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The system worked

A voter selects a sticker before leaving a polling location inside John Dooley Elementary School in Henderson on Tuesday, Nov. 3, 2020. (Daniel Clark/The Nevada Independent)

It has been a little more than one week since the 2020 general election. All of the votes are in; all but a few have been counted. Vice President Biden and Senator Kamala Harris won nationwide and in Nevada. And none of President Trump’s election challenges—in and out of court—will alter the results. The margins are too big in too many states for anything to change. 

I understand how painful political defeat can be. Running for office is unbelievably difficult. I have been with many good friends on the night they lost elections; I have seen good causes go down in flames. It hurts. Believing the election was burgled amplifies that pain. But this election was not stolen, and President’s Trump’s slander of Nevada as a “cesspool of fake votes” is untrue, unfair, and unworthy of his high office. 

President Trump lost Nevada fair and square. Yes, there appear to be isolated incidents of improper or illegal activity consistent with every election. There was also understandable confusion and irregularities with the system itself. Essentially, Nevada’s election officials implemented three new election systems at once: same-day registration; COVID protections for in-person voting; and a mail-voting option for all active voters. 

Were things unfamiliar? Were there glitches? Were some voters baffled with the process? Yes. But the only pertinent question is whether there were any fraudulent votes cast that affected the election. I have seen absolutely no proof of anything more than a handful of the usual voting irregularities. Hearsay, assumption, generalized innuendo, and even legitimate frustration with new procedures is not enough. Nor is litigating the case in the press. Serious allegations demand serious evidence, made in the proper forms, subject to proper analysis.  

President Trump has had multiple chances in court to prove fraud. To date, he has been unsuccessful. The wait for documentation cannot continue indefinitely.

What are President Trump’s actual claims? As far as I can tell, he has argued the following in public (not always in court):

Voting by dead voters. It appears that, at most, votes were cast for two dead Nevada voters. If true, they need to be investigated and prosecuted. My understanding is that authorities are on it. (One of the votes was probably cast by mistake, as the deceased person’s relative casting the vote did not vote her own ballot.) And we have no idea who benefited from these two improper votes.  

Voting by ineligible, out-of-state voters. President Trump declared that Nevada saw more than 3,000 non-resident, ineligible voters. But Nevadans may live out of state and still vote for a whole host of reasons, including serving in the military. Federal law allows a grace period, too. The onus is on President Trump to prove ineligibility with facts. 

Stolen votes. One Nevada resident has gone on the record saying that someone else cast her ballot. Election officials investigated the matter and disagreed. She had an opportunity to cast a provisional ballot while the matter was being resolved; she declined to do so. She also declined to sign an affidavit to back up her claims. There have also been other rumblings, but as far as I know, nobody else has come forward and officially attested to those facts. The clock is ticking. 

Unsecure ballots. During the primary election, Clark County mailed a ballot to all registered voters, not just active voters. For the general election, Assembly Bill 4 required that mail ballots only go out to active voters. There were about 75,000 voters in Clark County, though, who received mail ballots who would have been deemed inactive but for the time frame by federal law. That said, we should not conflate primary and general election stories. Moreover, just because some ballots were mailed to bad addresses does not mean any fraud occurred. Someone would have had to actually vote and sign and mail or drop off another person’s ballot for there to be fraud. I have seen no evidence that that occurred in any meaningful way, if at all.

Statements by a Clark County election worker. A Clark County poll worker made some pretty serious (and, quite frankly, unbelievable) allegations in an affidavit. Unfortunately, no one has filed that affidavit with any official election complaint, and the pertinent information is redacted, so there is no way to verify it. Nothing has been substantiated, and we should be cautious at this stage. A supposed whistleblower in Pennsylvania just recanted his story in the face of an official investigation (after pocketing more than $130,000 in donations from those supporting his initial statements).

Votes not counting. Switching from claims of fraud to those of suppression, President Trump’s supporters have also argued that Nevada election officials did not count their votes. The ballot tracking system was flawed, but it appears that everyone’s votes were counted, except for those who failed to cure certain issues. The secretary of state has provided information to help people understand the process. Further, the voter rolls are public. We know who voted. And official Republican turnout was high, belying assertions of targeted vote suppression.

