Sunday, Nov. 4, 2012 | 2 a.m.
As they have fielded seemingly endless campaign phone calls, reams of election mailings and home visits from get-out-the-vote activists, many election-exhausted Nevadans have consoled themselves with the knowledge that it all will be over soon.
But what if it isn’t?
Narrowing polls, recent allegations of glitches with voting machines and at least one arrest on grounds of voter fraud have raised the specter that the election’s outcome will be challenged, kicking off extended recounts and legal disputes that could make the political season drag on for several more weeks.
“It’s the most likely scenario for a statewide race that we’ve seen in awhile,” said Matt Griffin, a lawyer who specializes in elections and served as the deputy secretary of state for elections in 2010. “If there is a very close margin of victory, there is a fair chance that it’ll end up in litigation.”
Recounts happen in Nevada all the time. It’s just that they often take place at a level where few people notice it’s happening.
But a statewide recount hasn’t happened since John Ensign challenged Harry Reid for the Senate in 1998.
“That was a difficult one. It gets very ugly,” said Bob List, a former Nevada governor supporting Republican Mitt Romney.
List described the recount and challenge process as “hand-to-hand combat.”
“Nevada’s a much bigger place than it was in those days. The larger number of voters means less likelihood there is of coming close enough for a recount to make a difference,” List said. “But I think the presidential race in Nevada is going to be within 5,000 votes. So the one race it could be close enough (for a recount) on a statewide basis could be the presidential.”
Despite List’s predictions, the Senate race between Republican Dean Heller, who’s been serving in the seat since Ensign resigned in 2011, and Democrat Shelley Berkley, who currently represents Nevada’s 1st Congressional District, also has the potential for a recount.
Although it is possible the presidential race might come down to Nevada, most polling models predict that the fate of the White House will be determined by a wider electoral vote margin, making the count behind Nevada’s six electoral votes less crucial.
Nevada’s Senate race, however, takes place entirely within state borders — and could end up being one of the few races that determine which party claims the Senate majority.
Internal and external polls have shown the race between Heller and Berkley is going to come down to a tight margin, maybe within a percentage point.
Candidates are allowed to request a recount within three weeks of Election Day.
But if the difference between the candidates is less than 1,000 votes — or 0.001 percent, based on Nevada’s 2008 turnout — a recount would be highly likely.
Some campaigns seem to be laying the groundwork for making those challenges. On Thursday, the Republican National Committee filed a formal complaint with the Nevada secretary of state about irregularities in voting machines.
“In a significant number of cases, voting machines in your state have populated a vote for Barack Obama when a voter cast his or her ballot for Mitt Romney,” RNC counsel John Phillippe Jr. wrote.
The letter was sent to officials in Colorado, Kansas, Missouri, North Carolina and Ohio as well as Nevada. Colorado, North Carolina, Ohio and Nevada are swing states.
The RNC didn’t go so far as to charge outright that the machines had been rigged, but it did demand that they be recalibrated statewide to avoid errors.
Secretary of State Ross Miller reacted strongly to the suggestion that there might be anything wrong with the process.
“The suggestion that these machines could be pre-programmed in six different states is absurd,” Miller said in an interview, explaining that it would require “a criminal conspiracy” between election officials and politicians before dismissing such an idea as ridiculous.
“We prepare for the elections the exact same way we’ve prepared for a close election every year,” Miller said.
That hasn’t stopped suggestions of voter fraud.
At the Republican National Convention, a representative from the Tea Party-aligned group True the Vote told the Nevada delegation to be on the lookout for vote-stealing. The representative suggested that groups that deliver voters to the polls, especially minority voters — as Reid’s supporters did in 2010 — could be voting illegally.
Democrats have bristled at those types of suggestions.
“Fraud is something that is an imaginary thing with the Republicans,” Reid said last week at an early voting location in the northeast part of Las Vegas. “The only fraud taking place is Republicans trying to stop turnout.”
There is potentially a little more happening than that. On Friday, federal agents arrested a woman at the Riviera. The Secretary of State’s office has accused her of trying to vote twice. The woman, Roxanne Rubin, is a registered Republican.
But Republican Party leaders are not all publicly leaping on the line that voter fraud is a danger this election.
“I heard an anecdotal story of someone who went to vote down at the Meadows Mall and while they were there, a van pulled up that had signs wrapping around it saying ‘Van de Obama,’ and there were a large number of Hispanics on board. They were accompanied by someone instructing them where to vote,” List said. “There are people being bused and moved around by unions and other groups. But I mean, they certainly have the right to vote.”
The bigger issue may be the paper ballots.
According to Miller, about 8 percent of the state still casts nonelectronic ballots, most from rural precincts that operate on a mail-in ballot system.
“In Nevada, the voting machines are very, very accurate. It’s not like the days of punch-card voting and paper ballots,” Griffin said. “So most of the votes that are going to be at issue in any recount will be found on absentee ballots.”
Absentee ballots, being on paper, are less tamper-proof than electronic ballots and more prone to human error in the counting. According to a recent study from Rice University, the error rate for hand-counted paper ballots is about 2 percent. The Sequoia and Optech voting machines that Nevada uses at its polling stations have error rates of less than 1 percent.
“People think that recounts are perfect and elections are not, but they’re both imperfect in the same way,” Griffin said. “But you hope the second imperfection helps your guy more than the first one.”
But if an election outcome is contested, it’s more likely it won’t be simply a matter of recounting ballots. The final decision could come down to the courts.
“It works on the court’s schedule. The court is mindful of dates where people need to be sworn in and circumstances where challenges can create vacancies,” Griffin said. “But it bounces back and forth, so it’s hard to say how long it would take.”