MINUTES OF THE meeting

of the

ASSEMBLY SELECT Committee on Credentials

 

Seventy-Second Session

February 4 and February 25, 2003

 

 

The Assembly Select Committee on Credentialswas called to order at 1:26 p.m., on Tuesday, February 4, 2003, and reconvened on February 25, 2003, at 3:50 p.m.  Chairwoman Chris Giunchigliani presided in Room 4100 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Agenda.  Exhibit B is the Guest List.  All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

 

Note:  These minutes are compiled in the modified verbatim style.  Bracketed material indicates language used to clarify and further describe testimony.  Actions of the Committee are present in the traditional legislative style.

 

COMMITTEE MEMBERS PRESENT:

 

Ms. Chris Giunchigliani, Chairwoman

Mr. Bernie Anderson

Ms. Barbara Buckley

Mr. Chad Christensen

Mr. Josh Griffin

Mr. Lynn Hettrick

Mr. Richard Perkins

 

 

COMMITTEE MEMBERS ABSENT:

 

None

 

GUEST LEGISLATORS PRESENT:

 

Mr. Marcus Conklin, Assemblyman, Clark County District No. 37

Mr. Jason Geddes, Assemblyman, Washoe County District No. 24

Mr. Bob Beers, Assemblyman, Clark County District No. 4

 

STAFF MEMBERS PRESENT:

 

Scott Wasserman, Legal Counsel, Legislative Counsel Bureau

Michelle Van Geel, Committee Policy Analyst, Legislative Counsel Bureau

Cindy Clampitt, Committee Secretary

Kelly Fisher, Committee Secretary

 

OTHERS PRESENT:

 

Kathleen Jane England, Counsel for Assemblyman Marcus Conklin

Larry Lomax, Clark County Registrar of Voters

 

 

[Chairwoman Giunchigliani called the meeting to order at 1:26 p.m. and roll call was taken.]

 

Chairwoman Giunchigliani:

Thank you.  We have a quorum.  We know that the Taxation Committee is meeting, but the Chairman said if we could get his extra member to him by about 2:00 p.m., that would be good.  We’ll just see how the proceedings go for today.  If we have to extend them or recess them, we will do that.

 

Some have approached me as to why we are proceeding with the hearing, so let me make a couple of statements.  Basically, a lot of allegations were made about election fraud in Assembly District 37, and subsequently a contest was brought forth by Ms. Sandra June Vitolo.  Then it was withdrawn without comment or any rationale.  The Legislature takes election discrepancies very seriously.  To simply drop it without getting any answers to questions may not be very responsible on our part. 

 

Assemblyman Conklin must have spent a great deal of time and money in preparing to rebut the Contest, and those costs are a burden.  We should, at a minimum, take time to hear the rebuttal.  The cost also to our own staff and, ultimately, the taxpayers, is another factor in this Contest as well.

 

Even though Mr. Conklin’s name was brought forth in the allegations and his election was challenged, throughout most of the press, at least in the southern part of the state, at no time were there any allegations against Mr. Conklin, himself, as having participated or caused any of these potential actions, and I do think that needs to be noted for the record as well. 

 

There were other questions that arose that need to be dealt with.  I think both Mr. Beers—and Ms. Francis Allen, who had been the actual opponent of Mr. Conklin in the general election—also stated that there was no wrongdoing done by Mr. Conklin.  Questions, however, have been raised about what the original contest was based on and what verifications were actually used; these are issues this Committee needs to hear about. 

 

We need to make sure why Ms. Allen did not file the Election Contest.  She said that she didn’t expect the Assembly’s Democratic majority to overturn the election and that she had the challenge filed in hopes that it might fuel a district attorney’s investigation.  That is interesting because now we have no one really to come forward to make any kind of presentation on behalf of the original contest.  It’s interesting that she had the challenge filed on her behalf when she had every right to do so herself.  We need to make sure fraud was not committed, and, if it was, in whose jurisdiction is it?  A Grand Jury was convened in southern Nevada and is taking up the matter in about six to ten cases or allegations of fraud, but nowhere near the 160 that had been alleged. 

 

Regardless of whether a Democrat or a Republican is sitting on this Committee, or in either House, none of us will tolerate election fraud or any potential irregularities.  We have an obligation to make sure that our statutes are very clear.  If anything comes from this, we need to make sure if there are any changes that we have the jurisdiction to legally change them.  However, we also have to be cautious about making sure that cases are not brought forth in bad faith or frivolously so that people’s careers are not damaged. 

 

Finally, I think we have an obligation, after hearing what the rebuttals might be, to make sure that the voters in Assembly District 37 realize that most of them were not, maybe were not, disenfranchised.  We want to make sure that they know that they cast votes legally, if that is the case, and should not have been drug through the mud. 

 

Those are some of the reasons.  Hopefully, today, through the rebuttal, we can get some answers as to what was brought forth and then Mr. Conklin’s attorneys will be addressing that.

 

I will also note for the record, in 1995, my election was challenged.  Ms. England was my attorney before those cases, but I don’t think it will taint my decisions, especially since she couldn’t even pronounce my name for the hearing.  She has subsequently learned it, she swears. 

 

[Speaking to the guests of the Committee] You are now under oath, and we welcome you today for your presentation.  Before we proceed with that, we simply need to adopt our Committee Rules (Exhibit C).  We are not going to worry about the Hearing Contest Rules at this point, because this is more of an information-gathering proceeding.

 

Assemblyman Anderson:

Will the Chair accept a motion?  [The Chairwoman answered affirmatively.]

 

ASSEMBLYMAN ANDERSON MOVED FOR ADOPTION OF THE COMMITTEE RULES.

 

ASSEMBLYMAN HETTRICK SECONDED THE MOTION.

 

THE MOTION CARRIED UNANIMOUSLY.

 

Chairwoman Giunchigliani:

Item 4, “Consideration of Contest of Election for Clark County Assembly District No. 37” (Exhibit D).  We will go to that.  We will not do Item 3 on your agenda.  Speaker Perkins?

 

Speaker Perkins:

Thank you, Madam Chair.  I realize this is now a different approach than it would have been had we been taking up an actual Contest.  Do you know if the original contestant is available for information or questions by the Committee?

 

Chairwoman Giunchigliani:

I know she was in the building yesterday but did not approach any of us.  Scott Wasserman, we did notify and request Ms. Vitolo to be here, did we not?

 

Scott Wasserman, Legal Counsel, Legislative Counsel Bureau (LCB):

Yes, Madam Chair, we sent notice to both the contestant and the contestee and their attorneys.  Mr. Conklin’s notice was delivered to him personally, as well.

 

Chairwoman Giunchigliani:

Ms. England?

 

Kathleen Jane England, Counsel for Assemblyman Marcus Conklin:

[Introduces herself.]  Thank you, Madam Chair.  I have been retained to represent Assemblyman Marcus Conklin in this election challenge. 

 

I can pronounce his last name, but, Madam Chair, I can pronounce your last name now: Giunchigliani.  I have had seven years to practice. 

 

Pursuant to the rules of this Committee, which were provided to me by the Legislative Counsel Bureau, I was instructed to provide the Committee with an original and 20 copies of everything we intended to introduce.  We have provided you with 20 copies of the 20-page response of Assemblyman Conklin (Exhibit D) to the Statement of Contest.  I again apologize for not being able to provide 20 copies of our voluminous exhibits.  I believe Kinko’s, here in Carson City, is cutting down trees, even as we speak, in order to provide you with those 20 copies.  The rest of the copies I did provide, the original and 8 copies, so you have them now.  I will be picking up the rest of them this afternoon and delivering them to the Committee so that we can be in full compliance of the Committee’s rules.  With that, I would like to turn to the substantive portion of what we would like to present as Mr. Conklin’s response.

 

Statement of this Contest was filed by Ms. Sandra Vitolo on November 19, 2002 (Exhibit F).  That date of filing is 14 days after the general election.  It was the last day on which such a Contest can be filed.

 

We believe that the Contest was not properly documented, not properly supported, does not meet the statutory requirements for verifications, and, in fact, contains inaccurate, inappropriate, and bordering-on-defamatory aspersions to persons who voted in Assembly District 37.  It also contains a copy of a complete but inapplicable Nevada Revised Statutes upon which the Contest is based. 

 

It also does not take into account that most of the voters whose names are listed in Exhibit 3 in Exhibit D, moved from one address to another, and then, in deed and in fact, voted properly in the last election.

 

Let me first turn to the inadequacies of the contest.  There are 160 voters listed in Exhibit 3 of Exhibit F.  Ms. Vitolo verifies the Statement of Contest (Exhibit F).  No one verifies Exhibit 3 of Exhibit F.  There is only a reference by Ms. Vitolo, which she claims to be based on her personal knowledge or information and belief, that all of the 160 names in the Exhibit 3 of Exhibit F have been verified to be fraudulent by Mr. David Groover and Associates, a local private investigator. 

 

That means that Ms. Vitolo is somehow trying to tell you that she is relying on a verification, which does not exist, and is never attached to this Contest.  It has turned out, through our investigation, that Ms. Vitolo has no personal knowledge of any of these voters; that she did not go to the source to find accurate information about these voters; that she did not reasonably rely on any investigator whose verification has been provided; and that there has not been a diligent investigation before looking into these 160 voters.

 

I would take you through just a few of those to show you why we think these are inadequacies.  First and foremost, there are mistakes about the registration law.  Mr. Larry Lomax, Registrar of Voters for Clark County, is in the audience.  I did take his deposition, and he explained to me, as he has explained to the press, and to Ms. Francis Allen and other members of the leadership of the Republican Party, exactly how our election laws work.

 

I would invite Mr. Larry Lomax to testify; he agreed to be here at my request.  He can explain far more eloquently than I can that when a voter has not notified the Election Department of their new address, but yet presents themselves to their old voting place in order to vote on a voting day, whether early voting or at the polls on that day, there is a screen that comes up.  The election official notifies or tells the person, “We don’t have your current address.”  The person is then permitted to fill out an affirmation giving his or her new address, and they vote.  They vote in the old district.

 

If you look at Ms. Vitolo’s Statement of Contest (Exhibit F), she is claiming that these people should not have been allowed to vote in Assembly District No. 37 because they no longer lived in Assembly District 37.  Under our Nevada Revised Statutes, if you haven’t notified, you vote your old district.  That is what Mr. Lomax testified to, and I am sure he’ll be able to clarify, if I’ve said anything that misstates Nevada law.  Ms. Vitolo and the others, who remain in the shadows to this day, who are assisting her, insist that, and treat these voters like they are new registrations.  None of them, except 12, are in that category.

 

I want to take these out of the 160.  Twelve of those votes, Ms. Vitolo, in her Exhibit 3 of Exhibit F, links to Gary Horrocks, a failed Republican candidate, and to his bar, the Clubhouse Tavern.  Because the district attorney’s office is conducting an investigation, because a grand jury is going to be convened, we have stayed away from those 12, so as not to trip over those investigators from the District Attorney’s Office.  So we are down to 148 votes.  Those 148 votes shake out this way: 86 of those voters filed affirmations when they voted, notifying Mr. Lomax and his department of their new address.  Those 86 affirmations were on file at the Election Department on the day this Contest was filed.  They are matters of public record.  The data, which would be entered by the Election Department, was entered in the months of November 2002, December 2002, and January 2003.  All of the information that I am now telling you was available to this contestant on the day she filed this Election Contest on November 19, and then for the next two months.  She could have gone to the Election Department, and, for these 86 people that she claims are frauds, she could have known that, indeed, they filed exactly what they were supposed to file, and that they voted exactly in the manner in which they were supposed to vote. 

 

Let me also point out to you, that 46.25 percent of the 160 voters are Republican voters.  One of the statutory requirements for this Election Contest is that you have to show that, if these votes were thrown out, it would change the result.  We would suggest to you that it probably would not change the result, but under no circumstance did we violate the sanctity of the ballot box by asking any of the votes to be thrown out that we were able to confirm by our own investigation, which took less than three weeks, were solid, valid votes.

 

Turning now to the rest of the 160, we were not able to get through all 148 of them.  Once again, the “Horrocks” votes, the bar-related votes, we stayed away from.

 

We note to you the following: of the 148 left, 5 of them have absolutely no notation whatsoever in this Exhibit 3 in Exhibit F.  I don’t know whether members of the Committee actually have the Election Contest and its exhibit, but, if you look at these exhibits, Exhibit 3 in Exhibit F, which is the 160, there are 2 voters on each page, and there is a series of information about each voter, including their dates of birth, their precincts, their registration numbers, and some sort of transaction numbers.

 

Chairwoman Giunchigliani:

Let me stop you there just so we can understand what you are referencing . . .

 

Kathleen England:

Ms. Vitolo’s Exhibit 3 in Exhibit F.

 

Chairwoman Giunchigliani:

Do we have that?  Is there any way we can get that for the Committee?  That was delivered probably to the Secretary of State’s Office.  We’ll see if we can get a copy for the Committee.  Mr. Wasserman, do you mind trying to see if we can do that?  Thank you.

 

Kathleen England:

It looks like it is a printout from a series of databases, and I can take some of these out of mine and show them to you in a second.  We went through those and figured out what they claimed the “Groover” problem was on each and every one of those 148 voters.  Once again, we set the 12 aside.

 

We went to the Election Department and got affirmations for all those that we could.  We then sent out private investigators.  One of the major issues in this Contest is where there are eight apartment complexes, where lots of the people in those apartment complexes moved out, so when national databases for changes of address were checked with the U. S. Postal Service, these individuals would come up with new addresses.  On that basis alone, apparently, they were put in here as fraudulent voters.  Remember, 86 of them have filled out affirmations just the way they should have.

 

According to the notations in Vitolo’s Exhibit 3 in Exhibit F, it looks, by notations that say “unknown to apartment manager RDG via apartment manager,” we were able to piece together that their investigator must have gone to each of these eight apartment complexes and asked for the information about those voters.  Remember there is no verification, no source.  Apparently, he was told that these people never lived there, never had lived there, we don’t know who they are.  We sent an investigator to each of these apartment complexes and, unlike the way Vitolo did it, we provided you with our investigator’s affidavit.  It is in the yellow-faced exhibit book that you have in front of you (Exhibit E). 

 

Chairwoman Giunchigliani:

Miss England, for the Committee, it’s the page that begins right behind Mr. Lomax’s deposition.

 

Kathleen England:

If you would like to turn to that.  This is Mr. Jim Thomas, a private investigator, fully licensed in the state of Nevada.  His services were engaged by me so that we would be able to present you with evidence here today, evidence that someone could testify to, evidence that a diligent investigation was undertaken.  We gave Mr. Thomas the Exhibit 3 in Exhibit F from the Vitolo Contest, and he went to every single one of these apartment complexes.  All eight managers said they have never spoken to anyone.  In fact, we also obtained the affidavit of Ms. Tammy Wanta, an apartment manager, appearing as Exhibit E in your book.  She is the apartment manager at 2051 North Torrey Pines. 

 

Five of the allegedly fraudulent voters lived originally at this apartment complex.  We have provided you the affirmations and changes of address for all eight.  More importantly, Ms. Wanta and Mr. Thomas both testified that not David Groover nor anyone else had ever come to that apartment complex and asked if these people lived there.  Indeed, every single one of those voters did.  Ms. Wanta was kind enough to provide the information and told us when they moved out of the complex.

We wanted you to see, as we started to uncover this, was that the lack of verification of that Exhibit 3 in Exhibit F really goes to show you why the statute requires verified information.  We have no evidence whatsoever, and the contestant is not here to present it today, to tell you what investigation they undertook.  Every time we tried to follow that investigation, we found out that their information was inaccurate, and, in most instances, it had never been acquired in the first place.

Turning now to just some of the miscellaneous accusations they make against voters, which we then followed up on: Let’s take the case of Ms. Charlene Shepard.  According to the Exhibit 3 in Exhibit F, Vitolo’s notation, Groover has put down there, “Apartment manager does not know her.”  There is a good reason for that.  She doesn’t live in an apartment.  She lives in a single-family home.  She has lived there, according to the Assessor’s records, for quite some time, and you will see that in our exhibit, Mr. Thomas’s exhibit, we provided you with the information that we found out, which is verifiable through public records, about Ms. Shepard.  Ms. Shepard has an unlisted phone number, so we chose not to intrude on her privacy anymore, since she has been thrown into this mix.  We chose not to intrude on her, so I will not be presenting her affidavit here today.  This is the kind of shoddy investigation, this is the kind of unverified information, that got a voter’s name thrown into a list of 160 voters presented in a spreadsheet so it looked like something was really going on, and this is what brought us here today.

Let me tell you about some of the other notations.  A lot of the notations say, “Not at home, no answer,” as if to suggest that Vitolo, or Groover, or someone else, went to this person’s house and rang the doorbell or called them on the phone, and simply because a person didn’t answer the door, they are listed as a fraudulent vote.  I would suggest to you that most working people in Las Vegas, probably in Carson City, and Reno, and all over the state of Nevada, oftentimes are not at home during the day, or not at home during certain hours.  Just because someone came to your house and you didn’t answer the door, or you chose not to answer the door, or you chose not to give personal information out about yourself, does not mean that your vote is fraudulent.

You will see, and borders on my second favorite notation, that there is what appears to be a family, it is the Williams family: Keith S. Williams, Kevin Lee Williams Sr., and Nilda R. Williams.  The notation for Keith S. Williams and Nilda R. Williams, both of whom Groover, in Exhibit 3 of Exhibit F, claims live at 7516 Sea Spray Avenue, Las Vegas, Nevada, 89128.  The notation is, “No answer, highly suspect.  California car in driveway.”  This is the accusation, as if a California car, a car with California plates in your driveway makes your vote fraudulent.  There is a good reason the Williamses are not at that address: It isn’t their address.  They don’t live there anymore.  They signed affirmations, and they live in a completely different place; therefore, it is perfectly acceptable and certainly not highly suspect.

Another category of accusations has to do with absentee or mail ballots.  One of these is Alma and William McCarthy.  I won’t leap to the conclusion that they are a married couple, but it looks like it.  They both live at the same address.  The notation on Exhibit 3 in Exhibit F, once again unverified, says, “There is no answer at their house.”  There is a good reason for that.  They are in the military, and they asked that their absentee ballots be sent to their APO addresses.  To call these people, who are obviously serving our country at this time, a fraudulent vote, based on some accusation that somebody went to their door, is not what the statute requires for verified information.

Similarly, there has been a terrible invasion of these voters’ privacy.  We’ve had to do this.  I have had to come before you here today and say names of people.  They never put their names at issue, they never did anything wrong, they properly voted, and some of them have resided in the houses and voted from those houses, based on that residence, for the last 12 years.  Yet I’ve had to say that certain people reside by themselves, but probably the most troublesome is the one that goes with Daniel L. Orr.

Regarding Mr. Orr, you will see Mr. Orr’s son’s affidavit: Orr, Daniel Lewis, in Exhibit G in Exhibit E, towards the back.  That exhibit, the unverified, unsourced, undocumented Exhibit 3 in Exhibit F says Daniel Lewis Orr is a Republican; it says that he voted absentee ballot on October 23, 2002.  All of that information is correct, and we’ve been able to verify that.

According to the Exhibit 3 in Exhibit F, they put down “claimed residence, 6151 Vegas Drive, Las Vegas, Nevada 89108.  Registration mailed to 2040 West Charleston Boulevard, Suite 201, Las Vegas, Nevada 89102.  Absentee ballot mailed to 2040 West Charleston Boulevard, Suite 201, Las Vegas, Nevada.  Voter status active.”  The notation says, voter in “final stages of dementia.”  Then the notation below that says “final stages of dementia– immobile absentee ballot to Charleston address.” 

Somebody has invaded Mr. Orr’s medical privacy.  Not only that, it has been presented to you, and it’s inaccurate.  His son is Dr. Daniel Orr, a noted oral surgeon in Las Vegas.  This is his father, who lives at 6151 Vegas Drive, which is a life care facility.  That is his residence.  That is where he is registered to vote.  His absentee ballot is sent to his son’s medical office, as is his wife’s, Dr. Orr’s mother’s ballot.  It is sent there so that Dr. Orr can be sure that they get the ballot and fill it out on time.

On the day that Mr. Orr voted, he was in the hospital.  He asked for an absentee ballot.  His son, the oral surgeon, brought it to his father and assisted him, after calling the Election Department asking if it would be okay.  Dr. Orr assisted him in filling out his ballot because Mr. Orr is right-handed, and there was an IV in his right hand.  So Dr. Orr called the Election Department, asked how he should assist his father, was told that it was okay to assist him, and assisted him in filling out that ballot.  Dr. Orr also told me that his father never votes for Democrats and votes a straight Republican ticket.  I told him I didn’t want to know for whom his father voted.

