Donald Trump’s campaign filed a complaint on Tuesday alleging that election officials in Nevada broke the law by allowing up to 300 people to vote who were not in line at closing time on Friday at Cardenas market, a Latino-oriented restaurant in Clark County serving as a temporary early polling place. His campaign also made similar charges about a few other locations. Trump was trying to use this complaint to stop ballots cast there from being counted. This seems likely to be a ploy to try to deprive Hillary Clinton of having Nevada declared for her Tuesday night in the event of a close race with her ahead. Judge Gloria Sturman denied the campaign any preliminary relief to sequester ballots or get information on poll workers, but the suit may continue.
It will take a while to sort out everything, but my initial impression is that—even if it is true that people were allowed to vote late on the Friday night before Election Day at a handful of locations—Trump’s claim is weak on the law. The suit also misunderstands the point of early voting and the lack of harm done when early voting times are extended.
Nevada law, like the law in many places, provides that people who are in line when the polls close on Election Day get to vote, but no new people get to join the line. Trump’s complaint is that new people joined the line at Cardenas market after the locations were supposed to close at 8 p.m. and he’s put in some affidavits from people who say they witnessed new voters enter the line. That is disputed by others, who say that only those who were in line at 8 p.m. got to vote, with voting finishing at about 10 p.m.
Let’s, for the sake of argument, accept that the Trump campaign is correct that new people joined the line (I am not at all convinced of that, and if he’s wrong, there’s no case). Nevada law is clear that this is not permissible on Election Day itself. The relevant statute provides for the use of a sticker to mark the end of the line. Here are the instructions for voting officials to ensure that the line ends where the line ends:
If the last person waiting to vote does not want a sticker or other distinguishing mark placed on him or her, physically stand behind the last person waiting in line to vote, to ensure that no other person enters the polling place to vote.
But those rules do not necessarily apply to the sections of Nevada’s election’s code for in-person early voting. The early voting rules instead provide for election officials to use both permanent and temporary polling places and under the rules for temporary voting sites, like the Cardenas market, the hours set by statute for permanent voting places do not apply. These sites are allowed greater flexibility, given that they are used for other purposes, like buying your groceries.
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. The schedules for conducting voting are not required to be uniform among the temporary branch polling places.
All of this flexibility means that there would probably be no violation for allowing people at a temporary location to join the line late, even if Trump had a case that this is what happened.
All of this is in line with what the attorney for election officials told the judge in Tuesday’s hearing. The apparent practice in Nevada is for flexibility in early voting at temporary sites. The attorney argued that the hours set are minimum hours, not maximum hours.
This rule makes sense. The whole point of early voting is to offer convenience for voters. Voting of course has to end at some time, and we can’t have people voting after Election Day is officially over. But Election Day by definition can’t begin until the period of early voting is over, and it is hard to see what harm there is in allowing people to vote who would otherwise be able to vote on Election Day. Additionally, if these people’s ballots are thrown out at the last minute without them getting the opportunity to cast a replacement ballot on Election Day itself, where is the justice in that? So any argument of unfairness about people voting in line late seems to lack punch when applied to early voting.
Clark County mocked Trump for running to court on Election Day to get election officials to preserve election information they already by law must preserve. Judge Sturman didn’t think much of the argument either. It was not a great day for the Trump legal team.
In the end, this lawsuit is likely an Election Day distraction. Chances are, Nevada won’t be close enough for these votes to matter. If it is, Trump has set the stage for an election fight he would likely lose.
If nothing else, this lawsuit will give Trump fodder to claim he wasn’t a real loser because the election was “rigged.” Rigged by many Hispanic voters, incensed with Trump’s hateful rhetoric, coming in droves to a supermarket to exercise their constitutional right to vote like other citizens. Something that should be celebrated is being attacked by Trump, which seems a fitting ending to this campaign.