Las Vegas Sun

October 2, 2023

Nevada’s special election laws not so clear, probably will result in lawsuit

Secretary of State Ross Miller really can’t do anything until Gov. Brian Sandoval inevitably appoints Rep. Dean Heller to John Ensign’s soon-to-be vacant U.S. Senate seat.

But after that happens on May 3, Miller will face an unprecedented situation that will leave him, just as inevitably, praised by some and criticized by others. History in other states shows that in these cases of first impressions, some unhappy would-be congressman will sue because the process isn’t what he or she would like.

In Nevada, the problem is simple: The law is, as it sometimes is, clear as mud. And in this case, NRS 304.230 seems to take precedence, but other statutes could come into play.

To wit, as one insider analyzed it:

1. Gov appoints Heller, has 7 days to call proclamation for special election, which must be 180 days or less, and on a Tuesday (NRS 304.230)

2. Special election is designated to which "no primary may be held" (NRS 304.240)

3. NRS 293.204 "If a special election is held pursuant to the provisions of this title, the Secretary of State shall prescribe the time during which a candidate must file a declaration or acceptance of candidacy."

4. NRS 293 lays out only a verification process as a declaration of candidacy, and explicitly states (NRS 293.165) that parties may only fill vacancies if it is for a nomination, not an election.

5. Hence, looks to me like anyone can file and this will be laid out by the SOS pursuant to 293.204

Here is where it is vague, and could be interpreted differently:

1. NRS 293.165 does lay out that a State CC can "fill a nomination"

2. NRS 293.204 states the SOS sets and accepts "declarations of candidacy"

3. Hence, it could be argued the SOS has the option to "accept a list of candidates" from major and minor parties" which are submitted by their committees

So you see Miller’s conundrum.

Democrats surely will urge him to pick the free-for-all option, increasing the chances one of their own could win or that Sharron Angle would, thus giving them a chance to take the seat next year.

Either way, whatever he does, the secretary of state likely will end up in court defending his decision.

As one wag put it: “Too bad they didn't do a better job of writing the special election statutes for the vacancy of a congressman, huh? But you know, the legislature is still in session. . . “

The special election law was added in 2003 – Assembly Bill 344, sponsored by future Speaker Richard Perkins.

I am posting excerpts from the minutes below:

March 27, 2003, Assembly Elections Committee:

Brian Woodson, Intern for Speaker Richard Perkins:

Thank you, Madam Chair, and members of the Committee. For the record, my name is Brian Woodson, senior at the University of Nevada, Las Vegas, and intern for Speaker Richard Perkins, Assemblyman from District No. 23 in Clark County.

I am very pleased to be here today on behalf of Speaker Perkins to present to you A.B. 344. Upon providing my testimony, because the main provisions in the original bill and the proposed amending bill differ rather considerably, I would ask the Committee to focus your attention upon the mock-up bill I have submitted to you (Exhibit Y). As I refer to A.B. 344, I will be referring specifically to the mock-up version I submitted to you.

[Brian Woodson continued.] As all of you may know, federal, state, and local governments are all too often criticized for taking a reactive approach to formulating public policy. A.B. 344, however, essentially provides a proactive approach to formulating policy relating to Nevada’s representation in the United States House of Representatives. Accordingly, this bill provides provisions and procedures to fill vacancies in Nevada’s seats within the House of Representatives. It specifically provides for two separate instances where vacancies may be created.

In the first instance, the bill imposes provisions and procedures for a special election to be held in the event of a natural vacancy upon the death, resignation, or declination of one of Nevada’s members of the United States House of Representatives.

To provide a little background, in 1915, as a result of the Seventeenth Amendment passed in 1913, and as a reactionary response to the sudden death of Senator George Nixon in 1912, the Nevada Legislature passed a law to specifically address vacancies within the office of United States Senator. Although a similar provision was included in Article 4, Section 34, of the 1864 Constitution of the State of Nevada, it was never formally drafted into the Nevada Revised Statutes until 1915.

Currently, Chapter 304, Section 30, of the Nevada Revised Statutes states, “In case of a vacancy in the office of United States Senator caused by death, resignation, or otherwise, the Governor may appoint some qualified person to fill the vacancy, who shall hold that office until the next general election and until his successor shall be elected and seated.” There have been five occasions when Nevada Governors have filled a vacancy by appointment in the office of United States Senator. However, in the 139 years of Nevada’s history as a state, there have been no vacancies among Nevada’s delegates in the United States House of Representatives.

