ACLU of Nevada v. The County of Nye and Mark Kampf

Nye County resumed its hand count of all ballots on November 10, 2022. The Nevada Supreme Court blocked its prior efforts to do so for mail ballots received before the election. The County’s efforts in pursuing this hand count could set a dangerous precedent for future elections, allowing officials to suddenly stray from fundamental safeguards that protect the integrity of our elections.

With assistance from the Lawyers Committee for Civil Rights Under Law, the Brennan Center for Justice and the law firm, Jenner & Block, represented and served as co-counsel with ACLU of Nevada to seek a court order blocking Nye County and Mark Kampf from carrying out an unlawful hand count—in order to ensure a safe, accurate, and transparent voting process for Nevadan communities.

More case background on the first court case regarding Nye County’s hand-count can be found here.

On October 17, 2022, the Brennan Center assisted the ACLU-Nevada in seeking an emergency writ of mandamus to enjoin Nye County and Mark Kampf, the interim county clerk, from conducting a parallel hand count of ballots before the close of polls on election day, and from implementing other harmful features of his plan.

On October 21, 2022, the Nevada Supreme Court issued an emergency writ of mandamus against Nye County, restricting the county from carrying out part of Kampf’s proposed hand count plan, including by forbidding it from livestreaming the reading aloud of hand-counted ballots prior to the close of polls. The Court ordered the county to ensure that “public observers do not prematurely learn any election results.”

Despite the Court’s order, Nye County moved forward with a public hand-count on October 26, 2022, absent of any approval from either the Secretary of State’s office or the Court of the county’s revised proposal. Not only was this public count unlawfully taking place prior to the close of polls on Election Day, but it also proved to be alarmingly error-prone.

On Thursday, October 27, 2022, ACLU Nevada moved for clarification that Nye County’s vote-counting process violated the Court’s issued order. The Court granted the motion. Nevada Secretary of State, Barbara Cegavske, halted the hand count immediately.

Determined to move forward with its hand-count, Nye County submitted a revised procedure to the Secretary of State to restart after the election, which the Secretary rejected, on November 4, 2022, due to remaining “concerns relating to the integrity of the election.”

On November 7, 2022, Brennan Center for Justice, ACLU of Nevada, and All Voting is Local, Nevada wrote a letter to the Secretary urging her to make clear that not only is it too late to seek approval for any hand count process that begins prior to statewide certification of all contests on Nye County ballots, but Kampf’s hand-count also compromises ballot security and violates Nevada voters’ rights to fair and accurate elections.

Following the November 8, 2022 General Election, Nye County began tabulating results electronically using machines in order to report results to the secretary of state’s office. However, Kampf pursued a “parallel” hand-count of all paper ballots to audit the machine tabulated results. Kampf sent out an email calling for volunteers to join the process in hand-counting all ballots ahead of a Nov. 17 deadline, even inviting volunteers to show up without having undergone training.

The hand-count officially resumed on Thursday, November 10, 2022, at Nye County’s Valley Conference Center. The first day of the hand-count procedure—that Kampf referred to as an “experiment and “test” — proved to be error-prone and time-consuming, much like the county’s first attempt at implementing this manual procedure. Kampf admitted that the error rate was “very, very high,” at an estimated 25%, with ballots having to go through multiple recounts to address inaccuracies.

The evening of November 10, 2022, ACLU of Nevada, along with The Brennan Center for Justice and Jenner & Block as co-counsel, served Nye County and Kampf with an emergency petition for a writ of mandamus enjoining Kampf from pursuing a “parallel hand-count” procedure immediately on the legal grounds that:

• A “parallel process” for counting all ballots has not been provided for under Nevada law, and the risks to voters’ constitutional rights posed by last-minute invented processes are too great. Nevada law provides for parallel hand-counting in two instances: when a county conducts an audit or when a defeated candidate demands a recount.
• Nye County’s “parallel process” of hand-counting ballots falls outside the definition of both an audit and a recount, violating procedures outlined in law for both processes.
• Nevada law requires that counties submit and receive approval from the Secretary of State for plans ensuring the accuracy and security of elections well in advance of the election, to protect voters’ constitutional right to fair and accurate elections. Nye County failed to comply with the state’s pre-approval process, violating legal requirements critical to ballot security and voting accuracy.
• Nye County’s hand counting plans involve unlawfully transporting voters’ ballots from an approved central counting place to an unapproved counting location, violating crucial Nevada ballot-security and transparency laws.

Following the filing of the petition on November 14, 2022, Nye County and Mark Kampf filed their response where they conceded on the record that, “[f]or the 2022 general election, Nye County has not and is not using a hand count procedure to report its official election returns. Instead, Nye County has and is using mechanical tabulators to report official election returns.”

On the evening of November 14, 2022, the Nevada Supreme Court issued an order denying the emergency petition challenging the county’s hand-count procedure. The Court ruled that “extraordinary intervention” was not warranted at this point because Kampf apparently had obtained approval from the Secretary and because he confirmed in his filing that the hand-count would not impact the official returns.

Although the Court permitted Kampf to continue his hand-count, he has admitted that he would not have been able to meet the certification deadline if he hadn’t relied on a machine count.

Documents

• Emergency Petition for Writ of Mandamus (November 14, 2022)
• County of Nye and Mark Kampf’s Answer to Emergency Petition (November 14, 2022)
• Order Denying Petition for Writ of Mandamus (November 14, 2022)