Lawyers argue before Nevada Supreme Court over close Clark County Commission race

The front of the Nevada Supreme Court Building

The state Supreme Court heard oral arguments Wednesday morning in a months-long case over an exceptionally close Clark County Commission race, with lawyers arguing whether discrepancies in the voting process met the definition of an election being “prevented.”  

Las Vegas Councilman Stavros Anthony, a Republican, filed for a recount on Dec. 4, three days after the Clark County Commission certified the results of the District C election in spite of 139 ballot discrepancies in the district. Those discrepancies had caused the board to consider a special election, but then it reversed course. 

The recount resulted in 74 new ballots included in the count, which found that former Secretary of State Ross Miller, a Democrat, won by 15 votes, more than the 10-vote margin from the original results. Miller was ultimately sworn in as commissioner.

In Wednesday’s appeal hearing, Anthony’s attorney, Michael Wall, hewed to the same argument he made at a November lower court hearing, when his request to stop results certification was denied. Mark Hutchison, another Anthony lawyer, said that comments made by Clark County Registrar of Voters Joe Gloria showed that an effective election had been “prevented” in the district because of ballot discrepancies.

“As a result [of the discrepancies], I cannot certify that the vote is an accurate representation of the will of the voters in that district,” Gloria said in the affidavit. “In my professional opinion as an election official, it raises a reasonable doubt as to the outcome of the election.”

Hutchison said that these discrepancies entitle Anthony and District C voters to a new election according to NRS 293.465, which says that a new contest is appropriate if “an election is prevented in any precinct or district by reason of the loss or destruction of the ballots intended for that precinct, or any other cause.” 

Chief Justice James Hardesty, however, pointed to the district court’s decision to stick with Gloria’s affidavit, which did not indicate that the election was prevented. 

“What the registrar said, to the logic to the Commission, was he could not certify the election,”  Wall said. “Nothing in the statute says that the registrar has to use the words ‘the election was prevented.’ The registrar used words which indicate, in his opinion, that there is no winner, there is no election that can be certified.”

Ballot discrepancies can occur when voters cast multiple ballots, when check-in numbers at voting sites don’t match up with the number of ballots cast at that site or as a result of various mail-in ballot issues. Gloria previously said that these discrepancies occur in every election.

Bradley Schrager, representing Miller, argued that neither Gloria nor the District Court, in its findings and conclusions, saw this as a “293.465 election.” 

“There was no election prevented here. What there was was statistical anomalies,” he said. “Mr. Anthony has not placed any ballots in question. There is no allegation that any ballot was counted that shouldn't have been. There's no allegation that any ballot wasn't counted that ought to have been. Neither is there any indication of any incident that can be directly linked to harm or prejudice to Mr. Anthony.”

However, Schrager suggested another statute — NRS 293.410 — would fit the case better as it includes instances in which the election board “made errors sufficient to change the results of the election, as to any person who has been declared elect.” 

“That's the terrain that Mr. Anthony ought to have been fighting,” Schrager said. “293.465 is a voter access statute; it is not a candidate protection statute.” 

The Supreme Court did not immediately issue a ruling after arguments.

Lawmakers debate expanding automatic voter registration, implementing top-down registration system

On the heels of a transition to automatic voter registration (AVR) at the DMV and same-day voter registration, lawmakers are considering bills that proponents say further streamline civic participation and bring more Nevadans into the process.

One bill, AB422, would centralize voter registration record keeping that is currently distributed among the 17 counties. Another, AB432 — which faced more resistance from clerks worried about whether they would have the time and resources to implement it — would involve new agencies to help Nevadans register to vote or update their records.

Here are highlights from the hearings the bills received on Tuesday in the Assembly Legislative Operations and Elections Committee. The committee did not immediately vote on the measures.

Clerks concerned about expanding AVR

After Nevada voters approved the automatic voter registration system at the Department of Motor Vehicles in 2018, more than 142,000 new voters were registered — and more than 300,000 voter registrations were updated during transactions at the DMV since the law took effect in 2020.

A bill from Assemblyman Howard Watts (D-Las Vegas) would bring more agencies into the process — enlisting the Silver State Health Insurance Exchange and Medicaid program into the work of transmitting personal information updates to the secretary of state to get a person registered for the first time or update the voter rolls.

Agencies that don’t have enough information to confirm a person’s eligibility to vote would be prohibited from transferring the information to the secretary of state. Individuals could opt out of having their information transferred during an interaction with one of those agencies.

Supporter Annette Magnus of Battle Born Progress said the measure would increase election security by offering more opportunities for updates, leading to cleaner voter rolls. And backer Rev. Leonard Jackson of Faith Organizing Alliance said it would further expand opportunities for people of color to vote — he said more than half of Medicaid beneficiaries are Black or brown Nevadans.

But the bill drew concerns from election administrators and other government personnel who  warned the implementation of such programs often takes years, and the bill becomes effective Jan. 1, 2022.