It is deeply offensive to me and to Mr. Conklin, as it should be to any Nevada legislator, that this kind of detail has to be brought forward because somebody says that Mr. Orr’s vote is a fraud.  His son’s affidavit is in front of you.  The father is not in the final stages of dementia, and, as Dr. Orr pointed out to me, he doesn’t even know what that means.  His father reads the newspaper every day, his father stays up on it and votes in every single election. 

While laughingly I suggested that every Republican is in the final stages of dementia, it does not mean that they should be deprived of the right to vote; and, thank goodness my father is not here today to hear me say that.  These are the kinds of charges, and this is the kind of inadequate information that Ms. Vitolo presented to you, which has made us spend the next two months trying to track these people down, and, in fact, invading their privacy sufficiently to allow us to come here and present to you this information that is so suspect that none of it should be believed.

Lastly, I would like to give you the example of a Mr. Lopez.  You will find his affidavit in Exhibit F in Exhibit E, of our presentation.  Let me read to you what is in Exhibit 3 in Exhibit F.  Once again, this is unverified, unsourced, and uninvestigated by Ms. Vitolo and, allegedly, Mr. Groover, because they never tell us this connection.  They never tell us what they investigated and where they got it.  The voter on page 39 of the 80 pages of their Exhibit 3 in Exhibit F is listed as Lopez IV, Joseph Anthony.  He is a Democrat, age 48.  He voted; his general vote was at the polls.  He is in Precinct 6342.  He has a registration number and his claimed residence is 6513 Fresh Meadows Lane, Las Vegas, Nevada.  His registration mail is sent to 626 South 7^th Street, Las Vegas, Nevada.  You can notify and have a mailing address on file with the Election Department, just as Dr. Orr’s parents do.  According to the notation, this is over and over again, the Groover/Vitolo notation says, “Unknown to resident.” 

Once again, this means that it appears that they are trying to claim that on certain occasions, they went to these people’s houses, and they actually interviewed someone who alleged himself or herself to be the resident.  I never got to take those depositions, I never got to find out what investigation they provided, I never saw their investigator’s notes, so I can’t tell you what they did.  All I’m telling you is that they accused Joseph Anthony Lopez IV, who does indeed reside at 6513 Fresh Meadows Lane, Las Vegas, Nevada 89101, they claimed his vote was a fraud because his name was unknown to the residents of that house.

You will see in the affidavit that Mr. Lopez does live at 6513 Fresh Meadows Lane and that he has lived there for over 10 years; that he has his registration; his  mailing address on file with the Election Department is his office, 626 South 7th Street.  So, that is correct, and he did vote; he voted at the poll on Election Day, and there was nothing wrong with his vote.  He is an attorney, and he wrote his own affidavit, because he did not like the one I wrote for him, and you have it presented to you today.

I also followed up with Mr. Lopez, because I was concerned that on certain occasions, walkers, or whoever was doing the investigation, might have gone to somebody’s house and that, perhaps, someone fearing what was happening, or a teenager answering the door would say, jokingly, “No, they don’t live here.”

On some of their Exhibit 3 documents in Exhibit F, they seemed to have gotten declarations because they note, “Refused to give declaration.”  A strange person coming to anyone’s house and asking somebody to declare that a certain person doesn’t live there, I think, is an intrusion of the solitude of the home, but they never produced any of these declarations.  If they were asking people to sign declarations, and, sometimes it appears, they went next door and asked the next-door neighbor if he or she knew if this person lived there.  They have never produced one declaration where somebody actually said something about that.

Back to Mr. Lopez, he told me that he had lived there for the past few years by himself.  So, it’s not possible that anybody else went to the door and said, “Mr. Lopez doesn’t live here anymore.”  Curiously enough, as well, the address where Mr. Lopez gets his mail and gets his registration mail is right across the street in downtown Las Vegas from Mr. Groover’s office.  Mr. Groover had his address, because they have listed it in Exhibit 3 of Exhibit F.  He could have walked across the street.  We are not even talking about a big investigation.  They had his address.  They knew what it was before calling him a fraud.  They could have walked across the street and seen the sign that says, “Joseph Lopez, Attorney-at-Law.”  They could have gone in there and asked, “Do you live at 6513 Fresh Meadows Lane?”  I’m sure Mr. Lopez would have shared that information.  “Yes, I do live there; yes, that’s where I vote; yes, I am in Assembly District No. 37; and, yes, I voted.” 

This is the kind of information that has been presented to you, and it also shows you why, in its wisdom, and I know lawyers usually say that sarcastically, but in its wisdom, the Legislature required that these Contests be verified.

Verification means it is personal knowledge, or a reasonable belief if you have someone collect that information.  None of that appears here in this Election Contest.  More importantly is that after the Election Contest was filed, we attempted to get that information.  Because Mr. Conklin, who won by 134 votes in that election, is against voter fraud, he is against illegal voting, and he wants to make sure that, if he won, he won fair and square.

Mr. Conklin has nothing to do with any of this, and, in fact, he had never seen these exhibits until today.  We hired a responsible private investigator so that we could find out what the truth was and present it to you here today.  We started at the minute, or perhaps the day after, Mr. Conklin hired me.  The first thing I did was contact the Election Department, and then I spoke with Mr. Lomax, who has been extraordinarily cooperative with me in providing that kind of information. 

First, Mr. Lomax explained to me what the statute said, and I understood, after he explained it to me about three times, that if you move, but you are still in the county, you have to go to your old polling place, and you vote there.  You can fill out an affirmation.  He provided me with a booklet of his materials.  He provided me with voter affirmation cards.  He provided me with the training materials that all of his election officials get that explains to them exactly how to handle every single one of these situations.  His staff bent over backwards to provide us, and go through their records, and provide us with all the affirmations that you see here (Exhibit E).  Even as late as last Friday, we were asking him for more information, and he was providing it to us.

We went to Ms. Vitolo.  As a lawyer, you must understand that the minute someone notifies me that they are represented by counsel, I am no longer permitted, under the Rules of Professional Conduct, to speak with them anymore.  I can only speak with lawyers.  However, Ms. Vitolo’s Contest does not show that it was prepared by a lawyer, or that she is represented by counsel.  I looked her up in the phone book, I called her, and I spoke to her.  I introduced myself.  I asked her if she was represented by counsel; she wouldn’t tell me.  I asked her if she would be willing to be deposed, if she would be willing to set a time convenient for that, and if she would be willing to cooperate with us, so that we could see the information and begin to process it and look it up.  She told me she would have to speak to others and that she would get back to me.  She never did. 

After waiting a few days, I sent her a letter that I wrote to her the same day I talked to her, saying, “Please have your lawyer call me.”  I confirmed in the letter, very carefully making sure that she knew that if she was represented by counsel, I could not speak to her.  A few days later, when I posted a notice to take her deposition, I did get a phone call from her lawyer, Mr. Craig Mueller.  He indicated to me that he didn’t have the documents, and he would need a few days to look at them and asked if I would afford him the professional courtesy.  I said, “of course.”  Then I got a letter from him the next day that said neither he nor Ms. Vitolo would cooperate with me in any way, and that Mr. Conklin and I were no longer to bother her or harass her.

I then noticed the depositions as well, and contacted Ms. Francis Deane.  Francis Deane was elected the County Recorder in this past election.  Her affidavit is attached to the contest.  It says that Mr. Horrocks came up to her at the Republican election victory party, on the day of the General Election, and that he got 100 votes for her.  She says she thanked him, and then, a few days later, when it came to light that Mr. Horrocks was now being accused of improperly soliciting votes and allowing people to use his bar as their residence, and that the whole matter was under investigation by the District Attorney’s Office, it was at that point she decided to come forward; but she never came forward to tell the proper officials as far as we can tell.  The first time she says or does anything is to provide an affidavit, which is attached to the Election Contest (Exhibit F).  It is, indeed, the only piece of information of personal knowledge.  No other part of this Contest (Exhibit F) has anyone actually indicated they had personal knowledge or actually had a conversation with anybody except Ms. Deane. 

I called Ms. Deane’s office and asked, on three occasions, if she would be willing to speak with me, if she would be willing to contact me, if she would be willing to give me a recorded statement, if she would be willing to do anything that might solidify, so we could find out why she had her affidavit attached to this contest (Exhibit F).  She refused to speak with me, she refused to take my phone calls, and, when I noticed her deposition, she refused to show up.  So, we were not able to track down her information.

 

Chairwoman Giunchigliani:

Question, Assemblyman Griffin?

 

Assemblyman Griffin:

Thank you, Madam Chair.  Her affidavit only says 100 votes countywide; it never referenced 37.  Is that the way I understand it?

Kathleen England:

Exactly.  It says he told Francis Deane, who was elected in a countywide race, that Mr. Horrocks only got her 40 votes.

Assemblyman Griffin:

One hundred votes. 

Kathleen England:

Excuse me.

Assemblyman Griffin:

The point A to point B that she says in an affidavit in here somewhere, is that she was told on election night that she got, meaning Francis Deane got 100 votes through Mr. Horrocks’s efforts.

Kathleen England:

Yes.

Assemblyman Griffin:

They were never focused on Assembly District 37 at all?

Kathleen England:

Not at all.

Assemblyman Griffin:

I did not realize that.  Thank you, Madam Chair.

Kathleen England:

I’ll quote her affidavit, which is Exhibit 4 in Exhibit F.  It says, “At all times, the affiant was over the age of 18.”  It has the usual affidavit stuff, as we call it.

 

[Kathleen England continues to quote from the affidavit of Ms. Deane.]

 

“On November 5, affiant was elected to the office of Clark County Recorder.

 

On the evening of November 5, 2000 [sic 2002], affiant was present at Caesar’s Palace Hotel and Casino for an election night party for Republican candidates and supporters.  During the course of the evening, affiant was contacted by Gary Horrocks, an unsuccessful candidate for Assembly District 37.  Gary Horrocks is also a lobbyist for the Nevada Association of Concerned Motorcyclists.

 

Mr. Horrocks related to me that he had obtained over 100 votes in the General Election for me.  When he initially told me this, I could only express my gratitude.  I later asked him how he obtained the votes and he related that he had absentee ballots mailed to his wife and him, and he filled out the ballots.  Therefore, he knew how the votes were designated and how many of the votes he was responsible for.  Mr. Horrocks also related that he was late to the event on election night because he had just delivered three votes.

 

After reading several articles in the Las Vegas Review-Journal about voter fraud, I felt it important to bring this information forward. 

 

Further affiant sayeth naught.” 

 

Chairwoman Giunchigliani:

Let me pursue that.  To whom did Ms. Deane provide her affidavit, to Ms. Vitolo?

 

Kathleen England:

I have absolutely no idea.

 

Chairwoman Giunchigliani:

So we don’t know what generated that part of it.

 

Kathleen England:

No, sorry.

 

Chairwoman Giunchigliani:

How did it get there?

 

Kathleen England:

I have absolutely no idea.

 

Chairwoman Giunchigliani:

Ms. Vitolo had, obviously, no attorney representing her, from what it looks like, until January 9.  We don’t know who actually helped her prepare the deposition?

 

Kathleen England:

That is correct.

 

Chairwoman Giunchigliani:

Not the deposition, but the Contest.

 

Kathleen England:

That is correct.

Chairwoman Giunchigliani:

I read a newspaper article; Assemblyman Beers’ complaint was to 20 voters, and then a more extensive investigation over the weekend, according to the challenge filed, found 160 voters.  Do we know if Mr. Beers had anything to do with the actual filing of it?

 

Kathleen England:

We do not, other than through the testimony of Mr. Larry Lomax, who is the Registrar of Voters of Clark County, and he can speak for himself.  I did take his deposition on January 16.  It was a deposition that I noticed under your rules.  It was a deposition that Mr. Lomax consented to, so that I could “bumble around in the dark,” as he pointed out, to learn what I might present here more succinctly today.  Mr. Lomax and I have provided it to you, and it is attached as Exhibit B in Exhibit E, in the yellow book.

 

I asked Mr. Lomax if others had come and asked him for this information before they filed the Election Contest, with whom he had been in contact, and if he would be willing to explain, and if he explained all of these election laws: the difference between new registrations and old registrations; where the people have actually voted; the difference between active and inactive voters; and the fact that inactive does not mean ineligible.  Inactive means they just don’t have your right address.  If you present yourself to the poll, Mr. Lomax testified, and are willing to do an oral or written affirmation, you are permitted to vote, and you’ve got to vote in your old district.

 

If you will look at page 7 of Mr. Lomax’s transcript, that is Exhibit B in our Exhibit E.

 

Chairwoman Giunchigliani:

Mr. Anderson has a question.

 

Assemblyman Anderson:           

I know, Ms. England, you’re used to running on and keeping going, but I think that we are still concerned about the basics.  I am asking you to draw a conclusion that you may not want to draw, I recognize that.  Based upon this question:  Are you of the opinion that both her lack of response to your inquiries, and your subsequent investigation, that she was without counsel in the very, very beginning of this, and that she was doing this at somebody’s knowledgeable request?  She was getting consultation from somebody, but not necessarily an attorney, who is familiar with the ins and outs of the election process. 

Kathleen England:

No, Mr. Anderson, that would not be my conclusion.  I think, regardless of whether she was represented by counsel, persons were assisting her.  I have not been able to take her deposition, and I have not been able to take anybody’s deposition who did assist her.  Mr. Lomax clearly testified that he is not quite sure whether it was before or after the Contest was filed.  But before I deposed him, he met and spoke with Mr. Beers.  He met with Francis Allen, George Harris, Assemblyman Beers, and Dan Burdish.  They were all in his office and he provided them with whatever information they wanted.  He explained the statutes.  He said he spoke with Mr. Beers on the phone.  I asked him, “Did anybody ask you for the 86?”  He said, “Nobody has ever asked me for that much information, Ms. England.”

 

Assemblyman Anderson:

Thank you.

 

Kathleen England:

The form of affidavit and the verification and the somewhat following of the statute, Mr. Anderson, would suggest to me that there was legal counsel assisting.  However, these statutes are statutes, which are, I believe, easily understood, and which Mr. Lomax is always available to explain to everyone.  In fact, his staff is more than willing to assist.

 

Assemblyman Anderson:

Ms. England, I think that was the very basis of my concern, knowing the process and the good offices that exist there, and the staff’s attitude of trying to assist people who are running for public office who are not attorneys, and who may legitimately come forward to make sure that all the paperwork is done in this process.  That way we’re not cutting out the fact that you have to be an attorney in order to do this.  We try to write this in such a way that you can do this yourself.  Although, when you step forward in this particular part of the arena, you best be well prepared for somebody who knows how to do an investigation, I would think, but that is a matter of my own personal opinion.

 

Kathleen England:

Those are probably two separate issues.  One is the application of the statute, and the second is conducting a diligent investigation.

 

Assemblyman Anderson:

I guess, because of the timeliness, when you have to file your paperwork within the two weeks after the election, you may want to make sure things are moving very, very rapidly, if you are concerned about it.  I appreciate your observation.

 

Kathleen England:

And by November 19.  Remember her Exhibit 3 in Exhibit F where they are saying there is no answer.  Mr. Lopez would be a classic example.  That information was certainly available through the public Web site of the Election Department. 

 

Some of this we went through, and we pulled from the Web site the 160 voters that we were able to see.  There is limited information on the Web site.  If you’re sitting and just going over the Internet to pull down somebody’s publicly filed record at the Election Department Web site, you’ve got to know the person’s birthdate.  We know that the contestant and Mr. Groover knew their birthdates, because they included it on their Exhibit 3 in Exhibit F.  Anyone can sit at home and look anybody else up, as long as you’ve got the birthdate.

 

When I took Mr. Lomax’s deposition, he corrected me and said, “If you want to come to the Election Department, or you go to the Clark County Government Center, you don’t need to know the birthdate.  You can go right down there, and you can download the information.  We did not present the 160 pages of download to you, but I would suggest to you that before November 19, many of these people already had that updated information.  Plus, these voters really are innocent until proven guilty.  Just because someone has a different address doesn’t mean they end up being a fraud.

 

When I took Mr. Lomax’s deposition, and, Mr. Anderson, I think you’re right and, also, this is right.  You’ve only got two weeks to file, so you may have to make some suppositions, but you should only make those suppositions on good reliable evidence, the best available to you.

 

In the exhibit that we presented to you, not only do we give you the affirmation, but we also give you the screen.  Mr. Lomax was kind enough to provide us with the screen of the database, and it will show you when they updated their database.  In the lower right-hand corner of those screens, behind each affirmation, it will show you that Mr. Lomax’s staff input those, sometimes as late as January 3.  So, you’re right.  The information available at the Election Department might not yet have been updated. 

 

If someone, innocently enough, downloaded or looked at the database beforehand, they would see that this person has one address, and they may have gotten information from the U.S. Postal Service that this is their new address.  I don’t think you’re entitled to, under the statute, accuse somebody of fraud, which is a crime, and voter fraud, which is probably even worse, simply because the address on file at the Election Department doesn’t match the one that the U.S. Postal Service has now told you they changed it to, when, in fact, the Election Department had that information.

 

What would you do in those instances?  There were a number of instances in which the information was already there.  Mr. Lomax also testified that, as of Election Day, they freeze their database so they know who voted and when they voted.  It is only later that they begin the 10,000 to 15,000 entries, which they have to begin.  He provided us all that information. 

 

Certainly, if it wasn’t known to them on November 19, and let’s say they needed this Election Contest because they sincerely believed that there was election fraud, and that there was enough election fraud to change 134 votes, then I would suggest to you, by December 15, they should have known and could have withdrawn it.  By December 30, when I obtained the information from Mr. Lomax, they could have withdrawn this.  By January 16, when I took Mr. Lomax’s deposition, they could have withdrawn.  They could have withdrawn it as early as a week ago, before we completed this investigation.

 

But, they didn’t.  They never, as far as we can tell, ever did anything, and they never participated.  I would have handed them every single one of these voter affirmations.  I invited them to attend depositions, and I invited them to listen to Mr. Lomax.  I invited them to see everything that I had, because that is the way this process should work.

 

Mr. Conklin is entitled to due process in front of this Committee.  The statute allows him to have this due process.  What the opponents did, and I am not even sure who his opponents are because no one would reveal themselves to me, was to refuse to cooperate.  When I deposed—excuse me—when I attempted to depose Mr. Groover, the investigator whose name is here, of whom Sandra Vitolo says, “He verified 160 names and addresses as fraudulent.”  When I attempted to depose him, he accused me of having no legal authority to depose him.  I provided him with this Committee’s rules.  Mr. Lomax also suggested, on the record, that Assemblyman Beers had called him the day before I deposed Mr. Lomax and suggested that Marcus Conklin and I had no legal right to depose him.  Assemblyman Beers said that we were doing something wrong, at which point I asked Mr. Lomax, and this is on the record, if he still wanted to be deposed, and he said, “Go ahead.”

 

Everywhere I turned to find this information, the people said to me, or suggested to me, that I was doing something illegal.  I never represented that I had subpoena power because I knew only this Committee had subpoena power; but there is no harm in obtaining recorded statements, and this Committee’s rules have always provided for it. 

 

It is the constitutional due process that Mr. Conklin, who stands to be deprived of his legislative seat, is entitled to.  We’re entitled to see this, and they kept it away from us.  So Mr. Groover just never showed up.  I spoke to him as late as 11:00 on the date of his deposition, which I noticed a week in advance as we were approaching this, and he told me that he would call the people who hired him.  He never told me who hired him.  He never told me what he did.  He never provided me with his file.  He never revealed that he was represented by counsel, and he never showed up for his deposition.

 

Mr. Mueller, Attorney Mueller, is who represents Sandra Vitolo.  I asked him in the letter, and you will see it as part of the exhibits in Exhibit E.  “Would you please tell me whom you represent, so I can make sure I don’t call them, innocently enough?”  Similarly, Mr. Mueller would never tell me whom he represented.

 

Mr. Conklin and I, and very little by Mr. Conklin, and mostly my investigator and I, were boxing at shadows.  We were trying to find out the truth.  It was continuously hidden from us.  It was continuously hidden from us by tricks, by whispers, and by failing to come forward with evidence to show that these votes really, indeed, were not fraud.

 

These voters, 148 people, because I’m separating out those 12 who are being investigated, 148 people have been accused of fraud, on the public record, without evidence, with two months of failing to come forward with that evidence.  We think that something should be done about this.  These voters are entitled to have their names, their good names, unchallenged.

