Voters in Line When Polls Close Get to Vote


Edward B. Foley

- Moritz College of Law
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law @ Moritz
Posted on November 6, 2016, 8:07 am

It’s one of the most basic principles of electoral democracy: if you go to the polls when they are open, and you are a registered and qualified voter, then as long as you wait in line, you are entitled to cast your ballot even if the line is so long that you must wait until after the scheduled time for the polls to close.

 

Nevada, like other states, has a law specifically on this point. It’s Nevada Revised Statutes (N.R.S.) § 293.305, and 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.

 

Thus, when on Friday the lines for early voting in Nevada were so long as to require keeping the polls open until after the scheduled closing hour, voting continued—as required by this law—until all those waiting in line at closing time were able to cast their ballots.

 

There was no need for a court order. Or a directive from the Secretary of State or other election official. It wasn’t optional or discretionary. It happened automatically, by force of this statutory requirement. If it hadn’t happened, it would have been a violation of the law—as well as the underlying elementary principle that the statutory requirement protects.

 

That’s why it’s so troubling to hear a major-party presidential candidate assert that “it’s a rigged system” because this statutory requirement was followed as it must be.

 

To be sure, the candidate prefaced his “rigged system” assertion with the statement: “It’s being reported that certain key Democratic polling locations in Clark County were kept open for hours and hours beyond closing time to bus and bring Democratic voters in.” If it were indeed true that the polls were staying open “to bus” in extra voters who had not been waiting in line at closing time, that would be a violation of the same state law. But I’ve searched for news reports of any such busing in of extra voters, or indeed any casting of ballots by voters other than those already waiting in line, and I haven’t been able to find a single such report.

 

Moreover, it seems highly unlikely that this kind of busing in of late extra voters could occur. Nevada also has an administrative rule designed to enforce the statutory requirement in a way that prevents the casting of a ballot by any extra voter who wasn’t already standing in line at the closing hour. This administrative rule is Nevada Administrative Code § 293.247, and it provides:

 

After determining who is the last person waiting to vote at the time that the polls close, a member of the election board shall:

(a) Place a sticker or other distinguishing mark on the last person waiting in line to vote; or

(b) If the last person waiting to vote does not want a sticker or other distinguishing mark placed on him or her, physically stand behind the last person waiting in line to vote, to ensure that no other person enters the polling place to vote.

 

In other words, absolutely no one gets to vote after “the last person waiting to vote at the time the polls close,” and Nevada law has specific mechanisms to make sure no one gets to sneak by in violation of this prohibition. Either the sticker or a person identifies the last eligible voter waiting in line. In my search for news stories on what happened at the end of early voting in Nevada this year, I came across no account suggesting that this provision of the Nevada Administrative Code was violated or not enforced. On the contrary, one news story quotes the relevant Nevada elections authority saying that the well-established procedures were followed as required: “As we do throughout early voting and have done for many years, if the early voting site is scheduled to close at a certain time and there is still a line, obviously we continue to process those votes.”

 

There have been many troubling and unprecedented developments in this year’s presidential election. Yet, in my judgment, this episode marks another line being crossed—and a particularly troubling one. A major-party candidate for the highest office in our nation’s democracy should not condemn it when the voting process properly adheres to one of its most basic democratic principles: registered voters who arrive at the polls while they are still open are entitled to cast ballots even if they must wait until after the scheduled time for the polls to close. To suggest that adherence to this principle, and to the legal obligation that protects it, amounts to a “rigged system” is to demonstrate a lack of understanding what the very essence of democracy is all about.

This post appeared originally at Prawfsblawg.

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Edward B. Foley is Director of the Election Law at Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law at Moritz. View Complete Profile

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