Law v. Whitmer, 120820 NVSC, 82178

Docket Nº:82178
Opinion Judge:PICKERING, C.J.
Party Name:JESSE LAW, AN INDIVIDUAL; MICHAEL MCDONALD, AN INDIVIDUAL;JAMES DEGRAFFENREID, III, AN INDIVIDUAL; DURWARD JAMES HINDLE, III, AN INDIVIDUAL; EILEEN RICE, AN INDIVIDUAL; AND SHAWN MEEHAN, AN INDIVIDUAL, AS CANDIDATES FOR PRESIDENTIAL ELECTORS ON BEHALF OF DONALD J. TRUMP, Appellants, v. JUDITH WHITMER, AN INDIVIDUAL; SARAH MAHLER, AN INDIVIDUAL;...
Attorney:Harvey & Binnall, PLLC Weir Law Group LLC Perkins Coie, LLP/Seattle Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP/Las Vegas Perkins Coie, LLP/Washington DC
Judge Panel:GIBBONS J. HARDESTY J., PARRAGUIRRE J., STIGLICH J., SILVER J. Hon. James Todd Russell, District Judge. James T. Russell, District Judge.
Case Date:December 08, 2020
Court:Supreme Court of Nevada

JESSE LAW, AN INDIVIDUAL; MICHAEL MCDONALD, AN INDIVIDUAL;JAMES DEGRAFFENREID, III, AN INDIVIDUAL; DURWARD JAMES HINDLE, III, AN INDIVIDUAL; EILEEN RICE, AN INDIVIDUAL; AND SHAWN MEEHAN, AN INDIVIDUAL, AS CANDIDATES FOR PRESIDENTIAL ELECTORS ON BEHALF OF DONALD J. TRUMP, Appellants,

v.

JUDITH WHITMER, AN INDIVIDUAL; SARAH MAHLER, AN INDIVIDUAL; JOSEPH THRONEBERRY, AN INDIVIDUAL; ARTEMESIA BLANCO, AN INDIVIDUAL; GABRIELLE D'AYR, AN INDIVIDUAL; AND YVANNA CANCELA, AN INDIVIDUAL, AS CANDIDATES FOR PRESIDENTIAL ELECTORS ON BEHALF OF JOSEPH R. BIDEN, JR., Respondents,

No. 82178

Supreme Court of Nevada

December 8, 2020

UNPUBLISHED OPINION

Harvey & Binnall, PLLC Weir Law Group LLC Perkins Coie, LLP/Seattle Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP/Las Vegas Perkins Coie, LLP/Washington DC

ORDER OF AFFIRMANCE

PICKERING, C.J.

This is an appeal from a district court order denying an election contest. First Judicial District Court, Carson City; James Todd Russell, Judge.

On November 3, 2020, Nevada voters elected candidates for the office of presidential elector. Following the canvass required by NRS 293.395(2), the Governor of Nevada transmitted a Certificate of Ascertainment to the National Archives on December 2, 2020, which certifies that the Democratic Party Electors received the highest number of votes cast for presidential electors in the 2020 General Election.1 On the last day allowed by Nevada law, see NRS 293.413(1), appellant Republican Party Electors filed an action contesting the election of the respondent Democratic Party Electors. See generally NRS 293.407 (allowing for contest of election to the office of presidential elector); NRS 293.410(2) (identifying the grounds on which an election may be contested). The district court expedited the proceedings, with the parties submitting deposition testimony and other evidence on December 2, 2020, and the court considering that evidence and hearing argument on December 3, 2020. The district court entered a detailed written order the following day.

This appeal was docketed in this court on December 7, 2020, and the parties promptly filed competing motions. Respondents moved for a summary affirmance without briefing, while appellants moved for an expedited briefing schedule (although they asked this court to decide this matter by December 14, they did not propose a specific briefing schedule). We directed the parties to respond to each other's motions by 2 p.m. today, December 8. We also directed the district court clerk to transmit the available portions of the district court record to this court's clerk immediately, which the district court clerk did. Then, having considered the pending motions and responses, we directed the parties to file supplemental briefs by 7 p.m. today. In particular, we ordered appellants to identify by page and paragraph number the specific portions of the district court order they contest. The parties have filed those briefs.

