Am. Civil Liberties Union Of Nev. v. Cty. Of Nye (Ballot Issue) ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
AMERICAN CIVIL LIBERTIES UNION No. 85507
OF NEVADA, A DOMESTIC
NONPROFIT CORPORATION; AND
STEVEN BACUS, AN INDIVIDUAL,
Petitioners,
vs. OCT 2 1 2022
THE COUNTY OF NYE, A EL
CLE
A. BROWN
GOVERNMENTAL ENTITY; AND BY
Eaure CLERK
MARK KAMPF, IN HIS OFFICIAL
CAPACITY AS INTERIM COUNTY
CLERK,
Respondents.
ORDER GRANTING IN PART PETITION FOR WRIT OF MANDAMUS
This emergency, original petition for a writ of mandamus
challenges certain Nye County voting procedures to be implemented during
the November 2022 election. In particular, petitioners ACLU of Nevada and
Steven Bacus challenge as violative of state and federal laws three
procedures announced to the Nye County Board of County Commissioners
by the County Clerk on September 20, 2022: orally announcing selections
on the ballots during the hand-count process, a "special needs" limitation on
the use of the touchscreen voting machine, and requiring proof of
identification when signatures cannot be verified. Respondents Nye County
and County Clerk Mark Kampf timely filed an answer opposing the
requested writ, and petitioners timely filed a reply.
History
On September 6, 2022, Nye County announced that it will use
only paper ballots, with touchscreen accommodations for ADA compliance,
and hand counting with parallel electronic tabulation in the upcoming
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general election.1 On September 20, the County Clerk presented more
details concerning the intended election procedures to the Nye County
Board of County Commissioners.2 Based on this presentation, which
included a slide show as well as verbal explanation, the County Clerk
intends to use a volunteer "reader" to verbally announce the selections on
each ballot to three "talliers," which reading a "verifiee will confirm. In
10n August 26, 2022, the Nevada Secretary of State adopted a
temporary regulation amending NAC Chapter 293 and governing the use of
hand-count methods for tabulating ballots. Section 3 of the regulation
requires county clerks who plan to conduct hand counts to submit a plan
therefor to the Secretary of State 30 days before the election. As Section 7
defines "hand count" as "the process of determining the election results
where the primary method of counting the votes cast for each candidate or
ballot question does not involve the use of a mechanical voting system," and
as Nye County apparently has not submitted any hand-count plan to the
Secretary of State, it follows that Nye County's hand-count process must be
a secondary method of counting the votes in the upcoming general election,
as stated by the County Clerk at the September 20 hearing.
2 We take judicial notice of the County Clerk's September 20,
2022, presentation, as recorded and made available on the Nye
County public website at: https://nyecounty.granicus.com/MediaPlayer.
php?view_id=4&clip_id=1722. See Mack v. Estate of Mack, 125 Nev. 80, 91,
206 P.3d 98, 106 (2009) (explaining that we may take judicial notice of facts
c``capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned" (quoting NRS 47.130(2)(b)));
Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010)
(taking judicial notice of information publicly available on government
websites when neither party disputes the information's accuracy); 75-80
Properties, LLC v. Rale, Inc., 215 A.3d 448, 456 n.3 (Md. Ct. Spec. App. 2019)
(taking judicial notice of comments made at a board of county commissioners
hearing when the hearing was recorded and made available on the county's
website).
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accordance with election laws, this process will be open to the public, and
individuals may observe the process in person. Additionally, the County
Clerk stated that the hand count will begin on October 25, 2022, and he will
livestream it, so that individuals will have the opportunity to "become poll
watchers at home." Further, as described on a slide, the County Clerk will
provide an ADA-compliant touchscreen voting machine, the use of which
will be "limited to those with special needs." Filially, the County Clerk
indicated that he will strengthen controls through "stringent signature
verification" and "require identification if signature or verification fail."
Petitioners challenge each of these three processes as violating
constitutional, statutory, and federal protections. Respondents counter that
the presentation and slides provided only a general overview of the intended
process, which petitioners use to speculate and distort in order to find non-
existent election law violations.
Discussion
A writ of mandamus may issue to compel an official to perform
a legally required act. NRS 34.160; see also Sw. Gas Corp. v. Pub. Serv.
Comrn'n of Nev., 92 Nev. 48, 54, 546 P.2d 219, 222 (1976) ("Performance of
a duty, enjoined upon an officer by law, without leaving him any discretion
in its perforniance, may be compelled by mandamus, if there be no other
adequate remedy." (quoting Teeter v. Eighth Judicial Dist. Court, 64 Nev.
256, 263, 180 P.2d 590, 594 (1947))). The writ may issue "in all cases where
there is not a plain, speedy and adequate remedy in the ordinary course of
law," NRS 34.170, and it is an extraordinary remedy that is solely within
this court's discretion. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674,
677, 679, 818 P.2d 849, 851, 853 (1991).