Clark County’s machine for verifying signatures was rigged. President Trump and his allies have honed their fury on Clark County’s signature verification machine. In a nutshell, they argue that, given its settings, the machine flags too few signatures, opening the door for fraud. But the signature machine rejected signatures at a much higher percentage than did human reviewers. Allegedly, the law requires hand verifications of all signatures. Not so. And low rejection rates simply means low rejection rates. It says nothing about the ballots examined or the votes cast. Possible fraud and actual fraud are not the same thing. Just as the absence of a security system in your home does not mean that someone has robbed it, a low signature rejection rate does not mean someone committed fraud. 

Lack of meaningful observation. There is some dispute about where and how observers were able to watch the counting process in Clark County, but a judge determined that Clark County followed the law in allowing proper observation by Republicans as well as Democrats. Either way, disputes over observation protocol do not confirm fraud.

Assembly Bill 4. During the August 2020 Special Session of the Nevada Legislature, Democrats made a number of changes to Nevada’s election laws in Assembly Bill 4. Those statutory changes probably did help Democrats in the election, but not because the new law allowed or promoted fraud. Absent Assembly Bill 4, COVID fears and realities may have depressed normal voter turnout for presidential elections. Lower turnout usually benefits Republicans. Assembly Bill 4 simply assured that voters decided the election, not COVID. And no one should bemoan too much legal voting. There is no such thing.

In the end, the votes are in, and they tell us more than just who may have won or lost. They also speak to the propriety of the election itself. Vote fraud of the type alleged would stand out in either the evidentiary wake it leaves behind or in the results themselves. The 2020 general election itself may have been abnormal; the outcome was not. 

In fact, controlled for population growth, 2020 looks a lot like the last three presidential elections in Nevada. Voters voted in different ways, but they said pretty much the same things. Republicans performed quite well up and down the ballot, but Democrats still prevailed more often than not wherever their voter registration lead crossed a certain threshold. 

It’s also worth noting that President Trump singled out Clark County for his ire, but he performed worse in Washoe County than anywhere else in Nevada. There, Republicans enjoy a slight voter registration lead — but President Trump lost by nearly five percent. And Washoe County does everything President Trump wants when it comes to elections:  It verified each signature by hand, has Republicans controlling its commission, did not mail out ballots to any inactive voters, and had (supposedly) “cleaner” voting rolls than Clark County. By President Trump’s own criteria, Washoe County did it right, and Vice President Biden still won there decisively. 

The poisonous accusations casually tossed around about our elections are doing real, lasting harm to the country and the state. What’s more, they are harming the political process itself. There may be 2020 Repubican candidates who need to defend small leads, seek recounts, or file legitimate election contests. How do these candidates make their case free from the gravitational pull of President Trump’s frivolity? Courts have institutional memories, and you can only cry wolf so many times. 

We do not expect perfection from our elections. We have recount and election contest processes for a reason. Recounts and contests rarely change elections but they often do change votes. And yet we don’t assume fraud or throw out the whole election just because the final tally is modified after further review. President Trump is essentially arguing that if he can find a few examples of mistake or fraud, the whole election is in doubt. That has never been the law.

I understand that given my recent switch from Republican to nonpartisan, support for Vice President Biden, and constant defense of Nevada’s election officials, I am a biased source. Nothing grates like the traitor’s scold. But I have worked with and advised Republican elected officials, candidates, activists, and regular voters for years. I have spent months listening to and trying to calm their concerns. Despite my political heresies, I hope I have established a good reputation when it comes to honest evaluations of the law. If so, I respectfully ask that they hear me now: President Trump did not lose Nevada because of voter fraud. Not even close. The system worked.

Daniel H. Stewart is a fifth-generation Nevadan and a partner with Hutchison & Steffen. He was Gov. Brian Sandoval’s general counsel and has represented various GOP elected officials and groups. He recently switched his registration to nonpartisan.

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