EDITORIAL: Court will hear case of post-election ballot counting

The Supreme Court will hear a case that could jeopardize Nevada’s policy of counting mail ballots received days after the election, which delays results and stokes conspiracy theories. It’s about time.

The justices this week agreed to take a dispute from Illinois regarding a Republican congressman’s objection to a state law allowing officials to tally mail ballots that arrive up to two weeks after voting has completed. The case will have ramifications for the 18 states — including Nevada — that record mail ballots received after the polls have closed on Election Day.

Nevada’s statute is one of the most liberal, given the state Supreme Court ruled last year that even mail ballots with illegible postmarks must be included in the final vote numbers.

The Illinois case involves Rep. Mike Bost, who represents a conservative district downstate. While the Constitution gives states wide latitude to set the “time, manner and place” of their elections, it also gives the federal government the power to set a uniform day for national elections, he argued.

A federal court dismissed the case, ruling that it lacked jurisdiction and that Rep. Bost didn’t have standing. The 7th U.S. Circuit Court of Appeals agreed.

But that outcome was in conflict with an October decision by the 5th Circuit that threw out as unconstitutional a Mississippi law allowing the late counting of ballots. The Supreme Court will now determine if the federal courts should hear such cases.

“The public needs to know that these concerns can be heard and ruled on,” Russell Nobile, the attorney for Rep. Bost, told The Daily Signal. “Even if a candidate doesn’t win on the merits, the process has to be transparent. That’s essential to maintaining trust in our elections.”

If the high court rules for Rep. Bost, the case will return to the 7th Circuit and will probably be re-litigated. At that point it could again eventually arrive before the justices, who would then rule on the constitutionality of the practice in Nevada and other states.

The irony is that the controversy is avoidable. The explosion in mail ballots resulted from “temporary” measures intended to encourage people to vote during the pandemic. Since then, plenty of states — Florida, in particular — have retained mail-in voting laws but set deadlines to ensure that such ballots are counted in a timely fashion. There’s no reason, for instance, that mail voters couldn’t be required to have their ballots postmarked three or four days before election Tuesday. There’s already a earlier deadline for early voting. Why not the same for mail ballots?

Late vote counting drives suspicions and undermines confidence in the system. States such as Nevada should adjust their deadline accordingly regardless of what the Supreme Court eventually holds.