Power of Vice President to Count or Reject Electoral Votes Disputed

News Analysis

At 1 p.m. local time on Jan. 6, members of Congress will gather in the chamber of the House of Representatives to observe the formal certification of Electoral College votes for president of the United States.

While it’s usually a formality, nothing has been usual so far about this year’s election amid numerous allegations of voter fraud in key swing states.

The situation is complicated by a lack of clarity on the legal and constitutional guardrails for the process. The joint session of Congress may well result in gridlock, in which a clear winner of the race isn’t announced at all.

Based on current election results, former Vice President Joe Biden has received 306 electoral votes to Trump’s 232 votes. Meanwhile, Republicans in seven states where Biden claimed victory have sent their own sets of electoral votes to Washington, and some members of the House have indicated that they will object to Biden electors in some states. Any objection would require support from one House member and one senator to be considered, and at least one senator has has left open the possibility he would join the effort.

So what will happen?

The counting of votes is primarily governed by the 12th Amendment of the Constitution and the amended Electoral Count Act.

The Constitution simply states that electors of each state have to meet, make a list of their votes, “which they shall sign and certify,” and send those to the president of the Senate, meaning Vice President Mike Pence.

“The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted,” the 1804 amendment says.

The Electoral Count Act of 1887, currently known as 3 U.S. Code Section 15, establishes a procedure for how the votes are counted, how to raise objections, and how to resolve disputes. First, it says that the vice president indeed presides over the proceedings. Then, it says the House and Senate leaders each designate two tellers. The VP opens the envelopes with the vote certificates and hands them to the tellers for counting. The tellers then read them out loud, count them, and hand them back to the VP to announce the results.

Then, in rather convoluted language, the law says that Congress members can object. At least one objection from each chamber is needed to trigger a separate vote by both House and Senate on the objections. If both chambers agree, the objected voters are rejected. That’s virtually out of the question given the Democrats’ majority in the House.

If two sets of electors are presented for counting, the House and Senate need to separately vote on which set is legitimate and which should be rejected. If each chamber votes differently, the set certified by the state’s governor should count. That would hand the victory to Biden.

The problem is, there’s a voluminous body of legal analysis arguing that the Electoral Count Act is unconstitutional. Congress has no business granting itself the authority to decide which slate of electors is the correct one and which votes should be rejected. Nor does Congress have the power to designate state governors as the final arbiters, a lineup of legislators and legal scholars have argued.

There are two arguments for who has the constitutional power to decide which electors to choose.

Some jurists say it’s the VP who has the sole discretion to decide which votes to count. The argument is that the framers intended for the VP to be the sole authority over the counting of the votes because the unanimous resolution attached to the Constitution said that the Senate should appoint its President “for the sole Purpose of receiving, opening, and counting the Votes for President.”

Moreover, before the adoption of the Electoral Count Act, it was always the VP counting the votes, sometimes despite major objections from Congress. Thomas Jefferson did so as the VP in the 1800 election, counting Georgia’s constitutionally deficient votes and de facto securing his own presidency.

Arizona state lawmakers and GOP electors, together with Rep. Louie Gohmert, have filed a federal suit asking for the court to clarify the law to the effect that the Electoral Count Act is unconstitutional and the VP’s power is paramount.

Not everybody agrees, though.

University of Virginia professsor John Harrison, an expert on constitutional history, says the VP doesn’t have “any constitutional power to make decisions” over which votes to count.

He argued that the law is deficient to the effect that “Congress doesn’t have the power to make the announcement [of its decisions regarding the vote count] conclusive.” But that doesn’t mean it can’t prescribe any rules at all.

“The Constitution does call for counting the votes with both houses present, so I think that setting up procedures for a count is within Congress’s power,” he told The Epoch Times via email.

The second argument is that the Constitution grants the authority to determine how electors are picked to state legislatures. As such, any disputes over which votes should be counted should be resolved by state legislatures.

The problem is, state legislatures aren’t in session and they can’t assemble in a special session without a call from the governors, who have refused to do so. Meanwhile, the legislatures have usually delegated the power to certify electors to the Governors and Secretaries of State, undermining their own authority on the matter.

The conservative Amistad Project of the Thomas More Society has filed a federal lawsuit arguing that the power of the legislatures is both “exclusive and non-delegable,” and thus any state and federal statutes to the contrary are unconstitutional and void.

That would not only knock down some provisions of the Electoral Count Act, but also render electoral votes that haven’t been certified post-election by state legislatures illegitimate.

Regardless of what the courts will say, the core question is what will take place in the House chambers on Jan. 6? Will Pence refuse to follow the Electoral Count Act? Will some of the tellers dissent? If things go wrong for the Democrats, will House Speaker Nancy Pelosi (D-Calif.) try to end the session prematurely?

There’s no way to tell. Pence hasn’t let his intentions be known.

Source: Power of Vice President to Count or Reject Electoral Votes Disputed

Peter Navarro Issues Report on Voting Irregularities: ‘The Emperor, In the Election, Has No Clothes’

White House trade adviser Peter Navarro listens to a news conference about a presidential executive order relating to military veterans outside of the West Wing of the White House in Washington, March 4, 2019. (Leah Millis/Reuters)

Peter Navarro, who serves as an advisor to President Donald Trump, on Thursday released a report, in his private capacity, on the integrity of the 2020 election, concluding that the allegations of irregularities are serious enough to warrant an urgent probe and substantial enough to overturn the results.

