Issue
Determination of the legality and constitutionalism of Assembly Bill 4 passed on Sunday, August 2, 2020, by the Nevada Legislature, permitting vote by mail during the 2020 general election.
Law
The disputed bill contains unconstitutional provisions, notably section 20, which seems to normalize delays for electing members of Congress and for the appointment of presidential electors, as established in 2 U.S.C. §§1, 7, and 3 U.S.C. §1 1 . Also, the plaintiff questions the constitutionalism of Sections 11 and 12 of the AB4, which sets the number of in-person polling places for early voting and voters’ centers for day-of-election voting, respectively. Additionally, the suit challenges the legality of Section 22 of AB4, citing that it charges the city or county clerk with the mandate to establish procedures for the processing and counting of the ballot. Finally, the lawsuit filed by President Trump challenges the requirements of Section 25 of AB4 that charges the county or city clerks with the power to count potentially fraudulent or invalid ballots.
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Analysis
Trump’s lawsuit against the State of Nevada suffers from several fundamental flaws, as some of its principal arguments rely on federal statutes that cannot be enforced through a lawsuit brought by a private party. Additionally, some of the arguments made by the President seem to rest on speculation about how disputed sections will be implemented 2 . Case in point, Bush v. Gore (2000) assigned a limited time for determination of cases and makes the chief argument in Trump’s case as the President invokes its ruling where the judges of the Supreme Court maintained that issues that are limited to the present circumstances should not be relied on by a future court.
The implications of Trump’s argument are dire as the specific issues in Bush v Gore contradicts the grounds that cover the claims brought about by the suit. In Bush, the President challenged a recount of the ballots cast in Florida, with the assumption that the recounting did not apply uniform rules 3 . The bench deliberating on Bush v Gore ascertained that the lack of one statewide standard injected too much arbitrariness into the recount, there agreeing with the President that the tact was unconstitutional.
However, Trump’s arguments question the legality of mail-in ballots, underlining that the ballots will be counted if they are postmarked by the day of the election and received no later than seven days after casting. Therefore, it is the President’s opinion that AB4 creates makes it stricter for individuals to exercise their constitutional right to participate in a free and fair election, given that its provisions allow for delays. Unfortunately, the court is likely to reject Trump’s argument on the ground that it presents problems that were already addressed by the Supreme Court during Bush’s tenure when he challenged the recounting of votes in Florida 4 . If it was unconstitutional for Florida to apply different standards in evaluating unclearly marked ballots, the same logic will follow. Also, Trump presented a case that is likely to question the need for creating a private right of action as explained by the Supreme Court when deliberating on Gonzaga University v. Doe.
Conclusion
The case against the State of Nevada, though pertinent lacks legal standing and cannot therefore pass. President Trump’s allegation is vague and is not based on the constitution rather on innuendos. However, some of the provisions pronounced in the AB4 act may seem contradictory given that they allow for the creation of a private right of action. Nonetheless, the action by the State of Nevada meant to address the stalemate brought about by the Covid-19 crisis. Accordingly, Trump is likely to lose in this case.
References
Courtlistener. (2020, August 2). Case 2:20-cv-01445 . Retrieved from Courtlistener: https://www.courtlistener.com/recap/gov.uscourts.nvd.144953/gov.uscourts.nvd.144953.1.0_1.pdf
Millhiser, I. (2020, August 6). Trump’s radical lawsuit against Nevada’s vote-by-mail law, explained. Retrieved from Vox: https://www.vox.com/2020/8/6/21355564/trump-nevada-vote-by-mail-ab4-cegavske-sisolak-supreme-court
1 Millhiser, I. (2020, August 6). Trump’s radical lawsuit against Nevada’s vote-by-mail law, explained. Retrieved from Vox: https://www.vox.com/2020/8/6/21355564/trump-nevada-vote-by-mail-ab4-cegavske-sisolak-supreme-court
2 Courtlistener. (2020, August 2). Case 2:20-cv-01445 . Retrieved from Courtlistener: https://www.courtlistener.com/recap/gov.uscourts.nvd.144953/gov.uscourts.nvd.144953.1.0_1.pdf
3 Courtlistener, 2020, p. 12
4 Millhiser, 2020
