Las Vegas Sun

March 29, 2024

Taking the initiative

WEEKEND EDITION

Aug. 2-3, 2003

After a rancorous legislative session that raised both taxes and citizen dissatisfaction, some Nevadans are ready to take democracy into their own hands.

Voter groups are organizing to place measures on the ballot that would overturn portions of the $836 million tax increase the Legislature passed, amend the constitution regarding tax increases and education funding and recall six Supreme Court justices who ruled on the tax debate.

Planned initiatives and other voter-driven issues often die in the difficult process to qualify for a place on the ballot. Although it will be several months before any initiative can qualify, the consensus among political observers is that several serious policy issues could end up before the voters.

"You've got a fertile ground of 'Let's take it to the people,' " said Eric Herzik, a political science professor at the University of Nevada, Reno. "Some people will vote on some of these initiatives just because of the court ruling they disagree with."

Libertarian and conservative groups are incensed at the tax increase and at the state Supreme Court decision that set aside a voter-approved constitutional amendment requiring a two-thirds vote of the Legislature to raise taxes. The groups are using the issues to rally support for their initiatives.

The result could be the most crowded election ballot in history next year, and political observers say it could cause an upheaval in the way policy decisions are made in the state.

Dan Burdish, chairman of a group seeking to throw out most of the recent tax increase through referendum, and others have tapped into the anger. They are trying to create a groundswell of support for their ballot measures.

"That's what happens when the politicians don't listen to what the people are saying," Burdish said.

At the same time the noisy recall campaign in California is fanning a firestorm of renewed interest in citizen-initiated government.

"Welcome to reality," said Sherry Bebitch Jeffe, a professor at the University of Southern California School of Planning, Policy and Development and a longtime California political observer, noting Nevada's foray down the road to a direct democracy.

The new reality could be a shift in the state's political structure from a representative form of government to a process Californians have made infamous.

With the potential for more and more ballot questions, and even rumblings of recall, some political observers worry that voters could threaten Nevada's political stability and turn policy debates into political campaigns.

"Things in California have just gone haywire," said political consultant Scott Craigie, who served for six years as Gov. Bob Miller's chief of staff. "Nevadans have to ask themselves if that's the way we want to go."

Consultants, academicians and most politicians agree that citizen-led initiatives will bring even more money and special interests into politics and could tip the balance of power away from elected representatives.

"I think it'll get worse before it gets better if California is any example," said David Damore, a political science professor at the University of Nevada, Las Vegas and a California transplant.

But those who are embarking on initiatives champion their rights as individuals and say the initiative process is the only way to make their voices heard.

"We have no choice," said George Harris, a GOP activist leading the movement to recall six Supreme Court justices and enact two changes to the state's constitution. "It has come to this. We have the right to use this and we will, to make Nevada a better place."

Nevadans are willing to shift toward a more direct form of democracy, Herzik says, because they have seen the power of it.

"California uses it a whole lot and we learn by proximity," Herzik said.

State archivist Guy Rocha said Nevadans are also familiar with the process, having taken stabs at different initiatives over the past 20 years.

"It's what they know and what they're used to," Rocha said. "I think Nevada residents are more comfortable using direct democracy because they've seen it work for so long in California."

Low-tax Nevada

Rocha also said he believes folks fleeing California for the comparably low-tax Nevada will leap to the forefront of the initiative movements.

Jeffe, a political analyst and scholar at the University of Southern California, said that would influence Nevada.

"To a large extent you bring your political culture with you," she said.

Nevada has had an initiative process since 1905, used for such diverse issues as divorce law, right to work provisions and medical marijuana.

And while Oregon was the first state to pass a law allowing initiatives and Californians use the provision so frequently, Nevada is one of only a handful of states with all three elements of direct democracy -- initiative, referendum and recall.

All three require petitions signed by voters and, if the issue is statewide, a percentage of voters in each county is required.

In Nevada, initiatives are voter-sponsored questions seeking to enact a state law, advise elected officials or amend the constitution. Referendums seek to overturn an existing law. Recall is used to oust a politician for malfeasance in office.

