Nevada Election Technology Challenged

A growing dispute over Nevada’s election systems and the authority of local officials to certify results has brought renewed scrutiny to Ballot Marking Devices, central tabulation procedures, and actions taken by Secretary of State Francisco Aguilar.

At the center of the debate are Ballot Marking Devices (BMDs), which machine-print a voter’s selections onto a paper ballot.

Supporters state the devices produce pristine, uniform ballots and reduce ambiguity in vote interpretation. Critics counter that the uniformity of machine-printed ballots makes it impossible to distinguish between authentic ballots and any forged or artificially inserted ballot images.

The new system relies on a central scanner-tabulator located at polling sites. Opponents have outlined several concerns they believe conflict with Nevada law.

First, they argue the system creates a non-uniform method of counting votes in violation of NRS 293.2546(10). In-person ballots are imaged and tabulated at the polls before being transferred to central counting, while mail ballots delivered to a drop box at the polls are transported to central counting and then imaged and tabulated.

Secondly, critics argue that votes tabulated before accounting for all ballot conflicts directly contradict NRS 293.365.

Third, they maintain that the imaged vote stored on an SD card created by the central scanner-tabulator is not human-auditable, citing NRS 293.2696(4). They argue that voters and officials have no independent way of verifying if a voter’s selections were recorded accurately in the digital record.

Fourth, opponents argue that depending on a central scanner-tabulator creates a bottleneck in ballot processing, which could lead to longer wait times at polling locations. Fifth, they assert there is no clear provision ensuring the secrecy of a voter’s ballot while waiting in line to scan it.

Beyond the technology concerns, critics accuse the Secretary of State of disseminating disinformation regarding election law and improperly pressuring local officials.

In Aguilar v. Commissioners Andriola, Clark, and Herman, Nevada Supreme Court Case No. 88965, Secretary Aguilar argued that certification of the recount of two local races in Washoe County was a “ministerial, non-discretionary” duty of the Board of Commissioners. He described NRS 293.387, which governs the canvassing by the board, as “facially clear” and argued that commissioners lacked the authority to delay or deny certification regardless of their concerns.

Opponents dispute that characterization, noting that the words “ministerial” and “non-discretionary” do not appear in Title 24 of the Nevada Revised Statutes. They argue that NRS 293.387 is not clear but instead requires certification of “the true vote cast,” thereby emphasizing accuracy. While statutory time limits for canvassing exist, there is no specified penalty for delay or denial of certification, aligning with an official’s rights and responsibilities.

They argue that the legal actions and public statements made by the Secretary of State constituted threats and intimidation. After filing suit, the Secretary, a Democrat, criticized Republican Board members on social media, warning of “the potential to set a dangerous precedent” and asserting that actions “would undermine confidence in our democracy.”

Under pressure, the Washoe County Board of Commissioners approved the recounts, and the case was closed.

The Secretary later filed an extraordinary petition seeking to reopen the moot case, warning of “catastrophic disruption in the general election” and “the threat of rogue county commissioners flouting their ministerial duty to canvass election results.” He also referenced “baseless attacks against election results” and “conspiratorial public comments.”

Critics argue that such language implies criminality and portrays members of the public as seditious. They contend the Nevada Supreme Court denied the Secretary’s petition but left open the possibility of future district court litigation, creating what they describe as a chilling effect on local officials who question election results.

Opponents cite multiple legal authorities in support of their position. They reference Dunn v. Blumstein, 405 U.S. 343 (1972), quoting Shelton v. Tucker, 364 U.S. 479 (1960), for the principle that when a state acts, it must choose “less drastic means.” They also cite People ex rel. Chamberlin v. Trustees of Schools, 97 Ill. 627 (1881), arguing that failure to deny well-pleaded material facts constitutes admission.

Further, the Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011), noted that the Nevada Supreme Court held that voting is protected speech in reversing a lower court decision involving former Sparks City Councilman Michael Carrigan. They also reference the case Clark County v. City of Las Vegas, 92 Nev. 323, 550 P.2d 779, which establishes the principle that a county board must consider the interests of all its citizens. Additionally, a subsequent decision from 1978 confirms that a county or city’s rights in elections are not to be diminished, as stated in Article 4, Section 20 of the Nevada Constitution.

Article 4, Section 20 enumerates rights, including governing the election of county and township officers. Critics argue this grants counties authority to self-regulate races for county commission and school board trustee positions.

They further allege that the Secretary’s actions obstructed county business and coerced commissioners’ votes, citing potential violations of NRS 33.240, NRS 293.710, and NRS 293.2546(3), which protects the right “to vote without being intimidated, threatened or coerced.” They also reference NRS 202.595 regarding ballots as property and NRS 283.440(2)(b) concerning official duties, arguing that ignoring substantive evidence of malfunction or malfeasance could constitute neglect of duty.

Critics maintain that seeking to reopen a moot case at the Nevada Supreme Court, rather than filing in district court if concerns exist, was improper and partisan. They argue that public officials have both the right and the obligation to investigate substantive evidence of malfunction or manipulated results, including what they describe as irrefutable evidence of manipulated results from the 2024 primary.

The Secretary of State’s office has previously maintained that uniform enforcement of election laws is essential to ensure orderly administration and public confidence.

As Nevada moves toward future elections, the dispute underscores deep divisions over ballot technology, certification authority, and the balance of power between state officials and local governments.