The Assembly nightmare that could happen

Imagine a legislative session that can’t even get started because leadership is in limbo and not all legislators are deemed to be…legislators.

This is not a fevered pundit’s imagination. And while the election isn’t over yet, the possibilities are, alas, virtually endless.

I have already shown you that the Assembly, now 27-15 to the Democrats, could go Republican or 21-21. And there also are now two Democratic candidates who have been declared ineligible – Jake Holder and Meghan Smith, both in Democratic-held districts.

There are two issues to consider as the GOP wave grows larger: How many seats could the GOP have, and how do the ineligible candidates factor in?

Beyond the analysis that enough seats are in play that could cause a seven- or eight-seat swing in the Assembly, consider these calculations done by a data maven I know about Clark County races based on the current numbers:

If Democratic Assembly candidates run 5 points above registration, Democrats will have a 22-20 majority… 

If Democrats run 4 points above registration, Republicans will have a 22-20 majority…

If Democrats run 3 points above registration, Republicans will have 23-19 majority…

If Democrats match registration, Republicans will have 24 seats, Democrats 17 seats, and IAP 1 seat

That is how dire this could be for Democrats, and that doesn’t even count endangered northerners such as Assemblyman Skip Daly.

But let’s assume, for the sake of this exercise, that it is close after the election but that both Smith and Holder win despite being declared ineligible by judges, just as Andrew Martin was in 2012 but was seated anyhow.

How did that happen?

Remember what the Constitution says:

Sec: 6.  Power of houses to judge qualifications, elections and returns of members; selection of officers; rules of proceedings; punishment of members.  Each House shall judge of the qualifications, elections and returns of its own members, choose its own officers (except the President of the Senate), determine the rules of its proceedings and may punish its members for disorderly conduct, and with the concurrence of two thirds of all the members elected, expel a member.

But this could be complicated by another section of the Constitution that says:

 Sec. 3.  Members of assembly: Election and term of office; eligibility for office.

      1.  The members of the Assembly shall be chosen biennially by the qualified electors of their respective districts, on the Tuesday next after the first Monday in November and their term of Office shall be two years from the day next after their election.

That is, whoever gets the most votes becomes a legislator the day after the balloting. So wouldn’t it be Assemblyman Jake Holder and Assemblywoman Meghan Smith if they get the most votes, as Republicans fear they might? And couldn't they challenge the ruling if their colleagues tried to depose them?

It’s really murky what might happen under various scenarios. Here’s what one expert told me, invoking the last time there was a deadlocked Legislature, in 1995:

Seating Martin was slimy; putting him on the credentials committee was a big middle finger to the public.  The result may be quite different if the R’s are in charge.  If (Victoria) Seaman wins (against Smith)  (given the fact that the signs have been out longer), and the other first-tier R’s also win, they would have 21, and the D’s would have 20 plus Holder.  You may recall that there were two contests in the 21-21 session.... (NOTE: The process is the SOS must ministerially produce the roll of votes cast and the county clerks have to give certificates of election. That's what happened in 1995.)  But if Eisen is upset?  Now you have 22 R’s, 19 D’s and a contest for AD 10.  The R’s may decide, instead of declaring a vacancy, to seat Shelley Shelton (running vs. Holder) as the eligible candidate who received the most votes .....  And if both Seaman and Shelton lose but Eisen’s seat flips along with 5, 9, 29, 31 and 35, you could have 21 R’s, 19 D’s and two challenges – the same scenario as 1995, but with one significant difference: the challenges are legitimate.  If the margin is small and one or both ineligible D’s win, it could get very nasty.

There is a lot of history to that 1995 session that could become relevant. Before then, a lawmaker against whom a contest was filed was not awarded an election certificate. Legislative Counsel Brenda Erdoes opined that two challenged lawmakers, Chris Giunchigliani and Jan Evans, would not be seated until after the contests were settled. But the new secretary of state, Dean Heller, had performed the ministerial function of saying the two top vote-getters were elected, so both were seated and thus were allowed to vote on the contests.

There was still some controversy, but the parties had agreed to a power-sharing, so the contests were quickly rejected. 1995 was a surprisingly harmonious session.

How does this affect what might happen in 2015? Here's how:

In 1995, the law was amended to clarify: Until the contest has been decided, the candidate who received the highest number of votes for the office in the contested election must be seated as a member of the appropriate house.” 

But the Assembly could do pretty much whatever it wants. As one insider put it: "However, as each House is the judge of the rules of its proceedings and the qualifications of its members, I don’t think the Assembly would be bound to follow this statute: they may not seat Holder pending the contest....If the R’s have a 22-20 advantage (or 21-20) as you consider the challenge in AD 10, the majority may just vote to seat Shelton as the eligible candidate who received the most votes.  I think the D’s would prefer (if the challenges are upheld) to declare the office vacant and have another D appointed."

As one longtime lobbyist told me, "It could be one of the most fantastic sh--shows of all time."

Only one group wins then: Journalists.