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This article comes out of a federal lawsuit about mail-in voting in Nevada. As I discuss the suit, feel free to follow along with the complaint.¹

One has to read the complaint for a bit to get to the meat of the matter. Just blow by the grousing over the law being too long and that it was, shudder, single-spaced—or that the Nevada Senate passed it on a weekend. The lawsuit does not allege that the weekend vote is illegal. That was left to President Trump’s tweeter:

In an illegal late night coup, Nevada’s clubhouse Governor made it impossible for Republicans to win the state. Post Office could never handle the Traffic of Mail-In Votes without preparation. Using Covid to steal the state. See you in Court! https://t.co/cNSPINgCY7

— Donald J. Trump (@realDonaldTrump) August 3, 2020

Trump has a high bar to pass, as the complaint admits:

Under the U.S. Constitution, states have broad discretion to decide how to conduct their elections.

What the Trump side must do is show first is that they have standing to bring the suit in the first place and then that the Nevada law is contrary to the Constitution or existing federal statutes. We’ll look at the complaint first:

Which mail-in ballots count

Their first argument is statutory; federal law sets the date of the election. Nevada law (and this isn’t new) allows counting mail-in ballots that arrive after election day but before the election is certified, provided they are postmarked on or be election day or when the postmark is illegible. The Trump side says the ballot must bear evidence of proper time of mailing, making valid ballots vulnerable to malicious activity by postal workers or machine error.

In fact, the Trump side argues elsewhere that the Postal Service doesn’t do a good job of delivering the mail on time and that they mishandle ballots—all the more reason to allow more latitude in delivery.

The Republicans argue that the Postal Service simply is not equipped to handle the volume. My reply to that is, “Christmas.”

Since the vast majority of Biden voters prefer mail-in voting and Trump voters do not,² any mail-in ballot not counted will likely be for Biden. (The Trump Campaign has also sued Pennsylvania arguing that secure drop boxes for ballots violates the 14th Amendment.)

A quick sampling of a few states found that all required receipt of the mail-in ballot by the close of the polls on election day, with the exception in some for military personnel voting overseas.

Vagueness

The Trump side argues that some provisions of AB4 are open to interpretation, and therefore not everyone will be treated the same. This somehow violates the constitutional principle of “equal protection.” I read through some of this and it seemed silly to insist extreme micromanagement of county election offices. Here’s an example from the complaint:

Section 25 provides that “[i]f two or more ballots are found folded together to present the appearance of a single ballot, they must be laid aside. If a majority of the inspectors are of the opinion that the mail ballots folded together were voted by one person, the mail ballots must be rejected and placed in an envelope, upon which must be written the reason for their rejection.” But Section 25 establishes no standard by which the inspectors should assess whether the ballots were voted by one person.

You can’t legislate every possible nuance of how something is folded. That’s why we have election officials and not robots.

The thrust seems to be that the Nevada law is not perfect in their view.

New York

The Trump side argues that their concerns are real and urgent because New York has had problems with their mail-in voting. Nevada, however, is not New York, and other all-mail western states are doing quite well. Several claims in the lawsuit from delivery of the mails to the accuracy of voter registration databases are made based on allegations against other states, not Nevada.

Polling places

I didn’t read all of this section, but it appears that the Trump side claims that the allocation of in-person voting places favors mail-in voting. Nevada’s new model seems to encourage mail-in voting, but every county will have at least one in-person site so that anyone who wants to wait until election day can vote.

The mails

The lawsuit, while in not so many words, alleges that the postal service is a bunch of incompetent jerks who are in capable of delivering the mail.

Standing

The first question that must be that settled is whether the lawsuit is valid in the first place. Federal law gives to the states the authority to determine the manner of appointment of electors. But clearly the courts have ruled on election cases where classes of voters are disenfranchised (I don’t think Republicans are a protected class though). Article III of the Constitution limits the federal courts to actual cases and controversies.

Article III standing law is built on separation-of-powers principles. Its purpose is to prevent the judicial process from being used to usurp the powers of the legislative and executive branch of the U.S. federal government.³

The essential problem for the Trump side is that they will not be able to make the case that they, as Republicans, or the Trump campaign, are harmed any more than the voter in general. They cannot show how Republicans specifically are disadvantaged by AB4. That means that the Trump Campaign and the Republican plaintiffs have no more at stake than the Nevada voter in general, and it is well-settled that broad classes like voters do not have standing to sue.

Merits

If the lawsuit somehow gets past the motion to dismiss for lack of standing, then it will be considered on the merits.

Clearly the strongest argument for the Trump side is the counting of ballots that arrive after the election; however, since the act of putting the ballot in the mailbox can be deemed to be voting, and the state determines the manner of voting, I think this will pass muster. That leaves the issue of ballots with illegible postmarks. Again the state should have the authority to set the standard by which they determine a timely ballot.

I think Trump loses this one.

As for the others, I think those arguments are weaker. Republicans can’t show how any of these nipicks, vagaries, postal service quality and registration database quality disadvantage them specifically. The states have discretion here, and the equal protection argument makes no sense.

Trump loses this one too.

So then…

I am not a lawyer, and I know even less about Nevada law than I do federal law, but it seems to me that the Republicans filed in the wrong court. They should have filed in state court, because they lack federal standing.

The case has been assigned to Judge James C. Mahan and referred to Magistrate Judge Cam Ferenbach.

PS

The Trump campaign sued in Nevada in 2016 also, complaining that early voting places stayed open to accommodate voters who were standing in line.⁴  (Don’t all states do that?)

The Trump Campaign is also suing in Pennsylvania alleging that official ballot drop boxes violate the 14th Amendment.⁵ This lawsuit, also filed in federal court, appears to suffer from the same lack of standing problems for the same reasons.

It appears that Donald Trump is doing everything he can to discredit voting by mail among his followers and thereby biasing them to vote in person. Then he is doing everything he can to make mail-in voting difficult or impossible, and thereby suppress the Biden vote. This is what I call rigging an election.

1. Donald J. Trump for President v. Cegavske complaint [↩]
2. July National Poll: Biden Maintains Lead in Presidential Race; Majority Support Nationwide Mask Mandate in Public Spaces [↩]
3. Case or Controversy Clause – Wikipedia [↩]
4. Trump Campaign Files Lawsuit in Nevada Aimed at Early Voting [↩]
5. The Trump campaign is suing Pennsylvania over how to run the 2020 election [↩]