Most of the time we think of voting rights as protecting voters in a jurisdiction when they vote for their representatives. But what about the voting rights of representatives once in office?
The scope of state power to require the recusal of an elected representative is the key issue in a case now before the Supreme Court, NV Commission on Ethics v. Carrigan. CCP and the James Madison Center for Free Speech just filed an amicus brief supporting respondent. In our brief we contend that the Nevada recusal requirement, as interpreted by the state, reaches far beyond the usual ground for recusal. The Nevada interpretation reaches protected political speech and association, without a sufficient state interest to justify that burden.
As a native Nevadan, I can say that my home state and the concept of “ethics” are not easily thought of in tandem for many people. And here, Nevada has the distinction of enforcing the most restrictive and vague recusal rule in the land (Surprise!).
The facts giving rise to this case are pretty amazing. In Carrigan, a Sparks, Nev. city councilmember‘s campaign manager (a volunteer) and buddy worked for one developer involved in a knock-down fight over building a casino. The other competing casino wanted Carrigan prevented from voting. Incidentally, as covered here, Carrigan’s buddy’s side also tried to get a councilman with opposing views disenfranchised. Neat, huh?
The Nevada Commission on Ethics told them both to recuse from voting. Carrigan disagreed that this was required—and after explaining the facts in a public hearing, cast his (long expected) vote in favor of his guys. The Nevada Supreme Court overruled the state Ethics Commission and a lower court decision, and concluded that Carrigan has a First Amendment protected right to vote on the matter. The U.S. Supreme Court has now granted the state Ethic’s Commission’s petition for review.
Usually prognosticators assume that the Court doesn’t grant cert review just to uphold a decision below—but does that mean Carrigan is out of luck? Not necessarily. Presently there is a three-way split among the circuit on the proper standard of review to apply. Is it strict scrutiny? A balancing test? Or something more lenient? Given this noisome split, the Court may be seeking to clarify the approach for everybody, rather than to correct this case. This case shows in vivid detail how recusal requirements can become a weapon in larger political maneuvers. It should remind us that sometimes ethics isn’t all that “ethical.”
Election Law uber-celebrity Rick Hasen represents the respondents.
