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December 18, 2014

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Timing may sink lawsuit aimed at Strip voting

MSNBC Debate Spin Room Reaction

Democratic campaign leaders put their spin on the debate. (En Espanol: Reacción al Debate de MSNBC)

Outside Support

Some of the most interesting sights and sounds of the Democratic presidential debate didn't come from Hillary Clinton, John Edwards, or Barack Obama on the inside of the Cashman Center. Instead the trio's supporters, along with a large legion of Dennis Kucinich backers, made their views, votes, and vocals known on the outside.

Jon Ralston's analysis

2008 Caucus Coverage

Not all votes in a caucus are created equal, and Nevada’s Saturday contest is no different.

But that doesn’t mean a legal challenge to stop the party from holding special precinct meetings for Strip workers will succeed.

The lawsuit seeking to block the Democratic Party from having caucus sites on the Strip faces significant legal obstacles, election law experts said Tuesday.

U.S. District Court Judge James C. Mahan is to rule on the lawsuit Thursday; his decision could reverberate throughout Nevada and the national political contest.

A doctrine allows courts to throw out a challenge if the person bringing it has unduly delayed taking action, to the detriment of the opposing party.

Called the doctrine of laches, “it gives the court the power to say, even if a suit has merit, you’re bringing it up too late,” said Richard Hasen, a professor specializing in election law at Loyola Law School in Los Angeles.

It appeared that the plaintiffs, another legal expert said, “just waited too late in the day to entertain these types of issues.”

The doctrine is meant to prevent last-minute litigation when rules could have been challenged earlier, said Edward B. Foley, professor of law at Moritz College of Law and the director of the election law program at Ohio State University.

“The court is likely to ask: Why couldn’t they have brought this sooner? Why is it filed now?”

Supporters of the lawsuit have said they didn’t become aware of the caucus rules until recently, though the rules were passed by the state party in March.

Mark Ferrario, attorney for the five Democratic Party activists and the Nevada State Education Association, did not return calls for comment. But in his motion seeking a temporary restraining order, he argues that rules posted on the state party’s Web site are marked “draft.”

Even if the judge discounts the timing, Foley said, courts have largely given wide latitude to parties to come up with their own rules.

“This is arguably an internal party matter,” he said. “Case law from the U.S. Supreme Court gives considerable deference to parties.”

In addition, the principle of one person, one vote in the U.S. Constitution could prove a problem to the challenge. That’s because the Nevada contest is a caucus, in which votes already are weighted differently.

“Is it applicable to a caucus? That’s a big issue going to the merits of the case,” he said.

The legal brouhaha has highlighted unhappiness within the party over the rules. Sen. Hillary Clinton and her husband, former President Clinton, have blasted the caucus process because people can’t participate if they’re in the military serving overseas or can’t get off work. And the plaintiffs have asked why the party made special provisions to allow Strip workers to caucus while others will find it more difficult to participate.

Kirsten Searer, spokeswoman for the state party, said the special allowance was made because there is a great concentration of workers on the Strip.

“Nevada was chosen for an early caucus because of ethnic, geographic and economic diversity,” she said. “These people otherwise would be unable to caucus.”

She pointed out that getting on and off the Strip on a busy weekend would make it problematic if not impossible for them to participate without special sites.

But the lawsuit cites examples in which those participating in at-large precincts would have their support mean more than in normal caucus precincts.

Clearly, a primary is more straightforward and balanced in the way votes are counted. In the caucus process, the winner is chosen based on the number of delegates each candidate gets, not the number of supporters. And besides complicated math for those Strip caucus sites, rural support is more heavily weighted than urban.

The state briefly flirted with holding straight primaries.

Nevada held one in 1976 and again in 1980. But the 1980 primary cost more than the state expected, and to save money, the state decided not to continue holding primaries. Instead, parties would have to hold contests -- and pay for them, according to Dennis Myers, an editor of the weekly Reno News & Review who has written extensively on Nevada’s caucus history.

Searer defended the caucus process as good for Nevada’s Democratic Party in the long run. She said the caucus has excited grass-roots organizers, so the state now has more registered Democrats than Republicans.

“I’m not sure we would have flipped voter registration and recruited volunteers in all our precincts if we did not have a caucus,” she said.

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