Case No. CV04-02648

Dept. No. 6

TRANSCRIPT OF PROCEEDINGS

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21 MOTION TO RECONSIDER & CLARIFY WRIT OF MANDATE
EMERGENCY MOTION FOR CONTEMPT OF COURT

22 NOVEMBER 2, 2004, RENO, NEVADA

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24 Reported by: JULIE ANN KERNAN, CCR #427, CP, RPR
Computer-Aided Transcription

Page No. 1

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1 APPEARANCES:
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 The Petitioners: Mr & Mrs. Amberson
6 For the Respondent: LESLIE H. ADMIRAND, ESQ.
Deputy District Attorney
7 50 West Liberty Street
Reno, Nevada 89501
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For the Intervener: MCDONALD, CARANO, WILSON
9 Attorneys at Law
By: Pat Lundvall, Esq.
10 100 West Liberty Street
10th Floor
11 Reno, Nevada 89509
12 The Respondent: Daniel G. Burk
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1 INDEX
2 EXAMINATION DIRECT CROSS
3 WITNESS: DANIEL BURK
4 By The Court ............ 20
5 By Ms. Lundvall ................ 33
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1 RENO, NEVADA; TUESDAY, NOVEMBER 2, 2004; 4:45 P.M.
2 ---o0o---
3
4 THE COURT: This proceeding is in case
5 CV04-02648, Amberson versus Burk. The record should
6 reflect the Court has received a motion for
7 reconsideration, clarification, or in the alternative,
8 for stay pending appeal on behalf of the respondent and
9 also an emergency motion for contempt of court on behalf
10 of the petitioners. The earlier filed motion is a
11 motion for reconsideration, et al., and so Ms. Admirand,
12 you may proceed.
13 MS. ADMIRAND: Thank you, your Honor. Thank
14 you for hearing this matter this afternoon. When I
15 appeared in court earlier I just had a moment or so to
16 glance at the order. I hadn't received a copy of the
17 petition before we came into court on this hearing and
18 it appeared from the testimony that was offered during
19 the hearing that it related only to the Ambersons and
20 their ability to register and vote. What we're asking
21 this Court is that you limit your order to the
22 Ambersons.
23 This is not a class action. The other unknown
24 represented petitioners, we don't know who they are, we

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1 don't know how many of them there are, we don't know
2 the unique facts of their circumstance when they
3 registered, who they are, if they registered, who they
4 attempted to register with, do the days coincide.
5 More importantly, your Honor, we don't know if
6 there are any other factors that would disqualify them
7 from voting, say, their civil rights have not been
8 restored. All that information is very important and we
9 don't have it, your Honor, which has a -- could lead to
10 fraud. And there's a dangerous possibility that if we
11 were ordered to comply with the order as written right
12 now, that anyone coming in with the receipt can vote.
13 We'd have no way to check all their information.
14 THE COURT: Why don't you have that
15 information?
16 MS. ADMIRAND: Why don't we have the
17 information of who the representative petitioners are?
18 Because they aren't listed on the petition that we have.
19 Obviously, they know --
20 THE COURT: The order refers to persons who
21 are able to present to the polls a receipt --
22 MS. ADMIRAND: Right.
23 THE COURT: -- from a voter registration
24 form.

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1 MS. ADMIRAND: And that receipt could be
2 obtained anywhere. We have no way to verify as we did
3 with the testimony.
4 THE COURT: Well, let me ask you this. As
5 with me or you or any other voter, if I vote -- well,
6 just back up.
7 As I understand it from the representations
8 this morning, each voter registration form contains a
9 receipt; is that correct?
10 MS. ADMIRAND: Yes.
11 THE COURT: And each receipt contains a
12 number; is that correct?
13 MS. ADMIRAND: That's correct.
14 THE COURT: And there are no duplicate
15 numbers; is that correct?
16 MS. ADMIRAND: That's correct.
17 THE COURT: And so if I vote, and my number is
18 confirmed, nobody else can use that number; is that
19 correct?
20 MS. ADMIRAND: That's correct. If you vote
21 and you have a number but it doesn't mean -- you're
22 looking if a petition is returned to the Registrar's
23 office.
24 THE COURT: No, no, I'm getting to that. If I

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1 vote and I have a registration receipt, that number can
2 only be used that time, correct?
3 MS. ADMIRAND: Yes. Well, if you have the
4 receipt and it's turned in, is that what you're saying,
5 your Honor? I guess I'm not following you.
6 THE COURT: If I show up -- let's take Mr. And
7 Mrs. Amberson.
8 MS. ADMIRAND: Right.
9 THE COURT: We're all familiar with the facts
10 of that situation. And if, as I ordered some six and a
11 half hours ago, they appear to vote and are permitted to
12 vote using their registration receipt, there is no risk
13 of fraud because no other person can present that
14 number; is that correct?
15 MS. ADMIRAND: At that time that's correct,
16 but --
17 THE COURT: And that's same with me, with you,
18 with any other voter. Now, the only other issue
19 concerns whether or not the information on the voter
20 application is correct or if, in fact, some person has
21 made a misrepresentation or is otherwise disqualified to
22 vote. And we don't know that because the registration
23 forms were not, in many cases, returned to the
24 Registrar; is that correct?

