Federal, state election officials stymie rural Lander County commissioners' proposed 2020 election audit
State election officials and the Department of Justice intervened last week to thwart an attempt by Lander County commissioners to audit the county’s electronic voting machines, which hold physical voting records from the 2020 general election. The county’s election official is required under federal law to retain and preserve those records for 22 months after the election.
At the same time, county commissioners are also considering converting to entirely paper elections — largely viewed as more time-consuming and error-prone — by restricting use of all electronic machines in the election process.
In August — more than nine months after the 2020 general election — Lander County Manager Bert Ramos requested to the county clerk (at the direction of the county commission) that all of the county’s 26 electronic voting machines be transferred from the clerk’s office into the custody of the county manager’s office.
In an interview with The Nevada Independent, Lander County Clerk Sadie Sullivan confirmed that the commissioners intended to conduct a post-election audit of the machines in order to determine whether they had been tampered with or if they had been connected to the internet (the machines run on a closed system and are certified by the federal government to not rely on internet connectivity). Sullivan also said the county hired a legal team to examine the machines.
The county manager did not reply to multiple messages asking for comment from The Nevada Independent, and four of the five county commissioners did not reply to emails seeking comment.
The proposed audit and move to all-paper elections were enough to draw the attention of state and federal election officials — especially amid rampant and unfounded accusations that the 2020 election was neither valid nor secure. Earlier this year, Republican state senators in Arizona ordered an audit of the election results in Arizona’s largest county, a decision applauded by the Nevada Republican Party. The private company conducting the audit has yet to release the results.
Following the request, the Department of Justice and Secretary of State Barbara Cegavske each sent letters to Sullivan, who oversees the county’s elections, outlining the federal constraints on post-election audits and stating that the machines should not be transferred. A spokesman for Attorney General Aaron Ford said the office is "closely monitoring the situation unfolding in Lander County."
“As the voting records currently reside in the voting machines, and the election was not contested, those voting machines are not to be transferred to any other organization or entity in any situation, except as provided by law,” Cegavske wrote.
The Department of Justice letter also warns that transferring the ballots to someone other than an election official could pose a security risk.
“Where elections records are no longer under the control of elections officials, this can lead to a significant risk of the records being lost, stolen, altered, compromised, or destroyed,” the guidance from the department states. “This risk is exacerbated if the election records are given to private actors who have neither experience nor expertise in handling such records.”
The guidance notes that “in a number of jurisdictions around the United States, an unusual second round of examinations have been conducted or proposed,” such as the post-election audit occurring in Arizona.
Cegavske has continually said that her office has seen no evidence of “wide-spread fraud” in Nevada’s 2020 election, including after reviewing the Nevada Republican Party’s alleged evidence of massive voter fraud in the 2020 election.
Sullivan said that she’s heard discussions of other Nevada counties looking to follow Lander County’s lead.
“That's kind of where all the clerks are holding their breath and hoping that they don't have to go through what we've been going through,” Sullivan said. “We've all just wanted it to be done, you know, legally.”
The Department of Justice letter sent on Aug. 25 to Sullivan, all five county commissioners and Cegavske contains a set of guidelines on how federal laws constrain post-election audits. The guidance outlines how the Civil Rights Act of 1960 requires state and local election officials, such as Sullivan, to retain and preserve all voting records for 22 months after any general, special or primary election. That requirement raises issues when records are transferred to other officials not responsible for elections even within the same county, such as a county manager.
“The Department interprets the Civil Rights Act to require that covered elections records ‘be retained either physically by election officials themselves, or under their direct administrative supervision,’” the guidance states.
The guidance also states that “there are federal criminal penalties attached to willful failures to comply with the retention and preservation requirements of the Civil Rights Act.”
In his request to transfer the machines, Ramos, the county manager, cited a Nevada statute that states that a board of county commissioners has the ability to take custody of mechanical voting systems or mechanical recording devices when they are not in use for an election.
But at an Aug. 26 meeting of the county commissioners, Ramos said that more work was needed to figure out who should possess the voting machines.
“If there is another NRS, and there is something that disputes this, we need to continue up this chain until we find the proper custody,” Ramos said. “I don't want there to be this outside perception of us marching in, and we're gonna take this.”
Lander County District Attorney Theodore Herrera also said during the meeting that the commissioners and county manager did not try to “seize” any voting machines.
