JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
AND FOR THE COUNTY OF WASHOE
HONORABLE BRENT ADAMS, DISTRICT JUDGE
10 ERIC AMBERSON and TRACI )
11 AMBERSON, (qualified )
electors of the State of )
12 Nevada) and REPRESENTED )
PETITIONERS (all qualified )
13 electors of the State of
Nevada who have registered )
14 to vote but have been
denied the right to )
15 register to vote). )
17 DANIEL G. BURK, Washoe )
County Registrar of Voters, )
Case No. CV04-02648
TRANSCRIPT OF PROCEEDINGS
20 MOTION FOR PEREMPTORY WRIT OF MANDATE
NOVEMBER 2, 2004, RENO, NEVADA
23 Reported by: JULIE ANN KERNAN, CCR #427, CP, RPR
24 Computer-Aided Transcription
Page No. 1
2 For the Petitioners: PETER CHASE NEUMANN, ESQ.
136 Ridge Street
3 Reno, Nevada 89501
CHARLES E. SPRINGER, ESQ.
4 GORDON MEADE COWAN, ESQ.
5 For the Respondent: LESLIE H. ADMIRAND, ESQ.
Deputy District Attorney
6 50 West Liberty Street
Reno, Nevada 89501
For the Intervener: MCDONALD, CARANO, WILSON
8 Attorneys at Law
By: Pat Lundvall, Esq.
9 100 West Liberty Street
10 Reno, Nevada 89509
3 EXHIBITS MARKED ADMITTED
4 1 - Voter registration receipt ..... 28 ..... 28
5 2 - Sample Voter registration
Application .................... 28
1 RENO, NEVADA; TUESDAY, NOVEMBER 2, 2004; 12:25 P.M.
4 THE COURT: This is the time set for a hearing
5 on a petition for Peremptory Writ of Mandate. The
6 petitioners are present in court with their counsel,
7 Mr. Neumann. And the Registrar of Voters of County
8 Clerk are represented by Ms. Admirand of the District
9 Attorney's office.
10 The record should also reflect that by
11 direction of the chief judge and consent of the judges
12 of this district, Department 6 has been designated to
13 hear any emergency issues concerning the conduct of
14 elections in this district on this day.
15 And I would also note for the record that the
16 protocol the Court has followed is that in the event of
17 any issue raised on emergency basis by any person or
18 counsel, the administrative assistant of this department
19 has been directed to advise counsel for the County, and
20 also representatives of the Republican and Democratic
21 parties who may not have standing in the proceeding but
22 who, obviously, have an interest in the election process
23 in this general election.
24 Mr. Neumann, you may proceed.
1 MR. NEUMANN: Thank you, your Honor. And I'd
2 also like the record to note that in addition to I,
3 Charles E. Springer and Gordon Cowan are cocounsel for
5 THE COURT: Thank you. Mr. Springer,
6 Mr. Cowan, thank you. You may proceed.
7 MR. NEUMANN: Your Honor, we have with us
8 today Mr. And Mrs. Eric Amberson, and Eric and Traci
9 Amberson, and as the petition states, they, on October
10 2nd, registered to vote with a person that was clothed
11 in the -- in the clothing of a semi-official Registrar
12 of Voters pursuant to Nevada Revised Statutes that have
13 allowed private registrars of voters to act.
14 They were shopping at the Wal-Mart store on
15 Kietzke Lane here in Reno on October 2nd, saw this lady
16 that was manning or staffing this table in front of the
17 store, an American flag and a sign saying something
18 about register to vote here. They inquired and were
19 given applications to register to vote by this lady, and
20 told by her to fill them out, which they did right there
21 at the table, handed them back to her, were made to
22 understand that they were now -- they would be
23 automatically registered to vote by this process and
24 given these two receipts, which we actually have the
1 original receipts here in court, although a copy of
2 these two receipts is attached to the petition that the
3 Court has. And they were -- they then went about their
4 business, assuming that they were registered to vote.
5 They got nothing else except the receipts, but in the
6 mail -- am I right about this? You got in the mail --
7 MRS. AMBERSON: Nothing.
8 MR. AMBERSON: We didn't get anything in the
10 MR. NEUMANN: They were looking to get
11 something in the mail, and that's a sample ballot, and
12 when they didn't get this sample ballot they inquired of
13 the county voter registrar and were told by the county
14 voters registrar's office that there was no record of
15 them and that they would not be allowed to vote except
16 possibly provisionally. And by that time it was -- by
17 the time they inquired it was after the voter reg -- the
18 voter registration period had expired.
19 They filed on Thursday last a petition of the
20 Nevada Supreme Court and that Supreme Court denied the
21 petition yesterday. And I've got a copy of the -- I did
22 not attach it, but I have a copy of the order denying
23 the both, rehearing which we filed yesterday noon, and
24 also an order denying the petition. And if you'd like
1 to see those I can --
2 THE COURT: Yes, please. Ms. Admirand, have
3 you seen those?
4 MS. ADMIRAND: Yes, I have, your Honor.
5 THE COURT: Thank you.
6 MR. NEUMANN: They're very brief. And you'll
7 note that in the order denying the writ by the Supreme
8 Court they suggest that the proper place to file is the
9 district court. They are in court and --
10 THE COURT: Is it correct that a provisional
11 ballot if Mr. And Mrs. Amberson were permitted to mark a
12 provisional ballot that would only be for federal
13 offices; is that right?
