Incumbent protection undercut

In June, the U.S. Supreme Court issued a ruling that again calls into question the validity of one of Nevada’s election laws, enacted more than 20 years ago.

In 1984, Clark County resident Gary Lee Roberts was elected to the Nevada Assembly. At the time, he was under the illusion he was a Democrat and was a thorn in the side of his fellow Democrats. He later switched parties and ran unsuccessfully for the Nevada Senate in 1986. In 1988, he tried for nonconsecutive reelection to the Assembly. He was not elected, but his former fellow Democrats were furious at him and used the lawmaking process to take their revenge. Because Roberts had used the term “re-elect” in his campaign materials in the 1988 campaign, they passed a law based on the theory that Noah Webster had deeded ownership of the English language to the Nevada Legislature. The new laws, Nevada Revised Statutes 294A.330 and 294A.340, prohibited the use of “re-elect” by candidates running for nonconsecutive terms and banned language that “implies that the candidate is the incumbent … in any material, statement or publication …”

The job of interpreting what language violates the law fell to Nevada’s secretary of state. A common pattern was established when people began filing complaints thatcampaign materials listed only names and offices. For instance, on Feb. 5, 1996, an anonymous complaint against U.S. House candidate Jim Gibbons arrived in the office of Secretary of State Dean Heller. The complaint said the Gibbons campaign letterhead read:

Jim

GIBBONS

CONGRESS

This, claimed the brave complainant, implied incumbency. It turned out the two laws contained no enforcement mechanism and no penalty for violation, so Heller simply advised Gibbons of the terms of the law and let it go at that. Thus, the law then had mainly nuisance value, though public funds were used in conducting probes. Later, the Legislature added a $5,000 penalty and other provisions to the laws. There are currently at least five such complaints before the secretary of state, filed by Swadeep Nigam, Cammy Brunold and Michelle Mendoza.

But a long line of federal court cases say governments have no business policing language or truth, even when intended to mislead. Those cases give particularly strong protection to political speech. This cycle of cases was reinforced in June by U.S. v. Alvarez, in which Justice Anthony Kennedy wrote, for the majority, that government is without authority to prosecute those who claim falsely to have earned military decorations: “Permitting the government to decree this speech to be a criminal offense … would endorse government authority to compile a list of subjects about which false statements are punishable. … Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out.”

That ruling relied on previous court decisions.

Justice Robert Jackson, concurring in Thomas v. Collins (1945): “But it cannot be the duty, because it is not the right, of the state to protect the public against false doctrine. … In this field, every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.”

Justice Potter Stewart, for the majority, Monitor Patriot Co. v. Roy (1971): “[I]t can hardly be doubted that the constitutional guarantee [of speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office.”

The Nevada Legislature, composed of incumbents, is unlikely to repeal the two laws, and so far no candidate has challenged it in court.

There is also a Nevada complaint filed by John Herrington that signs were posted in Silver City before a local law allows it. However, in Ladue v. Gilleo the U.S. Supreme Court ruled that people can express themselves with signs at any time of the year. So die-hards can keep those Goldwater or McGovern signs in place.