Las Vegas Sun

March 29, 2024

State government:

What would happen if the secretary of state were to refuse to certify Nevada’s election results?

Election Integrity Protest

Ricardo Torres-Cortez

Former Nevada Assemblyman Marchant addresses a crowd in front of the Nevada Capitol Thursday March 4, 2021, where the Nevada GOP delivered what they described as 120,000 “election integrity violations reports” alleging widespread voter fraud during the 2020 election.

Republican Jim Marchant, a former Nevada Assemblyman vying to be Nevada’s next secretary of state, has said he would not have certified the 2020 presidential election in which President Joe Biden won by more than 30,000 votes here against Donald Trump.

He’s facing Democrat Cisco Aguilar in November in a midterm election where Republicans up and down the ballot in Nevada are optimistic for a red wave. And if Marchant were to win, his refusal to certify an election could become reality in future elections that yield a result unfavorable to Republicans convinced of election irregularities — even though there’s no tangible evidence of meaningful fraud.

In December 2020, when election integrity conspiracy theorists in the Nevada Republican Party signed fraudulent electoral certificates in favor of Trump — not Biden — as the 2020 winner of the popular vote in Nevada, Marchant participated as a fake elector.

Republican Secretary of State Barbara Cegavske and her office spent 125 hours investigating her party’s claims of election fraud, but her office could not find evidence of any widespread fraud that would have altered the results of the election.

Democrat Attorney General Aaron Ford did find one example of voter fraud: a Las Vegas resident, Donald Kirk Hartle, who pleaded guilty to voting more than once in an election. He is a registered Republican.

And despite multiple judges dismissing court cases claiming election fraud, Marchant still clings to the claim that the 2020 election was stolen. When asked for specifics about if he would refuse all counties or just certain ones, Marchant said in an email that he would not certify certain counties if “there were significant irregularities” and would rely heavily on the judgment of the county clerk or registrar when making that decision.

As an example of issues with the election process, Marchant pointed to the 2020 race for Clark County Commission between Ross Miller and Stavros Anthony, which Miller won by 10 votes. Joe Gloria, Clark County registrar of voters, testified to the commission that he was unable to attest the “veracity” of the race, Marchant said. There were 139 ballot discrepancies, but discrepancies occur in every election, Gloria said.

“There are so many issues that the overwhelming amount of Nevadans agree on, like voter ID, transparency, and stopping ballot harvesting,” Marchant said in the email. “Let’s start there.”

At Donald Trump’s July 8 rally at Treasure Island, Marchant told the Sun he still did not have confidence in the election system.

“We have to simplify our whole system,” Marchant said. “That is what I said I want to do, and that’s what I’m going to do. We’re going to simplify it to the point where the people have confidence in our election system. Right now they don’t.”

Marchant said that if elected he would “get in there and look and learn what we have now.”

“That will determine what I do,” Marchant said.

“I’m an entrepreneur. I have three successful technology companies. I’m an executive. I know how to do things, I know how to build things. I know how to fix things. So I’ve got to go in there and find out what’s wrong. We may use machines and other things. We’ll see,” he said.

Marchant does not see a problem just with the 2020 election, he said, but with elections going “way back.”

“It’s because the system is so complicated,” Marchant said. “Even semi-competent people would have a hard time. I would have a hard time running a good election on our current system. I don’t think it could be done. And it’s nothing against the current courts, and I have done enough research to see what the system is now. It is so complicated. It’s almost impossible to have a good election.”

Marchant’s No. 1 priority would be to “overhaul the fraudulent election system in Nevada,” according to his campaign website. But Nevada’s secretary of state has no authority to create or remove election laws.

The secretary of state, according to its website, is responsible for maintaining the official records of the Nevada Legislature’s acts and of the executive branch of state government. They certify all statewide candidates and ballot questions, and they supervise state and local elections.

The secretary of state is supposed to perform “ceremonial duties,” said Gowri Ramachandran, senior counsel in the Brennan Center’s Democracy Program.

“Really, they just are ceremonial, because obviously, you know, the secretary of state’s duty is to make sure that whoever gets the most votes is who gets declared the winner in Nevada elections,” Ramachandran said.

Counties also run elections, and they are all run slightly differently. Some rural counties, for example, have decided to only use paper ballots and do away with machines. Some counties use Election Systems and Softwares machines while others use Dominion voting machines.

Marchant told Reuters last September that he would consider ending early voting and would temporarily stop the use of voting machines. But those decisions are outside the purview of the secretary of state, according to election law experts.

Without those changes that Marchant wants to make, refusing to certify an election could be a real possibility should Marchant win election to the office.

Refusing to certify

Election law experts said that if the secretary of state were to refuse to certify an election, there are checks and balances in place to assure the election is certified regardless.

A party, such as the attorney general or a candidate, would go to the state court and seek an order directing the secretary to do their job.

The secretary of state can say there is fraud or a miscount, and the courts will take a look, said Ned Foley, director of the election law program at Ohio State University. But if there’s not enough evidence to support such claims, the court will order the secretary of state to recognize the election.

If the secretary of state refuses to obey a court order, the courts are going to issue an injunction saying that he must comply with the law, Foley said. If the state official refuses, they’re going to be in contempt of court and could be jailed.

“The refusal to acknowledge (the results) is the deprivation of not just the candidates’ rights, but all of the ballots that led to that vote tally,” Foley said. “And that’s a denial of equal protection and due process.”

