Secretary of state challenges judge’s instructions on reapportionment

By Cy Ryan

Friday, Oct. 14, 2011 | 10 p.m.

CARSON CITY — State courts have the right to fashion a reapportionment plan when the Nevada Legislature fails, the state Attorney General says.

And the court can order the governor to call a special session of the Legislature, according to a brief filed in the Nevada Supreme Court on Friday.

A three-member panel, appointed by Carson City District Judge Todd Russell, filed a proposed remapping plan Friday. Russell has given opponents until Oct. 24 to file objections. He will hold a hearing on Oct. 27.

Democrats pushed through two reapportionment plans during the Legislature, but they were vetoed by Republican Gov. Brian Sandoval. The issue then ended up in District Court.

Secretary of State Ross Miller filed a petition in the Supreme Court arguing that Russell did not give proper legal direction to the panel on such things as creating districts that are heavily Hispanics.

The panel’s plan creates one district that is 42.7 percent Hispanic.

The Supreme Court asked Miller, through the attorney’s general’s office, to answer a series of questions.

Deputy Attorney General Kevin Benson said the state courts “have jurisdiction to craft their own reapportionment plans, should the Legislature fail to carry out its duty.”

The court has the authority to appoint special masters to help in drawing the maps for congressional and state legislative districts, he said.

The Nevada Constitution says it is the “mandatory duty” of the Legislature to draft a reapportionment plan. But a 2001 opinion from the attorney general’s office said the remapping is not an exclusive duty held by the Legislature, Benson said.

Benson said it is preferable that state courts, not federal courts, do the reapportionment if the Legislature fails.

He said “redistricting by the federal court will likely involve even less public input than one adopted by the state court, and it will be drawn by a court that is not directly accountable to the Nevada voters who are ultimately affected by the plan.”

The courts can also order at-large elections for congressional seats, meaning candidates would run statewide for one of the four seats. But at-large elections result “in dilution of minority voting strength,” Benson said.

He said the secretary of state is not challenging Russell’s authority over the reapportionment, only that the judge did not give sufficient legal advice to the panel.

The Supreme Court has set Nov. 14 for oral arguments on the Miller petition.