 

Also, Mr. Conklin has had to hire me, and knowing that quality doesn’t come cheap, he has had to incur attorney’s fees, in order for us to make this presentation.  However, we have simply asked, and provided you so you understand the cost of this Contest, which could have been withdrawn.  As you all know, the Contest of Election was withdrawn by a fax letter sent to me and also to the Secretary of State, at 4:00 p.m. on Friday afternoon, January 31 (Exhibit G of Exhibit E).  This could have been withdrawn, if it didn’t have the goods, upon further reflection.  Perhaps that reflection should have taken place about two months ago, and before Mr. Conklin was called upon to see, in costs alone, over $3,000 for investigative services.  I, for example, have been charged by Mr. Lomax’s office for the documents I have had to provide for you here today, and you can imagine what 20 copies of our exhibits cost at Kinko’s.  I can’t actually tell you what that is, because I still have to go back there and pick up the rest along with the bill.

 

Chairwoman Giunchigliani:

Assemblyman Hettrick has a question.

 

Assemblyman Hettrick

Thank you, Madam Chair.  I guess I’m having a problem.  Maybe you can correct me, but I don’t think, from what I read of the Statement of Contest, that anyone alleged that these voters themselves were fraudulent.  It says, “Illegal votes were cast and counted.”  I don’t think anyone accused the individual voters in question whose names were on the ballots, in person or in fact, that they cast fraudulent votes.  That’s the way I see this.  The way I see this, and from the information you’ve mentioned from Mr. Groover, it appears that people tried to verify whether or not a ballot was correctly cast.  You allege somehow they didn’t find them, or they found people next door or whatever.  But, I don’t see anything here that says that, indeed, someone accused the individual voters of casting fraudulent ballots.

 

Kathleen England:

Look at page 3 of the Contest, lines 25 and 26 Exhibit F; 116 names and addresses were verified to be fraudulent by David Groover of Groover and Associates.  So, Mr. Hettrick, you are absolutely right; this is sort of hearsay upon hearsay, verification upon verification.  There is nothing in Exhibit 3 of Exhibit F that is verified by anybody other than this statement by Ms. Vitolo in her argument, which she verifies at the end.  At the end of the document, she has a verification that says:

 

“Under the penalties of perjury, the undersigned declares that she is the contestant named in the foregoing Statement of Contest, and knows the contents thereof.  That the pleading is true of her own knowledge, except to those matters stated on information and belief, and that as to such matters, she believes it to be true.”

 

She is claiming that everything in there is true.  One of the statements she makes is that the 160 names and addresses were verified to be fraudulent by David Groover, of Groover and Associates.  That kind of verification by Mr. Groover is not there.  I am indicating, Mr. Hettrick, that this one line is from what we are deriving our accusation from and that she is accusing those voters of being frauds.

 

Assemblyman Hettrick:   

The only thing I’d say is I read the same thing you read.  It says names and addresses of ineligible voters, and based on that they filed this based on the conclusions of Mr. Groover.  They said, to the best of their knowledge this was true, and it says they requested the Secretary of State further investigate facts and allegations to determine the extent of ongoing voter fraud, or the extent of the voter fraud. 

 

My only concern is that I don’t believe this was a specific allegation to a specific voter, Mr. Wilson, or Mr. Lopez, or anyone else, that they, personally were fraudulent voters.  I think what this said was that illegal votes were cast, and that they wanted it further investigated, which they believed based on the information that they had.  That’s my only concern here.  I think we’re stretching the point to say they accused every one of these individuals of being a fraudulent voter.

 

Kathleen England:

Mr. Hettrick, that certainly is one way of looking at this.  The statute, though, requires you to provide information.  To file that Contest, it needs to be verified information.  I would suggest that, as you’ve now identified, one could provide verification that there has been wholesale vote fraud, or vote theft, and that you don’t know whose vote was stolen.  Let’s say a ballot box was stolen.  You don’t know whose vote was stolen, but that you knew, or you saw, or you had personal knowledge that this event occurred.  You could not list people name by name, that this vote is gone, this vote is gone, and this vote is gone.  I would suggest to you that this is a different kind of Contest, because it did name names. 

 

She refers to them as illegal votes, because she says on that same page, line 14, page 3 of Exhibit F, that the number of illegal votes exceeds the 134-vote difference.  Then, she attaches a list that very specifically gives names, birth dates, addresses, registration numbers, and all sorts of information that you could only get from the Registrar’s Office.  One must, under the statute, I think, say that she is saying that these 160 votes are fraudulent.  If she just said some of them, or if she had given us some information about her personal knowledge, Mr. Hettrick, I don’t think it would be quite as bad.  If she said, “We have compared the U.S. Postal Service list with the Election Department list that existed on November 6, before all the data was input, and we have found 160 people who do not reside at or who do not look like they live at the residences that are on file, if she had qualified it, and a careful Contest would do that, you would preserve your right to come in. 

 

I’m suggesting to you, Mr. Hettrick, that for some of those, she couldn’t possibly do this.  For Mr. Lopez: Mr. Lopez lives at that house and always has, and that’s what the Election Department has on file, if they had actually looked at Mr. Lopez.  All they did was take somebody who gets his mail somewhere else and claim that his was an illegal vote and should be discounted.

 

Assemblyman Hettrick:

Ms. England, the only thing I would say to you is that may be bad investigative work by whomever got paid to do that, and the fact that you list the name of a voter and say an illegal vote was cast in this person’s name does not mean that that person cast that vote.  It means that an illegal vote, the contention was that an illegal vote was cast in that person’s name, not necessarily that they did it themselves.  I agree with you; they’ve got a list.  All I’m saying to you is that, by listing a name, it doesn’t imply that that individual cast a fraudulent vote.  Their contention is the vote was illegally cast in their name.  It doesn’t imply who did it.  That’s all I’m saying to you. 

 

Kathleen England:

That is certainly true.

 

Chairwoman Giunchigliani:

Assemblywoman Buckley.

 

Assemblywoman Buckley:

Thank you, Madam Chair.  It’s been interesting reading the Statement of Contest, the exhibits, and the exhibits you provided.  I had an opportunity to glance through them.

 

I just had a couple observations.  It is difficult for us sitting here to know who did what.  You talk about Mr. Groover.  We have no idea what he was paid to do.  He could have been told, “You have an hour’s time.  Do your best work to track.  We don’t know.  We don’t know who retained him.  We don’t know how much he was retained to do, so it is really speculation.  He has a very good reputation in the community, and has been a private detective for a long time.

 

I think it is a little unfair for us to sit here and judge him because we don’t have enough information to come to judgment on that.  What is clear to me is, I think I would disagree with Mr. Hettrick.  The Contest says that the votes were illegal, and they are verified to be fraudulent.  I think it is outrageous that these people are being accused of casting illegal votes when they were following the law.

 

We can break them down into two categories.  Either the folks had moved or they were, by law, required to go to their old voting spot.  Those weren’t illegal votes.  Or they are being accused of not living somewhere and they do live there.  Or, in Dr. Orr’s case, where he was just delivering a ballot, I think these are frivolous accusations in the Contest.

 

I think the questions become for us, “What do we do about it?  What remedies are there?  What remedies should there be to deter frivolous election contests while not chilling the rights of someone who feels that they really do have a fair “beef?”

 

In 1995, my first term, I got to witness two Election Contests, one by the late Jan Evans, and it was her second Election Contest; the second was identical to the first.  We had someone who thought Ms. Evans shouldn’t serve because she worked for a university, so, poor Jan.  In those days you weren’t seated, so she didn’t get to sit with her colleagues, her family was inconvenienced, and it was frivolous.  It had already been ruled frivolous the first time, so there was no doubt.  He had already lost the election contest the first time.

 

We could spend weeks beating this up, but we don’t have time.  So, the bottom line for me is: What remedies are there?  What remedies should there be to ensure that, in the future, if it truly were frivolous, we would not give the contestant time?

 

Assemblyman Anderson said someone only had two weeks to pull this together, and I think there is some merit to that.  You know, you do only have a certain amount of time, but, to just go on speculation and say someone has dementia, when, in fact they do not, and then continuing up until the day before we are about to begin?  To continue with the contest, whether it is for political reasons, to cast aspersions on someone who admittedly had nothing to do with any of this, such as Assemblyman Conklin, or whether they just wanted to get good press by continuing on?  Who knows?  I think we have to look at some bill drafts on what to do about frivolous contests while protecting those who truly feel that there is something.  We don’t want to undermine that.  Maybe if some sort of standard of bad faith, as opposed to just losing, that we should consider, as well as whether we want to consider any bill drafts with regard to the issue of Mr. Horrocks.  Is there anything we can tighten up on with regard to that situation?

 

I think if anything can come out of that, if we could spend our time looking at those two arenas to protect things from happening in the future, I think we will be well served.

 

Chairwoman Giunchigliani:  

Comments?  Speaker Perkins.

 

Speaker Perkins:

Thank you, Madam Chair.  We have Mr. Lomax here, and he can certainly clarify any of the points that have already been made and information to that.  There are a number of folks who are not here, of whom we won’t have the opportunity to ask a question, about many of the questions that have been raised.  I guess, for staff first, I would like to ask for direction.  It’s obvious the Secretary of State accepts the challenge, or the Statement of Contest.  Is there anybody who verifies the statutory requirements of an Election Contest?  And, what might those statutory requirements be?

 

Scott Wasserman:

Thank you, Madam Chair.  There is a statute that sets forth what must be included in the Statement of Contest, and that is delivered to the Secretary of State within that deadline.  The Secretary of State then merely delivers that to the House in which the challenge is being heard. 

 

It would be your rules and your proceedings that determine how to go about verifying whether or not the contest meets the requirements set forth in the statute, which are in NRS 293.407.  It would be up to this body to make that determination in a challenge of an Assembly District. 

 

Speaker Perkins:

So there is no process in which frivolous contests or challenges could be weeded out before we get to the legislative session?

 

Scott Wasserman:

I would say no, because, under the Constitution of the State of Nevada, the House is charged with judging the qualifications of its members.  So it takes this House to look at that.

 

Speaker Perkins:

With that understanding, Madam Chair, and I think there is a need, again, as Ms. Buckley has pointed out, to try to find some way to create an environment where frivolous challenges do not occur, and yet, not put a chilling effect on those that really have merit.  I think we should explore the opportunity to have some way of doing that in this body.  I would ask a question of Ms. England, an aside, to set aside your attorney’s fees.  There must have been enormous cost in investigation and deposing of folks, and just to ensure your client was properly represented right up to the moment that there was suddenly nothing to represent him for.  Would that be the case?

 

Kathleen England:

That is the case.

 

Speaker Perkins:

Are you at liberty to tell us to what level that might rise?

 

Kathleen England:

We have attached the costs I know about to date as Exhibit I in (Exhibit E).  At this point, it is a little over $3,000, but that does not include my attorney’s fees or for my staff.  That is simply hard costs for which I have to pay outside sources.  That would include investigative services, copies, and things of that nature; the reporter’s fees, court reporters for witnesses such as Ms. Deane, who never showed up, and Mr. Groover, who never showed up; the court reporter charges and appearance fee, simply for having it scheduled; Mr. Lomax’s deposition, that transcript, and all that which we have to pay for; to date, that total is $3,522.13.

 

Speaker Perkins:

Can you tell me from whom you attempted to get information or depositions that you were unable to, and why you were unable?  Did they absolutely refuse, were you unable to find them, that sort of thing?

 

Kathleen England:

No, we found all of them.  Francis Deane: I tried to take Ms. Deane’s deposition.  She is the Clark County Recorder.  I wrote her letters, telephoned her, and sent her a Notice of Deposition.  She did, on the eve of that deposition, send me a cryptic note saying she would not show up.  I wrote her back and asked, “If it is just inconvenient, may I schedule it to another time?”  I never heard from her.  Ms. Deane’s affidavit is attached, as I said, as Exhibit 4 of Exhibit F.

 

I attempted to take Ms. Vitolo’s deposition; she indeed was the first one I wanted to take, because it’s upon her verification that this Election Contest, at least facially, at first flush, looks like it complies with the Nevada Revised Statutes.  Her attorney informed me that she would not be deposed, and that neither he nor she would cooperate with me in any way.

 

I then attempted to take the deposition of Mr. Groover.  I noticed his deposition, I wrote him letters, and I spoke with him on the phone.  He promised me for the day his deposition was set.  When I notice depositions, I did notice those to all I thought I should, which included the Secretary of State; my opposing counsel, Mr. Mueller and Ms. Vitolo herself, until Mr. Mueller asked me not to send anything to his client.  I noticed the Chair of this Committee, and Mr. Hettrick, as the ranking Republican, whose name was provided to me.  I noticed, as well, the Legislative Counsel Bureau, so if I was doing anything wrong, I wanted to make sure that somebody could tell me.

 

Ms. Vitolo, Mr. Groover, and Ms. Deane did not show up for their depositions.  At that point, I did not feel that since no one on the other side of this Election Contest gave me any indication of any kind that they would, in any way, cooperate with me, it seemed useless to try to take any more depositions.

 

Speaker Perkins:

Did any of them give you a reason why they weren’t going to show?

 

Kathleen England:

Never.

 

Speaker Perkins:

Madam Chair, I really kind of expected to come to this hearing and have, maybe, a clearing of Mr. Conklin’s good name, and to accept the withdrawn Election Contest with the Notice of Withdrawal to create a legislative record.  But I’ve got to tell you that I have great concerns that there has been extraordinary disrespect shown to this institution through the inaction of those who wanted to do whatever they wanted to do. 

 

Whatever remedies we can find, I’m hopeful that we will.  Perhaps I will have an opportunity to speak with Mr. Hettrick and others and see what we can do.  This isn’t about Democrats or Republicans.  This could happen to any one of us.  It could stall this process for an amazing amount of time, and I think that we should find some way, again, to remedy the situation without chilling those proper election challenges.

 

The only other thing I would ask is if our staff could at least give us some idea of how much time was spent internally on issues they had to prepare for, before the Notice of Withdrawal was received.  It has to be an enormous amount of time that was spent on that as well.  Thank you, Madam Chair.

 

Chairwoman Giunchigliani:

Thank you.  Mr. Wasserman, do you have any thoughts on that?

 

Scott Wasserman:

Thank you, Madam Chair.  Certainly, we spent some significant amount of time to prepare for the issues that may come up before the Committee.  We did not get involved in the Election Contest itself, in either filing the complaint or defending the Contest of Election.  But it’s not something we keep exact records on.  I’d have to report back to the Committee and go back over the time.

Chairwoman Giunchigliani:

Do you have any guess, just off the top of your head, and then you can get us that?

 

Scott Wasserman:

I would say, at least of my own time, I probably spent 40 working hours, if not more.

 

Chairwoman Giunchigliani:

Thank you.  I guess my concern comes down to this.  If I look at the affidavit of the verification, I see it says, “Under penalty of perjury, the following individuals state that they are aware of X.”  I know we live in a gambling state, and part of that is there is a term that is used.  I would hope that this individual, who is a constituent of Mr. Conklin’s, was not duped into a situation where he or she may have been advised to do something that may not have been forthcoming or truthful.  I think the term in gaming is a “shill.”  I’m hoping that is incorrect.  We have no information to go on in order to be able to make a determination on whether or not an Election Contest filed by anyone, for any reason, could be handled in this manner in the future.  I think that is part of an obligation we have to deal with.

 

I am going to ask for an extension, if the Speaker grants it, to see if we could request those individuals to appear before us.  We do have subpoena power.  I would rather do it so we are inviting them to attend, so that we can get some answers to some of these questions, if the Speaker would agree so that I could pursue that with staff in whatever manner we need to do so.

 

Speaker Perkins:

I think it certainly falls under your purview as Chair to recess, instead of to adjourn, subject to the call of the Chair.  I don’t know if Mr. Lomax, having traveled from Las Vegas, if you might want to take his information because of  the cost he has borne to come up here and the time and that sort of thing.  We don’t even need to do it under the auspices of this Committee, except that these members have already heard the beginning of the testimony.  You could certainly do it under the standing Committee of Elections, Procedures, and Ethics.  I’m not sure how many members are different between the two, or if it is significant.

 

Chairwoman Giunchigliani:  

Ten.

Speaker Perkins:

And if the members here want to continue to participate in that.  I think Mr. Hettrick is on Elections.  I’m not, and Ms. Buckley’s not.

 

Chairwoman Giunchigliani:

Not this year, no. [With regards to Mr. Hettrick]

 

Chairwoman Giunchigliani:

Mr. Anderson.  There are three of us on this Committee who are also on the Elections Committee.

 

Speaker Perkins:

Even if you want to handle it under the standing Committee, we could avail ourselves of that and certainly they could read the minutes from this meeting to get up to speed, so, I’d leave it to your discretion.  You could either recess this Committee and/or adjourn it.  It’s not even a one-day appointment; you could adjourn it, and re-notice it later, or handle it under the standing Committee.

 

Chairwoman Giunchigliani:

Okay.

 

Speaker Perkins:

Also, our legal counsel is going to direct me.

 

Scott Wasserman:

No.

 

Chairwoman Giunchigliani:

No?  Okay.  I think at this point, I would prefer to recess, and then we can make a determination on whether or not we need to deal with this as a full Committee or come back again. 

 

I do think we still need to take up the consideration of the fees, which I believe, under statute, we’re permitted to request Ms. Vitolo to assist with covering.  Mr. Wasserman, do you have any comment on that?

 

Scott Wasserman:

It’s actually not in the statute.  There is an old Nevada Supreme Court Decision from 1876, Garrard v. Gallagher, which made it clear that the Legislature determines whether or not costs should be awarded.  Anybody seeking costs would have to go to the Legislature.  The Court does not have jurisdiction.

Chairwoman Giunchigliani:

There are still a few matters before this Committee, so I think we will do that.  I would ask, maybe, if Mr. Lomax wanted to make any comments.

 

Larry Lomax, Clark County Registrar of Voters:

Only if you have any questions.

 

Chairwoman Giunchigliani:

Do any of the Committee members have any questions at this time of Mr. Lomax? 

 

Mr. Anderson, you wanted to make a comment

 

Assemblyman Anderson:

I hesitate to leave it.  I do have a question for Mr. Lomax.  My concern always is that if somebody takes the time to come up from a distance, to come to one of these meetings, whether it is from Clark County or from Elko County, or from anywhere, to make sure that we have the information, I want to hear that information.

 

In terms of the process itself for challenge, and the window of opportunity to do that, did you feel, or did someone contact you directly relative to this one and your involvement in it?  I see the deposition, the information you have already given here.

 

Larry Lomax:

In regard to this Election Contest?

 

Assemblyman Anderson:

For this process.  You’ve been through this before in other kinds of races in Clark County, I believe.

 

Larry Lomax:

This is the first Election Contest I’ve been involved in. 

 

Assemblyman Anderson:           

Okay.

 

Larry Lomax:

Where someone is contesting an election.

 

Assemblyman Anderson:

Were you involved in the challenge itself?  Again, this challenge?

Larry Lomax:

This contest.  I’m sorry, I keep correcting.

 

Assemblyman Anderson:           

I’m sorry, this contest.

 

Larry Lomax:

I was involved, and I’m Larry Lomax, the Registrar of Voters, in Clark County.  I’m sort of in the middle of it, is the best way I can describe it.  Both sides, at various times, came and contacted me.  I sat down and met with the individuals who were interested and answered whatever questions they asked and provided them whatever materials they requested.  The Contest is not filed with me.  It is filed with the Secretary of State.

 

Assemblyman Anderson:           

But you helped with the filing and the providing of the paperwork and answered any questions, such as what goes in “Box A,” as compared with what goes in “Box 6.”

 

Larry Lomax:

No, I didn’t provide them any paperwork in the sense of filling out forms or anything of that nature.  The paperwork I’m talking about is such as how to reference their voter records, voter addresses, and those kinds of things.

 

Assemblyman Anderson:           

You didn’t note any abnormality?  Mr. Hettrick had raised the question relative to fraud versus illegal.  It kind of raised a flag in my mind as to procedure when somebody moves from one voting location to another voting location, and, inadvertently, changes their Assembly District, or precinct, for that matter.  Even if they just move across the street and change their precinct, even though they might still be in the same Assembly District.  Would they have to file an affidavit, just if they moved from one precinct to another precinct, and thus fall under this category of being illegal?

 

Larry Lomax:

First of all, they’re not illegal.  If you vote at the address at which you are registered, if you move within the county, and we’ve found about 20 percent of all people move every two years and fail to tell us, which a lot of people do, then on Election Day, you have to vote at the address at which you are registered, which would be your old address.  No matter where you moved, as long as you moved within the county.

Assemblyman Anderson:           

I wanted to make sure that I felt that was the way it was happening.  We are okay here, in this regard, except for those few we still have up in the air, that we are not sure are going to come down?

 

Larry Lomax:

Yes, there were several issues here.  Are there people who registered at actually phony addresses, so to speak, houses that were torn down or didn’t exist?  That’s truly fraudulent registration.  That’s a separate category from people who move and fail to tell us.

 

Assemblyman Anderson:

Only if, when they registered at that address, it existed, and then when they came to vote, it no longer existed.

