Nevada Supreme Court rejects open ballot in special election in 2nd Congressional District

By Anjeanette Damon

Tuesday, July 5, 2011 | 5:56 p.m.

One Republican and one Democrat will vie in the September special election to replace U.S. Rep. Dean Heller, under a ruling today by the Nevada Supreme Court that rejected Secretary of State Ross Miller’s open ballot rules.

In a 6-1 decision, the court agreed the state law governing the special election for the U.S. House is ambiguous. But the court decided that if the 2003 Legislature had intended the special election be a free-for-all, it would have explicitly said so when it originally wrote the law.

In the absence of a strong legislative record, the court deferred to past practice and other state statutes that allow political parties to nominate their candidates. The court also cited the fact the secretary of state’s office never wrote the required regulations for conducting a special election.

“While this court might typically defer to a secretary of state’s interpretation of an ambiguous election statute, when the secretary of state fails to … adopt regulations… such a deference is inappropriate,” the court found.

Justice Michael Cherry dissented, arguing the state’s chief election officer should be allowed to decide how such an election is conducted. Cherry called Miller’s election rules “official and reasonable.”

The decision sets up a head-to-head race between Republican Mark Amodei, a former state senator, and state Treasurer Kate Marshall, a Democrat.

The ruling strikes a blow to Democrats’ hopes of picking up the heavily Republican district. The party had hoped the Republican vote would be divided between Amodei and Republican Kirk Lippold, who vowed to continue running despite losing the Republican central committee's nomination.

Marshall has been campaigning aggressively for the seat and has raised money at a fast clip. National Democrats have said they see an opportunity to pick up the seat even in a head-to-head race.

The Nevada Republican Party, which initially sued to challenging Miller’s open ballot rules, praised the opinion.

“Today’s ruling moves us one step closer to preserving this important seat, carrying our momentum into 2012 and turning Nevada red again,” the party’s chairwoman Amy Tarkanian said in a written statement.

Miller called the decision “well-reasoned.”

“Throughout the proceedings in the district court and the supreme court, there has been much discussion about the lack of a legislative history and the perceived ambiguity in the law that led to my interpretation clarifying how to conduct a special election in these circumstances,” Miller said. “I fully respect the supreme court’s decision and will conduct the special election accordingly.”