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The Nevada Independent

Why Trump’s lawsuit seeking to overturn Nevada’s presidential race sputtered in court

Riley Snyder
Riley Snyder
Criminal JusticeElection 2020

Ten days after major media outlets called Nevada for Joe Biden, attorneys and allies of President Donald Trump’s campaign stood outside state party headquarters in Las Vegas to make a stunning announcement — the campaign had identified enough irregularities to call election results in the state into question and planned to file a lawsuit challenging them in court.

“Donald Trump won the state of Nevada, after you account for the fraud and irregularities that occurred in the election,” campaign attorney Jesse Binnall said on Nov. 17, adding that the Trump campaign was “quite confident in the fact that when the law and the facts are clearly adjudicated in this matter, that it will be very clear that once all the voting happened, once everything occurred, the results were unreliable because of the irregularities and the fraud.”

But the Trump campaign’s eyebrow-raising accounts of voter fraud — tens of thousands of mail ballots sent from out-of-state, vote totals mysteriously changing overnight, and testimony that volunteers in a Biden van were caught filling out blank mail ballots — failed to make any headway in state courts.

The election contest lawsuit, filed the day of the press conference, was summarily rejected by Carson City District Court Judge James Russell, who in an order earlier this month wrote that the campaign had produced evidence with “little to no value,” a far cry from casting enough reasonable doubt on Biden’s 33,596-vote victory over Trump.

An immediate appeal to the Nevada Supreme Court was also rejected last week, with members of the court issuing a unanimous opinion on Tuesday stating that the Trump campaign failed to demonstrate any “error of law, findings of fact not supported by substantial evidence, or an abuse of discretion in the admission or rejection of evidence by the district court” that would provide grounds for a reversal.

That decision marked the end of realistic legal remedies for challenging Nevada’s presidential race results. The campaign could theoretically appeal to the U.S. Supreme Court, but the lawsuit deals specifically with state law and brings no federal claims, making it unlikely the high court would take up the lawsuit.

The defeat was the latest and most high-profile legal loss that befell the Trump campaign in Nevada. A late-summer challenge to the state’s adoption of near-universal mail voting for the 2020 election was defeated in federal court in September; a pre-election challenge to Clark County’s mail ballot counting and processing system failed in state court; and an Election Day challenge to Clark County’s mail ballot system failed before another federal judge

Nationwide, the Trump campaign and Republican Party allies have lost dozens of  post-election lawsuits, including one filed by the state of Texas that was rejected Friday by the U.S. Supreme Court.

With the dust settled, the Trump campaign’s only legal victory in Nevada was petitioning to keep certain in-person polling places in Las Vegas open for a few hours longer on Election Day. 

Nevertheless, the Nevada Republican Party and Trump campaign have continued to push the narrative that massive amounts of voter fraud occurred in the 2020 election — now through publication of select anonymous declarations and data analyses originally filed under seal and ultimately rejected in the campaign’s election contest lawsuit.

Election law experts interviewed by The Nevada Independent said the failures were unsurprising. Nevada’s legal parameters for challenging election results sets a high bar for acceptable evidence, including clear proof that serious error or malfeasance occurred before a court can step in and take action that could change the outcome of an election.

Those experts also said that election contest lawsuits typically deal with razor-thin margins and are only brought after a campaign is able to specifically identify a sufficient number of illegitimate votes that could have affected the outcome of the race — owing to that high bar of evidence. 

The Trump campaign has not publicly released names or identities of the tens of thousands of people who allegedly cast illegitimate votes.

Todd Bice, a prominent Las Vegas attorney and lifelong registered Republican who has argued election cases in the past, said every election cycle sees a small number of irregularities or mistakes, but they typically only come into play when the margin between candidates is small enough for those mistakes to matter.

In the Trump campaign’s case, the campaign failed to show any compelling evidence of mass fraud, he said.

“Trying to say that the system was so flawed that it doesn't matter what the margin is, that requires an extraordinary showing, and they of course made no showing,” he said. “They didn't have a case, they didn't have evidence, and the remedy they were seeking was to simply dislodge the electors chosen by the people.”

How election contests work

Nevada is no stranger to close elections, the most recent and notable being U.S. Senator Harry Reid’s 428-vote victory over John Ensign in 1998. Other nailbiter elections included the 1964 U.S. Senate race, an 84-vote victory by Democrat Howard Cannon over Republican Paul Laxalt, and the 1914 U.S. Senate race, a 40-vote victory by Democrat Francis Newlands over Republican Samuel Platt.

