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April 25, 2014

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Judge ridicules secretary of state’s “absurd” decision, claims “irreparable harm” to GOP in special election ruling

In a scathing order filed Monday, Carson City Judge Todd Russell used unusually strong language to criticize Secretary of State Ross Miller’s decision for a “ballot royale” in a House special election and shredded the notion of deference in such matters to the state’s chief election officer.

Russell, though, acknowledged the governing special election statute is “ambiguous” and the “scant legislative history” is not helpful, yet he clearly reached the conclusion Miller was wrong by his own independent analysis of the murky law.

The 12-page order can be seen here

Some thoughts:

----Russell, in a footnote, says he did not have to consider any of the constitutional issues raised by the state GOP in its challenge. But if he had, he is “troubled” by Miller’s disparate treatment of independents and minor parties compared to the major parties. But aren’t they treated differently in regular elections?

Yes. Yes, they are.

----The GOP argued that, as Russell paraphrased it, Miller “went beyond the plain meaning of the statute” governing special elections, NRS 304.230. But a couple of pages later, Russell states declaratively: “NRS 304.230 is ambiguous.” He goes on to write that the legislative history is not helpful and the law “does not assist the Court in resolving this particular matter.” So he agrees with the Republicans that Miller went beyond the law’s plain meaning, but he then says that meaning is ambiguous.

Really?

----Russell finds that deference to the secretary of state and his interpretation of election law “is not absolute.”

I addressed that issue in a weekend post

But, strangely, when the judge first writes about the issue of deference he cites a case saying he can strike an interpretation of a statute “when a court determines that the agency interpretation conflicts with legislative intent.” But, as I said, later he says the legislative history is of no help, so how could he do so?

Here’s how:

What Russell has done is, as he put it, dispense with the secretary of state’ role in statute, decide that this is “purely a legal question” and decide to undertake “an independent review of Nevada’s election statutes.” Wow.

----The most compelling argument Russell alights on in his serpentine order is that the special election statute contains a reference to Chapter 293 of the NRS, which controls how general elections are conducted. So, the judge argues, the statutes can be harmonized by allowing parties to nominate as opposed to what he calls Miller’s more narrow reading, which “produces an unreasonable and absurd result.”

Harsh.

He also accuses Miller of “picking and choosing from different portions of the general election statute to support” his conclusion. “The Court is troubled by this method,” Russell wrote.

Harsher.

----Perhaps the most interesting language is when Russell writes that Miller’s interpretation would cause the Republican Party to “suffer irreparable harm.” Really? From Madame Irreparable Harm, Sharron Angle? It would be so bad that “major parties would be specifically excluded from any involvement in the designation and nomination process, for which compensatory relief is inadequate.”

Oh, the humanity!

I know the victorious parties get a hand in writing orders in such cases. But, my goodness, parts of this order do read like a political attack on Miller and a GOP manifesto.

On to the Supremes…..

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