October 5, 2011 - 1:01 am
Whatever else may be said of Carson City District Judge James Todd Russell, no one can accuse him of being predictable.
All eyes were on Russell’s court late last month as attorneys for Republicans and Democrats argued over the rules to guide Nevada’s ultra-tardy redistricting plan. Russell had said he would decide important questions of law — including whether the law requires the state to draw a Hispanic district — before a panel of three special masters set to the task.
And then he didn’t.
Instead of ruling on the question, Russell punted, leaving every single important legal issue to the discretion of the special masters. That includes some complex questions involving the Voting Rights Act.
So it’s probably not surprising Secretary of State Ross Miller on Monday asked the Nevada Supreme Court to intervene, either by telling Russell to do his job or by doing it for him.
“The District Court has impermissibly abdicated its duty to make these rulings of law, which will cause the special masters to draw maps without any definitive direction on key legal issues,” reads Miller’s petition, filed by Deputy Attorney General Kevin Benson. “This raises a substantial risk of delaying these proceedings since the maps will likely have to be redrawn after the District Court rules on these legal issues.”
Make that, yet another delay, since the Legislature and the governor failed to agree on a new set of maps during the 2011 session. Although Democratic lawmakers muscled through two redistricting plans over Republican opposition, GOP Gov. Brian Sandoval vetoed both.
Now, Benson warns, a delay could be disastrous. First, candidates for the state Legislature have to live in the district they want to represent for at least 30 days before filing, which is presently scheduled for March 15. If they have no idea where the lines are, they can’t tell whether they’re living in the right place.
Second, people circulating initiative petitions are required to get a certain number of signatures in each of Nevada’s congressional districts. Since they can’t tell where the district lines are, and since Nevada is entitled to a new, fourth district, delays will cause further confusion for them.
Third, county clerks in Nevada are required to provide political parties with information as to the number of Republicans and Democrats located in each voting precinct 90 days before a presidential caucus. Since Nevada’s caucus is moving to January because of Florida’s voting-calendar shenanigans, it appears there’s no way that’s going to happen now.
Fourth, the special masters are set to hold hearings in Las Vegas and Carson City next week. The agenda calls for them to hear arguments from lawyers on both sides of the case, arguments that could be much simplified if the masters and the public had some rules already in place.
So what’s at issue?
First is deciding whether the Voting Rights Act even requires the drawing of a Hispanic district. That requires a judge to make a series of determinations, including whether a minority group is large enough and compact enough to even make up its own district. And that, in turn, requires a further ruling about whether we’re talking total Hispanic population, or total Hispanic population of voting age (18 years old or older), or total Hispanic population of voting age who are citizens and thus eligible to vote. Since Nevada has only 213,000 Hispanic residents in that last group — and districts must contain 675,138 people — it seems the answer is no.
Second, you have to decide whether the group votes as a bloc, and third, whether white majority voters have used their clout to keep Hispanics from electing candidates of their choice. Again, the answers seem to be no, since eight Hispanic members of the Legislature (all Democrats) and the governor (a Republican) have been elected with the help of white voters.
Other issues Russell left unresolved include the idea of “representational fairness,” which was never precisely defined. (Some have argued it means giving Republicans more districts, since more voters cast ballots for GOP candidates than Democrats.)
Russell merely said the masters could consider but not “become enthralled in any representative, racial or partisan gerrymandering.” Whatever that means; Benson noted the ambiguity could lead to the maps facing further legal challenges.
However Russell might have decided these questions, he should have done so. That way, if either side was displeased, it could have already filed a state Supreme Court appeal and had the matter settled.
By punting, Russell has let the clock run down even further on a plan that’s months overdue, forced the special masters to do the heavy lifting and created a greater likelihood that the 2012 election schedule will need adjustments. While plenty of people speculated on how Russell would rule, few figured he’d fail to do so.
Predictable, Judge Russell is not.
Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter at www.Twitter.com/SteveSebelius or reach him at (702) 387-5276 or email@example.com.