A state court in Carson City, Nevada, will soon decide whether all registered voters are permitted to sign a recall petition, or whether only voters who voted at the last election may sign. The case arose in 2008 when some residents of Boulder City tried to recall two members of the City Council.

Three weeks after the petition drive had been launched, Secretary of State Ross Miller ruled that only voters who had voted in the previous city council election could sign. He based his ruling on the Nevada Constitution, Article 2, section 9, which authorizes recall. The Constitution says, “For this purpose (recall), not less than 25% of the number who actually voted in the state or in the county, district, or municipality which he represents, at the election in which he was elected, shall file their petition, in the manner herein provided, demanding his recall by the people.”

Most people, on reading this section, probably interpret it to mean that the “actually voted” language modifies “25%”. In other words, the “actually voted” is in the Constitution to help elections officials calculate the number of signatures. The percentage would be based on the number of votes cast for that particular office, not the number of voters who put a ballot into the voting box.

But because the Secretary of State interpreted that sentence to mean that only voters who actually voted in the last city council election may sign the petition, the recall failed. Approximately 30% of the signatures, which would otherwise have been valid, were not counted because those signers hadn’t voted in the last city council election.

Although the 2009 session of the legislature passed SB 156, interpreting the Constitution to say that any registered voter may sign, the bill does not take effect until this year, so it doesn’t help the Boulder City recall proponents. The case is Waymire v Miller, 08-oc-00244-1B. A decision is expected soon.