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1 MS. ADMIRAND: The forms were not returned to
2 the Registrar.
3 THE COURT: Now, this morning who did I rule
4 had the responsibility for that?
5 MS. ADMIRAND: You ruled the Registrar of
6 Voters office.
7 THE COURT: Right.
8 MS. ADMIRAND: I, at that time, your Honor,
9 did not have Mr. Burk present with me because of the
10 short notice of calling the hearing.
11 THE COURT: Well, I was present and I was the
12 judge in the case and I entered a writ and that was
13 based upon the findings I made in open court, and I
14 don't know how much more clearly I could be. These are
15 the facts. The Registrar has created the registrar, the
16 voter application forms. The Registrar has numbered
17 each form. The Registrar has made the decision to place
18 these forms in the hands, not only of employees of the
19 Washoe County Registrar of Voters, but in the hands of
20 third parties who, because they're being paid money or
21 they're partisans in political campaigns or because of
22 simple public interest, are given the authority to then
23 set up tables, just as we discussed this morning, where
24 you may have an American flag, a sign that says register

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1 to vote here, and people fill out the forms and are
2 given a receipt. They are not merely apparent agents of
3 the Registrar, they are agents of the Registrar. In
4 fact, they're referred to on the form itself as an
5 agency. These people are not giving their ballots to a
6 third person saying gee, I hope you turn it in and if
7 you don't, I haven't voted. They are giving them in
8 truth, in fact, in law, to the Registrar. And if the
9 Registrar's agent, having provided that agent with
10 forms, with authority, with receipts, doesn't get them
11 back in the office, that's the Registrar's
12 responsibility.
13 MS. ADMIRAND: I have one piece of
14 information, your Honor, I'd ask you to reconsider in
15 that, that we did not have present this morning. When
16 you're saying these people are agents of the Registrar,
17 the Registrar is required by federal law to not impede
18 the efforts of these private organizations to register
19 to vote, so they have to provide them with registration
20 forms.
21 THE COURT: That's fine. That may be.
22 MS. ADMIRAND: And it's not the Registrar --
23 THE COURT: If I have a $25.00 fine I have to
24 pay to a court and you pay it to a clerk, and the clerk

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1 pockets the money, I've still paid the fine. If the
2 Registrar of Voters, because of federal law or a policy
3 decision or any other reason elects to place
4 registration forms in the hands of people registering
5 voters and giving them receipts, then that's fine,
6 that's his decision, I don't question that. But if that
7 person, for whatever reason, innocent or not, fails to
8 return the form to the office, it would be a ridiculous
9 outcome to say the citizen can't vote. This citizen has
10 done everything he or she can do to register, filled out
11 the official form, gotten a receipt, they're done.
12 MS. ADMIRAND: But we don't know that in all
13 these other circumstances.
14 THE COURT: The only reason you don't know
15 that is because your agent, the direct agent of the
16 Registrar of Voters, for whatever reason, didn't return
17 the form to the registrar.
18 MS. ADMIRAND: Well, we disagree with the
19 characterization of them being an agent of the
20 Registrar.
21 THE COURT: How are they anything else? What
22 are they if they're not an agent of the Registrar?
23 MS. ADMIRAND: They are a private organization
24 that is out there to register voters.

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1 THE COURT: I know that, but who do they
2 represent when they're registering people to vote?
3 They're not a voter, they're not a neighbor saying if
4 you fill out this form I'll drop it off to the
5 Registrar's office on my way to work. They're a person
6 who has been given these forms, each numbered and logged
7 by the Registrar of Voters, to obtain voter
8 registration.
9 MS. ADMIRAND: Pursuant to federal law, but I
10 would not characterize them as representing the
11 Registrar of Voters office.
12 THE COURT: In what sense don't they represent
13 the Registrar of Voters?
14 MS. ADMIRAND: This is not -- well, they're
15 not field registrars, for one thing. Law provides for
16 parties authorized --
17 THE COURT: Wait a minute. When you say
18 "they" --
19 MS. ADMIRAND: Right.
20 THE COURT: -- how does the voter know who
21 "they" are? How does the voter know, oh, I'm dealing
22 with a field registrar, versus an employee, versus
23 Mr. Burk himself, versus somebody from a campaign or
24 political party? The voter doesn't know any of that

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1 information, only the Registrar knows it, so -- because
2 let's say a person is a field registrar and fails to do
3 their duty, are you telling me that the responsibility
4 for that failure, instead of being with the Registrar
5 who gives them the applications, the receipts and the
6 numbered log, it should be with the voter --
7 MS. ADMIRAND: No, I'm not saying that.
8 THE COURT: -- who doesn't know any of this
9 information?
10 MS. ADMIRAND: I'm not saying that, your
11 Honor.
12 THE COURT: Okay.
13 MS. ADMIRAND: I'm saying that the Registrar's
14 office is mandated to provide these forms to these
15 private organizations, and they are not representatives
16 of the Registrar's office, they are separate entities
17 that are out there by federal law allowed to register
18 people to vote.
19 THE COURT: What does the Registrar do to
20 assure that registration forms distributed by the
21 Registrar to third parties with the numbers on them,
22 knowing voters who are given receipts, what does the
23 Registrar do to make sure that those forms are returned
24 to the Registrar?

