Sworn Affidavit
Clark Registrar Accused
Of Ballot Irregularities

  by Steve Miller
  copyright 1996, Electric Nevada

Complaints that Clark County Voting Registrar Kathryn Ferguson illegally opened and counted absentee ballots before the fall primary election have been filed with the Nevada Secretary of State's office, Electric Nevada has learned.
"We've received a couple of written complaints, and we are moving forward," said Assistant Secretary of State for Elections Pamela Crowell.
Six months ago Washoe County voting registrar Brad Lawrence resigned amid widespread criticism following illegal opening of several thousand ballots in a spring mail-in presidential primary. In that instance, it was never alleged that Lawrence or his staff actually counted the opened ballots.
Crowell declined to say more about the matter, nor to estimate when the Secretary of State's Office might have a fuller statement.
But from other sources EN learned that at least one of the complaints included a sworn affidavit from a temporary worker employed in Ferguson's office before and after the September 3 primary vote.
"Beginning on Thursday, August 29, 1996," swore the Clark County resident, who asked for anonymity, "I and approximately 17 other citizens were employed by the Clark County Election Department and sworn in as an election board to count the incoming absentee ballots for the September 3rd Primary Election.
"The supervisor was Mr. Bill Pendarvic, who works under Kathryn Ferguson.
"We were instructed to check off each voter by name, verify signatures for validity, remove the ballots from the envelopes and the internal sheaths, and count ballots for three categories: Republican, Democrat and Other Parties. Each day the count sheets, ballots, envelopes, and rejected votes were collected and, I presume, were stored in the Election Department vault, for counting on election day.
"We counted ballots on Thursday, Friday, Monday, Tuesday and Wednesday."
Electric Nevada contacted the office of registrar Ferguson, but she declined to comment. Instead she referred all questions to Mary Ann Miller, legal counsel to the Clark County Election Department.
Miller said that while she couldn't speak for Ferguson, she could cite the relevant law.
"The Nevada statutes allow the absentee and mail-in ballots to be opened prior to election day in two circumstances," said Miller. "One, if you're using a mechanical voting system and two, if you've appointed an absent ballot counting board. Actually both of those circumstances exist in Clark County."
She specified the supporting law as NRS 295.325, subsections 2 and 3, each of which says voting officials
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"shall, upon receipt of each absent voter's ballot, make a record of the return and check the signature on the return envelope against the original signature of the county clerk's register. If the county or city clerk determines that the absent voter is entitled to cast his ballot, he shall deposit the ballot in the proper ballot box..."
However, neither subsection authorizes actual counting of the absentee ballots before election day. Subsection 2 reads: "On election day the clerk shall deliver the ballot box to the absent ballot counting board to be counted." And subsection 3 reads: "On election day the county or city clerk shall deliver the ballot box to the central counting place."
And on that distinction, Election Department counsel Miller herself acknowledged that "The ballots can't be counted, prior to 8 a.m. election day, but they can be processed."
The affidavit, however, states that workers were instructed to "count ballots for three categories: Republican, Democrat and Other Parties," after which count sheets, ballots .. and rejected votes" were taken away and presumably stored.
Patrick McMillan, a candidate in the primary election for the Republican nomination for Nevada's second district congressional seat, called on Nevada Secretary of State Dean Heller to remove Ferguson from office "as you did Washoe's Registrar Brad Lawrence when he violated the law and opened the ballots before Election Day.
"At the least it would be inconsistent and unfair to Mr. Lawrence and Clark County citizens if you give quarter to Ms. Ferguson that you did not give to him."
According to McMillan, counting of the absentee ballots in an area closed to the public and without public notification violated NRS 293.3602, subsection 6, and also NRS 293.363.
He also asked "how Ms. Ferguson could report the final count of the ballots to you on Wednesday morning [the day after the election -- ed.], when she still had employees scrutinizing them for acceptability, all day Wednesday?"
McMillan already has a suit pending against Ferguson, charging her with a number of unlawful actions involving her efforts to install the Sequoia AVC Advantage Model D electronic voting machines. The suit also charges her with numerous other violations under Nevada election law. Full text of McMillan suit.

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