Nevada’s Supreme Court declined Tuesday to wade into an electoral controversy despite pleas from the state's top election official and attorney general after one county initially voted against certifying recount results from the June primary.
The Democratic officials wanted the justices to make clear that counties have no legal authority to refuse to certify election results.
The high court said in a ruling that the matter was moot since the Washoe County Commission's original 3-2 vote against certification was later nullified when it re-voted the following week to certify the results.
The court dismissed Secretary of State Cisco Aguilar and Attorney General Aaron Ford's request for a ruling declaring the commission acted illegally. But the justices also made clear that they have the legal authority to make such a declaration and warned they may do so on an expedited basis if it becomes an issue again.
“As petitioner argues, even when an issue becomes moot, we may still consider the issue if it constitutes ‘a matter of widespread importance capable of repetition,’” the court said.
Aguilar and Ford had argued that it's likely the county commission would refuse to certify results from the general election in November. The court agreed that the issue is important but said it wasn't persuaded there would be a repeat.
Aguilar and Ford did not immediately respond to requests for comment Tuesday.
Once seen as a mundane and ministerial task, election certification has become a pressure point since the 2020 election. During the midterms two years later, a scenario similar to what is unfolding in Washoe County played out in New Mexico after that state’s primary, when a rural county delayed certification and relented only after the secretary of state appealed to the state’s supreme court.
Aguilar and Ford said in their request to the Supreme Court that Nevada law makes canvassing election results — including recounts — by a certain date a mandatory legal duty for the county commission. It also says commissioners have no discretion to refuse or otherwise fail to perform this duty.
Aguilar and Ford have argued previously that the certification flap has potential implications this November in one of the nation’s most important swing counties, which includes Reno and Sparks. Voter registration there is roughly split into thirds among Democrats, Republicans and nonpartisans.
“It is unacceptable that any public officer would undermine the confidence of their voters,” Aguilar said.
Two of the Republican Washoe County commissioners — Jeanne Herman and Mike Clark — have consistently voted against certifying results and are supported by a wider movement that promotes election conspiracy theories. Republican Clara Andriola, whom that movement targeted in the primaries, initially joined them in voting against certification, one of which involved the primary race she won.
After the board revisited the issue and approved the recount numbers, Andriola said she reversed course after speaking with the county district attorney’s office. She said it made clear that the commission’s duty is to certify election results without discretion.
“Our responsibility is to follow the law,” Andriola said.
Nevada Attorney General Aaron D. Ford released this statement:
"I respect the Supreme Court's decision, although I strongly believe that legal uncertainty in this matter contributes to unfounded distrust in our elections. I will continue to work with Secretary of State Aguilar to protect Nevadans' right to have their electoral voices heard."
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AUGUST 20, 2024:
Secretary of State Francisco Aguilar and Attorney General Aaron D. Ford have filed a brief urging the Nevada Supreme Court to confirm the legal obligations of Washoe County commissioners and hear the petition filed by both offices following the Washoe County Board of Commissioners’ failure to certify two vote counts in the June Primary.
"While the Washoe County Board of Commissioners corrected their failure to canvass the recounted elections, their initial vote sent a dangerous message. The Supreme Court must take up this issue and confirm the obligation of county commissioners to certify the votes of their constituents,” said Secretary of State Francisco Aguilar. “We must have a legal precedent affirming that the canvass of the vote is ministerial, and that no elected official can deny the results of a legitimate election.”
“I’m grateful to our partners in the Attorney General’s Office for their commitment to our democracy and dedication to upholding the integrity of our elections."
Last month, Washoe County commissioners voted 4-1 to canvass the results of two primary election races that underwent recounts. The vote reverses a previous vote on the issue made by the Commission.
Commissioner Clara Andriola said she received the clarification she needed from the Registrar of Voters’ office to canvass the vote.
Commissioner Michael Clark said he was made aware that the commission vote to canvass the election is not discretionary, and that he could face criminal prosecution and be removed from office for not voting to certify the election results.
Commissioner Jeanne Herman was the sole vote against certifying the election results.
"Yesterday, my office filed a brief with Nevada Supreme Court explaining why our case against the Washoe County Board of Commissioners for initially refusing to certify the June 2024 primary election recount results is not moot," said Attorney General Aaron Ford.
"Although the Board eventually canvassed the recount results, we have asked the Court not to dismiss our case so as to provide clear guidance on this important issue. It is vital that the Court to make a ruling confirming the legal obligation of county commissioners to canvass and certify election results. Otherwise, we run the risk of further voter disenfranchisement and the destabilization of Nevada and federal elections."