And while Nevada has never recalled any state elected official, Rocha said, the citizens have grown accustomed to the other parts of the process over the past 20 years.

"If you go back 20 or even 10 years ago and just look at the ballots, there were far fewer questions and far fewer initiatives," Rocha said. "It really is a growing trend, and I suspect one that will grow exponentially as a result of this legislative session."

Since 1900 there have been 233 initiatives and referendums put on the statewide ballot, and 111 -- 48 percent -- of them were on ballots starting in 1980. Since the 1960s each decade has seen a larger number of voter-driven questions on the ballot.

If the tax issue reaches the ballot as expected, it won't be the first time Nevadans have tinkered with tax policy at the polls.

In 1980 Nevada voters rejected Question 6, which was modeled after California's Prop. 13 and would have limited property tax increases to 2 percent annually.

Opponents successfully argued that the initiative would have excessively drained state revenues.

Voters have also successfully passed tax reform initiatives. In 1980 they removed the sales tax on food. In 1986 voters prohibited a personal income tax.

The now-famous two-thirds majority vote on taxes was approved by voters in 1994 and 1996.

Damore said a huge explosion of initiative movements in Oregon and California has positioned Nevada to come into the direct democracy spotlight with several of its own initiatives next year.

Here to stay

"It's here to stay," Damore said.

California, awash in the initiative process, has proven that.

The godfather of the initiative movement was the late Howard Jarvis, author of California's Proposition 13 property tax measure.

It is a hallmark of the state's initiative process.

Prop. 13, which was approved by a nearly two-thirds popular vote in 1978, was a reaction to tax assessments that were spiraling out of control.

Voters felt lawmakers were ignoring their calls to keep taxes in check and immediately jumped onto Jarvis' bandwagon.

The proposition limits property taxes and property valuations to keep taxes down.

Jon Coupal, president of the Howard Jarvis Taxpayers Association -- a group borne of the proposition -- says Prop. 13 has saved Californians an estimated $400 billion.

In the years since Prop. 13, several other groups have followed to push their agendas on the ballot, including a measure that passed a 50-cent a pack cigarette tax and set up a network of commissions to oversee the use of the money.

What many see as good public policy in the Golden State, others see as the start of a potentially dangerous form of governance.

"Initiative was initially established to protect the citizens from an abusive Legislature, but it became a tool of the special interests to get around the Legislature," Jeffe said.

Damore said the result of citizen anger becomes interest groups writing public policy.

"It puts the courts in an awkward position because they have to throw some of the initiatives out," Damore said. "There's a reason the framers of the constitution wanted the government shielded in some respect from the people."

Lawmakers warn that direct democracy will have a direct impact on their power and, as a result, will lead to careless policy decisions that adversely impact the public.

"It's a slippery slope," said Senate Minority Leader Dina Titus, D-Las Vegas.

Titus said leaving legislative branch decisions to the whims of an election flies in the face of representative democracy.

"I think any time you have policy by initiative it diminishes the power of the Legislature," Titus said.

And that concerns Paul Brown, executive director of the Progressive Leadership Alliance of Nevada.

"A lot of the solutions that come up on initiatives are simple-minded," Brown said. "At least in a legislative setting there is time for debate and discourse and the vetting of ideas."

Craigie said three initiatives have already had an adverse effect on the Legislature.

Voters have forced the Legislature to meet in 120-day sessions -- a requirement that lawmakers have failed to meet in two of the three sessions for which the measure has been in place.

Voters have placed term limits -- set to begin taking effect in 2006 -- that lawmakers fear will remove the most experienced and talented lawmakers and give more power to lobbyists.

Lastly, some argue that the Jim Gibbons Tax Restraint Initiative, which requires a two-thirds vote on tax increases, stymied the recent legislative session and emboldened a strident minority.

"Not in a planned way, but you have three individual movements that have each converged on the Legislature to impact its ability to get its work done," Craigie said.

