The canvass and certification processes in Nevada are largely ministerial. Statute, as well as recent legal opinions, indicate that counties cannot fail to perform their duties in this process. Furthermore, other legal remedies to challenge election results, like contests, only become available once the canvass is complete.
Certification is non-discretionary in Nevada. Nevada statute clearly states that once the County Clerk presents the abstract of the votes to the Board of County Commissioners, they “shall” cause it to be certified. Nev. Rev. Stat. § 293.387(3). This language indicates that County Boards of Commissioners have no discretion in canvassing and certifying elections and must vote to certify the election no later than 10 days following the election. Nev. Rev. Stat. § 293.387(1). This has been supported by legal advice in the state of Nevada, including in 2022 when the Washoe Chief Deputy District Attorney advised the County Board of Commissioners that “the canvass was a ministerial and non-discretionary process and the Board had no legal authority to not canvass the vote.” “Special Session” at 2. (emphasis added). The Chief Deputy District Attorney added that if the county were to vote to not certify the election it would be subject to a writ proceeding and a court would force the county to perform its duty. “Special Session” at 2. They also reaffirmed this position at the recent certification meeting on July 16, 2024. “NV County Reverses Vote.”
Recent attempts to violate this duty have affirmed the fact that it is ministerial. A recent vote by the Washoe County Board of Supervisors against the certification of two primary races was met with swift and aggressive action by the Secretary of State and Attorney General. “Washoe Votes Against Certifying 3-2.” “AG asks Supreme Court to Order Cert.” The Secretary of State quickly filed “an emergency petition with the Supreme Court of Nevada to compel the board to [certify].” “AG asks Supreme Court to Order Cert.” The Secretary of State and Attorney General also stated jointly that “[t]his vote has the potential to set a dangerous precedent for elections in Nevada” and that “these commissioners have failed to do their part in this process under the law.” “AG asks Supreme Court to Order Cert.” A few days later, on July 16, 2024, the County Board of Commissioners reversed its initial decision and certified the results. “NV County Reverses Vote.”
Nevada statute also states that “A certificate of election or commission must not be withheld from the person having the highest number of votes for the office because of any contest of election filed in the election or any defect or informality in the returns of any election, if it can be ascertained with reasonable certainty from the returns what office is intended and who is entitled to the certificate or commission.” Nev. Rev. Stat. § 293.397 (emphasis added). The text of the statute appears to indicate that a person cannot be prevented from taking office if it is clear that they received the highest number of votes, despite any contest to the election (see Contests) or failure in a procedural process.
According to the Washoe Chief Deputy District Attorney, if a county were to fail to canvass the local election results within the statutory deadline then they would be subject to a “writ … proceeding.” “Special Session” at 2. A writ of mandamus is a court order generally used to compel a “lower court or a government officer to perform mandatory or purely ministerial duties correctly.” Black’s Law Dictionary (8th ed. 2004). In Nevada, a writ of mandamus “may be issued by the Supreme Court, the Court of Appeals, a district court or a judge of the district court, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station…” Nev. Rev. Stat. § 34.160. In this scenario, a court would force the county to fulfill its canvassing duties.
The legal remedy to challenge an election is to file an election contest. See Contests. In order for a contest to take place, the canvass and certification process must be completed on the county level. “Special Session” at 2. Even in a recount, if a party believes that votes are being counted illegally, the remedy is to file an election contest. “Election Procedures Manual” at 97-98.