Las Vegas Sun

March 29, 2024

Attorneys for lawmakers try to get redistricting order changed so they can bolster their election chances

UPDATED: Note information below from veteran Legislative Counsel Bureau chief Lorne Malkiewich, in which he says no lawmaker asked LCB to intervene. His take is this is just housekeeping, but Law of Unintended Consequences still has some concerned.

In a bizarre twist to what has been a Through the Looking Glass redistricting process, where Republicans were happy before they were sad and Democrats were sad before they were happy, Judge Todd Russell now seems inclined to make sure state lawmakers can put “re-elect” in their materials.

And that’s just the beginning after Legislative Counsel Brenda Erdoes and two other lawyers wrote to Russell on Tuesday asking for an addendum to the special master maps order and by Wednesday, the judge had an order prepared.

The letter, which is among the documents I have obtained and posted at right, is solely designed to enable legislators to be able to use the words “re-elect” and “incumbent” in their campaign materials –a compelling state interest, if ever there was one.

In order to do so, the existing districts would remain in force – districts the judge once said were now unconstitutional – until 2013, except for the purposes of filing. That is, lawmakers can’t say they want re-election to the new districts because they are…new. You can read the legal arguments to justify such nonsense at right.

So you can amend an order because lawmakers are worried about their re-election chances and keep intact districts once found to be constitutionally invalid because they didn't meet the one-man, one-vote standard, thus enabling the maps to be drawn? A new legal theory is born – the Russell Doctrine of Permissible Unconstitutionality.

If this sounds insane, that must be because you are not A. Not a legislator or B. Not Judge Todd Russell.

Russell, as you will see at right, already has an order prepared and gave the parties only five days to file objections. Seriously?

I also wonder: Why are tax dollars (i.e. the Legislative Counsel Bureau) being used to protect the campaign interests of elected or appointed officials? This isn’t about a public policy matter before the Gang of 63; it is designed to enhance their re-election chances.

I am also suspicious – call me crazy – that is happened so immaculately – letter received Tuesday, order done within 24 hours. Sounds to me as if conversations have been occurring, but maybe I am being too cynical.

So a judge receives a letter from folks not even party to the lawsuit and drafts an order based on that? Even for Nevada, this seems outlandish.

I am sure other legal issues are created by this rash decision-making, ones that could have far-reaching implications beyond this case, which was intact until now. My guess is I’ll find out what those implications are when the parties file objections.

UPDATED: Here's an explanation from the estimable Lorne Malkiewich, head of the Legislative Counsel Bureau, who says the intent was not political:

"We’ve been working with Judge Russell and the Special Masters (at the Judge’s direction) and noted several issues with doing this by judicial order rather than by bill. Most of them are found in existing statute (what to do with areas that are inadvertently unassigned) or in “back language” to the bills carrying out redistricting. Here is the bill from the 2001 special session. Look at sections 102 and following of this bill:

2001 bill

Basically, the new districts can’t take effect until election day, except for the purpose of filing for office. You then have the issue of mid-term Senators serving out their last 2 years in the new districts – you represent your current district until election day; then the newly elected people represent the districts to which they were elected and you start representing your district as revised (so the entire state is represented up to the election with the existing districts and then after it with the new ones). We need to continue the staggered terms for the Senate (the constitution says approximately half must be elected at each election), and though the masters did a good job of ensuring that those elected in 2010 still resided in their districts, we thought it should be clarified that they continue to serve the remainder of their term then stand for reelection in 2014 in their revised districts (representing those districts during the second half of their term), and the others are filled at the 2012 election.

The procedure for dealing with omitted areas is in current law, but it refers to districts created by statute. We proposed in the order that the same procedure be used for these districts, putting into the order the provisions of the statutes. The petition districts and Board of Education districts referred to the congressional districts established in particular statutes, though I think the intent is clear that these new congressional districts (established by court order rather than statute) will be the districts for those two other purposes as well. Finally, as for the term “re-elect” et al., (1) this also was previously specified in “back language” (section 105 of the 2001 bill) and (2) only a few were impacted (again, the masters, following the direction of the judge, generally allowed incumbents to retain their district numbers) which made not doing this unfair to those few.

We did not discuss this with leadership (though Brenda, Eileen and Kristin discussed it with me), as we thought this was just part of helping the court to reach a complete resolution of the issues. We asked Judge Russell if he would consider these clarifications and he kindly allowed it, but insisted (1) the parties get a chance to weigh in; and (2) the period for appeal not be extended.

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