Citizens in Charge

While searching through countless bills across the nation in an attempt to provide an open and accessible voting process, I continually stumble across legislation that begs the question, “What were they thinking?” Most recently Nevada Senate Bill 212, which passed through the Legislature this year and was signed into effect on June 4th. As it turns out, this bill makes a change that has been struck down in federal court twice!

Nevada has a long history of increasing the difficulty for a citizen-led group to successfully petition on an issue. The sponsor of the bill, Senator Dean Rhoads (R-Elko), was recently the sponsor of an extremely similar bill which required a certain percentage of signatures from a designated district. In years past, Nevada required petitioners to gather signatures from 10% of voters in 13 out of the state’s 17 counties. A federal judge ruled that this requirement was unconstitutional in 2005. Petitioners were then able to gather signatures from 10% of the state’s voters wherever they chose.

Senator Rhoads, apparently misreading the federal judge’s decision, decided in 2007 that 13 counties must be too few, and that all 17 counties needed to have 10% of the voters’ signatures. Predictably, the measure was ruled unconstitutional in 2008 on the grounds that it gave veto power to smaller counties, or perhaps more important to point out - to special interest groups in one county.

This year’s Senate Bill 212 uses almost identical language to Sen. Rhoads’ original proposal from 2007, but it substitutes the state’s “counties” with “petition districts.” The bill, introduced on March 13th, called for the use of assembly districts as the petition districts, and that the same 10% be required from each district.  The most interesting part of the process to me began with the discussion about the districts and the debate that takes place over whether Congressional Districts, Assembly Districts, or some arbitrary district be devised.

On April 9th, Senator Rhoads testified before the Senate Committee and is quoted saying, “Congressional Districts would be unconstitutional as well and not give the rural counties much say in the issues.” He submitted a legal opinion by the law firm Jones Vargas, which concluded,

“a scheme focusing upon congressional districts is likely unconstitutional and violative of the Equal Protection Clause of the Fifth and Fourteenth Amendments to the United States Constitution…It would be risky and potentially wasteful to pursue schemes like the congressional districts plan that the courts have forewarned the Nevada Legislature would be constitutionally suspect.”

The report examined past court cases, including the two mentioned above, and concluded Congressional Districts will be ruled unconstitutional. Ironically, preceding the unconstitutional bill of 2007, the Legislature was warned by American Civil Liberties Union (ACLU) lawyer Allen Lichtenstein that the 17-county plan was unconstitutional and passing it would be a “tremendous waste of resources and taxpayers’ money.”

The real eye-popping moment in my research came in the next Senate Committee meeting on May 30th when the problem of unconstitutionality has pinned this bill’s supporters and forced innovation on the thought of districts, causing Senator Rhoads to announce:

“we have now reached a compromise to use congressional districts”

His own evidence, submitted through his own research, states that congressional districts are the worst possible option. After more debate and testimony, the bill was passed with the understanding that Congressional districts would be used as “petition districts” until July 1, 2011 when districts could be created based on the most recent Census. This now holds that congressional districts will be used until a different Nevada Legislature in 2011 decides the best definition of the petition districts.

Lee Rowland of the ACLU testified that, “the Legislature has already reduced the opportunity for the initiative process in every way it can.” Leaving the assignment of districts, which carry a large impact over the ballot initiative process, to a group who repeatedly has discouraged the process, is a dangerous idea. Unfortunately papers were signed on June 4th, with legislatively- concerned citizens left to hope that this bill, too, will later be considered a “tremendous waste of resources and taxpayers’ money,” as opposed to a death knell on the ballot initiative process of Nevada.

Bob Weber is the Voters’ Best Friend. As Citizens in Charge Foundation’s ballot research associate, his goal is to provide greater transparency to all matters related to the ballot for the average voters across the country.