As a Nevada law allowing mail ballots received up to four days after Election Day to be counted faces a legal challenge, a fresh look at Nevada’s 2022 vote count reveals the potentially election-flipping number of mail ballots that were counted despite arriving after Election Day. In just Clark County, nearly 40,000 mail ballots were counted that arrived in the days after voting supposedly ended, roughly 5 percent of the county’s total ballot count.
In that same election, Republican Senate candidate Adam Laxalt led Democrat incumbent Sen. Catherine Cortez Masto on election night but eventually lost by less than 8,000 votes statewide. For comparison, two years prior, Joe Biden narrowly beat Donald Trump in the 2020 presidential election in Nevada by 33,596 votes.
In the closing days of battleground Nevada’s crucial 2022 U.S. Senate race, Laxalt pulled ahead of incumbent Cortez Masto. On Oct. 21, leftist organ Politico fretted over news that Laxalt had “inched ahead” of Cortez Masto as a “bad sign” for Dems, considering the former Nevada attorney general was down by 3 points a month earlier.
“Cortez Masto was long seen as the most vulnerable Democratic incumbent in the Senate, the most likely to fall should a ‘red wave’ sweep the country and punish Democrats this midterm season,” wrote Vox senior politics reporter Christian Paz shortly after the election.
But the wave never materialized for Republicans in a midterm election that was supposed to be a referendum on an extremely unpopular president. While the GOP won back the House by a paper thin majority, the Senate remained in Democrat control and the many races that were “supposed” to go red, didn’t.
In Nevada, there was plenty of time to staunch the wave.
Days of Counting
Laxalt appeared to lead comfortably on election night, but the counting was far from over. Thanks to the Silver State’s law allowing mail-in ballots to be counted up to four days after the election if postmarked on Election Day, the votes kept coming — and they kept coming en masse for Cortez Masto.
“I know of several [Republican] candidates who went to bed on election night winning and then a week later they had lost,” Devin Livziey, vice chairman of the Clark County Republican Party, told The Federalist.
Most of the late but legal arrivals were coming from Clark and Washoe counties, home to Las Vegas and Reno, respectively. The counties make up roughly 90 percent of Nevada’s voting population, and Clark County leans heavily Democrat.
The night after Election Day, Laxalt was sill feeling confident, tweeting that even if his opponent won 63 percent of the outstanding Clark County votes, “she would still lose.”
But the post-Election Day votes were adding up.
“On Wednesday afternoon and evening, several Nevada counties reported updated results accounting for thousands of mail ballots, including more than 14,000 in Clark County and 20,000 in Washoe County,” the Nevada Independent reported. “Three rural counties — Lyon, Nye and Douglas — also reported more votes collectively totaling about 11,000 ballots.”
Three days after Election Day, according to the publication, Laxalt led Cortez Masto by fewer than 9,000 votes. When the dust settled on the elongated election week, the Democrat had the ballots she needed to win by less than 8,000 votes, or less than eight-tenths of a percentage point.
Election Day Hangover
Last week, Nevada Independent reporter Tabitha Mueller reminded her followers on X just how significant the Election Day hangover was for the outcome of the 2022 general election. She noted records from the secretary of state that showed the number of mail ballots that came in during the four days after Election Day accounted for 5 percent of all ballots in Clark County, and nearly 3 percent in Washoe County.
The records show Washoe County elections officials took in and counted 5,681 ballots via mail post-Election Day, while Clark County received and counted 39,915 ballots. Clark County recorded a total of 685,486 ballots, while Washoe County counted 195,272.
An official from the Secretary of State’s Elections Division sent The Federalist the same document, claiming that it was “an internal working document” not “intended for publication.”
A July 2023 audit found Clark County elections officials processed more than 27,000 mail ballots the day after Election Day, and nearly 36,500 on that Thursday, Nov. 10. Things slowed down after that, with about 500 mail ballots processed on the Friday after Election Day and another 1,400 on the final day ballots were accepted.
Clark County accepted 340,508 mail ballots, according to the audit, just less than half of the county’s total ballot count.
The report, completed by the Clark County Audit Department, found nearly 5,000 mail ballots in the 2022 general election were received between Nov. 13 and Nov. 17, too late to be counted under the law.
“Because these ballots are not able to be counted/processed under State Law, it highlights the need to continue educational and outreach efforts to increase voter awareness around submission deadlines,” the report recommended.
‘Freewheeling Ballot Harvesting’
Nevada is among eight states that allow all elections to be conducted entirely by mail, according to the National Conference of State Legislatures. Ballot harvesting, once a felony in the Silver State, is the law of the land.
“Nevada has one of the most freewheeling ballot harvesting laws in the country, allowing unlimited volumes of collection by any ‘person authorized by the voter,’” noted Kevin Dietrich of Nevada Policy.
Days before the election, the Las Vegas Review-Journal told its readers that there were “very few reports of organizations or people collecting ballots in this election.”
“The Review-Journal reached out to both Washoe and Clark counties, which said that while there is not a way to track ballot collections, they have not heard of many people collecting ballots. The Review-Journal also reached out to tribal coalitions, political organizations, unions and churches but did not find anyone offering to bring people’s ballots to the polls,” a piece published on Nov. 4, 2022 claimed.
Republicans who saw vote leads disappear in the days immediately following Election Day 2022 don’t buy that narrative.
“I definitely believe they did go out to do ballot harvesting,” said Livziey, acknowledging that the practice is “definitely legal” in Nevada.
That doesn’t mean it should be, according to the Republican National Committee, the Nevada Republican Party, and the campaign for former president Donald Trump, the GOP’s 2024 candidate for president.
‘Higher Law’
In a federal lawsuit filed earlier this month against Secretary of State Francisco Aguilar, a Democrat, and election officials in Nevada’s two most populated counties, the Trump campaign and the GOP argue the four-day grace period violates federal laws that “establish the Tuesday after the first Monday in November as the uniform, national Election Day.” While states have broad discretion in deciding how to conduct federal elections, their election laws “must comply with the higher law of the U.S. Constitution” and the federal laws drawn from it, the plaintiffs charge.
“The result of Nevada’s violation of federal law is that timely, valid ballots are diluted by untimely, invalid ballots, which violates the rights of candidates, campaigns, and voters under federal law,” the lawsuit asserts.
As the complaint notes, mail ballots for this year’s Nov. 5 election postmarked by Election Day will be counted if received on or before 5 p.m. on Nov. 9, if Nevada’s law remains in place. Additionally, the lawsuit charges that Nevada election officials “have counted and will continue to count mail ballots that lack a postmark and are received on or before 5 p.m. on November 8, 2024.”
“For example, the United States Postal Service does not postmark bulk rate mail, which means that a significant number of mail ballots will lack a postmark. Nevada election officials will count such ballots even if they are sent after Election Day,” the lawsuit states.
Playing the Hand
Democrats continue to dominate voting by mail. An MIT Election Lab poll found 46 percent of respondents who identified as Democrats mailed in their ballots in the 2022 election compared to 27 percent of Republicans.
Trump campaign attorneys and representatives did not return The Federalist’s requests for comments.
Livziey said Election Day should be the deadline for ballots, but if it’s not, he believes Republicans need to better play the hand they’ve been dealt.
“Whether it should be illegal is another story. We need to do a better job playing by the rules we’ve been handed,” the county GOP official said.
He added that he can’t speak to Clark County Republicans ballot harvesting efforts in 2022, “but I can tell you in 2024 we absolutely will be.”