“When you increase our administrative need for resources and our staff, with everything else that's going on and implementation, and also with redistricting coming up, we are concerned about the ability to support these new programs,” said Clark County Registrar of Voters Joe Gloria.

Carson City Clerk-Recorder Aubrey Rowlatt asked that agencies send registrars complete information rather than requiring county staff to track missing information down through correspondence that may or may not be returned.

Watts said he heard election officials’ concerns and was committed to making technical adjustments, including to the timeline. He framed the bill as a way to “deliver a better experience for everybody in our state.”

“We moved from only registering people on paper forms, within the span of a decade, to now offering online voter registration and further digitizing the way that our voter registration is conducted — again, reducing errors streamlining the process, making it more convenient for everyone,” he said. “The purpose of AB432 is to build on that progress.”

Top down voter registration gets a warm reception

Members of the committee also heard details on AB422, a proposal that would shift Nevada from a county-led, bottom-up voter registration system to a state-led, top-down system. Assembly Speaker Jason Frierson presented the bill and said the current system of having 17 county clerks maintain their own systems and transmit voter registration information to the secretary of state’s office “inherently makes the process slower.”

“This delayed information sharing is cumbersome and inefficient,” Frierson said. “With our 21st century voting policies that include automatic voter registration and same day voter registration, it's time that we modernize our system to match that innovation.”

Frierson said the legislation, once passed, would immediately allow the secretary of state’s office to begin working on implementation of a top-down system, with an anticipated implementation date before the 2024 election. 

Progressive groups said the bill would create a more efficient election process in the state and make it easier to identify and prevent duplicate registrations.

“It's important to acknowledge that Nevada is a transient state, and being able to see information across the board will streamline the process for county clerks, and ensure that there is a more secure way of managing the voting process at all polling locations,” Silver State Voices Executive Director Emily Zamora said.

The secretary of state’s office, which favors the proposal, is requesting $1.5 million from lawmakers this budget cycle to start the process of upgrading to a top-down voter registration system.

No one testified against the bill.

Freshman Orientation: Assemblyman Andy Matthews

As in sessions past, The Nevada Independent is publishing a series of profiles featuring all the new lawmakers in the state. This is the ninth installment of more than a dozen. Check back in the coming days for additional stories on new legislators' backgrounds, interests and policy positions.

ASSEMBLYMAN ANDY MATTHEWS

  • Freshman Republican who succeeds Democratic Assemblywoman Shea Backus
  • Represents District 37, which is north of Summerlin and contains parts of Sun City Summerlin in Las Vegas
  • District 37 has a slight advantage in voter registration for Democrats (36.8 percent Democratic, 35.2 percent Republican and 21.8 percent nonpartisan in the 2020 election)
  • Matthews defeated three other candidates with 49 percent of the vote in the 2020 Republican primary, including former television journalist Michelle Mortensen, Jacob Deaville and Lisa Noeth.
  • He then defeated incumbent Assemblywoman Shea Backus in the 2020 general election, winning a little less than 51 percent of the vote.
  • He sits on the following committees: Government Affairs, Health and Human Services, Legislative Operations and Elections

FAMILY AND EDUCATION

Matthews was born in New Bedford, Massachusetts. He graduated from Boston University with a degree in journalism and worked as a sports journalist before entering the political field.

He and his fiancé Valerie live in Las Vegas.

CAREER

Andy Matthews never expected to be here.

For one, he thought he would be working on the other side of the Capitol Amphitheater after serving as policy director for former gubernatorial candidate Adam Laxalt’s 2018 campaign. But Laxalt lost the race to Democratic Gov. Steve Sisolak, and no job in the governor’s office materialized (Matthews described the loss as a “punch to the gut”).

But beyond that, 42-year-old Matthews never really expected to end up in the political field, much less in the Nevada Legislature. Born in Massachusetts and initially trained as a sports journalist before transitioning to the political realm, he says he “took the scenic route” to the Legislature.

“If you told me at 12 years old when I was living in rural Massachusetts, I would serve in the Nevada State Assembly someday, I’d probably ask you what a state assembly was, and ask you a lot of questions about how I got from point A to point B,” he said. “But I’m honored to be here, and it's been a great experience so far.”

Matthews was born in New Bedford, but grew up in a rural area (Freetown) about 50 miles south of Boston. A life-long Red Sox fan, Matthews played basketball and baseball in high school but moved away from athletics after getting a job at a local newspaper, writing up box scores and brief game summaries. In high school, he and another student helped start a student newspaper — the “Laker Pride,” named for the bodies of water around the area, not a reference to the Celtics’ main rival.

After graduating college with a journalism degree, Matthews worked at a variety of sports reporting jobs, including at FOX Sports and a stint for MLB.com (where, for an article, he went undercover and attended an open-to-the-public Red Sox tryout. Matthews says he was never “really in danger of making the team.”)

But his interests broadened beyond sports; first with the contentious circumstance around the 2000 presidential election, but also with the terror attack on 9/11. At the time, Matthews was living in Hoboken, New Jersey, with a view from his bedroom window into lower Manhattan. Working nights, he said he didn’t know about the attacks until his dad called him. He remembers pacing between the television and his bedroom window.

