Thursday, July 9, 2009 | midnight
The 2009 Legislature unanimously passed Senate Bill 156, which overturns a ruling Secretary of State Ross Miller made last year that required people signing recall petitions to have voted in the election in which the targeted official was elected. Responding to the issue are City Councilwoman Linda Strickland, who with Councilman Travis Chandler was a target of a recall movement last year affected by the ruling, and resident Ed Waymire, one of the people who started the recall movement.
Pro by Ed Waymire
The recall effort is very much alive, and is, in fact, an ongoing process resulting from the Secretary of State’s ill-advised interpretation of the Nevada State Constitution Article 2 Section 9. The real question the media should be asking is, What prompted the secretary of state to offer his interpretation in the first place?
It is agreed that it is very difficult to understand Nevada Constitution Article 2 Section 9 as written; however an attempt to simplify the meaning of the article by the secretary of state, although with the best of intentions in mind, has proved to be troublesome for us all. Legal action under way against the secretary of state will probably result in the most simple decision ever made by a court of law.
The secretary of state’s interpretation clearly disenfranchised many Boulder City citizens by creating two classes of voters: those that had voted in the election that elected Linda Strickland and Travis Chandler and those that had not voted in that election. Now, if you had not been of voting age at the time of the first election, but were at the time of the recall effort, you were not allowed to exercise your fundamental right to vote guaranteed by the U.S. Constitution.
The Nevada State Legislative Counsel Bureau drafted a memo indicating that the secretary of state had perhaps used poor judgment in his interpretation, stating that the creation of two classes of voters is directly opposed to the U.S. Constitution by denying citizens a fundamental right to vote, and that “If there are conflicting statutes based on a state’s constitution and the federal Constitution, the one that allows for the most expansive understanding and enjoyment of constitutional principles must be relied upon.” In this case, that is the federal Constitution.
The concept was totally supported by Rebecca Gasca, public advocate for the American Civil Liberties Union of Nevada, during the legislative hearing regarding SB156 when she said, “The position of the ACLU is that voting is the purest constitutional right we are afforded. When that right is denied due to circumstances beyond voters’ control and denying them the opportunity to make their choices heard through democratic fundamental principles and procedures, it is unconstitutional.”
During those same hearings, both Council members Strickland and Chandler testified in favor of the secretary of state’s interpretation, with Chandler stating that “voting on a recall is not a fundamental right or it would have been in the Constitution from the beginning.” And Strickland stated, “I disagree with the Legislative Counsel Bureau’s opinion. Signing a recall petition is not a fundamental right.”
SB156 passed both houses with a unanimous vote and was promptly signed by the governor.
Perhaps the most profound statement during the SB156 hearings was made by Sen. Valerie Wiener: “The dream would be for every person to register and vote in every election. Many people are registered but do not vote in every election. Some people are inspired to get involved whether by an issue, a candidate or a recall. We would disenfranchise them if they were inspired to participate in the process, and they were not allowed to do so.”
Ed Waymire, one of the recall petitioners, can be reached via e-mail at [email protected].
Con by Linda Strickland
The 15th Amendment to the U.S. Constitution states: “The right of citizens ... to vote shall not be denied ... on account of race, color, or previous condition of servitude.”
The right to recall is, however, a state-created right subject to all of the restrictions and limitations that a state wishes to place upon it.
Our recall provisions are contained in Article 2, Section 9 of the Nevada Constitution. Before 1970, Article 2 Section 9 allowed any “qualified elector” to sign a recall petition. However, in 1970 the voters of this state amended our state Constitution to restrict recall petition signers to those who “actually voted” in the election in which the public officer was elected.
By doing so, our voters mandated that only those who choose to exercise their right to vote for a public official can remove that public official. That restriction is still the law of this state.
Article 2 Section 9 also authorizes the Legislature to enact legislation to aid “operation of [the recall] section.”
To accomplish this, the Legislature enacted Nevada Revised Statutes Chapter 306 to provide guidelines in the administration of the Article, guidelines which do not conflict with its provisions.
Our Supreme Court has said: “Chapter 306 ... fills in the details of how the recall right operates because ‘not every detail can be provided for or every problem anticipated in a constitution.’”
Though the voters voted to limit those who can sign a recall petition, our Legislature decided this session to unilaterally change the recall provisions to remove the signer limitation.
To accomplish this without requiring voter input, the Legislature took the deceptive position that Article 2 Section 9 is vague and requires clarification. It passed Senate Bill 156, amending one of the procedural guidelines contained in NRS Chapter 306 to “clarify” that any registered voter can sign a recall petition, regardless of whether that voter cast a ballot in the election in which the public official was elected.
By doing this, our Legislature created a statute which is in direct conflict with the clear language of our state Constitution, and more importantly, a statute which unequivocally invalidates the will of the people expressed through passage of the 1970 Amendment.
It can be debated whether the 1970 recall signer limitation is good state practice. That is not, however, the issue. The issue presented is whether the Legislature exceeded its authority and betrayed the will of the people in passing a bill which is in direct conflict with the Nevada Constitution, and to that end the answer is clear: YES.
The voters of this State mandated that the “actually voted” requirement be included in our state Constitution recall provisions. To return to pre-1970 recall provisions, the Legislature should have asked the voters to approve a Constitutional Amendment to delete the “actually voted” requirement. As it now stands we have a statute which is arguably unconstitutional and a Legislature which is indifferent to the voters of this state.
Linda Strickland was elected to the City Council in 2007. She can be reached at 293-7698 or 493-8076 or [email protected].