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1 MS. ADMIRAND: That's the notice that's
2 provided on the application. That says that -- that
3 warns the person registering to vote to turn it in
4 themselves.
5 THE COURT: Take a look at the notice. "You
6 are urged to return this application to register to vote
7 to the county clerk registrar in person or by mail. If
8 you choose to give your completed application to another
9 person", then of course it says "that person fails to
10 deliver it, you will not be registered to vote".
11 MS. ADMIRAND: Right.
12 THE COURT: Do you see anything wrong with
13 that?
14 MS. ADMIRAND: I don't, your Honor.
15 THE COURT: The voters, just as Mr. And
16 Mrs. Amberson testified this morning, are not giving
17 their form to another person, they're giving it to the
18 Registrar, as you just told me a few moments ago. The
19 voter doesn't know if that pleasant person sitting
20 behind the table without identification is a registrar,
21 a deputy registrar, an employee of the county or a --
22 what is it, field registrar? That's ridiculous. That's
23 ridiculous.
24 Is your answer that the Registrar of Voters

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1 office does absolutely nothing to assure that the
2 registration forms with the numbers on them which he
3 gives to these field registrars are returned to his
4 office?
5 MS. ADMIRAND: To the field registrars?
6 THE COURT: Yes.
7 MS. ADMIRAND: I'd have to take testimony from
8 Mr. Burk on his procedures from their field registrars.
9 THE COURT: What did you do? You've placed
10 these -- and you look at the case this morning, these
11 people, one of whom was a life-long resident of Nevada,
12 they go to a Wal-Mart, as I recall it, near their home,
13 they see a table that says register to vote here with
14 American flag next to it. They fill out their
15 application, they get a receipt. Unbeknownst to them
16 their application is not turned in to whatever you want
17 to call them, the Registrar, or the real registrar, or
18 whatever, and so as time goes by, they call because they
19 haven't received their sample ballots. They're told
20 they're not registered to vote. They go to their
21 congressman, they go to their senator, they finally have
22 to file a lawsuit in the Nevada Supreme Court, and
23 you're telling me that it's their responsibility to
24 somehow know that the person they're dealing with is a

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1 field registrar as opposed to an employee as opposed to
2 a county clerk?
3 MS. ADMIRAND: That's not my point, your
4 Honor. My point is, we have two people that came into
5 court, that's their situation. They explained it to us,
6 they testified, we had all the facts, we had the dates,
7 we had the numbers, we could verify it. It lessens the
8 possibility of fraud, and that's the concern. With
9 these other unknown --
10 THE COURT: Just a moment.
11 MS. ADMIRAND: Yeah.
12 THE COURT: Was anything Mr. And Mrs. Amberson
13 said there was no evidence of that?
14 MS. ADMIRAND: No.
15 THE COURT: That there was no evidence of
16 their driver's license, there's no evidence of their
17 residence address, their party affiliation, nothing.
18 MS. ADMIRAND: We verified that the receipts
19 that they had were numbers that were issued --
20 THE COURT: Right.
21 MS. ADMIRAND: -- to the group, that's the
22 verification that we had.
23 THE COURT: And the issue I ruled on this
24 morning, I don't want to belabor this, I truly don't,

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1 but I hope I understood the issue. The issue is what
2 is the result under law if persons complete a voter
3 registration application that is a form created by the
4 Registrar of Voters in a process administered by the
5 Registrar of Voters and they are given a receipt with a
6 number on it and the person who takes that registration
7 does not duly return it to the Registrar's office?
8 And I hope I said, I thought I said that if
9 you analyze the risk of those three parties, the voter,
10 the Registrar, the third-party field representative,
11 it's obvious that the voter registrar should take the
12 risk and pay the price if the paperwork which he
13 distributed was not returned to him. And, therefore,
14 the result was that if these persons present their
15 numbered registration receipt, they are entitled to vote
16 today in this national and state and local election by
17 virtue of presentation of their numbered receipt. And
18 that's exactly what the writ says.
19 MS. ADMIRAND: Well, your Honor, what's to
20 stop -- and this is the concern with the fraud -- 50
21 people from going to a grocery store or a post office or
22 wherever else they have the registration forms with the
23 receipts and just tearing off a receipt and bringing it
24 in? We don't have the clear facts, though.

