Nevada seeks dismissal of Laxalt election lawsuit that claims noncitizens infiltrated state voter rolls

Attorneys for the state of Nevada are seeking the dismissal of a lawsuit against the secretary of state regarding voter roll maintenance, asserting that the court does not have jurisdiction over the subject matter and that the plaintiffs have misrepresented the secretary of state’s role in maintaining voter rolls.

In the motion to dismiss filed in the First Judicial Court in Carson City on Thursday, Gregory Zunino, deputy solicitor general for the state, wrote that the plaintiffs’ claim that Secretary of State Barbara Cegavske has failed to establish a system to verify citizenship in the state’s voter registration process was “demonstrably false.”

“Plaintiffs have no legal right to invoke this Court’s subject matter jurisdiction in their mission to seize partial control of the Office of the Secretary of State,” Zunino wrote.

The lawsuit, filed in December by former Republican Attorney General Adam Laxalt, names three plaintiffs — former Republican Assemblyman Al Kramer, former Washoe County District Attorney Dick Gammick and Roger William Norman — who claim that the alleged failure of the secretary of state to keep noncitizens off the voter rolls caused their votes to be diluted and discounted because “noncitizens are on the voter rolls and have voted in the past.”

Zunino wrote that it is the counties, not the state, that maintain voter rolls, meaning the responsibility to remove noncitizens from the lists falls to the county clerks. He also noted that the secretary of state merely maintains a centralized database of voter information collected from the 17 county clerks.

The plaintiffs pointed to the state’s new automatic voter registration system, which has added thousands of new voters since last January, as a potential opportunity for noncitizens to be added to the voter roll.

However, the system does have protections against the registration of noncitizens, including a citizenship question on the primary Department of Motor Vehicles (DMV) form. Zunino wrote in the state’s filing that following the 2018 election, Cegavske worked with the DMV and attorney general to develop procedures for filtering noncitizens out of the voter registration process, including the exclusion of Driver Authorization Card holders, who are commonly noncitizens, from the automatic registration process.

Zunino also questioned the plaintiffs’ choice of attorney, arguing that Laxalt, who previously served as counsel for Cegavske in his capacity as attorney general, presents “an appearance of impropriety and conflict” because the plaintiffs claim that they have relied exclusively upon “public” records.

“Plaintiffs’ counsel may have access to non-public and privileged information regarding the Secretary’s efforts to address DMV voter registration processes in 2017 and 2018,” he wrote. “Insofar as Plaintiffs have engaged an attorney who may possess information acquired from an attorney-client relationship, their choice of counsel is problematic.”

Zunino also wrote that the plaintiffs lack standing in the court and that their demands for systemic and routine checks on voter citizenship represent a matter of policy that should be considered by the Legislature rather than addressed by the District Court.

That argument stems in part from the plaintiffs’ inability to prove injury by way of vote dilution, as the plaintiffs represent just three of more than 1.4 million votes cast by Nevadans in the last election. Zunino wrote that the plaintiffs aired a generalized and speculative grievance that any voter could raise, meaning that the plaintiffs have not proven any specific injury needed for standing.

He further noted that the generalized grievance about the operation of government raises policy questions that should not be handled by the court, but should instead be addressed by legislators and executives.

This session, Republican legislators are pushing for election reforms, although officials of the Assembly Republican Caucus said the group’s official position is that the recent election was not “fraudulent.”

Assembly members John Ellison (R-Elko), Jim Wheeler (R-Minden) and Jill Dickman (R-Sparks) are sponsoring AB137, which would require proof of identity for voting in person. And several Republican legislators are sponsoring AB134, which would repeal a law that calls for widespread distribution of mail-in ballots to active voters during states of emergency.

Democratic leaders have expressed interest in making the broad distribution of mail-in ballots standard, even in non-emergency times, in order to ease participation in elections.