Las Vegas Sun

November 21, 2017

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Jon Ralston:

That’s a fine mess you’ve left, Secretary Heller

If only Secretary of State Dean Heller had written regulations for a House special election, we wouldn’t have such controversy over filling Sen. Dean Heller’s seat.

But Heller did not, as a 2003 law instructed, write any rules, so now we have chaos, thanks to a Carson City judge’s stunning decision last week that overturned the guidelines proposed by Heller’s successor, Ross Miller. And reading through the 97-page transcript of Judge Todd Russell’s decision reveals a jurist who seemed immediately predisposed to the GOP argument that party central committees should nominate and hostile to the Democratic Party claim that it should be, as Miller calls it, a “ballot royale.”

Followed up by a contradictory order — — Russell telegraphed from the beginning where he was going, later trying to tamp down any speculation while having a colloquy with Deputy Attorney General Kevin Benson by urging him not to conclude “anything by my questions.”

Or, perhaps, by the judge’s inflammatory assertion that “irreparable harm” would be caused to the GOP if the judge did not side with them, which seemed to do little more than give new first and last names to The Woman The Republicans Fear Most, who hereafter should be referred to in all documents simply as Irreparable Harm.

The politics here are easy: The Democrats want a free-for-all because it could give them a chance to take the seat, if only until November 2012. Worst case, they figure, it gives a leg up to Sharron Angle, despised by many Republicans for not erasing Harry Reid from the political map. The Republicans want to prevent Angle from winning the seat, thus making it ever-vulnerable, or allowing the Democrats a shot at a district that a Republican has occupied since it was created 30 years ago.

The legal issues are slightly more complex, but still reducible: The Republicans say Miller overstepped his authority by calling for a ballot royale and that parties have a right to nominate. Democrats say the secretary of state, as the chief elections officer, is granted deference in the law and … it depends on what the definition of “nominate” is.

Beyond all the legal folderol, though, high-powered Democratic lawyer Marc Elias made a resonating point, which is “elections work in Nevada, they work throughout the country by having certain principles which are plain and which are clear, and then allowing (election officials) the opportunity to fill in those gaps.”

That is, if that principle is undermined, then courts will run elections, not those delegated by law to do so.

Russell at first agreed with the GOP lawyers that the statute is clear — that is, that a regular party nominating process should take place — but then flat-out said it is “ambiguous.” (If only Secretary Heller had written those regs …)

The Republican arguments, swallowed by Russell, that Miller somehow exceeded his statutory duty and tried to make new law, do not hold water. As Elias said in his oral argument, the clearest part of this statute is the section that reads: “A candidate of a major political party is nominated by filing a declaration or acceptance of candidacy within the time prescribed by the Secretary of State …” As the D.C. lawyer put it, that “is plain, and it is clear.”

That is, a candidate can nominate himself or herself by filing a petition. There is no ambiguity. A free-for-all. A ballot royale. The details are up to the chief elections officer. (Thanks a lot, Secretary Heller.)

The GOP argument is not that Republican and Democratic Party voters should nominate a candidate but that central committees, small bands of partisans, are legitimate vetting crucibles. Comparing those venues to regular primary electorates is like comparing a psychotherapist’s waiting room to an insane asylum.

I freely acknowledge my bias: As a journalist — and sometime sadist — I would prefer to see Angle in the contest as well as a whole host of contenders and pretenders. It would be chaotic, crazy and … fun. You know, as elections are meant to be in America. But the law is with me, too.

Russell, as he said during the hearing, knew the case would be appealed to the Supreme Court, as did the parties. The Democrats would have preferred to be going to affirm rather than reverse. But the justices are not averse to reversals, especially of Russell, who was unanimously overturned by the high court in a case involving election law in a Boulder City recall case last July.

Courts can be mercurial beasts, though, so uncertainty remains. If only Heller had done his job as secretary of state in 2003, he wouldn’t have left us with this conundrum to fill his congressional seat eight years later.

(The full transcript is posted on my blog on the Sun’s site.)

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