“I think the combination of those things in my early 20s for me put issues front and center in my life, in my mind, that I hadn't really given a whole lot of thought to before,” he said.

Matthews worked on a New Jersey political race in 2005, then moved to Nevada to work as campaign manager for former state lawmaker Bob Beers’ ultimately unsuccessful gubernatorial run in 2006. Deciding to stay in Nevada, Matthews was hired on as communications director for the Nevada Policy Research Institute (a nonprofit, pro-free market think tank) and eventually became the group’s director in 2011.

He said the organization was a great fit for him because of his political interests and background in communications skills, but at times he was frustrated that the group’s legislative advocacy didn’t translate into desired policy results.

Outside of “facetious barstool conversations,” Matthews said he hadn’t really considered a run for office himself, but a turning point came in 2015 after former Gov. Brian Sandoval (a Republican) pushed through a record-breaking package of new and extended taxes worth more than $1.1 billion.

“If we're not getting what we should be getting, in my view, out of the current crop of elected officials, maybe we need some different officials,” he said. “The best way to change policy sometimes is to change policy makers.”

So in 2016, Matthews decided to jump in the contentious Republican Party primary for the state’s 3rd Congressional District. With then-state Senate Majority Leader Michael Roberson (who helped Sandoval shepherd through the tax package in 2015) and well-known and perennial conservative candidate Danny Tarkanian also in the race, Matthews said he hoped to run as a “new face principled outsider” — and carve out the middle ground between Tarkanian and Roberson.

But that pathway was largely closed off when firebrand then-Republican Assemblywoman Michele Fiore also decided to jump in the primary. Matthews says he continued to campaign hard, but ended up coming in fourth out of the seven-way contest (noting that he and Fiore combined had a vote share roughly equal to that of Tarkanian, who ended up winning the primary but losing to Democratic nominee Jacky Rosen).

After that election cycle, Matthews moved to the political orbit of former Attorney General Adam Laxalt, leading his Morning in Nevada PAC for a spell before moving to work on Laxalt’s 2018 gubernatorial campaign. 

But the 2018 election cycle was a nadir for Nevada Republicans, and Matthews said that though that loss stung, he figured political fortunes in a swing state such as Nevada would eventually swing back. Running for the Legislature, he said, was a way to get in on the ground floor.

“We're going to rebuild, one way or another, we're going to get stronger, and I'd love to be part of that,” he said. “So that as our party starts to gain strength and have more of a say, in the future, I can be at the table and try to try to shape things as best I can, in a way that aligns with the principles that I think we really ought to adhere to.”

Assemblyman Andy Mathews during the first day of the 81st session of the Legislature in Carson City on Monday, Feb. 1, 2021. (David Calvert/The Nevada Independent)

ON THE ISSUES

Taxes

Matthews is a signer of the Taxpayer Protection Pledge, a written promise for federal and state candidates to oppose any and all tax increases without some kind of corresponding revenue-neutral tax cut. Matthews said that pledge includes the gaming and sales tax initiative petitions circulated by the Clark County Education Association and now before the state Legislature. 

“We need to rebuild our economy, and I do not believe saddling Nevadans with higher taxes is the way to do it,” he said.

Election security

Matthews plans to introduce a bill that would repeal AB4 from the state’s 2020 summer special session, which provided for sending out mail ballots to all active registered voters and also legalized ballot collection, the practice where individuals can collect and turn in absentee ballots for other voters (Republicans often refer to this practice as “ballot harvesting”).

He said he was fine with no-excuse absentee ballots, but that the practice of automatically mailing ballots to voters made the state’s election system “susceptible to fraud and error.” 

Asked whether he believed that massive voter fraud happened to a level that would have affected the outcome of the presidential race in Nevada, Matthews noted that there was some degree of “error, fraud, or irregularities” that happened in the election (citing statements made by Clark County Registrar Joe Gloria on discrepancies in a close county commission race).

But he said his primary focus is election security, and that he doesn’t want to get “bogged down” in whether “the outcome of one particular race (was) the proper outcome in terms of voter intent.”

“Right now under our system, it's designed in a way that makes it much, much easier than it should be to cheat if one wanted to,” he said. “And so, we can go back and forth all day on, did no one cheat, did one person cheat, did 200,000 people cheat? We don't know; no one knows; you don't know; I don't know. Because we have a system that's designed in such a way that we can't know. So my job as a legislator, it's to make sure that we have the proper systems in place to make sure that we do have an election that's secure.”

(The secretary of state’s office has said it did not see any evidence of “wide-spread fraud” in the 2020 election, though election officials have said they’re pursuing several individual cases of possible election-related fraud in the 2020 election).

Criminal justice reform

While critical of measures passed in recent sessions that he said “went much too far in terms of tying the hands of law enforcement,” Matthews said he was broadly supportive of efforts to reduce recidivism and help current and former inmates successfully adjust back into normal society.