The findings of the report (pdf), titled “The Immaculate Deception,” support the claim that the election “may well have been stolen” from President Donald Trump.

“If these election irregularities are not fully investigated prior to Inauguration Day and thereby effectively allowed to stand, this nation runs the very real risk of never being able to have a fair presidential election again,” Navarro said in the report.

On a call with reporters explaining his findings, Navarro said his role in putting the report together is to say that, “the emperor, in the election, has no clothes.”

Fielding questions about what, at this stage, can be done, given that numerous legal challenges brought by the Trump campaign have been dismissed and the Electoral College has already voted, Navarro said, “with every day that goes by, it becomes more complicated” and “options narrow.”

Trump campaign attorney Jenna Ellis, in a recent interview with The Epoch Times, said there’s still time for state legislatures to convene in special sessions and authorize alternate slates of electors.

While Navarro declined to specify a proposed remedy in light of his findings aside from a thorough investigation, he said, “the last thing this country needs is an Inauguration Day where we have what is perceived to be an illegal and illegitimate president of the United States.”

In making an urgent call for a probe of the allegations, Navarro argued that “if, in fact, compelling evidence comes to light proving the election was indeed stolen after a fait accompli Biden inauguration, we as a country run the very real risk that the very center of our great American union will not hold.”

In the report, Navarro examines six types of irregularities in the six battleground states of Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin—states in which certified results show Democratic presidential candidate Joe Biden’s holding a lead and where the vote continues to be hotly contested.

Epoch Times Photo
Summary of findings regarding election irregularities in six battleground states. (Source: Data – The Immaculate Deception Report; Design – ET)

Navarro said that the pattern of irregularities across the six states suggests “a coordinated strategy to, if not steal the election outright, strategically game the election process in such a way as to ‘stuff the ballot box’ and unfairly tilt the playing field in favor of the Biden-Harris ticket.”

He argues that the weight of the evidence, which comes from sources that include over 50 lawsuits and judicial rulings, thousands of affidavits and declarations, testimony in a variety of settings, think tank analyses, and press reports, is “more than sufficient to swing the outcome in favor of President Trump.”

Biden’s margin of victory in all the battleground states except Michigan is less than the number of ballots that Navarro flags as possibly illegal.

Rather than any single “silver bullet” of election irregularity responsible for an unfavorable outcome for Trump, Navarro argues that “this was theft by a thousand cuts across six dimensions and six battleground states.”

Outright Voter Fraud

The list of actions that Navarro classifies as outright voter fraud include large-scale manufacturing of fake ballots, bribery, along with ballots cast by dead voters or ineligible voters like felons and illegal aliens. Others include ballots counted multiple times and those cast by illegal, out-of state voters.

Epoch Times Photo
Summary of findings regarding outright voter fraud in six battleground states. (Source: Data – The Immaculate Deception Report; Design – ET)

Ballot Mishandling

Another major dimension of alleged irregularities in the 2020 presidential election, which Navarro calls a “multifaceted problem” that featured in five out of six of the battleground states, includes such factors as no voter ID checks, signature match check abuses, “naked ballots” that lack an outer envelope, and broken chain-of-custody records.

Epoch Times Photo
Summary of findings regarding ballot mishandling in six battleground states. (Source: Data – The Immaculate Deception Report; Design – ET)

Contestable Process Fouls

The third dimension of election irregularities includes abuses regarding poll watchers and observers, such as denial of access or lack of meaningful access, as well as violations of state law in the area of mail-in and absentee ballots. It also includes illegal ballot curing by poll workers, and violations in voter registration procedures.

Epoch Times Photo
Summary of findings regarding contestable process fouls in six battleground states. (Source: Data – The Immaculate Deception Report; Design – ET)

Equal Protection Clause Violations

The 14th Amendment of the U.S. Constitution features the Equal Protection Clause, which mandates that no state may deny its citizens equal protection under the law. Questionable practices in this regard identified by Navarro include applying higher standards of certification and ID verification applied to in-person voters compared to mail-in and absentee balloting, and different standards of ballot curing for different counties.

Epoch Times Photo
Summary of findings regarding equal protection clause issues in six battleground states. (Source: Data – The Immaculate Deception Report; Design – ET)

Voting Machine Irregularities

There were two major types of voting machine irregularities Navarro noted in the report: large-scale voting machine inaccuracies, as well as vote switching from one candidate to another and vote surges in favor of one candidate.

voting machine irrelugalities 2
Summary of findings regarding voting machine irregularities in six battleground states. (Source: Data – The Immaculate Deception Report; Design – ET)

Significant Statistical Anomalies

The final category of irregularities detailed in Navarro’s report are statistical anomalies, which include such phenomena as significant changes in absentee ballot rejection rates compared to prior elections, and unusual vote surges.

