WASHINGTON — President Donald Trump has warned that America may not know the results of the presidential race on election night, and Nevada, with its new universal mail-in ballot law, could be “the one state” that decides the race.
Given numerous problems in 2020 primaries as officials have worked to make voting safer during the pandemic, it could be that only a landslide can prevent prolonged uncertainty not seen since 2000, when the race for the White House was decided after vote-counting and recounting in Florida.
The Florida saga consumed 36 days and introduced terms like “hanging chads” into the political lexicon. When it was over, the damage to Florida’s reputation was considerable.
Could Nevada, with its six Electoral College votes, become the next Florida?
Former Senate Majority Leader Harry Reid isn’t concerned. The son of Searchlight told CNN on Friday that Nevada’s election system “is really going to work extremely well.”
But Trump and former Nevada Attorney General Adam Laxalt, a Republican, are enraged at what they see as Democrats’ attempt to “steal” the election.
As Laxalt describes the issue, less than 100 days before the election and without public scrutiny or input from GOP Secretary of State Barbara Cegavske, the Democrat-majority Legislature passed Assembly Bill 4 by a party line vote during the just-concluded special session. Democratic Gov. Steve Sisolak signed the measure into law Aug. 3.
The new law mandates that election officials send mail-in ballots to all active voters — it’s the sort of universal vote-by-mail system Trump opposes — and allows so-called “ballot harvesting,” or collection of ballots from multiple voters.
New law challenged
The Trump campaign, the Republican National Committee and the Nevada GOP have gone to court to challenge the new law.
Local Republicans accuse legislative Democrats of ramming through long-desired election changes under the guise of disaster relief. Democrats counter that they have increased voter options without taking away any existing choices during uncertain times stemming from a pandemic.
Sisolak, state Senate Majority Leader Nicole Cannizzaro and Assembly Speaker Jason Frierson also have criticized Republican statements as attempts to suppress the vote.
While Cegavske opposed the measure, it’s her job to enforce it, said Wayne Thorley, Nevada’s deputy secretary of state for elections. And it’s doable, he said.
Before AB4 became law, Thorley said the state had allotted seven days for ballots mailed before election day to be counted.
“Accurate election results are much more important than fast election results,” he said.
Loyola University law school professor Jessica Levinson predicts that every state will have election headaches. For one thing, she said, “many states don’t have the infrastructure to have this kind of widespread vote by mail.”
Several jurisdictions have experienced problems with mail-in ballots during this year’s primary elections.
With 10 times more mail-in ballots to process than in previous years, New York City officials took six weeks to process ballots for two congressional primaries.
After California mailed ballots to registered voters, whether requested or not, ahead of its March 3 primary, officials rejected more than 100,000 ballots because they were mailed too late, were signed or had signatures that didn’t match.
In July, the U.S. Postal Service reported that compared with the figure in the Wisconsin primary in 2016, there was a 440 percent uptick in mail ballot requests for this year’s Wisconsin primary, which was followed by numerous problems. Tubs of ballots were found at a processing center, ballots were not delivered to voters, ballots were wrongly returned, and some of them were returned without postmarks.
‘A heavy lift’
Even states that are steeped in voting by mail will have problems, Levinson predicted.
Before 2020, five states — Colorado, Hawaii, Oregon, Utah and Washington — held elections with mail-in ballots only.
But Washington Secretary of State Kim Wyman told NPR in May that it has taken those states five to 10 years to build the capacity to count all mail ballots, and those preparations included the purchase of high-speed ballot and envelope sorters. For states with a low percentage of voting by mail, the switch to all-mail balloting can be “a heavy lift,” she said.
Before 2020, some 90 percent of Nevada votes were made in person at polling places, which could be a factor in a mail-in election.
“First-time absentee voters are more likely to make mistakes that lead to their ballot being rejected,” Jason Snead of the Honest Elections Project told the Review-Journal.
“Any pandemic voting plan should do two things: It should make it easy to vote and hard to cheat,” Snead said. “Nevada’s new plan doesn’t do that. In fact, it senselessly invites fraud, chaos and voter disenfranchisement by stripping away basic voting safeguards. It even opens the door to the unsettling prospect of counting ballots cast after Election Day.”
Nevada Democratic Party Chair William McCurdy II, also a state assemblyman who voted for the new law, disagrees.
“AB4 expands mail-in and in-person voting options, granting Nevadans greater choice this November,” he said.
The GOP lawsuit seeking to overturn AB4 warns that the “consequences of this hurried switch” could erode public trust in the election. And the credibility of the system took a hit before the June 9 primary when the Review-Journal ran a story with photos of openly discarded ballots that seemed vulnerable to mischief.
In the run-up to the primary, Clark County was the only Nevada county to send unsolicited ballots to inactive voters, contrary to Cegavske’s instructions to send ballots only to active voters.
Thorley, the deputy secretary of state, contends that election officials rejected more than 10,000 ballots out of nearly half a million ballots cast, so the system worked.
The correct system during a pandemic, argued Snead, who worked on election issues for the conservative Heritage Foundation for a decade, would be to allow registered voters to request an absentee ballot but not send out mail ballots.
“We’re talking about an election, not an experiment,” he said.
Trump himself has voted absentee in his adopted home of Florida, where he said the voting system has been cleaned up since 2000. On Twitter, he told Floridians to feel free to vote by mail, even as he has railed against Nevada’s universal mail-in balloting.
The difference, he later explained, is that Floridians have to request an absentee ballot. Under Nevada’s new law, all active registered voters will get a mail-in ballot whether they want one or not.
Levinson wants officials to err on the side of intent, even in cases when people didn’t sign the ballot correctly. She said she still has concerns about the Nov. 3 election, as officials must contend with a record amount of mail-in ballots during the fog of a pandemic.
“NASA would never send people into space without trying first with a monkey or a dog,” she said.
“Nevadans already made national headlines when undeliverable ballots were left to litter sidewalks after it rushed into a vote-by-mail primary election. The state should learn from that mistake, not repeat it.”
-Jason Snead, Honest Elections Project