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Voters have a compelling interest in the way elections are run,
see generally State of N.M ex rel. League of Woman Voters v. Herrera, 203
P.3d 94, 97 (N.M. 2009) ("Determining the validity of individual votes is of
unquestionable importance. Establishing clear rules, prior to election day,
as to how such validity is to be established is of equal, if not greater,
importance."), as well as a constitutional right "[t]o have complaints about
elections and election contests resolved fairly, accurately and efficiently as
provided by law," Nev. Const. art. 2, § 1A(11).3 Further, the votes in Nye
County will count toward statewide election contests and ballot matters,
and petitioners assert concerns that threaten the validity of that election
process, thus impacting the citizens of this state in general. Moreover, given
Nye County's plans to start counting mail ballot votes imminently and the
district court's refusal to decide the merits of the matter upon the record
presented, we conclude that any alternate remedies would not be adequate.
See We the People Neu. v. Miller, 124 Nev. 874, 880, 192 P.3d 1166, 1170
(2008) (allowing for public policy, urgency, and necessity factors in deciding
to consider a writ petition that "raises issues of significant magnitude" and
"potentially has an impact on this year's election as well as future general
elections"); LaPorta v. Broadbent, 91 Nev. 27, 29, 530 P.2d 1404, 1405-06
(1975) (exercising discretion to consider a writ petition concerning an
election matter in the first instance "because the public interest requires an
early determination of the issue"). Thus, in the interest of the public, we
exercise our discretion to consider this petition.
3For these reasons, and because Baldonado v. Wynn Las Vegas, LLC,
124 Nev. 951, 961, 194 P.3d 96, 102 (2008), is distinguishable, we disagree
with respondents argument that only the Nevada Secretary of State may
enforce election laws such that petitioners lack standing to seek relief in this
instance.
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The hand-count process
Petitioners argue that the County Clerk's plan to hand count
the rnail and early voting ballots, before the polls close, by having a reader
state aloud the selections on each ballot, violates statutes restricting the
release of election results prior to the close of voting because all counting
processes must be open to the public. The tabulating of mail ballots can
begin 15 days before the election, NRS 293.269931(1), and counting early
voting ballots can be cornmenced after 8 a.m. on election day, NRS
293.3606(1). The counting of the ballots must be done in public. NRS
293.269931(1) (The counting procedure rnust be public."); NRS 293.3606(1)
(specifying that counting must be done "in public"). Despite allowing
counting to begin before all votes are cast, the statutory schemes governing
both types of ballots expressly prohibit the release or public dissemination
of results before the polls have closed. NRS 293.269935(3);4 NRS
293.3606(5).5 The county clerk is responsible for establishing procedures for
counting mail ballots that do not conflict with the prohibition against
prematurely releasing results in NRS 293.269935. NRS 293.269925(1) &
(2).
NRS 293.269935(3) reads as follows: "No voting results of mail ballots
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may be released until all polling places are closed and all votes have been
cast on the day of the election. Any person who disseminates to the public
in any way information pertaining to the count of mail ballots before all
polling places are closed and all votes have been cast on the day of the
election is guilty of a misdemeanor."
5NRS 293.3606(2) and (5) provide, respectively, as follows: "The
returns for early voting must not be reported until after the polls have closed
on election day." "Any person who disseminates to the public information
relating to the count of returns for early voting before the polls close is guilty
of a gross misdemeanor."
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The livestream process County Clerk Kampf outlined on
September 20 violates these restrictions because it would broadcast the
results as the reader reads them aloud to the talliers and verifiers during
the hand-count tabulation scheduled to begin on October 25. In their
answer, respondents assert that there will be no premature release of
results because they plan to release the recordings or footage of the count
only after the polls close. However, they do not directly address their
previously expressed intention to livestream the vote count process, and we
thus conclude writ relief is appropriate because the hand-count process at
issue here, if livestreamed, violates NRS 293.269935(3) and NRS
293.3606(5) to the extent that the counting will occur before the polls close
and all votes have been cast.
An issue remains as to how respondents plan to prevent the
release of election results to in-person observers during the hand count that
is to start on October 25 before the polls close, assuming the read-aloud
requirement stands. As to this issue, respondents indicate that observers
will be required to certify that they will not prematurely release
"information relating to the count of returns" to others. Respondents
append to their answer ernails exchanged between Clerk Kampf and the
Secretary of State's office on the public dissemination issue. This exchange
is incomplete, and we note our concern that, if the read-aloud requirement
remains and observers are positioned to hear it, the observers, themselves
members of the public, NRS 293B.353, are likely to learn election result
information before the release of such information is statutorily authorized,
even if they certify that they will not disclose this information to others. The
record is insufficiently developed on this point, but we note that if such
observers hear results, this would violate the applicable statutes. We
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therefore issue a writ of mandate against the livestream of the vote count
process with the readers reading the votes out loud prior to the close of the
polls on November 8, 2022, and further mandate that respondents require
all observers to certify that they will not prematurely release any
information regarding the vote count process before then and ensure public
observers do not prematurely learn any election results.
