By Daniel H. Stewart
I was perplexed to discover that former Nevada Attorney General Adam Laxalt called me out personally and professionally in a fundraising pitch for something I wrote that had nothing to do with him. I am not, have never been, and likely never will be a candidate for public office. I am merely an election-law attorney who has been working on election-law issues since at least 2006. In the political world, I am basically a civilian.
I write unpaid op-eds on things I believe in, too. My recent piece defended Republican Secretary of State Barbara Cegavske as Nevada’s chief elections officer and the mail-ballot process. My intent was to lay out the facts and calm unnecessary panic in a world too panic-stricken as it is. I called out no opponents to the secretary’s plan by name. But the titular leader of Nevada Republicans somehow sees me worthy of public chastisement for merely writing about the law.
Mr. Laxalt did not agree with me, and he made it personal. Most practicing lawyers know that personal attacks guised as legal arguments are weakness cloaked as brawn. I will try to resist returning personal for personal. I also have no desire to flex over who is the better Republican. In today’s world and today’s Republican Party, I am willing to concede that Mr. Laxalt, as a former elected official, is a leader of higher political rank, a more orthodox defender of the faith.
Instead, I will try to limit my response only to the accusations I care about: the claim that I got the law wrong. When it comes to the art of politics, influence and ambition, Mr. Laxalt has me beat. But I draw the line on the law, and our respective abilities as lawyers.
In his attack, Mr. Laxalt highlights my time as Gov. Brian Sandoval’s general counsel. I appreciate that. My service for one of Nevada’s greatest governors has been a highlight of my career. What he leaves out is that when it comes to election issues, I have probably represented (usually at no charge) more Republican candidates and elected officers and more Republican causes than most if not all Republican lawyers in Nevada.
The legal dispute between Mr. Laxalt and I hinges on interpreting a single statute: NRS 293.213, a statute Mr. Laxalt calls an “obscure Nevada election law.” And that with “sophistry only a lawyer can muster,” I supposedly argue that the “narrow exception created by NRS 293.213(4) [swallows] the long-standing, default rule” that Nevadans vote in person.
So there is no confusion, here are the relevant portions of that statute:
NRS 293.213 Mailing precincts; absent ballot mailing precincts.
1. Whenever there were not more than 20 voters registered in a precinct for the last preceding general election, the county clerk may establish that precinct as a mailing precinct.
2. Except as otherwise provided in NRS 293.208, the county clerk in any county in which an absent ballot central counting board is appointed may abolish two or more existing mailing precincts and combine those mailing precincts into absent ballot precincts. Those mailing precincts must be designated absent ballot mailing precincts.
3. In any county in which an absent ballot central counting board is appointed, any established precinct which had less than 200 ballots cast at the last preceding general election, or any newly established precinct with less than 200 registered voters, may be designated an absent ballot mailing precinct.
4. A county clerk may establish a mailing precinct or an absent ballot mailing precinct that does not meet the requirements of subsection 1, 2 or 3 if the county clerk obtains prior approval from the Secretary of State.
For anyone who actually reads the law or knows the law, there is nothing hidden or obscure about this statute. It lives in Chapter 293, which provides all of the relevant statutory rules for conducting regular elections. It is part of a Chapter 293 subgrouping, identified in all capital, bolded text “ELECTION PRECINCTS.”
The heading of NRS 293.213 itself discusses “mailing precincts,” making no distinction between different types of election precincts. Subsections one, two, and three lay out instances when local governments (they actually run our elections) may establish mailing precincts without the secretary of state’s approval. Subsection four provides the logical next step, plainly providing that local governments may establish other mail precincts that do not otherwise meet the statutory requirements, if the Secretary of State agrees. The law is rarely this clear, and it does not apply only to “rural voting precincts” as Mr. Laxalt contends.
NRS 293.213 really speaks to the authority to establish mail precincts, not necessarily the eligibility of the precincts under consideration or so designated. County clerks and registrars have their own independent and unilateral authority to designate certain precincts as mail precincts if certain facts exist. But designating mail-only precincts for any other reason requires consent from all relevant state and local officials. Skipping over subsections two and three completely, Mr. Laxalt claims that subsection four is merely a “limited catch-all” for hypothetical situations when subsection one cannot be met. The actual law says no such thing.
Mr. Laxalt also tries to substitute “history” for law, but the statute’s history is not on Mr. Laxalt’s side, either. From 1960 to 2011, NRS 293.213 specifically limited mail precincts to only those rural or small precincts meeting the requirements of subsections one, two and three. The Legislature changed the law in 2011, adding the broad provisions of subsection four. Under Mr. Laxalt’s reading, the 2011 change was almost a nullity, meant for the unlikely scenario that a precinct might just barely fail to qualify under existing rules. But that is not what the law says. Don’t forget, the Legislature could have easily put a ceiling on the law’s use if it wanted to.
