Of Note Nevada

None of the Above

With many voters holding unfavorable opinions of both Senator Harry Reid and his challenger, Sharron Angle, more voters than ever may be checking the box for "none of these candidates" in November.  Interestingly, Nevada is the only state to give voters the option to vote for none of the above (although, voters everywhere can always refuse to cast a ballot at all in a particular race, a practice resulting in what is called an "undervote"). 

Nevada has allowed voters to select "none of these candidates" in all statewide races since 1975.  There is no legal consequence if "none of these candidates" gets the most votes.  Instead, only votes for named candidates are counted for purposes of determining a victor.  NRS 293.269.  Still, "none of these candidates" gives voters a chance to officially record a protest vote, which can certainly put candidates on notice as to their popularity.

Many are wondering just how many voters will select "none of these candidates" in the 2010 Senate general election.  Historically and also ironically, the highest percentage ever in this category in a US Senate general election contest came in 1986, when 3.62% of voters lodged their dissatisfaction with Harry Reid and Jim Santini, the primary contenders for the office.  Harry Reid went on to win the election, his first to the United States Senate.  (Statistics Courtesy of the Nevada Secretary of State).

Recent polls show that up to 5% of voters prefer "none of these candidates" to either Harry Reid or Sharron Angle.  If that percentage holds, it will represent a marked and significant increase in the percentage of voters selecting the non-candidate option.  [Updated: another poll shows that up to 7% prefer neither candidate].

Of course, even refusing to vote for a named candidate has direct repercussions on the race, as it represents a vote that otherwise would have been cast for a named candidate.  Conventional wisdom holds that Republican moderates, who cannot bring themselves to vote for Harry Reid but who fear the uncertainties of Sharron Angle, will make up the bulk of voters choosing "none of these candidates."  If so, then Harry Reid has more to gain than to lose from a high percentage of disenchanted voters.

UPDATE:  The Las Vegas Sun followed up on this blog post with an interesting article.  You can read it here.

Goodbye to a Governor

Earlier today, Governor Kenny Guinn passed away unexpectedly.  Governor Guinn served from 1999-2006.  I first met him as a low-level Deputy Attorney General, and spoke to him occasionally while working for his successor, Governor Jim Gibbons.  Governor Guinn always went out of his way to offer a kind and supportive word.  His dedication to Nevada resonated in everything he did.  He was one of those rare leaders who could energize everyone he worked with.  I'll never forget him telling me how proud I should be of my public service.  Today is a sad day for Nevada, but the example Governor Guinn set will endure.       

High Noon for the IFC

Throughout the past few years, tensions between the executive and legislative branches have been on the increase.  The constitutionality of the Interim Finance Committee (IFC) has been questioned by the Governor.  The IFC has been fiercely defended by the Legislature.  Those rooting for a legal showdown earlier in the year were disappointed as the constitutional conflict took a back seat to a special session and the primary election.

But now, the conflict is boiling up again and the dynamics between the executive and legislative branches have changed dramatically from just a few months ago.  A Governor with nothing to lose is squaring off with a Legislature disinclined to pay much heed to the final six months of the Governor's term.  In the crossfire are the Department of Business and Industry and the Department of Public Safety, who have been directed to disregard IFC requests for information.

The Legislature is now threatening the issuance of subpoenas, and hinting that fines and even imprisonment could be in store for those who fail to comply.  If the executive branch stands its ground, the legislature will either need to follow through or blink and back down.  And if the matter does proceed to a legal standoff, there will be a host of legal issues rekindling another long-standing conflict in state government between the Governor and the Attorney General.

The Attorney General has already declined to undertake litigation against federal health care reform as requested by the Governor.  As a result, the Governor retained outside volunteer counsel to represent the state.  It seems a safe bet that the Attorney General would similarly decline any gubernatorial directive to challenge the constitutionality of the IFC.  There is always the possibility that the Governor could seek outside counsel again to bring suit.  But there might be another way.  If state agencies are sued for failure to comply with a subpoena, and those state agencies are typically represented by the Attorney General, what happens then?   The Attorney General is required by NRS 41.0339 to defend state employees sued in a civil action from actions arising out of the course and scope of their official duties, and the contempt of court statute is a civil statute.  Could the Attorney General be required by law to challenge the legality of the subpoenas in the process of defending the state agencies?  Could the Attorney General defend against the subpoenas without implicating the fundamental authority of the IFC?  Might the Attorney General refuse to defend the state employees at all?

One way or another, we should know soon whether the conflict is heading to the courts or whether the situation will be defused in some fashion.  One thing is for sure, the Governor has not made things easy on the Office of the Attorney General.

