RENO - A judge was considering Monday whether to allow a legal challenge to move forward aimed at blocking Nevada's five electoral votes from being cast next month for President Bush.
Washoe County District Judge Peter Breen was considering setting an evidentiary hearing to determine whether there are grounds to keep the votes from Bush - who carried Nevada by 21,500 votes - due to allegations of voter registration fraud and claims some voting machines malfunctioned.
He asked lawyers for both sides to return to court late Monday afternoon, when he was expected to rule on a motion to dismiss the case based in part on arguments that it is a moot point given that Bush won nationally by a margin of 34 electoral votes, 286-252.
The Nevada Supreme Court formally canvassed the vote last week and Secretary of State Dean Heller, a Republican, certified the results.
"The train has left the station and the results could not possibly change," said Rew Goodenow, a lawyer representing the five Republican electors scheduled to cast Nevada's votes Dec. 13.
"The winner in this election has been declared under the laws of the state of Nevada," he told Breen during a two-hour hearing Monday morning.
"Elections have one endearing and wonderful quality - the quality of finality. At some point the election has to be final. This one is, and the court ought not meddle with that," Goodenow said.
Breen acknowledged "the issue of mootness" was an important question.
"As the electoral vote stands, there is no way this court can affect the outcome," he said.
But Jeff Dickerson, a Reno lawyer representing those contesting the election results, said that even if Nevada's electoral votes don't impact the national election "it does make a difference to Nevada."
"President Bush is claiming he has a mandate and included in that is that the state of Nevada stood behind him. Even if Nevada's five electoral votes will not change the election, it does have an impact on whether Nevada is part of that mandate," Dickerson said.
'If there are disenfranchised voters who were illegally disenfranchised ... then those voters are not having their will voiced," he said.
Rick Newell Davis of Minden filed the formal contest of the election results earlier this month. He said thousands of Nevadans may have been denied the right to vote Nov. 2 because of registration problems and should still be allowed to cast ballots.
The challenge names the GOP electors as defendants - Joe Brown and Milton Schwartz of Las Vegas, John Marvel of Battle Mountain, Bev Willard of Carson City and Paul Willis of Pahrump.
Both major parties elect their party's electors at their state conventions prior to the election, and the winning party's electors are bound by state law to cast the electoral votes for the candidate who carried Nevada.
Bush won 418,690 votes in Nevada (50.5 percent) to Kerry's 397,190 (47.9 percent). Bush also narrowly won Nevada in 2000 after Democrat Bill Clinton had won twice before.
Davis said many Nevadans were deprived of the right to vote as a result of activities by a voter registration organization financed by the Republican National Committee.
Some former workers for Voter Outreach of America, operated by Sproul and Associates of Phoenix, who registered voters in Nevada and other battleground states have alleged they were told to register only Republicans and to ignore pro-Kerry people. Some said that completed Democratic registration forms were thrown out or ripped up.
The head of the company, Nathan Sproul - a former Christian Coalition activist and one-time executive director of the Arizona GOP - has denied any wrongdoing.
Goodenow said Monday there is no legal avenue under state law for Breen to reopen voting in Nevada.
Only the Nevada Legislature has the authority to set the time for statewide elections, he said. Therefore, if Breen grants the challenge, it likely would result only in a nullification of the election results in Nevada, Goodenow said.
"The potential result would be simply awful - that Nevada votes would not count in the electoral college," he said.
"Nevada would have no voice in this presidential election."