The Nevada Constitution doesn’t prohibit people who circulate petitions to create or change laws from withdrawing those measures after they qualify for the ballot but before they go to voters, according to a new opinion from the attorney general’s office.
The 12-page opinion was requested by Gov. Steve Sisolak on July 20 to reconcile a possible conflict between the state constitution and a law passed in the 2021 session that provides deadlines for withdrawing petitions.
The opinion may be key to resolving a potential conflict surrounding a gaming tax petition qualified in 2020 by the Clark County Education Association. At the end of the 2021 session, the union agreed to withdraw that petition as part of a deal to raise mining taxes in the state.
Nevada’s constitution specifies, in Article 19, Section 2, that petitions calling for new state laws must be submitted to the Legislature after the signatures are verified. The Legislature can adopt the proposed law, reject it or take no action.
In the latter two instances, the constitution says, “the Secretary of State shall submit the question of approval or disapproval of such statute or amendment to a statute to a vote of the voters at the next succeeding general election.”
But the Legislature in May passed Assembly Bill 321, which amended a 2017 state law that allowed petitions to be withdrawn by adding language to specify that such a request must be made no later than 90 days before the election in which the initiative was to go before voters.
The teachers union, via attorney Maggie McLetchie, has filed a request to withdraw the gaming tax petition with the secretary of state. But as of Friday, Secretary of State Barbara Cegavske has not indicated whether she will grant the request.
McLetchie didn’t return a phone call seeking comment Friday.
Constitutional question
The July 28 opinion, signed by Deputy Solicitor General Gregory Zunino, says flatly that despite what might seem to be a conflict with the constitution, the withdrawal statute is legal. The law “imposes upon the Secretary of State an enforceable ministerial duty to honor a timely notice of withdrawal that the Secretary has no discretion to disregard,” he wrote.
Zunino notes in the opinion that since nothing in the constitution specifically forbids withdrawing a qualified petition, “there is no direct conflict between the plain language of Article 19. Section 2 and that of (state law). The provisions can, and should, be read and interpreted in harmony.”
Although the word “shall” is usually interpreted as mandatory, Zunino argues that the word “is not presumed to be mandatory if such an interpretation would undermine Legislative intent. … As a presumptively constitutional exercise of the power to facilitate the operation of the initiative process, (the state law) requires that the Secretary of State honor a notice of withdrawal timely submitted by the proponents of an initiative petition.”
Zunino argued that proponents of an initiative can waive the right to have a qualified petition go to the ballot and that the secretary of state must honor any such requests. Zunino also argued voters don’t have a right — before an initiative is placed on the ballot — to vote on any proposed measure.
Finally, Zunino says the secretary of state doesn’t violate any duties of office by allowing a petition to be withdrawn, rather than sending it to the ballot as the constitution specifies.
Other questions
It’s unclear what might happen if Cegavske, an independent elected official, chooses to ignore the attorney general’s opinion and announce she will forward the gaming tax to the 2022 ballot regardless of the withdrawal request. (A second union-backed petition, to raise the portion of the state sales tax that funds schools, has not been withdrawn thus far.)
It’s also unclear why Sisolak’s office requested the opinion from the attorney general, since the governor has no role in the initiative process once the Legislature takes no action on a petition. An email to Sisolak spokeswoman Meghin Delaney was not immediately returned Friday afternoon.
But several legislative lobbyists during the closing days of the 2021 session expressed concern about the law allowing the withdrawal of petitions, fearing it would lead to groups circulating initiatives not to make policy, but to force large industries to make compromises under threat of something worse going before the voters.
Indeed, asked about the gaming and sales tax petitions, Clark County Education Association Executive Director John Vellardita frankly acknowledged using the initiatives to get the casino industry on board with higher mining taxes.
“If that’s what you’re asking me that we do, the answer is yes,” he said an interview before the Legislature adjourned.
Contact Steve Sebelius at SSebelius@reviewjournal.com. Follow @SteveSebelius on Twitter.