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Let's play Pass the Initiative!
Story by Steve Sebelius
Grab your clipboards, kids, for the zany,complex game of citizen law-making! You’ll probably lose, but boy, will you have fun!
So, you want to pass an initiative?
If you’ve reached this point, you’re frustrated. You’ve spotted a problem, and you think you’ve got a solution. You’ve tried writing to your elected representatives and to the local newspaper. You’ve talked to your neighbors at backyard barbecues.
Maybe you’ve even gone up to Carson City for a biennial session of the Nevada Legislature and watched the lawmaking process up close, as bills get introduced, dissected and put back together in committee meetings.
But nothing worked. Nobody’s listening. The process has failed you so far.
So you’re ready to try Democracy’s Last Resort, the initiative.
Good luck! You’re going to need it to navigate the Byzantine, intentionally complex process of writing and qualifying a law to put before your fellow citizens. Most who try, fail. Even some of the state’s largest companies have failed. Some incredibly bright lawyers are paid handsomely to torpedo initiatives that their clients would rather see go away.
It’s not for the faint of heart.
So we’re offering you a handy guide in the spirit of the children’s game Chutes and Ladders — not because we don’t take the initiative process seriously, but because there are so many pitfalls the game’s analogy fits perfectly.
Ladder: The first step in circulating an initiative is writing it. Although it’s not strictly necessary, it’s an excellent idea to have a good attorney on your team, one who’s familiar with legislative bill drafting and the initiative process. Many initiatives fail in this first step because they’re poorly conceived, poorly written or contain a fatal flaw.
There are three basic kinds of voter initiatives. The first proposes a law, called a statutory initiative. The second proposes to amend the state’s constitution. Although many people think a constitutional amendment is better, because it’s more permanent and can’t be changed down the line by the Legislature, it’s probably not a good idea to frivolously crowd the state’s governing document with new laws. Finally, there’s an initiative written to repeal an existing law, known as a referendum.
Pro tip: Don’t skimp on the legal talent, or have your brother-in-law the tax attorney draft your initiative. Seek out a professional who practices in this area and knows how to avoid the potholes. It will cost you, but it will be worth it later on.
Chute: Your initiative can only be about one thing, according to Nevada’s “single subject” law. It was ostensibly written to prevent clever people from combining a popular measure (low-cost auto insurance!) with a less popular one (no caps on pain-and-suffering damages in medical-malpractice laws) to try to sneak one past the voters. (Note: That actually happened! See sidebar.)
Chute: Don’t forget, if your initiative calls for the spending of tax dollars — and most will in some way — you have to identify a revenue source. If you don’t, the courts will send your measure down the chute!
Chute: Finally, remember to carefully write your “description of effect.” That’s the wording that will appear atop every page of your petition that describes what your initiative will do. While you don’t have to include every single detail, you do have to fairly and completely tell voters what your measure does, without leaving out any key detail (for example, if you propose to make something a crime, you have to tell voters that violations of your proposed law could cost people their freedom).
All right, you’ve got your initiative written, and a pretty good description of effect. Time to get moving!
Ladder: The second step in the process is filing the measure with the secretary of state’s office. The office will post your initiative to its website and be responsible for ensuring it's placed on the ballot. But don’t get cocky! There’s still a long way to go.
Chute: Once you file, you’re technically allowed to start collecting signatures. But savvy people wait, knowing what’s coming. If your initiative is challenged in court — and it probably will be — and a judge orders you to make changes, all the signatures you collected on the original version are void. You have to start over. Opponents have 15 days to file a challenge.
Chute: The most common challenge at this stage is to your description of effect. Opponents will file a lawsuit (in the First Judicial District Court, in Carson City) contending you’re somehow misleading voters. If you haven’t hired a lawyer yet, you will most certainly need to now.
Chute: The second most common challenge is the single-subject rule. Even some seemingly benign things in your initiative may prompt lawyers to argue that you’ve gone beyond what the law allows. For example, if an initiative called for raising the gas tax and increasing the state’s speed limit, it could be considered a violation of the single-subject rule. But the rule wouldn’t prevent a measure such as The Education Initiative from passing, which calls for raising a 2 percent tax on business revenue and depositing that money in the state’s schools account. Why? Because the law says petitions must “embrace but one subject and matters necessarily connected therewith and pertaining thereto.” Raising a tax for education and depositing the money in the state’s schools account are connected. But interpreting this statute has been very tricky.
Other challenges — say, one that alleges you haven’t identified a proper revenue source to cover the cost of the program created in your initiative — may be filed, too.
Chute: No matter who wins, you or your opponent, it may not be over, since either side can appeal to the Nevada Supreme Court. Although the clock is ticking on your signature drive, it’s still smarter to wait, since a change made by the Supreme Court will still require you to toss out any signatures you’ve collected. Although appeals are usually expedited, it still takes time.