Titus said voters who backed the Gibbons initiative probably didn't envision the problems it would cause the 2003 Legislature.

"If you look at the two-thirds initiative and the one that creates term limits for lawmakers, you're looking at two things that have truly negative impacts," Titus said.

Political power

Initiatives are not just designed to overturn unpopular decisions or laws, but to quietly energize political parties.

"They are a political strategy to get people to the polls," Herzik said.

Question 2, the so-called Protection of Marriage initiative of 2000 and 2002, is credited with bringing conservative voters to the polls and helping conservative candidates.

The 2002 election was indeed a sweeping victory for Republicans, as the GOP won all six statewide offices and an open congressional seat, picked up four seats in the state Assembly and expanded its margin of control in the state Senate.

Herzik said Democrats, as a general rule, "are considered the populist party but don't have popular initiatives."

He also said the July 10 decision by the state Supreme Court to set aside Gibbons' initiative is a potential "hornet's nest" spurring greater interest in next fall's initiatives.

Gibbons was a little-known assemblyman from Reno before the 1994 and 1996 tax restraint initiative campaigns made him a household name in outlying rural counties and, for a time, in Las Vegas.

The initiative helped launch his bid for governor, which, although unsuccessful, paved the way for his later victory in a congressional race. As Gibbons now eyes a potential run against Democratic U.S. Sen. Harry Reid, he has already announced plans for a ballot question next November to reinstate the old initiative and force lawmakers to fund education before funding state programs.

"He made a name with the initiative," Herzik, the interim dean of UNR's College of Arts and Sciences, said. "He could use this initiative to further his political aspirations."

Republicans largely see the initiative process as a subtle means to bring more of their voters to the polls. Assembly Republicans Bob Beers of Las Vegas and Ron Knecht of Carson City believe the initiative movement will focus on policies limiting taxes, and thus help Republicans in their bid to retake the lower house of the Legislature.

"There is a very good chance that we will be able to gain the majority," Beers said in a recent interview.

Craigie warns that some of the initiative drives may hoist Republicans into office but leave them with a problem that will force them out in subsequent elections.

One referendum planned by Burdish, a GOP activist, seeks to overturn roughly $600 million of Nevada's recently passed tax law.

With the current budget including $250 million of one-time federal funds that Nevada won't see again at the start of the 2005 Legislature, Craigie warns that any conservatives who gain election may be facing a big hole.

"Three months after the November election, the Legislature opens up and they could be $850 million short of meeting what their old needs were before two years of the nation's fastest-moving growth is factored in," Craigie said. "What's that group going to do? Raise $1 billion in taxes? I don't think so."

Affecting policies

Initiatives have already impacted the way lawmakers enact policy. Some initiatives have forced legislators away from certain policy ideas while others have helped create laws that had no political support from elected officials.

In 2001, just months after voters first said they wanted marriage defined only as that between a man and woman, the organizers of that initiative told lawmakers they should not enact domestic partnership benefit or hospital visitation laws because those were antithetical to the public's desires.

Also in 2001, the Legislature approved medical marijuana despite lawmaker uneasiness with the program because voters had twice approved a medical marijuana initiative.

During the 2003 session, a bill was introduced to address medical malpractice before an initiative asking voters to decide the issue reached the ballot.

"If we don't do something the voters will," Sen. Ann O'Connell, R-Las Vegas, said at the time.

Bracing for what is expected to be a mudslinging recall drive in California, some Nevadans warn that the initiative process here will initiate more than new laws.

"If you want wealth and special interests to dominate politics, this is exactly how it will happen," Assemblyman David Goldwater, D-Las Vegas, said.

In California the attempt to recall Gov. Gray Davis is being funded by Rep. Darrell Issa, R-Calif., who dumped $1.6 million of his own money into the effort and has his eye on Davis' job.

During the 2002 Nevada elections those fighting against Question 14, which supported the notion of public-held utilities, spent $2.7 million, much of it from Nevada Power Co. Despite the money, Question 14 passed with 57 percent of the vote.

