Thursday, November 2, 2017

Nevada: A look at the use of the recall in the state

Thanks to GOP efforts against three state Senators, the Silver State is now in the recall spotlight. I’ve written a bit on the history of using recalls to flip a legislative chamber, but I want to focus on Nevada’s peculiar use of the recall and the likelihood of the success in just getting on the ballot.

Nevada is not a big user of recalls – the state has only seen two recalls get to the ballot since 2011, a Storey County Sheriff this year and a Las Vegas Councilman in 2012. Both of those officials survived the vote. There were also at least 17 other attempts to recall an official that failed since 2012.

In 2009, there were two recalls both in the same city, with a split result (one official winning, and one losing). Ballotpedia also notes a 1980 recall. This article notes that there have been 150 attempted recalls since 1993 – that number is presumably coming from the Secretary of State’s office, so that is presumably the amount of times that someone has taken out a petition against an elected official. Most of the time that is both the beginning and the end of the process, as no signatures are handed in to force a recall. A survey of recalls in the 1970s suggested that there were 12 local recalls in Nevada during that decade, which is still more than in the last decade.

No state legislator is reported to have ever faced a recall since the state first adopted the recall in 1912, though there  was an intramural 2015 attempt against three Republican Assemblymembers (including the Speaker) and a state Senator over gun control issues, as well as threats against Governors. The current recall attempts are against Senator Joyce Woodhouse (D), 14412 signatures needed, 17465 turned in; Senator Patricia Farley (Nonpartisan), which needs 7100 signatures, and Senator Nicole Cannizzaro (D) which needs 14108.

The Blocker: Nevada Supreme Court’s Active Rulings Limiting Recalls

Nevada’s Supreme Court has been very active in limiting the recall. This year, the Court ruled that judges are exempt from recalls (in what I consider a very poorly reasoned decision). In 2010, the unanimously ruled that the signatures had to be from people who actually voted in that last election. Being a registered voter is not enough. The voter actually had to be shown that he or she actually cast a ballot in the previous race (the original baseline was actually for a Supreme Court race). This decision overturned a 2009 Nevada law that opened up the signature line to be any registered voter.

Outside of that unusual provision, the rest of Nevada's recall law is standard -- you get 90 days to collect the signatures, and you need 25% of the total turnout when the position was last up for a vote. That means it is all of the voters who came out to vote, not just those who voted for the Senate seat position. This distinction does matter, as there are real drop-offs for down ballot elections (this sites quotes a paper noting a 15% drop-off). So the 25% is harder than many states, like Wisconsin, that require 25% of turnout for that specific race. However, other states (NJ – which also rarely has recalls make the ballot) require the signatures of 25% of registered voters. This is a higher standard than Nevada, though NJ doesn’t require the signers to have actually cast a ballot in the last election.

Ballot Access News' Richard Winger noted that the Nevada's Supreme Court decision arguably violated federal law. Richard (who really knows this area) argues that the Supreme Court in Bush v. Gore and elsewhere have held that past votes cannot be used to bar signing petitions or from voting. Since the Nevada decision was not appealed to the federal courts, only a future decision would decide this point.

Signature Failure Rate Comparisons:

The signature failure rates -- meaning signatures tossed out for not conforming to the rules for whatever reason -- vary greatly from state to state. But there does seem to be some intrastate conformity. So in California, 15% failure is not unusual, same with Michigan. But in Arizona and Colorado, we frequently see 40% reject rates. Why this happens is not clear -- could be the law, could be attempts to protect incumbents, or it could be that the county clerks take a much harsher line on signature issues. But it does seem to be a pattern. In Colorado in 2013 we saw a recall that reversed this trend, as petitioners managed to limit the failure rate to 6%, but as a rule, it is a major issue.

It is not clear if Nevada has a high signature failure rate or not. At one point I did assume that it does – one recall had a 38% failure rate – but other recalls suggest that it may not high at all (the Storey County Sheriff's recall petitions had about an 18% failure rate). In that case, the cushion that petitioners have in the state Senate recalls may be enough to clear the bar. Of course, we can expect the Senators’ backers to go through every signature to make sure that they voted last time.

The attempted 2015 recalls against Assembly Speaker John Hambrick and two assembly members, Chris Edwards and Stephen Silberkraus all failed to garner enough signatures – and the requirement for a Hambrick recall on the ballot was low enough (4116) that it would seem to  have been a reasonable bet (obviously, the Senate and Assembly districts have different population sizes). However, that was an intraparty battle, so it may simply have been very difficult to get the signatures. In this case, you have supporters in one entire party that may be excited to sign.

Choosing the Replacement:

Generally, the recall is basically a new election. All the candidates run, and whoever gets the most votes wins (the First Past the Post system). Arizona and Michigan have this type of recall law (Wisconsin has a similar one, but also includes a party primary).

There is one wrinkle that doesn’t really affect the Senate races. If no one enters the race, there is a "for" or "against" recall vote with just the elected official on the ballot. If the official loses, then the replacement is chosen in the "manner provided by law." For the Nevada state legislature, that 
would be a special election, In this case, the elected official who was just removed in the recall vote would probably be able to run again in the replacement special election. 

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