Use of the ADA touchscreen machine
Federal law requires that voting systems "be accessible for
individuals with disabilities, including nonvisual accessibility for the blind
and visually impaired, in a manner that provides the same opportunity for
access and participation (including privacy and independence) as for other
voters." 52 U.S.C. § 21081(a)(3)(A) (2020). Additionally, the Nevada
Constitution, Article 2, Section 1A(9) entitles each voter "No equal access
to the elections system without discrimination, including, without
limitation, discrimination on the basis of race, age, disability, military
service, employment or overseas residence." See also NRS 293.2546(9)
(same). Petitioners note that the County Clerk's presentation stated that
use of the ADA machines would be limited to those with special needs, and
they assert that, to carry out the stated limitation, poll workers will
necessarily have to determine whether voters have such needs, such as by
requesting proof or asking about the voter's disability, which violates voters'
privacy. Petitioners assert that "separatine such voters and requiring
them to prove special needs does not create equal access.
If use of the touchscreens is limited as suggested by the
slideshow presentation and petitioners, that process would violate privacy
rights and result in discrimination, which is expressly prohibited under the
federal and state law cited above. But respondents point out that the
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warp
County Clerk further clarified his slide orally by explaining that "[w]e will
not deny anybody who feels they need that special assistance," thus allowing
voters, not poll workers, to unilaterally determine whether they need to use
the ADA touch screen. Further, the Clerk stated in his declaration that
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any voter who feels they need to use an ADA touch screen will be allowed
to do so," without further inquiry. We treat this statement to mean that any
voter who wants to use a touchscreen can. Since respondents have
acknowledged that they will provide access to the touchscreen machine to
all voters who seek to use it, regardless of any explanation of need, writ
relief is not warranted as to this procedure.
Signature verification
The County Clerk's presentation slides contain three bullet
points on "strengthening controle:
• Stringent signature verification
• No prompting of voter verification information
• Require identification if signature or verification
fail
During the presentation, the County Clerk explained that "if the signature
or address verification fails, we have the right to ask for voter
identification." Petitioners contend requiring proof of identification conflicts
with statutory law governing signature verification.
NRS 293.285 (voting at polls) and NRS 293.269927 (mail
ballots) govern signature verification.6 If there is a question as to whether
the signature used on the ballot matches the voter's signature, the voter
may prove their identity in one of three ways: (a) by answering questions
cite NRS 293.8874, which expired December 31, 2021, but
6 Petitioners
substantially the same provisions are found in the statutes cited above.
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about the personal data reported on the voter registration application;
(b) by providing other personal data verifying identity, either orally or in
writing; or (c) by providing proof of identification, as described in NRS
293.277, other than the voter registration card. NRS 293.285(2); NRS
293.269927(8).
Respondents point out that, in addition to identification, the
County Clerk addressed another statutory option (providing identifying
information), and accordingly, the Clerk was not suggesting that an
identification card will necessarily be required. But the Clerk's statement,
rendered in the process of describing ways in which control over the election
process will be strengthened, was that identification would be required if
signature or address verification fails and did not mention the other
statutory ways that identity may be shown. Any limitation on the ability to
prove identity by restricting the available options to confirming an address
or providing an identification card clearly violates the law giving voters
three ways to prove identity, if needed to confirm their signature on the
ballot.
In light of the County Clerk's presentation setting forth the
procedures to be followed at the upcoming general election in Nye County,
and based on the above discussion, we conclude that a writ of mandamus
must issue to compel compliance with election laws as to the first and third
procedures discussed. Accordingly, we
ORDER the petition GRANTED IN PART AND DIRECT THE
CLERK OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing
Nye County and County Clerk Mark Kampf to (1) refrain from livestrearning
the hand-count read-aloud process prior to the close of the polls on
November 8, require all observers to certify that they will not prematurely
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release any information regarding the vote count before then, and ensure
public observers do not prematurely learn any election results, and (2) make
available to voters of all three of the statutorily established methods for
proving voter identity when a signature verification fails. For the reasons
stated herein, we ORDER the petition DENIED with respect to the
touchscreen issue.
, C.J.
Parraguirre
4.41-
Hardesty Stiglich
J. J.
Cadish
, J.
Herndon
cc: American Civil Liberties Union of Nevada/Las Vegas
Marquis Aurbach
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