LAS VEGAS (CN) - A dentist who won a seat on the North Las Vegas City Council by 1 vote says council members overstepped their authority by calling for a new election, "because their preferred candidate lost."
Dr. Wade Wagner sued the City of North Las Vegas and its four council members in Clark County Court. He says the voided the election he won, 1,831 to 1,830, because they favor his opponent, incumbent Richard Cherchio.
Wagner claims he is "being deprived of the office due to the unlawful actions of partisan city council members who claim the power to void lawful votes because their preferred candidate lost."
Wagner won the primary for Ward 4 of the North Las Vegas City Council in his bid to unseat Cherchio. On Election Day, the Clark County Registrar of Voters Larry Lomax reported that Wagner won the race by 1 vote, 1,831 to 1,830.
Lomax later claimed that "he learned that a ballot for the Ward 4 election had been wrongly provided to a voter" registered in a different ward. Lomax reported the issue to the city.
Acting against the advice of an attorney brought in to advise them, three members of the City Council - defendants Anita Wood, Robert Eliason and William Robinson - claimed the power "to wipe clean all votes in the precinct and order a new election," Wagner says in his complaint.
Wagner says the council is misinterpreting the law, which allows the council to call a new election only when there is a "loss or destruction of ballots, or other cause preventing election in precinct or district."
"No law authorizes the City Council to void legally cast votes under the theory that they are 'unsure' whether an improper vote was cast in favor of the winning candidate," Wagner says.
He claims the City Council members "seek to unlawfully circumvent Nevada law so as to relieve their incumbent colleague of the election results."
Ward says Lomax claims to know the identity of voter in question, "but it is not possible to actually identify that voter's specific ballot to determine whether he voted in the City Council race and, if so, for which candidate."
"As Lomax has conceded, there are three possibilities. The voter may not have voted in this race, as there were at least two voters in [the precinct] who did not vote in the City Council race. Or, the voter could have voted for Wagner or Cherchio.
"Yet, there is no circumstance in which Cherchio can be the winner. If the voter did not cast a vote in the election, Wagner won by one vote. If the voter favored Cherchio, Wagner would have actually won by two votes. If the improper vote were cast for Wagner, the outcome would be a tie, and the procedures governing ties would then apply."
In the event of a tie, the City Council is "obligated to canvass the votes and instruct the City Clerk to certify the result. Thereafter, the law vests Cherchio with the right to demand a recount. Obviously, the results of such a recount may have rendered the entire dispute moot if either Wagner or Cherchio picked up enough votes in their favor as a result of the recount," according to the complaint.
"Simply put, Nevada law expressly requires Cherchio to bring an election contest and prove that an illegal vote was cast in favor of Wagner and that without the improper vote, Wagner would not have won the election."
The council cited a state law that allows the city to order a new election, but Wagner says the law applies only when an election has been "prevented" due to destruction of ballots.
"Here, no election was prevented," Wagner says. "Rather, the election proceeded as scheduled. While Lomax announced the possibility of an improper vote, the effect of this vote on the election, and whether there had been any effect at all, is utter speculation."
Council members Wood, Eliason and Robinson voted to reject the canvass of the votes and hold a new election, which Wagner says is "outside the scope" of their authority.
Wagner seeks an injunction "preventing the disenfranchisement of voters and requiring the city to immediately canvass the votes and certify the results of the election."
He is represented by Todd Bice with Pisanelli Bice.