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Election Law @ Moritz


Nevada Early Voting: Analysis of Issues

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.

Edward B. Foley is Director of the Election Law @ 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 @ Moritz. View Complete Profile


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