Laws and Rights

The Disinformation of Francisco Aguilar

In Aguilar v. Commissioners Andriola, Clark, and Herman, Nevada Supreme Court, Case No. 88965, Secretary Aguilar argued that certification of the recount of two local races in Washoe County was a “ministerial, non-discretionary” duty of the Board of Commissioners (“Board”). He argued that NRS 293.387—canvass by the Board—is “facially clear.” He argued that the Board does not have the luxury of time to delay or deny certification, irrespective of concerns of Board members. And, he used threats and intimidation to get his way.

The Secretary has lost his way: The words “ministerial, non-discretionary” are not in Title 24 of the Nevada Revised Statutes. Suggesting otherwise is the epitome of disinformation. NRS 293.387 is actually vaporous and not clear as to a Board’s duty to delay or deny certification. In fact, the statute requires accuracy: “the true vote cast.” There are time limits but there is no statutory penalty for delay or denial of certification of a canvass, which is consistent with a public officials’ rights. And, the lawfare, threats, and intimidation used by the Secretary are unethical and inconsistent with Dunn v. Blumstein, 405 U.S. at 343, (quoting Shelton v. Tucker, 364 U.S. 479 (1960), “a State may not choose the way of greater interference. If it acts at all, it must choose ‘less drastic means.’”

The Secretary has turned a public official’s duty to investigate substantive evidence of malfunction or malfeasance into a criminal act. But, to ignore substantive evidence by a public official could be a neglect of duty pursuant to NRS 202.595 as to a ballot as property and NRS 283.440(2b) as to performing official duties.
Rather, it is the Secretary who has ignored the facts, suppressing any investigation of the election systems or modes of implementation of the system.
In People ex Rel. Chamberlin v. Trustees of Schools, 97 Ill. 627, 632 (1881), “a failure to deny material facts well pleaded is an admission of their truth.”

The Rights of Public Officials has been Adjudicated

The Nevada Supreme Court and the United States Supreme Court have already weighed in on a public official’s right to vote their conscience.

“The State District Court denied the petition, but the Nevada Supreme Court reversed, holding that voting is protected speech,” Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011). Mr. Carrigan was a Sparks City Councilman whose case set legal precedent applicable today.

“(T)he county board is bound to consider the interests of all of its citizens,” Clark Cnty. V. City of Las Vegas, 92 Nev. 323, 550 P.2d 779 (citing McDonough v. Roach, 35 N.J. 153, 171 A.2d 307 at 309-310 (1961). Local jurisdictions have autonomy to address matters of local concern. County and city elections are of local concern.

County Rights and Differing Elections

There are different rights of counties for different elections pursuant to Nev. Const. art. 4, § 20, which lists a number of ‘enumerated rights’ including:

– Regulating the election of county and township officers;

Hence, the county has rights to self-regulate the races for county commission and school board trustee, as the case may be.

In Clark Cnty. V. City of Las Vegas, 94 Nev. 74, 574 P.2d 1013, 1014 (1978), the Nevada Supreme Court recognized and affirmed that county and city rights in elections cannot be abridged pursuant to Nev. Const. art. 4, § 20.

However, when the Washoe County Board of Commissioners merely discussed self-audit of recounts of county commission and school board races back in July, it was met with swift opposition by the Secretary of State.

Threats and Intimidation

After filing suit, the Secretary, a democrat, attacked the republican Board members on social media with veiled threats of criminality, using such words as “the potential to set a dangerous precedent” and “would undermine confidence in our democracy.”

Under such duress, the Board of Commissioners approved the recounts and the case was closed by the Court.

But then, the Secretary filed an extraordinary petition to re-open the moot case, based on wild speculation and colorful language:

“catastrophic disruption in the general election,” p. 1;

“The threat of rogue county commissioners flouting their ministerial duty to canvass elections results will only continue to grow,” p. 6;

And he blasted the good people of Washoe County:

“baseless attacks against election results,” p. 3;

“conspiratorial public comments,” p. 4.

The Secretary is derogatory to the point of bias by inferring or implying that the public is seditious, launching “attacks against election results” in a “conspiratorial” manner. Is the public now the enemy, according to the Secretary?

The Nevada Supreme Court denied the Secretary’s petition, thank goodness, but left the door open for him to file lawsuits against public officials in state district court.

As it stands now, public officials who dare to question the results handed to them by a clerk or registrar of voters will be sued by the Secretary. Such a looming threat casting more doubt and dispersions than trust among voters, candidates, and county and city commissioners.

Workplace Harassment/Election Interference

By attempting to re-open a moot case based on “the threat of rogue commissioners…”, the Secretary’s actions have the appearance of harassment under the law.

The Secretary’s inference of criminality has resulted in the intended consequences—the obstruction of county business and coercion of the vote of Board members. Violations of NRS 33.240, NRS 293.710 and NRS 293.2546(3), “To vote without being intimidated, threatened or coerced.”

Abuse of Government Resources

Seeking an opinion from the Nevada Supreme Court to re-open a moot case, one that should have never been brought to the high court in the first place, in a preemptive strike when the proper venue, if there are provable concerns, is district court.

Closing

Put it all together and the Secretary’s actions are partisan, unethical, and unlawful.

All public officials must vote their conscience when problems exist such as irrefutable evidence of manipulated results from the 2024 primary. The law is on their side.