Schaefer v. Dist. Ct. (Miller) ( 2014 )

 complaint in district court challenging Schaefer's eligibility on the ground
that he does not satisfy NRS 227.010(2), which prohibits a person from
running for State Controller unless he or she "[i]s a qualified elector and
has been a citizen resident of this State for 2 years next preceding the
election." The district court held a hearing at which evidence was
presented regarding where Schaefer resides, which the district court held
demonstrated that he resided in California, rather than Nevada, and thus,
it concluded that Schaefer did not satisfy NRS 227.010(2)'s residency
requirement. The district court further rejected Schaefer's argument that
NRS 227.010(2) was unconstitutional and, as a result, it ordered the
Secretary to remove Schaefer's name from the 2014 primary election
ballot. Schaefer then filed this emergency writ petition asking that this
court direct the Secretary to leave his name on the election ballot. In so
doing, Schaefer does not challenge the district court's residency
determination, but instead contends that NRS 227.010(2)'s residency
requirement offends the United States and Nevada Constitutions.
Having considered the parties' arguments, we conclude that
Schaefer has not demonstrated that writ relief is warranted. See NRS
34.160; Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 679, 818 P.2d
849, 853 (1991); Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88
P.3d 840, 844 (2004). In particular, Schaefer's suggestion that NRS
227.010(2) should be subject to strict scrutiny is without merit. See
Clements v. Fashing, 457 U.S. 957, 966-68 (1982) (characterizing a 7-year
candidate residency requirement as an "insignificant interference with
access to the ballot"); Bullock v. Carter, 405 U.S. 134, 142-43 (1972) ("[T]he
Court has not heretofore attached such fundamental status to candidacy
as to invoke a rigorous standard of review."); Nev. Judges Ass'n v. Lau, 112
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Nev. 51, 56, 910 P.2d 898, 901 (1996) ("[T]he right to run for office is not
deemed a fundamental right. ."). And under either rational-basis
review, see MacDonald v. City of Henderson, 818 F. Supp. 303, 305-06 (D.
Nev. 1993); Hankins v. State of Haw., 639 F. Supp. 1552, 1554-56 (D. Haw.
1986), or intermediate-scrutiny review, see Nev. Judges, 112 Nev. at 54-56,
910 P.2d at 900-01; In re Contest of Nov. 8, 2011 Gen. Election of Office of
N.J Gen. Assembly, 40 A.3d 684, 698-99 (N.J. 2012), any purported
infringement on Schaefer's right to run for office is outweighed by NRS
227.010(2)'s wholly legitimate purpose of encouraging candidates for State
Controller to familiarize themselves with the state and its budgetary
needs and constraints. Likewise, NRS 227.010(2) does not violate
Schaefer's right to travel interstate, because it does not penalize Schaefer
by denying him a fundamental right or a basic life necessity, and it is
rationally related to a legitimate government purpose. See Joseph v. City
of Birmingham, 510 F. Supp. 1319, 1332 (E.D. Mich. 1981); Civil Serv.
Merit Bd. of City of Knoxville v. Burson, 816 S.W.2d 725, 734 (Tenn. 1991).
NRS 227.010(2)'s residency requirement is likewise valid
under the Nevada Constitution. This court has previously held that "[t]he
[Nevada] Constitution defines the qualifications of an elector, but the
Legislature may prescribe reasonable qualifications for an elector who
may desire to become a candidate, providing such qualifications are not in
conflict with some constitutional provisions." Mengelkamp v. List, 88 Nev.
542, 545, 501 P.2d 1032, 1033 (1972) (quoting Riter v. Douglass, 32 Nev.
400, 435, 109 P. 444, 455-56 (1910)). Schaefer identifies no constitutional
provision with which NRS 227.010(2) would conflict, and our independent
review of the Nevada Constitution reveals no possibly conflicting
constitutional provisions. Finally, Schaefer's reliance on Schaefer v.
3
Townsend, 215 F.3d 1031 (9th Cir. 2000), provides no support for his
argument here, as that case addressed the constitutionality of a state's
imposition of its own restrictions on candidates for a federal office under
the United States Constitution and thus, has no relevance to the
Legislature's ability to prescribe requirements for state offices under the
Nevada Constitution. Accordingly, for the foregoing reasons, we
ORDER the petition DENIED. 3
Piek. J. J.
Pickering Hardesty
J.
-C244.'"‘"146
Parraguirre
.7.371.
Douglas
1Siitt
(C.111S
Cherry a Saitta
cc: Hon. Carolyn Ellsworth, District Judge
John Michael Schaefer
Attorney General/Carson City
Eighth District Court Clerk
3 Inlight of our resolution of this matter, we deny as moot Schaefer's
request that this matter be orally argued.
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