The Nevada Supreme Court may finally put to rest questions about whether two 2020 tax-hiking ballot initiatives backed by the Clark County teachers union can be withdrawn after they were qualified and submitted to the Legislature.
The high court heard oral arguments in the case on Wednesday, about three months after a Carson City judge ruled that the statutory initiatives could be taken off the 2022 ballot, eliminating the opportunity for statewide votes on the matters. Secretary of State Barbara Cegavske, who has insisted that the initiatives should not be removed from the 2022 ballot, appealed the ruling.
In 2020, political action committees backed by the Clark County Education Association (CCEA) filed two petitions to increase the gaming and sales tax rates — measures that the union at the time predicted would have raised more than $1 billion a year in additional funds for schools , a dramatic increase over what the state contributes now.
The union collected about 200,000 signatures for each petition, plenty more than needed to advance it to the 2021 legislative session and force a conversation about more school funding, but after the union reached a compromise with lawmakers to send more mining tax revenue toward K-12 education, CCEA asked Cegavske, whose office is charged with overseeing elections, to withdraw the petitions from the 2022 ballot under a change adopted in the final days of the 2021 Legislature.
Cegavske refused, prompting the union to file a lawsuit against her in 2021 to get the court to allow them to be withdrawn.
On Wednesday, attorney Wayne Klomp, who’s representing Cegavske, argued that once a petition reaches the number of signatures needed to reach the Legislature, it is the secretary of state’s duty to deliver it to lawmakers, who can then choose to approve the measure or take no action on it.
If no action is taken, the initiative would go before the voters during the next election for approval, according to the Nevada Constitution. State lawmakers also could choose to come up with their own proposal, and then ask voters to pick between their plan and the original ballot initiatives, Klomp said.
I have argued that the state Constitution doesn’t specify whether initiatives can be withdrawn after lawmakers propose an alternative, preventing voters from getting a chance to weigh in between the ideas.
Klomp suggested that the state statute on petition withdrawals is appropriate for petitions that have yet to be filed to the secretary of state’s office, but may not apply in the case of the two CCEA initiatives because, he argues, it would infringe upon the duties and obligations of the secretary of state and the Legislature.
“The withdrawal statute is appropriate for petitions where they have not been filed with the secretary of state,” Klomp said. “But as applied here, where it infringes upon the duties and obligations of the secretary of state, and it infringes on the duties and obligations of the Legislature, then yes… the application to this case would be unconstitutional.”
The power to promote, propose, enact or reject initiatives should rest with the voters, Klomp added.
“Statutes which inhibit that power, do not facilitate that power,” he said.
But attorney Bradley Schrager, representing the groups trying to withdraw the petitions, argued that the Nevada Constitution allows the Legislature to establish procedures to facilitate the initiative process. That includes discretion over the withdrawal of petitions.
“So the entirety of this question, in this case, comes down to whether or not (NRS 295.026) achieves that – is it within the legislators’ power to make the decisions it made to enact the possibility of withdrawal of petitions?” I have asked the justices.
The court took no immediate action on the case Wednesday.
Nevada Attorney General Aaron Ford has publicly differed from Cegavske, previously arguing that “the Nevada Constitution does not prevent the proponents of an initiative petition from withdrawing the petition.”
The deal that CCEA struck with state lawmakers, AB495, created a new excise tax on annual gold and silver mine gross revenue above $20 million, that’s expected to generate between $130 to $150 million annually in education funding, less than the $1 billion per year projected to be raised through the withdrawn petitions. The mining tax bill also included $200 million in one-time federal COVID relief dollars
The original sales and gaming tax proposals faced strong opposition from casino and retail interest groups.