The ‘election integrity’ resolution championed by Board of County Commissioners member Jeanne Herman is back on the agenda for the March 22 meeting, this time with a lengthy staff report and research materials.
Analysis of Herman’s proposal confirms it would be expensive, violate state law and is impractical given already established voter protections.
County – and Nevada Legislature – staff evaluated the 20 points outlined in Herman’s proposal. The county found three of the recommendations are either already in law or included in the Registrar of Voters’ procedures. Six more of the items aren’t within the purview of the board of commissioners to change or approve.
Several items were noted to have a fiscal impact as well, including sending ballots by certified mail, splitting shifts for poll workers and printing special provisional ballots. The total for these three recommendations was estimated to be $5 million per election year – $3.9 million of which would be just for certified mail.
But that won’t matter. The research division of the Legislative Council Bureau (LCB) in a memo reviewing the election resolution said certified mail of ballots would require a change to state law. The Washoe County District Attorney’s office, in a legal analysis, agreed.
LCB researchers said state law would also need to be changed to allow for ballots to be scanned as received before being dropped into ballot boxes and for party central committees to approve poll worker teams.
In its legal analysis, the DA suggested party approval of poll workers would be tantamount to “a tic-tac-toe scenario of endless deadlocks.”
The item suggesting National Guard presence at each polling location was changed on the resolution to instead suggest Washoe County Sheriff’s deputies. However, staffing levels at WCSO are too low, making it impossible to meet that demand.
Analysis of the proposal also identified a number of the items that would be in conflict with federal and state laws.
Dillon’s Rule and legal analysis
A legal analysis conducted by the DA’s office also weighed in on the election resolution “to identify major issues involved with the proposed resolution with the ultimate goal of providing useful guidance to the county commission in its decision-making process.”
In the report, Assistant DA Nathan Edwards reviewed what’s called “Dillon’s Rule,” a way for the legislature to resolve conflicts between state and local entities. Edwards notes that the rule essentially says that counties only have the powers expressly given to them by the state, and that in cases where existence of a power is in doubt, the power is presumed not to exist.
Basically, counties aren’t permitted to establish laws and policies unless the state has given them the power to do so.
Using the rule, the legal analysis concluded that election law isn’t a matter of local concern. Power to regulate elections lies primarily with the state and federal government, largely in an effort to ensure uniformity. Counties have only been given limited powers to affect election processes and rules.
Some of those provisions not within the county’s scope of power include purging voter registrations every five years, additional citizenship verifications beyond what’s already in federal law, and maintaining “forensic material of elections.”
While the concept of hand counting of ballots was determined to be allowed, Edwards noted that this could be in violation of the state’s constitutional requirement for “a uniform, statewide standard for counting and recounting votes accurately.”
Just this week in Nye County, commissioners voted to request their county clerk switch to hand-counted paper ballots for this year’s primary and general elections.
Other provisions, such as “stealth ballots,” posed a challenge to analyze because legal and election officials are unsure as to what the term even means.