But only two close elections in the state have been overturned after a legal challenge and none more recently than half a century ago — once for a Douglas County state Senate seat in 1878, and in a 1970 Assembly race where a faulty voting booth incorrectly marked votes for the wrong candidate.

Compared to those margins in past statewide races, Biden’s 33,596-vote victory over Trump in 2020 isn’t nearly as close. Bice said that the state’s election contest law is designed to handle “close margin disputes,” not cases where the difference in vote totals differs by tens of thousands.

So what does the state’s election contest law actually say? 

Any candidate or voter for an office, except for the U.S. Senate and House, which are required to go to Congress, can contest the election of any candidate. State law lays out slightly different processes and deciding authorities for general election contests in races for governor, lieutenant governor, legislative races and judges on the state Supreme Court or Court of Appeals.

Filing an election contest lawsuit needs to be done no later than 14 days after an election, or five days after the conclusion of a recount, and can be filed on a variety of grounds, including:

  • An election board, or any of its members, was guilty of “malfeasance”
  • A person elected to an office was not eligible for that office at the time of the election
  • An election board made errors sufficient to change the outcome when conducting the election or canvassing the votes
  • The defendant or an agent gave or offered to give something of value for the purpose of manipulating election results
  • Any malfunction of a voting device, counting machine or computer that would raise “reasonable doubts” as to the outcome of the election
  • Illegal or improper votes were cast and counted, legal and proper votes were not counted, or a combination of both categories occurred in an amount equal or greater than the margin of victory or “in an amount sufficient to raise reasonable doubt as to the outcome of the election.”

In the past decade, there have been only two instances of losing candidates pursuing election contest lawsuits. In one instance, North Las Vegas City Councilman Richard Cherchio challenged the results of a municipal race won by exactly one vote by Wade Wagner in 2011. Election officials later discovered that an illegal ballot had been cast in the latter race, kicking off extended litigation between Cherchio and Wagner that ultimately resulted in Wagner staying in office.

In the other, three Republican Assembly candidates fought the losses of their 2016 primary challenges against three incumbents. 

Daniel Stewart, an election law attorney who represented and defended the incumbents, said that even in close races, a successful election challenge is difficult to prove as it requires extraordinary relief — judicial-mandated changes to race results — and requires evidence, acquired on a very short time-frame, that a substantial number of illicit ballots were cast and benefited the opposing candidate by such a margin as to affect the results of the election.

“It's just very unlikely, and likely to be the result of the loser just not not coming to terms with having lost,” Stewart said.

What Trump’s campaign alleged

In their lawsuit, attorneys for the president’s campaign went further than either of the previous election contest lawsuits, stating in their complaint that they would provide evidence that tens of thousands of illegal votes were cast, some by deceased individuals, some by noncitizens, but mostly by people who live and allegedly also voted in other states.

The complaint also included testimony of alleged illegal activity by Native American groups offering incentives in exchange for votes, a variety of statements from anonymous “whistleblowers” purporting to have seen illegal activity, including the aforementioned Biden van, and alleged deficiencies in Clark County’s poll observation plan. It also recycled complaints from past, unsuccessful lawsuits about Clark County’s use of an Agilis signature verification machine, saying the county was violating state law and opening the door to rampant fraud by allowing for the automatic processing of mail ballots.

The Trump campaign had previously sued and sought a court-ordered halt to use of the machine to process mail ballots. Carson City District Court Judge James Wilson denied the request in early November and said the party “failed to show any error or flaw” in use of the machine to verify mail ballot signatures. A federal judge on Election Day blocked a similar request, announced at a Trump campaign event and later filed by two Republican congressional candidates.

Still, the Trump campaign and state Republican Party continually expressed nothing but confidence in their efforts to successfully challenge the results of the election — touting a procedural step to allow depositions, which one conservative media outlet called a “HUGE COURT WIN,” and bragging that the campaign was prepared to present up to 20 binders with more than 8,000 pages of evidence.

“This is big news,” American Conservative Union chair Matt Schlapp said on Fox News prior to the hearing. “A lot of people in the national media have said, ‘If you have evidence of voter fraud, show it.’ Well, we have thousands and thousands of examples of real people in real-life instances of voter illegality.”

Why the lawsuit fell short

The much-touted evidence, however, failed to persuade Judge James Russell, who ultimately issued an order dismissing the case with prejudice, meaning the parties could not re-file a similar suit using the same claims.