“That's an area where I think we all can look at, because we are all going to benefit,” he said. “If someone comes out of our prison system after a number of years and doesn't have the skillset to find a job, there’s a very good chance that person may end up back in that cycle of disruptive behavior. That benefits nobody.”

Other proposals

Other bills that Matthews plans to introduce this session include the following:

  • A measure that would allow local jurisdictions to opt-in to the 287(g) program, a federal partnership between local police and federal immigration officials to place “detainers” on people not legally in the country but arrested or taken into police custody for non-immigration related reasons. The Las Vegas Metropolitan Police Department opted out of the program in 2019 after a federal court case enjoined ICE from issuing so-called detainers without “explicit state statute authorizing civil immigration arrests.”
  • A measure creating a state-level REINS Act, a proposal championed by Kentucky Sen. Rand Paul essentially requiring significant regulations with a major financial impact to be approved explicitly by the Legislature, as opposed to an executive branch agency. Former Wisconsin Gov. Scott Walker implemented a similar program in that state
  • A measure to increase penalties for public agencies that fail to comply with public record law violations
  • A bill to subject the collective bargaining process between government employee unions and local government employers to requirements in the state’s Open Meeting Law
  • A measure allowing creation of “charter agencies,” a concept promoted by former Controller Ron Knecht and the Nevada Policy Research Institute to rework state government agencies by giving them broad policy goals and “allowing agency directors to determine the best means of achieving those objectives.”

Matthews acknowledged that many of his bills will likely not move very far in a Legislature and governor’s office controlled by Democrats. He said that while he hopes to attract bipartisan support for at least some of his proposals (including the bills aimed at improving government function), there was still some value to be gained by at least introducing the concepts.

“If I can move the needle at least on the conversation on some of these things, there's value in that as well,” he said. “If a particular bill doesn't get implemented in this particular legislative session, at least (we’re) beginning the conversation, and maybe changing some minds, and hopefully taking a step toward a place down the road.”

Clark County Commission swears in Ross Miller as opponent takes challenge to Supreme Court

Clark County Government Center

The Clark County Commission swore in four members on Monday, including one whose race was so close his opponent is disputing the results in the Nevada Supreme Court.

The swearing-in ceremony was held outdoors at the Clark County Government Center amphitheater in downtown Las Vegas. Nevada Supreme Court Justice Abbi Silver swore in Marilyn Kirkpatrick, Ross Miller and Michael Naft, and newly elected North Las Vegas Justice of Peace Belinda Harris swore in William McCurdy II. 

Miller’s oath of office comes after a narrow victory against his Republican opponent, Las Vegas City Councilman Stavros Anthony. In November, Miller was in the lead by 10 votes out of more than 153,000 cast. Anthony filed for a recount that led to election officials including 74 additional ballots that widened Miller’s margin of victory to 15 votes. 

The commission voted to certify the recount’s results on Dec. 15. Anthony’s lawsuit for a new Clark County Commission election was rejected by a judge on Christmas Eve, but Anthony filed a notice on Monday with the Nevada Supreme Court to appeal the District Court’s decision denying his request.

“I am going to Nevada Supreme Court for residents of Clark County Commission District C, where the Register of Voters has called into question whether the election results reflect the true will of the voters. Spread 10, 30, 15 votes. 139 irreconcilable discrepancies and errors,” he tweeted on Dec. 30. 

In November, Clark County Registrar of Voters Joe Gloria reported to the commission there were 139 ballot discrepancies in District C. Although this halted the commission’s initial vote to certify the election results, Gloria explained at the Dec. 1 meeting that such discrepancies include instances when the number of the individuals who checked in at the polling location does not match the number of ballots cast, and that it happens every election. 

McCurdy, of District D, replaces Lawrence Weekly, who was termed out. Miller, of District C, replaces Larry Brown, who also was termed out. 

Kirkpatrick has been a District B representative since 2015, and Naft, of District A, was first appointed by Gov. Steve Sisolak in 2019. Commission terms are four years.

Stavros Anthony notice of appeal by Jannelle Calderon on Scribd

Judge rejects request for new Clark County Commission election sought by Stavros Anthony amid narrow loss to Ross Miller

A Clark County judge has denied a lawsuit seeking a new election for a contentious and narrowly decided Clark County Commission seat sought by Republican Stavros Anthony in his narrow 15-vote loss to Democrat Ross Miller.

Judge Elizabeth Gonzalez denied the motion in a brief order on Thursday, writing that she could not apply a state law allowing for new elections owing to the loss or destruction of ballots in this case because “the election was not prevented.”

The order is another legal setback for Anthony, a Las Vegas City Council member who (per initial election results) lost the race for the open District C seat on the commission by just 10 votes out of more than 153,000 cast.

"Judge Gonzalez issued a ruling today, Christmas Eve, so given the holiday and a time for our families, we will get together after Christmas and discuss our options," Anthony said in a statement.