 

Larry Lomax:

That would be true; obviously, that is true.

 

Assemblyman Anderson:           

Living in an older part of a community, I can well imagine that some of the houses around my first place no longer exist, although I have moved and changed my registration to reflect where I currently do live.

 

Larry Lomax:

No, you are correct, but there are some names in that list that were new registrations.  They weren’t changes of addresses.

 

Assemblyman Anderson:           

Thank you.

 

Chairwoman Giunchigliani:

Further questions at this time?  We are going to stand in recess subject to the call of the Chair.  We will not reconvene this evening; I’ll let you know that.

 

Speaker Perkins:  

Mr. Lomax, did you ever get a sense that your participation in this was being discouraged by anybody?

 

Larry Lomax:

No.  Assemblyman Beers did give me a call and tell me I didn’t have to testify, or give a deposition, I should say.  He wasn’t trying to discourage me or anything else.  I didn’t take it that way at all, but he did make that comment to me.

Speaker Perkins:

Why did you decide to give the deposition?

 

Larry Lomax:

Because the policy in my office is we’re here to help everybody, both sides.  We tell everybody what we know and try to assist everybody on either side of these kinds of issues.  That is just the way I do it.

 

Speaker Perkins:  

Thank you.  Thank you, Madam Chair.

 

Kathleen England:

Might I ask Mr. Lomax a follow-up on Mr. Perkins’s question as to the cooperation level?  Mr. Lomax, did Mr. Beers tell you that the Legislative Counsel Bureau (LCB) had indicated the legality or illegality of being deposed?

 

Larry Lomax:

If my memory is correct, he inferred, I think, that he had talked to the LCB or someone of that nature, that I did not have to testify or give a deposition.

 

Kathleen England:

So he was telling you that LCB had issued some sort of opinion, even if informally, that said that you did not.

 

Chairwoman Giunchigliani:

We will take that up internally; that we’ll have to deal with.  Rule 45 does guide this Legislature, and it’s very clear that depositions may be taken.  However, prior to arriving here, it is voluntary.  I think that is part of what your statements were, so we will deal with that at this time.

 

Then I will proceed in working with the Speaker to see about how we may, first gracefully, see if Ms. Vitolo would attend a hearing so that we can bring some conclusion to this and, if not, discuss having her subpoenaed.  Thank you very much.  We will stand in recess.

 

[The meeting was recessed at 2:54 p.m., Tuesday, February 4, 2003, and reconvened on Tuesday, February 25, 2003, at 3:50 p.m.]

 

********

 

The Assembly Select Committee on Credentials was called back to order at 3:50 p.m., Tuesday, February 25, 2003, following the recess called on Tuesday, February 4, 2003, at 2:54 p.m.  Chairwoman Chris Giunchigliani presided in Room 3138 of the Legislative Building, Carson City, Nevada.  Exhibit H is the Guest List.  All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

 

Note:  These minutes are compiled in the modified verbatim style.  Bracketed material indicates language used to clarify and further describe testimony.  Actions of the Committee are present in the traditional legislative style.

 

COMMITTEE MEMBERS PRESENT:

 

            Ms. Chris Giunchigliani, Chairwoman

Mr. Bernie Anderson

Ms. Barbara Buckley

Mr. Chad Christensen

Mr. Josh Griffin

Mr. Lynn Hettrick

Mr. Richard Perkins

 

COMMITTEE MEMBERS ABSENT:

 

None

 

GUEST LEGISLATORS PRESENT:

 

Mr. Bob Beers, Assemblyman, Clark County District No. 4

Mr. Mark Manendo, Assemblyman, Clark County District No. 18

Ms. Valerie Weber, Assemblywoman, Clark County District No. 5

Mr. Joe Hardy, Assemblyman, Clark County District No. 20

Mr. Garn Mabey, Assemblyman, Clark County District No. 2

Mr. John Oceguera, Assemblyman, Clark County District No. 16

 

STAFF MEMBERS PRESENT:

 

Scott Wasserman, Legal Counsel, Legislative Counsel Bureau

Michelle Van Geel, Committee Policy Analyst, Legislative Counsel Bureau

Cindy Clampitt, Committee Secretary

Kelly Fisher, Committee Secretary

Kyle Wentz, Page

 

OTHERS PRESENT:

 

Craig Mueller, Attorney, representing Ms. Vitolo

Sandra June Vitolo, Private Citizen

Francis Allen, Private Citizen

Kathleen England, Attorney, representing Assemblyman Marcus Conklin

Dan Burdish, Private Citizen

George Harris, Private Citizen

 

Chairwoman Giunchigliani:

Good afternoon.  We are going to go ahead and get started.  We can note Assemblywoman Buckley when she arrives.  [Roll call was called and a quorum was present.]

 

Thank you.  I would like to thank everyone for being here this early evening, and, hopefully, it will be a reasonable hour by the time we get out of here tonight.

 

Are you Mr. Mueller?

 

Craig Mueller, Attorney, representing Ms. Sandra June Vitolo:

Yes.

 

Chairwoman Giunchigliani:

We’ll recognize that you are on a flight back to Las Vegas tonight and will attempt to accommodate that as well. 

 

I think I would like to make an opening statement.  If the Election Contest hadn’t been withdrawn in the manner it was, we might have had some answers to some possible suggestions for legislation much earlier.  Since the Contest was withdrawn, I want to emphasize that this hearing is not going to be about legal confrontations.  It’s about helping us to get to the heart of the matter. 

 

I think we need to determine if the contest met the statutory requirements dictated by NRS 293.410 (Nevada Revised Statutes).  We need to determine if the allegations of fraud noted in the Contest, separate from the Horrocks matter, were misrepresented, and, if so, those individuals at least deserve to have their names cleared, and, frankly, I think an apology would be quite nice.

 

We need to determine if filing the Contest was an appropriate use of the legislative process, or if it was really a public relations attempt.  We need to determine if we should award costs of the Contest since we have every right to do so by law.  We need to determine if legislation is needed to make the Contest process better without placing a chilling effect on someone who wishes to properly contest an election.

 

Today I hope we will have answers to these questions to shed light on the process, which sometimes can be manipulated, and, hopefully, won’t be in the future.

 

Ms. Vitolo, would you like to start with this process?

 

Craig Mueller:

Good afternoon, members of the Committee.  I’m Craig Mueller, an attorney.  I represent Ms. Vitolo.

 

I was a little surprised to get a subpoena here, and I need to clarify if I am being subpoenaed in my own right to testify as to what I have learned and my opinion of the law as it applies, or if I am here as counsel for Ms. Vitolo.

 

Chairwoman Giunchigliani:

You’re here in your own right, I would assume, because we weren’t sure if you were still counsel to Ms. Vitolo.  You were the only one we did have to subpoena.  Ms. Vitolo had called and said she would be happy to be here, as did some of the other individuals.

 

Craig Mueller:

Certainly I was willing to be here, but apparently that was not communicated; nevertheless, I am here.

 

Chairwoman Giunchigliani:

Ms. Vitolo, could you just state your name for the record as well?

 

Sandra Vitolo, Private Citizen:

My name is Sandra June Vitolo.

 

Chairwoman Giunchigliani:

Thank you for being here, and we do appreciate you taking the time to come up.  How did you get involved in this Contest?

 

Sandra Vitolo:

After the election, I didn’t pay much attention to most anything that was going on.  Although, on the news, I had seen some newscasts about Francis Allen and people walking around, and that there was possible voter fraud.  They were at least looking into it.  On November 18, 2002, Ms. Allen and Mr. Harris came to my house and asked me if I was at all familiar with any of this.  I said yes, of course, I had been, I’d seen it on TV, and I was pretty upset about it.  At that time, what they did was they showed me some evidence they had gathered, some things they had done walking around, and so forth.  They asked me if I would consider filing a Statement of Contest.  I said that I needed to look at what they had a little better. 

 

I’m not a politician.  I’m not really a political person.  The most I’ve ever done is vote; however, I have served in my military for 28 years.  I retired as a Chief Master Sergeant from the Air Force.  I love my country.  I love my democracy that I fought for and people are still fighting for.  It upset me tremendously that there was a possibility that my vote wasn’t going to count, so I took this very seriously.  They left me the information that they had, and I looked at it very closely during the evening.  The next morning, I believe it was on November 19, I got a phone call, and they asked me if I was willing to file a Contest.

 

With what they had shown me, I felt confident that something wasn’t quite right.  I didn’t understand all of it, but I knew something didn’t seem right there, so I said yes.  I thought it was my right and my duty to do it, so I told them yes, I would.

 

Chairwoman Giunchigliani:

Thank you.

 

Craig Mueller:

At that point, she approached my office.  The thing we found is, when we looked at the statutes on this, it’s not really an Election Contest for a State Assemblyman.  It is not a judicial matter.  It is an internal housekeeping matter and, unfortunately, statutes we read on that point weren’t particularly clear. 

 

We’ve examined everything we did.  We put together the Contest.  We submitted to you (Exhibit F), and we have another copy here of the petition to the Secretary of State that contained the entire universe of known facts, known to Ms. Vitolo, as of the day of submission.

 

Unfortunately, the statute gave us only 14 days from the date of election.  As any of you who have actually practiced any law or done anything of this sort know, that is not very much time at all to assemble this much material. 

 

What became obvious, though, was that Mr. Horrocks had the means, motive, and access to the voting list of that district, had walked the district, and would have been in a position to identify people who had moved from the district.

 

There were a large number of open houses in that district, and they identified many people who voted absentee, or, I guess, the proper term is “inactive voters,” who had voted in that district.

In the follow-up article, as the Committee members can see, apparently Mr. Horrocks was proud of his political efforts and made reference to Mr. Smith that he, in one article, addressed over 300 people, and had herded them in his direction.  There was a 134-vote margin of difference here, which clearly would have been enough on its face to sway the outcome of the election.

 

Further investigation followed up that Mr. Horrocks had actually made basically what, as a former prosecutor, I would call a confession, or at least a strong admission against interest to not one, but the two elected officials from the state that, yes, indeed, he had manipulated the voting process by at least 100 votes.  The affidavit of one of the elected officials was contained in the Election Contest.  There we have, as we say in criminal law, motive, opportunity, method, and a partial confession, which would certainly be enough to sway the outcome of this election.

 

Then we got to the point where we were on our own, because none of these statutes have a lot of follow-up or specificity.  We did, however, find the earlier case from 1876, which was not much help.  As we investigated further, we realized, while we could identify over 400 voters, that we would be in no position to determine how any of those 400 otherwise inactive voters, who had been shown as voting, had voted.

 

While the District Attorney’s Office in Clark County has convened a Grand Jury, the Grand Jury has not yet reported back.  That is, it has not decided not to indict, nor has it decided to indict.  Any further information regarding the Grand Jury is secret by law and cannot be disclosed at this point.  Just based on my personal experience, I know that the District Attorney rations Grand Jury time, and I know from my practical experience, I’m conjecturing here, that they would not be investigating this much time if they did not think there was something there. 

 

That left us with several propositions.  First off, was the Contest frivolous?  I would submit that, as you can see, hopefully, the Statement of Contest speaks for itself.  It was not frivolous.  It was not frivolous at all; just the opposite.  It was a considered effort of people that the statute required us to file with all the information we had at the time. 

 

Ms. England and I apparently did not agree as to how this would proceed.  Ms. England, over the next two months, was under the impression that this was going to proceed as a lawsuit.  I could find no proposition for that, and, unfortunately, I was on a very limited litigation budget.  As time passed and it became increasingly clear the District Attorney was not going to return a ruling before this Committee Contest was going to be held, it became increasingly obvious that, despite our strong suspicions, which remain to this day that there was vote tampering.  The fact of the matter is, there was simply not enough to proceed.  That’s just the simple fact of it. 

 

We looked at the statute, and I draw the Committee’s attention to NRS 293.410, subparagraph 3, which very specifically—did I cite the wrong one?  I’m sorry, NRS 293.427, subparagraph 3:

 

If, before the Contest is decided, a contestant gives written notice to the Secretary of State, he wishes to withdraw his Statement of Contest, the Secretary of State shall dismiss the Contest. 

 

That was promptly done when it was obvious that as of the last day of business before the Contest, the District Attorney had still not unsealed a True Bill, and therefore, we had enough evidence to be suspicious, but not enough to come with a straight face to this Committee and suggest that Mr. Conklin should be unseated.  Nor do we have any evidence at all in the investigation that Mr. Conklin was in any way, shape, or form involved in this.  He would appear to be a victim of this, as well as the other participants in the election.

 

Chairwoman Giunchigliani:

Thank you.  And thank you, Ms. Vitolo, for your duty to your country, as well as standing up as a voter.  I don’t think anybody questioned that part of it.  I want to make that very clear. 

 

Who actually drafted the contest?  Mr. Mueller, did you draft it?

 

Craig Mueller:

No, I did not.  One of the associates in my office did, with the assistance of Ms. Vitolo, as to what she had to work with and the statutory deadline, which we needed to meet, which was 14 days following the election.

 

Chairwoman Giunchigliani:

Did your office do any actual investigation on whether or not the 160 names that were attached were verified?

 

Craig Mueller:

No, ma’am, we did not have, and we don’t have, the resources.  We were relying on volunteers.

Chairwoman Giunchigliani:

So the names that are attached to the original Contest, then, are the ones that Francis Allen and Mr. Harris gave to Sandy Vitolo on November 18, 2002, for consideration for filing the Contest, as far as you know?

 

Craig Mueller:

To the best of my knowledge, yes.

 

Chairwoman Giunchigliani:

To the best of your knowledge.

 

You mentioned the D.A.’s Office.  Did you give them these names as well?  If I go back to the newspaper articles, the only thing I can see is that Assemblyman Beers provided 21 names to the District Attorney’s office for consideration in the Horrocks matter.

 

Craig Mueller:

No, ma’am, I have not cooperated with or been a part of the District Attorney’s investigation, other than to inquire of several of my old co-workers if a True Bill had been returned, which, of course, would be a matter of public record and not violate the statute.

 

Chairwoman Giunchigliani:

So you, or some of your staff, then drafted the actual contest and then had Ms. Vitolo sign it.

 

Craig Mueller:

That’s right, ma’am.  My office personally wouldn’t have any standing under the statute.  We represent Ms. Vitolo.  She does have standing under the statute, and we have submitted, and did submit, everything we had at the time to work with.

 

I grew up in Las Vegas, and there are certain things that just don’t ring true.  Large numbers of bikers voting absentee ballots out of a motorcycle club is not something you would expect to find in the normal course of business.  There are a lot of things here that, as a former prosecutor, raised my suspicions.  But is there enough evidence to come here with a straight face and ask to unseat or overturn an election?  The answer was, in the final analysis and in the breach of battle, no, which is why the contest was withdrawn.

 

In my investigation and follow-up in Ms. England’s work, there would appear to be a hole in the electoral system that anybody with opportunity and knowledge of who has moved in the district would not be asked for identification of any sort if they went down and voted the name of an inactive voter.  That is a cause for concern.

 

If you read the deposition that Ms. England took, the statutes that I have looked at, inactive voters, those that the Registrar of Voters has lost contact with, can suddenly show up, raise their right hand, say who they are, and vote anyway. 

 

If I were inclined and amoral with the intention to do so, I could show up, several of my friends and I, represent ourselves to be these voters, cast votes, and there would be no paper trace and no evidentiary trace at all.  That is something that, as is, if the court, or this court, excuse me, if the Committee is interested in addressing that loophole, that certainly seems to be a potential for abuse that has come to light here.

 

Chairwoman Giunchigliani:

Thank you.  Neither of you, Mr. Mueller or Ms. Vitolo, contacted the District Attorney, but information was turned over to them to look at whatever names had been found to be possibly voting at a biker bar, or something along those lines.

 

If that is the case, then my question would come down to why Ms. Allen didn’t file the Contest, because she had every legal right to do so as well.

 

Craig Mueller:

You’ll have to ask her.

 

Chairwoman Giunchigliani:

I guess I’ll have to ask her that question if she wishes to come forward on that part of it.

 

Sandy, were you asked by Ms. England to be deposed?  Were you one of the group? 

 

Sandra Vitolo:

Yes, ma’am.

 

Chairwoman Giunchigliani:

Did you participate in that because I don’t remember seeing that in our documentation.

 

Sandra Vitolo:

No, ma’am.

Chairwoman Giunchigliani:

Were you advised not to?

 

Sandra Vitolo:

Yes.

 

Chairwoman Giunchigliani:

By your attorney?

 

Sandra Vitolo:

Yes.

 

Chairwoman Giunchigliani:

Okay.  Mr. Mueller, did you look at a statute that we have that says that depositions shall be taken and given?

 

Craig Mueller:

Yes.

 

Chairwoman Giunchigliani:

I think it’s NRS 293.415?

 

Craig Mueller:

That implies it is.  Ms. England read that statute to me and that she had authority to take depositions.  I don’t agree with that conclusion, at all. 

 

Chairwoman Giunchigliani:

The reason I raise that is, if the deposition had occurred— did you have any conversations with Mr. Lomax from the Election Department?

 

Craig Mueller:

No, I did not.

 

Chairwoman Giunchigliani:

Okay.  If that had occurred, I think some of the questions and the allegations that have been made could have been answered at that time.  Then we would have had more time to consider whether or not you felt the Contest was more appropriate to go forward with or not.  My concern would be, through the deposition, the individuals that you’re citing that were inactive voters, could vote; that’s by federal law called the “Motor Voter Law.”  That’s always been the law and continues to be a law until we change it under HAVA this session. 

 

Those people did not vote fraudulently.  They do have to affirm and swear that they lived at another address, and they’re required by law to go back to their original precinct in order to do that. 

 

Craig Mueller:

Yes, ma’am.

 

Chairwoman Giunchigliani:

So, out of that large number, and I applaud anybody that brought forward the Horrocks issue and turned that over to the D.A., because that absolutely smelled very badly.  It needed to be pursued as far as that’s concerned.  I don’t think anybody questioned that part of it.

 

Craig Mueller:

Yes, it does.

 

Chairwoman Giunchigliani:

I guess my concern would be that there was not an effort for cooperation to try to resolve the matter without even having to go to a full Contest or to do the Contest and then to withdraw it in a more timely manner.

 

Craig Mueller:

There are two things with that conclusion, or that line of questioning.  First off, Ms. Vitolo did not have the funds to fund that level of litigation.  The fact of the matter was this is a partisan issue, and who was to be seated would eventually be a partisan decision.

 

As the time passed and we continued to investigate, it was increasingly clear that, absent an indictment, something I could come before this Committee with, proof-positive evidence of fraud, that the decision to unseat a sitting councilman, or a sitting Assemblyman, whom no evidence has indicated did anything wrong, that is something, as an officer of the court, I’m just not going to do.  It would be a pointless discussion.

 

We were hoping that Mr. Horrocks would eventually be indicted and that, if he had been, we would have been on a much stronger ground and been in a position . . .

 

The other thing that your soliloquy misses is a prospect that if those people had voted from another location, there still is absolutely no proof that those people who did indeed vote under those names were those people.  That’s the point I was referring to.

 

Chairwoman Giunchigliani:

That’s where you were going with that?

 

Craig Mueller:

That’s where I was going.  If, just for example, Joe Smith, whom we show was not living, had not been living at a residence for six months, Mr. Horrocks, who had canvassed the district, would also know that.  When he came back and voted under Joe Smith, or had a confederate, or got an absentee ballot, or whatever scheme he actually used, there is no way to verify with picture ID or any other sort that Joe Smith would have, indeed, been the voter.  Do you understand my point?

 

Chairwoman Giunchigliani:

Yes.

 

Craig Mueller:

So, going down there and spending lots of money taking depositions wouldn’t have done any good.

 

Chairwoman Giunchigliani:

I appreciate that, but you used the term “level of litigation.”  We don’t want people to be out-of-pocket any more than they need to be in this circumstance.  There was no litigation.  There was nothing proposed, as far as going to court.  As you properly noted, by law, by the Nevada Constitution, each House judges its own rules and its own credentials of its membership.  If the challenge had been in the Senate, then they would have been hearing this versus the Assembly.

 

Craig Mueller:

Absolutely.  I understand.

 

Chairwoman Giunchigliani:

I am somewhat concerned about your comment that it would, automatically, I think you said, “would have been a partisan decision.”  We don’t work that way here.  Sometimes, some things are partisan, but not something as important as elections.  I was involved in a Contest myself, and it was when we had a tied House, and it was a unanimous vote on seating me at that time, so I would say regarding the partisanship: we do a good job of trying to weed through that.  I just wanted to clear that up regarding your comments in that area.

 

Craig Mueller:

I understand.

 

Chairwoman Giunchigliani:

Regarding the verification of the 160 names that were attached to the contest; the contest actually states that a David Groover actually verified the names and addresses.  Did your firm hire him?

