The Nevada Supreme Court has denied a request to compel the Washoe County Commission to certify the June primary recount results, opting not to issue an advisory opinion that could provide more legal guidance on the role of county commissions in canvassing elections.
In a Monday order, the Supreme Court judges wrote that the “matter is moot” because the commission voted 4-1 to certify the election results after the initial writ was filed. The court’s role is not to render advisory opinions, the judges wrote, adding that while they can weigh in on “a matter of widespread importance capable of repetition,” this case did not clear that judicial bar.
“While we agree the issue is important and perhaps capable of repetition, petitioner’s argument that the issue is evading review falls flat,” the order read. “Should the Washoe County Board of County Commissioners refuse to canvass election results again in the future, petitioner may seek relief on an expedited basis.”
The petition, filed by the attorney general on behalf of the secretary of state, followed an unprecedented vote by Washoe County Commissioners not to certify the June primary recount results. Three of the commission’s Republican members voted not to certify the election, while the two Democratic members voted in opposition. The commission later voted to certify the recount, with one Republican in opposition.
In late July, the court had issued a show cause order asking the state to provide arguments why the matter should not be dismissed as moot. In a filing, attorneys for the state suggested that the issue would likely arise again in the November election and that an advisory opinion would answer a question with “high precedential value.”
Attorney General Aaron Ford said in a Tuesday statement that while he respects the Supreme Court’s decision, he strongly believes that “legal uncertainty in this matter contributes to unfounded distrust in our elections.”
In a separate statement, Secretary of State Cisco Aguilar said he is “hopeful that the Court will do the right thing should we find ourselves in a worst case scenario, but it’s disappointing that we have to wait for a true crisis to have this matter heard.”
The decision arrives as election experts fear that conspiracy theories on massive voter fraud translating into what happened in Washoe could be a precursor to other similar attempts in Nevada.
Read more: After Washoe recount and revote, experts say commission’s action undermined democracy
Nevada law specifies that a recount must be conducted in the same manner as the original vote tabulation. Any losing candidate can seek a recount, but state law requires them to front the cost and receive a refund only if the recount changes the outcome in their favor.
Recounts can be requested within three working days of the county or statewide canvass and must start within five days of receiving the demand. A recount must be completed within five days once it has commenced.
Nevada Administrative Code outlines counties’ statutory obligation to certify election results, specifying that any recount election “must be canvassed within 5 working days after the completion of the recount.”
Athar Haseebullah, the executive director of the American Civil Liberties Union of Nevada, told The Nevada Independent in July that although Nevada law clearly states that counties have an obligation to certify the votes, the consequences of not doing so are unclear.
In a Tuesday statement, he said he understood the legal basis for the high court’s decision but warned that it could lead to Nevada serving as a national focal point for certification issues come November.
“We have warned of this over and over and will be prepared to take action when this likely arises again in November,” Haseebullah said. “But certification issues throughout Nevada are about to make the paper ballot/hand counting issues of 2022 seem like a distant memory.”
This story was updated on 8/20/2024 at 3:11 p.m. to include statements from Attorney General Aaron Ford and Secretary of State Cisco Aguilar and again at 3:40 p.m. to include a statement from Athar Haseebullah, the executive director of ACLU Nevada.
