NRS 304
January 27, 2012
A way to quickly replace Congressmen in the event of a terrorist attack or give Democrats a Nevada Republican stronghold?
by Kaitan Gupta
In the world of battleground elections, Nevada’s 2nd Congressional District never received much attention nor should it have. Since its creation after the 1980 census, it has always been represented by a Republican. 1992 was the only time the Republican candidate did not receive more than 50% of the vote and yet that year Republican Congressman Vucanovich still won the election by more than 12,000 votes/4 points. The Democrats thought they were closing the gap in the District in 2008 when Senator McCain only won the District by 88 votes, but popular Congressman Dean Heller proved too popular in this conservative District where he widened his “narrow” 12,575 vote/5 point win in 2006 to a 44,000 vote/10 point win in 2008 and a 82,000/30 point win in 2010. But Democrats attempt at winning this District (which in the past was seen as futile) would get new life thanks to a Republican’s sex scandal, the Nevada Secretary of State Ross Miller, and a Navy war hero.
In May 2011, Senator John Ensign announced his resignation due to an ethics investigation surrounding his extramarital affair with the wife of one of his aids. Governor Sandoval promptly appointed Dean Heller to fill the rest of Senator Ensign’s term and ordered a special election to be held on September 13, 2011 to elect a new representative for Nevada’s 2nd Congressional District. But it was Secretary of State Ross Miller’s announcement of how this special election would be run that gave Democrats a chance of winning this Republican stronghold. One week prior to Governor Sandoval’s announcement, Secretary Miller issued his interpretation of NRS 304.200, the law governing special elections. He announced that major party candidates could self-nominate and place themselves on the ballot as a major political party candidate whether or not the major political party approved. Secretary Miller based this interpretation on NRS 304’s language that “no primary election may be held.” This meant the election would be a free for all and more than 30 candidates were expected to be on the ballot. Democrats expected many Republicans would file as compared to only a few Democrats making it much easier to elect a Democrat.
But would it really be this easy for a Democrat to win a district where registered Republicans outnumbered registered Democrats by 32,000? Many people wondered what this NRS 304.200 was and why it gave so much authority to the Secretary of State. It was unthinkable to most people, regardless of political leanings, that a Democrat could represent Nevada’s 2nd Congressional District. To fully understand NRS 304 and the awesome power wielded by Secretary Ross one must travel back to the horrible events of September 11, 2001. In the aftermath of the 9-11 terrorist attacks, Congressional leaders began asking what would have happened if the terrorists of United Airlines flight 93 had succeeded in destroying the Capital building and killing almost everyone in Congress. In response to this, the House of Representatives asked every state to examine their procedures for replacing congressmen in order to insure the House of Representatives can be quickly replaced if necessary.
Nevada’s answer to this call was NRS 304.200. It calls for the Governor to issue a proclamation for a special election in the event of a vacancy in the House of Representatives within seven days of the vacancy and the election is to take place within 180 days of the proclamation. If the vacancy was created by a catastrophe the election is to take place within 90 days of the proclamation. But the statute is very vague as to how the special election is to be run. It says no primary election is to be held, but it also says candidates are to be nominated according to NRS 293, the chapter that governs how Nevada elections are conducted, which allows a major political party to designate a candidate in NRS 293.165. But NRS 304.25 did call for the Secretary of State to adopt regulations to conduct special elections. Surely, this would set unambiguous rules for conducting the election. Unfortunately, the Secretary of State did not adopt any regulations under NRS 304.25. He only issued his interpretation of NRS 304.2.
Republicans obviously did not agree with Secretary Miller’s interpretation. However, they probably agreed that the statute was open to many interpretations. The statute was vague and Secretary Miller is in charge of Nevada elections. Another problem for Republicans was CDR Kirk Lippold (Ret.), the commanding officer of the USS Cole when it was attacked by Al-Qaeda terrorists in 2000. After retiring from the Navy, CDR Lippold settled in Nevada and became a Republican and not only entered the special election but vowed to stay in the election despite not receiving the nomination from the Republican central committee. The Nevada Republican Party believed CDR Lippold could split the Republican vote in the already crowded field of candidates and believed for the first time since its creation, a Democrat could win Nevada’s 2nd Congressional District.
Luckily for the Republicans, you cannot throw a rock in Nevada’s 2nd Congressional District without hitting a conservative willing to challenge a Democrat so they were able to find someone to challenge Secretary Miller’s interpretation of NRS 304.2 as violating a party’s right to nominate one candidate in an election as stated in NRS 293.165(1). While NRS 304.2 specifically says no primaries are to be held, it also says NRS 293 is to be followed and NRS 293.165(1) does not call for a political party to hold a primary, it simply calls for a political party to designate a candidate. Nevada’s First Judicial District Court agreed with the Republican Party and issued an injunction and required the provisions of NRS 293.165 be followed. The Nevada State Democratic Party and Secretary promptly filed an appeal and the Nevada Supreme Court granted a hearing.
Upon hearing the case, the Nevada Supreme Court decided that each political party may designate one candidate for the special election. This paved the way to allow the Republicans to keep Nevada’s 2nd Congressional district in Republican hands. But the Democrats put up a good fight and while the Nevada Supreme Court did not agree with Secretary Miller’s interpretation of the statute, they did agree that it was vague. How they chose to side with the Republicans is a whole other story.
Nevada’s 2nd Congressional district is clearly a conservative Republican district. Nobody contests this. And the registered voters had always voted for a representative that reflected their conservative values. However in 2011, it looked like a Democrat could win this seat which would be a major victory for the Democratic Party in light of the close race taking place at the same time in the special election for New York’s 9th Congressional District, a district that had not been held by a Republican since before the Great Depression. But because of the Nevada Supreme Court, the district would remain a Republican stronghold despite the efforts of a determined war hero and determined Democrats.
Kaitan Gupta is a second-year law student at William & Mary.
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