Epoch Times Photo
Summary of findings regarding statistical anomalies in six battleground states. (Source: Data – The Immaculate Deception Report; Design – ET)

In concluding his report, Navarro argues that “the failure to aggressively and fully investigate” the irregularities he has flagged “signal a failure not just of our anti-Trump mainstream media and censoring social media but also of both our legislative and judicial branches.”

Since Election Day, Trump and third-party groups have pursued legal challenges to the outcome of the election in the six battleground states. None of the efforts have so far borne fruit, including an interstate Supreme Court challenge brought by Texas and backed by 19 Republican attorneys general.

Source: Peter Navarro Issues Report on Voting Irregularities: ‘The Emperor, In the Election, Has No Clothes’

 

GOP campaigns, voter file lawsuit alleging improper votes in Nevada

GOP campaigns, voter file lawsuit alleging improper votes in Nevada

The original article on LV Review-Journal is currently being blocked from sharing on Facebook.  

Two Republican congressional campaigns and a Nevada voter filed a federal lawsuit Thursday night against Nevada Secretary of State Barbara Cegavske and Clark County Registrar Joe Gloria, asking the court to stop the use of Clark County’s electronic mail ballot counting machine and making a variety of fraud accusations.

Although President Donald Trump’s campaign and the Nevada Republican Party are not listed as plaintiffs, they held a news conference Thursday morning promising the lawsuit, an event that featured the named plaintiff, Las Vegas resident Jill Stokke.

The campaigns of Dan Rodimer and Jim Marchant, who are challenging Reps. Susie Lee and Steven Horsford, respectively, are two of the other listed plaintiffs.

Their lawsuit alleged “3,000 instances of ineligible individuals casting ballots” in Clark County, including ballots from deceased voters. It offered no evidence of that or any other allegations, and there are no attached exhibits to the filing.

It also does not note whether the cast ballots have, in fact, made it through the county’s ongoing verification process.

A separate letter sent to the Department of Justice on Wednesday by the Nevada Republican Party alleged to have identified 3,062 individuals who cast a ballot in Nevada while living in another state. It includes an attachment that lists only addresses of the allegedly ineligible voters but not names or any other identifying information. The Review-Journal has requested the names but has not yet received them.

There are a variety of reasons why a person residing out of the state may be allowed to cast a ballot in Nevada, including part-time residents of the state with homes elsewhere, attending college in another state, or people who have recently moved.

Complaint about machines

The lawsuit alleged the Agilis software used by Clark County as the initial step in signature verification of mail ballots violates state election law because other counties do not use the same method, which means Clark residents are “at an unequal risk of having their legal votes diluted by votes with mismatched signatures.”

Stokke, the lawsuit said, was stopped from voting in person after an election official told her a mail ballot had been submitted in her name. The filing alleged the Agilis machine verified this signature and allowed it to be counted.

In a news conference after the Trump campaign’s event, Gloria said he handled Stokke’s case personally.

“I personally dealt with Ms. Stokke,” Gloria said. “She brought her claim to me, we reviewed the ballot, and, in our opinion, it’s her signature. We also gave her an opportunity to provide a statement, if she wanted to object to that if she wanted to challenge that. She refused to do so.”

Gloria said an investigator with the Nevada secretary of state’s office also reviewed the matter.

“They had no issue with the assistance we tried to give her,” Gloria said.

Gloria said he was not aware of any illegal votes being counted.

The machine in question, county officials have said repeatedly, is only the first step in the signature verification process. If it rejects a signature, as it does 70 percent of the time, that ballot goes to county staff for verification, with Gloria having the final say.

The lawsuit also falsely asserts that the county is the only one in Nevada that does not verify signatures on absentee and mail ballots in person.

Problems with observation

It also alleged that another plaintiff, Chris Prudhome, listed on the lawsuit as a “credentialed member of the media” but on his Twitter account as a Republican strategist and Fox News guest commentator, was denied his right to observe the counting of ballots.

The lawsuit said that Prudhome attempted to watch the count at 12:45 a.m. on Wednesday, and he was told by Gloria the counting had already completed for that day.

This lawsuit is the fourth filed against either Clark County or both Clark and the state by Republican campaigns and the second seeking some sort of change to the counting or verification of mail ballots, which have trended heavily for Democrats.

As of Thursday morning, Trump trails Biden by about 11,400 votes in Nevada. Another round of vote tabulations is expected to be released Friday morning.

News conference

Trump’s campaign repeated many of the allegations made in the lawsuit at its news conference Thursday morning.

“We firmly believe that there are many voters in this group of mail-in voters that are not proper voters,” Adam Laxalt, former Nevada attorney general and co-chair of President Donald Trump’s re-election campaign in Nevada said at the Trump news conference outside the Clark County Election Department vote center in North Las Vegas. “We have received reports of many irregularities across the valley.”

Two Trump representatives spoke but refused to give their names as they alleged that illegal voting had unfolded.

One was former acting Director of National Intelligence Richard Grenell, who declined to offer specifics when asked for evidence of the campaign’s allegations.

The other was Matt Schlapp, chairman of the American Conservative Union.

Stokke also spoke

In response to the Republican news conference, Nevada State Democratic Party Chairman William McCurdy II said Trump’s campaign has “no other recourse than scare tactics and baseless suits.”