The district court entered a 34-page order, setting forth its findings of fact, conclusions of law, and evidentiary rulings. The district court's order is attached. To prevail on this appeal, appellants must I demonstrate error of law, findings of fact not supported by substantial evidence, or an abuse of discretion in the admission or rejection of evidence by the district court. See Sowers v. Forest Hills Subdivision, 129 Nev. 99, 105-06, 294 P.3d 427, 432 (2013) (reviewing a district court's factual findings for an abuse of discretion and providing that those findings will not be set aside unless they are clearly erroneous or not supported by substantial evidence); Weddell v. H20, Inc., 128 Nev. 94, 101, 271 P.3d 743, 748 (2012) (stating that questions of law are reviewed de novo, while factual findings are reviewed for substantial evidence). We are not convinced they have done so.2 In particular, appellants have not demonstrated any legal error in the district court's application of NRS 293.410(2)(c). We also are not convinced that the district court erred in applying a burden of proof by clear and convincing evidence, as supported by the cases cited in the district court's order. And, in any event, the district court further determined that appellants had not met their burden even if it applied a lesser standard. Finally, the district court's order thoroughly addressed the grounds asserted in the statement of contest filed by appellants and considered the evidence offered by appellants even when that evidence did not meet the requirements under Nevada law for expert testimony, see NRS 50.275; Hallmark v. Eldridge, 124 Nev. 492, 189 P.3d 646 (2008) (explaining requirements for witness to testify as an expert), or for admissibility, see, e.g., NRS 51.065 (providing that hearsay is inadmissible except as otherwise provided in Nevada law). Despite our earlier order asking appellants to identify specific findings with which they take issue, appellants have not pointed to any unsupported factual findings, and we have identified none. The clerk of this court shall issue the remittitur forthwith. See NRAP 2 (allowing the court to suspend any rules in a particular case except for the time to file a notice of appeal). For these reasons, we

ORDER the judgment of the district court AFFIRMED.[3]

GIBBONS J. HARDESTY J., PARRAGUIRRE J., STIGLICH J., SILVER J.

Hon. James Todd Russell, District Judge.

ORDER GRANTING MOTION TO DISMISS STATEMENT OF CONTEST PROCEDURAL HISTORY

James T. Russell, District Judge.

On November 17, 2020, Contestants—Republican Party presidential elector candidates-filed a statement of contest challenging the results of the 2020 presidential election in Nevada, seeking an order from this Court either declaring President Donald Trump the winner in Nevada and certifying Contestants as the State's duly elected presidential electors, or holding that President-elect Joe Biden's victory "be declared null and void" and that the November 3 election "be annulled and that no candidate for elector for the office of President of the United States of America be certified from the State of Nevada." Statement of Contest of the Nov, 3, 2020 Presidential Election 20. In orders dated November 19 and 24, 2020, this Court expanded the depositions available to each party from 10 to 15 and shortened the time for notice from seven days to 48 hours. The parties submitted their evidence to the Court on Wednesday, December 2, 2020. Defendants submitted the testimony by deposition of four witnesses and Contestants submitted the testimony by deposition of eight witnesses along with numerous declarations, affidavits, and other documents. The Court held a hearing on December 3, 2020.

FINDINGS OF FACT

Having reviewed die full evidentiary record submitted by Contestants and Defendants, and having considered, without limitation, all evidence submitted to the Court as well as the parties' written and oral arguments, the Court makes the following findings of fact:

I. The Election Results

1. In the November 3, 2020 General Election for President of the United States, President-elect Joe Biden prevailed over President Donald Trump in the State of Nevada by 33, 596 votes.

II. The Agilis Machine

2. The COVID-19 pandemic spurred a sharp increase in mail voting for Nevada's June 2020 Primary Election. The transition to expanded mail voting placed particular stress on larger counties like Clark County because processing and counting mail ballots is time- and labor-intensive. Deposition of Wayne Thorley dated Dec. 1, 2020 ("Thorley Dep.") 12:9-14:11; Deposition of Joseph Gloria dated Dec. 1, 2020 ("Gloria Dep.") 13:11-12.

3. Accordingly, Clark County looked for solutions to enable it to meet this increased interest in mail voting. It ultimately acquired an Agilis Ballot Sorting System (the "Agilis machine") from Runbcck Election Services ("Runbeck"). Thorley Dep. 14:10-15:18; Gloria Dep. 12:20-13:22.

4. Runbeck is a well-respected election services company headquartered in Phoenix, Arizona. It provides a suite of hardware and software products that assist with mail ballot sorting and processing, initiative petitions, voter registration, and ballot-on-demand printing. It is also one of the largest printing vendors for ballots in the United States. In 2020 alone, it printed 76 million ballots and mailed 30 million. Runbeck's clients are state and county election officials in the United States. Runbeck does not do work for political parties or candidates. Deposition of Jeff Ellington dated Nov. 3, 2020 ("Ellington Dep.") 8:2-19; 10:4-11; Thorley Dep. 16:1-12; Gloria Dep. 12:20-14:3.

5. The Agilis machine is a ballot-sorting machine similar to those used by the U.S. Postal Service ("USPS"). As a ballot envelope is run through the machine, the Agilis takes a picture of the envelope. It also does preliminary processing to ensure the ballot is appropriate to be counted. For example, the machine scans the envelope to see if it was signed by the voter, weighs the envelope to determine if it properly contains only one ballot, and reads a barcode on the envelope to help ensure that the ballot is for the election that is being processed. The Agilis machine then sorts the mail pieces into those appropriate for counting and those with likely deficiencies, as well as by precinct or district. Ellington Dep. 11:18-13:11.

6. Runbeck sells the Agilis machine with automatic signature verification software licensed from Parascript. Parascript is a preeminent provider of handwriting and signature verification software that is widely used by USPS and financial institutions across the United States. Upwards of 80 percent of bank checks in the United States are verified by Parascript's automatic signature verification technology....

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