In his order, Russell wrote that many of the anonymous whistleblower declarations constituted unusable hearsay and that, despite an unanswered question of what standard of evidence to apply in the case, he considered the “totality of evidence” provided and found it lacking.

“As reflected herein, the Court finds that the expert testimony provided by Contestants was of little to no value,” he wrote in the order. “The Court did not exclude consideration of this evidence, which it could have, but gave it very little weight.”

Stewart said that Russell’s decision to consider the evidence regardless of procedural defects or a lessened evidentiary standard — reasonable doubt is a higher standard than preponderance of evidence, which the Trump campaign pushed for — spoke volumes as to the lack of merit of the evidence.

“I think the judge is pretty explicit about it. Even under a preponderance of the evidence standard, the claims failed,” he said. “I mean, when you say there's no evidence, you're basically saying that literally under any standard, they lose. They just haven't even made that basic showing to give (the judge) pause.”

The campaign’s lists of alleged illegitimate voters — 42,000 instances of “double voters,” 1,506 apparently dead voters, 19,218 non-Nevada residents and more than 23,000 votes sent to fake, vacant or commercial addresses — also failed to make a strong impression on Russell. It’s unclear whether the campaign provided a list of voters it believed cast illegitimate ballots to the court, as nearly all evidence was filed under seal (the Nevada Republican Party did not return a request for comment). Russell wrote, though, that the evidence provided by the campaign was seriously flawed.

One Trump campaign expert, Michael Baselice, apparently conducted a phone survey of voters who cast mail ballots per court testimony, but Russell wrote that he questioned the “methodology” of that survey as there was no source of data identified, nor any apparent quality control efforts regarding the data received. The testimony of a data analysis expert, Jesse Kamzol, was also discounted by Russell, who wrote that Kamzol “had little to no information about or supervision over the origins of his data, the manner in which it had been matched, and what the rate of false positives was.” 

A third expert provided by the campaign, Scott Gessler, was similarly questioned by Russell as he provided no exhibits or citations for his conclusions, and “based nearly all his opinions on a handful of affidavits that he took no steps to corroborate through independent investigation.”

Stewart, who acknowledged that he hasn’t seen the provided evidence because it was largely filed under seal, said that the arguments made during the hearing gave him the impression that the campaign had no list of individual voters they believed had voted twice. He based that conclusion off a statement in court by an attorney for the Democrats that the Trump campaign hadn’t presented the name of a single person alleged to have cast an illicit ballot, an assertion the Trump campaign didn’t challenge.

He also said an expert report without backup documentation was not enough evidence to prove that enough fraudulent votes had been cast to call the results of the election into question, adding that those expert opinions are “basically approximation” without actual, hard evidence to back it up. Evidence published by the Trump campaign during and after the trial only includes numbers of people they believe cast illegal ballots, not any actual list of suspected fraudulent voters.

“That's the stuff that matters,” he said. “If they've got actual evidence of that, lists of people and names that can be verified, that's what they should be running with. That shouldn't be buried in the middle of the argument ... you can win an election contest with that kind of evidence.”

Matt Griffin, an elections-focused attorney and lobbyist who has represented Democratic Party clients and previously oversaw election administration in the secretary of state’s office, said that election officials in the state see a handful of cases every cycle where a voter tries to test the system or otherwise cast more than one ballot, but that the state had been effective in catching and prosecuting those cases whenever those occur.

“In every election that I'm aware of, there has always been a handful of folks who've tried to double vote,” he said. “And from Ross Miller to Barbara Cegavske, they’ve all been prosecuted. But those numbers have never risen to the point where it would have affected the outcome of an election.”

In the 2020 election, 8 News Now reported that state election officials were investigating two cases of ballots cast in the name of a deceased person and had discovered that six people cast a ballot twice. Other media outlets in the state, including the Las Vegas Review-Journal, reported they have found no evidence of mass, undetected voter fraud in the state’s presidential election.

After the 2000 presidential election, which saw a multitude of issues with Florida’s voting system, Griffin said that improvements funded and required by the Help America Vote Act — such as electronic poll books, substantial paper audits, improved automation and security improvements — minimized the amount of human error that could potentially result in changes to election results.

He said a recount or post-election challenge made more sense in a much closer race, pointing to Ross Miller’s narrow victory over Stavros Anthony for a seat on Clark County Commission, which was subject to a recount last week that ultimately reaffirmed Miller’s victory.

“That race is exactly why we have recounts,” he said. “If you lose by 30,000 votes, there is no light for you, because we run very good elections.”

Editor's Note: Daniel Stewart is a contributing columnist for The Nevada Independent


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