“Republicans want to circumvent democracy because things aren’t going in their favor,” McCurdy said. “But the will of the people will not be ignored.”

Settlement in a prior lawsuit

The Trump campaign and Nevada Republican Party agreed to a settlement with the state and Clark County on a previous lawsuit that similarly tried to stop vote counting in the county.

That attempt was shut down in court, but the lawsuit was still technically active.

The campaign filed a motion with the State Supreme Court on Thursday that said Gloria had agreed to allow more observation of the county’s ballot duplication area in exchange for dismissal of the case. Ballot duplication occurs when a staff member finds something wrong with a voter’s physical ballot, which is then duplicated onto a blank ballot and counted.

   Stokke v Cegavske by Las Vegas Review-Journal on Scribd

   Barr DOJ and legal brief by Las Vegas Review-Journal on Scribd

   Nevada Moved Voters by Las Vegas Review-Journal on Scribd

rappleton@reviewjournal.com or 702-383-0276. Follow @RoryDoesPhonics on Twitter. Review-Journal Staff Writer Glenn Puit contributed to this story.

Source: GOP campaigns, voter file lawsuit alleging improper votes in Nevada

Diverse “transparency” coalition in Nevada holds government accountable

By Robert Fellner, Nevada Policy Research Institute and Tod Story, ACLU of Nevada

Sunshine Week is dedicated to celebrating the principles of a transparent and accountable government, which makes it the perfect time to announce the launch of the Nevada Open Government Coalition.

The ideologically diverse Coalition was created to continue the success of our efforts to update the Nevada Public Records Act (NPRA) in 2019, and ensure that governments are transparent with the public as we seek information in the pursuit of accountability. The law aims to “foster democratic principles” by requiring that “all public books and public records of a government entity” are open to the public.

The latest example of a government agency trying to avoid their statutory obligations was highlighted in a state Supreme Court ruling from last month.

The case centered around efforts to obtain the results of an investigation by the Clark County School District into reports of inappropriate behavior by an elected school trustee.

While it’s hard to imagine an example of a document that more clearly falls within the realm of public records — the report about the conduct of an elected official seeking re-election was created by a public agency with public money — the school district nonetheless refused to disclose the report in response to a public records request submitted by the Las Vegas Review-Journal.

The newspaper was forced to sue and thankfully obtained the report just two weeks before the election, but only because it had the resources necessary to file a lawsuit.

One reason the newspaper was willing to take on the significant cost of litigation, however, was because of a provision within the Public Records Act that requires the government to reimburse the legal costs incurred by the requesting party, if a court finds that the government did, in fact, violate the law by withholding public records.

Absent this provision, the NPRA would be far less effective because government agencies could unlawfully withhold documents knowing that few organizations would be willing to pay the tens of thousands of dollars it would cost to force the government to comply.

This was precisely what CCSD argued for in its appeal.

Not content with wasting tax dollars to keep the investigation itself secret, the school district engaged in a lengthy appeal asking the Court to require the newspaper to pay its own legal fees.

The Nevada Supreme Court ultimately rejected the school district’s frivolous and self-serving argument. However, the whole ordeal will still end up consuming more than $125,000 of public money that should have gone instead towards education.

More must be done to ensure compliance with the Public Records Act. The importance of this law and government transparency cannot be overstated.

Using the public records law, the Reno Gazette-Journal recently discovered that Tesla defied a court order and search warrant by refusing to allow federal investigators access to their property. Given the enormous subsidies the state has provided to Tesla, the report is of significant public importance, but would never have seen the light of day if not for the public records law.

The Review-Journal used the law to help uncover numerous scandals and examples of corruption that officials would have preferred remained hidden, including failed oversight by the state Dental Board, improper use of government funds at the Las Vegas Convention Visitors Authority that would ultimately lead to criminal charges, and highly questionable activities at the Nevada DMV, where employees are alleged to have sabotaged a botched $75 million computer upgrade in an attempt to obtain bribes.

Thankfully, many public agencies comply with the law without a court order. But as this latest ruling reminds us, some agencies have no problem squandering significant amounts of tax dollars on frivolous legal efforts in an attempt to keep the public in the dark.

By educating, training, and providing resources on government transparency, the Nevada Open Government Coalition hopes to empower citizens with the knowledge and tools they need to hold public officials accountable.

The Coalition will also advocate for legislative changes designed to discourage the type of noncompliance exemplified in the recent CCSD case, which is sadly far too common.

To that end, the Coalition believes that public officials who violate the NPRA should face a penalty for doing so. This would ensure all Nevadans, taxpayers and public officials alike, are treated fairly under the law, while also providing the accountability needed to ensure Nevadans receive the fully transparent government to which they are entitled.

Robert Fellner is Vice President & Director of Policy of the Nevada Policy Research Institute, an independent organization that promotes free markets and individual freedom in the Silver State. Tod Story is the Executive Director of the ACLU of Nevada, which works to defend and advance the civil liberties and rights of all Nevadans. They are founding board members of the Nevada Open Government Coalition.

