Fourth-place finisher ruled out

The fourth place finisher in the Mesquite City Council primary will not be on the general election ballot in June, a district court judge said Tuesday.

Scott Fisher filed a petition in district court last week to block his exclusion from the June 5 ballot.

He was one of six candidates in an at-large election for two open seats on the council. Fisher argued that election officials erred when they followed a city ordinance instead of a state election law and declared David Bennett the outright winner of one seat because he had obtained a majority, 60 percent, out of the 3,250 voters' ballots.

The judge's decision means the second- and third-place finishers, Geno Withelder and Randy Ence, will be on the general election ballot to fight it out for the second council seat.

"I think justice was served a little cold today," Fisher said after the judge's decision. "It was really a slap in the face of democracy."

Fisher said city officials ignored state law, which would have required Bennett to receive the majority of the 6,152 votes cast in order to win the primary. Voters made more than one selection on each ballot for the race. Using that higher number of votes cast instead of the number of ballots cast, Bennett received only 31 percent of those votes, Fisher's attorney Brian Olson said.

Under the Nevada statute, if no candidate receives a majority of the votes, then election officials must place the top two vote-getters on the ballot to face off in the general election. If Fisher had won his case in court Tuesday, there would be four candidates, including Bennett and Fisher, on the general election ballot fighting it out for the two seats.

Under the state law in the Mesquite primary it "would have been impossible to receive a majority of votes cast," District Judge David Wall said.

He said the state law does not contemplate at-large primaries where two positions are open and voters are selecting two candidates for each seat.

If every voter voted for two candidates, which they did not in this primary, and every one voted for Bennett, he still would not win the majority of votes, Wall said.

He said the city's ordinance accounts for this type of an election.

Fisher and his attorneys are considering appealing their case to the state Supreme Court.

"The Legislature never intended an at-large race to be won in the primary," Fisher said.

Secretary of State Ross Miller sent a letter to the Mesquite city attorney, which said that the state statute does not apply to this particular race and urged the city to apply the Mesquite ordinance to the city's analysis of the election.

Cheryl Truman Hunt, deputy city attorney, said the ballots are ready to be printed and also asked Wall not to discount the people's choice.

"The majority of voters voted for David Bennett," she said, adding later that, "he's sent out his thank yous to everyone."