14 MR. NEUMANN: That's correct. And it also is
15 true that it's unknown whether or not their provisional
16 ballots will be counted at all. Kind of anecdotally,
17 they tried to go to their precinct polling place nearest
18 to where they live which is out in the Vista area this
19 morning, and there was a long line there and
20 Mr. Amberson asked one of the polling officials, you
21 know, where the proper place for him to vote was and was
22 told I don't know, I don't know where you should go, so
23 he hasn't even been allowed to provisionally vote yet.
24 THE COURT: Do they know their precinct?
1 MR. AMBERSON: No, sir, nothing was sent to
2 us. Normally, I guess that is on your sample ballot
3 where you're supposed to go.
4 THE COURT: That's true.
5 MR. AMBERSON: And I showed up at the fire
6 house down the street from our house, it was the
7 closest, waited in line, got in and let people go ahead
8 of me because I figured it was going to be a
9 time-consuming process, and at the time when I asked
10 them, you know, I can't blame them, I'm not on their
11 book and they don't know who I am, and then I show them
12 my receipts, well, that doesn't show them anything.
13 They don't have any record of me anywhere, they don't --
14 I don't have the proper documentation to hand them to
15 say look, here I am, let me vote.
16 THE COURT: Thank you. Ms. Admirand.
17 MS. ADMIRAND: Your Honor, certainly I
18 apologize for my client not being present. I'm really
19 not quite sure what precinct he's at at this point in
20 time. He's been all over the place this morning, but we
21 will not be opposing the petition for the Writ of
22 Mandate. The position of the Registrar of Voters
23 office, basically, is that people who want to register
24 to vote take a chance in not having their registration
1 counted when they entrust delivering that registration
2 to other people.
3 THE COURT: Well then, why does the Registrar
4 permit other people to obtain registrations?
5 MS. ADMIRAND: It's by statute other people
6 can assist potential voters in registering to vote, and
7 there is a provision that is on the actual registration
8 application that states that you run the risk of your
9 registration not being counted if you allow somebody
10 else or you entrust somebody else to deliver your
11 application to the Registrar of Voters.
12 THE COURT: Is that true of as a matter of law
13 or is that just the policy of the Registrar of Voters?
14 MS. ADMIRAND: That's the policy of the
15 Registrar of Voters.
16 THE COURT: All right. And I take it the
17 affidavits of registration, as well as the receipts, are
18 official forms that are distributed to these third
19 parties by the Registrar; is that right?
20 MS. ADMIRAND: The forms originate in the
21 Registrar's office, yes.
22 THE COURT: And when they're distributed to
23 persons obtaining registrations, are the numbers
24 sequentially of those registration forms noted in the
1 Registrar of Voters office?
2 MS. ADMIRAND: Yes, they are. And I did
3 confirm with the Registrar prior to this hearing that he
4 did look at the numbers and they were issued to the
5 group that the applicants here are claiming to have
6 registered with on the date.
7 THE COURT: What is that group?
8 MR. NEUMANN: VOA.
9 MS. ADMIRAND: No, it wasn't.
10 MRS. AMBERSON: Sprawl & Associates.
11 MS. ADMIRAND: Sprawl & Associates.
12 THE COURT: Sprawl & Associates, that's a
13 private firm.
14 MR. AMBERSON: Can I interject?
15 THE COURT: Thank you. Mr. Amberson, go
17 MR. AMBERSON: I'm sorry. When we registered
18 to vote, our receipts didn't say anything about whether
19 there was a risk. This woman didn't tell us that they
20 were with another company.
21 THE COURT: Did you notice language that had
22 to that effect on the registration form?
23 MR. AMBERSON: Actually, yes, I did. I did
24 see the -- I believe it's up towards the top. I have
1 not seen it since I signed it and handed it the woman
2 so that was a couple three weeks ago.
3 MR. NEUMANN: You never got a copy.
4 MR. AMBERSON: I did not get a copy of that
5 and they didn't give me the receipt and the receipt
6 stuff doesn't give me any information saying that I
7 registered with a third party or a second party or
8 anything like that. It just says State of Nevada,
10 THE COURT: Thank you. Mr. --
11 MR. NEUMANN: Show you the actual receipts;
12 they might be a little more clear than the copy.
13 THE COURT: Did you, Mr. And Mrs. Amberson,
14 call the Registrar within ten days -- I'm sorry, ten
15 days following your registration when you didn't get a
16 Nevada voter registration ballot?
17 MR. AMBERSON: I called on the 18th only from
18 the standpoint that -- I'm sorry, am I supposed to
19 stand? Only from the standpoint that I didn't feel that
20 there was any problem when you go to vote, I fill out
21 the forms with what I believe was the State of Nevada,
22 they hand me a receipt, and the process continues.
23 I asked the woman at the counter, I said,
24 "Now, are these gonna count? Because it's the 2nd and I
1 know that the 12th is the deadline date?" Yes, we can
2 take care of that. I mean, she was very vague in that
3 regard. She never said well, we've got to submit them
4 because we're a private entity, anything like that.
5 THE COURT: And where did you do this? Was it
6 in Walgreen's, did you say?
