MYERS: The risks of ballot measures

Some corporate folks, seeking to deal with the blow dealt to Nevada rooftop solar power generation by the Public Utilities Commission, are planning to use a ballot measure.

With support from solar firms, a group called No Solar Tax PAC was created to place a measure on the ballot by petition. (The petition has been posted on the secretary of state's website and readers can find it at http://tinyurl.com/hkuap78.)

Turning to the ballot is the worst way to make law, to the point that California's ballot petition industry has made that state a national bad example. There are a couple of different ballot petitions in Nevada, and they're both problematic. I'm going to offer two ballot measures, both sponsored by Jim Gibbons, as evidence of the unintended consequences that accompany ballot measures.

Gibbons ran his first campaign for governor in 1996, and he used an initiative petition as a campaign gimmick. Gibbons lost his run for governor, but the initiative petition was approved by voters. It requires supermajorities in the legislature or a vote of the public to raise taxes.

The first time thereafter that a major tax hike came up was in 1999. Labor and management got together to stick the public with a sales tax increase to pay for infrastructure construction in local communities, thus creating business for businesses and jobs for labor unions. But because of the newly required supermajorities, it was uncertain that it could pass the legislature. For one thing, the original proposal benefited only one end of the state. So to make sure the needed number of legislators would vote for the bill, more infrastructure construction was authorized for the OTHER end of the state.

Thus, a law intended to make tax increases difficult to pass ended up raising spending levels. (Legislative lawyers later claimed that the legislative supermajority requirement could be avoided if the legislature authorized local governments to do the actual tax raising, but that could have prompted a court fight. Besides, by the time the lawyers came up with their scheme, the proposal had already been expanded to include both ends of the state.)

The second Gibbons ballot measure dealt with education. Approved in 2006, it required the legislature to approve school funding before other parts of the budget. It was wholly toothless. There are an amazing number of ways to technically comply with it while doing nothing for education. But a couple of weeks ago we discovered one thing it DOES do.

When the legislature enacted the new state program that pays parents to take their children out of public school, they paid for it with legislative-approved school funding. When parents sued to stop the program, State Judge James Wilson ruled that the new law reduces the amount the lawmakers had approved for schools, and that breached the provision in the Gibbons initiative petition that authorizes "sufficient" public school funding. By tapping public school funding for non-public school purposes, it made the public school funding insufficient – and thus unconstitutional.

No one ever foresaw this angle on the initiative petition.

Making law is a difficult, many-faceted job. The legislators themselves sometimes fail to anticipate all angles of their measures, but not as often as backers of ballot measures.

An initiative petition seeks to pass a new law. A referendum petition puts an already existing law up for a public vote. The No Solar Tax PAC is proposing a referendum. It seeks to repeal the Public Utilities Commission's action on solar rooftop by repealing the sections of the net metering law that authorized the PUC action.

But No Solar Tax PAC is a special interest political action committee. How do we know they're not also trying to repeal language having nothing to do with the current controversy? What is the possibility that everyday voters can read the petition with its verbiage about cumulative capacity requirements and marginal demand costs and know what they're voting on?

In addition, there is a provision in Nevada referendum law that says once a state law has been approved by referendum, it can never again be changed except by another vote of the public. There could be a long line of public votes in this arcane and ever-changing area of law ahead.

Ballot measures should be a last resort, and in this controversy players have turned to it as a first resort.

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.