Barbwire by Barbano: Petition pondering & pandering: Just Say No-a Nevada tradition

Smoking Guns...

The brutal law of unintended consequences
Between the devil and the deep Joe Neal
Barbwire by Barbano / Expanded from the 2-28-2013 Daily Sparks Tribune
Since the 2-28 and 3-7 columns are so inter-related, I have reproduced part of last week's edition here.

The Nevada teachers' business tax petition is poised to perpetrate the damndest legal scramble the state has ever seen.

The legislature has until March 15 to pass the measure verbatim or it advances to the November 2014 ballot.

For more than 100 years, petitions have been deemed passed if they win a simple majority of those voting on the issue.

It ain't necessarily so.

In 1980, Sen. Joe Neal, D-N. Las Vegas, ordered the Legislative Counsel Bureau to research a constitutional anomaly.

The result was astounding.

Neal, who taught constitutional law at Community College of Southern Nevada, caught a language quirk that also affected three other states, all of which fixed it before it became a problem.

Nevada didn't.

The crux is that Nevada's Constitution mandates that in order to win approval, ballot questions must gain a majority of all the voters voting in an election, not just between those casting votes on individual issues.

A successful action can be brought before the Nevada Supreme Court upholding Sen. Neal's very well-grounded scholarship.

If the court rules in favor, Nevada's union-busting Right-to-Work-for-Less (1952) and term limits (1996-98) laws become constitutionally invalid.

So do more than 100 others.

The research will be linked to the web edition of this column at NevadaLabor.com.

It includes letters from Legislative Counsel Bureau Research Director Andrew Grose with case citations and examples of petitions invalidated by these criteria.

You may also read the 1980 letters from Nevada Secretary of State Bill Swackhamer and Legislative Counsel Frank Daykin.

Ole Swack's non-response conveyed Atty. Gen. Richard Bryan's non-response.

Bottom line: Too hot to handle. Don't bother us. Please go away.

Alas and alack, the Las Vegas MGM Grand Hotel-Casino caught fire in 1980 and Sen. Neal got sidetracked getting the 1981 high-rise sprinkler law passed over the objections of the gambling industry.

The petition issue languished until he found this research a few weeks ago and sent an inch-thick file to me.

He included a transcript from Nevada's 1864 Second Constitutional Convention in which the framers state their intent that intiatives and referenda should pass only by winning a majority of all voters voting in an election. Read it yourself.

On 8 March 1939, Nevada Attorney General Gray Mashburn sent a letter to Secretary of State Malcolm McEachin that the issue should be taken to the Supreme Court.

We're still waiting for action on Mashburn's legal opinion.

A recent Nevada Retail Association poll showed 58 percent of Nevadans in favor of the teacher's tax petition. This is nothing new in a supposedly taxophobic state.

Polls taken every two years by the Alan Bible Research Center at the University of Nevada-Reno consistently showed an overwhelming three of four Nevadans favoring an increase in the gross gaming tax. Dancing to the gamblers' tune, the legislature took care of those pesky facts by defunding the poll.

The teachers petition will probably win but only narrowly.

Should it do so, tax-avoiding corporations will have only one recourse: take it to court to blow it out under Neal's criteria.

If the Supremes uphold the current system, Nevada schools get an extra $800 million a year.

If the blackrobes opt for the status quo, more than 100 Nevada laws are invalidated. (Read the Andy Grose memo to Neal.)

Either way, average citizens greatly benefit. A positive Catch22.

Joe Neal would not have it any other way.

Be well. Raise hell.

Ignorance of the law is no excuse

"It is clear in my judgment that the amendment process in our constitution requires a majority of voters in an election...To adopt a contrary view...is to permit a constitutional provision to be added by a minority of voters.

"An example: If you had an election where a hundred thousand people voted for two candidates for governor and three voted on a constitutional question, two for and one against, the question would become part of our constitution with just two people voting for it. It was never intended by the framers." — Letter from State Sen. Joe Neal, D-N. Las Vegas, to Secretary of State William J. Swackhamer, 2 April 1980. Neal's example is the same as that used in discussion of the provision by the framers of the state constitution in 1864.

Sen. Neal's research calls into question large swaths of Nevada law, some of which has been on the books for more than a century.