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1 THE COURT: What is the evidence that there is
2 registration forms with unperforated receipts on them in
3 trash cans in grocery stores all over northern Nevada?
4 MS. ADMIRAND: Well, there hasn't -- I can't
5 present evidence on that.
6 THE COURT: Of that.
7 MS. ADMIRAND: Well, not of that, but that
8 registration forms are present in those places. I don't
9 have any actual evidence today like a photograph, but I
10 can certainly --
11 THE COURT: Do you have any evidence --
12 MS. ADMIRAND: -- have Mr. Burk testify.
13 THE COURT: -- concerning the risk of fraud?
14 MS. ADMIRAND: That we --
15 THE COURT: Any -- remember we discussed a few
16 minutes ago, if a person votes and they have their
17 original receipt from the registration application, and
18 that number is recorded, no other person can vote using
19 that number, so where's the risk of fraud?
20 MS. ADMIRAND: Because that person may be
21 otherwise unqualified to vote.
22 THE COURT: Is that any different than any
23 human being showing up to the polls, and unbeknownst to
24 the election officials at the polls, being otherwise

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1 unqualified to vote?
2 MS. ADMIRAND: I think it --
3 THE COURT: Why is there a heightened risk
4 because of this?
5 MS. ADMIRAND: Because we don't have
6 additional information ahead of time, we don't have the
7 confirmed registration.
8 THE COURT: You had it, you just didn't see to
9 it that it got back to the Registrar's office so you
10 want to deny citizens of this country to vote, their
11 right to vote in federal, state and local elections.
12 MS. ADMIRAND: No, your Honor, it's not -- it
13 is not our position that the Registrar denied that form
14 getting back to the Registrar's office. It's the
15 independent group that has --
16 THE COURT: Right.
17 MS. ADMIRAND: -- federal right --
18 THE COURT: The group --
19 MS. ADMIRAND: -- to have these --
20 THE COURT: -- that you put the registration
21 forms and the receipts and the numbers in their hands.
22 MS. ADMIRAND: Because we are mandated to.
23 THE COURT: For whatever reasons you're
24 mandated to. Do you have -- I'd like to know exactly

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1 what the procedure is. Do those persons have to sign
2 anything when they take the forms?
3 MS. ADMIRAND: Yes.
4 THE COURT: What do they sign?
5 MS. ADMIRAND: Mr. Burk? Could we have
6 Mr. Burk sworn in?
7 THE COURT: Sure. Mr. Burk, please stand,
8 face the clerk, raise your right hand and be sworn as a
9 witness.
10
11 DANIEL BURK,
12 called as a witness by the Respondent herein,
13 being first duly sworn, was examined and
14 testified as follows:
15
16 THE COURT: Please take the witness stand and
17 be seated. And I want to remind everyone here that no
18 stay, modification or clarification in the court has
19 been entered at all and I expect and have expected since
20 the order was entered this morning that it will be
21 forthwith performed so there's no reason that that
22 performance need be delayed during this delay.
23 MS. ADMIRAND: Your Honor, could I respond to
24 that really briefly?

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1 THE COURT: No, you may not. Please proceed.
2 MS. ADMIRAND: I'm sorry, your Honor.
3 DIRECT EXAMINATION
4 BY MS. ADMIRAND:
5 Q. Mr. Burk?
6 A. Yes.
7 Q. Could you explain the process for dealing
8 with the --
9 MS. ADMIRAND: I'm sorry, your Honor, was it
10 the registration forms?
11 EXAMINATION
12 BY THE COURT:
13 Q. Mr. Burk, would you state your full name,
14 please?
15 A. Oh. Daniel Burk. I'm the Registrar of
16 Voters for Washoe County, your Honor.
17 Q. Mr. Burk, thank you. Mr. Burk, I know that
18 even in the best of circumstances this is a very
19 difficult and trying day for you so I'll try to expedite
20 this process. And I certainly don't mean by this
21 morning or otherwise to suggest anything other than
22 you're a very, very capable registrar. You and I have
23 worked together on other unhappy situations, so I'll try
24 not to take too much of your time.

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1 Obviously, what we're talking about here is
2 the distribution of voter registration applications to
3 third parties which, I guess, are called field
4 registrars. Would you simply explain that process and
5 how it works in your office, please?
6 A. Well, your Honor, we used to have a very high
7 level of accountability. You had to go through specific
8 training. You had to account for every form, you had to
9 get that information back to in a timely manner, and
10 that was the field registrar program. But after the
11 passage of the National Voter Registration Act in 1993,
12 they removed almost all the standards that had applied
13 and they said any organization, that is, local, county
14 clerk, or registrar, has a right in any way to impede
15 the right of any organization to ask for any forms that
16 they wish.
17 In the state of Nevada, if you ask for more
18 than five forms you have a right to actually get paid
19 and backed for the number of forms that organizations
20 are taking.
21 Q. So that provides a revenue source for the
22 registrar?
23 A. That's correct, your Honor.
24 Q. Do you know whether, for instance, in the

