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

April 25, 2011

By Jon Ralston, Las Vegas Sun

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.

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