Tracey Hilton-Thomas District 4 Commissioner Candidate

Response to DA’s Analysis of Election Resolution

To Commissioner Herman:

by Tracey Hilton-Thomas

Washoe County Deputy District Attorney Ms. Hickman wrote an analysis of the current 2023 Election Resolution. While I appreciate her analysis as I do not possess the courtroom acumen she has, I do have the institutional and application knowledge and experience which she may not, and can provide a more accurate perspective on the processes of Washoe County elections.

Ms. Hickman’s assumptions about the processes for voter registrations, provisions for hand counts in a recount, and “casting” of ballots are incorrect.

The Nevada Revised Statutes do provide procedures for preregistrations in NRS 293.4855. However, they are not what Ms. Hickman implies, nor is the resolution referring to preregistrations. The resolution is referring to duties and responsibilities the county is bound to in NRS 293.503, 293.505, 293.517 and 293.530.

NRS 293.503, item 3 states “clerk shall maintain records of any program or activity that is conducted within the county to ensure the accuracy and currency of the statewide voter registration list” and item 4 states, “Any program or activity that is conducted within the county for the purpose of removing the name of each person who is ineligible to vote in the county from the statewide voter registration list must be complete not later than 90 days before the next primary or general election.” NRS 293.505, item 12 states, “A county clerk, field registrar, employee of a voter registration agency or person assisting another person pursuant to NRS 293.5235 shall not:

(a) Knowingly: (1) Register a person who is not a qualified elector or a person who has filed a false or misleading application to register to vote; or (2) Preregister a person who does not meet the qualifications set forth in NRS 293.4855; or (b) Preregister or register a person who fails to provide satisfactory proof of identification and the address at which the person actually resides.

NRS 293.517, item 1 states, “The county clerk shall require a person to submit official identification as proof of residence and identity, such as a driver’s license or other official document, before preregistering or registering the person.” And item 3 stipulates an “application to register to vote must be signed and verified under penalty of perjury by the person preregistering or the elector registering.”

NRS 293.530, item 1(a) states, “clerks may use any reliable and reasonable means available to correct the portions of the statewide voter registration list which are relevant to the county clerks and to determine whether a registered voter’s current residence is other than that indicated on the voter’s application to register to vote.” And item 1(b) states clerks “may, with the consent of the board of county commissioners, make investigations of registration in the county by census, by house-to-house canvass or by any other method.”

NRS 293.800, item 2 states, “A public officer or other person, upon whom any duty is imposed by this title, who willfully neglects his or her duty or willfully performs it in such a way as to hinder the objects and purposes of the election laws of this State, except where another penalty is provided, is guilty of a category E felony and shall be punished as provided in NRS 193.130.” And item 4 states, “any other person who induces, aids or abets the person in the commission of” causing a name to be registered when it is not qualified to be an elector “is guilty of a category E felony and shall be punished as provided in NRS 193.130.”

Therefore, Washoe County has a responsibility to ensure false or duplicate records are NOT being entered into the statewide system from the beginning of registration. This is especially imperative due to the much more stringent requirements to “remove” records from the database. Currently, election laws only allow for the “deletion” of records upon the voter’s request or proof of death.

The resolution is an effort to protect Washoe County from violation of election laws by failing to ensure accurate and current information into the statewide system.

Nevada’s current election laws allow flexibility for counties to conduct elections according to the needs of their community (ie NRS 293.269925). Therefore, Dillon’s Rule does not limit how counties conduct their elections. One such flexibility is the ability to conduct “parallel tabulations” involving running paper ballots through mechanical tabulators and checking the results with an additional hand count of all ballots. Nye County set a successful precedence for this option in the 2022 election.

Nevada’s election laws and constitution also provide restrictions in the release of election information. Ms. Hickman failed to provide a reference to any requirement to post “unofficial” results on “election eve.”

Nevada’s Voter Bill of Rights

Codified in Article 2 of the Nevada Constitution, stipulates that each “qualified” voter has the right “to vote without being intimidated, threatened, or coerced,” “equal access to the elections system without discrimination,” and “a uniform, statewide standard for counting and recounting all votes accurately as provided by law.” Again, Dillon’s Rule does not restrict counties from protecting their elections and their voters.

The release of ballot counts is an attempt to influence and “coerce” voters. Further detail about those ballot counts (ie separated into political affiliations) is an attempt to intimidate voters or instill fear and panic. It also provides an advantage to voters who have yet to cast a ballot and thereby presenting “unequal access to the election system.” The “election system” is the whole system, not just a voting kiosk. All ballots must be given equal importance and discretion.

Ms. Hickman is correct in stating that election information shall not be released until the last ballot is “cast.” She is incorrect in her assumptions as to when a ballot is considered “cast.”

NRS 293.383, item 2 states results are to be posted “as soon as possible.” Item 3 states, “the Secretary of State shall notify each county clerk as soon as is reasonably practicable when every polling place is closed and all votes have been cast.” Item 4 states the voting results “must set forth the accumulative total of all the votes cast within the county.”

“All votes” includes votes from all ballots, electronic and paper, which are processed differently. An electronic ballot is “cast” when the voter selects the “cast ballot” button on the voting kiosk, not when they check in at the intake station or when they have been given a voter card. A paper ballot is “cast” when it is inserted into the tabulation system, not when it has been “processed” through the sorter, signature verification, or separation of the privacy sleeve. And provisional ballots cannot be “cast” until after election day.

NRS 293.3082, item 1 (h) states “required identification must be provided to the county or city clerk not later than 5 p.m. on the Friday following election day.” At the minimum, ballots are being “cast” up to this time.

Furthermore, since current laws allow for the acceptance of paper ballots with a date stamp of election day, voters in different time zones can still mail a ballot after results are being reported. This further exploits the unequal access to the “election system.”

Nevada’s Administrative Code (NAC) does provide direction to the counties on processes and procedures for elections of federal and state offices. However, this is more administrative in nature and not “law.” There are no penalties for failing to comply with these codes.

The NAC does not stipulate absolute dates and times for reporting election information. The guidance is “as soon as practicable.” NAC 293.215 and 217 address the reporting of opening and closing of polls during early voting and on election day and the voter turnout of election day in NAC 293.219. It does not require reporting of turnout during early voting.

Therefore, the resolution is in compliance with election laws in protecting Washoe County from violating the Voter’s Bill of Rights located within the Nevada Constitution.

Thank you for your consideration.

(The views expressed in this commentary are those of the author and do not necessarily reflect the official position of the Nevada Signal.)