Source: Diverse “transparency” coalition in Nevada holds government accountable

Editorial: Courts should overturn ‘Red Flag’ law

A number of Nevada counties have passed Second Amendment sanctuary resolutions in response to state lawmakers passing a “Red Flag” law in 2019 that would allow persons accused of being a potential danger to themselves or others to have their firearms confiscated by order of a judge.

But rather than threatening to flout the law, the better route is the one taken by Elko County commissioners recently and that is to challenge the law in the courts. The commissioners voted to join a lawsuit filed in December by attorneys for NevadansCAN (Citizens Action Network) that argues the “Red Flag” section of Assembly Bill 291, which was passed on a near party-line vote with Democrats in favor and Republicans opposed, is unconstitutional because it violates the right to due process and the right to keep and bear arms — as guaranteed by the Second Amendment of the U.S. Constitution and the Nevada Constitution, which states, “Every citizen has the right to keep and bear arms for security and defense …”

According to the Elko Daily Free Press, at the start of the meeting Elko County Sheriff Aitor Narvaiza declared, “On Jan. 7, 2019, I was elected sheriff of Elko County. I took an oath to protect the constitution of the United States and the constitution of the state of Nevada. I’m here to tell the lawmakers to keep your hands off our guns.”

He was quoted as saying, “Let’s enforce the laws that we have which are reasonable instead of enacting more laws which are unconstitutional. … A great president once said this country cannot be defeated in combat, but it can be defeated within. Right now this country is crumbling, slowly, due to weak-minded politicians and lawmakers who push unconstitutional laws for personal gains and to fill their pockets.”

He received several rounds of applause the newspaper reported.

The litigation appears to have sound legal footing due to a recent unanimous Nevada Supreme Court ruling. The court found that gun ownership is such a fundamental right that it cannot be taken away merely by a judge’s ruling, opining that a person charged with misdemeanor domestic battery is entitled to a trial by jury, because the state Legislature in 2017 enacted a law saying someone convicted of such a crime could have their right to keep and bear arms denied.

The U.S. Supreme Court has held that only those persons charged with a “serious” crime are entitled to a jury trial. The unanimous Nevada opinion written by Justice Lidia Stiglich states the change in state law to prohibit firearms possession by someone convicted of domestic violence effectively increases the “penalty” and makes the crime “serious” rather than “petty.”

“In our opinion, this new penalty — a prohibition on the right to bear arms as guaranteed by both the United States and Nevada Constitutions — ‘clearly reflect[s] a legislative determination that the offense [of misdemeanor domestic battery] is a serious one,’” Stiglich wrote in a case out of Las Vegas.

The NevadansCAN lawsuit declares, “This (“Red Flag”) law makes mincemeat of the due process of law, will endanger law enforcement and the public, and is a tool for stalkers and abusers to disarm innocent victims. Empirical data is available that nearly a third of such orders are improperly issued against innocent people, in states with experience of the operation of such a law.”

Proponents of such laws often cite the Oct. 1, 2017, mass shooting that left 58 country music concert goers dead in Law Vegas as justification, but neither this “Red Flag” law nor the recently enacted tougher background check law would have prevented that tragedy.

AB291 defies the Second Amendment right to bear arms, the Fourth Amendment right to be secure from unreasonable searches and seizures, the Fifth Amendment right to not be deprived of life, liberty, or property without due process of law and the 14th Amendment prohibition against states abridging the privileges and immunities of U.S. citizens.

It must be overturned and litigation is the proper route to do so.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Source: Editorial: Courts should overturn ‘Red Flag’ law

Nevada Supreme Court holds hearing on Pahrump water order appeal | Pahrump Valley Times

A decision on water law and the extent of the Nevada State Engineer’s authority over domestic wells is one step closer to reality, with the Nevada Supreme Court recently holding a hearing to take oral arguments from both parties in the appeal lawsuit filed by the engineer’s office over water Order #1293(A).

A decision on water law and the extent of the Nevada State Engineer’s authority over domestic wells is one step closer to reality, with the Nevada Supreme Court recently holding a hearing to take oral arguments from both parties in the appeal lawsuit filed by the engineer’s office over water Order #1293(A).

The water order was issued in Dec. 2017 as a method of curbing the drilling of new domestic wells in Pahrump’s Basin #162. The order created a new requirement for property owners to purchase two-acre feet of water rights and relinquish them back to the state prior to drilling a new domestic well, unless water rights had already been relinquished or dedicated to the property for that purpose.

This prompted immediate resistance from local property owners, real estate agents and well-drilling companies. Together, those opposing the order formed Pahrump Fair Water LLC and filed a lawsuit with a Nevada district court to halt the order. That court decision late last year to overturn the water order, leading to the state engineer’s appeal of that decision.

The matter has been with the Nevada Supreme Court since early this year, with a stay on the lower court’s decision issued, keeping the order in effect until such time as the Supreme Court renders a decision. The case, #77722, has now been submitted for a final ruling.

Due to the significance of the subject at hand and the wide-ranging impact a decision on the case could have, the decision has been placed in the hands of the “en banc” court rather than a smaller panel. In typical cases, a panel of only three Nevada Supreme Court justices is used to make rulings but for the appeal on Order #1293(A) the entire court of all seven justices is being utilized.

