Nevada lawmakers approved a set of regulations Thursday aiming at setting the stage for the state’s February presidential primary election.

But on the Republican side, an unanswered question remains — will there even be a presidential primary election?

Even as members of the Legislative Commission approved a wide swath of election regulations (including one placing rules on counties that wish to hand count ballots) proposed by the secretary of state’s office aimed at clearing logistical hurdles for the February presidential primary election, the Nevada Republican Party has opted to move forward with a party-run caucus instead, one that will automatically exclude any candidate who files to run in the primary. 

The intraparty debate has led to questions of whether the minimum two Republican candidates required to hold the primary in the first place will file once the presidential filing period opens on Monday. Under state law, the secretary of state must conduct a primary election if at least two presidential candidates file to run — even though the state GOP has said it will only award delegates to candidates who participate in the caucus.

At a meeting of the state’s Advisory Committee on Participatory Democracy (ACPD) on Thursday, Deputy Secretary of State for Elections Mark Wlaschin said at least five candidates had already made appointments with the secretary of state’s office to file for the February primary. 

Wlaschin did not say how many of those candidates were Democrats and how many were Republicans. However, a spokesperson for the secretary of state's office sent the names of those candidates who have made appointments to The Nevada Independent late Thursday. They included no high-profile candidates for either major party, save Marianne Williamson, a longshot Democratic challenger to President Joe Biden. 

Also on the list of appointments were John Anthony Castro, a Republican who is suing to exclude former president Donald Trump from the ballot under the 14th Amendment; Armando Perez-Serrato, a Democrat from California who received 0.6 percent of the vote in the state’s 2022 gubernatorial primary; Heath Fulkerson, a Reno man and Republican whose campaign website says that he is running for president and “House of Representatives”; and David Stuckenberg, a former State Department official under Trump who does not appear to have an active online campaign presence.

The five appointments does not guarantee those candidates will ultimately file, and additional candidates may file within the two-week filing period by mail. However, should two candidates from a major party file for the presidential preference primary, under law that primary will move forward.

He added that the state had no law potentially barring voters from participating in both the primary and the caucus, likely leaving any potential limitations on dual voting up to the state GOP. 

Speaking to reporters after the meeting, Secretary of State Cisco Aguilar, a Democrat, demurred when asked if the GOP rules on candidate participation might lower potential voter turnout. “That's not for me to decide; I'm here to implement the rules and follow the rules and follow the law,” he said.

However, Aguilar also said that the state GOP should have “ideally” discussed plans for its caucus with his office “probably a little bit earlier.” 

“Given the caucus and the primary, the ideal situation would have been for the Republican Party to come to the secretary of state's office and say, ‘Look, this is what we plan to do during the ‘24 election; let's figure out how to work together to make sure that we're serving the best interest of voters,” Aguilar said. “... That would have been the ideal situation, but obviously we're not there now. And so we have to figure out how we serve the best interests of the voter.” 

The Republican National Committee opposed three new regulations that the secretary of state’s office proposed this month, arguing they could erode existing election safeguards. Those rules would make changes to how the public can observe handling of mail ballots, amend processes on election equipment information and regulate public viewing of recounts.

Assemblyman Rich DeLong (R-Reno) voted against a regulation Thursday that limits participants in presidential primaries to those registered with a major party.

“I am also personally not in favor of having this primary. I'd rather have a caucus and for those reasons, I'm voting no,” DeLong said.

One presidential candidate, Vivek Ramaswamy, has already filed for the caucus, with former President Donald Trump committed to file soon. Other candidates and their campaigns have criticized the process, including a spokesperson for a Super PAC linked to Florida Gov. Ron DeSantis who told The Nevada Independent that the process was “rigged” to favor Trump, in part by limiting the participation of PACs on the day of the caucus. 

Hand counting ballots and other regulations

Legislators also approved a regulation Thursday that allows — but places limits on — hand counting ballots, a rule that has drawn pushback from the state Republican Party and voting rights groups.

The regulation lays out the requirements for local governments that are only planning to count ballots by hand; however, according to a statement from the secretary of state's office, no Nevada county has plans to do so. 

More than a dozen people expressed their opposition to the hand-counting method Thursday, citing its higher error rates and potential for dissuading voters, while several Republicans at the meeting argued it was a key way to safeguard elections from fraud. Fraud related to electronic voting machines has been widely discredited.