But the narrow margin of victory was quickly challenged after Clark County Registrar Joe Gloria informed members of the county commission that his office had discovered 139 ballot discrepancies in the race, leading the commission to vote to not certify the results of the election and to begin plans for a special election.

Miller’s campaign quickly sued the county, asking a judge to prevent a special election and compel the commission to immediately certify the race results. The commission ultimately reversed itself and moved to reconsider and accept results of the race in early December. A separate legal motion filed by Anthony to halt those proceedings were rejected by Gonzalez in early November.

After the results were certified, Anthony filed for a recount in the race. Results from that process ultimately resulted in 74 new ballots included in the vote totals, and Miller’s margin of victory rising to 15 votes (after accounting for a batch of erroneously included duplicate ballots). The Clark County Commission ultimately voted to affirm the new race results and Miller’s victory on Dec. 15.

Attorneys for Anthony filed a separate motion before Gonzalez on Dec. 10, requesting that the court require the county commission to order a new election in the race owing to the number of unresolved ballot discrepancies.

Attorneys for Miller and the county opposed the motion, writing that Nevada state law requires that the results of a recount be considered final, and that there was no evidence that the 139 discrepancies would modify the final margin in any way.

A representative for Miller's campaign did not immediately return a request for comment on Thursday.

Clark County Commission votes to certify recount results, 15-vote victory for Democrat Ross Miller

The Clark County Commission voted Tuesday to certify the results in the recount for the District C race, which resulted in a 15-vote victory for Democrat Ross Miller.

The final results of the weeklong recount affirmed Miller’s victory over Republican opponent Stavros Anthony. Initial results from the recount released Friday had put Miller’s lead at 30 votes, but officials discovered duplicate ballot batches had been read into the system in error and informed the candidates on Monday of the actual total. As a response to “ever moving” numbers, Anthony’s campaign is looking at legal options to challenge these results.

“Seven additional absentee ballots were included in the vote totals. As a result, one additional vote was tallied for Stavros Anthony, and six additional votes were tallied for Ross Miller,” Registrar of Voters Joe Gloria said during the commission meeting. “The early voting and Election Day vote totals were a complete match to what was read into the system on election night.” 

The recount in the commission race was requested by Anthony after election results were first certified by the county commission in early December. The board had originally elected not to certify results alongside the rest of the election in November as a result of 139 ballot discrepancies which outnumbered Miller’s then 10-vote margin of victory.

The vote to canvass and certify the results of the recount on Tuesday was unanimous despite multiple public commenters asking the board to instead call for a special election.

Jacob Reynolds, an attorney for Anthony’s campaign, spoke at Tuesday’s meeting, saying that “changing” results in the election show the need for a special election. Reynolds also indicated that the campaign plans to sue and has a hearing scheduled before Judge Elizabeth Gonzalez on Friday.

Anthony campaign manager Lisa Mayo-DeRiso previously told The Nevada Independent the campaign was looking at legal options and would be willing to go to the Nevada Supreme Court if necessary.

"Because of this razor thin margin and the inability to accurately call the election, we will continue with the fight for District C voters to have all their votes counted, and the accurate results to be reported," Mayo-DeRiso said in a statement on Tuesday.

She added in the statement that the campaign was "disappointed" by the board's decision and "shocked" that it was made without discussion by the commissioners.

Volunteers who observed the ballot recount on behalf of the Anthony campaign also spoke at the board’s meeting, asking the commission to call for a special election. Wendy Ellis and Joanna Gorman both referenced “irregularities” they say they observed in the adjudicated ballots during the recount process.

“The voting is so important to us, to all registered voters,” Gorman said. “It is important that we have confidence in our voting system, and, right now, with all of the discrepancies that have been noted, it is not [possible] for the voters to have the confidence that we need.”

More than 153,000 ballots were cast in the District C election, with turnout in the district at about 77 percent. Turnout in special elections has historically been much lower. The most recent special election for a Republican primary in 2018 saw only 36 percent turnout.

The Anthony campaign expressed disapproval of the “ever moving number” on Monday, issuing a statement which questioned why commissioners “are not listening to Joe Gloria when he says he cannot call this election.”

Gloria previously said in an affidavit that he “cannot certify that the vote is an accurate representation of the will of the voters in that district.” 

When asked whether a recount would be enough to ensure the vote was accurate to that will, Gloria said that the authority to certify results lies with the commission.

“I don’t know how to answer that … In the canvass, we had to report the discrepancies,” Gloria told The Nevada Independent. “However, we don’t have the authority to certify on our own, so we take direction from the county commission. They directed us to certify, and so we did.”

At the meeting Tuesday, Gloria said that the election department deemed the results certifiable.

The District C recount took five days and cost Anthony, who requested the measure, nearly $80,000. Final results of the recount added seven ballots to the voter total, six going to Miller and one to Anthony. 

Gloria will submit a copy of the votes to the secretary of state’s office based on the recommendation by the commission.

This story was updated at 2:38 p.m. on Tuesday, Dec. 15 to include a statement from Stavros Anthony's campaign manager Lisa Mayo-DeRiso.