Attorney David Rigdon of Taggart and Taggart, LTD, the law firm representing Pahrump Fair Water, explained that the hearing held on Nov. 5 focused primarily on two central arguments, whether the state engineer needed to provide notice and hold a hearing before issuing the order, and whether or not the state engineer had the authority to regulate domestic wells in this manner in the first place.

“Both sides had what we call in the business a ‘hot bench’ with judges regularly interrupting the presentation to ask questions,” Rigdon detailed when asked to provide a brief overview of what occurred at the hearing on Nov. 5. “Most of the questions about the notice were directed at the state engineer’s attorney, while most of the questions about legal authority were directed at us.”

The Nevada Attorney General’s Office, which is representing the state engineer’s office, declined to provide an overview of the Nov. 5 hearing.

However, Rigdon said he felt both sides had made good presentations but there was no way of telling which direction the justices would ultimately turn. He, Pahrump Fair Water and the state engineer’s office, as well as the many local property owners and other stakeholders involved, will simply have to wait to see how the Nevada Supreme Court rules.

For those who would like to listen to the oral arguments made during the Nevada Supreme Court hearing visit bit.ly/2QAokKH

Docket Number(s): 77722
Date: 11/05/2019 Time: 10:00 a.m. Location: Carson City
Before the En Banc Court
Appearances:
James N. Bolotin
Paul G. Taggart

Start Time Speaker Notes
10:03:42 AM Chief Justice Gibbons Voluntary Disclosure
10:05:11 AM Chief Justice Gibbons Case Called
10:05:44 AM James N. Bolotin As counsel for the Appellant
10:23:57 AM Paul G. Taggart As counsel for the Respondents
10:43:17 AM James N. Bolotin As counsel for the Appellant
10:48:49 AM Chief Justice Gibbons End Argument, Case Submitted

Source: Nevada Supreme Court holds hearing on Pahrump water order appeal | Pahrump Valley Times

See you in court, governor

by Thomas Mitchell

So, the governor is confident that the extension of the modified business tax rate will withstand a legal challenge, according to both the Las Vegas newspaper and the online Nevada Independent.

“We’ve got legal opinion from LCB (Legislative Counsel Bureau) that, you know, a simple majority is what’s needed,” Gov. State Sisolak was quoted as saying Tuesday. “I’ve been in government for 20 some-odd years, and if you don’t trust your attorneys, you’ve got a problem. So I’m confident that the attorneys gave us a good opinion. We’ll move forward from there.”

Be prepared to move back, governor, by nearly $100 million in your budget for the next two years — the budget that promises 5 percent raises for teachers.

Republicans have promised a legal challenge if the business tax was extended without a two-thirds majority of both houses as prescribed by the Constitution. The tax extension passed the Senate on a party line vote of 13-8, one vote shy of two-thirds.

Voters in 1994 and 1996 amended the Nevada Constitution to state “an affirmative vote of not fewer than two-thirds of the members elected to each House is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form, including but not limited to taxes, fees, assessments and rates, or changes in the computation bases for taxes, fees, assessments and rates.”

The modified business tax passed in 2015 by a two-thirds vote of lawmakers contained specific language saying the rates would be reduced in 2019 if tax revenues exceeded a certain level, which they have.

But the compliant LCB told the majority Democratic lawmakers and the Democratic governor, “It is the opinion of this office that Nevada’s two-thirds majority requirement does not apply to a bill which extends until a later date or revises or eliminates a future decrease in or future expiration of existing state taxes when that future decrease or expiration is not legally operative and binding yet, because such a bill does not change but maintains the existing computation bases currently in effect for the existing state taxes.”

The bill clearly “generates” revenue that two-thirds of the lawmakers in 2015 said would decrease as of July 1, 2019.

The state Constitution is not something to tamper with. Republicans should take it to court and make the Democrats abide by the rules, even if it means a special session would have to called. In fact, the GOP lawmakers should go directly to the state Supreme Court for an opinion that would binding, unlike the LCB opinion “that future decrease or expiration is not legally operative and binding yet …”

Asked nearly the same question in 2011, 2013 and 2015, the LCB said a two-thirds vote was necessary. So, governor, when do you trust your attorneys?

Gov. Steve Sisolak, right, talks to reporters about legislative session. (R-J pix)

Source: See you in court, governor

WESTERN WATER: Judge on landowners’ plight: ‘I won’t say the word “screwed”‘

Ellen M. Gilmer, E&E News reporter

There, government lawyers urged the U.S. Court of Federal Claims to toss a lawsuit from Nevada landowners who say a federal restoration project stole their water and flooded their land.

At issue is Patch of Heaven, a Christian camp on private land nestled within the Ash Meadows National Wildlife Refuge.

The Nevada church Ministerio Roca Solida bought the 40-acre site in 2006 for $500,000. At the time, a stream called the Carson Slough flowed across the property, feeding plants and a small pond and sometimes serving as a site for baptisms.

In 2010, the Fish and Wildlife Service, which manages all of the surrounding land, rerouted the channel in a restoration project to help the Ash Meadows speckled dace, an endangered fish that lives in the area’s warm springs.

