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One clever ploy

“The people of the state of Nevada do enact as follows: NRS 295.001(1) and NRS 295.009(3) are hereby repealed.”

If you wanted to propose erasing the infamous single-subject requirement that has torpedoed many a ballot initiative in Nevada, that one line is all you’d need to do it.

Instead, a group of activists opposed to the package of taxes passed by the 2015 Legislature is aiming to kill either taxes or the single-subject rule with a referendum. Here’s how:

Article 19, Section 1 of the Nevada Constitution allows citizens to request a vote on any statute or resolution passed by the Legislature. All they have to do is collect enough signatures to put it on the ballot.

But here’s the thing: NRS 295.009(1) specifies any referendum must “embrace but one subject and matters necessarily connected therewith and pertaining thereto.” That means you can’t try in a single referendum to repeal a law that raises the sales tax along with one that requires wearing seat belts.

Why? Back in 2004, some clever trial lawyers tried to sneak an attack on medical malpractice caps into an initiative purporting lower car insurance rates. Voters saw through the charade, but lawmakers decided in 2005 to impose the single-subject rule on initiatives and referendums anyway.

That could be a big problem for the We Decide Coalition, which has proposed an up-or-down vote on the entire text of Senate Bill 483. That’s the bill that created the new commerce tax on business, made a package of expiring taxes permanent and raised other taxes, including those on cigarettes. The coalition has literally cut-and-pasted the exact text of the bill onto a petition form.

The referendum clearly embraces more than one subject. And that’s just the point.

The We Decide Coalition isn’t afraid a judge will strike the referendum down on single-subject grounds, even though that would keep the petition off the ballot.

Why? Because the coalition thinks such a ruling would be a de facto admission that the Legislature violated the state constitution! As it turns out, Article 4, Section 17 has some awfully familiar language: “Each law enacted by the Legislature shall embrace but one subject, and matter, properly connected therewith.”

So if a referendum to repeal SB483 violates the statutory single-subject rule, the coalition reasons, it must mean that the bill itself violated the constitutional single-subject rule (and is therefore unconstitutional). Presto! Taxes repealed by judicial fiat!

On the other hand, if a court were to rule that the referendum doesn’t violate the single-subject rule, the anti-tax petition could be circulated to voters and potentially go on the 2016 ballot. Presto! Taxes repealed by popular will!

Sadly for the We Decide Coalition, their win-win scenario faces some legal flaws. First, it targets a bill, not a statute. That’s happened in the past, but lawyers never made an issue of it. They surely will this time.

Second, as the Legislative Counsel Bureau’s Brenda Erdoes has noted, courts have construed the Legislature’s powers with respect to bill-writing far more broadly than citizen powers with regard to writing initiatives. It’s entirely possible courts could rule SB483 was legal, but a referendum trying to repeal it is not.

That’s why another group of anti-tax conservatives is taking aim only at the commerce tax created within SB483. Targeting that single provision has a much greater chance of legal success.

Besides, if the We Decide Coalition wants to kill the single-subject rule, there’s a more straightforward way to do it. Copy and paste the line at the top of this column, slap it onto an initiative form and file away!

—Steve Sebelius is a Las Vegas Review-Journal political columnist. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or ssebelius@reviewjournal.com.

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