, which is frowned upon because voters, candidates, and parties are entitled to rely upon the law as written down in advance of the election.

This principle of “don’t change the rules for casting and count ballots, set in advance of the election, after the voting already has started” is not only a wise rule of statutory construction. It also a federal constitutional principle pursuant to the Due Process Clause of the Fourteenth Amendment, as most prominently pronounced by the United States Court of Appeals for the Eleventh Circuit in a case involving an election for Chief Justice of Alabama: Roe v. Alabama (discussed in chapter 10 of Ballot Battles, pages 267-77.) Moreover, for a federal election, a deviation from statutory rules set in advance would risk a state losing “safe harbor” status under 3 U.S.C. § 5.

Thus, there are at least plausible arguments to think that N.R.S. 293.305 applies to early voting, not just Election Day voting, both to protect voters already waiting in line, but to preclude voting by anyone who shows up after the scheduled and posted closing hour. These arguments seem to have extra force given the requirement, even for temporary early polling places, that the closing hour be fixed in advanced and publicly announced in advance, thereby permitting reliance on that public announcement. Given at least the plausibility of these arguments, any ballot cast by a voter who showed up after closing time should have been provisional.

Trump Campaign’s Nevada Lawsuit Also Raises Potential Federal Law Issue

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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.