Hearing on Gilbert claim that ‘illegal formula’ skewed election scheduled for mid-August
Almost two weeks after Republican gubernatorial candidate and Reno-area attorney Joey Gilbert filed a formal challenge to his primary loss against Clark County Sheriff Joe Lombardo, a Carson City judge has tentatively set a trial date for Aug. 12.
The delay — triggered in large part by the need to depose multiple expert witnesses and by conflicts with the existing court schedule — could mean that any decision (or appeal of the case to the state Supreme Court) may not see a final result until late next month.
Several procedural tele-hearings conducted so far have also allowed a number of original defendants named in the suit to exit the case, as state law dictates that legal parties in election contests can only be the winner and the loser of a given election.
That change has allowed Gov. Steve Sisolak and Secretary of State Barbara Cegavske, as well as county commissions and county clerks in Washoe and Clark counties — all named as parties in Gilbert’s initial filing — to be dropped from the suit.
Broadly speaking, the election contest lawsuit claims that an “illegal formula” was used to tabulate votes, and that the distribution of reported 2022 primary election results from mail, early and Election Day voters do not line up with expected results in a “fair election.”
Those claims center largely on a 40-page analysis from Edward Solomon, identified by the suit as an “expert mathematician” who has alleged since the 2020 election that “algorithms” have been responsible for switching votes.
An analysis of Solomon’s claims about the 2020 presidential election in Georgia were eventually debunked by a hand-count of paper ballots, which confirmed the result. According to details released as part of a libel suit filed by Dominion Voting Systems against right-wing broadcaster One America News and later reporting by Vice, Solomon also never received a college degree and served two years in prison on a drug charge.
Attorneys for Lombardo have sought to depose Solomon, but Gilbert attorney Craig Mueller has so far fought to keep Solomon off the witness stand. That comes in part — according to a memo filed Tuesday — because Solomon does not technically qualify as an expert under Nevada law. Mueller has separately argued that his credentials are irrelevant, however, because several other expert witnesses, also named in the suit, have affirmed the accuracy of his math.
Lombardo’s attorney, Colby Williams, argued instead that the additional named experts are not doing their own independent analysis, but act instead as an attempt to “rubber stamp” Solomon’s original work. In a hearing brief, Lombardo’s legal team argued that Solomon’s report constituted hearsay and asked the judge to exclude the report and the expert testimony if Solomon does not testify.
A third tele-hearing conducted Thursday did not immediately resolve the issue of a potential Solomon deposition, pending the interviews this week of the other mathematics experts named by Gilbert’s complaint.
In Nevada, elections are determined by the tabulation of total votes, not on expected results according to formulas or algorithms, and the suit does not make claims about the votes themselves, differing from 2020 election challenges that centered on the eligibility of certain voters or the presence of alleged “illegal votes.” An analysis by the secretary of state’s office later found “no evidentiary support” for claims of widespread fraud in Nevada.
Dan Lee, an associate professor of political science at UNLV, said in an interview that the arguments presented by Gilbert’s suit and others like it present a sort of catch-22. Not only does the repeated filing of fraudulent or unsupported claims in court legitimize the issue in the eyes of their supporters, but any defense of the election system plays into existing confirmation biases among conservative voters already predisposed to distrust the system.
“There's some research in political science that shows this,” Lee said. “If election officials really try to push hard to defend election security and election integrity, that can lead some people to trust them even less.”
More than that, Lee said he saw little merit and lots of “weird things” in the analysis presented in the suit.
“I see a convoluted document that makes a lot of claims and a lot of assumptions, rather than deducing any actual evidence of fraud,” he said.
Though Gilbert lost his race to Lombardo by more than 26,000 votes (a number confirmed by a statewide recount), he has refused to concede the race. The recount and the legal challenge to the result have been funded by cryptocurrency millionaire and conservative activist Robert Beadles, who wrote on his website just before the filing became public that Gilbert “rightfully won the primary with 100% certainty.”
Another wrinkle: The timing of the case could prove increasingly problematic, as necessities of the legal process — especially the scheduling of hearings and depositions — butt up against the realities of electoral logistics.
Though precise dates vary from county to county, more than 1 million ballots being sent across Nevada will need to begin printing by mid-August to meet deadlines for the Nov. 8 general election.
State law requires that mail ballots for out-of-state and military voters must be sent no later than 45 days before the election (Sept. 23), while mail ballots for in-state residents must be sent no later than 20 days before the election (Oct. 19). County election officials must also prepare and print sample ballots, which internal policy from the secretary of state’s office recommends be distributed by Oct. 7.
Nevada Republicans have continued to chafe against the implications of Gilbert’s suit, as his challenge presents an intra-party wedge. Earlier this month, just before Gilbert filed suit, state GOP Chair Michael McDonald told KSNV News 3 in Las Vegas that “It's within his right to do what he's doing, but I hope to God he does come back and get on board.”
On Monday, fellow one-time gubernatorial hopeful and former Sen. Dean Heller echoed the sentiment in a statement sent out by the Lombardo campaign, saying that lawsuits like Gilbert’s are “almost always counterproductive and can do serious damage to the reputation of the Republican Party.”
Heller finished third in the Republican gubernatorial primary, behind Lombardo and Gilbert.
Update: 7/28/22 at 3:34 p.m. - This story was updated to include new details on the scheduling of the case and the issue of a potential deposition of Edward Solomon following an additional pre-trial hearing conducted on Thursday afternoon.
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