The state Supreme Court heard oral arguments Wednesday morning in a months-long case over an exceptionally close Clark County Commission race, with lawyers arguing whether discrepancies in the voting process met the definition of an election being “prevented.”
Las Vegas Councilman Stavros Anthony, a Republican, filed for a recount on Dec. 4, three days after the Clark County Commission certified the results of the District C election in spite of 139 ballot discrepancies in the district. Those discrepancies had caused the board to consider a special election, but then it reversed course.
The recount resulted in 74 new ballots included in the count, which found that former Secretary of State Ross Miller, a Democrat, won by 15 votes, more than the 10-vote margin from the original results. Miller was ultimately sworn in as commissioner.
In Wednesday’s appeal hearing, Anthony’s attorney, Michael Wall, hewed to the same argument he made at a November lower court hearing, when his request to stop results certification was denied. Mark Hutchison, another Anthony lawyer, said that comments made by Clark County Registrar of Voters Joe Gloria showed that an effective election had been “prevented” in the district because of ballot discrepancies.
“As a result [of the discrepancies], I cannot certify that the vote is an accurate representation of the will of the voters in that district,” Gloria said in the affidavit. “In my professional opinion as an election official, it raises a reasonable doubt as to the outcome of the election.”
Hutchison said that these discrepancies entitle Anthony and District C voters to a new election according to NRS 293.465, which says that a new contest is appropriate if “an election is prevented in any precinct or district by reason of the loss or destruction of the ballots intended for that precinct, or any other cause.”
Chief Justice James Hardesty, however, pointed to the district court’s decision to stick with Gloria’s affidavit, which did not indicate that the election was prevented.
“What the registrar said, to the logic to the Commission, was he could not certify the election,” Wall said. “Nothing in the statute says that the registrar has to use the words ‘the election was prevented.’ The registrar used words which indicate, in his opinion, that there is no winner, there is no election that can be certified.”
Ballot discrepancies can occur when voters cast multiple ballots, when check-in numbers at voting sites don’t match up with the number of ballots cast at that site or as a result of various mail-in ballot issues. Gloria previously said that these discrepancies occur in every election.
Bradley Schrager, representing Miller, argued that neither Gloria nor the District Court, in its findings and conclusions, saw this as a “293.465 election.”
“There was no election prevented here. What there was was statistical anomalies,” he said. “Mr. Anthony has not placed any ballots in question. There is no allegation that any ballot was counted that shouldn't have been. There's no allegation that any ballot wasn't counted that ought to have been. Neither is there any indication of any incident that can be directly linked to harm or prejudice to Mr. Anthony.”
However, Schrager suggested another statute — NRS 293.410 — would fit the case better as it includes instances in which the election board “made errors sufficient to change the results of the election, as to any person who has been declared elect.”
“That's the terrain that Mr. Anthony ought to have been fighting,” Schrager said. “293.465 is a voter access statute; it is not a candidate protection statute.”
The Supreme Court did not immediately issue a ruling after arguments.