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1 Amberson case, that was an instance whether it was
2 compensation paid to the Registrar's office?
3 A. No, this was not, your Honor. Washoe County
4 always felt that it was just kind of a way of impeding
5 people to really have an opportunity to use the form so
6 we just decided never to charge them, but we always do
7 keep a record of the range that we issue to any
8 organization, so it's always if they ask for 400 forms,
9 we say what's the first form to the last form, so we
10 always do keep the record.
11 Q. Now, is there any distinction in your
12 protocol between the under 400 requesters and the over
13 400?
14 A. Generally, especially when we get low on
15 forms, always about a hundred, 200, 300, then we begin
16 to say well, we just need to keep a record of each group
17 that we do issue because, oftentimes, they'll ask for
18 initial 400 and then a week later they'll say well, we
19 need 200 more, so we just keep a record of each group
20 and --
21 Q. Now, as I understand it, each form is
22 numbered?
23 A. Yes, it is, your Honor, that's correct.
24 Q. For instance, the form that was marked in

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1 evidence is Exhibit 2 this morning but not admitted
2 says in red numerals and letters at the bottom,
3 application number BN094986. Would that be a typical
4 number?
5 A. Yes, sir, it would.
6 Q. Is there only one such number assigned to
7 each voter registration application for this county?
8 A. Yes, that's correct.
9 Q. And when the forms are distributed to these
10 third parties, does your office record the specific
11 voter registration application numbers of the forms
12 distributed?
13 A. When they are actually presented to our
14 office, yes, your Honor, we do that as part of our --
15 Q. When they're presented coming back or going
16 out?
17 A. At the point specific number is when it's
18 presented to us coming back in and it's actually
19 registered in our office and they even go ahead and
20 enter that data.
21 Q. So when they go out they're not recorded by
22 your office?
23 A. No, sir, they're not.
24 Q. Why not?

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1 A. Well, I don't think there's any clerk in the
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1 United States that does that. No one keeps a record of
2 the total because there's so many series of places, a
3 grocery store or, you know, every public library, every
4 --
5 Q. Are these forms sequentially numbered?
6 A. They are more -- the numbers change from time
7 to time, but for the most part, yes.
8 Q. So if somebody came in requesting an
9 application forms could the clerk write down, say, forms
10 BN094986 through BN095927 taken by such and such a
11 person?
12 A. Yes, your Honor, we do. And if I could just
13 add one point, in fact, the complainants' forms were in
14 the group that were issued to an organization called
15 Voters Outreach which, apparently, were the ones
16 responsible for the irresponsible behavior in regard to
17 their forms.
18 Q. What is that firm? Is that a firm that does
19 this for money?
20 A. Well, they were doing it for money but,
21 apparently, they were funded by the Republican National
22 Committee, that's our understanding, and they came here
23 to do registration, your Honor.
24 Q. I assume that the Democrats do this, too,

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1 don't they? I mean --
2 A. Well, I've never seen forms thrown away
3 before like this or whatever happened to the forms, but
4 yes, I think both parties do drives like this, do
5 efforts like this and what not.
6 Q. It's been my experience in life that no
7 political party has a corner on the treachery market --
8 A. I think that's true.
9 Q. -- but, in fact, when these forms leave the
10 office, the sequence of numbers is recorded, or isn't
11 it?
12 A. Not on an individual basis for each one we
13 put out.
14 Q. Right, not individual, but in --
15 A. But an organization, yes, it would. You're
16 right, your Honor.
17 Q. And then, of course, you register them, they
18 come back in.
19 A. Right. Yes, your Honor.
20 Q. What, if anything, does your office do to
21 avoid, for instance, the situation in this case? What
22 do you do to see to it that the forms are returned after
23 having been completed by both voters?
24 A. Generally if an organization asks for them,

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1 we've noticed that there's about a 50 percent drop-off
2 rate and they are not very good about returning them to
3 us. However, if there's a dispute about whether or not
4 a person was registered or not, now both the federal and
5 state law permit this provisional voting process because
6 we need to see was it a mistake on our part? Did we
7 lose some document that we should have had? Is there
8 some evidence that we have? And we spend about eight
9 days after the election going through all the files
10 trying to see if there's some evidence. We let the
11 voters present evidence.
12 Q. It's my understanding that the provisional
13 ballot process is available only as to federal races.
14 Is that true?
15 A. That's correct, in the state of Nevada, yes,
16 your Honor.
17 Q. Okay. Let me just ask you generally,
18 Mr. Burk, is there any other aspect of this process that
19 you think is something I need to know in this case?
20 A. Well, if I could just say one thing, your
21 Honor. We wish that we could have more accountability
22 in the system. We would like to have more -- we like it
23 with field registrars who we train because they have to
24 account for every single ballot we give them or every

