Ross Miller’s and Stavros Anthony’s attorneys argued Wednesday over routine voting disagreements in the Nevada Supreme Court, which is now charged with determining whether those mistakes should spark a re-election for a seat on the Clark County Commission.
The central legal question to be determined: Whether the election between the two candidates in November was “prevented” in the sense of a state law because there were many more disagreements than the low profit margin.
If the Supreme Court rules that the disagreements prevented the election, it would overturn an earlier district court decision.
Anthony, a Republican Las Vegas councilor, is turning around when he seeks a new election after losing to Miller, a Democrat and former Nevada Secretary of State, by just 15 votes in a race that saw 139 vote differences. When the district court ruled Anthony’s petition to re-run in January, he appealed to the Supreme Court the next month.
“If the will of the voters is not known, there has been no election; The election was prevented, “Attorney Michael Wall, who represented Anthony, told the judges. He acknowledged that the case provides a broader interpretation of the term “prevents” than that of the lower court.
Mismatch in wards
Disagreements arise when the number of votes counted in a district does not match the number of voters who have registered to vote. It’s a normal election mistake and unrelated to fraud, officials say, and usually occurs when a voter checks in but doesn’t vote, or vice versa.
These inconsistencies are generally not a cause for concern, but they did create some uncertainty about the outcome of the race for the seat of District C of the Commission, as the number of inconsistencies was far greater than the profit margin.
Legal process key to the dispute
“I don’t see any legitimate ways to reverse it,” Bradley Schrager, attorney representing Miller, told judges.
Schrager argued that the law cited by Anthony regulates voter access – provides protection in situations where elections do not take place for reasons such as natural disasters or ballots lost in transit – and does not address challenges to an election result.
If Anthony wanted to fight the outcome, he could have campaigned in the lower court, but he declined on political grounds, Schrager said. An election campaign does not offer a new election as a remedy, although this could result in the seat being declared vacant and Democratic Governor Steve Sisolak filling the vacancy.
“So we have a law that would probably address this situation without having to use force against another law that was interpreted quite narrowly in the past,” said Judge Lidia StIGE.
Wall argued that it is not about an election result, but about the integrity of the system and the process itself.
However, the judges also questioned why the constituency’s chief electoral officer, Joe Gloria, had failed to say in his affidavit to the lower court that the election had been prevented.
Gloria expressed concern to the commission in November about the accuracy of the race result due to the tight profit margin, and Wall quoted Gloria’s statement on Wednesday that the number of inconsistencies meant that he could not confirm that the result was correct.
The affidavit showed that there was no election winner, even if, according to Wall, Gloria did not specifically say that this was prevented.
After the county legislature flirted with the idea of holding a special election, it confirmed Miller’s victory in December after a recount requested by Anthony that slightly expanded Miller’s leadership.
“If the registrar cannot confirm the election results and the election is unlikely to be completed, won’t it be prevented?” Judge Douglas Herndon asked.
For Schrager the answer was clear: maybe hypothetical, but not in this case.
Anthony did not claim that a ballot was counted that should not have been or vice versa. Gloria’s affidavit merely repeated what he had previously told the commission and, in Gloria’s own words, was not intended to be a declaration under the Election Prevention Act.
“Here the election was absolutely finalized and finalized as all elections are finalized,” said Schrager.
A Supreme Court decision could be in a matter of months, if not sooner, according to Attorney Mark Hutchison, who represents Anthony and previously served as lieutenant governor of the state.
Contact Shea Johnson at [email protected] or 702-383-0272. Follow @Shea_LVRJ on Twitter.