On November 17, 2020, a complaint was filed in Nevada state court on behalf of seven individuals who were the named Presidential Electors for Pres. Trump in the State of Nevada. The Defendants in the case are seven individuals who were the named Presidential Electors for Joe Biden. While ballots in state-by-state elections list the Presidential candidates’ names’ on the ballot, the elections are actually to determine which set of designator electors in each state are officially named to participate in the meeting of the Electoral College. The State of Nevada has determined that the Biden Electors were the winners of the contest, and the Trump electors have filed an “election contest” under Nevada law claiming the outcome is in error.
The case was filed in Carson City, and a District Court judge has set the trial for December 3. Both sides have been given the right to conduct 15 depositions to gather evidence in advance of the trial.
The Trump Campaign has not joined this suit. There are many possible reasons for which, not the least of which is that they didn’t need to join the suit. Nevada law provides that the Electors themselves have a cognizable interest in the outcome of the election, and that interest is sufficient to give them standing to assert that the outcome has been wrongly determined.
While it might seem obvious that this should be the result, the simple fact of the matter is that Nevada law grants the judge presiding over an election contest the power to overturn the outcome and declare the winner of the election based on the testimony and evidence heard by the Court in a trial on an election contest. The statute could not be more clear:
Nevada Revised Statutes 293.417 Judgment of court in election contest.
1. If, in any contest, the court finds from the evidence that a person other than the defendant received the greatest number of legal votes, the court, as a part of the judgment, shall declare that person elected or nominated.
2. The person declared nominated or elected by the court is entitled to a certificate of nomination or election. If a certificate has not been issued to that person, the county clerk, city clerk or Secretary of State shall execute and deliver to the person a certificate of election or a certificate of nomination.
3. If a certificate of election or nomination to the same office has been issued to any person other than the one declared elected by the court, that certificate must be annulled by the judgment of the court.
4. Whenever an election is annulled or set aside by the court, and the court does not declare some candidate elected, the certificate of election or the commission, if any has been issued, is void and the office is vacant.
The election contest was filed by a Las Vegas Attorney, joined by the Alexandria, Virginia law firm Harvey&Binnall. Jesse Binnall’s name might be familiar to some — he has been co-counsel with Attorney Sidney Powell in the defense of General Michael Flynn.
Binnall has been active and vocal on Twitter in connection with the election results in Nevada, calling attention to the fact that Clark County used an automated “signature matching” machine to confirm that signatures on mailed-in ballots matched the signature on the voter registration application filed by the voter.
Under Nevada law an election contest can be premised upon several grounds:
NRS 293.410Statement of contest must not be dismissed for deficiencies of form; grounds for contest.
2. An election may be contested upon any of the following grounds:
(a) That the election board or any member thereof was guilty of malfeasance.
(b) That a person who has been declared elected to an office was not at the time of election eligible to that office.
(1) Illegal or improper votes were cast and counted;
(2) Legal and proper votes were not counted; or
(3) A combination of the circumstances described in subparagraphs (1) and (2) occurred,
in an amount that is equal to or greater than the margin between the contestant and the defendant, or otherwise in an amount sufficient to raise reasonable doubt as to the outcome of the election.
(d) That the election board, in conducting the election or in canvassing the returns, made errors sufficient to change the result of the election as to any person who has been declared elected.
(e) That the defendant or any person acting, either directly or indirectly, on behalf of the defendant has given, or offered to give, to any person anything of value for the purpose of manipulating or altering the outcome of the election.
(f) That there was a malfunction of any voting device or electronic tabulator, counting device or computer in a manner sufficient to raise reasonable doubt as to the outcome of the election.
The election contest filed by the Trump Electors raised several claims.
First, the complaint alleges that Clark County used the “Agilis” signature matching machine to attempt to conduct the mandated “signature matching” requirement between the signature on the outside of the ballot envelope, and the electronic signature on file with the Secretary of State. The complaint alleges that the “Agilis” matching confirmed only 30% of the signatures as matches, and rejected 70% of more than 450,000 mail-in ballots received and processed by Clark County. The complaint alleges these figures establish the clear unreliability of the “Agilis” machine for any purpose.
The complaint further alleges that any reliance on machine matching was contrary to Nevada law which expressly requires the Election Clerk to match the signatures before accepting the mail-in ballot. Because 30% of the ballots processed by the Agilis machine were determined by the machine to be “matches”, those ballots were never subject to the “signature matching” requirements provided for in the statute.
The complaint further states that the signatures that did undergo verification by Election officials were subjected to objectively unreasonable standards in determining if the signatures “matched”.
The complaint also alleges that more than 15,000 votes were cast by persons known to have voted in other states.
The complaint also alleges that more than 1000 votes were cast by persons who no longer met the residency requirements to vote in Nevada.
The complaint also alleges that more than 500 votes were cast in the names of persons who were deceased on November 3, 2020.
The complaint also alleges that an undetermined number of voters arrived at their polling location to vote in person only to be told that a mail-in ballot had been cast in their name, but the voter had not asked for a mail-in ballot or cast a mail-in ballot.
The complaint alleges that more than 500 provisional ballots were cast and then counted without the Election Clerk of the County taking the steps necessary to address the reasons why a provisional ballot was used, such as confirming the voter’s identity or residency.
Finally, the complaint makes allegations regarding insufficient access to the mail-in vote-counting process by the general public as required by Nevada law.
Of all the claims made, the allegations of illegal votes being cast and counted are the ones that are most significant for the purposes of winning the election contest. These are all subject to offering sufficient evidence at trial, but with regard to how illegal votes were cast and counted, but also with regard to the number of such votes.
And that will not be an easy task in a courtroom. For all practical purposes, this is a giant “data mining” project. The task is to cross-reference suspicious voter registrations with the votes cast, looking for signs that the person in whose name the vote was cast was not able to cast a valid ballot for any one of several reasons.
Las Vegas experienced a significant exodus of hotel and casino workers in August and September when major hotel chains began to announce layoffs due to reduced patronage after COVID-19 restrictions were lifted in June 2019. There have been numerous anecdotal cases reported in social media and the press of individuals who moved away from Las Vegas only to learn that a mail-in vote was cast in their name in Clark County.
The final margin of victory for Biden in Nevada was just over 33,500. That is a big hill to climb in a state where only 1.4 million votes were cast. The Plaintiffs either have the evidence or they don’t. We’ll find out on December 3.