State Supreme Court must consider SOS role in deciding special election case — and must rule soon

Sunday, May 22, 2011 | 11:50 a.m.

When the state Supreme Court receives the appeal of Carson Judge Todd Russell’s ruling on the House special election, the justices will have many issues to consider, but many observers have forgotten the statutory supremacy (when it comes to elections) of the secretary of state, which may be permanently undermined if the lower court decision stands.

This is not to say the Republicans who won the case in Russell’s court don’t have arguments, especially because the 2003 law is not crystal clear and no regulations were erected after its passage by then-Secretary of State Dean Heller, whose House vacancy made this necessary. (Ah, the circular nature of Nevada politics.)

The Democrats can whine about Russell’s predisposition in the case, although they would not dare raise his past association at the same law firm with Mark Amodei, the GOP chairman and now one of the frontrunners. (But I think it’s worth raising, if only for disclosure.) The law specifically gives deference to the secretary of state as the chief elections officer, and there are two statutes that reinforce this. To wit:

NRS 293.124 Secretary of State to serve as Chief Officer of Elections; regulations.

1. The Secretary of State shall serve as the Chief Officer of Elections for this State. As Chief Officer, the Secretary of State is responsible for the execution and enforcement of the provisions of title 24 of NRS and all other provisions of state and federal law relating to elections in this State.

2. The Secretary of State shall adopt such regulations as are necessary to carry out the provisions of this section.

NRS 293.247 Regulations of Secretary of State for conduct of elections; interpretations; distribution of information to county and city clerks.

4. The Secretary of State may provide interpretations and take other actions necessary for the effective administration of the statutes and regulations governing the conduct of primary, general, special and district elections in this State.

Of course, Ross Miller -- or any other secretary of state -- is not king. But when the laws are not explicit – and as RJ columnist Steve Sebelius and others have argued, in 2003, a free-for-all seemed to be contemplated. (I don’t think the 2003 law was completely thought through – I have posted some of the legislative history elsewhere on this blog

-- but that’s when the SOS regs should have been formulated before it became a crisis.)

As for the high court, many think the matrix favors the Democratic position. But that is dangerous, speculative territory, so I won’t go there. Remember: The court also has the option of not taking the case and letting Russell’s decision stand. But I see very little chance of that occurring, considering what is at stake.

I do know this: The justices will expedite the decision – although they can’t do anything yet because Russell has yet to issue the order. He is expected to do so Monday, which then makes the appeal official.

My recollection was confirmed by court spokesman Bill Gang, who told me:

“The Supreme Court takes ballot issues seriously and has always decided such matters as expeditiously as possible, setting aside other pending matters to do so because of the impact on the citizens. That said, the Supreme Court's job is to make the correct decision, and that always takes some time for staff and justices to research legal matters and issue its ultimate decision. But they have shown the ability to do that with great speed when all of the court's resources are focused on that end.

In the past, the Supreme Court has been able to consider and decide time-sensitive ballot cases (when the printing of ballots is impending, for example) in a matter of days, or even a day or two, when such cases might normally take weeks.”

The court will have to decide whether to hear oral arguments, which could push the time frame back. Those could be seen on a webcast.

They would have to decide the case by July 8 to facilitate the printing of ballots for the Sept. 13 election. But my guess is the court will resolve this much, much sooner.

I surely hope no one gets it in his or her head to file a federal lawsuit after the high court rules. That would be a crazy angle, mostly because state courts are given deference on these kinds of issues.

Maybe I shouldn’t have even raised that……