Ultimately, members of the state’s Legislative Commission — a group of 12 state legislators, seven Democrats and five Republicans — approved the hand-counting regulation 8-4. All Republicans opposed the measure, with the exception of termed-out Sen. Scott Hammond (R-Las Vegas).

Hand counting ballots is already legal in Nevada, but Wlaschin said the regulation adds additional requirements for jurisdictions where hand counting is the only form of vote tabulation.

Under the regulations, local governments that rely on a hand count must submit plans 90 days before the election that include the procedures, location, equipment, personnel, security and contingency plans to meet election deadlines.

Nye County, whose clerk is a strong proponent of hand counting and previously pushed voting machine conspiracy theories, has pledged to use mechanical voting as its primary method in next year’s elections, according to Aguilar’s statement. Nye County also plans to comply with the regulations even though its primary tabulation method will not be by hand, the statement said.

The hand-counting process has become a contentious political topic in Nevada. Republicans argue the process is a key way to ensure election security and that the state should loosen regulations on the practice. Republican Gov. Joe Lombardo vetoed a bill this year that would have banned the method.

“Voter confidence in the legitimacy of the last presidential election is lower than any other presidential election in modern history,” read a letter from Caroline Smith, president of the Nevada Federation of Republican Women. “Please don’t limit hand counting ballots.”

Meanwhile, some voter advocacy groups have expressed concern that hand counting could increase potential for election insecurity and increase wariness from voters.

“We are deeply concerned about hand counting in general, as it is rooted in unfounded claims about election fraud and does undermine the integrity of elections,” said Sadmira Ramic, voting rights attorney at the American Civil Liberties Union Nevada. 

However, Nevada law considers hand counting legal, and the Legislative Commission has no power to unilaterally change the law.

“The law is very clear; across the board regulations cannot make anything that is legal, illegal or vice versa. I understand that a number of people have concerns,” said Gabriel Di Chiara, the chief deputy secretary of state. “I think the fact of the matter is, though, that the possibility exists that some of these people have a misinterpretation of the law itself.”

Other regulations

On Thursday the Legislative Commission also approved election regulations that generally cover applying existing rules to the new presidential primary in February and technical election administration.

The other regulations approved are:

• R008-23: This regulation outlines how counties are reimbursed for ballot stock for the presidential preference primary, matching how they are reimbursed in other elections. It also sets timelines for submitting certain election contingency, accuracy and security testing plans, which match the timelines in place for other elections.
• R009-23: This regulation aligns with state law that limits participants in presidential primaries to those registered with a major party. It also allows tribal members living on reservations to use the state’s Effective Absentee System for Elections (EASE), an online platform where overseas and military voters cast ballots. The rule also establishes timelines for when a presidential primary candidate can withdraw their candidacy or have their candidacy challenged by a voter.
• R010-23: Under this regulation, the Democrat and Republican parties must provide the secretary of state with the names of their candidates for president and vice president by 5 p.m. on the first business day of September of the election year.
• R011-23: This regulation sets requirements for risk-limiting election audits, for election officials to report data on the number of surrendered and cast mail ballots, as well as same-day voter registration data. It also mandates that special election and recall plans include steps to ensure ballot security and allows public observation of the handling of mail ballots as long as observers do not compromise ballot security.
• R012-23: This regulation extends the ballot duplication process to ballots received through the EASE system. It also adds requirements for clerks to document election equipment information, such as serial numbers, and requires certain post-election audits of mechanical voting systems be completed within 30 days after each election.
• R013-23P: This regulation requires that EASE system instructions mention that voters must sign a declaration that they will return the military-overseas ballot either by approved electronic transmission or by mail. The regulation also provides that if a voter inadvertently submits more than one ballot through EASE, only the first ballot may be counted.
• R014-23: This regulation ensures someone is not prohibited from running as a major party candidate if their party affiliation was changed unintentionally through automatic voter registration. It also allows a person to virtually file a declaration of candidacy and outlines why a county clerk may reject a signature on a petition, such as a person not being registered to vote on the day they signed. The regulation also asserts that an electronic summary of the votes cast in an election is a public record.
• R015-23: This rule repeals certain old regulations related to voting by absentee ballot, resulting from the universal mail voting practice in Nevada that has absorbed absentee voting.

Update: 9/29/23 at 10:45 a.m. — This article was updated to include details on the candidates who have made appointments to file for the presidential preference primary with the secretary of state's office once filing opens next week.