7 MR. AMBERSON: No, it was in front of the
8 Wal-Mart on Kietzke.
9 THE COURT: I see.
10 MR. AMBERSON: We were going in to go
12 THE COURT: Thank you. Ms. Lundvall.
13 MS. LUNDVALL: Your Honor, Pat Lundvall with
14 McDonald, Carano, Wilson. And we make a motion to
15 intervene in this action on behalf of Alana Brady.
16 Alana Brady is a registered voter within this
17 jurisdiction and, in fact, that she has an interest
18 under NRCP 24 and would request the opportunity, then,
19 to be heard in this action.
20 I think that we can provide additional
21 clarification and information to the Court concerning
22 this process and also the requirements of the process if
23 this Court would permit.
24 THE COURT: What is Ms. Brady's entity?
1 MS. LUNDVALL: Miss Brady's standing to
2 intervene is that she is a registered voter and that
3 pursuant to NRS --
4 THE COURT: 293.287?
5 MS. LUNDVALL: I believe that's the case, your
7 THE COURT: I think that's right.
8 MS. LUNDVALL: I'm trying to find it quickly
9 and I apologize. Ms. Brady was allowed to intervene in
10 the supreme court action, as I understand it, and --
11 THE COURT: I think it is NRS 298.287, isn't
12 it, concerning standing for challenges?
13 MS. LUNDVALL: There you go, your Honor, yes.
14 And I apologize for not being able to have it more
15 readily at hand. And so, therefore, we would ask for
16 permission to intervene on behalf of Alana Brady and be
18 THE COURT: All right. Any objection,
20 MR. NEUMANN: Yes. And I think I must
21 challenge Ms. Lundvall's statement that as a voter Grady
22 was allowed to intervene in the supreme court action.
23 That's not my understanding.
24 MS. LUNDVALL: And your Honor, on this
1 particular point, I stated I believed that she was
2 allowed to intervene but, in fact, that I will stand
3 corrected by whatever the record would reflect
4 concerning that. I do not have anything with me here
5 today that affirmatively demonstrates that. I'm relying
6 upon an oral representation of someone else.
7 THE COURT: Well, in any event, what is the
8 objection to the motion to intervene?
9 MR. NEUMANN: That the voter, as I understand
10 Ms. Lundvall's argument, her person that she's
11 representing here that wants to intervene, I assume, is
12 a member of the Republican party. I'm not quite clear
13 if Ms. Lundvall's here representing the Republican party
14 or the person, Ms. Grady, but at any rate, Ms. Grady
15 would have, as I understand her argument, it's that her
16 vote is gonna be somehow diluted, the power of
17 Ms. Grady's vote will be diluted if the Court allows the
18 Ambersons to vote, and I don't think that's a legitimate
19 reason to grant standing to Ms. Grady to intervene.
20 THE COURT: Well, I don't know what the ground
21 of the challenge is. I'm looking at NRS 293.287,
22 Subsection 2, which provides that any person's right to
23 vote may be challenged by any registered voter upon, and
24 then I assume what would apply here is Subsection (a),
1 any of the grounds allowed for a challenge in NRS
2 293.303, so let me ask, first of all, Ms. Lundvall, who
3 are you representing this afternoon?
4 MS. LUNDVALL: I'm here on behalf of Alana
5 Brady, your Honor.
6 THE COURT: And do you represent to the Court
7 that she is a registered voter?
8 MS. LUNDVALL: Yes, your Honor.
9 THE COURT: Can you make an offer of proof as
10 to the ground for her challenge?
11 MS. LUNDVALL: Her challenge is that her right
12 to vote, as well as others similarly situated who have
13 properly registered within this state, their vote may be
14 diluted in the event that the Ambersons are allowed to
15 bypass, then, the established laws of this jurisdiction
16 and permit, then, this registration to be outside the
17 scope of those laws, then.
18 THE COURT: Well, I think that kind of begs
19 the question. In other words, if -- if the petitioners
20 were permitted to vote by virtue of a Writ of Mandate
21 directed to the Registrar of Voters, and they were, in
22 fact, not qualified, then it is true that the votes of
23 qualified electors would be diluted by unqualified
24 electors, even though it might be a tiny fraction. But
1 that would have only -- only occur if it was the case
2 that these voters are not qualified, so -- so what I
3 want to know, we don't have to make this a lengthy
4 argument because at this point I'm just considering the
5 request to intervene, but does Ms. -- is it Baker?
7 MS. LUNDVALL: Brady.
8 THE COURT: Ms. Brady, does Ms. Brady contend
9 that the Ambersons are unqualified to vote in this
11 MS. LUNDVALL: Yes, your Honor.
12 THE COURT: All right. The petition to
13 intervene is granted and perhaps we can expedite this
14 hearing in this way.
15 Mr. And Mrs. Amberson, would you stand,
16 please, face the clerk, raise your right hand and be
17 sworn as a witness?
18 (Witnesses sworn.)
19 THE COURT: Okay. You may be seated, Mr. And
20 Mrs. Amberson. Counsel may wish to ask you other
21 questions, but just to set the stage, let me ask, are
22 each of you petitioners in this action?
23 MRS. AMBERSON: Yes.
24 MR. AMBERSON: Yes.
1 THE COURT: And are each of you fully informed
2 of the contents of the petition?
3 MRS. AMBERSON: Yes.
4 MR. AMBERSON: Yes.
5 THE COURT: And are those allegations true?
6 MRS. AMBERSON: Yes.
7 MR. AMBERSON: Yes.
8 THE COURT: And insofar as they relate to your
9 own conduct concerning your efforts to register to vote
10 in Washoe County, Nevada, are those statements true?
