Only in Nevada: Ineligible to run, but eligible to serve

This is one of those “only in Nevada” stories:

A Democratic candidate who a judge determined is ineligible to run for an Assembly seat because he doesn’t live in the district nevertheless will be awarded the position because his party controls the house and his opponent can’t afford to fight on.

Is this because lawmakers in both parties are totally irresponsible in allowing this to happen with nary a peep, much less a hearing in Carson City on the first day to determine if the candidate in question, Andrew Martin, should be seated? Or is it that – and this would be hard to believe anywhere but Home Means Nevada – they are powerless to act?

This absurdity is mostly the fault of Nevada’s Founding Fathers (ADDENDUM: copied from US and CA), who placed in the Constitution a provision almost as outrageous as mining’s tax protections. It’s pretty clear-cut:

Sec: 6.  Power of houses to judge qualifications, elections and returns of members; selection of officers; rules of proceedings; punishment of members.  Each House shall judge of the qualifications, elections and returns of its own members…….

Subsequent court cases have only solidified the provision’s supremacy, so the Assembly majority (27 put of 42 members) would have to vote not to seat Martin. And that will not happen.

No order in the court case had been filed as of this writing. But Judge Rob Bare did not mince words on the day before the election when he ruled that Martin does not live in District 9, a fact made obvious by a private detective’s report that showed he was charging his electric car every night in a residence outside the area.

"There was a pretty consistent plugging in and unplugging in of the car there at the only place where you have the cord available to do it,” Bare said according to a Las Vegas Review-Journal report. And, the judge went on to say, “My finding is that his candidacy is not valid, he’s not eligible to run based upon his failure to meet the residency requirement in Assembly District 9.”

Who is that Bare was speaking of? None other than Assemblyman Andrew Martin, ready to start work Feb. 4 in Carson City when his Democratic colleagues vote to seat him. (Martin won the election the next day over Kelly Hurst by 53 percent to 47 percent.)

The Republicans also are constrained by a rule, codified in 2003, that is a bipartisan attempt to intimidate anyone from challenging an election result. It says that if the person who contests the election loses, he or she must pay all legal fees and other associated costs. No wonder Hurst doesn’t want to push it, considering the Democratic majority.

Sources report that both parties have been discussing how to handle this conundrum, with lawyers whispering sweet legalisms in their ears. The bottom line: Assembly Minority Leader Pat Hickey and Speaker Marilyn Kirkpatrick don’t believe they have the authority to do anything, especially because Hurst is not contesting the election.

“The law is unclear on whether the judge could have stepped in,” Kirkpatrick told me Thursday. “We don’t really have the power to go in.”

What about holding a hearing to discuss Martin’s credentials? Nope, she told me.

Seem crazy to anyone out there? A show of hands, please?

My take: The Legislature has the power to do pretty much what it wants once the 120-day clock starts ticking – if this constitutional provision doesn’t tell you that, history does. So the Gang of 63 surely could do something, right?

On the other hand, the Constitution is the Constitution, and the statutes indicate that unless there is a contest, there’s nothing much to be done within the law. Martin might actually have an excellent legal case if the Gang of 62 tried to unseat him. But because there is no contest – and we’ve had a few doozies in Nevada, including when the Assembly as tied 21-21 in 1995 – the case is moot.

There is another issue here, too, which Kirkpatrick says she and Hickey are going to attempt to resolve along with other murkiness in these laws: What does “residency” really mean?

This has come up in the past, with questions surrounding the Reno/Las Vegas traversing Randolph Townsend and the West LasVegas/Canyon Gate traveling Morse Arberry. Cases are not clear on exactly what it means to “reside” somewhere, which is why Kirkpatrick and Hickey want to clarify it.

As one lawyer explained it, “Residence involves both physical presence and intent. Though you can't claim residence in a place you've never been just by renting an apartment, you can claim residence in a place you spend less than half your time. It didn't matter which house Randolph stayed in more often: he had two homes, and the one in Reno was his residence.”

Or as the ever-blunt Kirkpatrick put it: “You ought to run wherever the heck you want to live.” I can see that language in the NRS….

So Martin becomes an assemblyman in name at least, even though a judge says he is ineligible to have the title. That could put a crimp on his plans for re-election, although my guess is he’ll plug his car into a socket in District 9 any day now.