[EL] Nevada Term Limits Case

[Colin C. Smith]

Listserv Colleagues,

Does anyone have a good article, set of citations, or some insight into the legal contours of the current term limits dispute in Reno, NV<http://electionlawblog.org/?p=59067> that Rick posted about (mentioned below)?

The issues that I am specifically interested in are these:

(1)  Have there been similar cases in the past? (In Nevada or in other jurisdictions);

(2)  Is there a presumption that a person cannot be removed from office based upon a term limits regulation if the individual in question has already been sworn in?; and

(3)  What is the legal status of the acts the individual has taken since being sworn in?  Are those valid, void, or voidable, if the term limits argument is successful?

It seems to me the Nevada case is a unique one, and given my lack of experience in the area, I thought I would solicit some insight from the Listserv to see if anyone is more familiar with the issues than I am.  If anyone has any other insight into this particular case, I'd be interested to hear it (whether the case for/against is strong, etc.).

Thanks in advance for any responses.

-Colin

COLIN C. SMITH
Attorney at Law
Nyemaster Goode, P.C.
700 Walnut, Suite 1600
Des Moines, IA 50309
Phone: #(515) 283-3190
Fax: #(515) 283-3108
ccsmith at nyemaster.com<mailto:xxx at nyemaster.com>
www.nyemaster.com<http://www.nyemaster.com/>



From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Thursday, February 27, 2014 10:33 AM
To: law-election at uci.edu
Subject: [EL] ELB News and Commentary 2/27/14

The Uniformity Question and Early Voting: Ohio and North Carolina<http://electionlawblog.org/?p=59094>
Posted on February 27, 2014 8:29 am<http://electionlawblog.org/?p=59094> by Rick Hasen<http://electionlawblog.org/?author=3>

Via Doug Chapin<http://blog.lib.umn.edu/cspg/electionacademy/2014/02/many_north_carolina_counties_s.php> comes news today from WFAE <http://blog.lib.umn.edu/cspg/electionacademy/2014/02/many_north_carolina_counties_s.php> that some North Carolina want to cut back further on early voting. This comes after Ohio SOS Husted announce<http://electionlawblog.org/?p=59053>d uniform rules for hours for early voting throughout Ohio. Husted's announcement was controversial because he eliminated Sunday voting, which has been used by some African-American organizations for a "souls to the polls" push to go vote from church.

Doug cautions that it is easy to read the North Carolina cutbacks as a partisan means of suppressing the vote, but that would be wrong in North Carolina's case:

What might get lost in the fierce partisan debate is the fact these requests are bipartisan and have far more to do with how much early voting is costing some communities compared to the number of voters using it...North Carolina's efforts to adapt to the new early voting hours echoes similar disputes in Ohio, Georgia and elsewhere - where tension has emerged between the desire to establish statewide standards that are fair to all voters and the reality that different communities have different resources and differing ideas of what "convenience" means in the early voting context.

One might think that uniformity avoids issues of partisanship. So this flips things on its head: uniformity might work to serve partisan goals and lack of uniformity  might have a good, non-partisan reason.

This is an issue we will have to think more closely about. Ohio SOS Husted has long taken the position that he requires uniformity throughout the state, and uniformity in at least some things could be required by Bush v. Gore. But if some large urban (likely Democratic) counties have more demand for early voting, and a desire for voting on Sundays, maybe they should get more early voting time.  And if some small, rural (likely Republican) counties have less demand for early voting, maybe they need not have the expense of early voting time that few will use.  But there's still the question of how to deal with partisan bias: what if the small rural county wants to cut back on early voting because it is rarely used except by students-students who may tend to vote for Democrats?


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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>, voting<http://electionlawblog.org/?cat=31>
"FEC deadlocks 3-3 on case regarding whether small political ads on mobile devices must include disclaimers."<http://electionlawblog.org/?p=59092>
Posted on February 27, 2014 7:59 am<http://electionlawblog.org/?p=59092> by Rick Hasen<http://electionlawblog.org/?author=3>

Dave Levinthal tweets<https://twitter.com/davelevinthal/status/439066591926706176>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, federal election commission<http://electionlawblog.org/?cat=24>
"Nonprofits spend money on campaigns despite benefactors' warnings; Spending may run afoul of IRS rules, lawyers say"<http://electionlawblog.org/?p=59090>
Posted on February 27, 2014 7:56 am<http://electionlawblog.org/?p=59090> by Rick Hasen<http://electionlawblog.org/?author=3>

