On July 1, the Nevada Supreme Court reversed a lower state court and ruled that recall petitions can only be signed by people who actually cast a ballot in the election at which the person subject to the recall was elected. Strickland v Waymire, 55290. Here is the opinion.
The State Constitutional provision on recall, Article 2, section 9, says, “Every public officer in the State of Nevada is subject to recall from office by the registered voters of the state, or of the county, district or municipality which he represents. For this purpose, 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.”
This sentence can be read to mean that only voters who voted in the previous particular election may sign the recall. Or it may be read to mean that “who actually voted” modifies “25%”, which would mean that the purpose of the phrase is to explain how to calculate the number of signatures needed. There is frequently confusion when election laws set forth a percentage to calculate the number of registered signatures, but fail to say whether the percentage should be applied to the number of people who put a ballot in the ballot box, or the number of people who cast a ballot for that particular office. The difference is not great, but there are always blank ballots.
As a result of the ruling, there will be no recall election for two city council members in Boulder. In 2009, the Nevada legislature passed a bill, expressing the legislature’s belief that the second interpretation is the correct one, but the Court said that law has no effect because it is up to the Court, not the legislature, to interpret the Constitution.
A peculiarity of the decision is that it implies that someone who voted in the original election that elected the official is free to sign the recall petition, even if that voter has since moved out of the jurisdiction. The decision also seems to contradict Bush v Gore, which said that governments must treat all voters equally. The Nevada Supreme Court decision discriminates against present residents of a city who might not have been permitted to vote in the earlier election, either because they were not yet residents of that city, or perhaps they were not yet 18 years of age.
Other courts have ruled that it is unconstitutional to bar voters from voting in a current election, because they had not voted in a previous election. The First Circuit, in 1994, said, “In its simplest form, this case asks us to decide whether a state may condition the right to vote in one election on whether that right was exercised in a preceding election. So stated, the case is hardly worthy of discussion. The right to vote ‘is of the most fundamental significance under our constitutional structure, and depriving a qualified voter of the right to cast a ballot because of failure to vote in an earlier election is almost inconceivable.” Ayers-Schaffner v DiStefano, 37 F 3d 726. The New York State Court of Appeals made a similar ruling in 1983 in Leaks v Board of Elections of City of New York,, 447 NE 2d 43. Also a federal court in California in 2003 struck down a California law that said voters could not vote to replace someone being recalled, if that voter had not cast a vote on the recall itself, in Partnoy v Shelley, 277 F Supp 2d 1064.