While Democrats and the Secretary of State argued the special election to fill Dean Heller's congressional seat should be open to all comers, Republicans argued the major parties deserve control over who is their candidate.
The Nevada Supreme Court, whose members fired sharp questions at both sides during Tuesday's hearing, took the case under submission but is expected to rule before the July 6 deadline to get ballots ready for the Sept. 13 election.
The Democratic Party wants an open ballot with, at present, 29 candidates. Since 15 of those who have filed are Republican, that could give them a better chance of winning in Congressional District 2. The district has some 30,000 more registered Republicans than Democrats along with nearly 19,000 Independent American voters who are unlikely to support a Democrat. No Democrat has ever won the district.
Chief Justice Michael Douglas asked specifically what Carson District Judge Todd Russell got wrong in ruling the major parties have the power to nominate one candidate and exclude other members of their party from the ballot. Deputy Attorney General Kevin Benson said the statute clearly states that major party candidates become candidates by filing for the office and, therefore, Secretary of State Ross Miller was correct in saying all comers should be placed on the ballot.
"The district court decision deprives people of any meaningful choice in who their representative will be," Benson said. "The statute is absolutely clear. A candidate is nominated by filing a declaration of candidacy."
Justice Michael Cherry echoed that statement.
But Justice Jim Hardesty said under another part of the election statutes, when there is no primary election, the major parties nominate their candidates.
David O'Mara representing the Republican Party, said there is a difference between a member of a major political party and a candidate of a major political party.
"That person becomes a candidate of a major political party when placed on the ballot by the party," he said.
"Nevada public policy has always been we are going to nominate the candidates placed in a general election."
Rew Goodenow, also representing the GOP, said none of Nevada statutes say a major party candidate can self-nominate. Allowing that, he said, means that "neither the party's leadership nor the party's members choose their candidate."
"It is a one person per party nominating process," he said.
They argued that, when there is ambiguity in a statute, authorities should look to other parts of the statute - in this case to the existing law giving major parties the power to nominate a candidate. O'Mara said that's what Miller did in ruling minor parties like the Independent American Party could nominate their candidate for the special election.
Justice Kris Pickering asked why the state shouldn't use the same process used when deceased Sen. Pat McCarran was replaced by Alan Bible in the 1950s. Bible was nominated by the Democratic Party.
"You're saying the 2003 legislation is entirely game changing," she asked.
Benson said that is true because the law sets up a different procedure entirely.
Marc Elias representing the Democratic Party argued the Secretary of State has the authority to interpret election law as he did in this case.
"The statute speaks clearly but does not abrogate the power of the Secretary of State to interpret statute," he said. "The election system cannot run without the Secretary of State having the ability to filling the gaps."
Hardesty, however, said that depends on him following existing rules "so everybody knows the regulations in place." He pointed out there are no regulations governing the special election statute.
Elias said the courts should recognize the statute approved by the Legislature and allow the secretary the discretion to interpret that statute.
"The courts ought to take a modest approach and step back," he said.
That brought a rebuke from Hardesty who said courts are called on every day to interpret statutes.
"How is this any different? This is a statute that is the subject of disagreement," he said.
Hardesty also said the legislative history on the statute setting up a special election for the House of Representatives "is void."
"We can't look to the Legislature on this," he said.
Miller said after the hearing county election officials need an answer by July 6 if they are to get mail-in and overseas military ballots out in time for the Sept. 13 election.
He said he interprets the statute "to say that it's plain on its face - you appear on a ballot by filing a declaration of candidacy."
He also cautioned that one should never read much into the questions asked by the court because "they often play devil's advocate." e