Nevada’s elections are once again all paper ballot. For the first time in a long time, before mechanical recording devices were adopted, Nevada has achieved a statewide standard based on the legacy that is voting by paper ballot. There’s just a problem or two.
In every county, voting at-the-polls now involves forcing a verified voter to hand-in or hand-off their ballot through the Precinct Scanner-Tabulator but no other voter is subjected to this process—not a provisional voter, nor by-mail, nor by eBallot (online).
The Precinct Scanner-Tabulator has no manual audit capacity for voters. There’s no screen image or VVPAT so the public can verify that the digitized votes and ballot images are accurately received and stored. Not even a receipt from the machine is given to a voter.
Transferring and importing the digitized votes created by the Precinct Scanner-Tabulator to the counting board’s tabulator(s) via Secure Digital High Capacity (SDHC) memory card is unique to use of that equipment.
Implementation of the Precinct Scanner-Tabulator violates or undermines the laws mandating that the counting board tabulate the paper ballots and tally the votes for the Accuracy Certification Board’s review and official approval—not the voter.
There’s no justification for implementation of the Precinct Scanner-Tabulator that outweighs the infringement of voters’ rights because the solution is so simple and readily available and consistent with the law:
Have the counting board scan and tabulate the regular votes cast at the polls after polls close.
NRS 293.093 “Regular votes” defined.
“Regular votes” means the votes cast by registered voters, except votes cast by:
1. A mail ballot;
2. A provisional ballot pursuant to NRS 293.3078 to 293.3086, inclusive; or
3. A provisional ballot pursuant to NRS 293.5772 to 293.5887, inclusive.
Though there’s intrastate commonality on a voter scanning their own ballot, that doesn’t override the legal conflicts arising from implementation of the unneeded Precinct Scanner-Tabulator.
Main Points
Violation of ‘Uniform, statewide standard’
Nevada has offered voters a paper ballot since statehood. A voter’s right to cast a paper ballot is based on that legacy. But that right has been denied Washoe County voters for years, even after the 2020 ratification of the Voters’ Bill of Rights.
The Voters’ Bill of Rights Clause 10 was enacted in 2020 through a constitutional amendment and subsequently enshrined in NRS 293.2546, “each voter has the right:”
10. To a uniform, statewide standard for counting and recounting all votes accurately as provided by law.
The intent of the Voters’ Bill of Rights Clause 10 was to achieve a standard of counting based on a uniform media which is the paper ballot legacy. The good news is, starting in 2026, voters at the polls once again will cast a paper ballot.
And with electronic ballots that are cast online being duplicated onto paper, counting the election is now all paper.
Though, not all ballots are counted at the same time:
NRS 293.363(1) “When the polls are closed, the counting board shall prepare to count the ballots voted. The counting procedure must be public and continue without adjournment until completed.”
NRS 293.365 mandates that “no counting board in any precinct, district or polling place in which paper ballots are used may commence to count the votes until all ballots used or unused are accounted for.”
However, NRS 293.269931 allows the mail ballot central counting board to start counting mailed or dropped-off returns 15-days pre-election day and continue for 7-days post-election.
NRS 293.3084 mandates that a provisional ballot be “separate from other ballots until it has been determined whether or not the voter was registered and eligible to vote in the election in that jurisdiction;”
NRS 293.3085(2): The county and city clerk shall not: (b) Open any envelope containing a provisional ballot before 8 a.m. on the Wednesday following election day.
NRS 293.3606(1) “After 8 a.m. on election day, the appropriate board shall count in public the returns for early voting.”
And, some ballots are reported separately:
NRS 293.269935(1), “The returns of the mail ballot vote must be reported separately from the other votes that were not cast by mail ballot in the precinct unless reporting the returns separately would violate the secrecy of a voter’s ballot.”
NRS 293.3085(2): The county and city clerk shall not: (a) Include any provisional ballot in the unofficial results reported on election night;
NRS 293.3606(3) “The returns for early voting must be reported separately from the regular votes of the precinct, unless reporting the returns separately would violate the secrecy of the voter’s ballot.”
