Indy Q&A: Deputy Secretary of State Wayne Thorley on what Nevada’s controversial elections bill does and doesn’t do
A bill passed by Nevada lawmakers during a special session that calls for mail-in ballots to be sent to all active registered voters when an election comes in the wake of a statewide emergency or disaster declaration has stirred a flurry of reaction, all the way up to President Donald Trump.
The bill AB4, which passed on party lines with Republicans opposed and was signed into law this week by Democratic Gov. Steve Sisolak, will affect the forthcoming general election in which the presidential race is on the ballot. It comes on the heels of a mostly mail primary election in June that saw 30 percent turnout — high for a primary — and more than 98 percent of voters using the mail-in option.
- Calls for at least 35 in-person early voting sites, and at least 100 vote centers on Election Day in Clark County
- Calls for at least 15 in-person early voting sites, and at least 25 vote centers on Election Day in Washoe County
- Calls for at least one in-person early voting site, and at least one vote center on Election Day in other counties, and
- Calls for ballots to be mailed to the approximately 1.6 million active registered Nevada voters, but not the approximately 300,000 additional registered voters who are considered “inactive”
The number of in-person vote centers in Clark County on Election Day in 2018 was about 175, and Clark County Registrar of Voters Joe Gloria expects the county will have 159 sites this November, well above the bill’s threshold. Washoe County had about 85 in-person polling places on Election Day 2018.
The bill also authorizes more people to return ballots on behalf of other people with their permission — a practice sometimes known as “ballot harvesting” that has raised concerns about pressure or fraud and was opposed by Secretary of State Barbara Cegavske, a Republican. Certain provisions — but not the ballot harvesting issue — were cited in a Republican-backed lawsuit filed Tuesday.
To answer questions about what the bill will change about the forthcoming election, Deputy Secretary of State for Elections Wayne Thorley sat down with the IndyMatters podcast on Tuesday.
This interview has been lightly edited for length and clarity. For more, subscribe to our podcast and check out the next episode.
Q: What does this bill change about ballot collection or ballot harvesting?
A: Any voter can authorize any other person to return their ballot on their behalf. It doesn't have to be a designated family member. It can be someone else that lives with them. Could be a care worker, it could even be a political party operative, a neighbor, anybody that they authorize.
There's also provision in the bill that allows voters with disabilities, voters who are 65 years or older, or voters who cannot read and write to ask someone to assist them in marking and signing their ballot. If you do that, then you have to note on the ballot return envelope that you assisted somebody and then you also have to submit a written statement to the county letting them know that you assisted that voter too. But that's only on if you assist the voter with marking or signing their ballot.
If all you do is assist the voter in returning their ballot, you don't you don't have to register or note that anywhere.
Q: Do you have to fall into a special category of being a vulnerable person to have someone else turn in the ballot on your behalf? Can I have my friend turn in my ballot?
A: You could as long as you authorize [your friend] to do that.
Q: And there is a penalty in the law if my friend doesn't return my ballot for me?
A: If you give your ballot to someone else to return on your behalf, and it is more than three days before the election, that person has no more than three days to return the ballot for you. If you give it to someone to return on your behalf, and within three days of the deadline, the Election Day deadline to turn it ballots and they just have to turn it in before the deadline. If they fail to turn it in within that time frame, then there is a criminal penalty.
Q: The concern is people going maybe into nursing homes or just any sort of group setting, collecting everybody's ballots and maybe changing the vote for them or potentially discarding the ballots. Are there any safeguards that you guys will be taking to prevent that kind of activity?
A: So we're concerned about this. The secretary of state was opposed to this bill and this provision specifically in the bill. We think it's a step too far. If there were concerns about access to voting with the old restrictions, we were certainly happy to have a discussion about expanding the list of people eligible to return a ballot on behalf of the voter. But the blanket removing of that prohibition and allowing anybody to return a ballot on behalf of the voters is concerning to us.
We think that it will increase voter intimidation. Some voters don't want to vote and that's their right. They may want to vote and return their ballot themselves. We think we'll see instances of people just going door to door and chasing ballots. That's what we've seen in other states. And there's even avenues for nefarious activity like we saw in North Carolina in 2018 where a (GOP) political operative was harvesting ballots and in some cases opening those ballots changing the votes that the voter had voted. So it's a concern, something we're going to keep an eye out for.
Q: Are you going to send out any messaging to voters and say ‘you really should be returning your ballot on your own’ or doing something to that effect?
A: I'm not sure at this point exactly what our messaging will look like. But we'll certainly do some voter education. I think an important component of that is encouraging all voters if they're able to return their ballot themselves.
We do something similar with voter registration. So on the paper voter registration forms that we have, there's a state law that requires us to put a little warning on the form. And the warning says, ‘You are highly encouraged to return your voter registration application yourself and not leave it in the hands of a third party to be returned for you.’
And then it says if you give it to somebody else, and they don't turn it in, then you will not be registered to vote. So we already have that warning on our voter registration applications, encouraging voters to not leave those with other people.
Q: Who are you sending the ballots out to? Is it just everyone that is registered to vote in Nevada?
