The Nevada Supreme Court denied an emergency writ from two voting rights groups on Monday that sought to shut down a controversial hand-count of all paper ballots in rural Nye County, meaning that the county clerk can continue the hand-counting of ballots that have been counted by machine tabulators.
“Having reviewed the petition and answer, we conclude that petitioner has not demonstrated that our extraordinary intervention is warranted at this time,” the justices said in their decision.
Officials in the county first started a hand-counting process on Oct. 26 but the Nevada Supreme Court ordered it shut down a day later, siding with the American Civil Liberties Union’s objections to volunteers reading election results aloud. Nye County resumed a revised version of its hand-counting last week after Republican Secretary of State Barbara Cegavske ordered the county to halt its counting until after polls closed.
While Nye County commission members have shown support for scrapping voting machines completely, machine tabulators are the primary counting method for this election, and Nye has already reported the results of nearly 21,000 ballots cast.
Nye County, home to about 34,000 registered voters, is the most prominent county in the U.S. to change its vote-counting process in reaction to conspiracy theories about election fraud tied to voting machines, though there has been no credible evidence of widespread fraud or manipulation of machines.
An Arizona county is also embroiled in a legal battle over whether it can conduct a near-total hand-count of ballots after Election Day.
As the hand-counting resumed last Thursday, interim county clerk Mark Kampf told the Las Vegas Review-Journal that it would act as an audit of the machines.
In their lawsuit filed Monday, the ACLU of Nevada and Brennan Center for Justice argued the interim county clerk there is “inventing” an unauthorized hand-counting practice that was not legally vetted.
Nye County’s new hand-counting plans, submitted after the previous plans were scrapped, were not submitted by the deadline of 90 days before the general election, they mentioned. While their original plans were submitted by the deadline, the hand-count process was revised and reworked the previous week into a new system.
The organizations also say that the new location where Nye County is hand-counting ballots was not approved, further undermining the “security and integrity” of the vote count.
The petition also argues that the county’s plan does not meet the statutory requirement for a recount, audit or contest of an election.
While the court acknowledged that a “significant portion” of the petition said that the county violated the secretary of state’s regulations, they noted that the hand-count plan was approved by the secretary of state on Nov. 5. Nye County also contacted the secretary of state’s office on Nov. 7 with the plans.
The organizations also raised “a number of fact issues” regarding the hand-count process and location change, that would need to be decided in a district court.
“As we have repeatedly emphasized, this is not a fact-finding court,” the justices said.
The court noted that the organizations did not put Nevada’s secretary of state as a defendant, despite the organizations claiming the office did not follow its own regulations when approving the hand-count.
And, because of Nye County’s hand-count acting as a secondary measure to its machine tally, they could revise the hand-count process later than 90 days before the election.
The filings are the latest development in a conflict between the rural county’s election administration and the ACLU that has spawned lawsuits, complaints to the secretary of state’s office and a series of Nevada Supreme Court rulings that have fundamentally altered Nye County’s plan for its parallel hand-count.
Under the revised hand-counting plan the county is using, volunteers wearing gloves sit in groups of three, each tallying one ballot at a time, then passing them on to the next worker. Another volunteer checks that all three reviewers counted the same number of votes.
Nye County spokesperson Arnold Knightly said the county would not comment on the initial filing.
Athar Haseebullah, executive director of the ACLU of Nevada, said in a statement that the organization was “disappointed” in the courts decision, but was looking forward to working with a new secretary of state and Legislature “to make sure our democracy isn’t undermined by conspiracy theorists interested in growing their political power.”
Kampf, the county clerk who is running the hand-count, has repeated false claims that the results of the 2020 election.
There are 658 jurisdictions in the contiguous U.S. — mostly small townships across New England and rural Wisconsin — that rely exclusively on hand-counting, with the vast majority having fewer than 2,000 registered voters, according to data from Verified Voting, a group that tracks voting equipment across states.
The most populous county in the U.S. to use only hand-counting is Owyhee County, Idaho, which had 6,315 registered voters as of 2020.