Respective of the differences in the timing of counting and separation in reporting of different ballot types, the discrepancy to the Voters’ Bill of Right Clause 10 is the split method of ballots being tabulated by the voter at the polls then uploaded to central tabulators versus all other ballots that are tabulated by central counting.
Ballots that are tabulated by the voter at the polls fails the “uniform, statewide standard of counting…”, relative to how other ballots are counted.
Votes counted before all ballots are accounted for
The Precinct Scanner-Tabulator counts and stores votes and ballot images in a database file or files.
NRS 293.365 Accounting for all paper ballots before counting of votes begins
NRS 293.365 applies to paper ballots cast at the polls.
The counting board is mandated by law to count paper ballots. Anything less, such as the voter counting their own paper ballots, violates NRS 293.365.
Counting votes before all the ballots, used and unused, have been accounted for by the counting board violates NRS 293.365.
The counter arguments are:
· Different ballots require different methods of processing;
· The voting system is approved by the Secretary;
· Pre-tabulated votes are not reported early. Data is secured until polls close when aggregation of votes begins;
· Pre-tabulating votes is expedient to the processing of in-person ballots;
· The ‘uniform, statewide standard’ is satisfied by the counting board’s tally where all votes are tallied and reported.
In reply,
· No other ballot is similarly treated,
· There is no provision in law that says a voter shall scan and tabulate their own ballots,
· Secrecy of results is circumvented by early counting of mail ballots and early voting with self-tabulation,
· The ‘uniform, statewide standard’ is not achieved, it’s broken;
· The Secretary’s approval comes with no independent testing, accepts testing by the vendor; approval only applies to BMDs and tabulators.
· The counting board has state-of-the-art technology to scan-tabulate ballots, more resources could be added to increase throughput;
· Expediency comes with a lack of transparency and weakens voter trust;
· The correct procedure is to not force voters to pre-tabulate their ballot and to have the counting board-only counting all the ballots.
Not human auditable, not observable
A point of having paper ballots is to be able to correct and audit one’s ballot before handing it off pursuant to NRS 293.2696.
Here, the voter is tasked with scanning and tabulating their own ballot but they lack the ability to audit their ballot image or votes, creating a system of trust but not verify.
In addition, the files stored on the SDHC card during voting are unobservable and un-auditable by voters.
Neither voter nor election worker nor observer can verify that votes scanned by the Precinct Scanner-Tabulator accurately reflect a voter’s will.
Transferring and uploading the precinct data to the central counting board tabulator(s) is a non-transparent process as well.
Central Scanner not required nor necessary
Implementation of the equipment is a choice made by the county which can easily be undone. There is no law that mandates use of the Precinct Scanner-Tabulator.
The counter-argument is that the voting system has been approved by the Secretary, which includes the Precinct Scanner-Tabulator.
Just because a vendor offers a solution, such as a Precinct Scanner-Tabulator, binding law affecting how elections are conducted is not created, nor presumed. Vagary of the law is not intent.
As explained herein, ballots delivered to a ballot box at the polls before tabulation is no different than a mail ballot delivered to a drop box or provisional ballot to a ballot bag.
The Precinct Scanner-Tabulator must be regularly tested and audited, whereas a ballot box has no such requirements, saving time and money.
There is no necessity or justification for use of the Precinct Scanner-Tabulator that outweighs a voter’s right to have paper ballots tabulated in a uniform way whether cast in-person, by mail, or online.
As a solution, the Precinct Scanner-Tabulators can be traded-in for more ICE/ICC workstations at central processing to increase ballot throughput.
Or, ballots can be hand-counted. My personal favorite.
Closing
Washoe County already uses secure ballot bags/boxes to transport ballots collected at a vote center to central processing. The differences between regular ballots cast in-person and other ballots are pre-tabulation and separation and/or delay in reporting depending on mail, provisional, or online eBallot.
There is no adequate justification to deprive voters of their right to have their paper ballot cast at the polls counted similarly to other ballots by the counting board.
Accordingly, voters at the polls must be offered a ballot box for their paper ballots. The ballot box must not scan or tabulate ballots.