11 MRS. AMBERSON: Yes.
12 MR. AMBERSON: Yes.
13 THE COURT: And you've heard the
14 representations today of your counsel, Mr. Neumann,
15 insofar as you have personal knowledge of the facts
16 stated by him. Are those facts true?
17 MRS. AMBERSON: Yes.
18 MR. AMBERSON: Yes.
19 THE COURT: All right. Thank you. Now,
20 counsel, let me first ask, do either of you wish to
21 examine Mr. And Mrs. Amberson?
22 MS. ADMIRAND: No, your Honor.
23 MS. LUNDVALL: Yes, your Honor.
24 THE COURT: Okay. You may call whomever you
2 MS. LUNDVALL: May I pose my questions to them
3 jointly --
4 THE COURT: Sure. That's fine.
5 MS. LUNDVALL: -- and then ask them each to
7 THE COURT: You may.
8 MS. LUNDVALL: Mr. And Mrs. Amberson, it's my
9 understanding that you completed your registration forms
10 on October 2nd of 2004; is that correct?
11 MR. AMBERSON: Yes, ma'am.
12 MRS. AMBERSON: Yes.
13 MS. LUNDVALL: And on the receipt that you
14 received, that receipt states if you do not receive a
15 Nevada voter registration card in the mail within ten
16 days, please call or visit your county election
17 department. You read that on the application receipt
18 that you brought to this court, did you?
19 MR. NEUMANN: Well, I object to the question,
20 your Honor, because that doesn't come within the statute
21 293.2303 for as a reason for challenge.
22 THE COURT: Well, the question --
23 MR. NEUMANN: I guess what we're doing is a
24 challenge to their right to vote.
1 THE COURT: Well, overruled. It was just a
2 question of whether or not they read that on the
3 receipt. Did you read that on the receipt?
4 MRS. AMBERSON: Yes.
5 MR. AMBERSON: Yes.
6 THE COURT: Next question.
7 MS. LUNDVALL: The time frame, then, ten days
8 after you had filled these forms out, then, would be
9 October 12th of 2004. Did you contact, then, your
10 county election department on or before October 12,
12 MRS. AMBERSON: No.
13 MR. AMBERSON: No. Can I address that?
14 THE COURT: You may. Go ahead.
15 MR. AMBERSON: You also have to understand
16 that as it's public knowledge and it was televised on
17 all the channels that the voter sample ballots were
18 delayed, they did not come out on time, they were held
19 up, so I assumed under that pretense that I was, along
20 with everyone else, that they had not been released
21 during that period of time.
22 MS. LUNDVALL: Sir, my question to you is a
23 little bit more specific, not whether or not the sample
24 ballots were going to --
1 MR. AMBERSON: No, I did not call.
2 MS. LUNDVALL: -- but my question is whether
3 you received a Nevada voter registration card in the
4 mail within ten days.
5 MR. AMBERSON: No, sir.
6 MRS. AMBERSON: I believe they were one in the
7 same. I believe that they would come together.
8 MS. LUNDVALL: And it's my understanding,
9 based upon your representations, Mr. Amberson, to the
10 Court, that you did see the notice on the application
11 that you filled out speaking to the fact of you were
12 authorizing someone else to send in, then, your voter
14 MR. AMBERSON: That's not what I said, no,
15 that is not what I said. I saw -- you have to
16 understand I was filling this thing out in a period of
17 20 minutes at a desk in front of a Wal-Mart. You don't
18 necessarily -- you're looking at the baseline, you're
19 asking this person questions, okay, am I filling this
20 out correctly, you're not looking at every line and
21 every little microscopic notation at the bottom. And
22 there was no representation that they were a third
23 party. I believed I was voting at the State of Nevada,
24 registering at the State of Nevada.
1 MS. LUNDVALL: And, sir, from this
2 perspective, let me ask you, Mrs. Amberson, do you echo
3 the statements of your husband?
4 MRS. AMBERSON: Pardon me?
5 MS. LUNDVALL: Do you echo the statements of
6 your husband?
7 MRS. AMBERSON: Yes, I do.
8 MS. LUNDVALL: On the voter registration form
9 that you filled out, I'm certain that you had to attest
10 and sign your name that you had read it and the
11 information was accurate and complete.
12 MR. AMBERSON: Yes, ma'am.
13 THE COURT: And on that voter registration
14 form, that form would have contained, pursuant to NRS
15 293.5235, the notation concerning that you were filling
16 it out and someone else was submitting it on your behalf
17 to the Registrar of Voters.
18 MRS. AMBERSON: No, I didn't believe that
19 somebody was submitting it on our behalf. We just heard
20 that the forms that we filled out were from the
21 Registrar's office. They were -- they were the proper
22 forms, therefore, we believe that they were from the
23 State of Nevada, and not a third party was doing this
24 for us. That's what we were led to believe when we saw
1 the desk in front, the flag, the sign, vote here,
2 Outreach America. We believe that it was the State of
3 Nevada, not Sprawling & Associates.
4 MS. LUNDVALL: Now, you learned, in fact, that
5 on October 18th, then, after the time frame that is
6 reflected, then, in your receipt, that you did not
7 receive a voter registration card and you contacted the
8 Registrar of Voters and they informed you that you were
9 not registered properly within Washoe County, correct?