Annette and Victor Fuentes, who own Ministerio Roca Solida, say the government owes them compensation for eliminating the stream from their property — except for a trickle of water the site claimed through a state permit — and rerouting it in a way that causes repeated flooding on another part of the parcel.

The couple teamed up with the conservative Mountain States Legal Foundation and attracted the support of Westerners opposed to federal land management, including the Bundy ranching family infamous for its conflicts with government agencies.

Speaking at a boisterous rally at Patch of Heaven last year, Ryan Bundy offered to demolish the FWS project himself (Greenwire, April 23, 2018).

The mood was decidedly tamer during yesterday’s hearing, where just five spectators — including one reporter and one court employee — listened to more than two hours of technical arguments involving property rights, water law and hydrology.

Judge Elaine Kaplan must decide whether to grant the government’s motion for summary judgment rather than allowing the case to proceed to trial.

The church’s claims are twofold: that the government’s elimination of streamflow on the land without payment amounted to an unconstitutional taking of vested water rights, and that the diversion project’s contribution to flooding was also a taking.

Justice Department lawyers yesterday disputed both claims. The government contends the landowners are not entitled to the water rights they claim, and, in any case, that issue should be adjudicated by the state of Nevada, not the Federal Claims court.

The two lawyers from DOJ’s Environment and Natural Resources Division also attempted to poke holes in the Fuenteses’ flooding claims, dismissing the plaintiffs’ expert testimony as unsubstantiated and noting that the broader area is prone to flooding.

“Plaintiffs would like this court to believe … that there was never flooding on that part of the property,” DOJ attorney Davené Walker said, adding that the area is part of a flood zone and has a well-documented history of such events.

Walker explained that to win a takings claim against the government for flooding, the plaintiff must show that FWS caused the flooding and intended or expected it to happen. Ministerio Roca Solida has offered no evidence to support either prong, she said.

Mountain States Legal Foundation lawyer Zhonette Brown, in turn, questioned the evidence presented by the government.

Kaplan, an Obama appointee, agreed with the government that Ministerio Roca Solida’s expert testimony appeared “a little thin,” but she questioned whether it would be appropriate to resolve the case in favor of the United States at this stage, without allowing the church to make its case at trial.

She also empathized with the Fuenteses on their loss of the stream, regardless of whether FWS’s project was lawful.

“I won’t say the word ‘screwed,'” she said of the landowners, eventually landing on the word “injured.”

The judge added that she’s never heard a water rights case or a flooding case before and will need some time to consider the competing evidence.

“Your Honor’s more than welcome to come out to the property,” Brown said, “so you can make your own conclusion.”

Dried-up baptimisal pool. Photo credit: Jennifer Yachnin/E&E News
The former baptismal pool at the Patch of Heaven camp in Amargosa Valley, Nev. A “legal evidence” sign refers to the camp’s owners’ lawsuit with the Fish and Wildlife Service over diverted streams and flooding. Jennifer Yachnin/E&E News

Source


Nevada officials work to fight sovereign citizens movement

Editors Comment:  Identity Politics?  Because of a group of people being involved or participating in an event does not make the event about that group.
This article misrepresents many constitutionalist and every day, people as members of a Sovereign Movement. The particular type of activities that this bill is trying to make criminal are related to the Common Law movement and involves self-proclaimed Common Law Grand Jurys and Judges.  It also addresses documents created and used from or by these entities.
Most self-identifying Sovereign Citizens, are not about creating, filing or using common law legal documents as if they are real. They are about just being a free person and believing that the Federal Government has abandoned the constitution and its original intent.   
Because many people who also have similar feelings that do not self proclaim this and comply with laws and government regulations are being identified as something they are not.
Identity Politics are the new civil rights issue of this century. It promotes prejudice and discrimination by grouping people as if they are members of Identity-based groups that they are not, based only on the fact that they have participated in political or social events where there were people that are also participating.
This is and will continue to be the number one cause of division and decent in the next decade unless we as a society can stand up unnormalize this attitude and behavior.
It is my personal belief that the issue of the creation and use of documents as if they mean the same thing as one produced and filed via a legally recognized court of law is wrong and should have legal consequences for those trying to use them.
I believe that if we are to restore our constitution to our republic we must do it within the system that is currently in place.  It will be hard but it can be done with appropriate persistence.
 

Contact Capital Bureau Chief Colton Lochhead at clochhead@reviewjournal.com or 775-461-3820. Follow @ColtonLochhead on Twitter.

CARSON CITY — The loosely affiliated anti-government extremists known commonly as sovereign citizens are the “largest terroristic threat” facing Nevada, according to Nevada Attorney General Aaron Ford.

From the Bundy standoff to a plot to kidnap and execute a police officer, law enforcement in Southern Nevada is no stranger to dealing with those who follow the sovereign citizens’ ideology: They don’t believe in federal or state laws, paying taxes, often espouse hatred of police and elected officials — all factors that have led the FBI to deem those in the movement domestic terrorists.

In Clark County alone, there are roughly 500 people who the Metropolitan Police Department says are affiliated with the movement, Detective Ken Mead said Thursday while presenting a bill under consideration by the Legislature that would give law enforcement more tools to prosecute sovereign citizens.