Additionally, the notion that there is something un-Nevadan or un-American about not voting in person is incorrect. Mr. Laxalt argues that “traveling to a physical location to cast your ballot has been a qualification tool” for Nevada. But Nevada has had no-excuse absentee voting for some time. In theory, every single Nevadan can already vote by mail – permanently. What’s more, establishing mail-voting precincts comes with tradeoffs that Nevadans may not accept in normal times. If you live in a mail precinct, it is unlikely that you will have an in-person voting booth nearby. In fact, perhaps the main reason for allowing mail precincts at all is to also allow a reduction to in-person voting locations when necessary. The idea that local government officials and the secretary of state will agree in the future to such a drastic limit of in-person voting, without justification, just to push mail voting is absurd. According to Mr. Laxalt it “makes absolutely no sense” to give the secretary of state the power to call for mail-elections. I disagree. But even if Mr. Laxalt is correct, sensible or not, the Legislature absolutely made it so.
Ultimately (and regrettably), much of Mr. Laxalt’s rebuttal concerns his own personal political view of the law’s unstated purpose – not the law’s actual words. Mr. Laxalt claims to be a legal textualist; I am too. Using unwritten purpose to trump written text is an anathema to textualism. According to the late Justice Antonin Scalia (perhaps the godfather of modern textualism), “the nontextualists’ favorite substitute for text is purpose.” [Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 18 (2012).]
Whether 63 legislators and the governor thought something else about the law (I have seen no evidence that they did) is utterly irrelevant. Only the actual text of the passed law is law, not implicit individual or collective lawmaker intentions. Justice Scalia again: “[t]he text is the law, and it is the text that must be observed.”
Personal policy preferences should not override written rules. Mr. Laxalt knows this. As attorney general, he rightfully sought recourse in the written law when declaring unenforceable 2016’s passed-by-the-people Background Check Initiative. The initiative had a plain purpose. Should Mr. Laxalt have ignored the law to push the purpose?
The crescendo to his non-legal argument is to berate the entire media for not questioning the legality of the secretary of state’s actions, as if the media were the law police. Tellingly, no attorneys have really questioned her on the legal grounds Mr. Laxalt asserts. Indeed, even the conservative advocates actually challenging Secretary Cegavske’s decisions in court don’t have much confidence in Mr. Laxalt’s legal theory. They buried a watered-down version of his argument in one footnote in one of many filings, before moving on quickly to debate the timing of the secretary’s decision instead.
Mr. Laxalt is a lawyer of good standing in Nevada. If he thought a single Nevada court would agree with his legal position, why has he not sued?
He also goes after Secretary Cegavske’s allegedly hasty decision to hold the all-mail primary. He claims that there “was absolutely no need back in March to make the decision to convert to an all-mail election for the” June primaries. He may need to consult with the lawyers on his side. Because one of the main arguments they made in their legal challenge to Secretary Cegavske’s decision was that she acted too late. Which is it? Too soon or too late?
Honestly, I do not understand the reason he fights so hard to strain the law. He is not defending other Republicans or protecting the integrity of the 2020 election. Quite frankly, if the current mail-ballot system were used in the general election, rather than all of the pro-voter and pro-voting rules we already have on the books, Republicans might actually do better. Largely due to the shutdown, Republicans have gained ground in voter registration at a time when they usually have significant losses. What would those numbers look like if voters were currently registering at the polls, which same-day registration now permits? We will know soon enough whether Mr. Laxalt’s claims of voter fraud have any factual merit. I will be stunned if they do. And President Trump and the RNC may want to take a harder look at the legal “analysis” Mr. Laxalt provides before sounding any future alarms.
Let’s cut to the chase. The real, unspoken debate is far bigger than a surface-level skirmish between two Nevada Republicans who hold no office. Like any informed political participant, Mr. Laxalt knows that if every eligible Nevada voter registered to vote, and every registered voter actually voted, Republicans (other than maybe Gov. Sandoval) would have a hard time winning elections. Rather than adjust to meet the needs of the voters, Republicans like Mr. Laxalt want to adjust the voting rules to meet the needs of Republicans. That truth is the real alarm that sensible Republicans should be sounding.
Daniel H. Stewart is a partner with Hutchison & Steffen, where he leads the firm’s Election, Campaign and Political Law practice. He has practiced law in both the public and private sectors, representing elected officials, candidates, campaigns, social welfare organizations, and other political and policy-focused clients.