One more dissent in special election case
Wait, what now?
That was my reaction after paging through the Nevada Supreme Court's ruling in the lawsuit over the special election for the 2nd Congressional District. The high court upheld a Carson City judge who said -- despite the plain language of the law -- the two major political parties get to pick who runs under their banners in the special election.
How could the justices come to that conclusion, especially after yours truly called the lower court's ruling "wrong," "wrongheaded," "truly awful," and "stretched like Gumby on the rack"?
Here's how:
First, the law in question says, in relevant part: "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."
The court determined that, in order to be "a candidate" you had to receive the blessing of a political party, and in order to get that blessing, the party's central committee had to give it.
It doesn't really make sense, because anybody can be "a candidate." We've got a whole slew of "candidates" running for president as Republicans, and the only thing they did to get there was say they were running.
In the normal course of events, all the candidates run in a primary election, the winner of which gets to call himself the "nominee."
But Nevada's special election law specifically says there is no primary election, so the normal winnowing process is omitted, apparently in favor of the voters making the final choice on a wide-open special-election ballot.
And while that's unusual, it makes sense in context: The point of this law was to quickly replace members of Congress who had been killed in a terrorist attack or other catastrophe. Truncating the process by skipping the primary would move things along.
The Supreme Court insists the law is ambiguous: "If the 2003 Legislature that enacted [the law in question] had intended to abandon this long-settled practice when it provided for special elections to fill United States House of Representatives vacancies, it seems reasonable to conclude it would have done so explicitly -- particularly given that the self-nominating "free for all" or "ballot royale" approach is unusual and has not been adopted federally or in more than two jurisdictions."
To which I'd reply, it seems the Legislature did explicitly say it was adopting the free-for-all approach. And, even if the court thinks the law is ambiguous, the converse of its argument is equally true: If the Legislature intended for party central committees to name candidates, it would have explicitly said that, too.
Instead, the court said the situation is similar to what happens when, after a primary election, a nominee is somehow unable to run in the general election.
In those cases, state law is clear: Party central committees get to name a replacement. But those laws don't seem to apply in this case, because the Legislature specifically said there's no primary.
That's probably why Justice Michael Cherry, the only Supreme to dissent from the 6-1 ruling, had a problem. Under the court's ruling, he said, the process for choosing special election candidates is exactly the same as it was before the Legislature adopted the new law in 2003.
In other words, the Supreme Court essentially said the 2003 law had no effect, which seems, at the very least, odd.
But, as the U.S. Supreme Court held in Marbury v. Madison in 1803, "It is emphatically the duty of the Judicial Department to say what the law is." The state Supreme Court is the ultimate arbiter of Nevada law, so the justices get to say what our law is, not newspaper political columnists. More's the pity.
Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter at www.Twitter.com/SteveSebelius or reach him at (702) 398-5276 or ssebelius@ reviewjournal.com
