Supreme Court rules state public officials recusal rule constitutional

[JURIST] The US Supreme Court [official website, JURIST news archive] Monday ruled [opinion, PDF] in Nevada Commission on Ethics v. Carrigan [Cornell LII backgrounder] that a Nevada ethics law that requiring government officials to recuse themselves from votes where they have a conflict of interest is constitutional. The Nevada Ethics in Government Law [text] requires government officials to recuse themselves from a vote where the person in the situation would be "materially affected" by "[t]he public officer's commitment in a private capacity to the interests of others." The opinion of the court by Justice Antonin Scalia said public officials' votes are not protected by the First Amendment protection of freedom of speech:

The answer is that a legislator's vote is the commitment of his apportioned share of the legislature's power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it. ... the legislator casts his vote as trustee for his constituents, not as a prerogative of personal power. In this respect, voting by a legislator is different from voting by a citizen. While a voter's franchise is a personal right, the procedures for voting in legislative assemblies ... pertain to legislators not as individuals but as political representatives executing the legislative process.
The court also reasoned that since there were similar recusal rules at the time the Constitution was written that it was never intended to be a protected form of speech. The court rejected the argument that the Nevada law was overbroad because it also prevented the official from advocating for other officials to vote a certain way where that official had a conflict of interest reasoning that if the voting is not constitutionally protected speech, then preventing advocating was a reasonable time, place, and manner restriction. Justice Samuel Alito concurred in part and in the judgment arguing that a public official's vote was a form of speech but agreed it was not meant to be protected because such rules were accepted at the Constitution's inception.

The Supreme Court ruling overturns the decision of the Nevada Supreme Court which, citing Citizens United v. Federal Election Commission [opinion, PDF; JURIST report], held [opinion, PDF] that preventing an official from casting such a vote violates the First Amendment because voting by an elected public officer on public issues is protected speech. City Councilman Michael Carrigan, an elected local official in Nevada, voted to approve a hotel and casino project that had used his campaign manager and friend as a paid consultant.

 

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