Las Vegas Sun

November 24, 2017

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Who rules Nevada’s elections? Court to decide.

Special Election

KSNV coverage of how candidates will be selected for special election to fill open House seat, June 28, 2011.

Kate Marshall

Kate Marshall

Mark Amodei

Mark Amodei

Ross Miller

Ross Miller

Dean Heller

Dean Heller

Seems there’s nothing like a deadline, or perhaps a U.S. House vacancy, to focus the mind.

That mantra apparently applied to both the Legislature — which passed a bare bones special election law eight years ago — and the secretary of state’s office, which never got around to writing regulations governing how a special election should be conducted.

Now that Nevada is facing its first U.S. House vacancy, the state Supreme Court will decide how the next representative from the 2nd Congressional District will be chosen.

It’s a political process that most justices appeared uncomfortable wading into, based on questions they asked during oral arguments Tuesday on the case that will decide the matter.

“Why shouldn’t we let the secretary of state make this decision?” Justice Mark Gibbons said. “Otherwise we’re going to have judges running elections, and that may not be a good idea.”

Nevada has never had to deal with a House vacancy, so policymakers had little incentive to address the issue.

Shortly after the 2001 terrorist attacks, Congress passed a law it hoped would expedite filling vacancies in the U.S. House should a calamity wipe out a significant number of representatives.

But the process for filling U.S. Sen. Dean Heller’s old seat has been anything but expedited in Nevada.

No primary election is allowed under state law, opening up the question of how candidates get onto the special election ballot.

At issue is whether the special election should be open to any qualified candidate — an interpretation decided by Secretary of State Ross Miller that would set up a free-for-all among the 30 candidates already filed to run.

Or, should the political parties be allowed to nominate candidates, the position argued by the Nevada Republican Party, which filed the lawsuit. In that scenario, former Nevada Republican Chairman Mark Amodei would compete against state Treasurer Kate Marshall, a Democrat.

In this case, it wasn’t a terrorist act that opened up the vacancy, rather a sex scandal that forced U.S. Sen. John Ensign to resign. Heller was appointed to Ensign’s seat, leaving Nevada’s sprawling 2nd District open.

With little fanfare following the passage of the federal law, the Nevada Legislature signed off on a state law governing special House elections.

In fact, the job of pushing the bill through the Legislature was given to a legislative intern. Lawmakers asked almost no questions during the bill’s hearing, other than one assemblyman wondering why the proposed bill didn’t designate the special election be on a Tuesday.

At one point, as justices debated whether it’s the job of the legislative and executive branches to decide how elections are run, Justice Jim Hardesty lamented that the legislative record “is void” on this particular topic.

Lawmakers never touched the issue of nominating candidates, leaving it instead to the regulatory process to flesh out the procedure for running the election. But the secretary of state — who, ironically, was Heller at the time — never did.

Nor did Miller.

“We’ve never had a special election before,” he told a reporter when asked why his office never wrote the regulations.

Instead, Miller issued the rules for the special election shortly after Heller was appointed to Ensign’s seat. He argues the law passed by the Legislature is “plain on its face.”

He also says he’s legally entitled to and, in all practicality, needs to have the leeway to interpret the state’s election law to conduct elections.

And that’s what much of the questioning focused on during oral arguments: How much deference should the court give to the secretary of state to figure out how to run elections?

Marc Elias, a lawyer for the Nevada Democratic Party, which sided with Miller, argued the court should only insert itself “when the process fails.” In this case, the process has yet to be tested.

“The election system cannot run without the secretary of state having the ability to fill in the gaps” left by the Legislature, Elias argued.

But Justice Jim Hardesty disagreed, saying state law is clear that elections are to be run according to formal regulations adopted a year before the election, “so everybody involved knows what’s going to happen.”

“It’s not a fluid election process run by an elected official,” he added.

So although the Legislature and the secretary of state failed to engage in the details, the court was asked to get right down to literally the letter of the law.

David O’Mara, a lawyer for the Republican Party, argued the law specifies “a candidate” from a major party is nominated to appear on the ballot.

“It doesn’t say candidates plural,” O’Mara argued. “That means only one candidate from each major party.”

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