Ninth Circuit Dismisses RNC Challenge to Nevada’s Post-Election Mail Ballot Counting

In a memorandum disposition filed Friday (see below), a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit dismissed the Republican National Committee’s long-running appeal challenging Nevada’s law that permits counting certain mail-in ballots received up to four business days after Election Day. 

The panel—Judges Graber (Clinton appointee), Bade, and Lee (both Trump appointees)—held that the plaintiffs lacked standing to appeal because they would suffer no actual or threatened injury from the district court’s earlier dismissal. 

“Plaintiffs have advised us that if we reverse the district court’s dismissal, they will voluntarily dismiss the case on remand,” the court wrote. “Put differently, Plaintiffs ask us to vacate the order dismissing this case without prejudice so that they can move for this case to be dismissed without prejudice.” Thus, “by their own admission, Plaintiffs have not suffered any ‘actual or threatened injury’… as a result of the district court’s dismissal order and, therefore, they do not have standing to maintain this appeal.” 

The court emphasized fundamental appellate principles: “To have standing to appeal, a party must be ‘aggrieved by the district court[’s] order.’” Disagreement with the reasoning is insufficient if the outcome would remain the same. Federal courts, the panel noted, “review decisions, judgments, orders, and decrees—not opinions, factual findings, reasoning, or explanations.” The appeal was dismissed without oral argument. 

The case, Republican National Committee v. Burgess, originated in May 2024 when the RNC, the Nevada Republican Party, Never Surrender, Inc., and Nevada voter Donald Szymanski sued Washoe and Clark County election officials, Secretary of State Francisco Aguilar, and others. They challenged Nevada Revised Statutes § 293.269921, which allows mail ballots postmarked by Election Day to be counted if received within four business days, and presumes timely postmarking for those arriving within three days without a clear postmark. 

Plaintiffs argued the statute violated federal Election Day laws and diluted lawful votes. 

U.S. District Judge Miranda Du (Obama appointee) dismissed the suit in July 2024 for lack of Article III standing. The RNC appealed. 

The case was deferred pending the U.S. Supreme Court’s June 29, 2026, decision in Watson v. Republican National Committee, which upheld similar grace periods in a 5-4 ruling authored by Justice Amy Coney Barrett. 

Barrett wrote that federal statutes set only the day of the election and “say nothing about ballot receipt.” 

Friday’s Ninth Circuit ruling effectively ends the Nevada challenge, following the high court’s broader green light for post-Election Day receipt of timely-cast mail ballots. 

Democracy Docket, founded by Democratic election lawyer Marc Elias, reported the dismissal as the latest in a series of RNC setbacks on the issue. The outcome lands amid ongoing frustration from Nevada Republicans over the state’s protracted vote-counting process. 

Earlier this week, Governor Joe Lombardo criticized Democratic lawmakers for repeatedly blocking reforms that would require ballots to be received and counted by Election Day. “I’ve fought to have ballots be received and counted by Election Day so Nevadans can know the results on Election Night. Democrats have blocked it every step of the way,” Lombardo posted. “If Florida can do it, Nevada can do it. It’s time for Election Day to be timely, expedient, and accurate.” 

As California Globe detailed, Nevada’s universal mail-ballot system and multi-day receipt window—enacted by Democrats during and after the pandemic without Republican support—have routinely left results incomplete for days or weeks. A recent study noted Nevada’s election safeguards rank weaker than those in Rwanda. 

Lombardo and other Republicans have long argued the delays erode public confidence, particularly in a battleground state where close races can hinge on late-arriving ballots. Critics of the grace period, including the RNC, have maintained that counting ballots after Election Day creates opportunities for irregularities and prolongs uncertainty. Supporters, including Democratic officials, Marc Elias, and the Democratic National Committee, frame it as a practical accommodation for postal delays that protects votes cast on time.

With the Ninth Circuit’s procedural dismissal, Nevada’s current system remains intact heading into the November midterms. Governor Lombardo’s push for Election Night finality continues to face a Democratic-controlled Legislature that has shown little interest in tightening the rules. 

For Republicans focused on election integrity, Friday’s ruling is another reminder that the courts, and the political balance in Carson City, will determine whether “Election Day” actually ends on Election Day.