Aaron Ford speaks to the Review-Journal's reader panel about his platform going into the 2018 midterm elections in Las Vegas, Tuesday, Oct. 16, 2018. Caroline Brehman/Las Vegas Review-Journal @carolinebrehman

And interactions between police and those within the movement are becoming increasingly contentious, Mead said.

“I can confidently say that we have seen an increase in this in the last eight years with their level of activity, their level of aggressiveness,” said Mead, who has spent the last eight years working on domestic terrorism matters for the department while assigned to the Southern Nevada Counter Terrorism Center.

Mead has seen those increases from both a professional level and a personal one.

During an investigation into a scam targeting the elderly in Nevada, Mead became the target himself of a common tactic used by sovereign citizens. They began filing fake court documents in the case from a nonexistent court, claiming that the police officers who made the arrest were in contempt of the court they created, and ordered them to pay $500.

Those filings got more threatening over time. The $500 demand became $1,000. The group started issuing fake indictments and arrest warrants against the officers and prosecutors in the case. Eventually those documents claimed that Mead and his peers were engaged in treasonous activity and “the penalty for treason was death,” Mead said.

The documents could seem real to the untrained eye, Mead said, with official-looking stamps and raised seals.

Then those documents started showing up at his house, and he soon realized that those same people were watching his home, which caused him to have to take “alternative measures” to protect himself and his family, Mead said.

That’s where the bill up for discussion Thursday, Assembly Bill 15 — proposed by the attorney general’s office — comes in.

AB15_R1

The seriousness of the threat posed by sovereign citizens came to Ford’s attention last spring while attending a law enforcement summit in Mesquite hosted by then-Attorney General Adam Laxalt. It was there that Ford was told by local and federal law enforcement that “the largest terroristic threat here in our state is sovereign citizens.”

AB15 goes after one of sovereign citizens’ key tactics by making it illegal to create fake judgments, summons, complaints or most other court documents. Under the proposal, doing so would be a class D felony, punishable by up to four years in prison.

The Senate committee took no action on the bill Thursday. It was previously approved by the full Assembly on a 36-4 vote, with four rural Republican assemblymen voting against it.

Source: Nevada officials work to fight sovereign citizens movement

Legal complaint: lobbyist submitted false testimony to aid in bill’s passage – Nevada Policy Research Institute

Legal complaint: lobbyist submitted false testimony to aid in bill’s passage

The Legislature cannot effectively serve the public if policy is being shaped based on outright falsehoods and misinformation, which is why it is illegal to knowingly submit false testimony before a legislative committee.

Nevada Policy has alerted Legislative Counsel Bureau Director Rick Combs and the attorney general’s office to what appears to be a clear violation of NRS 218E.085(2) — the state law that makes it a crime to knowingly misrepresent any fact when testifying before a legislative committee.

The false statements were made by lobbyist Marlene Lockard during the March 1, 2019 Senate Government Affairs Committee hearing on SB224 — the PERS secrecy bill.

Ms. Lockard appeared on behalf of the Retired Public Employees of Nevada (RPEN), and was featured as part of Senator Julia Ratti’s formal presentation for Senate Bill 224.

As part of this formal presentation, Ms. Lockard relied almost entirely on known falsehoods when explaining why the secrecy proposed by SB224 is ostensibly necessary.

Specifically, Lockard told the committee that passing SB224 was necessary because of a recent court order that allegedly requires PERS to disclose its members’ passports, addresses of ex-spouses, birth certificates and other similarly invasive information. In reality, no such court order exists and none of that information is, nor has it ever been, public under Nevada law.

Given the status bestowed upon her by Senator Ratti, Ms. Lockard’s demonstrably false comments were accorded extra weight. Indeed, the first time a member of the committee had a question about SB224, that question was posed to, and answered by, Ms. Lockard rather than the bill’s sponsor, Senator Ratti.

More information about that hearing can be found here.

Because the knowingly false statements were made specifically to justify the secrecy proposed by SB224, and were made by a paid lobbyist invited by the bill’s sponsor to help present the bill, they represent precisely the type of deception NRS 218E.085(2) was designed to prevent, according to NPRI Policy Director Robert Fellner.

“It is fine to have different policy views and argue those differences vigorously,” Fellner said. “But I think we all would agree that enacting law based on falsehoods and misinformation is wrong, and erodes confidence in our public institutions.”

“It is hard enough for ordinary Nevadans to be engaged with the legislative process thanks to the proliferation of tax-funded government lobbyists and other special-interest groups,” Fellner continued. “Requiring that citizens fact-check all of the claims made by those who help introduce bills is an impossible task, which is precisely why Nevada state law prohibits the making of knowingly false testimony before the Legislature.”

“NPRI has long fought for transparency in government,” Fellner added. “Nowhere is transparency more important than in the legislative process. We hope that legislators remember their duty to serve the public and ensure any bills brought on behalf of lobbyists are done so in an open and honest manner.”

A copy of the complaint can be viewed by clicking here.

Source: Legal complaint: lobbyist submitted false testimony to aid in bill's passage - Nevada Policy Research Institute