Left: Fox News host Maria Bartiromo. Right, Lara Trump, former President Donald Trump’s daughter-in-law and co-chair of the Republican National Committee (screengrab via Fox News).
Lara Trump, wife of Eric Trump and the Republican National Committee (RNC) co-chair, is under fire after telling Fox News’ Maria Bartiromo that the RNC filed a lawsuit to stop counting ballots after Election Day in the battleground state of Nevada. Trump’s statements about the lawsuit were not only wrong with respect to the lawsuit itself, but also incorrectly summarized state election law there — largely put in place by Republicans.
Bartiromo prompted Trump about the lawsuit filed by the RNC on Friday: “I see that the RNC is filing a lawsuit in a battleground state to stop counting ballots past Election Day.”
Trump answered, “Yeah. Well, that’s exactly right.”
“You cannot have ballots counted after elections are over … we want Election Day to be the last day mail ballots can be counted,” Trump continued.
Despite Trump’s on-air commentary, the RNC lawsuit is not trying to stop ballots from being counted after Election Day in Nevada — or anywhere else.
The lawsuit
As Law&Crime reported Friday, the complaint was filed in federal court in Nevada by the Republican National Committee, the Nevada Republican Party, Donald J. Trump for President 2024, Inc., and Nevada voter Donald J. Szymanski against various election officials in Nevada. It challenges Nevada’s rules for deadlines applicable to receiving — not counting — mailed ballots.
The filing objects to Section 293.269921 of the Nevada Revised Statutes and alleges that it is unconstitutional in that the law extends Nevada’s federal election deadline and “dilute[s] valid ballots” with “untimely, invalid ballots, which violates the rights of candidates, campaigns, and voters under federal law.”
The statute allows mailed ballots to be counted so long as they are postmarked on or before the day of the election and received by the county clerk “not later than 5 p.m. on the fourth day following the election.”
“Under Nevada’s current law, mail ballots for the November 5 election postmarked by Election Day will be counted if received on or before 5 p.m. on November 9, 2024,” the 18-page filing explains.
The statute also allows mailed ballots whose postmark date cannot be determined to be counted if received before 5 p.m. on Nov. 8, 2024. The lawsuit predicts that “a significant number of mail ballots will lack a postmark,” because, “the United States Postal Service does not postmark bulk rate mail.”
“The RNC, NVGOP, and Trump Campaign intend to conduct their campaigns in accordance with federal law,” the complaint promises, then alleges that in contravention of the Fourteenth Amendment, “Dilution of honest votes, to any degree, by the casting of fraudulent or illegitimate votes violates the right to vote.”
The complaint notes that voting by mail is always “starkly polarized by party,” and is “even more polarized by party in Nevada specifically.” Statistics about mailed ballots were included as well.
“For example, in Nevada’s 2020 general election, 60.3% of Democratic voters voted by mail, compared to just 36.9% of Republican voters,” the complaint asserted. “Likewise in its 2022 general election, 61.3% of Democrats and just 40% of Republicans voted by mail.”
The complaint provided an explanation for its allegation that mail-in voting tends to help Democrats:
“Mail ballots from Democratic voters also tend to arrive late, in part because Democratic get-out-the-vote drives — which habitually occur shortly before Election Day — may delay maximum Democratic voting across-the-board, and produce a ‘blue shift’ in late mail ballots.”
Therefore, the plaintiffs said, their right to vote and hold office will be violated unless Nevada is ordered not to count mailed ballots received after Election Day.
The 18-page lawsuit makes no allegation about the counting process for mailed or any other ballots. The RNC did not take issue with when ballots may be counted, but rather, which ballots are to be counted. Thus, Trump’s summary of her organization’s lawsuit — “We want Election Day to be the last day mail ballots can be counted” — simply did not match the filing.
The legal community was unwilling to let Trump’s inaccuracies go unnoticed.
“This entire segment is a mess,” commented Voting rights lawyer Marc Elias on X, formerly Twitter.
“Here is what you need to know,” Elias continued. “Republicans are in court trying to make it harder to vote and easier to cheat. My legal team is fighting back.”
“The stupid. It hurts,” offered national security law expert Bradley Moss.
State election laws
State election laws usually regulate the start, not the end, of vote counting
Trump’s on-air statements about the lawsuit were not only incorrect in that they did not match the filing itself. They also conflicted directly with common vote-counting practices. No state requires that vote counting be finished on Election Day, and many states disallow even the start of counting to begin until after the polls close. Nevada law specifies that vote counting must counting must be completed by the seventh day after the election — not by Election Day itself.
Fifteen states and Washington, D.C., only allow counting of regular (non-mailed) votes to begin after polls close. Those states are Alabama, Alaska, District of Columbia, Idaho, Illinois, Maine, Minnesota, Mississippi, New Hampshire, New Mexico, North Dakota, Rhode Island, South Dakota, Vermont, Virginia and Washington. Eight states and Washington, D.C., require that mailed ballot counting wait until Election Day itself to begin. Those states are Alabama, the District of Columbia, Michigan, Mississippi, New Hampshire, Pennsylvania, South Dakota, West Virginia and Wisconsin.
Maryland does not allow the processing of absentee ballots until 10 a.m. on Thursday after an election. Connecticut and Ohio only allow vote processing to begin at a time determined by local elections officials.
Nevada and 38 other states and the U.S. Virgin Islands allow state election officials to conduct “early” counting of absentee ballots prior to Election Day. Those states are Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virgin Islands, Virginia, Washington and Wyoming.
Nevada and most other states prohibit the release of any election results until after polls close.
Trump was skewered online for her seeming lack of awareness of the reality of state elections laws.
Election law expert Steve Vladeck posted, “A number of states formally *prohibit* the counting of any votes until after polls close on Election Day.”
“And a bunch of those laws were enacted by Republican-controlled state legislatures,” Vladeck added for context.
Maricopa County Recorder and lawyer Stephen Richer, a Republican elected in November 2020, called Trump out in a post on X, formerly Twitter.
“I assume she means don’t count ballots received after Election Day,” Richer said, then commented, “If we didn’t tabulate anything after Election Day, that would be devastating for Republicans in Arizona. In both 2020 and 2022, Republicans accounted for more of the early ballots dropped off on Election Day — those are the ballots tabulated after Election Day.”
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