Attorneys representing the Nevada State Democratic Party are firing a warning shot and threatening potential litigation without requested changes to the state’s plan to hold an all-mail primary election in June amid ongoing COVID-19 concerns.
Attorneys Bradley Schrager and Marc Elias — a nationally prominent attorney for Democrats, including former presidential candidate Hillary Clinton’s campaign — said in an email to the office of Republican Secretary of State Barbara Cegavske last Friday that the party was concerned about details of the planned all-mail election and that it could violate constitutional protections and normal election procedure.
The letter outlines a number of concerns about the announced election process, including concerns that limiting in-person voting to one site per county would pose “certain risks and hardships” to voters not typically accustomed to voting by mail. It could lead to unwanted outcomes such as requiring voters in urban areas to risk going to “dangerously overcrowded polling places” or for rural voters to travel “unreasonable distances” to cast a ballot.
“Voting by mail is a sound system only when paired with meaningful opportunities to vote safely in person,” the attorneys wrote in the letter. “This is particularly important considering the circumstances surrounding the current pandemic, which has already displaced many voters from the mailing addresses at which they are registered, meaning that they are unlikely to receive their ballots even when mailed to the correct addresses.”
But the office appears unlikely to acquiesce to the demands. Secretary of State Barbara Cegavske said in an emailed statement that the office disagreed with many of the suggestions, saying that opening more polling places "creates logistical and staffing challenges, as well as increased risk of the spread of the coronavirus."
“We are a nation of laws," she wrote in an email. "My job, as defined in (state law), is to faithfully execute and enforce state election laws as written."
State and local election officials in Clark County said last week that “extremely limited” early voting opportunities would be available to voters throughout the state, with several sites likely to be placed throughout Clark County.
The attorneys also requested that the secretary of state’s office mail ballots to all registered voters, not just those listed as “active,” and suspend prosecutions of a state law prohibiting non-family members from returning or collecting absentee ballots from voters.
Nevada law typically only allows an individual voter or a family member to return an absentee ballot, making it a felony offense to turn in such a ballot. Nevada is one of 12 states that limit who may collect an absentee ballot.
Cegavske said that sending ballots to inactive voters would "increase printing and mailing costs and result in a significant amount of undeliverable ballots." He also wrote that state law specifically prohibited "ballot-harvesting" practices.
Additional requests include suspending ballot rejections for signature mismatches on absentee ballots, with the attorneys saying that “lay election officials” do not have the expertise to conduct signature verification, and that signature matching is “not needed to ensure the integrity of the election.”
“In an environment where the vast majority of Nevada voters will be casting a mail-in ballot for the first time, there is the real possibility that hundreds of thousands of Nevada voters could be disenfranchised due to the arbitrary determinations of these untrained officials,” they wrote in the letter.
They also asked that the office update state administrative code that currently conflicts with a 2019 state law now allowing ballots postmarked by Election Day to be counted. The letter was first reported by Fox News and the Las Vegas Review-Journal.
Perennial Republican candidate Danny Tarkanian will not be allowed to proceed with a libel case against his 2016 opponent, now-Sen. Jacky Rosen, after a three-year court battle that ended with the state Supreme Court order dismissing the case.
The order issued Thursday by the Nevada Supreme Court reverses a Clark County District Court’s decision and ends the possibility that Tarkanian, the son of legendary UNLV basketball coach Jerry Tarkanian, could again win damages from a political opponent over ads accusing him of setting up “13 fake charities that preyed on vulnerable seniors.”
The case decided by the Supreme Court was not over whether Rosen’s 2016 congressional campaign committed libel or defamation against Tarkanian, but instead was over a motion filed by attorneys for Rosen to preliminarily dismiss the lawsuit through the state’s anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) laws — designed to defend free speech that may be the target of censorship by long and costly litigation.
In the order, which was authored by Justice James Hardesty, the court found that the language in the advertisements produced by Rosen’s campaign had the ‘gist or sting’ of truthfulness, and that Tarkanian’s issue with her ad accusing him of “setting up” the fraudulent charities were “substantially true.”
“Under this standard, it is clear from the evidence in the record that Rosen sufficiently demonstrated that the statements were made in "good faith" under the anti-SLAPP statute because the "gist or sting of the statements was substantively true,” Hardesty wrote in the order.
