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Candidate goes to court to get on ballot

A week before Mesquite’s general election ballots will be printed, the results of the primary election have been challenged in court.

The man who finished fourth in the race for two available seats on the City Council filed suit on Tuesday to block his exclusion from the June 5 ballot.

Scott Fisher does not dispute how many votes he received in the primary or where he ended up in the six-candidate race. What he objects to is the city’s interpretation of state election law and its own code that he said unfairly eliminates him from contention.

"I had 868 folks vote for me, and I kind of feel like I need to make sure their votes count for something," the ex-city councilman said. "What’s right is right and what’s wrong is wrong."

After initially indicating that Fisher and three other candidates would advance to a June 5 runoff, election officials declared incumbent David Bennett the outright winner, leaving second- and third-place finishers Geno Withelder and Randy Ence to fight it out for the one remaining seat on the council.

Bennett’s name was marked on nearly 60 percent of the ballots cast in the race, but he received 32 percent of the total vote because each voter was instructed to pick two of the six candidates in the race.

Las Vegas attorney Dustin Dingman, who is representing Fisher, said state law uses the total number of votes cast when determining an outright winner in a primary race. Mesquite city code uses the total number of voters who participated.

Under state law, Fisher would still be in the race.

By choosing to follow city code instead of state law, Dingman said, city officials violated a legal principle that is taught on the first day of law school: "State law supersedes city ordinance."

Fisher’s lawsuit names City Clerk Carol Woods, Clark County Registrar of Voters Larry Lomax and each member of the City Council, Bennett included. No monetary damages are being sought beyond the costs associated with bringing the lawsuit.

Mesquite City Attorney Christi Kindel said the decision to declare Bennett the winner was based in large part on a letter from the Nevada attorney general’s office instructing the city that state election laws did not apply in this case.

"The city definitely has every right to rely on the advice of the attorney general’s office," she said.

The city had yet to be served with legal documents Wednesday afernoon, but Kindel said she expects the lawsuit to prove useful.

"Not all litigation needs to be contentious," she said. "We welcome the chance to get an answer to this question."

Dingman said his client needs that answer soon. The general election ballots are about to be printed, and with each passing day Fisher is missing out on opportunities to raise money and campaign.

"People aren’t too inclined to contribute to a political candidate they’re not sure is going to be on the ballot," Dingman said.

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