Like it or not, Nevada law is a free-for-all

If the hearing Tuesday before the Nevada Supreme Court showed anything, it’s that the Republican Party’s lawsuit to allow the two major political parties to each pick a single nominee for the upcoming special congressional election rests on a single word.

The statute in question — NRS 304.240(1) — reads, in part: “a candidate for a major political party is nominated by filing a declaration or acceptance of candidacy with the Secretary of State.” And according to the GOP lawyers who argued before the court, before you can become a “candidate,” you have to be nominated by a political party.

That interpretation, however, contradicts the plain meaning of that entire sentence, that a person is nominated not when chosen by a party, but when he or she files the proper papers with the secretary of state. That was Secretary of State Ross Miller’s interpretation, and it remains the manifestly correct one.

“The language is absolutely clear: A candidate is nominated by filing a declaration of candidacy,” argued Deputy Attorney General Kevin Benson.

That point was underscored several times during the 45 minutes attorneys argued their cases, interrupted frequently by pointed, incisive questions from the justices.

At issue is the conduct of the upcoming Sept. 13 special election in the 2nd Congressional District, a seat vacated when Gov. Brian Sandoval appointed Dean Heller to the U.S. Senate. For the first time in its history, Nevada will conduct a special election to replace a member of the House of Representatives.

According to Miller, the election is open to anyone. Thus far, 15 Republicans, 10 Democrats, four independents and one Independent American candidate have filed. (Three others filed for the office but withdrew their papers, and others may yet do so before the close of filing on Thursday.)

But the Republican Party disagrees, saying the statute should be read to allow political party central committees to choose their own standard-bearer. And in fact, the law does specify that when a vacancy occurs in the nomination of a candidate — for example, if a candidate dies, quits or is otherwise unable to serve after winning a primary election — the central committees do get to pick a replacement.

But in this case, the law specifically says there is no primary, thus there is no party nomination, thus there is no vacancy for the party to fill.

Nevertheless, a District Court judge sided with the GOP.

Thanks to that ruling, Republicans and Democrats held central committee meetings to pick candidates — ex-state Sen. Mark Amodei for the Republicans and Treasurer Kate Marshall for the Democrats. Along the way, every other top-tier challenger dropped out, which lent an anticlimactic sheen to Tuesday’s arguments.

What happens now — whether we see Miller’s 30-candidate free-for-all or an Amodei-Marshall race — depends on the high court’s ruling.

Although he first argued that the law was “ambiguous,” Republican Party attorney David O’Mara later backed off under questioning from Justice James Hardesty, retreating to claiming that Miller’s interpretation of the law created ambiguity. And while arguments over the line-by-line reading of the statute may seem to underscore the notion that the law isn’t clear, it really is.

That’s not to say it’s good policy. The Legislature could have — and perhaps should have — written a law that said when a congressman dies or resigns or is otherwise unable to serve, party central committees have 45 days to select a nominee, and an election must be held within 90 days. That would be a clear, quick and sensible way to do it, consistent with Nevada election practice.

But for now, like it or not, NRS 304.240(1) is the law of the state, and it plainly says candidates get to nominate themselves.

And that leads the Supreme Court to only one real conclusion.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics. Follow him on Twitter at www.Twitter.com/SteveSebelius or reach him at 387-5276 or SSebelius@reviewjournal.com.