LaPorta v. Broadbent ( 1975 )

OPINION

By the Court,

Zenoff, J.:

Petitioner R. Hal Smith was a candidate for election in State Assembly District No. 22 on November 5, 1974. For a period of approximately three hours of that day some voters who signed to vote in Precinct No. 25 were unable to cast a ballot for Smith or the other candidate, John E. “Jack” Jeffery, because a ballot had become stuck in the voting apparatus and the mechanism had to be replaced. Unnoticed by anyone, the substituted mechanism did not contain the names of Smith or Jeffery but was instead a list of candidates that belonged to another precinct.

After the error was discovered the correct list was inserted but in the meantime an unknown number of persons had cast their ballots but not for either Jeffery or Smith. Jeffery won the election by six votes which Smith contests. He made demand upon the Board of Commissioners of Clark County for a revote as provided in NRS 293.465.¹

The board voted three to three, one member absent, and because of the tie the request before the board was denied. Without a record of the proceedings before the commissioners we do not know in detail and with accuracy what evidence was presented.

Petitioner sought a writ of mandamus from this court to compel the revote provided in the statute. After conference between the parties before this court a majority hereof on December 13, 1974 issued a peremptory writ of mandamus that the Board of County Commissioners order the revote in Precinct No. 25 of Henderson, Nevada, in accordance with the statute and further provided that only those voters who appeared on November 5, 1974 in Henderson Precinct No. 25 and signed to vote be permitted to cast ballots in the revote election. The order also stated that absentee ballots, if any, heretofore cast for the November 5 election shall be counted.

This is the written opinion with the dissent of two members to explain the writ of mandamus.

1. Under Article 6, Section 4 of the Nevada Constitution, this court has jurisdiction to entertain petitions for mandamus. Usually we require that such requests be presented to a district court first, but in this case we exercise our discretion in favor of an initial hearing because the public interest requires an early determination of the issue. The legislature is scheduled to commence January 20, 1975 and delay in the selection of this representative would hamper the legislative process. To require the presentation to be first made to the district court in all probability would end here in any event, thus we avoid the delay.

2. NRS 293.465 is unequivocal on the subject of a faulty election when the ballots are unavailable. If an election is prevented as it was here by absence of ballots the statute specifically states that the county commissioners shall order a new election in the precinct where the ballots were absent.²

Evidence before the county commissioners as to who and how many of the voters would have voted for Smith or Jeffery would destroy the secrecy of their ballot and is not pertinent when the question is what happens when the ballots aren’t there but the voters are. The statute malees no provision that voters appear and state how they would have voted nor how many.

The fundamentals of suffrage require that electors shall have the opportunity to participate in elections and that the real will of the electors should not be defeated by errors in the conduct of an election. NRS 293.127.

Writ granted.

Mowbray and Batjer, JJ., concur.

1 NRS 293.465: Loss, destruction of ballots in Precinct or District; new election ordered by County Commissioners. If an election is prevented in any Precinct or District by reason of the loss or destruction of the ballots intended for that Precinct, or any other cause, the election officers for such Precinct or District shall make an affidavit setting forth such fact and transmitted to the County Commissioners. Upon receipt of such affidavit and upon application of any Candidate for office to be voted for by the registered voters of such Precinct or District, the County Commissioners shall order a new election in such Precinct or District. (Emphasis added.)

2 Our statutes have not been kept current with the transposition of voting “machines” to the present use of “computers.” The distinction for the purposes of this case is not important however. Whatever voting device designates the candidates is the ballot.