Las Vegas Sun

March 28, 2024

Editorial: Two-thirds rule does not work

WEEKEND EDITION

July 20, 2003

It was a relief Friday when Nevada's federal judges took themselves out of the state's tax crisis. They ruled that they had no authority to overturn an interpretation of the state constitution by the Nevada Supreme Court. The Supreme Court justices, in order to break a legislative deadlock over tax increases and education funding, had ruled that a constitutional requirement for a two-thirds majority to pass a tax increase could be waived during the current special session.

The Republican legislators who form a one-third minority in the Assembly -- the ones who beached the ship of state -- and supporting groups turned to the federal judges. The judges responded with a temporary restraining order until they could decide whether they had jurisdiction. Friday's decision dissolved the TRO but it did not dissolve the state's funding crisis. A two-thirds majority remained all but necessary, despite the state Supreme Court's decision. This is because the same people who appealed to the local federal judges proclaimed their intention to appeal to the 9th U.S. Circuit Court of Appeals and possibly the U.S. Supreme Court. Passing the tax increases with a two-thirds majority means the Legislature would not have to retroactively repeal its tax laws if the state Supreme Court's decision gets overturned.

But having to pass new and increased taxes with a two-thirds majority is the same as admitting that the 2003 Legislature's opportunity for fixing Nevada's tax structure has come and gone. Long before the legislative session began on Feb. 3, Gov. Kenny Guinn ably demonstrated that a new tax structure was needed to support the responsibilities associated with Nevada's status as the fastest-growing state for the 15th straight year. Above all, he demonstrated that Nevada's schoolchildren were being ever more shortchanged as the years passed with no adjustments to the state's revenues. By now, six weeks after the end of the Legislature's regular session, Nevadans should have been looking at a future they could build on, one with solid prospects for education and other vital services.

Instead, owing to 15 Assembly Republicans, all Nevadans have is the stress associated with governmental instability. By taking advantage of the two-thirds majority requirement, the 15 have been able to deny a badly needed increase in state funding. Worse, they halted education funding entirely by not yielding through the regular session and two special sessions, despite the pleas of parents and school officials throughout the state.

With each passing day now, people are coming to understand that this is not just another political hailstorm that will pass before it ever directly hits them. Clark County School Superintendent Carlos Garcia is talking gravely about delaying the start of school for Southern Nevada's nearly 270,000 students. This means there will be fewer instructional days -- in a district where the majority of students, in overcrowded classrooms, are already incapable of achieving even average scores on national tests.

And the anti-tax, damn-the-state crowd is not yet finished with its disruptive activities. Now it is circulating a petition to recall the six Nevada Supreme Court justices who had the difficult task of resolving the conflict in the Nevada Constitution. Guinn petitioned them, seeking an interpretation that would end the conflict between the constitutional requirements to balance the budget and fund education, and the requirement to pass tax increases by a two-thirds majority. The spectacle now is of the one branch of government that faced its job, and accomplished it, being the object of recall petitions.

The Nevada Supreme Court's decision, and the ruling by the local federal judges, should stand. But if the U.S. Supreme Court does eventually get involved, we can only hope that its decision will mark the beginning of the end for the two-thirds majority rule, which clearly is a major threat to orderly government. We hope the justices remember the words of their great predecessor, John Marshall, who served 34 years as chief justice. Writing in 1803, he said, "If two laws conflict with each other, the courts must decide on the operation of each. ... This is the very essence of judicial duty."

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