By Daniel H. Stewart
The continuing arguments against Nevada’s pandemic-forced, vote-by-mail system lack merit. There are enough bad things in the world to worry about right now without manufactured terror. With plague and economic catastrophe pressing down on us all, it is hard to see a political challenge to our democratic foundations as the calming balm the doctor would order. We have real things to panic about, and our collective ticker is handling too much stress already; theoretical panic can wait.
Unfortunately, I have little to offer on the issues of jobs or health. But I would like to try to cool unnecessary electoral fears.
I am, among other things, an election-law attorney who has mostly represented Republicans. And I understand the instinct behind the initial response. Pictures of unused ballots piling up in trash cans trigger kneejerk nausea. Voting is sacred; ballots are too. But there is more to the story, and even a superficial dive into relevant law and actual practice should comfort, not concern. Our elections are in good hands, run by good people, who know what they are doing.
The debate over the vote-by-mail system is (or should be) fundamentally a question of law. Legal disputes don’t rely on popular opinion to sift right from wrong, and sometimes the answers are inescapable.
Nevada law says quite a bit about conducting elections even in times like this. Our election officials, led by Secretary of State Barbara Cegavske, are following the rules, straight down the middle. They have implemented a system worthy of applause not criticism, one that uses legal tools already available, and does not stray outside existing legal boundaries even a little. Every Nevada voter now has an equal opportunity to vote without jeopardizing anyone’s health or safety. How is this cause for distress?
The issue sparking the most consternation—mailing ballots to inactive voters—does not lack for statutory guidance. On the contrary, the rules are plain and unambiguous.
Nevada permits the secretary of state and local election officials to transform any and all election precincts into mailing precincts. See NRS 293.213(4). This is what Nevada’s officials did in every precinct for the primary election.
NRS 293.345 then mandates that election officials “cause to be mailed to each registered voter in each mailing precinct . . . an official mailing ballot.” Under my reading, each registered voter in each mailing precinct must receive a ballot.
“Inactive” voters are still registered voters who can and do vote in every election. Only “cancelled” voters are no longer registered. We should not confuse those two voter categories. An inactive voter is like a player who is on the bench during a game. He or she can still play. A cancelled voter is like a former player kicked off the team who cannot play in an ongoing game even if both player and team wanted otherwise. Indeed, for the purposes of voting, NAC 293.412 explicitly erases any legal distinction between inactive and active voters for both in-person and absentee (mail) voters.
It may or may not be a bad idea to mail ballots to all inactive voters. But it appears to be the law. And our election officials do their sworn duty when they uphold it, regardless of personal feelings.
Now, if my sterile legal arguments are not enough to persuade you that nothing foul is afoot, how about good old fashion common sense?
With same-day registration, voting centers, weeks of early voting, and an already robust vote-by-mail program, Nevada already has one of the most progressive elections systems in the nation. If Democrats wanted to scheme an illegitimate win in November, in what universe is this vote-by-mail system the one they would employ? What kind of backroom conspiracy by those already in power produces something worse than the status quo they could just enforce?
I also understand that Democrats have sued for additional changes to the system, including changes to the signature verification process. But no election officials have assented to the Democrat’s added demands, and it is the odd conspiracy that needs court order to compel.
Opponents have the right and obligation to challenge these proposed changes in court. That is not, however, all that leading opponents are doing. They also contest the present system as it exists, making few distinctions between current law and changed law should a court intercede.
Of course, I also understand and appreciate the need to work the election refs. I have been hired to do it myself. Sometimes officials must know that you are watching. But opponents are long past the point of sending the right message to the right people.
Ironically, stoking fear in the electoral process can also lead to self-inflicted wounds. I am aware of Republican voters who refuse to participate in the vote-by-mail primary because they think it a fraud. Local election officials in more Republican-friendly territory have also declined to mail ballots to inactive voters who are more likely inactive Republicans. Unsurprisingly, Democrats aren’t pressing the issue for the primary election.
An electoral strategy based on a belief that the fewer voters the better is a dance with disaster, and certainly does not project confidence in a party’s policy platform or candidates. Widespread voting is a cause for celebration not worry. All actual and potential voters have something meaningful to contribute to the conversation. Policy set by even “low-information” voters trumps policy set by low-information elected officials. And massive voter participation is the surest way to inform our elected representatives.
We will soon know whether something is out of the ordinary with the new voting arrangement. Voting irregularities don’t stay hidden for long. But I have little doubt that the system will work as intended. And with doom and gloom all around us, let’s find good news and confidence wherever we can. Nevadans are voting, and we have an election system and election officials we can be proud of.
Daniel H. Stewart is a partner with Hutchison & Steffen, where he leads the firm’s Election, Campaign and Political Law practice. He has practiced law in both the public and private sectors, representing elected officials, candidates, campaigns, social welfare organizations, and other political and policy-focused clients.