Tuesday, April 14, 1998 | 10:03 a.m.
The Clark County Commission cannot base reapportionment on staff estimates or any other means but the most recent census information, an opinion released Monday by the Legislative Counsel Bureau's legal division said.
The board "lacks the authority to establish new or changed county commissioner election districts using a population basis other than the last preceding decennial census," the opinion said.
Most commissioners back a plan to use staff estimates to redraw district boundaries by 1999 rather than wait until after the 2000 census can produce more accurate information.
They're bolstered by a state attorney general's opinion issued in January stating that commissions can redistrict more often than every 10 years if population shifts threaten the "one-person, one-vote" principle.
However, that opinion doesn't address the method that must be used to determine the population basis for the reapportionment.
The 10-page opinion by Chief Deputy Legislative Counsel Scott Wasserman, writing at the request of state Sen. Joe Neal, D-North Las Vegas, repeatedly said the commission cannot use anything other than the most recent census data from 1990.
The April 10 opinion also said that commissions, being creatures of statute, invested with special powers, can only "exercise such powers in the manner expressly conferred" by the Legislature.
And the only method the Legislature has expressly allowed has been decennial census data, the opinion said.
"This confirms everything I told them," Neal said Monday after receiving a copy of the opinion.
Neal, a gubernatorial candidate with more than 25 years of legislative experience, last week urged the commission not to proceed with a reapportionment plan using data that won't withstand a court challenge on constitutional grounds.
The board ignored Neal's warnings, voting 6-1 to proceed with a $40,000 plan to redraw election districts using staff estimates and community input, hiring a consultant to help confirm the demographics and redraw the boundaries.
The opinion also reconfirms Commissioner Myrna Williams' opposition to the county's reapportionment plan.
"That is exactly what I thought based on my experience having worked reapportionment," said Williams, who chaired the 1990 reapportionment committee while a member of the state assembly.
Williams cast the sole dissenting vote on "constitutional and legal grounds."
The commission is waiting on an opinion from the attorney general's office on the method used for determining population before moving forward with its reapportionment plan. County Counsel Mary-Anne Miller will attach the legislative counsel's opinion with her request.
"The legislative counsel is good enough for me but may not be good enough for someone else," said Commission Chairwoman Yvonne Atkinson Gates, who voted for the reapportionment plan despite her concerns over accuracy and legality.
Commissioner Erin Kenny, who first asked for reapportionment in 1996 and called the population estimates a "red herring" at last week's board meeting, said the attorney general's opinion carries more weight than the LCB opinion.
"I'm waiting for a clarification but there is no doubt in my mind that reapportionment is the appropriate thing to do at this time and we should move forward," Kenny said, without reading the LCB opinion.
Should the attorney general back up the LCB opinion, Kenny said, "a number of commissioners will make it their goal to go to the 1999 Legislature and change the election districts."
Lawyers have issued contradictory opinions on the county's authority to redraw district lines sooner than every 10 years following the census.
A Clark County district attorney opinion issued in 1996 said the board needed authorization from the Legislature to redistrict more frequently than every 10 years following the census.
A 1998 attorney general's opinion to Washoe County said the board already had the authority to redistrict more frequently if population shifts threatened the legal provision of "one person, one vote."
But it didn't address how population count must be determined.
The state Supreme Court noted that periodic reapportionment based on the federal census is a "reasonable means of safeguarding the integrity of the individual's vote from degradation resulting in malapportionment, although at times some measure of malapportionment might exist," Wasserman said.
Wasserman also said that "there is no constitutional infirmity under the principle of 'one person, one vote'," despite a 45 percent difference between Commissioner Bruce Woodbury's District A and Chairwoman Yvonne Atkinson Gates' District D.
Wasserman observed that the Legislature has twice turned down proposals to establish new or changed commission districts using a population basis other than census tract data -- in 1991 and in 1993.
In 1991, legislation was rejected that would have required the Commission to change boundaries "whenever the population of any district exceeds the population of any other district by more than 5 percent, as determined by the board of county commissioners."
Again, in 1993, the county tried to get legislation passed that would have allowed redistricting using "any measure which is found to be reliable by the board of county commissioners."
That the Legislature twice rejected proposals to change the method for determining population, Wasserman said, is proof enough that it didn't intend for counties to change district lines "using a population basis other than the last preceding national decennial census."
Kenny said she was "sure the Legislature if the opportunity were given to them would embrace (reapportionment) with open arms realizing how disproportionate the current situation is."
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