AG says term limits amendment unconstitutional

Thursday, April 6, 2000 | 10:42 a.m.

CARSON CITY -- Attorney General Frankie Sue Del Papa said a constitutional amendment on the issue of term limits, passed twice by Nevada voters, violates the U.S. Constitution.

Del Papa said Nevadans have made it clear they want term limits for members of Congress, but she said the amendment would not be upheld in court because, among other factors, it violates free speech.

The amendment would force state legislators and congressional delegates to enact and support federal term limits. If a legislator or member of Congress did not support the limits, a notation would be placed next to the individual's name on the next election ballot. The notation would read, "Disregarded Voters Instruction on Term Limits."

The amendment would also require candidates to pledge their support for term limits. If they refused, it, too, would be noted on the election ballot.

The proposed Nevada amendment, part of a national movement in the mid-1990s, was spearheaded by Richard L. Arnold of Carson City, who circulated the initiative petition to get the issue on the ballot. He could not be reached for comment on the Del Papa statement.

The petition was approved by the voters 225,492 to 198,743 in 1996 and by 224,664 to 171,256 in 1998.

Del Papa's office was asked for a legal opinion on the issue by Secretary of State Dean Heller, the chief election officer in Nevada who must decide if the notation should be placed on the ballot.

Deputy Attorney General Kateri Cavin, who wrote the legal opinion, said such proposals have been found to be unconstitutional in Missouri, Arkansas, Colorado, Idaho, Maine, Nebraska, South Dakota and California in federal and state courts.

"It is hard to imagine a more chilling impact on political speech than that created by the act at issue here," Cavin said.

The effect, she said, "is to strip state legislators, federal legislators and candidates to these offices of all rights of free speech and debate with regard to the issue of congressional term limits."

Cavin said it tries to force legislators and candidates to speak in favor of term limits by threatening them with the ballot label if they fail to do so.

"Second, if legislators or candidates refuse to speak in favor of term limits, the label on the ballot forces him or her to speak in opposition to the act by noting that he or she failed to follow the voters' wishes.

"Either way, the act (the constitutional amendment) does not allow legislators or candidates to remain silent on the issue, which is precisely the type of state-compelled speech that violates the First Amendment right not to speak," Cavin said. The constitutional amendment, she said, holds that congressional members can be punished for speaking or debating the issue.

"This scheme contradicts the protections of the Speech and Debate Clause (of the U.S. Constitution), which is intended to allow senators and representatives to speak and vote their conscience without fear of retribution."

Heller said he would follow the advice of the attorney general not to enforce the constitutional amendment.