As the secretary of state’s office updates and adopts new regulations governing the state’s upcoming presidential primary elections, Nevada Republicans are once again using the regulatory process as a venue for airing concerns with the state’s election laws.

Regulations adopted during hearings spanning Monday-Wednesday cover technical details of election administration, allowing for the implementation of state election laws approved in the last legislative session and establishing timelines for certain pre- and post-election procedures. 

Any regulations adopted by the secretary of state’s office must also be approved by the Legislative Commission later this month before taking effect.

Deputy Secretary of State for Elections Mark Wlaschin, who led the hearings and a trio of regulation workshops last month, said during the Monday meeting that the regulations help provide “additional clarity, not only for election officials across the state, but also for members of the public about how elections are conducted.”

He also responded to claims that Nevada’s elections system was unsafe or plagued by fraud in recent elections, saying that although the secretary of state’s office has found isolated cases of fraud — such as one man voting twice in the 2020 election — ”there was no widespread voter fraud during the 2020 or 2022 election cycles.”

The regulations approved Monday also include a measure governing the process of hand counting ballots — codifying a similar regulation temporarily approved last year amid plans to hand count votes in some rural counties. 

Ahead of the 2022 midterms, Nevada Republicans led a charge against similar, largely technical regulations that they described as an “election law power grab.”

In a “call to action” sent to members Sunday, the Clark County Republican Party pilloried several of the proposed regulations, criticizing Democrats for not hearing Republican Gov. Joe Lombardo’s election bill during the legislative session, while claiming they are now “trying to change our election again.” The Nevada GOP similarly called upon members to submit testimony “directly against bad election regulations.”

In the Monday meeting, members of the public calling in to testify primarily attacked the state’s mail ballot laws and a law requiring the state to hold a presidential preference primary for each major party, despite Wlaschin’s reminders that regulations cannot change state law. Nevada Republicans are suing the state over the planned presidential primary and plan to hold a caucus to allocate delegates.

The secretary of state’s routine process of adopting regulations occurs prior to each election. In this case, the regulations relate to the presidential preference primaries set to be held for each major party on Feb. 6, 2024.

Read below for more information about the new elections regulations adopted by the secretary of state’s office.

MONDAY REGULATIONS

• Regulation: R008-23; applies certain general and primary election regulations to the presidential preference primary
• What it does: This regulation enumerates the way counties receive reimbursement for ballot stock for the presidential preference primary, matching how they are reimbursed by the state for ballot stock in other elections. It also applies timelines for submitting certain plans for election contingencies, as well as accuracy and security testing, matching the timelines in place for other elections.

The Nevada GOP described the first portion of this regulation as “forcing each county to waste local taxpayer funds on printing unsolicited mass mail ballots for a meaningless primary that has no bearing on who is elected president.” 

The state Republican Party plans to hold a presidential caucus on Feb. 8 — two days after the primary — to award its delegates, and has sought to block the state from holding the primary through a lawsuit rejected by a Carson City District Court judge and appealed to the state Supreme Court.

Republican National Committeeman Jim DeGraffenreid expanded on the party’s argument against the regulation Monday, calling the primary “meaningless and optional for the parties.”

Though the presidential primary is not binding on how a party awards its delegates, state law stipulates that a presidential preference primary election “must be held” for major political parties, unless there is only one or no qualified candidate for that party. 

State law also requires county clerks to send registered voters a mail ballot prior to every election — including presidential primaries.

Separately, Wlaschin said the secretary of state’s office would not provide information about the party-run caucus to voters, and would instead direct them to reach out to county and state party leadership for information.

“The voter education and outreach efforts that the office of the secretary of state will undertake are in no way related to informing or educating voters about private party businesses and processes,” he said.

• Regulation: R009-23P; enumerates specifics of presidential preference primary process
• What it does: This regulation stipulates that sample ballots for the presidential primary only be sent to voters registered as members of a major political party, aligning with state law that limits participation in the primaries to those registered with a major party. In accordance with a state law passed this year, it also allows tribal members who reside on a reservation to use the state’s Effective Absentee System for Elections (EASE), an online system that allows overseas and military voters to cast their ballot. The regulation also establishes windows for a presidential primary candidate to withdraw their candidacy or have their candidacy challenged by a voter.

• Regulation: R010-23P; sets timing for major parties to submit presidential candidates for general election
• What it does: This regulation requires each major political party (Democratic and Republican) to provide the secretary of state with the names of their candidates for president and vice president by 5 p.m. on the first business day of September of the presidential election year.

• Regulation: R200-22P; sets out requirements for hand counting ballots
• What it does: This regulation, which largely aligns with a similar regulation passed temporarily last year, defines hand counting, lays out requirements for conducting a hand count and requires local governments conducting a hand count to submit plans for the count 90 days prior to the election.

The adopted definition of a hand count describes it as the “process of determining the results of an election where the primary method of counting the votes cast for each candidate or ballot question does not involve the use of a mechanical voting system.” That means a count that relies primarily on mechanical tabulation will not be considered a hand count, even if election officials also decide to hand count all ballots, as Nye County election workers did during the general election last year.