Pro tip: Don’t procrastinate! File your initiative on the first day you possibly can (for statutory initiatives, that’s January of an even-numbered year; for constitutional amendments, it’s September in an odd-numbered year). This process is full of delays and time-consuming hearings; don’t waste time by not filing as soon as the law allows.
Let’s say you’ve survived court scrutiny. You’ve now got an official petition on your hands. It’s time to start collecting some signatures!
Ladder: You circulate the petition, either using volunteers or, more likely, paid signature-gatherers. Warning: Those folks can get expensive! To defray the cost, you’ll probably file to create a Political Action Committee (PAC) or Ballot Advocacy Group (BAG) with the state. BAGs and PACs allow you to raise and spend money in support of an initiative, so you can legally receive contributions and spend money to campaign.
People typically collect signatures outside grocery stores, DMV offices, post offices, political events or anywhere else they’re likely to find registered voters. Only registered voters may sign. How many signatures do you need? A number equal to 10 percent of the people who voted in the last general election.
Pro tip: It’s easier to collect signatures in the year after an “off year” election, i.e. one in which the president is not on the ballot. Why? Because turnout is typically much lower in off-year elections, and thus you’ll need fewer signatures. But no matter what, aim for about 1.5 times the number you’re required to get (i.e. if you need 100,000, get 150,000). That will give you a good cushion against invalid signatures and legal attacks.
Chute: Invalid signatures and improperly filled-out forms are the bane of your existence right now. Make sure that the people doing this work know what they’re doing, sign in the right place and personally witness voters signing the petition.
Chute: Also, you have to comply with a state law that requires at least 10 percent of your signatures to be gathered in each congressional district, which means you’ve got to post people all over the state. That law ostensibly exists so that voter-rich Clark County can’t have its way with the rest of the state, since the more than 2 million people who live here could easily qualify any measure all on their own. Your petition will have to earn at least some modicum of support in Northern and rural Nevada in order to make the ballot. But in practice, this makes circulating petitions harder.
Once you’ve got enough valid signatures, it’s time to file your petitions with county clerks.
Ladder: You submit your boxes and boxes of signed petitions to the clerks of each county where your signatures are gathered. They will take a random sample of your petitions and match it against voter lists, using math to calculate the probability that, if they verified each and every signature, there would be enough valid registered-voter inscriptions to meet the requirements.
Chute: Invalid signatures will sink you!
Chute: Improperly filled out forms will give your opponent’s lawyers another way to attack your petition in court.
Chute: And even if the county clerks certify that your petitions were filled out properly, and you have enough valid signatures, your opponents may still sue at this point to challenge validity. A lawsuit over the validity of signatures will try to support the idea that there are not enough valid signatures on the petition, and therefore it should fail. But opponents will have to identify the supposedly fake signatures, fake addresses, etc., and prove they don’t belong to actual registered voters before a judge would invalidate them. This is why getting far more signatures than you actually need is important.
If you’ve failed to gather enough valid signatures by the deadline, your petition is dead, and all your hard work is lost. But if you’ve managed to do it, you’re off to the next step.
Up until now, the process for all petitions is pretty much the same. But now, the paths diverge.
A constitutional amendment will be placed directly on the next general-election ballot, to be voted on by the people. (It’s got to pass twice to go into effect, which means, all told, you’re looking at about five years for your idea to go from conception to constitution.)
A statutory initiative or a referendum is different: It will go before the Legislature at its next session, at which time lawmakers will have to take action on it in the first 40 days. If they fail to pass it, then it will also go to the ballot in the next general election.
Ladder: (statutory amendment, referendum) Now you go to Carson City, where you will try to persuade lawmakers to pass your measure, a much swifter and easier process than if they reject it and you have to wage a statewide campaign to get it passed. You’ll have to meet with individual lawmakers, most especially the chairman of the committee to which your measure is assigned, and with legislative leadership, which controls which measures come to the floor for a vote. The upside: The Legislature can’t change your measure, not even to add a comma. The downside: If there’s a fatal flaw identified in your initiative, nobody can intervene at this point to fix it.
Pro tip: Don’t let legislators or lawmakers get away with saying, “The way to make policy is at the Legislature, not by initiative at the ballot box.” The fact is, by the time you’re out there collecting signatures in the heat of summer, they’ve very likely had more than a few chances to act and failed to do so. There’s a reason that initiatives are allowed in Nevada, and a Legislature that’s unable or unwilling to act is that reason.
Chute: It is always easier in Carson City to kill a bill than to pass one, and even the best ideas can wilt under the scrutiny of lawmakers.
Chute: Worst of all, the Legislature is empowered to reject your initiative and pass its own competing question, which will appear right next to yours on the ballot. And it doesn’t have to gather a single signature or fight a single legal battle to do so. When it comes to a vote, whichever of the two measures gets the most votes wins!
