The new year started with one of the most memorable stories in Nevada litigation history: a Nevada lawsuit over efforts to eliminate the last vestigial barrier between residents and access to casino gambling. That suit was settled with the consent of the state’s voters, and the state’s Attorney General and the U.S. House speaker shortly thereafter.
While it is too early to evaluate how other 2021 state election races may unfold, it appears that lawsuits like the one in Nevada may become more commonplace in 2021. Whether that will cause voters to support measures protecting the rights of citizens to vote for or against those measures, however, is anyone’s guess.
In one of the state’s most competitive Senate Races, incumbent Democratic Senator Harry Nevada is facing a challenge from Republican Joe Heck. The race is considered a “state of concern” by some national strategists because of the race’s implications as a microcosm of national dissatisfaction with the Obama administration. Nevada is the key swing state in President Obama’s reelection effort, and Nevada’s top polisher, Secretary Of State Rachel Campos, has already raised the possibility that the lawsuit could be used to bolster turnout among the minority population.
The race also raises the stakes for the courts to act promptly when these rights are threatened, particularly in the context of Citizens United v. Citizens United, the Supreme Court decision which dramatically downgraded the scope of free speech protection in the states. If the court allows the Nevada lawsuit to proceed, it could have a dramatic impact on future efforts to protect voting rights and to protect the integrity of our democratic process.
Despite the importance of this race to the presidential election, few political analysts think that the lawsuit will have any significant impact on the outcome.
One reason for this is the way in which the complaint was handled by the state’s counsel. Rather than seeking a preliminary injunction that would prevent the complaint from going forward, counsel for the plaintiffs in this case have urged the court to allow the case to go forward based on the argument that the plaintiffs have a likelihood of success on the merits of their complaint.
This argument relies on the fact that the complaint fails to establish that the plaintiff has a concrete injury due to the challenged election. The argument further goes on to argue that because there is no genuine issue of fact as to the results of the election, the courts should not interfere with the voters for reasons of election law.
On the other hand, Campaign officials and the attorney for the lead plaintiff in the lawsuit say that such a decision would be unprecedented in modern history.
After George W. Bush won the presidential race, he made an appointment to the U.S. Commission on Civil Rights, headed by John Lewis, which promptly canceled its meeting. When asked if the move was related to the lawsuit, a commission spokesman responded, “we cannot comment on that one way or another.”
The Bush administration then set up a commission to investigate the allegations against Lewis, which produced a docket of more than one hundred complaints regarding voting irregularities in Nevada. On the day of the scheduled meeting, however, a federal judge in Nevada ordered a stay, saying that the investigation was not warranted.
Because of the confusion over whether or not the state court had jurisdiction in the case, the Campaign for Change challenged the accuracy of the election results in the fall.
After winning the election, they began to challenge the counting of the mail-in votes. At first, the lawsuit was denied by the lower courts, but a three-judge appeals court panel ruled in favor of the plaintiffs.
The court explained that because the county had not supplied the requested information to the poll workers, it could not be considered proof of the number of mail-in ballots cast. Campaign officials said that they would not challenge the accuracy of the results because it was not required under the statute.
However, because the three-judge panel relied on a vague construction of the statute, the ruling could be rendered invalid if a future lawsuit challenging the accuracy of the election results were to gain a foothold.
In an interview on CNN, David Becker, counsel for the Campaign for Change, indicated that their challenge was just the tip of the iceberg. “The real issue here is the ability of poll workers to count the mail-in ballots,” he said. “We’ve always had issues with the count, and the mail-in ballots are something that we have a real problem with.”