For local governments that rely on a hand count to determine their election results, the regulation sets forth strict requirements for conducting that count, including submitting plans 90 days before the election that cover the procedures, location, equipment, personnel, security and contingency plans to meet election deadlines.

The Nevada GOP in its “call to action” about the regulatory hearings described this regulation as a “blatent (sic) targeting of counties that prefer to count ballots by hand rather than machines.”

Some voter advocacy groups, meanwhile, asked for stronger restrictions and highlighted the dangers associated with hand counting, including a higher error rate and greater labor resources required for a hand count.

“It permits counties to bypass these very regulations, as it was done previously by merely engaging in a parallel process of counting the ballots. It does not ensure secure handling and accurate reading of ballots. It does not provide any remedies if there was a failure to comply with the regulations. And I think there are many more concerns to note,” said Sadmira Ramic, an attorney with the American Civil Liberties Union of Nevada.

Wlaschin noted that, to date, “no Nevada county intends to do this without a mechanical tabulation to ensure accurate results.”

Read the full set of regulations adopted Monday here.

TUESDAY REGULATIONS

• Regulation: R011-23P; updates certain election term definitions, increases data reporting and security requirements
• What it does: The longest of any regulation covered across the Monday-Wednesday hearings, this regulation covers a wide range of election procedures, including requirements for risk-limiting audits, for local election officials to report various voting data (the number of mail ballots surrendered and cast at each ballot drop box and polling location, as well as same-day voter registration numbers) and for special election and recall plans to include plans for ballot security. The regulation clarifies requirements for mail ballot counting boards to account for all returned ballots, and requires local election officials to allow public observation of the handling of mail ballots as long as observers do not compromise the security of the ballots.
• The regulation also updates definitions for “vote center” and “polling place,” eliminates obsolete regulations related to “absentee” ballots (which have been replaced by universal mail voting) and updates certain language to align with the state’s planned shift from a bottom-up voter registration system to a top-down system.

• Regulation: R012-23P; modernizes election definitions, adds specifics to audit process
• What it does: This regulation extends the ballot duplication process to ballots received through the EASE, an online system for overseas and military voters. It also increases requirements for clerks to document election equipment information, such as serial numbers, and updates definitions for terms such as “results cartridge” and “election computer program” to reflect modern technology. It also requires certain post-election audits of mechanical voting systems be completed within 30 days after each election.

• Regulation: R015-23P; eliminates obsolete regulations
• What it does: This regulation repeals certain old regulations related to voting by absentee ballot. This stems from Nevada’s adoption of universal mail voting, a practice that has subsumed the absentee voting process and that involves sending a mail ballot to every active registered voter during each election. The bill that made that change, AB321 from 2021, also repealed parts of state law dealing with absentee ballots.

Read the full set of regulations adopted Tuesday here.

WEDNESDAY REGULATIONS

• Regulation: R013-23P; provides clarity for voting through EASE
• What it does: This regulation provides that instructions for using the EASE voting system include an explanation that voters must sign a declaration that they will return the military-overseas ballot either by approved electronic transmission or by mail. The regulation also provides that if a voter inadvertently submits more than one ballot through EASE, only the first ballot may be counted.

Wlaschin said there have been cases of voters attempting to vote twice through EASE and that the regulation does not change state law that makes voting more than once illegal, but he noted that some voters using EASE may deal with internet or computer difficulties and are unable to determine whether their first ballot was properly submitted.

• Regulation: R014-23P; enumerates wide range of election administration updates
• What it does: This regulation covers a wide range of administrative updates, including ensuring someone is not prohibited from being a major party candidate if their party affiliation was changed unintentionally through automatic voter registration, as well as allowing a person to file a declaration of candidacy virtually using a remote technology system, such as Zoom. It also outlines reasons a county clerk may reject a signature on a petition, such as a person not being registered to vote on the day they signed, and the regulation provides that an electronic summary of the votes cast in an election (also known as a cast vote record) is a public record.
• The regulation also outlines how a surrendered mail ballot should be marked “canceled,” establishes requirements for observing a recount that match the requirements for other election observation and authorizes local election officials to keep their offices open on weekends and outside normal hours for the signature verification process.

Wlaschin said secretary of state’s office staff have had “a lengthy discussion” with voters and county officials about the signature curing process, noting that in 2022, nearly 18,000 ballots needed a signature cure — which can occur when a voter’s signature does not match their signature on file, and can be resolved by a voter confirming they filled out and returned that ballot — and nearly 6,000 were left uncured.

Alongside the potential for expanded hours for signature curing, Wlaschin emphasized the importance of voters having an email address or phone number on file, which helps county officials more easily reach a voter for signature curing.
Read the full set of regulations adopted Wednesday here.

Update: Sept. 12, 2023 at 12:15 p.m. — This article was updated to include information about regulations adopted Tuesday.

Update: Sept. 13, 2023 at 4:15 p.m. — This article was updated to include information about regulations adopted Wednesday.