Thread by @RileySnyder

I'll be live-tweeting this hearing on the lawsuit filed by NV GOP groups seeking a halt to Clark County's use of a signature verification machine. Scheduled to start at 2 p.m. PST

https://twitter.com/RileySnyder/status/1324827217143083008

To recap, here's what the plaintiffs are requesting as part of the lawsuit (which was filed last night in federal court).
Our story on the complaint: thenevadaindependent.com/article/nv-rep…

Here is the @NVSOS reply to the complaint, filed earlier today:

https://twitter.com/RileySnyder/status/1324808242522779648

And here is the NV Dems/DNC reply (they're intervening in the case)

https://twitter.com/RileySnyder/status/1324805758899220481

Many of the claims made in this lawsuit were also brought up in a separate state-level lawsuit last week, which was rejected in Carson City District Court. Our story on that order (which came out on Monday): thenevadaindependent.com/article/judge-…

Sounds like AG @AaronDFordNV and SOS @BarbaraCegavske are both on the call

Judge Andrew P. Gordon grants DNC / NV Dems motion to intervene in the case (wasn't opposed by plaintiffs)

Dave O'Mara, attorney for the plaintiffs, is immediately asked by Judge Gordon if a similar case in state court has been finished (parties in that case have filed a stipulation agreement & agreed to drop case)

It's hard to hear O'Mara - lots of feedback. Even the court clerk has interrupted to say she can't hear very well

Can hear somewhat better now - sounds like O'Mara is saying the poll observation plan by Clark County isn't meeting state law requirements.

Judge Gordon says he wants more info on request in lawsuit. "What are you asking for?"

I think O'Mara said he wants poll observers to be allowed within 6 feet of ballot counting, but again there is a lot of feedback and it's hard to hear

O'Mara says he wants an order requiring 3 ballot observers within 6 feet of ballot counters

Judge Gordon: Isn't that the Legislature's job, and not mine?

Judge Gordon asks O'Mara to respond to Justice Kavanaugh's concurrence in recent DNC vs. RNC case in front of Supreme Court, which warned against federal intervention in state election rules.

O'Mara says plaintiffs are not asking court to change anything, but force election officials to follow the law.

Judge Gordon says that's being asked by plaintiffs to impose new standards/guidelines.

Asks a hypothetical if ballot counters are quiet or talking softly, should they have to speak into microphone to ensure observation?
"At what point does this get to the ridiculous?"

Judge Gordon:
You're asking for extraordinary injunctive relief....and what I'm not hearing is any narrow (relief)

the hearing has been interrupted, at least on the public side, by some very loud instrumentals.

we're back - sounds like O'Mara is trying to argue for a narrow injunctive relief plan that would allow for rotating, enhanced public access to observation to ballot counting

hold music is back

WHY WEREN'T WE IN LISTEN-ONLY MODE TO BEGIN WITH :(

Judge Gordon asks why Stokke (plaintiff, who said someone voted in her name), waited 8 days to try and resolve her ballot issue.

O'Mara says Stokke's delay in trying to resolve her ballot issue into his "consideration of immediate and irreparable harm, if not the balance of hardships and equity."

Judge Gordon brings up @NVSOS memorandum/interview, which stated that Stokke was offered ability to fill out a provisional ballot while issue with other ballot was dealt with.
"Why was that not an adequate remedy?"

O'Mara is now saying, incorrectly, that provisional ballots don't have all elections on them. Nevada lawmakers amended state law in 2019 to allow provisional ballots to be cast for all races, not just federal races or limited subset

Judge Gordon: Do you have any evidence that signature verification machine caused issues?

O'Mara: No evidence to show machine went thru proper procedure

Gordon: Why do I grant extraordinary relief if you don't have evidence to support the likelihood of success on the merits?

O'Mara says there is improper use of the signature verification machine because it accepted her signature w/out human (mechanical) review. Machine accepts about 30% of signatures, rest are hand-reviewed

Judge Gordon brings up that Clark County Registrar compared signatures by hand and determined that they matched. "You had a human being look at it."

O'Mara says the Democrats only used partial statutory language - claims they omitted language about checking ballots by hand

O'Mara says Clark County doesn't have public policies or rules on signature counting/verification, and that they're asking judge to "press pause."

Citing previous state case, Judge Gordon says that Carson City District Court Judge James Wilson found that county wouldn't be able to complete count of ballots if use of the machine was barred.

O'Mara disputes, says county could allocate more time to sig verification

Judge Gordon: How long do you think it will take to finish the count if you have to do this all by hand?

O'Mara: Sunday, Monday at the latest if they don't use signature verification machine

O'Mara says that all ballots that have already gone through signature verification machine should be segregated because they believe they may be invalidated. Suggests holding evidentiary hearing next week on those ballots

O'Mara wraps up, and we move to defendants.

First up is Craig Newby, who is representing @NVSOS

Newby says we're in court this afternoon without any evidence that lawsuit could succeed on merits.

