Constitutionality at crux of legal challenge to Nevada recall efforts

A ruling — which the judge expects to be challenged — could come next week.

Attorneys for backers and opponents of the recall efforts pleaded their case in front of Clark County District Judge Jerry Wiese. The crux of the case comes down to whether it is constitutional to allow people to have their names removed from the recall petition.

Marc Elias, attorney for the recall opponents, argued that letting voters have their names removed from a recall after they signed for it provides a safeguard against fraud and misleading petitioners.

“It protects the rights of the voters so they are not duped into signing a petition they don’t believe in,” Elias told the judge.

The recalls against Democrats Joyce Woodhouse and Nicole Cannizzaro were deemed by the Nevada secretary of state’s office to have enough signatures to force special elections. Democrats sued, arguing that more than 2,000 people signed forms asking to be removed from the petitions.

If the judge rules that the post-submission signature revocations should be counted, the removal of the signatures probably would drop both recall petitions below the threshold needed to force a special election.

Recall backers contend that allowing any petitions submitted after the forms were sent to election officials creates an uneven playing field where recall opponents are allowed to operate while supporters are left powerless.

Nevada Lt. Gov. Mark Hutchison, who presides over the state Senate, is the lead attorney for the recall groups and noted that no state legislator has ever been successfully recalled in Nevada.

Hutchison invoked the Hail Mary play in football, and specifically referenced the final play of Sunday’s Super Bowl in which the Philadelphia Eagles defeated the New England Patriots. Hutchison said that counting the petition removal forms that came in after the recall petition was filed would be like letting the losing team stay on the field after the final play to try and change the outcome.

“Now you have to stop the game, get off the field, and let those who are the target of the recalls try to fix it and run up the score,” Hutchison said.

For Republicans, the recalls represent their best shot at retaking control of the Legislature’s upper chamber this year because the Democrat-held seats up for re-election are unlikely to flip.

Democrats have an 11-9 advantage in the state Senate. Independent Sen. Patricia Farley, who was the subject of a failed recall effort, caucused with Democrats in 2017. Farley said before the attempt to oust her that she will not run for re-election.

Wiese did not ignore the political elephant hanging over the case, noting the elected officials in attendance Wednesday including Senate Majority Leader Aaron Ford, Democratic Sens. Kelvin Atkinson, David Parks, Mo Denis, Woodhouse and Cannizzaro, and Farley and Senate GOP leader Michael Roberson.

“It seems like this may be a political party issue to some of you. It’s not to me,” Wiese said at the end of the hearing. “I’m going to base my ruling upon the statutes and the constitution.”

Wiese said that his decision will not come before Feb. 14 and that he expects his determination to be appealed to the Nevada Supreme Court.

Contact Colton Lochhead at clochhead@reviewjournal.com or 702-383-4638. Follow @ColtonLochhead on Twitter.