Nevada Supreme Court Declines to Rule on County Board’s Election Certification Duties

The Nevada Supreme Court dismissed a lawsuit Monday filed by Secretary of State Francisco Aguilar (D) because Washoe County commissioners decided to certify the June primary election results without the court mandating them to do so. However, the justices still could have issued a ruling that would prevent this from happening again.

In his petition to the court, Aguilar asked the justices to require the Washoe Board of County Commissioners to certify the June 9 primary election results for two races before August 22, which is the date under state law that general election ballots must be finalized.

He also noted there’s a broader issue here that needs to be addressed: what the role of the board actually is. 

Aguilar argued in his lawsuit that under state law, the boards’ “duty to canvass the Primary Election recount results is mandatory and thus purely ministerial.” He further explained that there’s “no exercise of discretion,” and “there are no circumstances in the statute or regulation under which the Board may simply decline to canvas.”

Also, he stated it’s the board’s job to certify the election results, not investigate or determine instances of fraud. 

He explained in the lawsuit “the proper forum for resolution of those concerns is the courts,” and that “Nevada law does not allow the Board to take this judicial function into its own hands or execute this end-run around Nevada’s judicial process.”

While his lawsuit specifically referred to the board’s recent decision not to certify primary races — which was based on “vague and unsubstantiated” claims that the recounts were untrustworthy — he noted his claims are relevant to future scenarios as well.

“If, as [the Washoe County commissioners] have done here, a county fails to carry out the statutorily prescribed canvass, grave consequences loom,” Aguilar said.

Additionally, he highlighted that “a Board action like the one at issue might even raise questions as to the winner of the races at issue, and uncertainty regarding whom to place on the general election ballot—or, in the general election, the content of a certificate of election or ascertainment.” 

In their order, the Nevada Supreme Court justices acknowledged “there is a likelihood that a similar issue will arise in the future” and “the matter is important,” highlighting Aguilar’s argument that this could happen again as soon as the 2024 general election.

However, they argued if this happens again, Aguilar can just bring this issue back to the court to be litigated, and he can again seek relief on an “expedited basis.” They said there’s not enough justification to say that it will “evade” review by the court.

The justices chose not to take action to prevent this from happening again — in a swing state during a consequential presidential election — and would rather handle it after the damage has already been done.

In a statement Tuesday, Aguilar said it’s crucial that Nevada voters have confidence in elections and that elected officials are held accountable for their role in the electoral process.

“I’m hopeful that the Court will do the right thing should we find ourselves in a worst case scenario, but it’s disappointing that we have to wait for a true crisis to have this matter heard,” Aguilar said. “I know that my office, alongside Attorney General [Aaron] Ford and his team, will be ready to stand up for our democracy.”

This issue also came up recently in Georgia after the State Election Board passed new rules giving county election boards more power to delay or deny certification of results.

Read the Nevada Supreme Court’s order here.

Learn more about the case here.

This story was updated on Aug. 21, 2024, at 9:40 a.m. EDT to add a statement from Nevada Secretary of State Francisco Aguilar (D).

Previous update, July 17

Washoe County Commissioners voted to certify the recount for primary election races on Tuesday after facing legal action for refusing to do so last week.

On July 11, the commissioners voted 3-2 against certifying the results of an official recount of two June 9 primary election races  — one for a seat on their board and the other for a county school board position.

The three Republicans on the board voted to halt the process while the two Democrats dissented.

That same day, Nevada Secretary of State Francisco Aguilar (D) filed a petition in the state Supreme Court, asking the justices to require the entire Washoe Board of County Commissioners to certify the election results, which is one of their duties under the law.

Then, at a Tuesday meeting, the commissioners voted 4-1 to reconsider their decision and confirm the recount results. 

Clara Andriola, a Republican whose board seat was one of the races subject to a recount, originally voted against certification but changed her mind in this recent vote.

Vice Chair Jeanne Herman — a Republican — voted against certification both times.

“Regarding elections in our county, many citizens feel concern over them and have lost faith in them. This is dangerous,” Herman said at the Tuesday meeting. “There’s no appetite for making our elections safe and honest.”

Herman claimed many constituents have come to her with reports of election fraud.

However, she did not provide any examples of the fraud she spoke of. Also, in his petition to the court, Aguilar said the allegations that the county’s recount processes are untrustworthy are “vague and unsubstantiated.”

The commissioners’ change of heart essentially moots Aguilar’s petition to the state’s highest court, but the justices could still issue an order in this case.