On April 27, the U.S. Supreme Court will hear arguments in Nevada Commission on Ethics v Carrigan, 10-568. In 2006, a Sparks, Nevada city councilmember, Michael Carrigan, voted to approve a measure allowing casinos to be built within certain parts of Sparks that had previously been off-limits for casinos. Before he voted, he publicly acknowledged that the individual seeking to build the new casino was his friend and former campaign manager. However, Carrigan pointed out that he himself had no pecuniary interest in the casino. The bill was defeated by the city council on a 3-2 vote, so even if Carrigan had abstained (instead of voting “yes”), the result of the vote would have been the same.
The Nevada Commission on Ethics censured Carrigan. But the Nevada Supreme Court ruled that the censure was improper, because elected public officials have a First Amendment right to cast votes. The Nevada Supreme Court acknowledged that elected officials can be required to recuse themselves on issues in which they have a vested interest, but said the particular law that authorized the censure is too broad. The issue of whether the casino should be built had been the leading political issue when Carrigan was re-elected, and because the councilmember won his election, it is reasonable to assume that his vote to approve the casino was a reflection of majority voter sentiment. Therefore, Carrigan points out that if he had not been allowed to vote, his constituents would have gone unrepresented. The decision of the Nevada Supreme Court is Carrigan v Commission on Ethics, 236 P.3d 616.
The U.S. Supreme Court has not been clear about whether voting is First Amendment activity or not. If the Court rules that a vote by an elected public official is entitled to some First Amendment protection, that will have implications for votes by ordinary voters as well.