Residency bill is back, baby

CARSON CITY — Last year, Nevada judges declared that two would-be Democratic lawmakers didn’t actually live in the districts they sought to represent, and ordered that signs be erected telling voters those candidates were ineligible for office.

Both of them — Meghan Smith and Jake Holder — lost their races. But back in 2012, a judge ruled just before the election that then-candidate Andrew Martin didn’t actually live in the 9th Assembly District. Martin got elected anyway, and was seated by the Assembly despite the judge’s ruling.

But the outcry over the Martin case caused then-Speaker Marilyn Kirkpatrick, D-North Las Vegas, and then-Minority Leader Pat Hickey, R-Reno, to introduce a bill in the 2013 session to clarify the rules pertaining to residency and the procedures for challenging a candidate whose residency is in question. The bill made it through the Assembly, but died in the Senate.

Now, the Kirkpatrick-Hickey proposal is back in the form of Assembly Bill 118, under a bill requested by Hickey. Like the 2013 version, the new bill:

• Defines a person’s residence for the purpose of running for office “…to be that place where the person has been actually, physically and corporeally within the State.”

• Eliminates language that allows courts to enforce the provisions of the residency law.

• Specifies that a member of the Legislature can only be removed from office for not living in his or her district by expulsion from the Legislature, as allowed by Article 4, Section 6 of the state constitution. (That section says each house of the Legislature is the final judge of the elections, qualifications and returns of members, and may expel a member by a two-thirds vote.)

• Forces people who want to challenge the residency of a person elected to the Legislature to file that challenge with the Assembly or Senate, but provides that if either house “…finds the contest or defense of the contest was brought or maintained without reasonable ground or to harass the prevailing party, the house may require the party who is not the prevailing party to pay costs, attorney’s fees or both, not to exceed certain amounts.”

Presumably, a procedure for filing a challenge against a would-be candidate prior to an election — pursuant to NRS 293.182 — would remain in effect. But when it comes to post-election challenges, they could be brought only before that person’s ostensible peers once the Legislature convened for business.

What are the odds that fellow lawmakers would expel a duly elected member on residency grounds? (The Legislature has only expelled one person in its history: Steven Brooks, in 2013, after he’d allegedly threatened fellow lawmakers.) And in the one example we have on record, the Martin case, not only did the Legislature allow him to be seated, Martin was placed on the temporary credentials committee, the panel that determines who should and should not be allowed to serve in the Assembly!

On the other hand, the bill does have the advantage of being true to the constitution: If Article 4, Section 6 says that each house shall judge the qualifications, elections and returns of its members, it’s problematic from a separation-of-powers standpoint to involve the judiciary in the process.

One thing is certain, however: So long as there are people out there who run for office in places where they — to coin a phrase — have not “been actually, physically or corporeally within the state,” there will be a need for somebody to adjudicate the question of residency. The issue underlying AB 118 now becomes, will the Legislature take the duty seriously enough to honestly and transparently do so?