 

Craig Mueller:

No ma’am.  That was a work product brought to my office.

 

Chairwoman Giunchigliani:

Okay.  That was a work product brought to your office.  So, we’ll have to find out.  Sandy, do you know who might have hired Mr. Groover? [Ms. Vitolo shook her head no.]

 

Okay.  Then we will need to ask that part.  We don’t know yet who verified the names, but you advised your client to sign a document, under penalty of perjury, for something that she did not know about, because the perjury letter says, specifically, that she knows the contents thereof the pleading and is true of her own knowledge.

 

Craig Mueller:

Yes, ma’am, but if you also—

 

Chairwoman Giunchigliani:

Is that responsible on your part?

 

Craig Mueller:

Yes, ma’am, it was.  Actually, if you will see that we specifically worded the perjury statement to reflect what we could testify to, not what we—we made no representations that we . . .

 

Chairwoman Giunchigliani:

But, you notice the Contest is verifying that some individual verified the signatures that were attached as proof that the Contest be moved forward without any knowledge or verification of that.

 

Craig Mueller:

“Under penalty of perjury, the undersigned declares that she is the contestant named in the foregoing Statement of Contest,” which means she has standing.  “And knows thereof the pleadings true to her own knowledge, except as those matters stated on information and belief, as listed, and in such matters she believes to be true.”

 

We have made no representations; in fact, you’re absolutely right, this caused me very grave concern as her counsel.  We looked at it, and that’s not standard language.  That’s worded to verify the language of the petition statement, and we laid out, like a prosecutor, what we knew, when we knew it, and how we knew it, and we provided what we had.  That’s it.  Now, to the extent that we are relying on other people’s work product, we said, “knowledge and belief,” and we also pointed out where that was done.

 

Chairwoman Giunchigliani:

We have a couple of questions.  Assemblywoman Buckley and then Assemblyman Hettrick.

 

Assemblywoman Buckley:

Thank you, Madam Chair.  Just to jump in, because this is kind of standard language that you use on a verification.  So, my question would be for Ms. Vitolo.

 

I think of all the things involved with the Contest.  What concerned me the most were two things: one was saying that some of these votes were fraudulent when those folks have since come forward saying, “That’s not true.”  What I’d like to know is, you say “as to such other matters, you believe them to be true.”  Why did you believe that David Groover verified 160 names as fraudulent?

 

Craig Mueller:

Ms. Vitolo gets a little tongue-tied.  She is not used to public speaking.  She has asked me to speak for her.

 

The fact of the matter is, ma’am, there are two documents, one which was produced by a group of volunteers in about four days after the article came out, and we had a chance to run.  That the statutory deadline was very tight, we readily concede, and we did the best we could.

 

Ms. England, in her efforts, had the advantage of 2 1/2 months of time to investigate.  We did, after due consideration, withdraw the petition.  There were volunteers out there canvassing the house, these houses.  If we had to come in here and pull this out of thin air, okay, you would have a legitimate complaint.

 

People went and knocked on these doors.  No one was there, and the comments that were given to the volunteers are on the comment block.  That was a compilation of many peoples’ efforts.  Yes, ma’am, it was.

Assemblywoman Buckley:

Were they?  I mean, why did she believe that he verified 160 names as fraudulent?  Who told her that?

 

Craig Mueller:

Actually ma’am, the investigation actually revealed there were over 400 voters—

 

Assemblywoman Buckley:

I know.  I’m just focusing on that statement in the contest that was filed with us, page 3, lines 26 and 27 (Exhibit F).  It said, “The 160 names and addresses were verified to be fraudulent by David Groover.”  So she, in an affidavit, said, “This is either true, or I believe it to be true.”  I’m just asking why you believe that to be true.

 

Sandra Vitolo:

When Ms. Allen and Mr. Harris came to me and they showed me these names, and they explained how the process had been done, on there, there were initials of D something G.  I said, “What’s that?”  That’s David Groover; they had explained to me that he was a private investigator.  I felt that what they were telling me was true to the best of their knowledge.  I’d seen the newspaper articles that prior to them even starting, their walking around and that sort of thing, it was alluding to all of this.  It just seemed that it all fit together into something being wrong.

 

Assemblywoman Buckley:

Francis Allen and George Harris told you that David Groover verified these 160 names to be fraudulent.

 

Sandra Vitolo:

No, ma’am.  They did not say all of them.  The ones that had his initials on it, those were the ones that David Groover, apparently, to my understanding, had actually looked at, investigated, whatever.

 

Assemblywoman Buckley:

There were 160 that David Groover had verified?

 

Sandra Vitolo:

No, ma’am.  I believe, if you look through there, there is a portion of them, because there are others that are in there that have just comments by them.  Those, I believe, are done by other volunteers who had also been walking and canvassing.

 

Assemblywoman Buckley:

That’s not what you said in the verified petition.  You said 160 names, and I’ll ask maybe one more question and then I’ll just cut to my bottom line here.  Did you know Francis Allen?  How did she come to your house?

 

Sandra Vitolo:

That’s very easy.  Prior to the primary election, Francis, actually, Mr. Horrocks and Francis, on different days, came to my house knocking on the door saying, “Vote for me, vote for me.”

 

Mr. Horrocks came first, and he gave me his spiel.  I listened and said, “Yeah, all right, whatever.”  Then, I don’t know, several days later Ms. Allen came to my door.  I asked her the same pertinent questions I had asked Mr. Horrocks.  She had answers that I liked a lot better.  She was rather impressive, I thought, and I said, “Thank you very much,” and she went away.

 

I took some of her literature; I saw some more as time went by.  That was the first time I met her.  I decided that I wanted to support her.  The next time that I met Ms. Allen was when I had been doing some volunteer work at the Clark County Republicans’ Center, stuffing envelopes and that sort of thing.  She came in with some brochures.  That’s how I knew Ms. Allen.  I liked what she stood for.

 

Assemblywoman Buckley:

May I ask another question?  I guess, to cut to my bottom line, 14 days to file something is a quick amount of time.  I think Mr. Mueller is right.  Lawyers take a lot more than that for a routine problem, and this is far from routine, so I think that time line is very short.  The part about this contest, maybe the inaccuracies don’t bother me as much because of the short time line. 

 

At some point in the Contest, maybe December, late December, at that point, if you would have said, “I don’t have enough to go forward, I’m going to withdraw,” to me it almost would have been no harm, no foul, almost.  But at that point, a sitting Assemblyperson has to begin thinking, “Okay, it’s day one.  What am I going to do?  I have to defend my seat.  I have to investigate.”  They have an obligation to the people who elected them to prepare.  At that point, whoever has a Contest usually begins incurring attorney’s fees. 

 

Whether it’s Republican or Democrat, Independent, or nonpartisan, we don’t want anybody to have to do that unless it is really necessary.  At some point, by the end of December, before Mr. Conklin had to spend one dime to hire an investigator, or the fees, I think it was pretty clear that some of these folks, regardless of Mr. Horrocks and his illegal votes, which the D.A. is looking at, it would have allowed some more time to do some due diligence, to find out that the man who was alleged to have Alzheimer’s did not have Alzheimer’s; that if you moved, you go back to your old precinct, if that was unclear at all.  We have documents of affidavits people have signed saying, “Just because my neighbor said they hadn’t seen me there didn’t mean I moved.” 

 

Assemblywoman Buckley:

It would have given someone an opportunity to see these things and to withdraw it then.  That’s what bothers me most about this whole thing, not maybe the initial filing.  My question to you is, why didn’t you, at that point, withdraw?  Specifically, I’d also like to know about whether anybody spoke to you about withdrawing this in a quicker manner besides your attorney.  I don’t want to know about your conversations with your attorney, but anybody else besides your attorney, whether they spoke to you about a withdrawal.

 

Craig Mueller: [Responding for Ms. Vitolo]

We were hopeful that the Grand Jury was going to return a true bill and then unseal the transcripts from the Grand Jury, which would have detailed, in chapter and verse, the evidence and Mr. Horrocks’s method. 

 

As I alluded earlier, there is still an unusually high, and as you look at the numbers, a statistical abnormality.  This is a generally well-assembled, well‑settled Assembly District.  Nonetheless, it had the second-highest number of inactive voters suddenly pop up and vote.

 

The number that we saw, we found, was about 400.  Mr. Horrocks tells Mr. Smith, whether he was being a braggadocio or not, that there was about 300.  That’s twice the Committee list.  We were hopeful that what the Grand Jury would unseal would be his method and manner, and we would actually get an exact number of just how many votes he thinks he had swayed.

 

The fact of the matter was that indictment wasn’t forthcoming, and without that information, and no way of getting it, we held out to the end to make sure that we didn’t get surprised.

 

The allegations here and the evidence here create a very serious inference that there was serious wrongdoing here.  Clearly, a lot of it, and a lot of effort has gone into the document, to clear up as many of the misunderstandings as possible.

 

Even Ms. England, in her efforts, does not come close to addressing that there are still another couple hundred unaccounted-for votes here from absentee ballots, and that’s even with her documents.  Even her investigator documented, from his report, a large number of people who had been supposedly absentee or inactive voters, voting from apartment complexes, who simply were not there. 

 

We’re all involved in politics one way or the other; the implication of that is pretty clear.  We were waiting for the Grand Jury.  It didn’t come back.  When it became clear it didn’t come back in a timely manner, we were forced to withdraw.

 

Assemblywoman Buckley:

What about the votes “per apartment manager,” “person not home,” “has Alzheimer’s,” when they’re not?  What about them?

 

Craig Mueller:

What about them?

 

Assemblywoman Buckley:

They’re alleged to be fraudulent in a document.  At some point, don’t you do some due diligence and withdraw the challenges to their names?

 

Craig Mueller:

The way I read the statute is that there’s not a specific.  If we came in here and could recite chapter and verse, the number of fraudulent votes, which is what we were hoping to do when we got started, yes, ma’am, that would have been a wonderful thing to do, but that’s not the way the evidence developed, and, unfortunately, there are simply not enough resources to run all these to ground.

 

Assemblywoman Buckley:

I don’t want to belabor this.  There are many people who are documented and these who were alleged to be fraudulent that the D.A. is not investigating.  Just take Mr. Orr; he’s alleged to have Alzheimer’s, and he doesn’t.  There are many people like that who are not implicated by the Grand Jury at all, and they were alleged to be fraudulent.  They’re not, and it bothers me that the allegation just hangs out there.

 

Craig Mueller:

You reach several observations.  Firstly, the District Attorney’s investigation is substantively and procedurally different than the investigation that would be brought before this Committee.  The District Attorney’s Office would be beyond looking for specific proof on enough counts to force a plea bargain beyond a reasonable doubt.  If I were prosecuting the case, I would pick my best five or ten counts, put it all together airtight, and then take it to the Grand Jury, which is what, I’m just speculating, it appears they are doing.

That leaves us with a very different proposition here.  Can we show that there was enough voter fraud to swing the outcome of the election?  There are several of the 400 or so votes that were clearly, or Ms. England’s staff were able to clear up.  True enough.  But, even though the fact that she was able to reduce some from that 400 list, the number of absentee or inactive voters who voted in this district still hovers at the 400 mark with a 134-vote margin for error. 

 

Assemblywoman Buckley:

Yes, but that doesn’t make them illegal or fraudulent, and whenever you go to vote, you have to show your ID.  You have to sign.  They do a signature check. [Mr. Mueller shook his head.] No, they don’t?

 

Craig Mueller:

No, ma’am.  That was my concern, and what I brought to the Chairwoman’s concern.

 

Assemblywoman Buckley:

Yes, I had to sign.

 

Craig Mueller:

You signed.  My point is . . .

 

Assemblywoman Buckley:

They do a signature check.  They’re supposed to.

 

Craig Mueller:

My concern, when we first got started in this, is we thought that the mechanism that had occurred was Mr. Horrocks had identified absent voters from empty houses and had absentee ballots sent to his house, which is apparently what he had at least confessed in part to.  As we began to investigate, the thought occurred to us that no, a much more simple and much more elegant scheme would simply be to identify who these voters were and go to their precincts and vote for them.  All one would have to do is say, “I am this person,” raise your hand, and forge a signature.  That’s the concern I have going forward on this because that loophole is not plugged, procedurally or legally. 

 

That’s why we held out to find out what the outcome, or what, if anything, Mr. Horrocks was going to do.  When we first got started, we were hoping for a quick indictment, and maybe even a quick plea bargain, before the Contest had come out, but that turned out to be unduly optimistic.  We waited and waited and waited until it wasn’t there, and we withdrew.

 

Assemblywoman Buckley:

What about all the people who weren’t involved with Horrocks?  You’re saying it’s just because they requested absentee, even if they were proven not to be illegal or fraudulent, you counted them because they voted absentee.

 

Craig Mueller:

There were people voting from houses where the houses were vacant.

 

Assemblywoman Buckley:

I understand.  The downside to that is anybody who is just following the law is included in your net, but, okay, I finally get your point.  Thank you.

 

Craig Mueller:

Which is why I brought that to the Committee’s attention first. 

 

Chairwoman Giunchigliani:

Thank you.

 

Assemblywoman Buckley:

Sometimes it takes me a while to catch on.

 

Chairwoman Giunchigliani:

Ms. Buckley did ask, Ms. Vitolo, and I don’t think you were able to answer that because they got into the whole other dialogue.  Did anyone other than your attorney ask you to withdraw?

 

Sandra Vitolo:

I conferred with some people.  I conferred with Ms. Allen.  Since I’ve been asked earlier how I knew her, I didn’t know her well at all.  We have gotten to know each other much better over the last few months.  So, I conferred with Ms. Allen, my attorney, Mr. Beers, and I think that was it.

 

Chairwoman Giunchigliani:

Thank you. 

 

Assemblywoman Buckley:

What did they say to you?  What was their advice to you?

 

Craig Mueller:

I . . .

Assemblywoman Buckley:

I won’t ask yours.

 

Craig Mueller:

It’s attorney-client privilege, but, nonetheless, it’s pretty obvious what I advised her to do.

 

Sandra Vitolo:

What was the advice of everybody but Mr. Mueller?  We kind of came to a consensus that because the Grand Jury hadn’t indicted, and my personal feeling, and I don’t know that anybody shared this with me or not, but my personal feeling was, I kind of knew what the makeup of the Committee was going to be that was going to hear this.  I wasn’t sure that it would be a nonpartisan kind of thing.  That’s me.  I don’t know that anybody else said that.

 

So, I felt it was the right thing to do.  I felt that if we could curtail any more spending of the taxpayer money and let you guys get back to doing what it is that you do, that we should withdraw.

 

Chairwoman Giunchigliani:

Thank you very much.  Mr. Hettrick.

 

Assemblyman Hettrick:

Thank you, Madam Chairman.  I had originally wanted to speak in regard to the statement verification at the bottom and the “except” that was pointed out by Mr. Mueller.

 

I would simply, however, comment on one other thing, and you made the point already, Madam Chair, but I think it’s worth making again.  That is that it would take some evidence here that, indeed, you could assume that the votes would have been cast in some fashion.  You can’t make an assumption that just because Mr. Horrocks said he sent them all in and did it, whether, you know, you can’t prove, at this point, that he did that. 

 

But then you would still have to have that leap to, “He cast every single ballot in a certain way, and given that we can’t prove that he sent them, then we can’t prove how they would have voted,” and so it would have been very difficult to vote to overturn.  In fact, what Ms. Giunchigliani had pointed out to you before—I sat on the Committee that heard her challenge and, in fact, voted to have her seated because we couldn’t determine the outcome of how the ballot would have been cast.

 

I only say that to point out that, first, I understand why you might believe it was partisan.  We do some partisan things here, and yes, it could be easily construed that it could come that way.  I would, at the same time, point out, however, that I think this does fall in a different place.  Let me clarify that.  In the case of Ms. Giunchigliani’s Contest, she had won by 300 votes and only 200 votes were challenged.  Even if all 200 votes had been fraudulent and proven to be voted improperly, it couldn’t have changed the outcome.

 

Here, we do have a situation of enough votes from two different sources that it could have changed the outcome if they could have been proven to have been fraudulently cast.  Without that indictment, we can’t get to there.  The indictment, or the lack thereof, didn’t occur until the Thursday before the start of session on the following Monday, and they withdrew on Friday. 

 

So, I think, given the numbers, given the situation, it’s hard for me to cast this as frivolous.  I understand the point that you could have gone back and done some due diligence, but I also heard Mr. Mueller say, “There was no money to go back and research this.”  They had used some volunteers, a group of volunteers, that had gone once, and I think did their best job.  I think they no more lied than anyone else would.  So, you know, it’s a very difficult situation.

 

Chairwoman Giunchigliani:

Okay, thank you, Mr. Hettrick.  Questions?  Speaker Perkins?

 

Speaker Perkins:

Thank you, Madam Chair.  In the information that we’ve got in the attachments to the Statement of Contest (Exhibit F), and all the news accounts that we’ve read about Mr. Horrocks’s journey through this election cycle, and his speaking to the new County Recorder and all those sorts of things, it appears that he made attempts to influence a number of elections.  At least, that’s what he was bragging to do.  Is that a fair statement?

 

Craig Mueller:

That’s everything we’ve uncovered. 

 

Speaker Perkins:

Then my question would be, why contest this election? 

 

Craig Mueller:

Specifically, there was, of all the elections that Mr. Horrocks, had he done what I suspected, or what reasonably appeared that he might have done, which is to cast absentee ballots in other people’s names, the one person he clearly had spite for, or, as they say in criminal law, modus: motive, opportunity, and knowledge to do it, that election was the closest and the margin for error was the smallest.  The fact that he, basically, I forget the exact words he uses to Ms. Deane, but he told Mr. Smith, I think the exact phrase he used was, “I honestly believe I changed the election.”  It was a very thin bragging, or at least I took it a very thin bragging about his exploits.

 

He didn’t like Ms. Allen.  Those two have animosity, it’s very clear.  He would have walked the district and known exactly which voters to cast votes in their names for, and he’s the one.  It’s all there; as they say, “The case is there on all fours.”

 

Speaker Perkins:

They could have made a contest in many elections based upon his bragging.

 

Craig Mueller:

I do not have the exact tallies up and down the ballot on that district, but I don’t believe any were nearly this close.

 

Speaker Perkins:

There is a senior United States Senator who won his last election by 428 votes in this state.  I can’t tell you how many groups are bragging about getting him elected.

 

Craig Mueller:

Yes, sir, I don’t doubt, but there is a difference.

 

Speaker Perkins:

Quite honestly, Ms. Vitolo, that I applaud your service to this country, and I think that, in your not having a long relationship with the folks who approached you prior to this, you may have found yourself in a position to trust somebody that you didn’t know and that sort of thing, so I don’t want this to be about you.  This whole Election Contest isn’t about you.

 

I also believe that there’s a burden beyond filing the Contest.  I recognize that the short time frame of 14 days puts a serious burden on the contestant to put together a contest.  But after that is filed, I think there’s an extraordinary burden that was shifted to Mr. Conklin, so we have somebody who, in our scheme of justice, was no longer innocent until proven guilty, taking on the burden of proving that the Election Contest was not valid.

 

There doesn’t seem to be a lot of effort to verify the information that was given to you.  I’ve heard Mr. Mueller say that there weren’t the resources to do so.  While I don’t disagree that there weren’t the resources, I don’t think that’s a good answer.  What would happen if all 42 of us had been contested and all 42 of us were out spending money to try to clear our names and those of our voters? 

 

Resources or not, there’s a burden on the contestant to go forward with that.  I might also remind you, and it’s in the statute, that had you contested another election, that would have gone to a court instead of to the Legislature, as our Constitution provides, and had you either lost the Contest or withdrawn the Contest at some point in time, costs would have been recovered from you.  I’m not suggesting that’s a motive for this particular Election Contest to come here, because we don’t automatically recover costs, but I think it was a lot less risky Contest to file.

 

Do you know when the case went to the Grand Jury?

 

Craig Mueller:

No, sir.  Proceedings of the Grand Jury are secret. 

 

Speaker Perkins:

You’ve been in a prosecutor’s role in the past.  It was sometime after the information came to light, I would imagine.

 

Craig Mueller:

Yes, sir.  It’s my understanding, and this is just from my memory, it was approximately in January, January 30, that they began the Grand Jury presumption, but I do not know for certain.

 

Speaker Perkins:

So, January 30 or so we begin a Grand Jury proceeding, and we’ve got all our eggs in one basket hoping for hope that the Grand Jury is going to do our investigation for us, and this Legislature is going to start on February 3, 2003.  Is that what you’re telling me?

 

Craig Mueller:

Yes, sir.  Unfortunately, you mentioned how quick a 14-day turnaround was.  We didn’t even have a 14-day turnaround; we had about five days.  The fact of the matter is the article didn’t appear . . .