Indy Explains: Clark County begins five-day recount process in race determined by 10 votes

Clark County Election Department staff were on site bright and early at 5 a.m. on Monday to start a recount for the District C seat on the county commission — a process that election staff expect to take five days and that cost losing candidate Stavros Anthony nearly $80,000.

Anthony, a Republican, requested the recount on Friday, three days after the Clark County Commission voted to certify Democrat Ross Miller’s 10-vote victory in the race. The commission had originally chosen not to certify the results because of 139 ballot discrepancies in the district, which outnumbered Miller’s margin of victory. 

After a suit from Miller, an intervention by Anthony, and a statement from a judge that the discrepancies did not mean an election was prevented and, therefore, did not constitute “cause” for a new election to be called, the commission reconsidered its decision and voted to canvass and certify initial results on Tuesday.

What has resulted from the contentious process is a recount in a massive district where more than 153,000 ballots will need to be reviewed.

Here are some details on how it’s happening.

A stack of custody log forms as seen during a recount at the Clark County Election Department in Las Vegas on Monday, Dec. 07, 2020. (Daniel Clark/The Nevada Independent)

How is a recount called? 

There is no automatic recount process in the state of Nevada. Some states require recounts for ties and close races with victory percentages less than or equal to .5 percent.

Instead, recounts must be requested by any losing candidate, no matter the margin of the race, who then deposits the estimated cost of the recount with the election’s officer in the region. Nevada is one of 39 states where a candidate can call for a recount. In some states, recounts can only happen automatically.

Additionally, Nevada is one of eight states where a voter could call for a recount on a ballot question. These requests must be made within three working days of the canvass and certification of the votes by the appropriate city or county board.

What about the money?

As the party who called for the recount, Anthony is responsible for depositing the cost in advance. In this case, it’s more than $79,000.

Anthony called that price “outrageous” in a tweet on Friday in which he also requested donations from supporters to help cover the cost. According to Anthony’s campaign manager, Lisa Mayo-DeRiso, Anthony spent most of Monday phonebanking to draw financial support and to encourage volunteers to observe the counting in the coming days.

If a recount ends with a change to the results in an election, the party who called for the recount is refunded the advance deposit, and the state or county that conducted the recount is responsible for the cost. In this case, if Anthony is declared the winner, Clark County will bear the cost of the recount. 

If the recount determines that Miller retained his victory and the recount’s cost is less than the estimated amount provided to Anthony, Anthony will be refunded the difference.

According to Registrar of Voters Joe Gloria, the cost of these recounts is mostly a result of staffing costs. Gloria also said the cost includes having a representative of Dominion Voting Systems, the vendor which supplies voting machines in the county, on site in case of any issues.

Nevada statutes say that recount costs are allowed to include building utilities, salaries for employees, services from agencies that administer telecommunications or provide computer system support, per diem and mileage allowances for county clerks, extra materials such as tally books, and any required support from equipment vendors. The cost cannot include utilities, rent, or payments that would be paid by the county even without the recount.

How does the recount work?

For a recount of this size, the election department is utilizing two shifts of staff every day over the course of five days. Counting will last from 5:00 a.m. to 10:30 p.m. each day.

Gloria says he’s “pretty confident” the recount will take the full five days.

“There’s a considerable number of ballots to be counted,” he told The Nevada Independent on Monday. “We’ll definitely go well into Friday.”

He also indicated that starting on Tuesday, the county will give reports on the number of ballot boxes left to count.

During the recount, counting staff are only looking at the selections made by voters in the District C race and are not recounting votes for any other race or question included on those ballots.

The staff tasked with counting the ballots are a combination of permanent election department staff and temporary workers contracted to perform the service. Employees perform a variety of tasks including processing early voting and mail-in ballots and adjudicating ballots in question.

Ballot adjudication occurs when a correction or error on a ballot prevents it from being read by a machine. In order to correct a mistaken vote on a ballot, voters must cross out the name of the incorrectly selected party and then select the preferred candidate. Because machines read these corrections as a voter selecting multiple candidates, ballot counters are tasked with determining a voter’s intent.

In order to do this, the ballot being adjudicated is projected on two large screens while ballot counters look at the selections made to determine whether one name was clearly marked either as a preference or a mistake.

Observers sit in front of a ballot counting area during a recount at the Clark County Election Department in Las Vegas on Monday, Dec. 07, 2020. (Daniel Clark/The Nevada Independent)

Observers can see the projected ballot while it is being analyzed from where they are placed beyond the plexiglass barrier that divides ballot counters from the general public.

There were multiple observers in attendance in the election department warehouse in North Las Vegas on Monday, including Miller, Anthony campaign manager Mayo-DeRiso, and volunteers observing on behalf of Anthony’s campaign. 

Past recounts

Nevada’s most recent major recount was for the Senate District 20 seat in the 2018 general election. Democratic candidate Julie Pazina called for the recount after results showed her trailing Republican opponent Keith Pickard by 28 votes out of 55,368 cast. 