Newby says plaintiffs are asking for
"nebulous, undefined, no further than 6 feet away distance" that would likely violate CDC recommendations

Newby suggests that this could lead to constant hearings on how close observers could be, suggests that plaintiff suggestion to review all mail ballots processed through machine could lead to 1-2 weeks of delays

Newby says that any questions about NV election procedures would be better addressed by the Nevada Supreme Court, not a federal court

Newby says that use of the signature verification machine has been known for months -- says there's no surprise that Clark County (large, urban) would use a different system than a smaller, rural county

Newby says a plain and reasonable reading of state law to have a county use a different signature verification system
"It is a valid system."

Newby: On that non existent factual basis (issues with signature verification machine), they want to shut down Clark County's counting of mail balloting
"There's no basis for it."

Newby: Extraordinary relief of what's being asked of this court requires evidence, not just talking points

Now up - Clark County attorney Mary-Anne Miller

Miller says state law allows members of the public to observe counting of ballots, as long they don't interfere w/ counting.

Says there is room for 30-35 observers in tabulation room, and there's been room everyday for observers

Miller says that plaintiff Chris Prudhomme floated between media and observer area, and tried to record activity from media area. Says he's welcomed back as an observer at any time as long as he doesn't disrupt the system

Miller says that signature of Stokke was reviewed by Clark County Registrar Joe Gloria and 2 trained supervisors and was determined to be a match

Miller is going through how the county uses the Agilis machine for signature verification.

Says plaintiffs have not shown any harm through either tabulation observation or use of signature verification machine

Judge Gordon, citing the state court order on similar issues, asks if Clark County can finish counting by deadline of Thursday.

Miller says that was accurate at the time - says it wouldn't be "catastrophic" if use of machine was stopped today, but would still delay counting

Now up: John Devaney, attorney for DNC

Sounds like Devaney is saying that DNC/NV Dems aren't signing off on stipulation in NV Supreme Court to dismiss similar claims in state court. GOP/Clark County reached stipulation, but Ds have not signed off

Devaney notes that same machine was used for signature verification for NV's June primary and in other large jurisdictions around the country.

Devaney: Literally the whole country is looking at Nevada and Clark County in particular and is waiting for election results.

Says a delay would cause "chaos and confusion."

Devaney says there is a "fundamental lack of evidence" in case - just one voter who doesn't know if use of signature verification machine harmed.

Devaney also notes that allegation of "vote dilution" caused by fraud is not proper standing, as it affects everyone equally - not a specific harm that would warrant judicial intervention

Devaney says there is precedent that only party that would have standing in this case is the state Legislature

Devaney says that a federal court should not "micro-manage" election processes - time, place and manner of elections are typically the purview of state Legislature, which Devaney says creates a separation of powers issue

O'Mara (attorney for plaintiffs) is back up, asked immediately why federal court should "wade into their pool" if NV Supreme Court still has pending court case on same issues.

Judge Gordon is pressing the question of why he should intervene in a Nevada election issue.

O'Mara says issue needs to be addressed in an expedited manner ASAP

Judge Gordon says he's still having a hard time understanding argument from plaintiff - if Stokke was given opportunity to cast provisional ballot, does that not cure the problem?

O'Mara says that Stokke is afforded same rights to have her ballot count as any other American - state law holds that each voter has a right to a "baseline" standard for accounting of all ballots

O'Mara says there is more evidence of harm now (Stokke) than what was before state District Court. Says it's more important for NV to "do it right" than to do it fast.

Judge Gordon says state law allows for county or city clerks to "establish procedures for the processing accounting" of ballots which gives each county - i.e. Clark - ability to use different systems for signature verification

O'Mara is now saying that Clark County doesn't have sufficient policies or procedures related to the signature verification machine - needs to be in writing

Gordon asks if there's a way to take out Stokke's ballot if it's determined later that it's a fraud?

Miller (Clark County attorney) says probably not at this point, as ballot is separated from envelope. Says Stokke could have filed affidavit/requested provisional before

Judge Gordon now preparing to give decision

Judge Gordon cites a Justice Kavanaugh concurrence, which says district court judges shouldn't interfere in election procedures at this point in time
"I should not usurp that proper role of state legislatures and re-write state election laws"

Judge Gordon says that plaintiffs (GOP groups) have to meet high bar to warrant judicial intervention. Says plaintiffs have not demonstrated a likelihood of success on the merits

Says this is "an issue of significant concern, involving state law, and should be interpreted by" state Supreme Court justices

Judge Gordon says he's not getting into standing issues today.

Says he doesn't find use of signature verification machine to violate NV election laws.

Judge Gordon: It appear to me that Ms. Stokke could have repaired her irreparable harm by filling out a provisional ballot

Says there no evidence the signature verification machine didn't do what it's supposed to do.

Judge Gordon says the balance is one vote that might be invalid, versus 10s of thousands of ballots that may not be counted if officials can't finish count by deadline set in state law.

Judge Gordon - I am not deciding this case on a technicality ...rather I'm deciding that plaintiffs have not come to the court at this point with sufficient legal evidence to get what they want

BREAKING: Judge James Gordon DENIES emergency request by GOP groups to stop use of signature verification machine, change polling observation rules.
Story soon @TheNVIndy

Judge Gordon says he doesn't see need for evidentiary hearing at this point but keeps option open if more evidence is brought forward

@TheNVIndy As many have pointed out, it's Judge Andrew Gordon. James Gordon is the guy from Batman