Thread by @ZoeTillman

In the latest case filed by Republicans in Nevada (challenging use of computer software to check signatures and alleging lack of public access to observe counting), the judge has set a hearing for today at 2pm PST/5pm EST

Prev:

https://twitter.com/ZoeTillman/status/1324563531518398464

Here's the NV SoS oppo to Rs' motion to block the use of computer software to verify signatures and ensure observer access: assets.documentcloud.org/documents/7326…
They say:
1) The voter plaintiff who claimed someone else cast her mail-in ballot was given a chance to fix it and declined

2) The purported Trump campaign observer also claimed to be a member of the media (the filing notes he's a polit. strategist and Fox News contrib), and those come with different rights re: access to counting. But regardless, they say no evid. counting happened without observation

3) They note they already defeated a state court challenge to using a computer to check some ballot signatures, and NV law gives counties flexibility to decide if they want to use a machine. As for observing, they argue they'd already increased access per the state court case

The hearing before Judge Andrew Gordon is set to start at 2pm PST/5pm EST, the court has put the public dial-in info on its website if you'd like to listen as well: nvd.uscourts.gov

The hearing in the NV Rs' case is underway (see thread for more). Judge Andrew Gordon begins by asking the status of a state court case involving similar issues. Plaintiffs' lawyer David O'Mara says he's not sure, but says his case involves different plaintiffs w/ different harm

Judge: "Your motion simply asks that the def be required to allow meaningful access to the ballot counting process. What are you asking for?"

O'Mara: "I'm asking for them to be w/in at least a 6 foot area where they can see and hear the actual counting and what is being said"

Judge: "Isn’t that the legislature’s job and not mine?"

O'Mara says the court can step in and make sure statutes are being properly implemeted. Judge asks him how that squares with Justice Kavanaugh's concurrence in the WI case advising against late-minute interference by courts

The judge questions how specific an order the plaintiffs are asking him to craft — if they want to be able to see and hear the election counting, and an election worker is soft spoken, does the court have to require microphones?

"At what point does this get to the ridiculous?"

Oh my god. The court has not muted the public line, and someone just started playing music VERY LOUDLY and now we cannot hear the hearing.

Okay phew the music has stopped. But this is not a great situation!

OH NO IT'S STARTED AGAIN

Okay I've switched lines and I think we're safe, back to substance!

Re: the voter plaintiff who said someone else cast her mail-in ballot, the judge questions why, when her affidavit says she tried to vote on Oct. 28 and was denied, she waited until Nov. 5 to go to court. O'Mara argues that time period shouldn't bar her from seeking relief.

Judge asks why the voter didn't take the option of casting a provisional ballot. O'Mara says she felt pressured into signing an affidavit that incorrectly offered a reason for her to vote provisionally, and claims she wouldn't be able to vote in all the races she'd want to

Judge asks what evidence they have that the computer program used to verify signatures was the culprit, which is what the plaintiff is asking the judge to block — O'Mara says no evidence it was to blame, but they contend that process is just unlawful generally

O'Mara argues NV law doesn't allow for using a machine to verify signatures. Judge notes a state district judge already looked at this issue and determined election officials couldn't meet the canvassing deadline if they had to check ballots entirely by hand/human eye

O'Mara says Clark Cty should be ordered to human check the remaining uncounted ballots over the weekend, and then go back next week and re-check ballots that went through the machine. Judge is very skeptical about this, questioning how that wouldn't blow the canvassing deadline

NV SoS lawyer Craig Newby is up, begins by saying that they're in court while ballots are being counted without any evidence justifying an argument that this case could succeed on the merits

Newby argues against a situation where they keep coming back to argue over each observer's positioning.

Judge: "I’m not anxious to get back to the days of the hanging chad."

Newby cites Kavanaugh's WI concurrence and Purcell to argue against the judge changing practices now

Newby argues no plaintiff in the case has standing to challenge the Agilis system used to verify signatures, and to get the extraordinary relief the plaintiffs are asking for, it requires "not just talking points or allegations, it requires facts, and we don’t have any here."

Clark Cty lawyer Mary-Anne Miller is up, she says:
- The observer plaintiff was trying to record in an area where it wan't allowed, after opting to leave the media area, and other observers were getting upset, so he was removed
- The voter plaintiff's sign. was manually checked

For those tracking the numbers — Miller says Clark County still has ~63K mail ballots that have to be processed before they can be counted. She said an order blocking them from using the machine to check signatures for those wouldn't be "catastrophic" but it would cause delay

I have to jump off the Nevada hearing — follow @alanfeuer and @joshgerstein and @KlasfeldReports who are all tweeting about it as well!

Just re-joined the Nevada hearing stream, sounds like the lawyers are still presenting arguments

And I'm back just in time to hear Judge Andrew Gordon announce his decision from bench — he begins by repeating his earlier cite to Kavanaugh's concurrence in the Wisconsin case last month, strongly suggesting district judges should not interfere in state election practices

Gordon finds plaintiffs failed to demonstrate a likelihood of success on the merits, and he's concerned that the same issues are before the Nevada Supreme Court (referring to what's known as the Pullman abstention doctrine, although he's not formally abstaining for that reason)

Gordon finds:
- The machine Clark Cty uses to verify signatures doesn't appear to conflict with NV law
- Observer plaintiff not likely to succeed arguing he was denied required access
- Re: observing, judges should avoid getting into the weeds of things like distances/volume

tldr: A Nevada federal judge is denying a request for an injunction NV Republicans had sought trying to stop Clark County from using a machine to verify signatures of mail-in ballots, and also won't enter an injunction altering observer access rules

Related: Here's @nidhiprakash on the latest numbers out of Clark County, which will keep counting ballots after Republicans failed to get an injunction that a county official argued would cause delays

https://twitter.com/nidhiprakash/status/1324861209070497798