Cegavske’s letter points to a different Nevada statute that states ballots are only to be inspected in the case of a contested election, and there are currently no 2020 elections involving Lander County votes being contested. Contested elections are formal legal proceedings that require formal grounds for contest, such as evidence of illegal votes or malfeasance by the election board. Suspicions of fraud are not proper grounds for a contest.
Lander County, which includes Battle Mountain, is located in central Nevada and is home to fewer than 6,000 people. In the 2020 election, nearly 80 percent (2,198 votes) of the 2,765 votes cast in the presidential race were for Donald Trump, and all five of the county’s commissioners are Republican.
Earlier this year, the county hosted a “patriotic social gathering,” featuring Joey Gilbert — a Reno attorney and a Republican candidate for governor, who has said he believes Donald Trump won the 2020 presidential election and who attended the Jan. 6 rally at the Capitol. The commissioners and several attendees also discussed Gilbert at length during the Aug. 26 meeting, after the county manager confirmed the county has a $50,000 contract with Gilbert and two other lawyers. However, Ramos during the meeting repeatedly declined to comment on the purpose of the contract, saying the county has attorney-client privilege.
Sullivan said she is unaware whether the legal team with Gilbert is the same one the county hired in connection with the proposed audit of the election machines.
During their Aug. 26 meeting, the Lander County commissioners considered converting the county’s elections from electronic voting machines to running entirely on paper, but the item was tabled when the county’s clerk, who oversees the local elections, said that the change would violate the Americans with Disabilities Act (ADA).
“They have to provide electronic device[s] for them to be able to vote, period. There [are] no ifs, ands or buts. We have to follow those federal laws,” Sullivan said during the meeting.
The ADA states that jurisdictions conducting elections for federal offices, such as president, must provide voting systems that are accessible to citizens with disabilities at each polling location and that states can satisfy this requirement through use of a “direct recording electronic voting system or other voting system equipped for individuals with disabilities.”
Though the item to discuss the move away from electronic systems identified the change as one strictly from electronic voting machines to paper ballots, Sullivan said during the meeting that the conversion would involve the removal of all electronic devices from the election process.
“They would like it to also not just be paper ballot voting, we would be … counting, hand counting it,” Sullivan said. “It wouldn't be going through any mechanical device.”
Lander County — and all other Nevada jurisdictions, except Carson City — use Dominion Voting Systems, which are certified by the federal government to not rely on internet connectivity and use paper records. The mechanical systems record votes on paper inside of the machines to ensure there is a paper trail after elections in case an audit is needed, and the voting records are also contained on a hard drive within the machine. If Lander County transitions to all paper elections, votes would no longer be recorded or counted by such mechanical devices.
Sullivan raised questions about how the process of tallying votes by hand would unfold.
“How in the world … are we going to do the 1, 2, 3, 4, 5, slash, 1, 2, 3, 4, 5, slash, like, that's not going to work,” Sullivan told The Nevada Independent. “So, what type of process or procedures … would be beneficial or, you know that there's not a human error?”
The secretary of state’s website describes a “voting system” as the equipment used to create ballots, cast and count votes and display election results. That system includes the machines Ramos requested to transfer into the custody of his office.
“Nevada's voting system is a ‘standalone system’ that is not connected to a network, the Internet, and [does] not have wireless connection capabilities,” the site states. “Before any component can be used in Nevada's voting system, it must first go through a series of tests and audits. Additionally, each component maintains a chain of custody with tamper evident security seals and access limited to authorized personnel.”
Registered voters in Nevada have the right to “a uniform, statewide standard for counting and recounting all votes accurately,” according to Article 2 Section 1A of the Nevada Constitution.
Sullivan also said that the secretary of state’s office requested an item a week before the meeting to discuss voter outreach with the county commissioners. She noted that the intent of the secretary of state’s outreach campaign is to ensure elected officials across the state are provided with “clear, factual and non-partisan information” about the state’s election systems.
“We need to educate everyone on what needs to be followed legally,” Sullivan said at the meeting. “Once educated, then there's a process that … you could put this on the ballot and let the voters vote to see if they want to do all paper.”
The commissioners agreed to table the item as soon as it came up for discussion during the meeting, but Commissioner Patsy Waits wrote in an email that she expects the item to be on the agenda again at a future meeting.
The commissioners next meet on Sept. 9, and Sullivan said it's her understanding that the topic of paper ballots will come up at that meeting.