The 2018 recount did not change the outcome of that election, although it did slightly narrow Pickard’s margin of victory. Final results gave him a win by 24 votes.

Recounts also took place in 2016 for Assembly District 31 in Washoe County and in the presidential election. In the Assembly district, more than 30,000 votes were recounted in one day in the race between Republican Jill Dickman and Democrat Skip Daly. That recount also did not change the final outcome of the race but did narrow the lead of winner Daly from 38 to 36.

In the presidential election, a partial recount took place in Nevada in five counties, including four rural counties and several precincts in Clark County. The recount reviewed 93,840 ballots between these counties and resulted in both Hillary Clinton and Donald Trump losing “erroneous votes.” Clinton lost nine, and Trump lost six.

The partial recount in the 2016 election was requested by independent presidential candidate Roque De La Fuente, who received .23 percent of the vote in the general election. The recount cost De La Fuente $6,500.

Clark County certifies Democrat Ross Miller’s 10-vote victory in commission race

The Clark County Commission voted unanimously Tuesday to certify the results of the general election for the District C race, affirming Democrat Ross Miller as the race’s winner with a 10-vote margin of victory in a district where more than 150,000 ballots were cast.

The board chose not to certify the results in the race in mid-November when the rest of the election was certified because of 139 ballot discrepancies that outnumbered Miller’s lead over Republican opponent Stavros Anthony. Tuesday’s decision comes after a Clark County District Court judge denied Anthony’s motion to prevent the reconsideration, saying that the discrepancies did not qualify as “cause” for a new election according to Nevada statutes. 

“As far as we know, the facts aren’t going to change that [Voter Registrar Joe Gloria] presented on the 16th, and the votes that were counted are accurate,” said Commissioner Larry Brown, who holds the District C seat and reached his term limit this year. “If we don’t meet the statutory requirement as far as ordering a new election, then our only option is going to be to certify and let the courts handle any kind of contested election.”

The motion to reconsider was made by Commissioner Tick Segerblom who was opposed to the board’s decision not to certify in November.

Miller, a former secretary of state, filed a lawsuit against the county after its initial decision not to certify, which he said in the complaint exceeded the board’s “authority under law.” On Tuesday, a statement from the candidate’s campaign expressed his thanks that the commission reconsidered its decision.

“Ross Miller served as Nevada’s chief elections officer for eight years, and nobody has more respect for the hard-working officials and volunteers who administered a fair election in District C,” Jim Ferrence, Miller’s campaign manager, said in the statement. “Over 153,000 voters cast legal ballots in the race, and Ross is thankful to the County Commission for making sure those votes count and for certifying Ross as the winner.” 

Las Vegas City Councilman Anthony said on Tuesday that he was “disappointed” by the board’s decision to “not take a stand for the voters in District C.” As an intervening plaintiff in Miller’s lawsuit, Anthony’s legal team argued on Monday that allowing the county to certify results and leave Anthony only with the options of a recount or a legal challenge was unfair as Gloria previously stated that a recount would not address the 139 discrepancies.

“To say that 139 votes that cannot be counted don’t matter is an affront to the integrity of the election process,” Anthony said in a statement issued by his campaign on Tuesday. “We have a hearing in District Court on Dec. 14, and we will continue to make every effort to get a fair, transparent and accurate election.”

Although Anthony refers to discrepancies as “votes that cannot be counted,” ballot discrepancies are instances when the number of individuals who checked in to vote or signed ballots does not match the number of ballots cast. These anomalies can occur if a voter casts multiple ballots or for a variety of mail-in issues. At a previous commission meeting, Gloria said that discrepancies occur in every election.

“There’s no election that goes without discrepancies that are identified,” he said. “In particular, this time, with such a large mail ballot number, that number that I’ve identified is in the thousandths of percent.”

The exact nature of the discrepancies in District C is unclear. Brown asked Gloria on Tuesday to go into more depth about the nature of the anomalies, but Gloria said that he could only offer hypothetical scenarios that may have caused them.

“We don’t know which voter they are, all we know is they exist, either in the mail, in early voting, or Election Day,” he said.

Gloria noted that there are discrepancies that can be solved, including voters who are a part of the Nevada Confidential Address Program, which allows for the voter records of victims of domestic violence, sexual assault and/or human trafficking to be confidential. However, he said that in these cases, he would receive a document explaining the situation and that discrepancy would not be counted in the 139 against the margin of victory.

Gloria previously stated in an affidavit submitted to the court by Anthony’s campaign that he could not certify that the vote in District C was an “accurate representation of the will of the voters” in the region. On Tuesday, he said that the situation in District C is “unique.”

“Over 150,000 people voted in this contest,” he said. “It’s very out of the ordinary for a race with that many votes to be decided by ten. That margin of victory is very difficult to reconcile, no matter what the race is, with 215 precincts.”

Commission candidate’s motion to stop vote certification in District C race denied

A judge in Clark County has denied Republican candidate Stavros Anthony’s motion for a preliminary injunction to prevent the County Commission from reconsidering certifying results in the District C race.