PAC Registration and Magic Words

Nevada is in the midst of one of the first high-profile election law cases since the United States Supreme Court decided Citizens United v. FEC.  A Virginia corporation called Alliance for America's Future aired a pro-Brian Sandoval ad in Nevada.  (There is nothing to suggest the group is affiliated with the Sandoval campaign).  The Nevada Secretary of State filed suit and obtained a temporary restraining order.

In Citizens United, an outright ban on corporate expenditures on political advocacy was overturned.  However, the Court left reporting and disclosure requirements in place.  In the Alliance matter, the Nevada Secretary of State alleges that the Alliance violated the law by failing to register as a PAC before airing its advertisement.  It's a bit different from the underlying issue in Citizens United because there is no outright ban on airing political advertisements, but instead there is a rule that groups such as Alliance who engage in such activity must register as a PAC and disclose certain information, including contributors to the PAC.

Regardless, the main defense raised by Alliance doesn't turn on whether disclosure and registration itself is unconstitutional.  Instead, the Alliance argues that registration and disclosure are only required by Nevada law if the Alliance engaged in "express advocacy."  Although it seems obvious that any Nevadan paying even remote attention to politics would realize that the ad is intended to support Sandoval's gubernatorial candidacy, the Alliance cites to numerous published cases holding that express advocacy requires certain "magic words" like "elect," "vote for," support," etc.  And because the ad carefully avoided the use of such "magic words," the Alliance argues that it cannot be required to register as a PAC.

So what does it mean in terms of ramifications?  After Citizens United, non-Nevada groups already have the ability to spend money to influence elections here.  If the Alliance or Secretary push the present dispute to the Nevada Supreme Court and the Alliance prevails, those groups will also be able to avoid registration and disclosure requirements by carefully phrasing the language in their advertisements.  To some, such a result is cause for dismay as relatively-anonymous corporate dollars would be used to influence elections.  To others, it would be cause for rejoice as individuals and corporations would face less obstacles to expending their money to engage in political speech.  And to others, it won't really matter one way or another because those who want to spend money on elections will generally find a way.

The Impact of Apathy

An interesting article appeared today in the Reno Gazette Journal regarding voter turnout. According to the article, in 2008 there was a 59.9% voter turnout in the general election, the 10th worst state turnout in the country.  The 2008 primary turnout was even lower, with only 17.97% of registered voters casting a ballot.  I don't know where that stands in terms of state rankings, but it sounds dismal.

In 2010, the results of several primary races will almost certainly decide the results of the general election.  In the Governor's race for example, polling shows Rory Reid defeating Jim Gibbons in the general election, but losing to Brian Sandoval.  As a result, both Gibbons and Sandoval continue to tack to the right in an attempt to cater to primary voters.  The same phenomenon is occurring in several other races (and of course has always been the case in primary elections).  Taking extreme positions in order to survive a primary election can have consequences in the general election, when more moderates and independents head to the voting booths.

In terms of voter choice in the general, what this means is that the choices available to general election voters may not be much of a choice at all.  Although over half of voters may cast a vote in the general, their options have already been limited by votes cast by less than 1 out of every 5 voters.

Senate Candidate Debate

Earlier today Nevada Newsmakers hosted a raucous and informative debate with the Republican candidates for state Senate District 4.  The seat, located in a heavily Republican district, is open as the incumbent Senator Randolph Townsend is term-limited.  You can watch the debate at www.nevadanewsmakers.com.  It provides some good insights into the platforms and personalities of the various candidates.

Now What?

As all remain hopeful that the recent special session will keep the state budget in the black through the biennium, the looming problem of a budget deficit that could reach $3 billion (around 50% of the general fund ) in the next biennium inches closer.  Anjeanette Damon wrote a comprehensive overview of the situation here.

The stimulus crutch will be gone, and most of the temporary tax increases from the 2009 session are set to expire.  The fiscal problem facing the state is severe and the solutions that come out of the 2011 session will surely reverberate for years.  Going into an election year, candidates are loathe to discuss specific ways to solve the problem, as nearly all solutions will be difficult and unpopular.  Other states have enacted a variety of solutions, including tax increases and spending reductions, to solve their budget problems. 

But the sheer magnitude of the upcoming deficit in Nevada means even a combination solution will require dramatic action on both the spending and revenue fronts.  Consider that the two largest tax increases in Nevada history occurred in the past decade, each being around $1 billion.  Another tax increase of that size would only go to about 1/3rd of the budget deficit.  Consider also that the SAGE Commission recommendations are estimated to be $2 billion.  And given that much of the SAGE recommendations are long-term savings, even implementing every recommendation in the next biennium (which is impossible anyway) will not solve the budget shortfall.

With respect to existing revenues, the state is projecting general fund revenues of approximately $2.7 billion for the 2011-2013 biennium.  In terms of actual dollars, that equates to revenues received in the 1995-1997 biennium.  In terms of dollars adjusted for inflation, it's equivalent to revenues received in the 1989-1991 biennium.  (Information courtesy of the Nevada Department of Administration).