Ladder: (constitutional amendment, or statutory amendment rejected by the Legislature) You are now squarely in the middle of a political campaign, with all that entails. You’ll need to raise money to get the word out, advertise your measure, do media interviews and defend it from the sure-to-come attacks from your opponents. In many cases, it is a pitched battle, and millions of dollars are raised and spent on both sides. After months of careful writing, legal parsing and exacting attention to detail, you’ll watch as nuance is lost in the face of modern American politics.
Chute: Make sure your campaign people know what they’re doing, too. Failing to account properly for campaign contributions and spending is a serious violation, and could result in fines. And your opponents will watch everything you do, hoping a faux pas can be used to attack the credibility of your measure.
Chute: Voters may ask you why you can’t change your petition to fix the inevitable flaws that your opponents will identify. But you can’t — if you could, voters could be induced to sign a petition that later morphs into something they might not support. So not a word, not a comma, can be changed during the process. You’re stuck with whatever you’ve written, which is why it’s best to get good legal help from the start.
Finally, we’ve arrived! It’s Election Day!
If enough voters support your initiative, this long journey you’ve been on will result in your idea becoming law for the entire state. Best of all? If you’ve legislated a new statute, it can’t be changed by the Legislature for three full years. If you’ve legislated a constitutional amendment, it can only be changed by another two votes of the people.
Chute: But if you thought you were done, you were wrong! Now, attorneys can challenge your statutory initiative on constitutional grounds, arguing your law shouldn’t be allowed to go into effect for myriad reasons. But the defense of your law now passes to the state, since your measure has the imprimatur of the voters or the Legislature. So you’re no longer responsible for it, although you’ll undoubtedly want to file court papers to argue for your law.
Chute: Don’t think your constitutional amendment is safe, either! While an amendment to the state constitution is presumptively constitutional, lawyers can still argue it violates principles of the federal constitution and should be struck down on that basis.
Only after all those challenges are heard — and assuming the courts don’t invalidate or otherwise amend the measure — is your law totally and completely safe. By this time, you will no doubt need a good, long vacation. Enjoy! Because if you’ve been successful at this process, you’ve earned it.
Many of Nevada’s contemporary political issues began as initiatives. The ban on gay-marriage in the state constitution, which is now the subject of a court fight at the Ninth U.S. Circuit Court of Appeals? That was an initiative approved by voters in 2000 and 2002. The authorization for medical marijuana in Nevada? Voters passed that way back in 1998 and 2000. The ongoing fight over term limits? Yeah, voters added that to the state constitution in 1994 and 1996.
More recently, fewer initiatives are finding success. Here are several that made it, and some that didn’t.
The Education Initiative (statutory initiative), 2014: After years of frustration trying to get more money for schools at the Legislature, the Nevada State Education Association decided to implement a 2 percent business margin tax by initiative. The measure was fought vigorously in the courts but survived. Ignored by the Legislature, it will appear on the November ballot as Question 3.
The Caesars Entertainment initiative (statutory initiative), 2010-2012: The casino giant sought to create a special “arena district” on the Las Vegas Strip, with a special sales tax, to build an arena on land behind what was then called the Imperial Palace. Petitions got all the way through the process — despite challenges to whether the petition forms were properly filled out. But the Nevada Supreme Court concluded that the description of effect wasn’t sufficient because it didn’t tell voters that the only plausible site for the proposed arena was the Imperial Palace location. It never made the ballot.
Nevada Clean Indoor Air Act (statutory initiative), 2006: After years of trying to outlaw smoking, health advocates finally took to the streets with a petition that banned smoking almost everywhere, with casino floors a notable exception. (That provision was included to prevent opposition from the gambling industry.) Although opponents circulated competing measures designed to confuse voters, the Clean Indoor Air Act passed, and withstood subsequent legal challenge. But in 2011, the Legislature rolled back part of the law, allowing smoking in food-serving bars once again.
People’s Initiative to Stop the Taking of Our Land (PISTOL) (constitutional amendment), 2006-2008: A response to the U.S. Supreme Court’s infamous Kelo v. City of New London ruling of 2005, this initiative, circulated by attorney Kermitt Waters, put strict limits on the use of eminent domain in Nevada. It passed with 63 percent support in 2006 and 60 percent in 2008.
Nevada Insurance Rate Reduction and Reform Act (constitutional amendment), 2004: This initiative purported to roll back auto insurance rates, but actually contained language that would have invalidated limitations on medical malpractice cases. It is often cited as the initiative that gave rise to the “single subject” rule. Voters rejected the measure 65 percent to 35 percent, and on the same ballot approved the so-called Keep Our Doctors in Nevada statutory initiative, which placed limits on malpractice damages, by a margin of 60 percent to 40 percent. This prompted some to argue the single-subject rule wasn’t necessary, as voters clearly saw through the scheme.
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