Contradictory ruling

Wednesday, May 25, 2011 | 2:01 a.m.

Republican Rep. Dean Heller’s appointment to the U.S. Senate this month created a novel situation — Nevada has never had to replace a member of the House of Representatives in the middle of a term. As a result, a controversy quickly developed over how to replace Heller because Nevada law doesn’t specifically state how a special election for the House should be conducted.

Because there is no primary in a special election, the state Republican Party wants to pick its nominee. But the law doesn’t provide for the parties to pick their candidates for a special election.

Secretary of State Ross Miller, the state’s top election official, ruled that it would be an open election. Miller said that any major party candidate could get on the ballot and added that independent and minor-party candidates would have to get 100 signatures or their party’s consent to make the ballot.

That upset Republicans because an open election — with a long list of candidates — threatens to divide the conservative vote, weakening the Republicans’ odds of holding a seat they have controlled since it was created.

The Nevada Republican Party sued, and last week, District Judge James Todd Russell in Carson City struck down Miller’s order, ruling in the Republicans’ favor.

As Las Vegas Sun columnist Jon Ralston reported on his blog, Russell released his written order Monday, and it harshly criticizes Miller. The judge accused Miller of “picking and choosing” parts of the law to defend his interpretation, which Russell said produced “an unreasonable and absurd result.” He agreed with Republicans that Miller “went beyond the plain meaning of statute” in his interpretation.

But, in his opinion, Russell does exactly what he accuses Miller of doing. Russell picks and chooses laws to try to make a legal case to insert himself in the controversy and overturn the secretary of state’s decision.

Russell starts by dismissing laws that give the secretary of state power as Nevada’s chief election officer to create regulations and make “interpretations and take other actions necessary ... governing the conduct of primary, general, special and district elections.”

The case law that Russell points to gives courts the power to overturn “even reasonable interpretations” of the law by a state official if an “interpretation conflicts with legislative intent.”

Russell’s reason for looking to the legislative intent was his declaration that the special elections law — the one that supposedly has a “plain meaning” — is “ambiguous.” So he said he undertook “an independent review of the construction of Nevada’s statutes” to determine the Legislature’s intent. Russell said his review of the “scant legislative history ... does not assist the court in resolving the particular matter.”

Yet he somehow concludes that the Legislature’s intent was “clear,” deciding that special elections should be run like regular elections and, thus, Republicans can pick their nominee.

If those contradictions weren’t enough, Russell said he was “troubled” by Miller’s ruling on how independent and minor party candidates could qualify for the ballot, calling it “unfair.” Never mind the fact that laws governing general elections treat independent and minor party candidates different from major party candidates.

Miller is appealing Russell’s decision to the Nevada Supreme Court, and it should take up the matter quickly. Russell’s poorly reasoned opinion is a picture of judicial activism, and it should be overturned.