Extensive CPI report<http://www.publicintegrity.org/2014/02/27/14293/nonprofits-spend-money-campaigns-despite-benefactors-warnings>. See also Nonprofits' failure to report political activity to IRS raises questions<https://www.publicintegrity.org/2014/02/27/14295/nonprofits-failure-report-political-activity-irs-raises-questions> and Transfers allow nonprofits to spend more money on campaigns, experts say.<http://www.publicintegrity.org/2014/02/27/14294/transfers-allow-nonprofits-spend-more-money-campaigns-experts-say>

Must reads.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
"The Right to Do Politics and Not Just to Speak"<http://electionlawblog.org/?p=59088>
Posted on February 27, 2014 7:51 am<http://electionlawblog.org/?p=59088> by Rick Hasen<http://electionlawblog.org/?author=3>

The final version of Bob Bauer's pape<http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1068&context=djclpp>r has been published by the Duke Journal on Constitutional Law and Policy.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, campaigns<http://electionlawblog.org/?cat=59>
"Classifying Corruption"<http://electionlawblog.org/?p=59086>
Posted on February 27, 2014 7:47 am<http://electionlawblog.org/?p=59086> by Rick Hasen<http://electionlawblog.org/?author=3>

Yasmin Dawood has posted this draft<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2401297> on SSRN (forthcoming Duke Journal of Constitutional Law & Public Policy). Here is the abstract:

Why is corruption wrong? This article argues that there are two main approaches to conceptualizing the "wrong" of corruption: first, corruption as an abuse of power; and second, corruption as inequality. In addition, I claim that there is a conceptual convergence between these two approaches. As a result, many forms of corruption can be framed as either an abuse of power and/or as a violation of equality. I show that even quid pro quo corruption can be framed in equality terms - a surprising outcome given the Supreme Court's acceptance of quid pro quo corruption and rejection of equality-based corruption.

This article also raises two queries about Lawrence Lessig's theory of dependence corruption. My first claim is that dependence corruption is not fully consistent with an originalist understanding of corruption, and my second suggestion is that the "wrong" at issue in dependence corruption is ultimately a concern about representation.

In addition to developing a conceptual map of corruption, this article focuses on the theoretical puzzles and challenges posed by corruption. For corruption as inequality, I identify seven forms that it could take, and I show how some of these forms have manifested in the Court's campaign finance decisions. For corruption as the abuse of power, I identify three conceptual challenges (involving corrupt political gain, the public interest, and legislative independence). I argue that these conceptual challenges make it difficult to distinguish corruption from ordinary democratic politics.

I read an earlier draft of this. Highly recommended!!
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
"GOP Revives Focus on Lois Lerner"<http://electionlawblog.org/?p=59084>
Posted on February 27, 2014 7:36 am<http://electionlawblog.org/?p=59084> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico<http://www.politico.com/story/2014/02/lois-lerner-irs-contempt-republicans-104019.html?hp=r6>: "House Republicans are gearing up to take their IRS tea party-targeting investigation to a whole new level next week - potentially even holding former IRS official Lois Lerner in contempt of Congress."
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>
"Connecting the Dots in the IRS Scandal: The 'smoking gun' in the targeting of conservative groups has been hiding in plain sight."<http://electionlawblog.org/?p=59082>
Posted on February 27, 2014 7:29 am<http://electionlawblog.org/?p=59082> by Rick Hasen<http://electionlawblog.org/?author=3>

Brad Smith WSJ oped<http://online.wsj.com/news/articles/SB10001424052702303426304579401513939340666>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>
"Comments on Guidance for Tax-Exempt Social Welfare Organizations on Candidate-Related Political Activities"<http://electionlawblog.org/?p=59079>
Posted on February 26, 2014 8:15 pm<http://electionlawblog.org/?p=59079> by Rick Hasen<http://electionlawblog.org/?author=3>

Brian Galle and Donald Tobin have posted their comments<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2399315> on the IRS Rulemaking to SSRN.  Here is the abstract:
The Notice is a good first step. It creates bright-line standards that are easy to apply and that will eliminate much of the gray area regarding permissible political activity. Clearer lines will reduce the discretion on the part of the IRS. By decreasing the IRS's discretion, the regulation will reduce the opportunity for the IRS to be used as a political tool in an Administration's tool box.