10 MR. NEUMANN: Object to compound form of the
12 THE COURT: Sustained.
13 MRS. AMBERSON: They just said they didn't
14 have any --
15 MR. NEUMANN: No, don't answer.
16 MS. LUNDVALL: Once you contacted Registrar of
17 Voters on October 18th, you knew that, in fact, that you
18 were not registered to vote, correct?
19 MRS. AMBERSON: Right.
20 MR. AMBERSON: That's correct.
21 MS. LUNDVALL: And you waited until October
22 29th to file first a petition in Nevada Supreme Court;
23 is that correct?
24 MRS. AMBERSON: That's correct.
1 MR. AMBERSON: Is that correct? I don't know.
2 MR. NEUMANN: 28th. I believe it was the
4 MR. AMBERSON: I spent a week on phone calls.
5 I mean, I called every person that I could possibly
6 think of; Harry Reid's office, anybody that would
7 listen, and knowing that we were behind the eight ball
8 at that point, we did not have -- the time for
9 registration was over, I looked at it as what else can I
10 do? How much further can I take this so that we get our
11 right to vote? I did the right thing. I did the right
13 MS. LUNDVALL: Your petition was first filed
14 in front of Nevada Supreme Court, is that correct?
15 MR. AMBERSON: Yes.
16 MS. LUNDVALL: Your Honor, at this point in
17 time we have no further questions of Mr. And
18 Mrs. Amberson.
19 THE COURT: Thank you. You may.
20 MR. NEUMANN: May I also ask a question of
21 them? Are you both citizens of the United States?
22 MRS. AMBERSON: Yes, sir.
23 MR. AMBERSON: Yes, sir.
24 THE COURT: Are you residents in the County of
2 MR. AMBERSON: Yes, sir.
3 MRS. AMBERSON: Yes.
4 THE COURT: You been continuously residing in
5 Washoe County for a number of years?
6 MR. AMBERSON: Yes. I own a home here.
7 MRS. AMBERSON: Yes.
8 THE COURT: And are you employed in Washoe
10 MR. AMBERSON: Yes, sir.
11 THE COURT: And Ms. Amberson, are you employed
12 in the home?
13 MRS. AMBERSON: I'm a homemaker.
14 THE COURT: And you have what, two children?
15 MRS. AMBERSON: Two children.
16 THE COURT: Actually, are you native of the
17 State of Nevada?
18 MR. AMBERSON: Yes, sir.
19 THE COURT: Okay.
20 MR. NEUMANN: Have you ever been convicted of
21 a felony?
22 MR. AMBERSON: No.
23 THE COURT: Have you ever voted before, I mean
24 even --
1 MR. AMBERSON: No, I've not.
2 MR. NEUMANN: But you mean you haven't voted
3 in this election at all.
4 MR. AMBERSON: No.
5 MR. NEUMANN: Ms. Lundvall asked you if you
6 were aware that you were not registered to vote. Were
7 you aware that you were not registered to vote until the
9 MR. AMBERSON: No.
10 MR. NEUMANN: And only upon calling the
11 Registrar of Voters' office to inquire about your
12 missing absent -- or your sample ballots, is that when
13 you learned it?
14 MR. AMBERSON: That's correct.
15 MRS. AMBERSON: That's correct.
16 MR. NEUMANN: By that time the -- was the time
17 closed for registration?
18 MR. AMBERSON: Yes, sir.
19 MR. NEUMANN: Do you belong it a political
21 MRS. AMBERSON: Yes.
22 MR. AMBERSON: Yes.
23 THE COURT: What party do you belong to?
24 MRS. AMBERSON: Democratic.
1 MR. AMBERSON: Democratic.
2 MR. NEUMANN: And are you, indeed, the persons
3 that you claim to be, Eric --
4 MR. AMBERSON: Yes.
5 MR. NEUMANN: -- and Traci Amberson?
6 MRS. AMBERSON: Yes.
7 MR. NEUMANN: Thank you.
8 THE COURT: Mr. Amberson, you said there was a
9 sign at the table where you registered in front of
10 Wal-Mart. What was that?
11 MR. AMBERSON: It said register to vote here.
12 THE COURT: Okay.
13 MR. AMBERSON: Big sign. It was the bottom of
14 the table went all the way down to the ground.
15 THE COURT: I thought you stated there was
16 another sign about voting.
17 MR. AMBERSON: No, there was a flag register
18 to vote here and then there was clipboards with those --
19 the forms that were attached to these receipts and a
20 woman sitting there.
21 THE COURT: Was there any indication about who
22 the persons were working for who were taking the
23 applications from perspective voters, that is, by party
24 affiliation or the name of the agency or anything?
1 MR. AMBERSON: Not that I saw.
2 MRS. AMBERSON: Sir, had we known we wouldn't
3 have finished the forms, we wouldn't have filled them
4 out there.
5 THE COURT: Okay.
6 MRS. AMBERSON: I mean, we could have gone to
7 the post office which is down the street --
8 THE COURT: Sure.
9 MRS. AMBERSON: -- but we're there. This is
10 -- this is something we didn't expect. If it was, we
11 wouldn't have filled the forms out.
12 THE COURT: Okay. Thank you.
13 MS. LUNDVALL: Your Honor, may I have a short
14 recross, please?
