It turns out that some things that happen in Vegas may not stay in Vegas . . . like voting. The Republican Party in the Silver State is now arguing that thousands of votes in the close presidential election were cast by workers who moved out of the state or even by deceased individuals. Various voters reported their deceased relatives receiving live ballots in the mail. Now, the Nevada Republican Party has sent a criminal referral to the Justice Department alleging at least 3,062 instances of voter fraud in the battleground state. The referral is substantially less than the “10,000” referenced earlier but the underlying allegation is still important. The early concern for many of us was that the system established in Clark County would be difficult to review for violations due to how the tabulation was handled and the record preserved.
The allegations over ineligible voting were raised before Election Day. Many states like Nevada are relying on notoriously outdated voter lists and applying fairly lax standards for confirming the identity of voters for mail-in ballots. In Nevada, this is a particular concern because many workers moved out of the state due to the pandemic’s impact on the casino industry. You cannot vote if you moved out of the state over 30 days prior to the balloting. The problem is the accuracy of state voting and residency records in showing such changes shortly before an election. Absent a system of authentication of residency and identification, it would be a system based on the honor system – an approach that no casino would allow even at the nickel slots section.
As courts deal with a flurry of lawsuits in various states, I have been focusing on the allegations in Nevada of thousands of ineligible or even deceased voters. That is the type of systemic failure that could cloud results in not just the Silver State but other states. Nevada was one of the states that I identified before the election as one of three states that I was watching the most closely for election challenges. However, the problems raised in Nevada could raise concerns with shared elements to various states from Michigan to Pennsylvania. The reliance on questionable voter lists and the lack of authentication systems were raised months ago. The legal problem is not simply that such systems may allow for large numbers of ineligible votes but that they would not allow sufficient review of ballots to resolve such questions.
The criminal referral is substantially less than the “10,000” referenced earlier but the underlying allegation is still important. The early concern for many of us was that the system established in Clark County would be difficult to review for violations due to how the record was being preserved.
The Republicans are claiming that this is just the first set of identified voters with alleged ineligibility. Conversely, Nevada Gov. Steve Sisolak, a Democrat, issued a statement arguing the state was “widely recognized as being a leader in election administration,” and that he had “the utmost confidence in the abilities of Nevada’s local election officials and Secretary of State Barbara Cegavske to accurately count every eligible vote cast in the Silver State.” We have no basis to rule in or rule out either claim.
I have repeatedly stated that we must not make assumptions on either side. My concern is that it is not clear how a court could review these ballots in Clark County if it agrees that there appears to be systemic problems. If the court believes that thousands votes illegally, that lack of a record could prove the undoing of the state officials. At some point, the burden can shift and courts demand proof that a problem was not systemic. If they cannot, the question will be raised whether the same vulnerability existed in other states like Pennsylvania, Michigan, or Georgia. A court could be presented with a decision of when the unknowable becomes the unacceptable. If the court believes that thousands of unlawful votes were cases and the ultimate number impossible to confirm, the only certain way to address a systemic failure would be a special election – a prospect that few judges would relish and even fewer would seriously consider.
What we know is that we are rapidly running out of runway to deal with this problem. The options range from a detailed review of ballots to the remote possibility of a new election. All of those options take time as we saw in 2000 with the Florida recount. If the time runs out, we could have an election with lingering doubt over the legitimacy of the vote count in states like Nevada – a poisonous prospect for any democratic process.
“Gonzo reporter” Hunter S. Thompson once said that “For a loser Vegas is the meanest town on earth.” The question for a court may be whether it is equally unkind to a winner if he cannot prove what he won.