That could then lead the case to go to a federal court, and the secretary of state could be incarcerated in a federal facility, Foley said.

“I ultimately don’t think a rogue official can get away with being rogue in the way that some of these candidates are talking about,” Foley said. “They cannot act in defiance, as much as Trump might like them to. You know, they cannot act in defiance of the law and the evidence and get away with it. They could try to act in defiance. But ultimately, the courts are going to be institutions based on rules and evidence.”

Rick Hasen, a professor at the University of California, Irvine, School of Law, specializes in election law. He said there were procedures in place for courts to expedite election litigation, so the process would move quickly in courts.

“I’m not saying it would be easy,” Hasen said. “It could provoke a state or national crisis if a secretary of state failed to do his or her job. But, you know, the point is that one person failing to follow the law is not going to be able to hold up a presidential election.”

Dan Lee, a political science professor at UNLV, said it was important to keep in mind the separation of power. While secretaries of state are the “chief elections officer” for the state, there are other parties involved that can put a stop to an overreach in power, he said.

The attorney general’s office would “take any steps needed to protect the rights of Nevadans to participate in our democracy fairly and equitably,” Ford’s communications director John Sadler said in a statement to the Sun.

“The state will consider any legal options necessary to safeguard those rights, especially when they are threatened by posturing designed to undermine faith in our democratic process,” Sadler said in the statement.

Has it happened before?

In the past couple of election cycles, Lee said, it’s become more common to hear of parties across the country who don’t want to certify election results. While the refusal to certify has not come from the secretaries of state themselves, counties in some states have recently refused to certify election results, even without evidence of fraud.

In June, commissioners in Otero County, N.M., declined to certify primary election results in races involving a state House seat and the sheriff’s office, claiming that the voting machines were insecure.

Otero County Commissioner Couy Griffin told The Washington Post his no vote wasn’t “based on any evidence, it’s not based on any facts, it’s only based on my gut feeling and my own intuition, and that’s all I need.”

The New Mexico Supreme Court granted an emergency petition from Secretary of State Maggie Toulouse Oliver demanding that the Otero commissioners certify the results of the primary.

In Michigan in 2020, the Wayne County Board of Canvassers could not agree the night of the election whether to certify the results of the presidential election and brought the question to a state regulatory board, according to The Washington Post. Hours later, the board ended up agreeing to certify the results while asking the secretary of state to conduct an audit.

Refusing to certify an election happened more often in the 1800s, Foley said. In Wisconsin in the 1850s, for example, the incumbent governor did not want to leave office and wanted the canvassing board to declare him the winner, “almost Trump-like,”Foley said. The Wisconsin Supreme Court said no, and the governor had to leave office.

In Pennsylvania in the 1830s, the “buckshot war” provided a more tense example. The sitting governor didn’t want to leave office and tried to get away with refusing to acknowledge the results. Both sides got their muskets out with their buckshot, and although no shots were actually fired, it got “dicey,” Foley said.

With modern jurisprudence from the 1960s onward, the 14th Amendment has been understood as guaranteeing equal participation in a way that’s judicially enforceable, Foley said.

“Thankfully, I don’t think we can go back to those really ugly 19th-century examples, but they do exist in history,” Foley said.

Changes to the election process

If a secretary of state or any other key component of the process thinks heading into an election that there’s something “fundamentally unfair with the rules of the process ahead of the time,” they have to challenge it before voting takes place, Foley said.

If the challenge is successful, those election rules get changed for the voting. But if the challenge is lost, the existing rules are going to be enforced.

“They can’t ambush the results after the fact,” Foley said.

Courts said this to Trump and his supporters, who complained in Wisconsin, Pennsylvania and elsewhere about some election practices put forward for COVID-19, Foley said.

“Some of those complaints might have had some plausibility to them, like in Wisconsin had they been brought in advance. But the courts were not going to invalidate ballots cast in good faith (because of) procedures that were adopted by the election officials themselves to deal with COVID and to run the electoral process,” Foley said.

The Wisconsin Supreme Court recently ruled that the use of drop boxes for ballot collection was illegal. But the ruling applies only to future elections and did not invalidate the 2020 election, even though the dropboxes were deployed, Foley said.

The secretary of state might challenge an election after the fact and say, “I’m worried about this county-by-county inequality,” Foley said, but the response would be, “well, it was your job as secretary of state to eliminate that inequality in advance.”

The Electoral Count Act of 1887, which added procedures for counting electoral votes for a presidential election, could soon be revised, Foley said. Senators are close to reaching a deal that could make it more difficult for a candidate to try to overturn election results.

The revisions seek to raise the threshold required for members of Congress to challenge election results and clarify old language in the law related to a “failed election,” according to Politico.

While those changes could help prevent the election process from being stalled, political analysts are still concerned about the state of politics and the discourse spreading around the country.

“This is like another symptom of this just hyperpartisanship that’s going on, where Republicans and Democrats, they’re not even fighting about policy,” Lee said. “They should be arguing over, like, tax rates and health care and education,” Lee said. “But now they’re fighting over, you know, how democracy is supposed to work.”

“It’s pretty sad commentary on the political situation in the United States today that we have to have this conversation,” Hasen said, “that it’s a realistic possibility that a candidate for state office might not do his or her constitutionally required job.”