The court also found that Tarkanian was unlikely to prove actual malice — acting with a reckless disregard for the truth, a standard established by the landmark New York Times v. Sullivan case — in order to prevail in any defamation lawsuit, given his status as a public figure.
“Even if there is a material difference between stating that Tarkanian ‘set up’ the fraudulent telemarketing corporations and stating that he ‘worked for those corporations,’ Tarkanian cannot prove that Rosen made her statements with reckless disregard for their truth,” the order stated.
Tarkanian launched the lawsuit after the election in November 2016, accusing Rosen’s campaign of disseminating political advertising that contained false and defamatory statements about Tarkanian’s legal work for telemarketing companies later found to be fraudulent. Tarkanian has acknowledged his role in setting up the companies but said he did not know of their operations or any illegal activity.
Similar accusations around his work with those companies have dogged Tarkanian’s repeated political bids, though he successfully sued and won $150,000 in damages from then-state Sen. Mike Schneider for using the claims in their 2004 race.
Tarkanian lost the 2016 race for the state’s 3rd Congressional District by fewer than 5,000 votes, and lost another bid for the seat in 2018 to Democrat Susie Lee by a wider margin — nearly 26,000 votes. Tarkanian also ran unsuccessfully for state Senate in 2004, for secretary of state in 2006, for a U.S. Senate seat in 2010 and for the state’s Fourth Congressional District in 2012.
In oral arguments from March, attorneys for Rosen acknowledged that even though political ads could be “slanted and hyperbolic,” the remedy was not in defamation or libel lawsuits but in “more speech.” Marc Elias, a prominent attorney for Democrats nationwide, told the court that denying the anti-SLAPP motion would open the floodgates by allowing much more political speech to be subjected to lawsuits.
A dissenting opinion, authored by Justices Mark Gibbons and Kristina Pickering, took issue with the fact that Rosen herself did not submit an affidavit stating she believed the claims in the ads were true, and said that the court discounted Tarkanian’s past success in a defamation lawsuit on the same topic in assessing his chances to prevail.
“Without a supporting affidavit, Rosen failed to demonstrate by a preponderance of the evidence that she made the statements in good faith,” the dissent states. “Even if she had met her burden, considering Tarkanian's evidence in a light most favorable to him, he made a prima facie showing of his claims.”
Two members of the court — Justices Elissa Cadish and Abbi Silver — voluntarily recused themselves from the case (Cadish because of her friendship with Rosen). They were replaced by Churchill County District Court Judge Thomas Stockard and Washoe County District Court Judge Barry Breslow.
Attorneys on both sides of attempted recalls of two Democratic state senators argued for what could be the final time before the Nevada Supreme Court on Monday, part of a last-chance appeal that could either drive a final nail in the coffin of the recall efforts or result in an unprecedented special recall election.
In oral arguments before the justices on Monday, attorneys Marc Elias and Michael K. Wall made their final pitches to the seven members of the state's highest court, as part of an appeal made by backers of the recalls challenging a Clark County District Court’s decision finding signatures for the recalls were insufficient for a special election.
Although the court’s decision will likely come in weeks or even months, it will determine whether the 18-month-plus process to qualify the recalls are finally squashed, or if Republicans will be given a long shot attempt to unseat two Democratic lawmakers and move the balance of power in the state Senate from a 13-8 Democratic majority to a narrow 11-10 split between the parties.
At the heart of the 30-minute oral argument was debate over so-called “post submittal strike requests,” which are forms allowing people who initially signed the recall petition to remove their names from the list after the petition is turned in to state officials.
Clark County Judge Jerry Wiese ruled in March 2018 that the state law allowing the strike requests was constitutional — despite a challenge by attorneys for the recall organizations — reducing the total signature count to below the threshold needed for a special recall election. But backers of the recall efforts appealed in May, asking the state Supreme Court to overturn Wiese’s decision on the withdrawn signatures and requiring a full verification of all petition signatures, which could — depending on if several alleged incorrectly stricken signatures are added back — bring the number of signatures to recall Woodhouse to the required level.
