Clark County judge dismisses case against Nevada 'fake electors' for second time

A Clark County judge has tossed out forgery charges against Nevada's six so-called "fake electors" for the second time, the latest defeat for prosecutors' efforts to convict the Republicans behind the effort to overturn Nevada's 2020 election results for President Donald Trump.

Judge Mary Kay Holthus ruled Thursday that state prosecutors did not provide enough evidence that the GOP electors had intended to defraud state officials. She also said prosecutors "independently undermine[d] the integrity of the indictment" against the electors by withholding certain evidence to members of the grand jury.

In 2024, she tossed out the case on the grounds that Clark County was an invalid place to consider the case, but the Nevada Supreme Court unanimously overruled her last year, kicking the case back down to Southern Nevada.

Attorney General Aaron Ford's (D) office plans to appeal the ruling to the state Supreme Court. That process — if it mirrors the one from Holthus' first dismissal — could take more than a year, prolonging the case that began almost three years ago. Ford, who is running for governor, is unlikely to still be in office by the time the case ends.

It marks a loss for Ford, whose office declined to pursue a trial in Carson City with the hopes that a jury in Clark County — where there is a stronger Democratic lean — would be more friendly to prosecutors' arguments. The fake electors were initially expected to stand trial in Carson City this summer, but Ford's office decided to drop that case after the Nevada Supreme Court's ruling in favor of hearing the case in the southern part of the state.

In Holthus' ruling, she singled out Ford for conceding in public that state law "did not directly address the conduct in question." This likely referred to the fact that fake elector schemes are not specifically prohibited in state law. Legislators have sought to change this in the past two legislative sessions, but Gov. Joe Lombardo (R) has vetoed the bills.

Because Nevada law does not specifically prohibit these schemes, Ford's office instead charged the defendants of offering a false instrument for filing and uttering a forged instrument, but Holthus determined that these laws did not cover the allegations.

"Nevada's Attorney General publicly recognized that existing Nevada law did not expressly criminalize the conduct at issue and thereafter supported legislation specifically intended to criminalize the submission of alternate electoral certificates," wrote Holthus, who added the comments provide context as to why these charges were inadequate.

The decision comes after the six Republican electors convened an illegitimate ceremony in 2021 in Carson City, where they purported to be the state's true electors and signed documents awarding the Silver State's votes to Trump and then-Vice President Mike Pence, even though Joe Biden had won the popular vote in Nevada. Biden electors, who are legally bound to cast a ballot for the candidate who garnered the most votes, held a separate, legitimate ceremony.

These documents were then mailed to federal and state officials.

The Republican electors included Nevada GOP Chairman Michael McDonald, Nevada GOP Vice Chair Jim Hindle and Republican National Committeeman Jim DeGraffenreid. The other three defendants are then-Clark County GOP Chairman Jesse Law, Shawn Meehan and Eileen Rice. 

In late 2023, a grand jury indicted the electors on felony charges, which carried punishments up to a maximum of four and five years in prison and a minimum of one year in prison.

A large part of the latest dispute centered on an element of the "uttering a forged instrument" charge, which requires prosecutors to prove the electors had an "intent to defraud." Holthus has long been skeptical over whether this was indeed the case, saying in previous hearings that it was "impossible" to prove and that there was no real chance of the electors convincing officials that Trump was duly elected.

Ultimately, though, she determined that prosecutors did not prove this element, in part because the GOP electors advertised their conduct in public.

"The fact that Defendants openly announced both their actions and their asserted purpose, rather than concealing their conduct or attempting to secretly induce governmental reliance, weighs against a reasonable inference that they acted with fraudulent intent," Holthus wrote in her ruling.

She also determined that the state's evidence undermined its own arguments. State officials had testified that the fake elector certificates could not be processed as genuine electoral documents, which Holthus ruled went against the nature of the law in question.

"The purpose of the statute is to prevent public officials from acting upon such documents in the mistaken belief that they are genuine," she wrote. "Here, the evidence presented to the grand jury demonstrated that the GOP Certificate was not a document that could legally be accepted, filed, registered, or recorded under Nevada or federal law. Nor was there evidence that any public official believed it to be Nevada's official electoral certificate or was induced to act upon it in the mistaken belief that it was genuine."

A hearing in the case was supposed to be held Monday, but it has since been canceled.