Efforts by the secretary of state’s office to update and adopt new regulations governing largely technical minutiae on election administration ahead of the 2022 midterms have turned into a one-sided political battle, with state Republicans waging a crusade over what they call an “election law power grab.”
The 31 regulations, heard through three days of online public workshops last week that stretched over 11 hours of real time, are set to filter through an adoption process this week that may amend some regulations and allow adjustments suggested by state Republicans.
One additional workshop was also held on Feb. 4, to account for an error made in an agenda and to comply with state Open Meeting Law, with the regulations likely to go before legislators for final approval sometime in late February.
Those regulations vary widely, including the establishment of new rules for training in signature verification, creation of new standards for election observers and implementation of new regulations governing mail ballots. Most of the regulations are meant to either update out-of-date election procedures or to comply with new laws approved in the 2021 legislative session, most notably the bill (AB321) implementing universal mail-in voting.
If laws are the bones of a certain policy, then regulations proposed and adopted by the agencies charged with carrying out new laws are the muscle and tissue that ensure the intent of a law is carried out without technical hangups.
Though roughly four-dozen participants joined the Zoom workshops across the three days, much of the public comment came from a small group of commenters — both advocates and officials — with the Republican Party. They challenged the substance of the regulatory changes, often charging that the enacted statutes and proposed regulations were at odds with the stated goal of securing elections.
One key regulation at issue involved election observers, requiring them to acknowledge that certain behavior — such as using a phone while working or interfering with the counting process — is prohibited and to wear a name tag. The new regulation would also authorize clerks, under certain circumstances, to limit the number of observers in a central counting place or potentially remove observers from the counting place altogether if they violate certain rules or interfere with the process.
Multiple Republican commenters decried the possibility that poll workers might be mandated to take the COVID vaccine — though no such mandates exist or are proposed in the regulations, either at the state or county level — and criticized the ability of out-of-state observers to participate, specifically naming the American Civil Liberties Union, which observed Nevada’s process in 2020.
Other regulations include updating existing regulatory language to match new election laws passed in 2021 — such as the removal of language referring to “absentee ballots” in favor of “mail ballots” — while others sought to address key areas of dispute that emerged in 2020.
That includes the issue of signature verification, which was at the center of Republican attacks on the legitimacy of Clark County’s process throughout the last election.
The new regulations include guidelines both on the training in signature verification (a training already required by state law) and regulations governing when verification machines can be connected to a network and how those machines should be audited, as per provisions of AB321.
Those audits, conducted daily, would require a bipartisan board of election appointed by the clerk to manually review a random slice of 1 percent of mail ballots received over the previous 24 hours. If the board then rejects a signature that the device accepted, then the device will have failed the audit — triggering a process in which use of the machine is stopped and the secretary of state’s office becomes involved.
Across the three-day marathon of meetings, Deputy Secretary of State for Elections Mark Wlaschin clarified or pushed back on at-times aggressive public comment, often pointing that many of the changes came out of “extensive discussions” held by the secretary of state’s office, county clerks and other stakeholders in the wake of the 2020 election.
“These are very complex discussions that we've had, with unfortunately, no real easy answer,” Wlaschin said of the regulation on observers. “Outside of, as indicated in this regulation, there were clear individuals … who came into the observers read what their requirements were, and then blatantly and brazenly violated those rules and tried to disrupt the process.”
The questions and comments made by Republicans through the workshop process come as part of a broader ecosystem of challenges by state and local GOP officials to the 2020 election, including charging — without evidence — that fraud or election mismanagement had tainted the results of both the presidential election and several down ballot races.
Among the vocal commenters across the three days of workshops were Jim DeGraffenreid, national committeeman for the state Republican party, and Jim Hindle, the Nevada GOP’s vice chair. Both, alongside other commenters, repeated unfounded claims that then-new laws governing mail ballots allowed widespread voter fraud.
“One of my key issues is that mail-in ballots are a primary source of potential corruption in our new system,” Hindle said during the second day workshop. “And if we are not cleaning up voter rolls in order to make sure that mail-in ballots are only going out to legitimate legal voters and not being out in the wind, which of course we know they were in the past election in 2020.”
Ahead of the workshop, some Republicans had already sought to challenge or question the regulations through the public process. One such email from the Washoe Republican Party contained seven talking points for two of the proposed regulations, including the regulation on observers and another that would mirror regulations already in place for absentee ballots for all mail ballots.
Both DeGraffenreid and Hindle were among the Nevada Republicans who sent false electoral certificates to Congress last year that pledged the state’s six electoral votes to Donald Trump. Scrutiny of the fake electors has ratcheted up in recent weeks, following reports this month that the congressional investigation into Jan. 6 has continued its probe into state-level allegations that Trump allies sought to subvert the results of the 2020 election.
DeGraffenreid was also one of two Nevadans, alongside state GOP Chair Michael McDonald, to be subpoenaed by the committee last Friday.
Top Nevada Democrats, including Gov. Steve Sisolak and Attorney General Aaron Ford, again criticized the false electors last week, with Sisolak going as far as describing the act as a crime. When asked by The Nevada Independent, however, Ford’s office did not confirm the existence of any criminal investigation into the matter.
The regulations will need to be approved by an as-yet unscheduled meeting of the Legislative Commission, a body of six Democrats and six Republicans. The meeting is expected to take place in the last week of February, however, as state law requires election regulations to be effective on or before the last day of the month.
It is unclear how the commission may respond to the changes, as partisan deadlocks can sink certain high-profile regulations — such as the functional end of a college student vaccine mandate.