The Nevada Supreme Court heard oral arguments on Monday on the recall efforts against Senators Joyce Woodhouse and Nicole Cannizzaro.
Yes, that recall effort, which was undertaken in 2017 by a Republican group affiliated with then Senate Minority Leader Michael Roberson and former Assemblyman Stephen Silberkraus to force special elections against Woodhouse, Cannizzaro and then Senator Patricia Farley, who had already decided not to run for reelection.
Initially, it looked as if petitioners had gathered enough signatures to trigger recall elections for Cannizzaro and Woodhouse, based upon a sampling of 5 percent of signatures – which is all the law, as written, requires county registrars to do.
But the law also accommodates the possibility that people may want to strike their names from signature petitions, if “the number of such requests received by the Secretary of State could affect the sufficiency of the petition.”
The targets argued that they had gotten complaints that people felt coerced or tricked into giving signatures. To support the candidates, voters were asked to not sign anything. But petitioners working for the recall would show up at voters’ doors asking them to sign in support of the candidates. (This actually happened at this journalist’s door.)
“If you signed something and you were lied to, you should probably get a hold of the party and let them know,” said Farley at the time of the recall. Farley is a Republican, but left her party to become non-partisan for the remainder of her term, after disputes with Roberson, who was her caucus leader. She was referring to the Democratic Party, which was helping to fight the recalls.
In March of last year, Clark County District Court Judge Jerry Wiese ruled that the number of strike requests did affect the sufficiency of the petition. He then ordered that all of the petition signatures be counted – not just a sampling.
And that’s what Monday’s argument by the attorney for the recall petitioners hinged on. Michael Wall argued to the Justices that Wiese’s ruling was incorrect, and that voters should not have been able to take their signatures off the recall petition once they had signed.
He likened it to extending a game clock at the losing team’s request.
“That’s just what the statute does by allowing strike requests – it allows them to continue playing the game after the game is over. They get the names that have been submitted and… they can now target individual people to try to find people who they can try to talk into doing strike requests,” said Wall in an interview after the Supreme Court arguments.
Wall declined to go so far as to say that voters who requested their names be removed were coerced. But his argument in front of the Court was that the strike request provision in the statute is unconstitutional, and since the full count was done via verifying requests that signatures be struck, it was improper to do that count.
“A full count isn’t required and a full count was done in this case because the strike requests caused confusion so the court ordered a full count, and we think the full count wasn’t done properly,” Wall said after the hearing.
But Marc Elias, the lead attorney for the Senators, disagreed, telling Justices that voters relied on the statute.
“For some number of voters, they will know the law, and they will know that in the law, they have a right to a post submission revocation,” Elias told the Court.
“The time to challenge that law is not after voters have relied on it, but before they have,” Elias told reporters after the arguments.
Elias also noted a number of times that he didn’t “think it was inappropriate for a trial judge to do what trial judges do, which is to get the facts” by not only considering the number of strike requests, but also the totality of signatures, rather than a sampling.
Justice Elissa Cadish didn’t seem to be buying Wall’s argument that the full count wasn’t valid because it came on the heels of the strike request. She implied that the sampling provision might be the problem going forward.
“So the sample is conclusive,” she asked Wall? “You don’t have to check the other 95 percent?”
Justice James Hardesty also seemed skeptical that the court should invalidate signatures just because the path to them might be unconstitutional.
“If we agreed with your point, we would be sanctioning a recall based upon verified signatures,” Hardesty said with some exasperation.
If the Court rules in favor of the Senators, then the matter will end. If it rules in favor of the petitioners, then it is possible recall elections might take place, though it is unclear when that would happen.