The crux is that Nevada's Constitution mandates that in order to win approval, ballot questions must gain a majority of all the voters voting in an election, not just among those casting votes on individual issues.

Here are summaries of the content with links to the documents at Sen. Neal's website.

THE SMOKING GUN —> Sen. Neal's letter of 2 April 1980 to Secretary of State William Swackhamer challenging most of the initiatives and referenda passed since Nevada's admission to the union. It includes a list of legal citations, some of which may be found in the following titles. (4280 ltr)

LEGISLATIVE LAWYER MEMOS —> Two letters from Legislative Counsel Bureau Research Director Andrew Grose with case citations and examples of petitions invalidated by these criteria. (1980 lcb)

TELL PONTIUS PILATE TO PASS THE TOWELS —> April, 1980, letters from Nevada Secretary of State Swackhamer and Legislative Counsel Frank Daykin. Ole Swack's non-response conveys Atty. Gen. Richard Bryan's non-response. The Daykinism advice falls somewhere between non-sequitur and incomprehensible.

Translation: Don't bother us. Too hot to handle. Please go away. (4380 dayswack)

Alas and alack, the Las Vegas MGM Grand Hotel-Casino caught fire and Sen. Neal was sidetracked getting the 1981 high-rise sprinkler law passed over the objections of the gambling industry.

This issue languished until he found this research a few weeks ago and sent an inch-thick file to me. Sen. Neal never forgets.

WHAT THE HELL WERE THEY THINKING? PRETTY DAMNED WELL, IT SEEMS —> Transcript from Nevada's Second Constitutional Convention in 1864, underlined emphasis added and referenced in Sen. Neal's 2 April 1980 letter to Secretary of State Swack. There is no doubt that the framers intended that petitions must win a majority of all voters voting in the entire election, not just on the ballot question itself. (Convention)

THE CONTROLLING LAW —> Statutes of Nevada 1901: "No. XI. — Senate Joint and Concurrent Resolution amending the Constitution of the State of Nevada by adding an article thereto." (Approved 19 March 1901.)

Section 2 of the latter reads: "When a majority of the electors voting at a State election shall by their votes signify approval of a law or resolution such law or resolution shall stand as the law of the State and shall not be overruled, annulled, set aside, suspended, or in any way made inoperative except by the direct vote of the people. When such majority shall so signify disapproval the law or resolution so disapproved shall be void and of no effect."

Sen. Neal says this remains the controlling statute. The state constitution regarding initiative and referendum was amended at the polls by adding Article 19 in 1904 (Sections 1 and 2) and Section 3 in 1912.

However, neither gained a majority of all voters voting in either election, so 1901 still rules and it unequivocally mandates a majority of all voters voting. (1901 SN)

Adios right-to-work-for-less, term limits and whole bunch else.

This house is condemned. Tear it down and start over.

1980 WAS INSTANT REPLAY —> The 8 March 1939 opinion of Nevada Attorney General Gray Mashburn states that the issue should be taken to the Supreme Court by the Nevada Secretary of State.

We're still waiting. (1939)

Like his timid predecessors (Malcolm McEachin-1939 and Swack-1980), I rather doubt that current SOS Ross Miller II will have an appetite for something important rather than facilitating voter suppression in order to suck up to righteous right-wing moonhowlers.

Any and all comments welcome. I will forward the best to Sen. Neal.

Be well. Raise hell.

Andrew Barbano

...and more ammo...

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The continuing series

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Barbwire by Barbano / Expanded from the 9-6-2012 Daily Sparks Tribune

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By Joshua H. Silavent / Daily Sparks Tribune / 5-3-2011

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by Colin Gordon
Economic Policy Institute / 6-5-2012

Used in journalist Mark Robison's extensive Hard Labor: Nevada unions tout role in helping workers, firms, economy (Sunday 2 Sept. 2012 Reno Gazette-Journal, page one, Reno Rebirth section of the print edition). Union men Jim Burrell, Paul McKenzie and Guy Louis Rocha did the movement proud. Not included in the RGJ online edition.

WOMEN AND UNIONS — ORPHAN MAJORITIES
The Barbwire Labor Day column
Reno Gazette-Journal / 9-3-2012