 

Speaker Perkins:

No, and you’re absolutely correct.  I grant you that.

Craig Mueller:

We had five days to put together the Contest.  The fact of the matter was, we did do some additional investigations and there were some additional follow‑ups.  Unfortunately, we’ve uncovered several more potential voters who would have—we certainly raised suspicions the way they were voted.  Nonetheless, as Mr. Hettrick pointed out earlier, we had a strong suspicion something was wrong; we had a strong suspicion that there was voting fraud here; we have a strong suspicion that it may very well have been enough to change the outcome of the election.  Could we come here and prove it?  No, sir.  We waited until the last minute in frustration.  When we saw that we couldn’t prove it, we withdrew the petition.

 

Now, unfortunately, those were the facts as they were known to us when we filed, and they were the facts that were known to us when we withdrew.

 

Speaker Perkins:

I will grant the certainly compressed time frame in trying to get a Contest filed in five days, and I believe it is one of the statutes we need to look at in order to correct the issues that have come up this time. 

 

One of the things you had said earlier, Mr. Mueller, was that you were banking on the grand jury finishing an investigation, to bring that to this Legislature, and the Grand Jury didn’t take this up until on or about January 30.  That gave us about two or three days to assume the Grand Jury would come with something before we convened on February 3.  In the meantime, no resources existed in your office to do the verification or you were relying on somebody else to do that.  All the while we’ve got a contested race where the other side is spending a great deal of resources trying to verify and do an investigation.  I just see this whole thing as wrought with peril. 

 

Craig Mueller:

Yes, sir.

 

Speaker Perkins:

There should be some burden for a contestant to prove the case that’s being contested.

 

Craig Mueller:

Yes, sir.  I don’t disagree with you, but the statutes as they sit . . . I mean, I’ve shown you the evidence.  Think of the awkward position this Committee and Mr. Conklin would have been in had no Contest been filed and a District Attorney’s Office issues an indictment.  Mr. Horrocks has got 300 fraudulent votes to his name, and Mr. Conklin has been seated.  There were absolutely no right answers to this one.

 

Speaker Perkins:

Well, actually, there are.  In the Constitution, we also sit in judgment of our own members, and had a Grand Jury brought information to us, that would have been switched.  I can pretty much guarantee you that this Legislature would have at least taken that in its Elections, Procedures, and Ethics Committee to review.  That’s a burden I think we would have felt.

 

Five days is a compressed time frame.  That was 14 days post-election; but you’ve had every day since to withdraw that Election Contest and made a conscious decision not to.  That’s what bothers me. 

 

Thank you, Madam Chair.

 

Chairwoman Giunchigliani:

Thank you.  I’ve just got a couple questions about the absentee ballot.  You still did not go to Mr. Lomax then, when you discovered some other suspicious absentee ballots?  Or did you turn it over to the D.A.’s Office any additional allegations?

 

Craig Mueller:

Well, there were several, basically more of the same.  We found people who hadn’t been living where they were supposed to.

 

Chairwoman Giunchigliani:

But that’s perfectly legal, so that needs to be set aside.  You mentioned absentee ballots in particular.  Did you turn anything else over to anybody based on suspicion?

 

Craig Mueller:

No, ma’am.

 

Chairwoman Giunchigliani:

With 300 alleged votes that are in the Horrocks’ case, that’s way up there, because I haven’t heard that part of it, but, no matter, we would still have to determine how those individuals voted.  So you would have to assume that Mr. Horrocks, who is a Republican, who had Republican members, would tend to vote for a Democrat?  Sorry, Marcus.  I think that’s part of the balance we have to have there.  I just hope we don’t bandy numbers around just frivolously, because I’ve not heard how many the Grand Jury is considering; 300 to me would not be reasonable at this point.

I think at this time I just need to restate.  Ms. Allen and Mr. Harris came to Ms. Vitolo.  Now, on November 13, if I look at John Smith’s newspaper article, it says, “Allen is preparing to contest the outcome of the race based on increasing suspicion of absentee ballots. . .”  Assemblyman Bob Beers, who has served with them on the Committee as an ally in this: “I think we are all concerned about voter fraud” (Exhibit F).

 

Was that meeting after your meeting with her or before?  I forgot when you said you actually met with them.

 

Sandra Vitolo:

That was on what date, the 13th?

 

Chairwoman Giunchigliani:

Thirteenth, yes.

 

Sandra Vitolo:

I didn’t meet with them until the 18th.

 

Chairwoman Giunchigliani:

Okay.

 

Craig Mueller:

Earlier I drew you to Exhibit 1, top of page 2 (Exhibit F).  “Horrocks says he intends to have at least 300 members vote absentee.”

 

Chairwoman Giunchigliani:

Which document?  I had all of them put out there for you, Mr. Mueller.

 

Craig Mueller:

That’s fine.  That’s our Contest, Statement of Contest.

 

Chairwoman Giunchigliani:

Which exhibit?

 

Craig Mueller:

Exhibit 1, page 2, line 3, (Exhibit F).  Mr. Horrocks says he intended to have at least 300 members vote absentee had he prevailed in the primary. 

 

Chairwoman Giunchigliani:

I’ll have the questions on the primary election directed to Ms. Allen, if she’s willing to talk about that, because I think that is where you actually had a closer election.  People had been going door to door, which I knew they were, in that race.  To me, I think that issue of who had moved or who is doing absentee ballots in the primary would have been even easier to flush out.  I’m just curious at some point why that wasn’t even looked at.  Why did they then wait until the general election? 

 

When I go door to door in my primary, I challenge people to vote.  If they’ve moved, even if they are on an inactive list, then they need to verify.  That was an opportunity that was made in the primary election.  I am suspicious as to why that was not even advanced, especially as close as that contest had been at that time.  That’s just something we may ferret out as we go along.  Finally, Sandra, when you conferred with Mr. Beers and Ms. Allen about withdrawing, do you have a time frame of when you think that occurred?

 

Sandra Vitolo:

I’m thinking, because we were waiting for the Grand Jury, I think that it was probably the 31st that we actually decided that.

 

Chairwoman Giunchigliani:

You conferred with them on that very day that you withdrew the Election Contest?

 

Sandra Vitolo:

Yes, I did.

 

Chairwoman Giunchigliani:

Thank you.  Any further questions for Ms. Vitolo?  Mr. Griffin?

 

Assemblyman Griffin:

Going back to Ms. Buckley’s observation, which seemed reasonable, mid-to-late December comes around; some of the information that was gathered, maybe it’s time to back off.  Similarly reasonable seems a position that waiting for the Grand Jury, which sounds to me like a gap of about four to five weeks.  Mr. Mueller, were you ever asked, or did you ever tell anybody, “This is what we’re waiting for?”  Did anybody ask you what you were waiting for?  Did it ever come to that?  The gap seems reasonable.  It seems that is kind of what the problem is.

 

Craig Mueller:

You’ve got to remember that I’m at the courthouse every day.  I used to work with the investigators who are petitioning this.  Now, they bump into me and say, “How’s it going?”  There was a lot of follow-up.  A true bill has not been issued yet, so whatever is presented to the Grand Jury is secret.  We’re waiting for the Grand Jury.

 

Assemblyman Griffin:

Again, I think, from my standpoint, that seems reasonable.  Once it was determined that the original investigation had some holes, again, to wait for those.  I guess I’m wondering, maybe it’s on the other side.  Did anybody ask you from the other side saying, “What are we waiting for?”  It just seems that, if somebody had known that we were waiting for the Grand Jury investigation, that would have been a reasonable reason to wait.

 

Craig Mueller:

What I never understood, and, lawyers are free to handle cases as they see fit, was that Mr. Conklin’s proposition was untenable because he was in the awkward position of having to prove a negative, which you can never do.  I understand Ms. England, Mr. Conklin’s attorney, tried to run everything down as best she could, but, clearly, what we submitted initially was not going to be enough to unseat.  If this had been the case that I was up against, I would have just sat on my hands and waited to see if the other side could develop anything. 

 

We didn’t supplement the record.  We never called Ms. England up and said, “Look what else we found.”  She did what she felt was best for her client.  But this package, as much as this was the entire universe of facts known to us, clearly is not enough to get the result we were seeking.  We recognized that, and when nothing else was forthcoming, we withdrew it.

 

Assemblyman Griffin:

I understand.  I can see where there are two different sides.  I think both sides are reasonable.  I just was curious if Mr. Horrocks, if both sides ever just talked with each other and said, “By the way, we’re waiting until we get this information back.”  And that goes both ways.  If anybody asked you, if you were never asked the question, you may have not ever had the need to tell anybody.  I was just curious.

 

Craig Mueller:

You’ve got to remember also, unfortunately, law is processing information.  Processing information is time-consuming, and expensive.  Now anybody can get any result with an unlimited budget.  It’s getting where you need to go with what you’ve got.

 

Assemblyman Griffin:

I understand.

Craig Mueller:

Working with what you have is the trick.  We were on a shoestring budget on this project, but we presented everything we had when we had it.  If you really want to get to the bottom of this, and if this Committee wants to get some good answers, I would suggest you subpoena Mr. Horrocks up here and see what he has to say about things.  That would get you some real good answers real quick.

 

Chairwoman Giunchigliani:

I think Mr. Griffin is right; it might have been very reasonable to wait for the Grand Jury.  However, in your testimony, you didn’t give them any names and numbers; you didn’t give them any background.  The 160 names that were filed in the Contest had nothing to do with that part of it, and so you were waiting for something you weren’t even involved in and using that as the basis to file the Contest.  I think that does not sound right.  That’s part of the concern we need to get to here.

 

I would even go back to Mr. Griffin’s comment, because I think that is about discovery and that’s what the whole point of deposition is, so you can have this give and take.  In a letter back to Ms. England you said, “She does not wish to speak with you or Mr. Conklin, nor does she wish to cooperate with you in any way,” and you told her she had no authority.  That’s not working together to try to resolve a problem that might not have needed to get to this point.  You’re right about the cost, and, at some point, we’ll have some testimony about how much it has cost Mr. Conklin.

 

Craig Mueller:

Yes, ma’am.  And your point would be?  I mean, the fact of the matter is . . .

 

Chairwoman Giunchigliani:

My point would be that I don’t think you advised your client very well on how to file this contest, because you had her sign a document that you did not verify.  You also did not provide the signatures as true.  You also did not go out and verify the names and addresses, and yet that was the basis for this Contest.  That’s what my point is.

 

Craig Mueller:

Ms. Vitolo came to me and wanted me to file a petition in accordance with the statute.  Ms. Vitolo did not wish, and she is terrified right now; she is not a public speaker.  She felt intimidated by Ms. England’s tactics.  Ms. England I repeatedly requested for authority, or . . .

Chairwoman Giunchigliani:

Excuse me.  We’re not going to go there with tactics.  If you had even taken the initiative to talk to the Registrar of Voters to confirm whether or not those absentee ballots were correct or what the process is for people to be able to vote, then you could have at least properly advised Ms. Vitolo so that she’s not out here on a limb on something that probably was not filed in accordance with the law. 

 

But I think, at this point, we need to get going, so I want to see if I can invite some other people to come up and testify.  Ms. Vitolo, thank you very much.  I hope you haven’t been too pressed by this process.  Part of it is just trying to filter through a lot of information when you have a lot of different points of view, but thank you very much for being here.

 

Thank you, Mr. Mueller.

 

Craig Mueller:

Thank you.  Am I released from my subpoena?

 

Chairwoman Giunchigliani:

I don’t know yet.  I think I’ll wait to see if there are any other questions.  Thank you.

 

Craig Mueller:

I’ve got a 7:30 flight.

 

Chairwoman Giunchigliani:

Okay, you can be released.  It is a new term for me.  I’m not a “legal beagle.”  That’s an interesting concept.

 

Ms. Allen, would you like to come forward?  Thank you for being here.

 

Francis Allen:

Francis Allen, for the record. 

 

Chairwoman Giunchigliani:

Thank you very much.  Can you talk about why you did not present the contest yourself?

 

Francis Allen:

Actually, early on, it was my intent to have about ten or 15 people sign onto it, but Mr. Mueller and the associates at his firm notified me that, pursuant to the Nevada Revised Statutes, only one voter in a district could do it, and, essentially, it would just have been a duplicative effort to file paperwork ten times over.

 

Chairwoman Giunchigliani:

At some point I think that that’s not a correct interpretation.  You may have been told that by him, but you could have had as many names on a Contest as signatories to it, I would think.  So what caused you then to go to Sandra Vitolo to actually be the one to file the contest rather than any of the volunteers who actually had gone to the doors to try to verify some of these signatures? 

 

Francis Allen:

I was certainly hoping for one of the volunteers, and volunteers were, in fact, a part of that initial group that I had thought about requesting be done.

 

Chairwoman Giunchigliani:

Behind her Exhibit 3 (Exhibit F), are those the types of verifications that were being made with the addresses and so forth?

 

Francis Allen:

The question again, ma’am?

 

Chairwoman Giunchigliani:

In Exhibit 3 (Exhibit F), they have a whole list of names and addresses with little boxes next to them.  Are those the comments that the volunteers were able to verify?  Do you know?

 

Francis Allen:

Yes, I do know, since I participated in the process.  Yes, we created walk sheets from the 8,000 people who cast votes in that general election.  We walked them door-to-door and volunteers jotted down those comments.

 

Chairwoman Giunchigliani:

Any place where there’s an “RDG.”  Are those the ones that Mr. Groover did?  Are those his initials, do you know?

 

Francis Allen:

Yes, those are his initials.

 

Chairwoman Giunchigliani:

When you and Mr. Beers gave Ms. Vitolo this document to file as the contest, who gave the implication that Mr. Groover was the one who verified all the names and addresses?

 

Francis Allen:

I don’t recall there being any conversation to the matter.

 

Chairwoman Giunchigliani:

To your knowledge, that was done by Mr. Mueller as far as when they drafted the information, because he didn’t hire Mr. Groover, so he would not have known to include him in the form.

 

Do you know who Mr. Groover actually worked for?  Did he work for you?  Did he assist you or Mr. Beers?

 

Francis Allen:

Yes, he did assist me.

 

Chairwoman Giunchigliani:

He worked for you.  His name, then, was attached to the verification contest.

 

Francis Allen:

He was actually one of the principals that spearheaded the walking effort.

 

Chairwoman Giunchigliani:

He could verify which ones he had actually gone to, and that’s where we would see the differentiation between the initials versus the others?

 

Francis Allen:

Yes, ma’am.

 

Chairwoman Giunchigliani:

Did you not have any suspicion during the primary that there were any problems with people moving?

 

Francis Allen:

Actually, you made a comment earlier, and had I known, that most certainly would have occurred.  Of course, the 14-day statutory requirement to file a contest after the election had passed by then, and to be quite honest, everyone wondered.  We broke down the primary election results into early voting, Election Day voting, and absentee voting.  Actually, Mr. Horrocks beat all four of us, or the three other contestants, on absentee ballots.

 

We had a discussion on it, conjecture, perhaps.  All he did was walk absentee ballots as a campaign tactic.  I don’t know.  Had I known, I most certainly would have taken action then.

 

Chairwoman Giunchigliani:

In your door-to-door work, did you find people who had moved, didn’t live there any longer, the same type who had been addressed in this subsequent Election Contest?  Were these 160 people, were they seen in the primary versus in the general election?  Or, were they all from the general election, and nobody caught that?

 

Francis Allen:

I know the 160 were pulled from the 8,000 people who voted in the general election.  I personally have not scrubbed the list with people who voted in the primary, no.

 

Chairwoman Giunchigliani:

That was actually the closer contest as far as that was concerned, and I’m just concerned.

 

Francis Allen:

I wonder; do you know the difference between myself and Gary Horrocks in the primary?  I don’t know the number.  I know it was 100-plus, but perhaps similar.

 

Chairwoman Giunchigliani:

Questions from the Committee?  Ms. Buckley.

 

Assemblywoman Buckley:

Thank you, Madam Chairwoman.  Did you look at this Election Contest filing before it was filed?

 

Francis Allen:

Yes, ma’am.

 

Assemblywoman Buckley:

After the filing, by, say, January 1, when you had more time, why didn’t you go back and try to verify whether or not these folks actually lived in the places where they were alleged not to have lived?

 

Francis Allen:

Honestly, at that point, I probably would have thought that would have been duplicative effort since we had already walked those areas, and they weren’t in the homes.  But to speak to that —

 

Assemblywoman Buckley:

Some of them said, “No answer.”

Francis Allen:

I think four of them, and actually that was probably a mistake on my part or Mr. Groover’s part, when instructing the volunteers.  In no way were we intending to spoil ballots of people who just weren’t home to answer.  I would say that, out of the 160, I think there may be four or five examples of that and that would be my fault.

 

Assemblywoman Buckley:

Okay.

 

Francis Allen:

It was my fault for not instructing campaign volunteers.  Again, anyone familiar with the Assembly District No. 37 race, I had a group of about 20 folks walking pretty vigorously for nine months and by the time November came and that January point came, it’s difficult to ask people to continue to do this.

 

Assemblywoman Buckley:

I guess I have the same questions.  It’s kind of like if it’s important enough to challenge someone’s seat, it’s important enough for it to be accurate.

 

Francis Allen:

Oh, certainly.

 

Assemblywoman Buckley:

There were some folks who were alleged—there are ways, there are steps that you could have taken to provide evidence like Ms. England did.  She actually went ahead and went back and just knocked on the doors or went to the absentee ballot addresses, for example.  She found an attorney who lives in the district but wanted the ballot to be sent to his office.  She went to the address and he said, “Yes, I live in the district; that’s me; I voted; I’m not a fraud.”  And so another one bites the dust.

 

She went through one by one until there were not enough votes to have changed the outcome of the election.  I’m wondering, if she did that, why didn’t you all, so that you could have found out whether or not you had a case and withdrawn it before Assemblyman Conklin had to spend all of this time and money contesting the election?

 

Francis Allen:

Because the initial 160 was the initial number and then there were all sorts of day-to-day communications amongst many folks saying, “and this, and this,” and there is this large “inveterate voter question mark” and that came to pass after we filed the Contest, actually, with the dialogue you had earlier . . .

As far as I’m concerned, I think as far as Ms. Vitolo was concerned, the number jumped up to 400, perhaps, questionable ballots, and without somebody, either the Grand Jury or some independent body stamping this and saying, “Illegitimate votes happened, and there was some sort of foul play, ”it seems futile to come on up.

 

Assemblywoman Buckley:

Did you contact Larry Lomax?

 

Francis Allen:

I had several conversations.  When it was brought to my attention initially, we had a meeting with myself, Mr. Beers, I believe Mr. Harris was in attendance, with Mr. Lomax, the day after John Smith’s first article.  It was a Monday.  I don’t remember the date exactly.

 

Assemblywoman Buckley:

Did Mr. Lomax tell you that the folks that had moved and voted absentee were complying with the law?

 

Francis Allen:

Actually, in the initial meeting, which is the only substantive conversation I have ever had with Mr. Lomax, he seemed unsure about any of it and was going to look into it.  We left there without any real clear resolution.  He said, “I have to talk to the attorney; I have to talk to the attorney.”

 

Assemblywoman Buckley:

Later, did you find out from someone that, in fact, he had confirmed that this is the law?

 

Francis Allen:

No, I actually didn’t know anything as far as Mr. Lomax goes until reading this challenge in Mr. Mueller’s office about two days ago.  I didn’t know this was even created.

 

Assemblywoman Buckley:

Did you ever ask Mr. Lomax to compare the signatures between the voter registration records and the voting records of that day to see if there were any discrepancies?

 

Francis Allen:

No, that wasn’t requested.  Several things were requested, but I don’t think the signatures, the copy of the signatures, I always felt that was imposing on Mr. Lomax’s time any time we were there.

Chairwoman Giunchigliani:

Speaker Perkins has a question.

 

Speaker Perkins:

Francis, the Chair asked you why you didn’t file it yourself.  I’m not sure I understood your answer.

 

Francis Allen:

Well, it was my intention, initially, to have probably a dozen folks in Assembly District No. 37 file it.  Exactly “why” was my judgment call.

 

Speaker Perkins:

So, why have Ms. Vitolo do it instead of having Francis Allen as the contestant?

 

Francis Allen:

It was my own decision.  As I said, I had about 10 folks waiting in the wings to sign on and whether or not it was ill-advised, it was told to me at the time that 10, 20, or 30, it doesn’t matter.  One name on the Contest does the job, and it would be a duplicative effort and whatnot.  I was just advised to have the one.  Initially, before then, it was perhaps my decision, unconscious.

 

Speaker Perkins:

Do you know, in any of the questionable votes, if anybody who worked on your behalf, or you, yourself, went to any of those voters, any one of them, and asked them who they voted for?

