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    ACLU of Nevada and Steven Bacus v. County of Nye and Mark Kampf

    The Brennan Center assisted the American Civil Liberties Union of Nevada in seeking an emergency mandamus against Nye County in the Nevada Supreme Court to prevent the county from implementing an unlawful hand-counting process in the upcoming November election.

    Last Updated: October 28, 2022
    Published: October 17, 2022

    Election denial claims are circulating ahead of the midterms, with dangerous ramifications for our electoral processes and democratic systems. When election officials themselves buy into these conspiracy theories, they may be tempted to ignore established processes that safeguard the vote and the integrity of our elections.

    Nye County has about 30,000 eligible voters, with early in-person voting set to begin on October 22, 2022. Mark Kampf, the current interim county clerk for Nye County, is pushing for a transition to all-paper, and hand-counted elections. This push is part of an agenda that includes an end to the use of machines in elections, early voting, and mail-in voting, all while knowing results on election night.

    On September 20, 2022, Kampf made a presentation to the Board of Commissioners, outlining his plans to conduct a hand count of all ballots in the November 2022 general election, in “parallel” with machine processing of those ballots beginning October 25–which is well before election day. His plans also included limiting touchscreen machines to one per polling place for accessibility reasons (and to limit their use to people with “special needs”), and to employ “stringent” signature verification standards that could push more voters into being asked to show ID. His statements in the meeting and later to the press were at times inconsistent with his visual presentation, yet he insisted his plans were “locked in.” 

    In response to these disconcerting and unclear plans, the Brennan Center submitted a letter to the Nye County Board of County Commissioners, urging it to abandon the hand-count plans, and explaining that proceeding with a hand-count process that begins before election day violates Nevada law, which criminalizes making public any information at all about mail ballot results before election day. 

    On October 4, 2022, the American Civil Liberties Union of Nevada filed an emergency petition for mandamus in the Fifth Judicial District Court of Nevada against Mark Kampf and Nye County. They sought for the defendants to be enjoined against carrying out their plan that puts volunteer talliers at risk of criminal prosecution. That petition was dismissed by a Nye County District judge on October 12, 2022.

    In an urgent effort to prevent Nye County from implementing this unlawful scheme, the Brennan Center assisted the ACLU-Nevada in seeking a mandamus to enjoin Nye and Kampf from: 

    • starting any hand count of any ballots before election day
    • deterring or stigmatizing any voters from using touchscreen machines for in person voting
    • engaging in any signature/identity verification practices that go beyond the procedures outline in Nevada law, including any instruction to pollworkers that they be stringent about matching signatures. 

    Order Granting in Part Petition for Writ of Mandamus

    On Friday, October 21, 2022, the Nevada Supreme Court issued an emergency writ of mandamus against Nye County, preventing the County and Mark Kampf from advancing their stated plans to start a hand-count of ballots before the close of polls, as well as several other features of Kampf’s plans for the November election. The order issued by the Court was three-pronged, addressing the principal issues identified by ACLU-Nevada in their emergency petition.

    First and foremost, the Court ruled that Kampf’s proposed, premature hand-count, and the synchronous livestream of the process, violates Nevada’s state law that explicitly prohibits the public release of results prior to the close of polls. The Court granted a writ of mandamus that instructed the County and Kampf to “refrain from livestreaming the hand-count read-aloud process prior to the close of polls on November 8, require all observers to certify that they will not prematurely release any information regarding the vote count before then, and ensure public observers do not prematurely learn any election results.” In light of these conditions, it would be virtually impossible to conduct a public hand-count, while not releasing any sort of results to the public—two requirements of any pre-election day count in Nevada. Therefore, the County’s plan of initiating a hand count prior to the close of polls is rendered invalid, as it does not comply with these principal requirements. A logical resolution to these conflicting requirements would be to implement the use of certified machine tabulators, which do allow for a verifiable public count without the unlawful, early release of election results.

    Secondly, regarding Kampf’s statements proposing the limited use of touchscreen machines, the Court ruled that writ relief was not warranted in light of Kampf’s clarifying statements. Specifically, the Court noted Kampf’s oral clarification that the County “will provide access to the touchscreen machine to all voters who seek to use it, regardless of any explanation of need.” The Court’s order expressly recognized that if the County were to limit the use of touchscreen machines, as Kampf’s slideshow initially suggested, that process “would violate privacy rights and result in discrimination.”

    Lastly, on Kampf’s proposed points of more “stringent signature verification” and the requirement of providing proof of identification, the Court ruled that the County must refrain from obstructing any of the available methods of proving voter identity established in the state’s statutes. Nevada state law allows for three different methods to prove one’s identity when verifying signatures on the ballot. Accordingly, the Court affirmed that limiting any of these three options is in explicit violation of the law.

    Despite the Court’s order, Nye County moved forward with an “unprecedented hand-count of mail-in ballots” on Wednesday, October 26, 2022. The County began the hand count process absent any approval from either the Secretary of State’s office or the Court of the County’s written proposal. As predicted and forewarned by experts, the hand count is already proving to be alarmingly time consuming and error prone. Mismatched tallies have generated numerous recounts, causing volunteers to get through only a limited number of ballots within hours. It is evident that this hand count is precipitating a taxing and laborious process, and these anticipated complications bring into question the accuracy and efficiency of the hand-count operation.

    On Thursday, October 27, 2022, ACLU Nevada moved for clarification from the Nevada Supreme Court on whether Nye County’s vote counting process violates the Court’s issued order. On Thursday evening, the Court granted their order, clarifying that “observers may not be positioned so as to become privy to the ballot selections and room tallies.” Therefore, the County’s current process was found to be in violation of the Court’s initial order mandating them to “ensure public observers do not prematurely learn any election results.” Promptly following the Court’s clarification, Nevada’s Secretary of State, Barbara Cegavske, told Nye County to “cease hand counting immediately” that evening, and mandated that their current hand-count process may not continue until the close of polls on November 8th.

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