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1 registration comes back, we have full accountability.
2 Ever since the NBRN 39, that it's just a crapshoot all
3 this so you can not impede in any way the right for an
4 organization to request to have their own registration
5 drive and so we -- the only accountability I said we
6 have is from the ballot registration forms that we give
7 them, but beyond that, we don't seem to be able to
8 control who did it, why they did it, how responsible
9 they were.
10 Q. Now, I'm assuming that any person that fills
11 out a ballot application could include false
12 information, right?
13 A. Yes, they could, your Honor.
14 Q. In the ordinary course are all ballot
15 applications reviewed by your office or some sort of
16 investigation done to determine if the information is
17 accurate?
18 A. In the event of the address, yes. And if
19 somebody's represented to us in person some
20 identification when they've come in, yes, we verify
21 that. But the law is changed also since 2003 and now
22 there's a provision in the law that says that if they
23 just handed, or if they send it in or somebody sent it
24 for them, then the first time they vote, whether they

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1 vote absentee or vote in person, they're required to
2 show identification so we have some sort of added level
3 of security.
4 Q. Obviously, your staff could not independently
5 verify everything on every voter application.
6 A. No, we couldn't, your Honor.
7 Q. And I'm not suggesting you hire a third party
8 to do that, but the verification is the identification
9 on other information given to the person taking the
10 application when the voter registers, right?
11 A. Yes, your Honor.
12 Q. Am I correct in saying that if I appear at a
13 voting poll with the original of my application stating
14 on it that -- stating on it the printed number, then no
15 one thereafter can use that application number?
16 A. That's exactly right, your Honor.
17 Q. Okay. What I'd like to know is your
18 assessment assuming, as we just discussed, there's
19 always a risk in every case that some voter information
20 may be inaccurate or willfully false. Do you see any
21 heightened risk if election officials are obliged to
22 permit people to vote if they show up and produce the
23 original of the application certificate?
24 A. Well, if they produce the original we have

29

1 some indication that it went through our process, we
2 time-stamp it in, we go ahead and record that
3 information when it comes in our office.
4 Q. No. I'm saying assuming they show up with
5 the application receipt, just as Mr. Amberson and
6 Mrs. Amberson were directed to do today, and so they
7 have the original receipt, your office has no
8 corresponding application because some firm failed,
9 again, willfully or negligently, to return it to you, is
10 there any heightened risk of voter fraud?
11 A. The only -- to the extent that we have
12 absolutely no evidence whatsoever, not talking about the
13 Ambersons now, no evidence whatsoever that any of these
14 forms had ever been produced since they could get them
15 readily in almost any location, they could tear off the
16 form at the bottom, never present it, never be
17 registered and say here's my registration, bottom of it,
18 here's my receipt I tore off and you have to let me vote
19 now because here it is and I can show that I have a
20 receipt.
21 Q. True. Do you think there's much likelihood
22 of that?
23 A. Well, with all the stuff we've seen today, I
24 don't know, your Honor.

30

1 Q. It's hard for me --
2 A. I don't think there's a great likelihood, no,
3 sir.
4 Q. It's hard for me to imagine people going
5 through the garbage at Raley's so they could find
6 somebody's original application which have thrown in the
7 garbage when they already voted, to wait a couple hours
8 in line at the polls so that they can make their voice
9 known in the family court race. I mean --
10 A. Right.
11 Q. -- do you really think it's a serious risk?
12 A. I don't think it's a risk for this election
13 because it's so late in the day and I don't think that
14 very many people would, but I think over the long haul
15 if we say anybody who could get one after registration,
16 right now it's closed, but they can go down to the
17 grocery store, they've got them on the rack there, they
18 could pull one out, come down and vote, they could do
19 that and we would have absolutely no argument.
20 Q. All the original applications?
21 A. Yes, absolutely.
22 Q. So even after the registration deadline, just
23 an indeterminate number of these things hanging around.
24 A. We have them at so many locations that would

31

1 be real difficult to round them all up right now, yes,
2 your Honor.
3 THE COURT: Okay. Thank you very much,
4 Mr. Burk. Counsel, you may inquire, but as Mr. Burk has
5 noted, there won't be any risk of anything if we keep
6 this hearing going long enough, the polls will be
7 closed, and so I want to conclude the hearing shortly.
8 I want Mr. Burk to be able to return to his official
9 duties as soon as he can. If you have just a question
10 or two each, you may proceed. Ms. Admirand.
11 MS. ADMIRAND: No, I have no further.
12 THE COURT: Thank you. Mr. Neumann.
13 MR. NEUMANN: Yes. Mr. Burk, in the event
14 that a person would come forth like the Ambersons did
15 with one of these receipts, there is a mechanism by
16 which you could at least have them file an affidavit or
17 a declaration under oath that they, in fact, did
18 register in good faith as the Ambersons have said, isn't
19 that true?
20 THE WITNESS: I think so, but I think they
21 would still be subject to a provisional ballot and
22 because we don't have any evidence to support that the
23 Ambersons are registered voters, so I think that's what
24 we do.