 

Francis Allen:

No, we were unable to contact them since they weren’t home, so, no, no one ever made direct contact with the person who cast the ballots.  As far as I’m concerned, I never did it, and I do not know of anyone who did that.

 

Speaker Perkins:

Do you think that, I don’t know how many people on this Committee, any of them would have overturned this Contest of Election without having that specific information?  Say, there were 1,000 questionable votes.

 

Francis Allen:

In my opinion, had I done that, it would have just been speculation.

 

Speaker Perkins:

No, what I am saying is, had there been 1,000 questionable votes, that doesn’t necessarily give us the evidence that we need to say that they either voted for you, or they voted for Marcus Conklin.

Francis Allen:

Correct.  One of the sole purposes of meeting with Mr. Lomax very early on in that one meeting I had with him, I said, “Can we open these people’s ballots?  Is there any way that we can determine who they voted for?”  He said, “No, this is America,” and he gave us a great speech. 

 

On one hand, I was very happy to know that the ballot is secret, and we can’t open it.  On the other hand, I became somewhat aware that it was a huge obstacle in trying to prove that irregularities occurred.

 

Speaker Perkins:

I don’t disagree that the sealed ballot process is a good process and that the integrity of it needs to be maintained, but it doesn’t preclude anybody from going to that person saying, “Did you cast this ballot?  I don’t want to violate your privacy, but if you did would you tell me who you voted for?”  At least then we would have had some evidence to say that a Horrocks influenced ballot or anybody else’s influenced ballot was changed from you to somebody else or vice versa.

 

Francis Allen:

Just in my own opinion, had we met up with any of these folks and asked them that, again, it would be speculation as to what they told me.  If I were to stand up in front of them, or perhaps if Mr. Conklin stood in front of them and asked, “Did you vote for me or did you vote for me?”  Would a truthful answer come out?  It’s just speculation, unless we could open the ballot and see him, me, whatnot, it would have been speculation.

 

Speaker Perkins:

I think we’re all pretty familiar with what the statute says on the Contest of Elections now.  We’ve been pouring over it for several months.  Do you think it was ever intended that a Contest be filed based upon unknown, questionable, suspicious, absentee, or inactive votes, all of which may be legal?

 

Francis Allen:

You’re asking for my interpretation of the—

 

Speaker Perkins:

No, I’m asking you if you think that, not the interpretation of the statute, but do you think it was ever the intent—again, big democracy speeches—I don’t want to use the term improperly—the very foundation of our Republic is a representative democracy executed by a vote of the people, all those sorts of things.  But did you ever think there was intent by a legislature prior to this one to encourage or accept a contest of election based upon simply a questionable vote or a suspicious vote, or an inactive vote?

 

Francis Allen:

Okay.  Again, you’re asking me to interpret.

 

Speaker Perkins:

What do you think the law means?

 

Francis Allen:

Well, initially, when this entire thing explodes, you wonder, if this, in fact, did occur, how do you prove it?  It’s a very difficult task at hand.  And, if you limit those folks as to whether or not they can file contest by 14 days or 30 days—I’m not sure that 14 days is an unreasonable number because you have to move on with business.  Nevertheless, after that, you’re asking me as far as do I think that you should make this more rigorous?  I don’t know how without curtailing the Contest process.  I believe the, and I could be wrong, statute was relatively recently crafted.

 

Speaker Perkins:

Okay.  I don’t mean to put you on the spot.

 

Francis Allen:

I don’t believe the contest was filed without long consideration, with any frivolity at all.  It was my intent, and, believe me, I know Ms. Vitolo’s probably a little bit shook up, but, throughout this entire process, she and I have been in very close contact with each other, and no decision was made without her conference or consent.

 

Speaker Perkins:

I don’t think it was intentionally filed with, perhaps, some frivolous intent, but, 14 days post-Election Day makes it November 19, thereabouts.  That’s a full 2 ½ months before this Legislature began, and I’ve seen no evidence of any due diligence efforts to confirm things.  The ability to withdraw for two and a half months still existed and, based upon what Mr. Mueller had said, all based upon suspicious, absentee or inactive votes, questionable votes, none of which are illegal.

 

Assemblyman Hettrick:

With all due respect to the Speaker, I think the same question about the 1,000 questionable votes, you couldn’t prove how they voted, and the contest would also fly that Mr. Conklin shouldn’t have pursued any kind of action against it as well.  So, I think that’s a two-way street, and I think we have to recognize that.

I think, at this point, I have to testify to something that I know as first-hand knowledge that had not been at issue, and I think now I need to bring it out.  I’ve talked to legal staff about this in advance, so the position that I take on this has been pre-cleared with them.

 

Mr. Horrocks called me immediately after the election as well and told me that he personally voted 160 votes and that he had knowledge, and, he voted those Democrat, because he was mad that members of our caucus had sided with Francis Allen during the primary and that he felt it cost him the primary election.  He then proceeded to tell me that, and I kind of chuckled and said, “Yeah, sure.”  I, frankly, didn’t believe him.  I thought he was just blowing smoke.  I really didn’t know any more about it until I received the subpoena request from Ms. England.  In that subpoena request from Ms. England, it was a notice to me just to go and watch, if I wanted to watch.

 

Within that was the Francis Deane affidavit saying the exact same thing.  At which point, I called the Legal Division and said, “Now what do I do?  I didn’t think anything of this.  I had thought it was nothing, but now there is corroboration from somebody else that has filed an affidavit, and I haven’t done anything.  I don’t know where to be on this; I don’t know where I should be.”  And they said, “Firstly, this isn’t a judicial hearing.  Secondly, you’ve not been deposed or requested to file or provide anything.  Thirdly, you have no proof as to what was done or not done, and Mr. Horrocks was going to a Grand Jury indictment, and you can’t prove whether he did it or not.”

 

I really didn’t have much interest in jumping up and saying, “Me, too!” or whatever, because I really didn’t have proof.  However, based on that knowledge, or that comment—I had commented to Mr. Beers a day or two later that Mr. Horrocks had made that comment to me.  We had, or Mr. Beers, Ms. Allen, Ms. Vitolo, and everyone else involved in this, had some reason beyond just thinking that the numbers were skewed, to believe that, in fact, fraudulent votes—not questionable votes, fraudulent votes—had been cast in this election.  Is it hard to prove that?  Yes.  When they went out and did the initial search for this, or original research on this, indeed there were more than enough absentee ballots; there were far more absentee ballots than would have been required to do that.  They have no way of knowing, nor do we now, today, have any way of knowing. 

 

So why did they hang for the Grand Jury?

 

Because, obviously, they hoped that there was going to be an indictment issued, and, perhaps, Mr. Horrocks was going to be placed under some kind of oath and forced to testify and that this would become a record, and that they would be able to use that record to prove, indeed, that fraudulent votes were cast.

 

So they hung for the Grand Jury hoping that something was going to come out, and it didn’t.  Now, was that frivolous?  I don’t think so.  I think what they were doing was based on sources, two different sources, the comments made to me personally, and to Ms. Deane, who then filed an affidavit that gave them every reason to believe there was something wrong here.

 

The only way they were going to be able to prove that was for the Grand Jury to indict.  They would have been foolish to withdraw prior to that.  Could they have done all these things we have talked about?  Yes, they could have.  Maybe they would have eliminated some and added some others.  In fact, they did add others when they got out and investigated, because they found more that they turned in and filed through Maptitude, which does voter checks on addresses or the like, and found even more votes that were, indeed, at that point, questionable votes, because you can’t prove whether they went and raised their hands and voted, or who raised their hands and voted.  Those are, at best, questionable votes, but at least they were questionable.

 

So they had more than enough numbers; they had more than enough reason.  They had reasonable doubt to wait and see what would come out of the Grand Jury, if anything. 

 

So, I just feel—I held off on this because I don’t want to be a part of changing the investigation or anything like that, as far as that goes, and it isn’t a judicial proceeding.  I think that where we are here now is, yes, it would have been nice if they could have done more research and withdrawn earlier.  We would all agree.

 

But, given what the Speaker just said, for every reason that they should have withdrawn, Mr. Conklin shouldn’t have spent money on a challenge.  They only waited for their opportunity to prove their outcome.  That’s all they did.  Thank you.

 

Chairwoman Giunchigliani:

Thank you, Mr. Hettrick, and thanks for your disclosure.  Speaker Perkins.

 

Speaker Perkins:

Thank you, Madam Chair.  I guess the one thing I would respectfully disagree with the Minority Leader on is that, having a great deal of contact with the Clark County Courthouse in my day job, as Mr. Mueller does, or has at least suggested he does, he knew, as did I, that when a Grand Jury is going to take up an issue, or is likely to take up an issue, it wasn’t going to be soon.  I don’t think he had any reason to believe that it was going to happen before we came back to this Legislature.  That’s not saying everybody in this room wasn’t getting that advice from him, and they very well could have been. 

 

The thing Mr. Mueller is representing, I don’t think is accurate.  My biggest problem with this whole thing, thus far, is that I don’t think it’s appropriate for a contestant to wait for a grand jury to do their work.  I think they had a burden themselves to do their due diligence and verify things, much like Mr. Conklin did prior to our arrival here.

 

So, as my good friend to my left and I occasionally do, we’ll just have to agree to disagree on this one.

 

Chairwoman Giunchigliani:

Assemblyman Anderson.

 

Assemblyman Anderson:

Ms. Allen, in trying to understand this issue and listening and looking through the paperwork, it seems to me that if there was any question that should have come up, one might have come up from you, as a candidate, relative to the primary election and the nature of the votes in the primary election that might have been miscast initially.  It’s an observation more than anything.

 

We do this 16-day window so the ballots are still going to be fresh, that they’re not thrown away, which puts a great burden on all of you that what happens in the primary election may have been where the real problem existed, where there was the potential for greater harm because it’s a smaller, closed vote, and the absentee ballot question may be of greater significance.

 

Did you happen to take a look at the absentee ballot question?  I’m trying to remember this, in this big document, you probably remember since you are more closely involved than I.  How did the absentee ballots turn out in the Republican primary?  Who?

 

Francis Allen:

I spoke to that earlier.

 

Assemblyman Anderson:

I’m sorry.  I guess I was out of the room.

Francis Allen:

Mr. Horrocks won out of the four-way primary.  Mr. Horrocks received the most absentee ballots voted in favor of him.

 

Assemblyman Anderson:

Did you happen to notice the Democratic?

 

Francis Allen:

No.

 

Assemblyman Anderson:

There was no Democratic primary.

 

Francis Allen:

Yes, there was, but I did not look into it.  It didn’t seem important, and I don’t see how it does at this point.

 

Assemblyman Anderson:

If he received the highest number of votes in the primary, now we’re casting questions about how he may have manipulated, and I’m using the term exactly as I intended here.

 

Francis Allen:

Sure, absolutely.

 

Assemblyman Anderson:

The vote–maybe the question really revolves around his failed attempt and his frustration that he couldn’t use his power in the first place, even though he may have attempted to, rather than in the second attempt as where, of course, it’s a tighter election, but have you made any speculation about that?

 

Francis Allen:

I agree that, very likely, the voter fraud or the voter irregularities that Mr. Horrocks has implicated himself in took place in the primary.  And, yes, as I explained earlier, he did receive the most absentee ballots in that primary race, and it did throw up a red flag on my part.  For many reasons, I conjectured this occurred, perhaps in walking the entire voter file; perhaps he just walked those that routinely get mail-in ballots.  Of course, those people are easy to identify on the voter file. 

 

Whether or not I could or should have contested that election, of course, was after the 14-day statutory requirement to file a contest when this all came to light.

Assemblyman Anderson:

You did not contemplate filing a contested election over the primary?

 

Francis Allen:

I did not know that any voting irregularities occurred until after the general election.

 

Assemblyman Anderson:

Okay.

 

Chairwoman Giunchigliani:

Thank you, Mr. Anderson.  You met with Mr. Lomax, Mr. Burdish, Mr. Harris, and Mr. Beers?

 

Francis Allen:

I believe, about five, six, and seven members of Mr. Lomax’s staff.

 

Chairwoman Giunchigliani:

Did you bring with you the names that you then included in the contest for him to review?

 

Francis Allen:

No.  No walking had occurred.  The first gut reaction was, “Oh, my gosh, something funny is going on here.  Let’s go talk to Larry Lomax.”

 

Chairwoman Giunchigliani:

You met with him on the 13th, I believe, and on the 13th, I think Mr. Beers had already secured some names and numbers for irregularities.

 

Francis Allen:

I don’t think that is the case.  I could be mistaken.

 

Chairwoman Giunchigliani:

Do you know when the District Attorney received the names that were turned in?

 

Francis Allen:

Mr. Beers was taking care of that.

 

Chairwoman Giunchigliani:

Mr. Beers, do you know the day that the D.A. or you submitted any names?

Assemblyman Beers:

Thank you, Madam Chair.  Bob Beers, Assemblyman, District No. 4.  I do not recall the specific days.

 

Chairwoman Giunchigliani:

Where any subsequent . . .

 

Assemblyman Beers:

The first block was derived from the absentee voter list and the voter file, and it was derived by pulling records that had one of two commonalities.  That is a mail-to or a mail-forward address to one of two addresses that were associated with Mr. Horrocks.  That was the first list.

 

That seemed enough for Mr. Horrocks for his staff’s work schedule.  They then set about creating the computer file off of the polling books, which took them three or four days to develop the computer file of the voter IDs of everybody who had voted in that election, from which we then created walk lists and spent a furious five days or so.

 

Chairwoman Giunchigliani:

You meant Lomax, not Horrocks, right?

 

Assemblyman Beers:

Sorry.  Thank you. 

 

Chairwoman Giunchigliani:

That’s okay.  Just wanted to make sure. 

 

Assemblyman Beers:

That led to the walking door to door, which concluded, just about on deadline, that we had 160 people who couldn’t be found or we couldn’t find, to put that more correctly, Madam Chair.  That was the deadline for filing the Contest.  It was at that point, not a point of consideration that there was a common theme in the inactive voters.  At that point, to the best of my recollection, Mr. Lomax didn’t discuss any part of the inactive voters, because we didn’t discuss it with him.

 

Chairwoman Giunchigliani:

Your 21 names that you originally took, you took that to the D.A’s office then?  Some of those are contained within the 160 names that were on the initial Contest that was filed.  Have any subsequent names been delivered by either of you to the D.A.’s office?

 

Assemblyman Beers:

No.

 

Chairwoman Giunchigliani:

Okay.

 

Assemblyman Beers:

But, I may be—to the best of my knowledge, no.  Francis says yes.

 

Chairwoman Giunchigliani:

To your knowledge, no.  And Ms. Allen?

 

Francis Allen:

Yes, I provided Mr.—what’s the investigator’s name?—Mr. Joel Moskowitz with a subsequent list of voters who were believed to be suspect.  I don’t know what he did with it.  I called, had a brief conversation, and said, “What’s your e‑mail or fax to fax or e-mail these over to you?  You can do what you will with it.”  I’ve never had a conversation with the man since.

 

Chairwoman Giunchigliani:

We basically have, and I have, Mr. Beers, what I think Dan or somebody e-mailed to me, which was your inactive list of those from Assembly District No. 37.

 

Assemblyman Beers:

And that came up after?

 

Chairwoman Giunchigliani:

And that came up long after that part of it.

 

Assemblyman Beers:

It was a month after.

 

Chairwoman Giunchigliani:

Again, inactive does not mean that they are ineligible.  I think that has to be very clear.  Those individuals have every right to go back and are required to go back and sign.

 

Assemblyman Beers:

The statutes are actually in conflict.  There is another statute, and I don’t have the citation with me, that very clearly says you must live within the district you’re going to vote in for 10 days, so that was what we had initially been looking at.  Again, the issue of inactive voters did not come up at the time the Contest was filed.

 

Chairwoman Giunchigliani:

That’s NRS 293.470, I believe, but under the 285, they still don’t disenfranchise.  I think, no matter how much we like it whether or not this works, that is what the law is; that is what they are required to do.  Out of the 160, you felt there were 21 names at least that were tied to the Horrocks issue?

 

Assemblyman Beers:

Then we had the two statements from Mr. Hettrick and Ms. Deane, that Mr. Horrocks had claimed to them to have turned the election, and this did come down to the Grand Jury.

 

Chairwoman Giunchigliani:

Yes, but bragging is different than proving it, and I think we have to be very cautious.  That’s what the whole purpose of the Grand Jury is, and rightly so.  They should be moving forward and hopefully will resolve that part of it. 

 

But to have a Contest filed to deal with a Grand Jury issue that is proceeding forward—and, rightly, absolutely should.  If any subsequent names were given, should be, and Ms. Allen, at least, has supplied some others, and we don’t know if they have taken those up or not.  Other than that, we have a woman who cared enough about elections to sign a document that basically perjured herself.

 

Assemblyman Beers:

I don’t think that she perjured herself at all.  It’s pretty clear to me . . .

 

Chairwoman Giunchigliani:

Excuse me, Mr. Beers, it’s very clear that it says that all 160 names and addresses were personally verified by David Groover, and that is not accurate, and that is a matter of perjury.

 

Are we going to go after this poor woman?  No.  But, I think that’s part of what we needed to find out, is what things needed to be there.  You had every right, as the person that lost the race, to file the contest.  I think you said Mr. Mueller advised you.  Was he your attorney then as well?

 

Francis Allen:

No, I don’t have an attorney.  I was told I didn’t need one.

 

Chairwoman Giunchigliani:

How did he get into play, or who selected him for Ms. Vitolo? 

 

Francis Allen:

It was my recommendation to her.

 

Chairwoman Giunchigliani:

Sandy went to Mr. Mueller upon your recommendation.  You all gave her the documentation to attach.  He says that he reworked it and wrote it up, but he didn’t do any actual verification himself.  Then you have a David Groover that looks bad in here because he was allegedly verifying them all, and that’s not accurate as well.  So, at least we cleared that up.

 

Assemblyman Beers:

I think that statement was inaccurate.

 

Chairwoman Giunchigliani:

Okay.  And, that needs to be cleared up, because that is not fair to him as a businessperson.

 

Assemblyman Beers:

That statement that David Groover validated, I don’t remember what it says.

 

Chairwoman Giunchigliani:

Verified.  It said verified.

 

Assemblyman Beers:

Verified all 160 is not correct.

 

Chairwoman Giunchigliani:

Correct.  I think he needs to know that.  I don’t think he’s in the audience tonight, but we’ll at least note that for the record, as far as that side of it.

 

I think the final thing comes down to this.  In my wanting to have us focus on what we can change here in this body, about the only thing I’ve heard so far is the time lines potentially.

 

I don’t want peoples’ right to vote, right to be elected, due process—people made allegations without justification, without the burden of proof—to be jeopardized in any way.  That’s the balance we’ve been trying to get through here. 

 

What was the real motivation?  If it was to make sure the Grand Jury was convened, they were, and that was months before we convened.

 

If we wanted to make sure that individuals who wrongly, illegally, and may be charged with a felony registered and had their ballots mailed to a place that’s not their residence, then they should be thrown in jail, as far as that’s concerned.

 

If that’s the motivation, that was already happening before the Election Contest, or even could have been withdrawn far earlier than what it was.  And so I don’t see that anything has been proved out of this, other than suspicion, innuendo, comment, bragging, and that individuals who correctly voted and were allowed to vote were called frauds.  I think we just need to be careful on that without losing the opportunity for people to rightly file a challenge.

 

I was trying to make a list of what things that we come up with regarding legislative changes.  Did you have any other suggestions?

 

Assemblyman Beers:

Yes, Madam Chair, thank you.  Bob Beers again, for the record.  The lesson I take from this is that we need to require inactive voters to produce an ID when they vote.

 

Chairwoman Giunchigliani:

I think that will be dealt with, and under Help America Vote Act as it is anyway, because you’re going to have to produce some kind of identification—purposes under the new federal legislation.

 

Assemblyman Beers:

I think, had that been the case in this election, . . .

 

Chairwoman Giunchigliani:

They still have to sign the book.  They do go back and match signatures, Mr. Beers.

 

Assemblyman Beers:

No, they don’t.

 

Chairwoman Giunchigliani:

Yes, they do. 

Assemblyman Beers:

I don’t think, routinely, they match signatures.  I’ve not heard Mr. Lomax say that’s the case.  That would be an awfully large burden.

 

Chairwoman Giunchigliani:

Yes, they do.  You sign on a book there.  They take that back later and reaffirm the signatures.  Are there inaccuracies potentially?  Yes.  Was it this huge groundswell and only in this precinct?

 

I would take issue with Mr. Mueller’s comment that Assembly District No. 37 happens to be pretty stable.  Hopefully, the people are.  I mean, in Clark County, people move everywhere, so stability is an issue.  You have thousands of inactive voters.  So, other than that, what else could we take a look at other than the time lines that you would like us to consider?

