The following is a guest post from Gowri Ramachandran of the Brennan Center:

With early voting set to begin the next day, the Nevada Supreme Court issued an emergency writ of mandamus on Friday evening against Nye County, Nevada, in the ACLU’s lawsuit to prevent the County from implementing an unlawful hand-counting process in the November election. The Court ruled that interim county clerk, Mark Kampf, cannot go forward with several features of his plan for a transition to all-paper, hand-counted elections. In all likelihood, this makes it impossible for Kampf to legally go forward with his plans to begin a hand count of ballots before the polls close on November 8^th. Kampf’s plans have been shifting as he becomes acquainted with Nevada election law, and the Court’s order is admittedly confusing in parts, so here’s an attempt to clear things up.

Driven by election denial claims, Kampf’s plan was part of a broader movement picking up steam around the country that includes an end to the use of machines in elections and limits on early voting and mail-in voting. Such hand-count efforts, which experts warn lead to less accurate results, have gained the most traction in Nye County, home to about 30,000 eligible voters. As the Brennan Center explained when the plan was announced, Kampf’s plan was illegal. 

Prior to the Court’s ruling, Kampf stated that a hand count would begin on October 25, 2022, and he would livestream it, so that individuals could “become poll watchers at home.” Kampf has previously described the hand count as a “parallel hand count process,” to be performed in addition to a machine count, in an unsuccessful attempt to comply with a state regulation that sets minimum standards for tally team composition, shift lengths, published procedures, and other security measures whenever a hand count is used as the primary method of counting ballots. By performing the hand count in parallel to machine count, Kampf would not be using hand counting as the “primary method.” But the plan as Kampf has described it has been enjoined. Specifically, the court granted a writ of mandamus instructing the County and Kampf to refrain from several actions:

• Nye County must refrain from livestreaming the hand-count read-aloud process prior to the close of the polls on November 8, as state law forbids announcing partial results prior to the close of polls.
• Nye County must require all observers to certify that they will not prematurely release any information regarding the hand-counted vote count before then, and
• Nye County must ensure public observers do not prematurely learn any election results.

That last bullet point is the most important. By clarifying that observers count as members of the public who cannot learn early election results, the Court has made it impossible for Kampf to proceed with a hand count before polls close while sticking to the terms of the order.: There is no way to legally hand count ballots prior to election day on November 8 because only machine tabulation complies with the dual requirements under Nevada law that vote counting be public and that no interim results be released to the public before polls close on November 8.

So why require observers to certify they won’t release information that the Court has said they can’t learn anyway? According to the Nevada Supreme Court, an outstanding “issue remains as to how [the County and Kampf] plan to prevent the release of election results to in-person observers during the hand count that is to start on October 25 before the polls close, assuming the read-aloud requirement stands. The Court cited the Clerk’s statutory duty under Nevada law to establish vote-counting procedures that do not conflict with the criminal prohibition against prematurely releasing results. The Court seems to be saying: It’s your job to figure out how to comply with these two requirements, and your current plan doesn’t. Start over.  

That might seem harsh given that early voting in Nevada began the morning after the Court issued its order. One assumes Clerk Kampf has plenty of other things on his plate besides figuring out how to do something that is impossible: hand count in public while not releasing results to the public. But it’s not harsh when we recall how other counties comply with these duties: They simply use machine tabulators.

When using machine tabulators,election workers can pre-process ballots in public well before election day without releasing any interim results because all federally certified machine tabulators in the United States are capable of not producing sums until election night. Essentially, workers can run ballots through the scanners without pressing the “add” or “print results” button. In contrast, it is impossible to publicly count ballots by hand, while keeping results private until after polls close. Transparent and public hand counting necessarily requires public observation of tallying, which permits observers (and the talliers themselves) to know the partial results of the election.

Nye County should do what other counties across Nevada and the country do, faced with similar laws.: Perform logic and accuracy testing on machine tabulators, use them, conduct a manual post-election tabulation audit of a sample of the paper records, and skip the ridiculous hand count. If Nye County and Kampf do proceed with hand count plans, they should expect to face the consequences of violating a court order, plus the criminal statutes the court cited. 

But even if Nye County and Kampf wait until after polls close on November 8 before conducting a hand count, they risk corrupting ballots. Clerk Kampf’s plans prior to the Court’s issuance of a writ of mandamus included the use of seemingly unpaid volunteers. And importantly, they are being thrown together hastily. We’ve seen this movie before, when the Cyber Ninjas’ partisan review of ballots from Maricopa County’s 2020 election resulted in security lapses including the use of blue pens that could be used to alter voters’ choices alongside the ballots. After that sham partisan review with its multiple security breaches, the ballots could no longer be trusted as a true representation and record of the voters’ will.

Fortunately, the election had already been certified by the time the Cyber Ninjas review happened and became fodder for jokes and mocking. But if Clerk Kampf goes through with ill-formed and hastily pulled together plans for a hand count this November, and if stakeholders are not monitoring the situation closely, he could put at risk the security of thousands of ballots in statewide races before certification, and before candidates have a chance to request recounts and exercise other legal rights. It won’t be funny at all.