Roque (“Rocky”) De La Fuente requested a partial recount of 5%, or 93, precincts in Nevada just hours before the state’s deadline to file on November 29th. To do so, Rocky put up over $14,000 to cover the cost associated with the recount. Having come in last place, Rocky told Sandra Chereb of the Las Vegas Review-Journal, “I don’t expect to win but I do expect the vote totals to change.” I reached out to Rocky over the weekend and he emphasized the importance of confirming the state’s recount practices as well as making the state aware of deficiencies his campaign finds herein.
The story that follows doesn’t discuss the results of the recount, as only a total of 15 votes changed, but rather, the process and procedures of the election officials during the recount. In doing so, I’d like to highlight those people on the ground doing the work of citizen government overwatch with election integrity activism and filling roles as observers, researchers, statisticians, and legal counsel.
I caught up with Michael Polsinelli of RecountNow to discuss the Nevada recount and his role as a election integrity activist. Michael’s beginning in election integrity work started in 2004 in his home state of Ohio during the presidential recount of which both he and his wife were recount observers. That specific recount resulted in 2 election workers receiving 18-month sentences for tampering with the recount. When looking at the circumstances surrounding the Nevada recount, Michael believes that it was completed fraudulently because election officials conducted a dress rehearsal recount behind closed doors and, furthermore, didn’t allow for proper oversight from recount observers during the actual recount.
The Dress Rehearsal Recount
As reported by the RecountNow.org press release about the Nevada recount, “Clark County Registrar of Voters Joe Gloria admitted to election observers present for the public recount that this was the third time the votes had been counted.” Rocky De La Fuente has confirmed this during our correspondence over the weekend, stating, “There was, in fact, a non-public recount in Nevada.”
Emily Levy of RecountNow told me during a phone interview that an audio recording of Joe Gloria admitting to a secret dress rehearsal recount is in circulation.
A dress rehearsal recount raises many ethical concerns given that the recount itself is supposed to be a mechanism by which the original vote is verified. Doing a private recount before the actual recount is in itself illegal in that it doesn’t allow public observers to verify that a proper chain of custody has taken place in regards to the ballots as required by state code. Michael Polsinelli shared with me some insight he gleaned from a lawyer who was volunteering during the recount. According to Nevada Revised Statute 293.404 (6), “The county or city clerk shall unseal and give to the recount board all ballots to be counted.” Thus, due to the dress rehearsal recount, there is no way to verify the ballots were not previously unsealed.
Another area where the dress rehearsal recount runs afoul of Nevada law is that the private recount didn’t allow for “Each candidate for the office affected by the recount and the voter who demanded the recount, if any, may be present in person or by an authorized representative, but may not be a member of the recount board.” [NRS 293.404 (2)] Further reading of Nevada Revised Statutes elucidates the either willful ignorance of the election officials or purposeful subversion of state law:
NRS 293.480 Limitation on inspection of ballots after return to county or city clerk. Until the time for contest of election has expired, the ballots returned to the county or city clerk may not be inspected by any person, except in cases of recount or election contest, and then only by the judge, special master, board or legislative body before whom the election is being contested or who is conducting the recount.
The law doesn’t seem to preclude a dress rehearsal recount in and of itself but it does follow that such a recount should follow all the applicable code concerning recounts generally.
Put simply, the main issue with a private recount apart from it being against the law is that any problems that could have been seen during the private recount could have been fixed prior to the recount that would have been witnessed by observers.
Crimes that meet the threshold of “willful neglect” are considered a category E felony offense.
The Third Recount
The third recount didn’t proceed without incident either. Observers present at the recount were associated with RecountNow, the Rocky De La Fuente campaign, and the Hillary Clinton Campaign. A few observers report being given the wrong location for the recount as well as incorrect information as to the timing of the recount. This action didn’t allow them to witness the proper chain of custody proceedings at the beginning of the recount as well as specific events during the recount.
Observers also reported not being given access to properly oversee the recount. During the recount, the observers were only allowed to view the proceedings from a separate room with a window partition. This didn’t allow the observers to see numbers on boxes, packages, ballots, or anything else being examined in as much detail as required to get an adequate picture of the recount as a whole. Furthermore, being in a separate room with a window to view the recount didn’t allow observers to hear the discussions of election workers and left them only to interpret body language. Adding to the increasingly anti-transparent nature of the recount, observers were not allowed to view certain computer screens nor given access to a completely separate room in which recount activities were taking place.
Another point of frustration raised in my discussion with Emily Levy of RecountNow deals with how the ballots are to be counted during the recount. According to Nevada state election law, the counting of votes during a recount must be done in the same manner as counting during election night. Since the ballots were counted by an optical scanner during election night, they had to be counted the same way during the recount. This frustrates Emily because she believes a hand count with human eyes would be better practice, especially since the recount is to verify the vote and not necessarily to simply reenact Election Day.
The lack of transparency, given that election officials already had the opportunity to do a dry run beforehand, raises further concerns rather than a feeling that the Election Day vote has been verified.
At the time of this publication, no charges have been filed, but RecountNow has stated publicly that they feel Rocky De La Fuente should pursue legal recourse to get his money back given the way the recount was conducted. Rocky De La Fuente tells me that he is “currently in the process of examining the full report and will decide on the course of action that will best protect the best interests of the people of Nevada.”