13 months later, legal challenges in effort to recall state senators reaches Supreme Court
The latest resurrection of the recall effort came Friday, when attorneys filed their opening brief as part of their appeal to the Nevada Supreme Court over a lower court’s decision against qualifying the recalls for a special election five months ago. Given the briefing schedule, it’s likely the court will hear oral arguments in the case sometime in late September or early October.
The brief largely reiterates previous arguments made by attorneys for the recall supporters — who have been entirely funded by the Republican State Leadership Committee (RSLC) and championed by Republican state Senate Leader Michael Roberson — and represents their last real shot at successfully qualifying a special recall election.
If successful, recalling Sens. Joyce Woodhouse and Nicole Cannizzaro would give Republicans a better chance to either stem Democratic gains in the state Senate amid an unfavorable 2018 electoral map, or give them a chance to reclaim the majority. Republicans currently hold nine seats in the Senate, while Democrats control 11 plus nonpartisan retiring Sen. Patricia Farley, who began caucusing with them in 2017 after changing her party registration.
Supporters of the recalls have cited a variety of issues, including support for so-called sanctuary city policies, as reasons to remove the senators, but critics including Democrats and Republican Gov. Brian Sandoval have dismissed them as partisan-motivated and an abuse of the recall process.
Success is still a long shot — it would require the state Supreme Court to overturn an existing law, partially recalculate the signature totals and then require a District Court judge to qualify the recalls, set a date and then Republicans would have to win a special election. An attorney for the recall backers said in April that if everything broke right, a special election could be held in either late 2018 or early 2019.
Nevada law makes qualifying a recall difficult, requiring signatures from 25 percent of voters who cast a ballot in the last election of the targeted office-holder within a 90-day period. Signatures are reviewed by local and state election officials, who take out invalid signatures to determine whether or not the recall petition meets the required threshold.
Though the initial recall efforts submitted enough signatures to qualify the two recalls, Democratic groups — funded by national and state Democratic organizations including the Democratic Legislative Campaign Committee — were able to turn in thousands of post-revocation signature withdrawal requests, forms signed by voters who initially added their names to the recall petition but requested their names be removed after the petition was turned in.
That chunk of signatures was key to efforts to defeat the recalls. Democratic groups turned in thousands of the strike requests, lowering the number of signatures below the necessary threshold and preventing the special elections from being called. Clark County District Court Judge Jerry Wiese upheld the constitutionality of the state law allowing for the use of such strike requests in March, writing in an order that they help avoid “unnecessary special elections, and provides direct recourse when signatures are improperly obtained, despite existing safeguards.”
In their brief, attorneys for the recall backers again reiterated their belief that the post-submission strike requests were unconstitutional and diverged from the “plain language, history and intent of the Nevada Constitution itself.”
“The language is not qualified; it does not say a special election may be stopped if enough signers have a late-breaking change of heart after the recall petition has survived review,” they wrote in the brief.
The brief also cites two opinions authored by former Nevada Attorney General L.B. Flower that concluded the Constitution didn’t allow for any addition or subtraction of signatures on a recall petition after it had been filed, while also accusing the Legislature of attempting to amend the Constitution with a “mere” change in state law. They cited the several changes to state law, dating back to the 1960s with various changes up until 2001, as evidence that the “rarely (if ever) used part of an exclusively judicial scheme” had mutated beyond what was allowed under the state’s constitutional recall provisions.
“Strike Requests were 50 years late to the recall party,” they wrote. “Then they spent nearly 30 years as part of a judicial verification process in a Withdrawal-free world. Only in the last 25 years have Strike Requests found their current form—a form totally unmoored from constitutional bedrock and its own statutory roots.”
Attorneys for the recall backers also reiterated their complaint that the strike request process was unfair, noting that only three states allowed for a similar process and that the mechanism wasn’t used in other signature-gathering efforts, such as attempts to qualify a measure for the ballot. It also raised the concern that allowing candidates to publicly access names on the recall petition would lead to undue pressure on individuals who originally signed the recall form.
“When directly confronted by friend, neighbor, family member, union boss, or employer about one’s signature on the Recall Petitions, agreeing to publicly sign a Strike Request may have proved the path of least resistance, if not the path of true conviction,” they wrote. “We use secret balloting for a reason.”
The brief also asked the court to consider reversing a decision for a full verification of the recall petitions, which Wiese ordered in March citing “numerical inconsistencies and potential incompleteness” with the signature number cited by parties, which delayed a final decision in the case until April. It called the decision a “recipe for disaster,” as the newly amended signature totals came in with a different number than those originally cited by election officials and both sides in the case.
That decision could have major consequences for Woodhouse — the brief notes that an additional review of several dozen more alleged mistakes made by the Clark County registrar in the verification process could push the signature total just over the qualifying line, with or without the added strike requests.
Disclosure: Patricia Farley has donated to The Nevada Independent. You can see a full list of donors here.