However, the Notice does not go far enough. Congress has established a regulatory regime that has as its central purpose the disclosure of any significant campaign contributions by individuals or firms. In recent years many organizations have exploited the confidentiality rules of § 501(c)(4) to evade that regime, to the detriment not only of U.S. political discourse but also the non-profit sector. The Final Rule should ensure that groups with significant partisan political activity cannot obtain exemption under § 501(c)(4), or indeed under any parallel provision of § 501.

We believe, however, that groups carrying out "substantial" electioneering activities should generally be eligible for exemption under § 527, and that the IRS should make that clear in the Final Rule. The main consequence of any ruling denying § 501(c)(4) status based on the political activity of the organization, therefore, would simply be to require the disclosure of an organization's donors, and to ensure that the organization's political expenditures are disclosed contemporaneously with the election they seek to influence.

Accordingly, the Final Rule should be designed in a way that channels organizations with any substantial amount of undisclosed electioneering activity into § 527. For example, we propose a strong presumption that any group with candidate-related political activity of more than 10% of its budget, or of more than an overall cap of some amount, such as $1 million, whichever is lesser, should be recognized as a § 527 political organization and not as a § 501c(4) social welfare organization. The final rule should interpret "electioneering" broadly to include facially non-partisan activities that can be used to partisan advantage, including candidate-related advertising that falls outside the window immediately surrounding an election. Groups that voluntarily disclose their donors could retain c(4) status.

Additionally, we suggest that the IRS seriously consider developing rules to limit the use of for-profit entities to evade § 527. We urge the IRS to take a clearer stand on its enforcement plans and legally dubious Forms 990. And we argue that nothing in the Notice, or in what we additionally suggest here, would raise serious First Amendment concerns.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>
"Conflicting Signals on Finalizing the Proposed Treasury Regulations for 501(c)(4)s"<http://electionlawblog.org/?p=59077>
Posted on February 26, 2014 7:48 pm<http://electionlawblog.org/?p=59077> by Rick Hasen<http://electionlawblog.org/?author=3>

Inside Political Law reports<http://www.insidepoliticallaw.com/2014/02/26/conflicting-signals-on-finalizing-the-proposed-treasury-regulations-for-501c4s/>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>
"Bob Packwood's Redemption Story: How Bob Packwood and other disgraced former members of Congress found salvation as lobbyists"<http://electionlawblog.org/?p=59075>
Posted on February 26, 2014 7:14 pm<http://electionlawblog.org/?p=59075> by Rick Hasen<http://electionlawblog.org/?author=3>

Politico magazine reports<http://www.politico.com/magazine/story/2014/02/bob-packwood-lobbying-politics-103966.html#.Uw6tW17VgZx>.
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Posted in legislation and legislatures<http://electionlawblog.org/?cat=27>, lobbying<http://electionlawblog.org/?cat=28>
CA Court Blocks Sacramento Arena Initiative<http://electionlawblog.org/?p=59072>
Posted on February 26, 2014 5:34 pm<http://electionlawblog.org/?p=59072> by Rick Hasen<http://electionlawblog.org/?author=3>

Following up on this post<http://electionlawblog.org/?p=58423>, a trial court has issued this ruling<http://electionlawblog.org/wp-content/uploads/34-2014-80001748.pdf> holding that the arena measure may not go on the ballot. The court offers two reasons: (1) the proposal must be made as an amendment to the city charter, not done, as this purports to do, through an initiative; (2) the circulation of the measure did not substantially comply with the requirements for circulating initiatives and the problems could have misled voters.

We will see if there will be an appeal, but on first read the opinion seems persuasive.
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Posted in direct democracy<http://electionlawblog.org/?cat=62>
"The Other Side of Corporate Speech"<http://electionlawblog.org/?p=59070>
Posted on February 26, 2014 2:24 pm<http://electionlawblog.org/?p=59070> by Rick Hasen<http://electionlawblog.org/?author=3>

Howard Wasserman<http://prawfsblawg.blogs.com/prawfsblawg/2014/02/the-other-side-of-corporate-speech.html>:

There are<http://deadspin.com/anti-gay-bill-could-cost-arizona-the-super-bowl-1531409894> reports<http://www.azcentral.com/business/arizonaeconomy/articles/20140225business-leaders-fear-loss-of-super-bowl-over-sb-lm.html?nclick_check=1> that the NFL is monitoring Arizona's SB 1062<http://www.azcentral.com/news/politics/articles/20140224an-overview-controversy-around-sb.html>, which gives private businesses the right to refuse service to anyone if providing service would violate their religious beliefs. Phoenix is scheduled to host next year's Super Bowl, but the league stated that such a bill would be inconsistent with the league's (stated and purported) policies of tolerance, inclusiveness, and non-discrimination for all sorts of reasons, including sexual orientation. ...But isn't this corporate speech? Isn't the NFL, a powerful entity, engaging in First Amendment expressive activities by using its economic influence to affect public policy? Isn't this exactly what critics of the "corporations have First Amendment rights" meme object to? (The NFL is not a corporation but an unincorporated association of associations, but I doubt that matters much for most arguments). Liberals and progressives and supporters of LGBT rights-the very groups most likely to be critical of Citizens United, are now quite pleased with, and supportive of, the NFL's stance and the (hoped-for) effect it could have on this horrific piece of public policy. But other than the valence of the political position at issue, how is this different than a large company trying to affect environmental policy or elections (which, in turn, will define policy)?
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Posted in campaign finance<http://electionlawblog.org/?cat=10>
Nevada Supreme Court Wants Response to Petition for Rehearing in Term Limits Case<http://electionlawblog.org/?p=59067>
Posted on February 26, 2014 2:20 pm<http://electionlawblog.org/?p=59067> by Rick Hasen<http://electionlawblog.org/?author=3>

Las Vegas Review Journal:<http://slashpolitics.reviewjournal.com/2014/02/25/are-you-sure-supreme-court-yn/>

In the law, a motion for reconsideration is the longest of shots, the least hale of Hail Marys, the 60-yard field-goal attempt with less than a minute on the clock, the full-court jump shot at the buzzer, the ... well, you get the idea. It almost never works.

But there are those extremely rare cases where it's successful, where a court will cop to having made a mistake, overlooked a material fact, or misapplied past precedents. And that's precisely what former Reno Councilwoman Jessica Sferrazza is counting on with her latest legal effort.

Last week, the Nevada Supreme Court ruled that a person's service on a local government body - such as the Reno City Council - is limited to 12 years under the state's term-limits law, regardless of whether one is serving as a council member or the mayor<http://www.reviewjournal.com/news/nevada-justices-term-limited-council-members-can-t-run-mayor>. Thus, having served 12 years on the council, Sferrazza and all similarly situated officials throughout the state, are now banned for life from running for mayor. (Sferrazza and Reno Councilman Dwight Dortch contended - quite correctly, in my view<http://www.reviewjournal.com/columns-blogs/steve-sebelius/term-limits-lawsuit-asks-whether-mayors-are-unique> - that mayor was a separate office<http://www.reviewjournal.com/columns-blogs/steve-sebelius/lawsuit-council-member-doesnt-equal-mayor>, and thus a person could run and serve another 12 years, just as a person can serve 12 years in the Assembly and then run for and serve another 12 in the state Senate.)

Today, Sferrazza's attorney - Bradley Schrager of Wolf, Rifkin, Shapiro, Schulman & Rabkin - filed a motion for reconsideration with the Nevada Supreme Court, contended that justices had overlooked relevant precedents in their ruling<http://www.reviewjournal.com/columns-blogs/steve-sebelius/intent-precedent-and-charters-undercut-term-limits-ruling>.

And now the Court wants a response<http://electionlawblog.org/wp-content/uploads/14-06295.pdf>.
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Posted in term limits<http://electionlawblog.org/?cat=65>
"The Pro-Money Court: How the Roberts Supreme Court Dismantled Campaign Finance Law"<http://electionlawblog.org/?p=59065>
Posted on February 26, 2014 1:56 pm<http://electionlawblog.org/?p=59065> by Rick Hasen<http://electionlawblog.org/?author=3>

Brennan Center blogs<http://www.brennancenter.org/analysis/pro-money-supreme-court>.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, Supreme Court<http://electionlawblog.org/?cat=29>
US Does Not Score Well in Cross-National Study of Election Integrity<http://electionlawblog.org/?p=59063>
Posted on February 26, 2014 1:54 pm<http://electionlawblog.org/?p=59063> by Rick Hasen<http://electionlawblog.org/?author=3>

Pippa Norris blogs<http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/02/26/where-are-the-flawed-elections/>.
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Posted in Uncategorized<http://electionlawblog.org/?cat=1>
"Voter Suppression, Equal Rights, and the Promise of Democracy"<http://electionlawblog.org/?p=59061>
Posted on February 26, 2014 12:06 pm<http://electionlawblog.org/?p=59061> by Rick Hasen<http://electionlawblog.org/?author=3>