32

1 THE COURT: Here's an idea. Why not permit
2 them to just, not with the number on it, but have their
3 own number from their own receipt and then just have
4 them fill out the information on the top and present
5 identification?
6 THE WITNESS: It would be fine, but the last
7 day to register, your Honor, was 20 days before the
8 election and I'm not allowed to register anybody after
9 that point.
10 THE COURT: But the problem is, they did
11 register, presumably registered, and in this case
12 actually registered with people who didn't turn in the
13 forms. I just -- and again, it's not a democratic
14 thing, it's not a Republican thing. I love Barry
15 Goldwater and I love President Reagan, although I didn't
16 agree with them about much. I think those gentlemen
17 will turn over in their graves if they thought the
18 Republican party was sponsoring some process where you
19 keep the registrations from people and they throw away
20 the Democrat's, I really do, and I think a lot of great
21 American leaders that are Democrats would feel the same
22 way.
23 I just think if there's a risk, and there is,
24 that somebody could make a misrepresentation that is

33

1 far, far outweighed by the likelihood that somebody who
2 has, says at least they filled out an application, has
3 their original application receipt, should be permitted
4 to exercise their Constitutional franchise.
5 Mr. Neumann, are you finished?
6 MR. NEUMANN: Yes.
7 THE COURT: Ms. Lundvall.
8 CROSS-EXAMINATION
9 BY MS. LUNDVALL:
10 Q. Mr. Burk, my name is Pat Lundvall and I've
11 got a couple questions for you. The form that the Court
12 was asking you questions upon concerning this sequential
13 number, it contains a notice; is that correct?
14 A. Yes, it does, that's correct.
15 Q. And that then warns the applicant at that
16 time that if, in fact, that they're giving it to a third
17 party, other than a Registrar of Voters, then, that they
18 have, they bear the responsibility for that being turned
19 in; is that correct?
20 A. That's correct.
21 Q. Now, the notice that is contained on your
22 application, that is mandated by statute, is it not?
23 A. Yes.
24 Q. And it is the legislative scheme that has

34

1 been enacted by Nevada's legislature?
2 A. Yes, that's correct.
3 Q. And would you agree with me that that
4 legislative scheme is designed to ensure the uniform,
5 the orderly and the fair process of registration in also
6 voting in our election?
7 A. Yes, I think so.
8 Q. And, in fact, if you allow folks that may not
9 have timely registered to vote, do you go outside the
10 scope of the authority that has been granted you as the
11 Registrar of Voters?
12 A. I think it would not be within my power, yes.
13 Q. And, therefore, if someone did not come
14 forward individually with proof that, in fact, that they
15 fell within the time frames that had been devised by our
16 legislature for registration, then you would be allowing
17 them to register something that is a duty outside the
18 scope of your authority.
19 A. Yes, that's right.
20 Q. Now, you have identified that when you issue
21 these applications for registration, there is no process
22 by which these third parties have to bring back what has
23 not been used in their registration drives; is that
24 correct?

35

1 A. That's correct.
2 Q. And --
3 THE COURT: Would ask you that again? I'm
4 sorry I didn't understand it. Ask that again, please.
5 BY MS. LUNDVALL:
6 Q. The question, Mr. Burk, is this. The voter
7 application -- the voter registration applications, when
8 you issue these in bulk to any third party that requests
9 them, there is no process for your office, then, to have
10 those returned that are unused by that third party; is
11 that correct?
12 A. That's correct. We ask for them from time to
13 time, but we rarely get them back.
14 Q. And so to the extent that there is the
15 potential for many of these in blank to be roaming
16 around and to be available, then, for anyone to pick up
17 and to tear off the receipt; is that correct?
18 A. That's correct.
19 Q. And, in fact, any of these third parties
20 could have asked for these registrations in full, not
21 use them, and be presently distributing them as we speak
22 so that the person who has not timely registered or
23 timely filled out the application form could present
24 them to your election official, then, and seek the right

36

1 to vote?
2 A. That's our biggest fear, yes.
3 Q. And is there any way, sir, that you can
4 educate all of your election officials in your various
5 different polling places as to how they need to go about
6 taking the appropriate evidence, describing the
7 appropriate evidence and, therefore, making
8 determinations on that appropriate evidence as to who
9 may or may not fall within the confines of the Court's
10 order as to others that are similarly situated?
11 A. That would have to be done at my office. We
12 would be the only ones that would be able to do it. We
13 would not be able to do it at the individual polling
14 places throughout the county.
15 Q. And as we sit here today, after 5:00, is
16 there any way to get that communication, then, to all of
17 your officials in your respective polling places?
18 A. No, it would be too late to do that today.
19 Q. And one last question, sir. In addition to
20 filling out an application for registration, one has to
21 be qualified under the statute, then, by which to be
22 entitled to vote so that they can be a qualified
23 elector; is that correct?
24 A. That is correct.

