Lawmakers split on regulations enshrining switch to mostly mail election
Lawmakers on the Legislative Commission approved most, but not all, of more than two dozen largely technical election regulations Monday that had drawn staunch opposition from state Republicans.
During the meeting, Deputy Secretary of State for Elections Mark Wlaschin told the commission that the regulations — including what some may consider controversial changes amid the election integrity policy climate — were clarifying laws that already existed, including some major changes passed last year. Approval came ahead of a Feb. 28 deadline for those regulatory changes to be in place for the 2022 primaries in June.
The commission, a panel of legislators charged with giving final approval to proposed regulations from state agencies, is composed of six Republican and six Democratic lawmakers, which allows for partisan disagreements to sink certain regulations — such as the college student vaccine mandate, which failed to pass in December.
A majority of the election regulations — 18 of 30 — were approved without further discussion, and another four were approved unanimously after concerns raised by commission members were addressed by Wlaschin.
But not every regulation made it through the process unscathed. Two were held up after the commission deadlocked on votes, with Democrats in support and Republicans in opposition.
That included one regulation that would have repealed old provisions requiring voters to request an absentee ballot to conform with a law passed last year, AB321, which permanently expanded mail-in voting in an opt-out model throughout the state.
Sen. James Settelmeyer (R-Minden) broadly challenged this regulation on the basis that — because the original changes set forth by AB321 could be revisited and ultimately reversed by lawmakers in the future — the old language should be preserved.
“I think that the concept of making sure that people request an absentee ballot and sending it in is the right way to do it, versus [the system] we are going to,” he said.
Though all six Republicans voted against the regulation, only Settelmeyer clarified the reason for his opposition.
The vote Monday does not change or block the expanded mail voting law, but does leave clerks without the clarifications and statewide standards that otherwise would have been made by the proposed regulation.
The other failed regulation would have set certain requirements for training on signature verification for clerks and staff members who must administer elections.
Though few commission members challenged the substance of this regulation — which requires that clerks or any staff who must administer an election pass a “forensic signature verification,” or verifications made by hand, class at least once per year — Republicans raised objections to what they believed was missing: rules for electronic signature verification.
“The concept that we're not including inside this regulation, electronic signature verification that was done in the largest county in the state of Nevada, I find very troubling,” Settelmeyer said.
The criticism echoed similar objections raised by Republicans over the election process in Clark County in 2020 — when GOP operatives tried to stop the use of electronic signature verification machines as votes were being counted after Election Day.
State and county-level Republicans have for weeks sought to question or challenge these proposed regulations, and the changes come amid a broader national environment in which the GOP has sought to challenge — without evidence — the results of the 2020 election.
Wlaschin told the commission that the language of the regulation, like the other measures, reflected requirements included as part of AB321 and to standardize those trainings for local election officials statewide.
Though most of the regulations were approved with some degree of bipartisan support, Assemblywomen Lisa Krasner (R-Reno) and Jill Dickman (R-Sparks) opposed the majority of the 12 election regulations brought up for discussion during the meeting.
Dickman repeatedly raised questions about the specificity of various regulations, arguing that some, including a regulation authorizing the creation of local vote adjudication boards, were not specific enough. That regulation, which passed on a 10-2 vote, did not include language about observers being able to watch the ballot duplication process, which is used when a ballot is damaged or defective and cannot be read by a mechanical device or electronic machine.
“There's no provision for observation over ballot duplication again,” she said. “The ‘if practicable’ term … that just leaves so much to interpretation.”
Wlaschin said the secretary of state’s office plans to “continue increasing the detail and scope of these regulations” moving forward. He noted that it was important to recognize the recent changes in the law entering the 2022 election cycle, and said the regulations would continue to be reviewed and updated as needed.
During discussion of another regulation, establishing procedures for mail ballots under AB321, Dickman said there should be a bipartisan team of observers during ballot duplication.
Though Wlaschin said local election clerks do support observation of the process, he said it didn’t seem prudent to mandate it at this point.
“We didn't want to overburden the clerks and their staff by mandating certain things that may overwhelm or frankly swamp the clerks and registrars,” he said. “So this is a measured step forward.”
Krasner, Settelmeyer and Sen. Scott Hammond (R-Las Vegas) joined Dickman in opposing the regulation.
Several other regulations faced opposition from a small number of Republicans on the commission.
R081-21: People with disabilities voting online
This regulation establishes requirements relating to AB121, a bill approved with bipartisan support during the 2021 session that allows for voters with disabilities to use Nevada’s Effective Absentee System For Elections (EASE) — an online voting application that has typically been used by Nevadans in the military living overseas.
Krasner, Dickman and Settelmeyer each voted against the regulation and expressed concerns that it does not put enough safeguards in place, including for people with disabilities to prove they are qualified to use the online system. Settelmeyer was the only one of the three to support AB121.
“I'm concerned that there aren’t more specific requirements to show that you have a need for this,” Dickman said.
Wlaschin noted that voters who wish to use the system must sign and submit an affidavit swearing under penalty of perjury that the system applies to them.
R093-21: Ballot box retrieval teams
Krasner was the only member of the commission to oppose this regulation, as she argued that ballot box retrieval teams should be mandated to be bipartisan. The regulation states the teams must be from different political parties, “if practicable.”
She also raised questions about the regulation’s use of the term “persons” rather than “citizens.”
“I have heard from hundreds of people, they have a large concern regarding the term ‘persons,’” Krasner said. “They want it to say ‘citizens.’ They believe, and as do I, that only citizens have the right to vote, and so I don't like the fact that it says ‘persons.’”
Wlaschin noted that not all election regulations or statutes use the term “citizens,” as there are parts of the election process that allow for people who are not U.S. citizens to be present. For example, there are international observers who can watch elections.
R097-21: Reporting election statistics
Dickman raised concerns that this regulation — which among other things, requires that clerks report certain information, like the number of voters who applied to vote and voted in person at a polling place, to the secretary of state — did not also require regular public disclosures.
Wlaschin said the secretary’s office would “try to provide that information to the public,” including delivering it on request, but that the goal was to organize such information from all 17 counties through the secretary of state.
Both Dickman and Krasner voted against this regulation.
R098-21: Observers at polling locations
Dickman similarly raised concerns that this regulation overstepped, creating an unnecessary barrier by preventing observers from asking election workers questions as the count proceeded.
Wlaschin, however, said that the regulation does not stop observers from hearing conversations over the course of a count, but rather it prevents observers from asserting some mandate that they must be allowed to listen to any and all conversations between election workers.
Again, both Dickman and Krasner voted against this regulation.