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Lawsuits: GOP activists in Clark, Washoe seek ‘meaningful voter observation’

Sean Golonka
Sean Golonka
CourtsElections
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Republican activists in Clark and Washoe counties filed lawsuits against state and county election officials last month, arguing that election observation in 2020 was inadequate and seeking greater opportunities for “meaningful voter observation” this year.

Specifically, they want provisions that would allow election observers in both counties to “visually inspect each ballot,” stand within 2 feet of any ballot-counting system and demand the counting process be stopped, if an observer affiliated with any political party has an issue they cannot resolve.

The lawsuits — one filed in Clark County District Court, the other in Washoe County District Court — echo claims made by former President Donald Trump, who in the days following the 2020 election erroneously said that his campaign observers were denied access to ballot-counting rooms. That year, a judge ruled that Trump’s lawyers failed to prove that local election officials had interfered with observers.

The new cases seeking expanded observation similarly appear driven by efforts to overhaul elections at the local level. 

In the Washoe County lawsuit, the first plaintiff named is Robert Beadles, a wealthy California transplant who has spearheaded efforts to overhaul elections in the county, including backing a failed proposal to move almost entirely to paper ballots and hand-counted elections. 

In both cases, plaintiffs face opposition from the Progressive Leadership Alliance of Nevada (PLAN), a progressive activist group that has come to the defense of Nevada election officials. The group argued that the proposed changes to observation are unsupported by Nevada law and carry risks to the process of counting ballots. 

They also likened the effort to Trump’s attempts to weaponize observers during the 2020 election — in the weeks leading up to the election, his campaign helped prepare an “army” of poll watchers to observe the election proceedings.

“Plaintiffs’ complaint is a continuation of this failed effort to transform a limited right for ‘any member of the general public’ to ‘observe’ certain election activities ‘if he or she does not interfere with’ them into something far more intrusive that appears nowhere in Nevada law,” lawyers for PLAN wrote in a motion to intervene as a defendant in the case.

Representatives of the plaintiffs and some defendants did not respond to requests for comment on Tuesday. Bradley Schrager, an attorney representing PLAN, said he would not comment on ongoing litigation, but noted the group plans to file opposition briefs this week.

Plaintiffs argue for ‘meaningful observation’

Plaintiffs in both cases, who are represented by Adam Fulton from the Las Vegas-based Jennings & Fulton law firm, made identical claims — referencing alleged election misconduct and fraud during the 2020 election and arguing that observers in the state’s two most populous counties were denied “‘meaningful observation’ of the ballot counting process” in 2020.

They argued that observers were placed too far to see the counting process, that ballot boxes were moved without giving observers the chance to review the ballots and that observers could see technological issues occur with the counting process but were provided no opportunity to understand those issues.

With those obstacles in mind, they argued that “being ‘in the same room’ as the ballot processing operations does not equate to ‘meaningful observation’ as required by law.” 

Nevada election laws make no mention of the word “meaningful,” but new election regulations approved by state officials earlier this year define “meaningful observation” to mean that a person may observe the identity of voters who appear at a polling place, the distribution of a ballot or voting machine card to a voter, the movement of a voter to a voting booth, the return of a ballot or voting machine card by a voter and the exiting of a polling place by a voter.

That definition also explicitly excludes viewing a voter’s sections or personal information and listening to conversations between election board officers or between officers and voters from “meaningful observation.”

The regulations also note that designated areas for meaningful observation may not be located in an area “that would allow an observer to infringe on the privacy and confidentiality of the ballot of a voter,” and observers are prohibited from “interfering with the processing and counting of ballots.”

Prior to taking legal action, plaintiffs in both counties also sent letters to their respective county registrars similarly asking for enhanced observation opportunities during future elections with an emphasis on counting ballots and other activities taking place after the voting process had concluded.

Fulton received an initial response from a Washoe County deputy district attorney, who wrote that the registrar would work “to ensure reasonable, meaningful access to all observers.” But in another letter, which Washoe County did not appear to respond to, Fulton alleged that in 2020, Washoe County residents were “consistently pushed to the back of the observation area,” as attorneys from California and Washington were given priority.

“The election officers routinely cherrypicked who would be allowed to ‘observe,’ with no reason or clarification given,” Fulton wrote.

In a statement to The Nevada Independent, a spokesperson for Washoe County said the county has always provided space for two observers at its elections office and that the county has constructed a new observation area to accommodate six to eight people for future elections.

“This more than meets the requirement for ‘meaningful voter observation,’” they wrote. “We also live-stream the Elections office from early voting through the close of the election, and we are very proud of the efforts we have made in every election to provide transparency and meaningful participation in the process.”

Representatives of Clark County did not respond to a request for comment on Tuesday.

Plaintiffs also referenced voter observation laws in other states and pointed to a lack of clear guidelines for voter observation in Nevada, with individual county clerks instead required to, each election year, submit “a written plan for the accommodation of members of the general public who observe the delivery, counting, handling and processing of ballots at a polling place, receiving center or central counting place.”

The new regulations for election observers include a requirement for them to acknowledge that certain behavior — such as using a phone while working, interfering with the counting process or advocating for a candidate — is prohibited.

In each lawsuit, plaintiffs are seeking a laundry list of changes to observation, including but not limited to:

  • Observers must be allowed to “visually inspect each ballot.”
  • Observers must be permitted within a 2-foot radius of any ballot counting system or machine.
  • Two observers must be present at each drop box location from each political party.
  • Two observers from each political party must be present at any machine where electronic votes are being tabulated.
  • If any of the two observers from each political party address any issue and cannot resolve the issue, they may ask the registrar’s staff to stop processing. The observer must then address their challenge with the manager, supervisor or lead.
  • If an observer from either political party is forced to be removed for any reason, they must be immediately replaced with another observer from their respective political party to ensure each party is properly represented.
  • Registrar of Voters staff will issue a badge to observers, which they must wear while observing. Observers must return their badges each day before leaving.
  • All drop box locations, all counting areas, Election Management System (EMS) areas and all board rooms used for the 2022 primary election must be videotaped using video surveillance at all times. The video must be high quality and stored in a manner mutually agreed upon by the Registrar of Voters and both political parties.

Attorneys representing PLAN argued that the changes sought by the plaintiffs are more intrusive than allowed under Nevada law and amount to interference with the ballot-counting process. 

“None of those requirements appear anywhere in Nevada law … all carry with them substantial risks of impeding and threatening the crucial process of counting ballots, risking significant irreparable injury to Nevada’s election processes,” they wrote.

As of Tuesday morning, a hearing has not yet been set in the Washoe County case. A Clark County District Court judge is set to hear the Southern Nevada-based case on May 10.

Updated at 3:05 p.m. on May 3, 2022 to reflect state regulations regarding “meaningful observation” and to include a statement from Washoe County.

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