37

1 Q. And to the extent that any of the officials
2 in your polling places, they would have to make
3 evidentiary determinations as to whether or not these
4 people are of the proper age, have the proper residency
5 requirements, have the proper presignatures, as well as
6 all the other qualifications, then, to enable them to be
7 a qualified voter in the state of Nevada?
8 A. Yes, as well as the addresses. We don't know
9 that the address exist, if they're out of our range,
10 that doesn't exist or anything else, so those are the
11 part of the process we go through extensive to determine
12 whether or not as a ballot registration when we do that.
13 Q. And is part of the legislative scheme also to
14 allow poll watchers and for there to be challenges,
15 then, to be made to someone based upon residency or
16 based upon their address?
17 A. The challenge process is limited to whether
18 or not a person appears to be in the poll book, whether
19 or not they are supposed to have ID and have none with
20 them and, therefore, are not qualified to vote, or that
21 they may have voted previously in an election and
22 someone believes they have or they simply are not
23 qualified in election to vote.
24 Q. And that challenge process, sir, then, that,

38

1 too, is part of the legislative scheme designed to
2 ensure the orderly, fair and uniform process of the
3 elections within the State of Nevada?
4 A. That's correct.
5 Q. And so to the extent that --
6 MR. NEUMANN: Your Honor, I object to this
7 continued line of questions.
8 THE COURT: Sustained. I said one or two
9 questions. It's been about 20. Thank you,
10 Ms. Lundvall.
11 Mr. Burk, let me ask you two more quick
12 questions. One is --
13 THE WITNESS: Yes, sir.
14 THE COURT: One is in the notice section we've
15 been talking about, it says if you choose to give your
16 complete application to another person to return to the
17 county, do you know how any person registering with a
18 third party sitting at a table would know that they
19 weren't registering with the Registrar?
20 THE WITNESS: I don't know that, your Honor,
21 but I can say that I think what happened, this outreach
22 group, I think these people genuinely believed they were
23 registering with the Registrar of Voters because the way
24 it was set up, right?

39

1 THE COURT: Right.
2 THE WITNESS: Yes, sir.
3 THE COURT: One other question. When did you
4 find out about my order today?
5 THE WITNESS: Late this afternoon. I was out
6 in the field and somebody started calling me saying you
7 have to respond to this or we have to see how this --
8 where it -- or you have to start implementing it and our
9 understanding was --
10 THE COURT: When did you comply with it?
11 THE WITNESS: We haven't yet because --
12 THE COURT: Why?
13 THE WITNESS: No one's come in with just a
14 receipt and tried to present that receipt in all that
15 time.
16 THE COURT: Mr. And Mrs. Amberson haven't
17 showed up?
18 THE WITNESS: No, they haven't. No, your
19 Honor, we thought they would.
20 MR. NEUMANN: They have as of 4:30 this
21 afternoon.
22 THE WITNESS: All right. Well, I was out in
23 the field then.
24 THE COURT: Thank you, Mr. Burk. And thank

40

1 you for your service to our community, to our Registrar
2 of Voters for coming here on very short notice.
3 THE WITNESS: All right, sir.
4 THE COURT: All right. Counsel, the motion
5 for contempt is denied. The motion for modification or
6 clarification of the Court's order is denied. I've made
7 it very, very clear this morning on the record, and I
8 hope as well in the order itself, that persons who
9 present to the voting officials for the purposes of this
10 election registration receipts bearing a number of the
11 registration application are entitled to vote in the
12 remaining hours of this election, and I will direct now
13 the Registrar to make that opportunity available at the
14 Registrar of Voter's office.
15 Mr. Burk has explained the practical problem
16 of trying to communicate to many polling places in our
17 county this result and it's just infeasible,
18 particularly this late in the day. It's also, of
19 course, going to be very difficult for anybody to notify
20 persons who would be entitled to vote under the Court's
21 order that they should do so at the Registrar of Voters
22 office, but in any event, that's the best we can do.
23 And, of course, Mr. Burk, I'm sure you
24 understand since the registration event is the time when

41

1 the Registrar or agents of the Registrar would obtain
2 information about a person's identity and address,
3 you're certainly free to obtain that information if such
4 persons vote.
5 I would also note that although there's been
6 no demonstration of any serious risk concerning voter
7 fraud, one of the features of our Nevada process for
8 challenge is just that, and nothing in the Court's
9 order, I believe, is inconsistent with the challenge
10 process. Thank you all for being available on short
11 notice. Ms. Admirand.
12 MS. ADMIRAND: Your Honor, I request a stay
13 from this Court pending appeal.
14 THE COURT: It is denied.
15 Court is in recess.
16 MS. LUNDVALL: Your Honor, may I be heard?
17 Your Honor, may I be heard? Your Honor, may I
18 be heard?
19 (Proceedings concluded.)
20 ---o0o---
21
22
23
24

42

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
6 certify:
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 4:45 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.
15 CV04-02648.
16 That the foregoing transcript, consisting of
17 pages numbered 1 through 42, 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.
24 __________________________
JULIE ANN KERNAN, CCR #427

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Back to transcript of first hearing earlier in the day

Analysis of the result of the Amberson case

Nevada voter files contest of election

Earlier stories
GOP Voter Suppression Continues

REFORMS NEEDED — Nevada voter registrars tossing provisional ballots
Associated Press 11-9-2004

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