Question One is framed to win

Ballot Question One in this year’s election is a re-run. It seeks to amend the Nevada Constitution to create a state court of appeals, which was previously defeated by voters in 1972, 1980, 1992, and 2010.

The constitutional amending process in Nevada is deliberately difficult — the legislature must pass a constitutional change twice and then it must go to the voters for approval. But no matter how difficult, it always seems to be easy for the state’s legal community.

This is the fifth time such a measure has appeared on the Nevada ballot in the last 42 years. Until now it has always been defeated, which is a nifty trick — the side without money to spend on the campaign has until now had a perfect record of wins against the state’s well-heeled legal community, which is filled with aspiring appeals court judges.

It’s likely to pass this time, in part because the ballot is rigged and in part because the state of journalism has deteriorated to the point where the arguments of both sides have not been scrutinized during this campaign as they should be.

The ballot is rigged because the “argument against passage” does not address all the drawbacks of enacting the measure, not even those that HAVE been discussed in news coverage.

Length is not necessarily an indicator of the legitimacy of ballot arguments, but it’s not immaterial, either. And in this case, the argument in favor of a court of appeals that appears on sample ballots is 378 words long. The argument against is 217 words long. But the problem doesn’t stop there. The QUALITY of the argument is poor.

For instance, one reason a court of appeals might not be a good idea is that the Nevada Supreme Court has been enlarged twice over the last few decades—from three members in the 1960s to five, and then to nine. And those members can now hear cases in smaller panels, which further eases the burden of the workload. In effect, the state now has three Supreme Courts, which considerably reduces the need for a lower court of appeals. But the ballot argument doesn’t spell it out that way. It makes passing reference in vague terms.

Moreover, there is nothing in the argument against passage that addresses the insertion of judicial politics into the proposed court of appeals. Under the proposal that will appear on the ballot, the chief judge of the court of appeals will be appointed by the chief justice of the Nevada Supreme Court. That’s a conflict of interest. The chief judge would be beholden to another judge from the day she/he took the job.

In addition, it is a departure from the randomness that has been the policy at the Supreme Court level. There, the chief justice serves on a rotating basis or (since the court was enlarged) by the drawing of lots. The voters effectively approved that random process in 1992 when they rejected a plan for the election of the chief justice by the associate justices.

The biggest problem of all is that Question One provides for the first members of the new court of appeals to be appointed by the governor, which will give them an incumbency advantage when they have to run for election. There are arguments for and against both election and appointment, but Nevada voters have settled the issue by rejecting appointive judges at all levels except in extraordinary circumstances.

The legislature should have respected that voter-imposed policy by making the first appeals court judges elective. There is no urgency to starting the appeals court operating this year instead of in the next election. And this is one of those issues that HAS been covered by reporters as an issue in this campaign (Reno Gazette-Journal’s Ray Hagar: “Could the governor stack the appeals court with his cronies?”), so why wasn’t it addressed in the ballot arguments?

Dennis Myers is an award winning journalist who has reported on Nevada’s capital, government and politics for several decades. He has also served as Nevada’s chief deputy secretary of state.