15 THE COURT: Yes.
16 MS. LUNDVALL: And what I'd like to do is to
17 be able to hand a copy of a document to the Court and
18 then ask Mr. And Mrs. Amberson that if they have -- if
19 this is a copy of the voter registration application
20 that they filled out.
21 THE COURT: You may.
22 MS. LUNDVALL: May I approach?
23 THE COURT: You may. Did you want to mark
24 this as an exhibit?
1 MS. LUNDVALL: Yes, your Honor.
2 MR. NEUMANN: Do you have an extra copy for
4 MS. LUNDVALL: No, I don't.
5 THE COURT: The Court will take judicial
6 notice of the four registration receipts that Mr. And
7 Mrs. Amberson, exhibit to the petition, and I will have
8 the clerk return the originals to counsel and that,
9 then, Exhibit 1 -- well, maybe we'd have an easier
10 record. Do you have both those receipts in Xerox form
11 on one piece of paper?
12 MR. NEUMANN: Yes. They're attached to the
13 petition of Exhibit A in one form.
14 THE COURT: Let's make that as Exhibit 1 to
15 the proceeding. It is admitted. And this form which
16 has been handed to the Court by counsel will be Exhibit
17 2 and it is admitted. Subject to objection on
18 foundation, you may proceed.
19 (Exhibit 1 is marked and admitted.)
20 (Exhibit 2 is marked.)
21 MS. LUNDVALL: Mr. And Mrs. Amberson, I'm
22 going to hand you a sample voter registration
23 application for the State of Nevada that has been
24 prescribed by the Secretary of State, Dean Heller, and
1 my question to you first is, is this the voter
2 registration application that you filled out?
3 MRS. AMBERSON: I can't remember.
4 MR. AMBERSON: You know what? I would be
5 guessing to remember three weeks ago what --
6 MRS. AMBERSON: Every word I couldn't tell
8 MR. AMBERSON: -- every word and how it's
9 structured, I would be guessing. I can not tell you yes
10 or no.
11 MRS. AMBERSON: We put our name, we had as I
12 filled --
13 MR. AMBERSON: I don't see a receipt stub on
14 the end of it.
15 MS. LUNDVALL: Can I ask you to turn the
16 document over, sir? The addresses that are identified,
17 then, for the Nevada county clerks and registrars, are
18 any of those addresses at the place where, in fact, you
19 filled out your voter registration application?
20 MR. AMBERSON: No.
21 MS. LUNDVALL: No further questions, your
23 MR. AMBERSON: Wait a minute. Wait a minute.
24 No, this is not -- this can't be it.
1 THE COURT: All right. Thank you. You've
2 answered the question. Exhibit 2 is not admitted.
3 MR. AMBERSON: If you look at our receipt stub
4 and you look at that receipt stub, they're different.
5 THE COURT: That's all right. Go ahead.
6 MS. LUNDVALL: Your Honor, no further
7 questions of Mr. And Mrs. Amberson.
8 THE COURT: Thank you. Counsel wish to call
9 additional witnesses?
10 MR. NEUMANN: No, your Honor.
11 THE COURT: All right. Thank you. Do you
12 wish to argue?
13 MR. NEUMANN: Yes, your Honor.
14 THE COURT: Mr. Neumann.
15 MR. NEUMANN: I believe that we have stated --
16 the facts all are undisputed in this case. I don't
17 think there's any dispute about the material facts in
18 this case. I think the Court has jurisdiction to grant
19 the relief requested, which is to allow Mr. And
20 Mrs. Amberson to exercise their Constitutional right to
21 vote which is, obviously, one of the fundamental rights
22 that we as Americans have. They exercised good faith,
23 they were -- they're not at fault here. They did what
24 any reasonable person under the circumstances would do.
1 They saw the sign, register to vote here, a lady
2 staffing that sign, that table with a flag with
3 clipboards, with registration forms. They were not
4 given a copy of the registration form that they filled
5 out, but they were given a receipt, and although it's
6 true that the receipt on it says application number
7 CD13604 and 13603, if you do not receive a Nevada voter
8 registration card in the mail within 10 days, please
9 call or visit your county election department. Well,
10 that doesn't say that they're not registered, it just
11 says if you don't get a registration card, you -- please
12 call. It doesn't say you must call or --
13 THE COURT: Is there any statutory provision
14 that disqualifies a voter from registration if they
15 don't place the telephone call or visit their
16 registration office?
17 MR. NEUMANN: Absolutely none that I know of.
18 I'm sure Ms. Admirand would be the expert on that.
19 MS. ADMIRAND: That's correct, your Honor.
20 There is no provision.
21 THE COURT: Okay.
22 MR. NEUMANN: And they, as far as the
23 challenges that Ms. Lundvall has posed here in court,
24 they're not actually challenges that are under 293.303
1 of the statute, so I don't think those challenges are
2 valid and, in any event, I know the Court has granted
3 her standing here to intervene, but having done so, I
4 don't think she has carried the burden of proof that she
5 has to show cause why these folks should not be allowed
6 to vote under the circumstances. They did everything
7 that they thought they were supposed to do and by virtue
8 of the statute that authorizes these private registrars,
9 they have now become victims, and that's the duty of
10 this Court to undo that -- that unjustice and allow them
11 to cast their vote.