A: So for the general election, under the provisions of AB4, we will only be sending ballots to active registered voters.
The term active registered voters is somewhat of a misnomer, because your designation as an active voter has nothing to do with how frequently you participate in elections. It has everything to do with whether you have a verifiable and verified address on file with us.
So if we've sent you a mailer, and that mailer has been returned as undeliverable, that's when we start the inactivation process. But as long as your address is verified, even if you don't vote for 10 years, you'll still remain an active registered voter. I know it's confusing but it doesn't mean that you're a frequent voter. It just means that we have a confirmed address for you. So that's who we'll be sending the ballots to.
For the general election, we will not be sending ballots to inactive registered voters. And, again, inactive doesn't mean you haven't voted recently. It simply means that we sent you a piece of election mail and that was returned as undeliverable. So we have a high level of confidence that you don't live there anymore.
Q: There was a really controversial decision in the June primary to send mail-in ballots to inactive voters in Clark County. This legislation just says active voters, but could Clark County or any other county really expand upon that and start sending them to inactive voters?
A: The law says that it gets sent to only active registered voters. I highly doubt any county would send it to inactive registered voters.
We did not support that for the primary election, and simply because it was a waste of money. We've already sent something to inactive voters. That's why they're inactive. Something we've sent them has already gotten returned. So why would we send them a ballot?
Ballots are required to be sent via non-forwardable mail. So it can't be forwarded to their new address by the post office. So I'm glad the Legislature recognized that we should only be sent to active registered voters.
Inactive registered voters, if they want to participate in the election and they can, they can update their address and get a ballot in the mail or they can go to one of the in-person polling places and update their address and vote there.
Q: Were there changes made for the general election to address problems we saw in the primary? Perhaps more in-person voting locations to address long lines?
A: Yeah, a lot more in person polling locations. That's something I want to talk about because I think there's been a lot of confusion about that.
The long lines in Clark County, and to some extent Washoe County on Election Day in June, were cited by both sides in the AB4 discussion about either why AB4 was needed, or why we should oppose AB4.
The lines really had nothing to do with voting by mail, and we were never, ever, ever planning on having that few polling locations for the general election. We were never, ever going to do that. That was a one-time kind of emergency thing while we were on quarantine.
There was no chance of getting poll workers to staff a normal amount of polling locations. Most of our partners that we work with in the community, whether it's our private sector partners or public sector partners to host us for polling locations, they could not guarantee that it'd be available.
We have a lot more certainty now. Obviously, the pandemic is still going on. But there's a lot more certainty now about availability of locations and poll workers. So the long lines, this bill was not needed to address that. We were going to take care of that ourselves.
And it was mostly a throughput problem. So if you look at the number of voters that voted in person in Clark County, and assume that they were roughly equally spread out amongst the three locations, it was not a number of voters that would overwhelm a polling place on a normal Election Day.
It was the process that really really slowed it down. And that process was the reissuing of ballots. So we didn't use the touchscreen voting machines. You vote much quicker on a touchscreen voting machine than you do on a hand-marked paper ballot. The Clark County ballot was extremely long with all the judges on the ballot.
But the biggest bottleneck was the canceling. So everyone was sent a ballot. So every voter that showed up, unless they were there for same day registration, but most voters that were there were not there for same day registration, they had already been issued a ballot — we had to cancel their ballot out in the system.
We had to print them a new ballot on what's called a ballot-on-demand printer. That's a specialty printer that prints off ballots, and then we had to reissue it in the system. And all that took time, much more time than it normally does to check in a voter and have them vote. So it was entirely a throughput problem, and not a too-many-voters-in-one-polling-location problem.
I get it. It was not an ideal situation, totally unacceptable, and we won't see that situation for the general election.
Q: Do you anticipate that it's going to be difficult with this many polling places? Potentially, if people have already voted by mail and maybe forgot they did, or maybe intentionally come to the polling place, and you have to check whether they have signed in before or if their ballot has been received?
A: So we always do that. Whenever a voter presents at the polling place to vote, we always look them up in the system to make sure that they are eligible to vote. And part of that eligibility check is to make sure they haven't already participated in the election.
It happens from time to time, usually with elderly voters, where they'll vote by mail ballot or an absentee ballot. And then someone in their family will go, ‘Hey, grandma … we're going to go out, vote together as a family’ and take them to the polling place, and they'll check in and we'll see that you've already voted.
So we've got procedures and checks in place to look for that. It's possible that might happen more this election because every voter will be sent a mail ballot. But I'm not concerned about that overwhelming us. We've got like systems in place to check for that
Q: The Secretary of State did say during the Assembly's hearing on this bill that there were no instances of fraud that had been reported to your office. But we've also reported about the thousands of signatures that were mismatched, some that were cured. But there were close to 7,000 ballots returned in which the voter never followed up to cure their signature, and I guess that goes down as a mismatch in the ballot is not counted. Do you suspect there's a lot of fraud in there?
A: I don't know. You're right, ultimately that ballot's not counted. But whether the voter just ignored our cure letter, or didn't know how to follow through with the cure process, or if it actually was an instance of someone attempting to fraudulently cast a ballot, I don't know.