Wall, an attorney with the firm of Hutchison and Steffen, urged members of the court to follow the plain language of the state Constitution, which holds that if the target of a recall doesn’t resign within five days after a recall petition is filed, a special election “shall be ordered” within 30 days for an election.
“The Constitution demands that,” Wall said. “The Legislature can’t get together and adopt a statute and amend it in 2001 in a manner that allows them to stop the recall election. That’s not a statute that is in aid of the recall. That’s a statute that undoes the recall, and makes the recall almost an impossibility.”
Wall said that recall provisions were effectively “denied if it’s delayed,” saying that the post-submission withdrawal requests were akin to a game where the other player continues to play and score after time runs out.
“A withdrawal is like a voter in a regular election changing their mind multiple times before they vote in a poll,” he said. “A strike request is like somebody going to the polls and voting, and then having second thoughts and saying I want to withdraw my vote.”
But Justices Elissa Cadish and James Hardesty both noted that if the court granted the request of the recall backers, the court would be effectively granting a path forward for a recall election despite a full count of the submitted signatures showing that the number of valid signatures was below the threshold, with or without the challenged withdrawn signatures.
“I guess the question is, if we were to agree with your point, we would be sanctioning a recall based upon verified signatures that did not meet the constitutional or statutory requirements,” Hardesty said.
Under Nevada law, qualifying a recall election is a tall order. A successful petition requires signatures from 25 percent of voters who cast a ballot in the last election of the targeted office-holder, gathered within a 90-day period. Signatures are reviewed by local and state election officials, who take out invalid signatures in order to determine whether or not the petition hits the required threshold.
Elias, representing the state senators, said it would create a truly “absurd result” if the court were to rely on signature numbers garnered by signature sampling when it had a full count already available.
“If you take a step back, the objection coming from the other side is that we should remain blind to what the actual number of signatures is, and that we should only go with the statistical estimate of the signature number, rather than the actual of the signature number,” he said.
He said complaints by recall backers about alleged errors made by the county register on signature count should be invalid, as the case could not drag on forever as parties fought over a small batch of signatures with questionable validity.
“I've been involved in a lot of election disputes, and I've won some and I've lost some,” he said. “But at some point, the counting stops. You don't get to just keep telling the court, 'well, keep counting until I get the number that I want.'”
Funded by the Republican State Leadership Committee and championed by former Republican state Senate Leader Michael Roberson, recall efforts against Democratic Sens. Joyce Woodhouse, Nicole Cannizzaro and Republican-turned-independent Sen. Patricia Farley were launched in the fall of 2017. Taking advantage of Nevada’s lack of a requirement for grounds to bring a recall, backers of the efforts used largely partisan language to support the recalls, including citing the targeted senators’ support for a so-called “sanctuary state” bill and other measures supported by Democrats in the 2017 session.
The petitions targeting Woodhouse and Cannizzaro were initially declared to have enough signatures to qualify for special recall elections, but Democratic group challenges and inclusion of the post-submittal strike requests drew the number of valid signatures for both petitions below the needed threshold.
Both Cannizzaro and Woodhouse said in interviews that they were confident with their cases heading into the oral arguments, and both said they were prepared for the contingency of having to run in a special election if the court reversed the District Court’s decision.
“We’ve always known that there are any number of ways in which this could ultimately end, and if we have to run in an election, then I stand ready and willing to do so,” Cannizzaro said.
Both seats will be on the ballot in 2020, though Woodhouse is prohibited from running again due to term limits.
The two senators introduced a bill draft request last June related to recall elections, but no final legislation has been introduced. Cannizzaro said the bill was still being worked on, while referencing an audit of the Nevada secretary of state’s office that found a better sampling methodology would have resulted in the recall petitions not being declared initially sufficient for a special election.
Woodhouse, who attended the hearing along with Cannizzaro and nearly half a dozen other state senators, said she was prepared to finish out her term regardless of whether or not a special election happens, but sounded some notes of frustration at the long-running legal battle over the recalls.
“It’s just unfortunate that it’s dragged on like this, and so much effort and expertise and money has been expended on something that is ridiculous,” she said. “The will of the voters put Senator Cannizzaro and I in the office, and we haven’t done anything wrong, so the recalls are just inappropriate.”