Washoe County DA disagrees with Secretary of State in election certification case

The Washoe County District Attorney’s office disagrees with the Secretary of State’s office over whether the Nevada Supreme Court should take up the case of commissioners refusing to certify election results .

The DA’s office says the issue is moot because the Washoe County Commission eventually approved the results after initially voting 3-2 against approving tallies for two primary election recounts.

But the Secretary of State wants the court to provide guidance in case a county board in Nevada decides to reject vote totals in future elections.

Fast reporting of results will be a priority in the November election because Nevada is considered a swing state for the presidential race as well as control of the U.S. Senate.

The DA’s office thinks the issue is better handled if and when a county commission is actively refusing to certify vote totals instead of now when “there is no dispute among the parties before this Court,” its filing says.

“The Secretary is concerned with hypothetical injuries which may occur at some future point in time,” the DA’s response continues, “however, these concerns should be considered at that time, when an actual case or controversy exists.”

Further, the DA’s office casts doubt on whether this is even likely to happen anytime soon.

“The Board’s action on July 9, 2024, is believed to be the first time in the last century that Washoe County or any Nevada County Commission actually declined to canvass the vote after an election, and therefore it is doubtful that a similar issue will arise again,” its filing says.

One role of the DA’s office is to defend county employees and elected officials in legal matters related to their official actions. The three commissioners who voted against the recount certification were named in the Supreme Court petition by Secretary of State Cisco Aguilar. Because of this, the DA's office must represent them.

The Washoe County Commission’s historic vote rejecting election results

Commissioners Clara Andriola, Mike Clark and Jeanne Herman voted last month to not approve recount results in a school board and county commission race. Mariluz Garcia and Alexis Hill voted in favor.

Canvassing – or reviewing and approving the vote totals – is described in state law as something the board “shall” do, not “may” do.

It’s intended to be a formality. The commissioners are saying that the numbers are indeed those that the county's elections office reported, not whether there were voting irregularities. Those are investigated by the Secretary of State’s office.

That was the legal advice from Chief Deputy District Attorney Mary Kandaras when the commission approved the June primary results and Andriola sided with Garcia and Hill.

But when the registrar of voters reported the recount numbers at a commission meeting and dozens of public commenters expressed concerns with the process, Andriola said her conscience demanded she vote against certification because further investigation seemed warranted.

The day after, she asked the county commission to reconsider . At its meeting the following week, Clark and Andriola changed their positions and the recount numbers were approved 4-1.

Andriola explained that she’d received additional clarification from the DA’s office and concluded that the law required her to vote in favor of certifying the results. Clark was less enthusiastic with his vote and said he felt compelled against his will to certify them.

Herman stuck by her position against approving the vote totals, describing it as a hill to die on.

Is the Washoe commission case moot or not?

The legal brief filed by the attorney general’s office on behalf of Aguilar said that Herman’s vote was not a benign, personal opinion but one based on vague, unsubstantiated claims.

“Herman’s actions provide a license and roadmap for likeminded commissioners to prevent certification of future elections, in violation of Nevada election law,” Aguilar’s filing last week says. “If a similar canvass dispute occurs during a general election, it will threaten to disrupt strict election timelines at all levels of government.”

He adds, “The threat of rogue county commissioners flouting their ministerial duty to canvass election results will only continue to grow in Nevada until this Court intervenes.”

The Washoe County DA’s office doesn’t see why the Supreme Court needs to intervene now in this case.

“It is unclear why a court would be unable to promptly issue an order in the future if necessary,” it says in response.

It notes that the Secretary of State’s office filed a petition with the Supreme Court within one day of the Washoe County Commission rejecting certification and says such a case won’t involve extensive legal research because “the record involved is relatively small and consists of the meeting in question” where the vote against certification happened.

“The Board did what the Secretary sought to compel,” the DA’s office emphasized with bold, underlined text, quoting Aguilar’s own filing.

Because the outcome that the Secretary of State’s seeks – for the election results to be certified – was achieved when the commission changed its vote on July 16, Aguilar’s request to the Supreme Court “is moot and dismissal is appropriate,” the DA’s office concludes.

Now it's up to the Supreme Court to decide whether the case is moot and if not, then whether county commissioners have any choice in voting to certify election results.

More: Nevada secretary of state warns of 'rogue' commissioners ahead of 2024 general election

Mark Robison is the state politics reporter for the Reno Gazette Journal, with occasional forays into other topics. Email comments to mrobison@rgj.com or comment on Mark’s Greater Reno Facebook page .

This article originally appeared on Reno Gazette Journal: Washoe County DA disagrees with Secretary of State in election certification case