Since 1985, at least 40 members of the House have died while in office; at least 30 members have resigned from office; and at least 30 special elections have been held to fill congressional vacancies within the House. Members within the House of Representatives pride themselves on the fact that no member of their House has ever been appointed to a seat. Every member to ever be seated to the House of Representatives has been elected. This reason is due to Article 1, Section 2 ofThe United States Constitution where it states, “When vacancies happen in the representation from any state, the executive authority thereof shall issue Writs of Election to fill the vacancies.”

[Brian Woodson continued.] Upon reviewing the original text of this bill pertaining only to the filling of House vacancies as a result of a catastrophe, it has come to my attention that because Nevada has never had a vacancy in the House, Nevada does not have any statute providing any procedures to fill such a vacancy. Should one of Nevada’s representatives within the House die in office, or resign from office, our Governor would currently do one of two things: He would either leave the seat vacant until the next general election, or he would issue a Writ of Election and then formulate the necessary procedures for a special election to be conducted.

Because no procedures have been formulated in Nevada’s statutes, this reactionary response could take some time, thereby prolonging the amount of time one of Nevada’s seats would remain vacant. This amended bill would save that time and officially authorize a special election to fill the natural vacancy. A special election would be held within a maximum of 180 days after the issuance of an election proclamation by the Governor. The election proclamation shall be issued no more than seven days after the date of the vacancy. If a general election happens to fall within the 180-day period, the special election may be consolidated into that next general election, thereby making the special election unnecessary.

In the second instance a vacancy may be created, this will provide provisions and procedures for a special election to be held in the event of a catastrophe. As you all may know, Speaker Perkins was selected to sit on the National Conference of State Legislatures, a task force on protecting democracy. Due to the tragic events of September 11, 2001, and the possibility of future attacks upon America, the task force suggests that each state create distinct provisions and procedures to call for special election for vacancies within the U.S. House of Representatives caused by catastrophe.

On September 11, 2001, passengers on United flight 93 heroically took matters into their own hands to prevent terrorists from striking a target in Washington, D.C. Although we do not know specifically of which target they were aiming, the White House and the Capitol were good possibilities. On that morning, it is believed the House Floor was quite busy. If that flight had taken off on time, instead of 41 minutes late, and that plane had headed for the Capitol, it is possible hundreds of members of Congress, along with their staff, could have been killed or severely injured. Therefore, it is critical each state create distinct provisions and procedures to call for special elections in an extremely timely manner so that Congress will be able to resume as soon as possible.

[Brian Woodson continued.] Within A.B. 344, a catastrophe is basically defined in two ways. First, a catastrophe occurs when at least 50 percent of Nevada’s representatives in the House are killed or severely injured to the point where they cannot perform their congressional duties. Second, a catastrophe occurs when a natural or manmade event causes at least 25 percent of the total number of seats in the U.S. House of Representatives, including representatives of Nevada, to become vacant. In either of these catastrophic instances, a special election shall fill the vacancies within a maximum of 90 days after the issuance of an election proclamation by the Governor. Again, the election proclamation must be issued within 7 days after the event. If the general election falls within that 90-day period, the special election may be consolidated into that general election, thereby making the special election unnecessary.

The deadlines imposed in this bill are set for the maximum amount of reasonable time for special elections to be held. I would ask the Committee to keep in mind that although this bill provides deadlines of the maximum amount of 180 days for natural vacancies and 90 days for vacancies of catastrophes, I would hope for the special elections to be held sooner than what the deadlines impose.

Therefore, I recommend another amendment to this bill, specifically to Section 6, lines 8 and 11, after the word “Tuesday,” to include the phrase, “as soon as practicable.” This will ensure the soon as possible date upon which the special elections could be held. It will also ensure the enforcement of the two deadlines in case special circumstances do not allow for the special elections to be held before the stated deadlines.

While Nevada remains one of the last states yet to provide procedures to fill a natural vacancy, Nevada could be one of the first states to provide procedures to fill vacancies as a result of a catastrophe. This bill is critically important in respect to sustaining our state’s representation in Congress, as well as sustaining the continuity of Congress as a whole.

In recognition of Nevada’s lack [of] procedures to fill a vacancy in the House of Representatives, and in recognition of the ongoing possibility of future terrorist attacks, I strongly urge this Committee to consider A.B. 344. Thank you very much for your time, and I’ll be happy to try and answer any questions that anybody may have.

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