Nevada Supreme Court won’t decide certification of election flap, for now

RENO — Nevada’s Supreme Court declined Aug. 20 to wade into an electoral controversy despite pleas from the state’s top election official and attorney general after Washoe County initially voted against certifying recount results from the June primary.

The Democratic officials wanted the justices to make clear that counties have no legal authority to refuse to certify election results.

The high court said in a ruling that the matter was moot since the Washoe County Commission’s original 3-2 vote against certification was later nullified when it re-voted the following week to certify the results.

The court dismissed Secretary of State Cisco Aguilar and Attorney General Aaron Ford’s request for a ruling declaring the commission acted illegally. But the justices also made clear that they have the legal authority to make such a declaration and warned they may do so on an expedited basis if it becomes an issue again.

“As petitioner argues, even when an issue becomes moot, we may still consider the issue if it constitutes ‘a matter of widespread importance capable of repetition,’” the court said.

Aguilar and Ford had argued that it’s likely the county commission would refuse to certify results from the general election in November. The court agreed that the issue is important but said it wasn’t convinced that there would likely be a repeat.

Once seen as a mundane and ministerial task, election certification has become a pressure point since the 2020 election. During the midterms two years later, a scenario similar to what is unfolding in Washoe County played out in New Mexico after that state’s primary, when a rural county delayed certification and relented only after the secretary of state appealed to the state’s supreme court.

Aguilar and Ford said in their request to the Supreme Court that Nevada law makes canvassing election results — including recounts — by a certain date a mandatory legal duty for the county commission. It also says commissioners have no discretion to refuse or otherwise fail to perform this duty.

Aguilar and Ford have argued previously that the certification flap has potential implications this November in one of the nation’s most important swing counties. Voter registration there is roughly split into thirds among Democrats, Republicans and nonpartisans.

Aguilar and Ford said Aug. 20 they were disappointed the justices declined to provide additional clarity on the law before the Nov. 5 general election.

“I strongly believe that legal uncertainty in this matter contributes to unfounded distrust in our elections,” Ford said in a statement.

Aguilar said election workers in Nevada “deserve support from the legal system, voters deserve confidence in the legitimacy of our elections, and elected officials must have accountability for their role in the 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,” he said, also in a statement.

Two of the Republican Washoe County commissioners — Jeanne Herman and Mike Clark — have consistently voted against certifying results and are supported by a wider movement that promotes election conspiracy theories. Republican Clara Andriola, whom that movement targeted in the primaries, initially joined them in voting against certification, one of which involved the primary race she won.

After the board revisited the issue and approved the recount numbers, Andriola said she reversed course after speaking with the county district attorney’s office. She said it made clear that the commission’s duty is to certify election results without discretion.

“Our responsibility is to follow the law,” Andriola said.