Running out the clock on commerce tax referendum

You could be forgiven for thinking there’s a little clock-running going on in the effort to kill a referendum targeting the commerce tax passed by the 2015 Nevada Legislature.

Even though a Carson City District Court judge ruled the referendum filed by a group headed by state Controller Ron Knecht was fine, opponents last week filed an appeal with the Nevada Supreme Court.

Insert your game-delaying jokes here.

Why? Opponents of the referendum — who are trying to block Nevada voters from getting a chance to say yes or no to the commerce tax on the November ballot — know that the less time Knecht’s group has to gather signatures, the greater the chance the tax-repeal effort won’t make the ballot at all.

And that’s really the entire ballgame, because if the referendum does make the ballot, only two things can happen. One, voters reject the tax, and it’s erased from the state’s law books. Two, voters keep the tax, but it becomes locked into the state’s law books and can only be changed in the future by a direct vote of the public.

Neither option is palatable to tax proponents, who want to not only keep the tax, but also retain the flexibility for the Legislature to tweak it to fix the inevitable problems that will come up in calculating rates and other details.

Hence, the appeal. And please, keep that clock running!

That’s not to say that attorneys Matt Griffin and Kevin Benson don’t have good points. In fact, they make some pretty persuasive arguments that the referendum wasn’t written properly, and that voters won’t realize exactly what they’re signing.

For example, if voters place the referendum on the ballot and vote to kill the tax, the budget won’t be balanced. In a worst-case scenario, that could require the Legislature to meet in special session to pass another tax or make budget cuts. But the referendum doesn’t say that.

Not only that, but when the Legislature passes a budget, it must be balanced. Why, Griffin and Benson argue, should things be different if the people utilize their legislative powers to repeal a law that creates a budget gap? Shouldn’t they also have to ensure a balanced budget?

There’s also a somewhat technical argument that nonetheless may appeal to Supreme Court justices. The constitution allows people to circulate referendums to repeal “a statute or resolution or part thereof.” But instead of identifying the statute they want to put up for a vote, Knecht and Co. simply submitted the language of the bill that created the commerce tax that was passed by the Legislature and signed by the governor.

According to Griffin and Benson, bills create statutes but are not statutes themselves. Therefore, the entire petition should be struck down as invalid.

Too technical? Maybe. But the referendum’s foes make a good argument about how strictly the rules should be applied. If they’re applied too loosely, then referendum and initiatives that have far-reaching implications for state government would be allowed and could create chaos at the ballot box. If they’re applied too strictly, things are more orderly (although that could frustrate the people in the exercise of their ultimate power to propose laws or to put laws up for a vote of their fellow citizens). Thus far, the state Supreme Court has come down mostly in favor of strict adherence to the rules.

If the Supreme Court decides to send the petition back for a revision, then any signatures gathered may have to be tossed out and the process will start anew. At the very least, the appeal raises some uncertainties about the validity of the repeal. At the very most, it will run the clock and give supporters of the commerce tax a chance to beat back a repeal.

— Steve Sebelius is a Review-Journal political columnist and co-host of the show “PoliticsNOW” airing at 5:30 p.m. Sundays on 8NewsNow. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or

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