Am. Civil Liberties Union of Nev. v. The Cnty. of Nye

• Decision Date: 21 October 2022
• Docket Number: 85507
• Citation: 519 P.3d 36 (Table)
• Court: Nevada Supreme Court
• Parties: AMERICAN CIVIL LIBERTIES UNION OF NEVADA, A DOMESTIC NONPROFIT CORPORATION; AND STEVEN BACUS, AN INDIVIDUAL, Petitioners, v. THE COUNTY OF NYE, A GOVERNMENTAL ENTITY; AND MARK KAMPF, IN HIS OFFICIAL CAPACITY AS INTERIM COUNTY CLERK, Respondents.

AMERICAN CIVIL LIBERTIES UNION OF NEVADA, A DOMESTIC NONPROFIT CORPORATION; AND STEVEN BACUS, AN INDIVIDUAL, Petitioners, v. THE COUNTY OF NYE, A GOVERNMENTAL ENTITY; AND MARK KAMPF, IN HIS OFFICIAL CAPACITY AS INTERIM COUNTY CLERK, Respondents.

No. 85507

Supreme Court of Nevada

October 21, 2022

UNPUBLISHED OPINION

ORDER GRANTING IN PART PETITION FOR WRIT OF MANDAMUS

Parraguirre, C.J.

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 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 "verifier" will confirm. In 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." Finally, 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 nonexistent 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. Comm'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 performance, 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 u. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 679, 818 P.2d 849, 851, 853 (1991).

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 Nev. 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.

The hand-count process

Petitioners argue that the County Clerk's plan to hand count the mail 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 commenced 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 must 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).

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 emails 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 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 "[t]o 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...