In hopes of an economic turnaround, the state has swept nearly every reserve fund possible in forestall further cuts to operating expenses.  While this action has allowed the state to keep it's budget balanced for the current biennium, it leaves a significant funding cliff for 2011-2013.  The budget decisions that seemed so contentious and difficult in 2009 and 2010 will likely seem easy compared to what is to come in 2011.

Of Note Nevada Now On Twitter

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The Bigger Question in the Health Care Debate

The vigorous debate on the health care bill has largely focused on policy.  Questions such as whether the bill will help or hurt and how expensive it will be for Americans are important and strong arguments have been made on both sides.  But there is a deeper more fundamental question on the bill that has little to do with policy and more to do with the scope of Congressional authority.

One aspect of the health care bill in particular brings this question to light.  The bill includes a mandate, effective in 2014, that Americans obtain health insurance or face monetary penalties.  This part of the bill was enacted by Congress under the authority of the Commerce Clause of the United States Constitution.   While the scope of Congressional authority under the Commerce Clause is undoubtedly broad, some legal scholars have opined that Congress has exceeded the limits of their power with the insurance mandate. 

The analysis goes like this.  The Commerce Clause has traditionally been used to regulate economic activity of an interstate nature.  For example, Congress has passed legislation limiting the amount of wheat that a farmer could grow in an attempt to avoid wheat surpluses.  That legislation was upheld under the Commerce Clause because farmers were willing participants in the wheat industry, and wheat prices had national economic impacts.    Congress has also used the Commerce Clause to pass legislation regulating the growth and possession of home-grown marijuana for personal medical use.  As with the wheat legislation, the marijuana legislation was upheld because it regulated a class of willing participants engaged in the production of a tangible good.

Critics of the health care bill point out that the difference with the insurance mandate is that instead of regulating economic activity, Congress is attempting to regulate economic inactivity.  In other words, Americans will be required to enter into private contracts with insurance companies not because they are willing participants in a particular economic industry, but because they happen to be Americans.  

Those critics point out that if there is a justification under the Commerce Clause for such legislation, there are effectively no limits on what Congress can do under the Commerce Clause.  For example, could Congress seek to stimulate the economy by passing a law that every American must buy a new car or face a monetary penalty?  It might sound far-fetched but it's a similar Commerce Clause rationale as the insurance mandate.   

At the end of the day, and despite how one feels about the policy of the health care bill, the legislation raises fundamental questions about the limits of federal power.  The answers to those questions hold significant ramifications for Americans both today and tomorrow. 

Who Can Represent the Governor in a Lawsuit, Redux

With the passage of the health care bill, the Governor has renewed his call for the Attorney General to file suit to challenge the legality of the bill.  Earlier in this blog, I wrote a post about what might happen if the Governor demanded the Attorney General file a lawsuit and the Attorney General refused.  Now that the health care bill has been signed into law and other states have already filed legal challenges and the Nevada Attorney General has refused to comply with the Governor's request that Nevada join in the litigation, that question deserves further scrutiny.

You can see a copy of the primary legal challenge to the health care bill here.  Thirteen states joined in this lawsuit, and you can see that the plaintiffs are each respective state "by and through" their Attorney General.  The case was filed in a Florida federal court.  Another case is pending in Virginia.

NRS 228.110(2) says that ""[n]o officer, commissioner or appointee of the Executive Department of the Government of the State of Nevada shall employ any attorney at law or counselor at law to represent the State of Nevada within the State, or to be compensated by state funds, directly or indirectly, as an attorney acting within the State for the State of Nevada or any agency in the Executive Department thereof unless the Attorney General and his deputies are disqualified to act in such matter or unless an act of the Legislature specifically authorizes the employment of other attorneys or counselors at law."   (emphasis added).

Because the litigation in which the Governor wants to join is pending outside of Nevada, the general prohibition on hiring outside counsel in the statute may be inapplicable.  In that case, the Governor could be within his legal authority to utilize outside counsel to join in the pending litigation over the health care bill, so long as that litigation is conducted outside of Nevada.  On the other side of that argument however, NRS 228.110(1) says that the Attorney General is the legal adviser on "all state matters arising in the Executive Department," which could be interpreted to mean that only the Attorney General can represent the state outside of Nevada.  The issue is uncharted legal territory in Nevada, and it will be fascinating to see how this one unfolds.

On the political side of the issue, the Georgia Attorney General is facing talk of impeachment after he refused a similar order to file suit from the Georgia Governor.  You can read about it here.  Governor Perdue has since talked about hiring outside counsel to represent the state.  The Nevada Attorney General will likely catch similar political heat over her decision in the months to come.