12 THE COURT: Thank you. Ms. Lundvall.
13 MS. LUNDVALL: Your Honor, we would cite to
14 the Court the Nevada Mining Association Versus Erdoes
15 case that is found at 117 Nevada, 531, specifically at
16 page 536. It is a decision that holds that a Writ of
17 Mandate will not issue to compel a public officer to
18 perform an act that the officer has no legal duty or
19 authority to perform.
20 The Writ of Mandate has been issued to Daniel
21 Burk, the Washoe County Registrar of Voters, and the
22 issue then becomes whether or not that officer has a
23 legal duty or authority to be able to perform what is
24 being requested.
1 Under NRS 293.560, the voter registration for
2 the November 2nd, 2004, General Election closed on
3 Tuesday, October 12th of 2004. Any of the applications
4 for Registrar to be received by the Registrar must be
5 received by the Registrar by the close of registration,
6 and that is found at Nevada Administrative Code 293435.
7 In this case, it is undisputed based upon the
8 evidence in front of this Court that there was no voter
9 registration application to the Registrar within the
10 time frame. Thus, absence any negligence or misfeasance
11 on the part of the Registrar, Mr. Burk, he had no duty
12 to register these individuals because they did not
13 timely submit, then, a voter registration.
14 It's important, I think, to reiterate that, in
15 fact, both the receipt that they received indicates that
16 if you do not receive a Nevada voter registration card
17 within ten days, please contact your county election
18 department, and they did not do so. Also, on the
19 application only that has been authorized to be used by
20 the Secretary of State who was charged with the
21 administrative of elections within the state of Nevada
22 does contain a notice, and that notice is found on that
23 application pursuant to NRS 293.5235. And that notice
24 states: You are urged to return your applications to
1 register to vote to the county clerk in person or by
2 mail. If you choose to give your completed application
3 to another person, to return to the county clerk on your
4 behalf, and the person fails to deliver the application
5 to the county clerk, you will not be registered to vote.
6 Please accept -- please retain the duplicate copy or
7 receipt from your application to register to vote.
8 Now, the acknowledgement has been here that it
9 was Sprawl & Associates or that these numbers fall
10 within Sprawl & Associates registration forms. They are
11 not someone who has been designated by the Registrar of
12 Voters as authorized to act and, therefore, this notice,
13 then, has applicability and, therefore, the
14 responsibility was upon Mr. And Mrs. Amberson to comply
15 in a timely basis to register to vote. And since that
16 they did not within the timely standpoint, Mr. Burk as
17 the Registrar of Voters, then, has no authority or power
18 to permit him to allow these votes to register outside
19 of the time lines established by our Nevada legislature
20 and, therefore, we would ask the Court to deny this
21 petition for the Peremptory Writ of Mandate.
22 THE COURT: Thank you.
23 MR. NEUMANN: May I respond, your Honor?
24 THE COURT: You may.
1 MR. NEUMANN: Under the statutes, I believe
2 that there is a legal duty for the Registrar of Voters
3 of this county to allow these people to vote. The
4 county by virtue of the statute empowered these private
5 registrars to accept these registrations. When these
6 people registered to vote, they did so talking to a
7 person who had at least apparent authority of the State
8 of Nevada. And by virtue of the statutory scheme, and
9 the process that was in place, that apparent authority
10 was -- was encouraged, and it's certainly not the fault
11 of the Ambersons that they are not registered with, in
12 the eyes of the voter registrar, but they complied with
13 what the statute contemplated and they filled out these
14 application papers to a person who had -- who is cloaked
15 with apparent authority as a private Registrar of Voters
16 and they didn't even know she was a private Registrar of
17 Voters, they assumed that she was working for the State
18 of Nevada.
19 And I think under both 293.287 and 293.5235,
20 the person to whom they submitted their application was,
21 in fact, in the eyes of the law, a public official
22 appointed by the Registrar, so the fact that that person
23 did not comply with the correct noticed provision that
24 counsel for the Intervener has cited here, that is
1 Section 7 of 293.5235, which is a different form of
2 notice than what was on the application that they -- or
3 the receipt that they filled out, that should not
4 prevent them from being allowed to vote here. I mean,
5 that should be -- that should be a -- maybe possibly a
6 criminal matter between the State of Nevada and this
7 private Registrar of Voters, but that's a different
8 matter completely and that should not be allowed to
9 prevent justice from being done here today.
10 THE COURT: Thank you. I think this petition
11 presents one question. That is, when persons who are
12 fully qualified to vote in a general election in this
13 county and state register by way of completing a voter
14 registration form distributed and prepared by the
15 County Registrar of Voters and placed by the Registrar
16 of Voters into a third party or third party private
17 business, whose representatives then obtain the voter
18 registration by collecting all the information from the
19 perspective voters, verifying it, verifying it with some
20 form of identification, taking a table marked register
21 to vote here with an American flag, and not otherwise
22 identifying themselves, and the table is placed in front
23 of a popular commercial enterprise in the voter's
24 neighborhood, and the voters are given a numbered
1 receipt which it has been confirmed does correspond to
2 one of the voter registration forms distributed by the
3 Registrar out to the third party, and then for whatever
4 reason, that form fails to arrive timely at the
5 Registrar of Voters office, should the qualified
6 electors be permitted to vote.
7 A simpler way of stating that question is, who
8 bears the risk or the responsibility of seeing to it
9 that the registration form reaches the Registrar's
10 office? The first candidate, of course, is the third
11 party who takes the registration information from the
12 perspective electors but, of course, if that party does
13 not perform the responsibility, as Mr. Neumann's pointed
14 out, there may be consequences, including criminal
15 consequences, but it, nevertheless, would deprive the
16 electors, Mr. And Mrs. Amberson, the right to vote.