In the signature cure process, the letter that we send you, and whether you're curing by the analog paper version or you're using our online signature cure program, there is an option for you to say 'No, I did not vote this ballot.’
And, to my knowledge, nobody submitted a cure that way. But the ones that were just left unresponded to — I can't speculate as to whether those were fraudulent or just voters not following through.
Q: So if someone takes the ballots out of the mail and votes for people, you guys would have that option to let the voter report that through the signature cure process?
A: Yeah. The risk of somebody finding a discarded ballot or obtaining a ballot that wasn't theirs, and then voting it, is relatively low. I know it concerns a lot of people when they hear stories about just discarded ballots on the ground, but that in and of itself is not evidence of fraud.
The person would have to mark that ballot and then sign it and return it and their signature would have to match the voter signature in order for it to be counted. If it didn't match, then we go through the cure process. So there are safeguards in place to protect against that, to make sure that voters aren't obtaining a ballot that's not theirs, and then voting it.
Q: Sen. James Settelmeyer asked on the Senate floor how we can know there’s not fraud if there’s a part-time investigator on the task, and the state can call in a few more people, but they are working on other projects. There isn’t a large group working to proactively ferret out fraud. What is your response to that?
A: I think both sides have it wrong here. We have seen no evidence at all to support the thesis that there is widespread, coordinated massive fraud in the election system. It's also inaccurate to say that there is zero or no fraud in the election system. It happens. It happens on a small scale, and it is almost always the result of either mistakes or a person acting by themselves. It's not a coordinated effort or conspiracy to commit fraud.
Certainly, we would appreciate more resources from the Legislature to be more proactive in looking at some of the allegations that come in. We rely heavily on the public reporting to us things that they find that are suspicious. A lot of those things that are reported to us either aren't violations or they don't kind of pan out, but sometimes they do. And so I wouldn't say no to more resources.
Q: When the secretary of state said that there were no reported instances of fraud in the June primary, are we talking about there was no reports coming in whatsoever, or there's nothing that you guys have proven or been able to substantiate?
A: Nothing proven. There's always allegations out there of fraud, but ... I've seen no evidence to support that there was some fraud in the primary election.
Q: The cost of this came up a couple times. We're going to be mailing people ballots, but maybe we have fewer in-person locations. How does it all pencil out? Is this election going to be more expensive than it would be if it was conducted in a more traditional manner?
A: It will be more expensive. The cost was one of the main reasons a secretary of state was opposed to the bill.
A good example is the primary election. So we printed and mailed out a little bit over 1.8 million ballots, about 480,000 of those were returned. So well over a million ballots were printed and not used. And I'm not saying that indicates that there was some sort of fraud — just those voters just chose not to vote, which is fine. But it was also an expense, sending all those to voters who ultimately chose not to vote for the general election.
The secretary's plan was: if you want to vote by mail, simply request a ballot, we can make sure we were sending a ballot to somebody who had already indicated, I want to vote by mail, so that we weren't wasting resources on that.
Q: Are we saving any money, though, by having fewer in-person locations?
A: We will end up with fewer in-person polling locations than you would see in a normal non-pandemic election. How much fewer? It won't be a massive amount, a huge decrease, but it'll be a little bit fewer. So there will be some cost savings there but not much.
One of the one of the concerns with this bill is it requires us to basically be ready to roll out two types of voting at any time — an in-person voting and mailing everybody a ballot. That's expensive. And we have to have equipment to do that.
Most of the equipment we have is geared towards heavy in-person voting, and not a lot of the back-end scanning and tabulation equipment that you use for voting by mail. We of course, leased a lot of that equipment for the primary election, but we released it and returned it. So we're gonna have to get it back.
So there's a cost to basically maintaining two separate voting systems ... and to have it ready anytime there's a declared state of emergency for any reason, by a certain date, that triggers the provisions of this bill.
Q: One of the concerns has been the Postal Service and are they equipped to handle a transition to a mail-in election? Did you hear any complaints from the Postal Service or real issues and delays related to the mail?
A: No, the Postal Service was a great partner for the primary election. We had lots of conversations with the post office in the lead up to the primary election from national representatives back in D.C. to our local election mail coordinators and our local mail carriers. They were a great partner and we anticipate continuing that relationship with them.
Q: There's been some statements out there that say you can vote three days after the election, or that you can vote seven days after the election. Can you bring us clarity on that?
A: You cannot do that. So, if you want to vote by mail — and when I say vote by mail, I mean, just vote your paper ballot, not necessarily turn it by mail — you've got two options. You can drop it off in person at one of the drop boxes by the close of polls, or you have to get it postmarked by Election Day.
Even though we're allowed to receive ballots up to seven days afterwards, all those ballots will have been voted before the close of polls on Election Day. So it's not a case where you could wait and see like the preliminary election results that we published and see like, ‘Oh, this candidate's ahead or this candidate's losing,’ and then adjust your voting accordingly. You can't do that.
And that's important. We don't want that to happen. It's the reason why we don't release election results until the last person's voted. We do not want to influence somebody's vote in any way.