By Matt Ward
Lawyers for the Town of Pahrump have filed a motion seeking an injunction against Nye County over a controversial November ballot question.
The legal tussle between the two local governments was already in full swing — the town filed a lawsuit in District Court on Aug. 13 and the county countered with a scathing motion to dismiss last week that will likely be rebutted with a counter motion from the town later this week.
Now, the town’s attorneys are seeking an injunction to keep voters from casting their votes on whether the town board should be reconstituted into an advisory board, which would mean an end to its fiduciary independence.
Filed Friday, the motion for an injunction contains many of the same arguments outlined in the town’s lawsuit, namely that county commissioners on July 3 failed to make a determination that the citizens of Pahrump were no longer being served adequately by the town board form of government when they voted to place the question on the ballot.
The Nevada statute that outlines the authority of county commissioners over towns in their jurisdiction suggests such a “determination” should be made.
Armstrong Teasdale attorney Bret Meich, the town’s legal representative, said the injunction was filed so that two concerns could be addressed.
“The town’s concerns are two-fold. One, any question presented to the voters be a valid question, which in this case it’s not. The county failed to follow state law. And two, to make sure the public understands that the county’s effort to place the question before voters doesn’t have any effect. Individual voters are going out, spending money, advocating for or against a certain ballot question, and because the county waited until the eve of the state mandated deadline to put the question on the ballot in the first place, the town and the town’s citizens are in the unfortunate position of having to think about this question both from a legal and political point of view with not much time remaining before the general election,” he said.
The county’s legal representative, District Attorney Brian Kunzi, says the town’s argument isn’t valid, that commissioners had every right to place the ballot question without first revealing their personal beliefs about the efficacy of the town board form of government. Further, the county’s motion to dismiss suggests the town itself violated state law by its adoption of a vague town board item authorizing the lawsuit against the county during a July 24 town board meeting — the Aug. 13 complaint came to light when the Pahrump Valley Times made a random inquiry with the District Court about cases pending against the county two weeks ago.
What is gearing up to be a messy legal fight could spill over into the election.
District Judge Robert Lane won’t hear arguments for or against dismissal, and then for or against the injunction until Oct. 15. By then, hundreds of military, overseas and absentee ballots will likely have already been cast.
In charge of the election operation is Nye County Clerk Sam Merlino. She also happens to be a defendant in the town’s lawsuit.
She says she has no choice but to proceed full speed ahead regardless of the unfolding legal row.
“By law I have to get the military and overseas ballots out by Sept. 21. No matter what, this question is on the ballot at this time. Unfortunately, even with the Oct. 15 hearing, our machines and everything will already be tested, programmed and ready to go for early voting on the 20th,” Merlino said.
The county clerk says she’s bracing for one of two possibilities — either the judge rules for the county and the ballot question stands, or the judge rules for the town and votes for the ballot question are simply ignored.
“I can’t speak for the judge one way or the other. There are only two determinations he can make. One is it’s all valid and it won’t change anything that I’ve done,” she said. “Now, if he determines it wasn’t done correctly, or whatever, I have no idea what he could possibly determine because unfortunately we will have many, many absentee ballots back and voted at that time. There’s no possible way to reprint, resend ballots. I really don’t know what he could do at that point except maybe invalidate the votes at the end or something.”
Merlino said she’s never heard of a judge invalidating a vote like that.
“As far as I know, I’ve never heard of it,” she said.
Meich suggested the court could direct Merlino to alter the voting machines ahead of the start of early voting on Oct. 20.
“Ultimately, it’s in the court’s hands. We believe the sooner a court rules on the substance of the complaint, the sooner the public will be alerted to the effect of their vote. It’s within the judge’s discretion to have the voting machines changed, but that’s within his discretion. Our primary focus is to alert the public before the election that their vote, because of the county’s failure, would have no legal effect.”