17 The second candidate for accepting the risk or
18 taking the responsibility would be the prospective
19 electors. And yet, particularly in this situation,
20 where they assume they have registered, they have been
21 given a formal and accurate receipt and a voter
22 registration number which is Exhibit 1 to this
23 proceeding, they haven't seen any indicia at the table
24 where they registered or by the personnel seated at that
1 table that those persons represent any political party
2 or political interest group or anything other than the
3 Registrar of Voters, it would certainly be unreasonable
4 and, I think, unfair, to expect that the electors would
5 have the knowledge and appreciate the risk, that once
6 they filled out these approved forms and got their
7 receipt, they then had some duty to follow up.
8 It is true that the official ballot form
9 advises voters if they haven't received their voters
10 registration card in ten days to call the Registrar. It
11 certainly doesn't tell them, and it is not the law in
12 Nevada, that upon the failure to do so they're
14 The third candidate to accept the risk and
15 perform the responsibility is the Registrar of Voters.
16 The fact that third parties are given these ballot
17 applications at all is the result of a policy of the
18 Registrar. There's no requirement in any Nevada law or
19 statute or administrative code provision that the
20 Registrar of Voters permit third parties to distribute
21 ballot applications at all. It's a policy
22 adopted by this Registrar, or the county prints the
23 voter applications, distributes them to third parties,
24 records the number and sets the process in motion
1 whereby persons may register to vote through these
2 third parties.
3 I think it was Samuel Johnson who said nobody
4 but a blockhead ever work except for pay. I hope there
5 are a good many people who register others to vote out
6 of a simple civic duty, but I recognize that there are
7 false concerns which undertake this work for profit
8 and/or political parties or political interest groups
9 whose interest is not simply civic duty, but to achieve
10 a particular result at the election or to make money. I
11 think that it is consistent with the laws of Nevada and
12 with the strong public policy in favor of voting that if
13 the Registrar of Voters provides third party businesses
14 or political parties or individuals with the
15 authority apparent, and to some extent, actual authority
16 to obtain registrations by placing into their
17 hands registration applications, receipts, and
18 authorizing them to obtain qualification information
19 from voters, if that third party fails to follow through
20 by returning the applications to the Registrar, it
21 should be the Registrar's risk.
22 And overarching this entire discussion is
23 something I called to mind yesterday. We had a jury
24 verdict in this department yesterday afternoon. I
1 commended jurors for their public service and commented
2 on the importance of jury duty and voting as
3 responsibilities of citizenship and as privileges of
5 As a young man I recall watching on television
6 a famous United States Senator quoted the ancient
7 ex-party Milligan, in which is written these words. The
8 Constitution of the United States stands as a barrier
9 against all the winds that blow, no doctrine more
10 pernicious has ever been devised by the mind
11 of man than that any of its preservations can be set
12 aside during any exigency of government.
13 There is nothing in the record of this
14 proceeding, absolutely nothing that approaches a
15 justification for government to deprive these
16 petitioners of their cherished rights under the
17 Constitution of the United States and of the State of
18 Nevada to vote, particularly in a General Election at
19 which Federal, as well as State and Local offices and
20 ballot questions are at issue.
21 It is true that a petition of mandate or a
22 Writ of Mandate should never issue to compel a public
23 official to act unless there is a legal duty or
24 authority to perform that act. I can think of no more
1 important legal duty of the Registrar of Voters than to
2 act consistently with the vindication of the voting
3 rights of qualified electors and, therefore, the
4 petition is granted.
5 And the clerk will enter in open court the
6 Peremptory Writ of Mandate.
7 MS. LUNDVALL: Your Honor, on behalf of the
8 Intervener, Alana Brady, we would ask for a stay of the
9 Court's mandate to the Registrar, Dan Burk, for the
10 opportunity to be able to take an appeal to Nevada
11 Supreme Court.
12 THE COURT: Thank you. The request for a stay
13 is denied. Court is in recess.
14 (Proceedings concluded.)
1 STATE OF NEVADA )
2 COUNTY OF WASHOE)
3 I, JULIE ANN KERNAN, official reporter of
4 the Second Judicial District Court of the State of
5 Nevada, in and for the County of Washoe, do hereby
7 That as such reporter I was present in
8 Department No. 6 of the above court on Tuesday,
9 November 2, 2004, at the hour of 12:25 p.m. of said day,
10 and I then and there took verbatim stenotype notes of
11 the proceedings had and testimony given therein upon the
12 Peremptory Writ of Mandate of the case of ERIC AMBERSON
13 and TRACI AMBERSON, et al., Petitioners, vs. DANIEL G.
14 BURK, Washoe County Registrar, Respondent, Case No.
16 That the foregoing transcript, consisting of
17 pages numbered 1 through 41, both inclusive, is a full,
18 true and correct transcript of my said stenotype notes,
19 so taken as aforesaid, and is a full, true and correct
20 statement of the proceedings had and testimony given
21 upon the Writ of Mandate of the above-entitled action to
22 the best of my knowledge, skill and ability.
23 DATED: At Reno, Nevada, this 3rd day of November, 2004.
JULIE ANN KERNAN, CCR #427