Great event <http://www.scholarsstrategynetwork.org/event/voter-suppression-equal-rights-and-promise-democracy> coming to Harvard March 6.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
"Tom Perkins Is Winning: The Rich Already Vote More"<http://electionlawblog.org/?p=59059>
Posted on February 26, 2014 12:03 pm<http://electionlawblog.org/?p=59059> by Rick Hasen<http://electionlawblog.org/?author=3>

Franko, Kelly, and Witko oped<http://talkingpointsmemo.com/cafe/tom-perkins-is-winning-the-rich-already-vote-more> at TPM.
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Posted in voting<http://electionlawblog.org/?cat=31>
Bloomberg BNA Quotes IRS Official: No Final 501c4 Regs Before 2014 Election<http://electionlawblog.org/?p=59057>
Posted on February 26, 2014 11:44 am<http://electionlawblog.org/?p=59057> by Rick Hasen<http://electionlawblog.org/?author=3>

Links to come.
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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22>
"Wisconsin Supreme Court justices raise concerns about voter ID law"<http://electionlawblog.org/?p=59055>
Posted on February 26, 2014 10:08 am<http://electionlawblog.org/?p=59055> by Rick Hasen<http://electionlawblog.org/?author=3>

Milwaukee Journal-Sentinel:<http://www.jsonline.com/news/statepolitics/state-voter-id-law-goes-before-wisconsin-supreme-court-b99213099z1-247038401.html>

Wisconsin Supreme Court justices expressed concerns Tuesday about the state's requirement - halted since soon after it was enacted - that voters show photo identification at the polls.

Among those raising questions was Justice Patience Roggensack, widely viewed as a leader of the conservative bloc that makes up a majority of the court. She said she was bothered that to get state ID cards for voting, people would have to provide a birth certificate or pay $20 to get one.

"I'm troubled by having to pay the state to vote," she said during three hours of arguments.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
"Early voting eliminated on Sundays across Ohio; Democrats decry ruling by GOP secretary of state"<http://electionlawblog.org/?p=59053>
Posted on February 26, 2014 7:24 am<http://electionlawblog.org/?p=59053> by Rick Hasen<http://electionlawblog.org/?author=3>

Cincinnati Enquirer reports<http://news.cincinnati.com/apps/pbcs.dll/article?AID=/201402252302/NEWS010602/302250052>.  Money quote:

State Rep. Matt Huffman, R-Lima, in a General Assembly committee discussion this month about early voting, dismissed Sunday voting. "There's that group of people who say, 'I'm only voting if someone drives me down after church on Sunday.' ... Really? Is that the person we need to cater to when we're making public policy about elections?" Huffman said. "A lot of those people would have voted anyway, except they waited till Sunday because it's convenient for them."

Yeah. Why make voting convenient for voters anyway?  Let's make it harder for everyone,<http://www.slate.com/articles/news_and_politics/politics/2014/02/the_new_conservative_assault_on_early_voting_more_republicans_fewer_voters.html> but especially people who will vote against our party.
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Posted in election administration<http://electionlawblog.org/?cat=18>, The Voting Wars<http://electionlawblog.org/?cat=60>
"House approves bill to change access to Utah voter rolls"<http://electionlawblog.org/?p=59051>
Posted on February 26, 2014 7:20 am<http://electionlawblog.org/?p=59051> by Rick Hasen<http://electionlawblog.org/?author=3>

Wonder if this<http://www.heraldextra.com/legislature/house-approves-bill-to-change-access-to-utah-voter-rolls/article_41bdfea7-0841-5db1-ab1d-8cc00d59e4a4.html> will be challenged as unconstitutional.
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Posted in election administration<http://electionlawblog.org/?cat=18>
"Your 'Um ... Wow' of the Day: Dallas Voters Put on Inactive List Because Postal Employee Didn't Feel Like Delivering Mail"<http://electionlawblog.org/?p=59049>
Posted on February 26, 2014 7:08 am<http://electionlawblog.org/?p=59049> by Rick Hasen<http://electionlawblog.org/?author=3>

A ChapinBlog.<http://blog.lib.umn.edu/cspg/electionacademy/2014/02/your_um_wow_of_the_day_dallas.php>
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Posted in election administration<http://electionlawblog.org/?cat=18>

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Rick Hasen

Chancellor's Professor of Law and Political Science

UC Irvine School of Law

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