John O'Connor of Fallon has taken his attempt to force Sen. Mike McGinness, R-Fallon, off the ballot to the Nevada Supreme Court.
His argument is that Nevada's constitutional term limits rule should be applied retroactively to McGinness and all other members of the Nevada Legislature, and since McGinness has already served the 12 years permitted by term limits, he can't run again.
The term limits provision has always been interpreted as applying only after the date when it formally became part of Nevada's Constitution - at the voter canvass which followed the 1996 general election.
That means none of the time lawmakers and other public officials served before that date is counted toward that 12-year limitation.
O'Connor, also a Republican, is running against McGinness, but is given only a small chance of unseating him in the primary election. He says he shouldn't have to because McGinness shouldn't be allowed to run and filed an affidavit with Secretary of State Dean Heller demanding McGinness' name be removed from the ballot.
Heller submitted the issue to the Attorney General's Office, which refused to take the challenge to court, saying the issue has already been settled.
O'Connor took the petition to the Nevada Supreme Court last week, demanding McGinness' name be taken off the primary ballot. He argued his First Amendment right to represent himself to voters as the "only Republican candidate who is qualified to be on the primary election ballot" for the Central Nevada Senatorial District is being "arbitrarily denied."
He argues the term limits provision should be applied to all of McGinness' Senate service as well as to the total legislative service of all other members.
If that were done, it would remove McGinness and nine other Senate members, including Majority Leader Bill Raggio, R-Reno. In addition, nine of 42 members of the Assembly would be out, including Speaker Richard Perkins, D-Henderson.
O'Connor said the Legislative Counsel "has improperly generated a legal opinion for incumbent legislators who have been termed out of office to use as a legal excuse for remaining in office in clear violation of the term limit prohibition."
But Counsel Bureau Director Lorne Malkiewich said there is ample evidence the term limits provision intended to count only those years of service after its final passage by voters in 1996. Since the first statewide general elections after that were in November 1998, he said no one is "term limited out" until 12 years after that - 2012.
Malkiewich said that was the opinion of the Attorney General's Office and the Counsel Bureau's legal division. In addition, he said those who are halfway through an elected Senate term at that point would not be termed out until 2012.
He said other states where it wasn't spelled out have also determined the limitation should not apply retroactively.