Perhaps, as Question 14 illustrates, voters are not always won over by snazzy campaigns.

Daniel Smith, a University of Florida political science professor who has written extensively about tax-limitation initiatives, said successful initiatives are often those that are backed by good populist rhetoric.

"You have to have a message of 'us against them,' the people versus the state legislators who can't balance the budget," Smith said. "These groups are able to tap into that populism."

Ken Lange, executive director of the Nevada State Education Association, found that populism isn't always enough. In 2001 his union pushed for a net profits tax on business to fund education.

"Even though we thought we had been very careful, and even though we spent months drafting our petition, our adversaries found a way to attack us," Lange said.

The NSEA petitioned the state Legislature to enact the tax, but the Supreme Court ultimately threw the petition out.

Fierce opposition from the business community had forced the legal challenge.

State Sen. Joe Neal, D-North Las Vegas, also knows how difficult an initiative petition campaign can be, judging from his attempt to raise the gross gaming tax to 10.25 percent.

"What can you do when you're outspent and when a powerful industry works against you?" said Neal, who has failed to qualify the measure.

Pete Sepp, spokesman for the National Taxpayers Union in Alexandria, Va., said that despite opposition groups that outspent initiative seekers 10-to-1 in a Colorado tax-limitation initiative, the measure proved successful because of attention from talk radio.

"There are other ways to get your message out," Sepp said.

In addition to the potential cost to the public and the rising price of campaigns, election officials worry about the cost and manpower that will be needed to police the various initiatives.

"The cost is going to be pretty exorbitant," said Steve George, a spokesman for the Secretary of State's office.

Clark County Voter Registrar Larry Lomax said initiative questions can clutter up the ballot and slow the voting process.

"By the time they get to the questions, voter interest might fall off and if there are competing questions or confusing campaigns, that will only add to long lines on election day," Lomax said.

Recall effort

But he is more concerned right now about an effort to recall six of the state's Supreme Court justices. In a recall, the petitioners must get signatures from voters equal to 25 percent of the total votes cast in the justice's last election.

More than 100,000 signatures are required to force a recall election for each of the justices.

"With six petitions, presumably all filed on the same day, I will have just four days to verify the signatures," Lomax said. "If I got six handed to me in one day, I don't know how I could count them all."

Perhaps as a result of the potential pitfalls, Nevada has a fairly difficult process in place for direct democracy efforts to qualify to reach the ballot.

Any amendment to the constitution, for example, requires passage by the voters in two different elections. Referendum and recall require the gathering of up to a hundred thousand signatures.

"That's a saving grace," Damore said.

The complexity of the ultimate goal also proves difficult for those attempting direct democracy.

Coupal of the Howard Jarvis Taxpayers Association said that once a tax initiative is passed, it is an ongoing fight to make sure it is enforced.

"You've got to be careful not to load up the initiative with too many things," Coupal said. "Keep it narrowly focused on the objective, and I cannot overemphasize the importance of careful drafting."

Carole Vilardo, president of the Nevada Taxpayers Association, said even initiatives that seek to limit or eliminate taxes can be fraught with trouble.

"You have so much detail that the initiatives, even when they're successful, prove to be a problem," Vilardo said.

Her group argues that tax policy should be carefully discussed and all proposals screened to eliminate any potential problems, as is intended to happen in a legislative session. That process, she said, becomes problematic if left to the public in the voting booth.

Economist Jeremy Aguero, who was a consultant on most of the tax plans considered by the Legislature this year, said one of the problems he sees with trying to create a tax by initiative is the lack of detail.

"What I can model on a computer may or may not be what's best for Nevada even if the numbers add up," Aguero said. "Similarly, we need to be very cautious about any situation where anger and backlash are driving an initiative based on numbers."

Rocha said the shift to direct democracy also signals movement from the more civil form of representative government to aggressive campaign-style politics.

"This is really an uncivil form of politics," Rocha said. "There will be name-calling, commercials, campaigns -- all to enact whatever policy that typically was decided by the elected Legislature."

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