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Election law changes you should know about

John Naylor highlights changes related to Nevada’s election laws in his article for the bar journal COMMUNIQUÉ (Sept. 2022).

Introduction

The new year ushered in several important changes to Nevada’s election laws which became effective on January 1st. This article summarizes the major changes, as well as the ballot initiative that you will see in November.

The Changes

Assembly Bill 121, effective January 1, 2022, is designed to assist voters with disabilities to register to vote, request an absentee ballot, and cast their vote electronically. The changes are based on NRS 293D.200, et seq. which allows certain members of the military and their dependents to register to vote, request and absentee ballot, and cast their ballot electronically. Id. As a result of the amendment, persons with disabilities may now also take advantage of these electronic services. AB 121 does not specifically define disability, and presumably the definition in NRS 426.068 applies. Generally, disability is defined as having physical or mental impairments that substantially limits one or more of the activities of daily life. Id. The changes are enrolled in numerous sections throughout NRS Chapter 293, and the text of AB 121 details where those exact changes are codified.

Assembly Bill 126 abolished the caucus system for the selection of presidential candidates. Nevada had a long and varied history of using different procedures to select presidential candidates. See “Nevada Primary and Caucus History,” Legislative Counsel Bureau’s Legal Division, www.nvsos.gov/sos/elections/election-information/about-elections/nevada-primary-and-caucus-history (accessed July 31, 2022). These efforts culminated in primary elections divided by political party in 1976 and 1980. Id. Primary elections were abolished, however, in 1981 and replaced with the caucus system. Id.

Assembly Bill 126 returns Nevada to what is technically called a “presidential preference primary election.” Each major political party will conduct a presidential primary election on the first Tuesday of February of each presidential election year. The goal was to make Nevada one of the first primaries in the country due to the state’s diversity. (“Nevada Moving to Vote Before Iowa in 2024. Harry Reid Makes the Case,” The New York Times, February 22, 2021). It remains to be seen as to whether this goal will be achieved as Iowa and New Hampshire will certainly not want to lose their spots in the selection process.

Another bill deals with mail-in ballots. In 2020, an emergency session of the Legislature approved and the governor signed into law a temporary measure requiring election officials to send mail-in ballots to all registered voters. (Assembly Bill 4, 2020). Then candidate Donald Trump challenged the law, but his lawsuit was dismissed. Donald J. Trump for President, Inc. v. Cegavske, Case No. 2:20-cv-01445-JCM-VCF, 2020 WL 5229116 (August 4, 2020). Assembly Bill 321, which became effective on January 1, 2022, makes AB 4’s temporary measures permanent. Now, election officials must send mail-in ballots to all registered voters. These changes are enrolled at NRS §§ 293.3088-293.340 and 293C.304-293C.340. While the new law makes permanent most of AB 4’s provisions, it tightens several of the old law’s time limits. Now, ballots must be received by election officials within four days of the election rather than seven. AB 321, Section 8(1)(b)(2). Also, unlike the temporary provisions, registered voters will have only 6 days to cure any defect with their signature. Id. at Section 11(6). Finally, election officials must finish counting the mail in ballots within seven days of the election. Id. at Section 61(1).

In November, you will see initiative C-01-2021, known as the “Better Voting Nevada Initiative,” which could dramatically change the way that elections for partisan offices are conducted. The initiative would change Nevada law to allow voters to cast their ballots for any person running in a primary regardless of the party affiliation of the candidate or voter. This is in contrast to a closed primary where voters may only vote for candidates who share their party affiliation, i.e., Democrats can only vote for Democratic candidates and Republicans can only vote for Republican candidates. The initiative allows voters to cross party lines and vote for whomever they wish.

This procedure only covers elections of U.S. Senators, U.S. Representatives, Governor, Lieutenant Governor, Attorney General, Secretary of State, State Treasurer, State Controller, and Sate Representatives. The initiative specifically excludes primaries for the President and Vice President.

The general election will use a “ranked-choice voting” system. This means that voters will rank the candidates in order of preference. Each ballot will count as one vote for the top ranked person on that ballot. If a person wins a majority of the ballots cast, they will be declared the winner. If no candidate wins a majority during this initial round of tabulation, the initiative provides for a counting procedure designed to winnow down the candidates to an eventual winner. This may result in someone being declared a winner with a relatively small plurality.

Conclusion

These are only the highlights of the changes affecting this year’s elections.

About this article: This article was originally published in the “Election” issue of Communiqué, the official publication of the Clark County Bar Association, (September 2022). See https://clarkcountybar.org/member-benefits/communique-2022/communique-september-2022/.

About the author
John M. Naylor

John M. Naylor, Esq. has been licensed for nearly 35 years and is a cofounder of Naylor & Braster, a Las Vegas law firm specializing in business litigation. He practices in the areas of commercial litigation, appellate work and construction law.

© 2022 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

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