 

Is that the majority of it, so that you can verify?  I think if you guys had actually asked the Registrar of Voters when you had your meeting, and I know you had a subsequent one with him, “What happened here?  Can you go verify?”  Every person that you had on your list showed up on a screen where they showed an affirmation.

 

Assemblyman Beers:

Two weeks ago, Madam Chair, Mr. Lomax gave me a printout that he’d had pulled from his system, and the question became revolving around the affirmation that an inactive voter must make.  What that mechanism is he indicated that the election workers are trained to recognize an inactive voter.  Their records are flagged on the printouts.

 

Chairwoman Giunchigliani:

It has an “I” in the corner, I believe.  Correct?

 

Assemblyman Beers:

They are required when they show up.

 

Chairwoman Giunchigliani:

I did read the documents.

 

Assemblyman Beers:

Yes.  They’re required when they show up to affirm.  I said, “So, what does that mean?  Presumably, then, you can show me all the voter address changes that have been posted subsequent to the election.”  He had two printouts.  One was a list of those whose addresses had changed, and one a list of those whose addresses had not changed.  He indicated that the affirmation can be as simple as, “I am who I am.  I have moved, but I don’t have time to tell you where.”

 

Chairwoman Giunchigliani:

That’s legal.  Whether we like it or not, it is legal.

 

Assemblyman Beers:

It is legal, but in the context of the Horrocks issues, the two confessions to elected officials, and the very real possibility that the pressure of the Grand Jury investigation might, in fact, produce a confession and a list of names, I don’t believe it was unreasonable to wait.  It is, as a couple people have alluded, a difficult situation.

 

Chairwoman Giunchigliani:

Hopefully, the Grand Jury—we’re glad it’s working, and it’s moving throughout the process.  I’ll point out again, you gave them 21 names other than a handful that Ms. Allen gave.  Again, there’s been nothing else, and the 160 names were never then deleted.  You could have done an addendum then as those were verified.

 

Assemblyman Beers:

I think the only other list would be the 160 that Ms. Allen gave to the District Attorney’s investigator.  They have the full list.  I don’t know to what extent they’re looking at it.

 

Chairwoman Giunchigliani:

Okay.  Any further questions for Mr. Beers or Ms. Allen?  Thank you very much for being here.  I don’t think David Groover is here?  Ms. England, do you wish to do any kind of wrap-up or anything in a brief manner?  You don’t have to if you don’t want to.  State your name for the record, please.

 

Kathleen England:

Kathleen England, the attorney for Marcus Conklin.  To bring this back to a little closure, and I promise it will be brief. 

 

Of those 160, I’m now even more appalled to find out that Ms. Allen, who did not have the courage to sign that verification and to challenge this election, has now provided the District Attorney with 160 “suspicious votes,” which I suspect, are the 160 people, most of whom we have managed to find out, through no cost, are indeed, proper voters.  To now cast continued aspersions onto those people, I think is horrifying.  I think it shows exactly what is going on here.

 

Of those 160, only 12 of them are Horrocks-related.  There are 148 people they accused of fraud who are not fraudulent voters, and they have no evidence.  As they told you here today, they didn’t have evidence on November 19, so what did they do?  The people who hired walkers, who had the note, who had the investigators, they didn’t have the courage to file.  Instead, they went to a woman who’s met Francis Allen three times, showed her a little exhibit, and, within 24 hours they had her at a lawyer’s office, not their lawyer, but a lawyer they recommended.  On 24 hours’ notice they had this woman signing a verification under the penalties of perjury, something they didn’t have the courage to do, and then they spent the next 76 days doing nothing.

 

It would not have cost Ms. Allen a dime to access the Clark County Election Department Web site.  If she did it, she would have found out that Daniel Orr lives at the place where he lives and that he votes from his son’s, that his mail goes to his son’s dentist office.  She would have found out that Mrs. Sheppard lives at the address where she lives.  She would have found out that every single one of those apartment dwellers has moved to a different place, many of them in Assembly No. 37.  If she had gone to the Web site of the Election Department, she would know that she got more absentee ballots than Marcus Conklin did; so, if she’s contesting absentee ballots, she should have gone to the D.A.’s office and contested herself. 

 

But what did they do?  No, they filed a Contest, and then they sat back.  They said they would not cooperate with me.  Look at those letters.  I asked them at every imaginable opportunity.  This is an adversarial process.  “You show me your evidence, and I’ll show you mine, and let’s get to the truth so we can present it,” and they never would do that.  They had 76 days to do it.  We will present to you what we did in less than a day, in less time. 

 

Marcus Conklin hired me on December 17, almost a month after they had all this time to sort this all out.  We didn’t even hire the private investigator until January 3 and have him start to do it.  In less than a month, we replicated and found all this out, most of it, by just going to the Web site and finding it in the Election Department.  They could have had this, but they didn’t.

 

That’s why we are saying here, why this was frivolous.  This was without merit.  It was without merit on the day, but it was even more without merit a month later, or even two months later, or on January 31 when they withdrew it.  They could have shown me this.  Ms. Allen now says she’s never seen this.  Ms. Vitolo, they didn’t even give her this until yesterday.  They could have done all of this themselves (Exhibit E), and, in fact, they did.  They should have hired a lawyer who explained to them what a verification is, and if you swear that you know something to be true, or believe it to be true, you must know that.  Ms. Allen did not have the courage to do that, nor did Mr. Beers.  Of course, he doesn’t live in Assembly District No. 37.

 

Gary Horrocks was talking about 100 votes, he brags about 100 to 300, that’s in all of Clark County or, I think, in all of the state.  You heard Mr. Lomax say this is not a stable district.  He said Clark County is not stable; 20 percent of the people move every election cycle.  In the 8,000 votes cast in Assembly District No. 37, that would mean 1,800.  So this is not an easy thing to do.  It’s not an easy contest.  I would suggest to you that the best thing to do is to indeed think about what these contests are supposed to look like, give people more time, and then to have the responsible elected official come here and tell you. 

 

They could have asked Mr. Lomax.  Remember, he testified.  I said, “Did anyone come in here and give you the 160 names and ask you to check them out?”  He said, “Not like you have.”  In the space of one week, Mr. Lomax had 85 names, he had my confirmations, and we have provided them to you.

 

They could have done this.  That’s what we’re saying.  That’s the difference.  When you file something that’s groundless, or maybe you have to file it so quick you don’t know it at the time, but go do the due diligence.  Go find out if Horrocks is bragging.  Twelve votes.  Horrocks is only 12 votes.  I called the District Attorney’s office.  Remember, we had a new District Attorney on January 3.  I called Stewart Bell the week before, and then I called David Roger the week after.  I said, “I don’t want to interfere with your investigation, and I do not want to muck around where you are, but can you tell me when this is going to happen?”  They said, “Not till January, the end of January.”  I said, “How many is it?”  They said, “Five or six.”

 

I knew out of the 160, five or six.  I could tell they wrote it.  You can tell.  It says “Horrocks-related,” or they claim some of these are fraudulent because their address is near the bar, which doesn’t exactly make it. 

 

I would like to wrap up.  I promised to be brief, and I wasn’t, and I apologize for that.  I have two more exhibits to present to you.  The first is Exhibit I, and it is the compilation of the costs and the attorney’s fees that Mr. Conklin has regrettably incurred in this contest.  I would suggest to you that the costs that we’ve listed are exactly the kinds of costs that a court, both the federal and state court, under federal statute and state statute, those are the kinds of costs that would be completely recoverable by a prevailing party in any lawsuit.  While that does not bind you, that does certainly not bind you.  It certainly is exactly the kind of cost, and those are exactly the kinds of costs.  I would also point out to you that some of those costs are the costs that they should have incurred. 

 

For example, I had to pay Mr. Lomax’s department a lot of money to get the copies of the affirmations.  That would have been a cost they should have incurred.  I would not suggest that it’s Ms. Vitolo that should pay that, because it is apparent to me that she really is not the one behind this.  The people who should have had the courage, or the people who wanted to make sure that the votes in Assembly District No. 37 and the votes throughout Clark County are correct, should have been the ones to go get the affirmations.  If that was Mr. Beers, if that was Francis Allen, if that was Mr. Burdish, Mr. Harris, the Republican Party, the Democratic Party, whoever.  They could have done it, and they should have incurred each and every one of those costs.  They could have ordered them up.  I think if you order them up from a party, if you’re an official organ of the party, Mr. Lomax, his office, waives some of those fees. 

 

I would suggest to you that these are the costs we have listed: the deposition costs, the costs of acquiring those Election Department records.  All of those costs are properly transferable and would be collectable in any legal action in a court of law.

 

The next exhibit I would like to present to you, and I’m sorry he’s not here to get it, is what I called the Mueller collection.  This is Exhibit J.  These are the letters that Mr. Mueller provided or sent to me.  I would ask you, from what I can tell, from what the contestant has presented to you, the sole evidence of their Contest is what they filed on November 19.  Although there have been a lot of vague allusions to subsequent investigations and the like, they’ve never offered any proof of that. 

 

We continue to sit here today and simply talk about people who are suspicious voters, who are frauds, and who shouldn’t have voted, and casting aspersions on now, not just the 160, but also everybody who cast a vote in Assembly District 37.  So, this is their work product as of November 19 (Exhibit E).  This is their work product after November 19 (Exhibit F).  This is the sum total of their work product that we are able to present to you.  You will see that it is nothing more than seven letters to me, saying, “We will not cooperate, we won’t give it to you, we won’t talk to you.”  And, in fact, encouraging other people.

 

This, however, is the sum total of what we did (Exhibit E).  I would suggest to you that they could have done in a month and a half, or in the first month, exactly what we did in the second month and a half.  They had more than ample opportunity.  I was hired on December 17.  I contacted Ms. Vitolo on the night of December 30.  She was very cooperative and very nice.  I asked her if counsel represented her, and she would not disclose that to me one way or the other.  I wrote her a letter, and I wrote her a letter again the next week on January 6.  Then, and only then, did I get a phone call from Craig Mueller, who asked me to give him a day or two to read the documents.

 

I guess at that point, the only documents in the case were apparently the Statement of Contest his office drafted.  I would suggest to you that even if you were to consider different kinds of laws, different time deadlines and the like, you ought to consider the fact that I believe that you can find that this was meritless, it was frivolous, and it was frivolous as of the time that we started working.  The people that filed it, the people who assisted the person who filed it, and the person who put together Exhibit 3 in Exhibit F, those people who should be held responsible.  I think now, by virtue of the testimony you’ve heard today, you know who those people are.  I think one of them is one of your own members.  While it is laudable that Mr. Beers has gone to such great lengths and assisted all of this talent to uncover Assembly District 37’s “dirt,” the Horrocks “dirt” goes all over, but it is confined.  The one thing they didn’t do is take voter fraud where it’s supposed to go.  If there are only 10 people who are voting fraudulently, it goes to the District Attorney’s office, and you let them prosecute.

 

You’ve heard them all here today say that’s not the first thing they did.  The first thing that they did was tried to find somewhere that they could pick somebody off, and that’s not fair.  If they thought they were reasonable on November 19, they got somebody who had no idea, giving her less than 24 hours to look at a bunch of documents and getting her to sign them.  On that basis, that verification would not stand in a court of law.  It would support a proper lawsuit, and it certainly would.  If a lawyer signed that, as we must sign all of our pleadings, it would result in Rule 11 sanctions against a lawyer, because a lawyer must certify that whatever pleading they are filing is well grounded in law and, in fact, is making an argument that a change in the law should be made.  There is no such thing here, and these people put somebody else up to it.

 

On that basis, Mr. Conklin has incurred, at this point, almost $40,000 in costs, almost half of that because the other side would not cooperate.  They would not show us their evidence.  That, indeed, should be assessed against the other side, whoever they might be, in order to compensate him for having to defend against this frivolous suit.

 

Thank you very much for your time, your patience, and your consideration of these matters.

 

Chairwoman Giunchigliani:

Thank you very much.  I’d say your billing hasn’t gone down, because that’s about what I spent in a previous Contest.  It’s sad that it’s had to get to that point in order to defend them, but that’s the point of part of this hearing.

 

I need to ask Scott Wasserman, though, were you able to do anything regarding our staff costs and the impact on the Legislature and taxpayers?

 

Scott Wasserman:

Thank you, Madam Chair.  At the request of the Committee, I have prepared a summary of the amount of time that our Division has put into reviewing and preparing for the election contest hearings.  I will be happy to pass that out to everybody at this point (Exhibit K).

 

Chairwoman Giunchigliani:

We’ll put any extras out, attach it for the record, and put it on the table for the individuals in the audience.  It’s approximately $4,000, Mr. Speaker.  Please go ahead.

 

Speaker Perkins:

Thank you, Madam Chair.  Could I ask questions of Mr. Wasserman, based upon the body of law that exists?  If costs were sought from whom can they be sought?

 

Scott Wasserman:

Madam Chair.  I believe that this Committee, obviously, is the proper body to be looking at that issue.  And the answer of from whom they can be sought, I believe, would be the contestant in this particular matter.

 

Speaker Perkins:

If I might just ask in a more specific question?  So, only the contestant is liable for costs here and not any of the other parties who were involved?  What concerns me is that there are other folks that are involved here that seemed to have used Ms. Vitolo as a shield, and might have, under that specific interpretation, shield themselves from any financial liability if costs were sought.

 

Scott Wasserman:

I think the problem is that it’s proper to award costs to the party to the Contest, but when you’re looking at the people who were not parties of the Contest, we’d be looking at sanctioning them in a legislative action against an individual.  I’m not sure the Legislature has the authority to do that.

Chairwoman Giunchigliani:

Thank you.  Ms. Buckley.

 

Assemblywoman Buckley:

In my own mind, as I sit here listening today and listening previously, a few things are really apparent to me.  The first is that no one verified that 160 votes were fraudulent; the investigation was sloppy.  Just because someone is not home, their vote is not fraudulent.  I thought it was most interesting that Ms. Vitolo’s attorney said of their own contest, “If you look at this, everybody knew that this wasn’t enough.”  That’s interesting.

 

I think, maybe, if they would have sent a letter saying, “We know this is deficient.  We know there is not enough.  We’re not going to go forward if this is all we had.”  There wouldn’t be the attorney’s fees.  I just thought that was really amazing. 

 

The D.A. has not, and it’s questionable whether it is five or six or 20 votes, enough to change the outcome of this election.  The parties could have cooperated with Ms. England to say, even to send a letter saying, “We’re hoping and praying that the D.A. comes up with something.”  At least tell them that, even though, whether it’s five or 20, it still isn’t enough, and it’s still legally deficient.

 

There is a part of me that would like to assess costs because, even if Ms. Vitolo didn’t know what she was getting into, that’s how you make people think twice about getting involved in something when they know they need to be more careful about listening to people. 

 

But I think our statute is too unclear.  We may have the legal authority to do it, but I think the better way to go is to fix our statute and to come up with something like, maybe the Election Contest has to be filed within the 14 days, but that it has to be supplemented with all the evidence and thoughts and material that is to be provided to the full Assembly by something like December 15, and all of that information has to be given to, maybe, the Speaker and the Minority Leader of the House, and then allow the Speaker to provide that information to the person who won, and so they may know if it is completely frivolous, and that’s all the information available; maybe they won’t have to hire a lawyer.

 

You know, I recall Jan Evans in the contest in 1995.  She didn’t secure legal fees because it was the second time the contestant brought the same frivolous Contest.  She just relied on the Legislative Counsel Bureau to read a legal opinion, which shot the Contest completely down.  Maybe, if a person is forearmed with the information, then at least maybe it leads to a more orderly proceeding.  Is it fair if someone then, after that deadline, acquires something?  Maybe not, but on balance, maybe it’s a better, more workable process that will prevent these things from happening in the first place.

 

I would like to see us maybe request a bill draft, have Elections and Procedures hear testimony, work it up, talk about it along with the other elections bills that are coming on a wide variety of topics.  I would like to see us just move on.

 

I think we’re all unhappy about the way this went, but I think it’s time.  We have lots of issues before us, and I think it’s time we move on to them.  We figured out some good concepts, let you all in Elections and Procedures flesh them out, get some public input, make it workable, and we go on.

 

Chairwoman Giunchigliani:

Thank you very much.  Mr. Anderson?

 

Assemblyman Anderson:

It seems to me that my esteemed colleague, the Majority Leader, has already taken up the critical issue here:  That we expect that in jury trials there is going to be disclosure between both parties in a timely fashion, and enough notification prior to trial so that all the documentation can be in place.

 

It’s a real tragedy.  There isn’t anything more sacred, in a democratic society, than to utilize your franchise.  The absolute right of a democracy is to vote.  When we are trying to encourage that, I don’t want to do anything that at the same time disquiets somebody who might have information.  I don’t want them to stop from coming forward if there is going to be voter fraud or if they believe there is voter fraud, for fear that that is not in their best interest or that they are taking on some undue obligation. 

 

I feel sorry for this lady if she was duped into filing this.  It does, indeed, lead me to that conclusion, in part because she didn’t have full disclosure.  I don’t think any of us want to believe otherwise. 

 

I agree with Ms. Buckley that we need to get this behind us and try to straighten up our statutes.  I think that setting up a time line for disclosure would be in the best interests of all.

 

Chairwoman Giunchigliani:

Thank you very much.  Anybody else with any comments?  I will note that, just in case, yesterday, as the Chair of Elections, I did request an empty bill jacket in case we had any recommendations from the Committee.  That will be one we can massage through the Committee.  I think we have some good ideas on how to make sure that we don’t chill it, but also don’t encourage frivolousness or suspicion to become the matter of the day, especially when it is dealing with one person’s right to vote.

 

We do have the right to assess the costs.  I wish we could do it to the attorney, because I believe he advised his client improperly.  Maybe it is a bar issue, and I don’t mind following up on that myself. 

 

I think we need to move on in this session, and Mr. Conklin, please accept that I will pledge to assist you with paying that debt at some point in time when it is properly legal.  I do apologize because I have been in that same boat, so I recognize that you have to defend your name and the fact that you were properly elected.  I do appreciate, at least throughout all this, one good thing that came through is that both Mr. Beers and Ms. Allen at least never tied Mr. Conklin to doing any wrongdoing in this matter.  I do appreciate that, and I want to make sure that’s noted for the record.

 

Speaker Perkins:

Thank you, Madam Chair.  Perhaps it is an unpopular suggestion, but perhaps the Committee, as it deliberates this whole Election Contest issue, there may be some ability for the state to bear some costs in the due diligence in any Election Contest, either that of the contestee or the contestant, and, as much as I will probably be burned in effigy by a couple of the editorial boards tomorrow for the suggestion, at least at that point in time, if somebody does file what is deemed a frivolous Contest, then they will have to go back to those voters and explain why they wasted taxpayers’ dollars. Not sitting on the Committee, if the Committee so chose, it might be part of the discussion.

 

Chairwoman Giunchigliani:

Thank you, and what I might do is pull language that we looked at from the previous 1995 Legislative Session just to see what we looked at and ruled out as matters that we might want to reconsider, or just say, “No, it’s still not a good idea.”

 

I just asked Scott Wasserman to remind me, too, maybe there are ways, I am not in the legal field, but maybe for contests we can also segregate things that may be challenged based on a potential criminal activity, divert that as it properly was to the D.A., but that may not rise to the matter of a potential election fraud.  So maybe there might be some ways where we can delineate those types of things to some extent, at least in the discovery and trying to divert the issue to go to the right authority so it can be acted on in a timely manner. 

 

Yes, Mr. Griffin.

 

Assemblyman Griffin:

I think it’s important for the record to reflect as well that nobody has ever established or described what they thought the Grand Jury was going to rule on, or if a true bill is returned, what that would be returned on.  Whether or not it was Mr. Horrocks, assuming a true bill is returned, whether or not it’s Mr. Horrocks doing some inappropriate paperwork, creating fraud that way, or whether or not Mr. Horrocks overly influenced voters to vote one way or the other, whether or not Mr. Horrocks did any other act.

 

None of that was ever really established in this hearing.  All of those things, taking in different parts, may or may not have had any effect on a Contest of Election.  If he was improperly doing absentee ballots out of his bar, or whatever he was doing, unless he was actually voting for somebody else, which I’m not sure was ever established in this hearing, I don’t know that even a true bill from the Grand Jury would have made much of a difference in this proceeding.

 

Chairwoman Giunchigliani:

Thank you, and in closing, remember: every vote counts.  I’ll leave us with that note.  Thank you very much for your attention and for participating this evening.  Have a good night.  We are adjourned at 6:01 p.m.

 

 

 

RESPECTFULLY SUBMITTED:

 

 

                                                           

Cindy Clampitt

Committee Secretary

 

APPROVED BY:

 

 

 

                                                                                         

Assemblywoman Chris Giunchigliani, Chairman

 

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