The motion was filed on Wednesday after the commission released an agenda that included a motion to reconsider requested by Commissioner Tick Segerblom allowing board members to vote on canvassing and certifying results for the race. The commission chose not to certify those results at its initial canvassing meeting because the 139 ballot discrepancies noted in the region outnumbered the 10-vote margin of victory held by Las Vegas City Councilman Anthony’s Democratic opponent Ross Miller, a former secretary of state.

Miller filed a suit against the county after the decision not to certify, which he said exceeded the board’s “authority under law.” Anthony is an intervening plaintiff in the case. 

The candidate’s motion for preliminary injunction referenced a stipulation agreed to by the county that the board would not proceed with a special election until the court made a decision. Anthony said that preventing the county from reversing its certification decision would also violate that stipulation which was the motion said was intended to “preserve the status quo.”

Anthony’s attorney, former Lt. Gov. Mark Hutchison, argued at Monday’s hearing that comments made by Registrar of Voters Joe Gloria showed that an effective election had been “prevented” in the district because of ballot discrepancies.

“As a result [of the discrepancies], I cannot certify that the vote is an accurate representation of the will of the voters in that district,” Gloria said in the affidavit. “In my professional opinion as an election official, it raises a reasonable doubt as to the outcome of the election.”

Hutchinson said that these discrepancies entitle Anthony and District C voters to a new election according to NRS 293.465 which says that a new election is appropriate if “an election is prevented in any precinct or district by reason of the loss or destruction of the ballots intended for that precinct, or any other cause.”

However, Judge Elizabeth Gonzalez did not agree that ballot discrepancies qualified as “cause” under the statute.

Ballot discrepancies can occur when voters cast multiple ballots, when check-in numbers at voting sites don’t match up with the number of ballots cast at that site or as a result of various mail-in ballot issues. Gloria previously said that these discrepancies occur in every election.

Without an injunction from the court, the Clark County Commission will meet on Tuesday to canvass results in the District C race and discuss certification.

Commission candidate asks court to stop Clark County Commission from certifying 10-vote victory in District C

Republican candidate Stavros Anthony filed a motion with the Clark County District Court on Wednesday seeking to prevent the Clark County Commission from canvassing the votes in the District C election and from reconsidering the decision not to certify those results at its Tuesday meeting.

The commission decided last week not to certify the results of the commission District C race — which Anthony lost to Democrat Ross Miller by 10 votes — and instead pursue a special election, because the number of ballot discrepancies was higher than Miller’s margin of victory. Miller filed a lawsuit against the county for its decision the next day. 

However, an agenda item for the commission’s Dec. 1 meeting opens the door for commissioners to reconsider that choice and instead certify the race’s initial results.

“We strongly believe that the initial decision by the Commission was the right decision on November 16,” Anthony said in a statement on Wednesday. “It seems unusual and not fair that the Commission should now consider reversing their decision and ignoring the Nevada Statutes that support their decision. Fair and accurate voting is a priority, and a new election is the only way to ensure those two criteria.”

The county declined to comment on the motion or on the decision to reconsider certifying District C's results.

Anthony’s campaign previously stated that they do not believe “fraud” or “conspiracy” played any role in the discrepancies in this race, but rather that they were a result of “human error.” Discrepancies occur when voters cast multiple ballots, if check-in numbers do not match the number of votes cast at a precinct, or as a result of various mail-in ballot issues. There were 139 discrepancies noted in District C.

Campaign manager Lisa Mayo-DeRiso called the commission’s decision on Nov. 16 “a win.”

A hearing for Miller’s lawsuit against the county was set to be scheduled next week after an initial conference on Friday. At that conference, county Counsel Mary-Anne Miller agreed to a stipulation that the county would not move forward with a special election until the suit had been settled.

Anthony’s motion says that in the interest of upholding that stipulation to “preserve the status quo,” the county should also be prevented from reconsidering the decision to hold a special election. Because of this, the candidate is requesting a preliminary injunction preventing the commission from taking any action at the meeting.

The agenda item for Tuesday’s meeting states that the commission will canvass, or certify, the official tally of the votes in Commission District C and may direct that tally to the secretary of state for certification or “take other action as appropriate.” If the decision is made to send the results to the secretary of state, the county would cease planning for a special election, and Miller would be certified as the winner. Anthony’s options would then be to request a recount or file a challenge against the race’s results.

Anthony’s complaint argues that preventing the court from considering a special election and leaving his campaign with only the options of a recount or a challenge would cause the candidate “irreparable harm.” Registrar of Voters Joe Gloria said at the initial vote canvassing that the discrepancies noted in District C could not be remedied via recount.

Additionally, in the case of a contest, a judge can only remedy irregularities in an election by awarding the office to the candidate who can prove they actually “received the greater number of legal votes” or annul the election and leave the office vacant. Neither of these options provides for a revote.

Miller's campaign did not immediately respond to a request for comment on Anthony’s motion.