The state Supreme Court is set to hear oral arguments in a case challenging the legal standing of a ballot question that would amend Nevada’s Constitution to essentially prohibit so-called “sanctuary cities,” a hot-button immigration issue that has become fodder for Republican politicians in the state and across the country and could have an impact on the November elections in Nevada.
Tuesday’s hearing could play a major role in determining whether the “Prevent Sanctuary Cities Initiative” is able to qualify for the 2018 ballot after a Carson City District Court judge ruled that the ballot question as written is legally deficient, both in terms of violating state law on limiting initiatives to a single subject and having a clear description on signature-gathering forms. Backers of the initiative, the “Prevent Sanctuary Cities PAC,” are appealing the decision.
The term “sanctuary city” isn’t an official government term, and typically refers to jurisdictions that don’t fully cooperate with federal immigration authorities in the effort to deport unauthorized aliens. An intense behind-the-scenes battle during the 2017 legislative session over a proposal that would have barred state and local police from participating in federal immigration activity without a warrant resulted in the proposed bill being scuttled without ever receiving a hearing.
That proposed law, the ensuing ballot question and the legal fight promise to again thrust Nevada into the national spotlight as a participant in the greater issue of immigration enforcement between federal and local government authorities, especially given the Department of Justice’s aggressive moves to crack down on “sanctuary” jurisdictions, such as California.
Although Clark County has previously been listed on so-called uncooperative jurisdictions in regards to immigration enforcement, the U.S. Justice Department said last August that there was “no evidence” the county was acting as a sanctuary jurisdiction. Gov. Brian Sandoval questioned the need for the ballot question last year, saying in an interview with The Nevada Independent that he “wasn’t aware of there being any issues in this state associated with sanctuary cities.”
Nevada’s legislative fiscal staff declared in December that no Nevada counties, cities or municipalities had adopted any law or policy that would “prohibit, limit, or discourage cooperation with the enforcement of federal immigration laws.”
Below, we’ve outlined both sides of the case, how it got to the Supreme Court and the legal arguments set forth by either side.
The ballot question is sponsored by Prevent Sanctuary Cities PAC, a group formed last year by an aide to Republican state Senate Leader Michael Roberson. Roberson is the committee’s chairman.
The respondents in the case include former Washoe County Sheriff Mike Haley, Theresa Navarro and Tu Casa Latina, a Reno nonprofit group assisting female immigrants.
How we got here
The Roberson-backed PAC submitted the ballot question to state election officials on October 30, 2017. Less than a month later, the initiative was challenged by a lawsuit filed by the American Civil Liberties Union (ACLU) of Nevada, calling the language in a petition being circulated by initiative supporters misleading.
Oral arguments in the case were heard on Jan. 5 in Carson City, where District Court Judge James Russell sided with the ACLU and said the measure’s language was overly broad and general, which could confuse voters. He also said it violated the “single-subject” rule for ballot measures, which requires all parts of an initiative be “functionally related and germane to each other in a way that provides sufficient notice of the general subject of, and of the interests likely to be affected by the proposed initiative.”
The proponents appealed to the state’s Supreme Court, which scheduled a 60-minute oral argument on the case for Tuesday.
Despite the hot-button nature of “sanctuary cities,” legal arguments in the case are more focused on the single-subject rule and supposed linguistic problems with the petition’s “Description of Effect” — the 200-word summary of the initiative and its intended effects required to be included on signature-gathering forms.
A response filed by McDonald Carano attorney Paul Georgeson on behalf of the appellants said the District Court erred by “creating an entirely new test” requiring a court to determine prior to an election if a petition’s language is “excessively general.” He said the court should reverse the earlier decision because the description of effect largely copied the language of the proposed constitutional amendment itself, which he said was written in a “straightforward” manner.
“There is no prohibition under Nevada law that precludes the incorporation of substantive language from the petition in the description of effect,” he wrote. “In fact, it makes sense to do so where, as here, the Petition articulates a straightforward substantive constitutional prohibition, like many of the prohibitions found in the Nevada Constitution.”
Georgeson said the rationale for declaring the initiative to violate the single-subject rule was flawed, and that the court had never disqualified a petition over “linguistic ambiguities rather than the inclusion of non-germane provisions.” He said confusion and the lack of a clear definition for the term “sanctuary city” in the title of the petition wasn’t relevant, as long as one of its meanings was relevant to the rest of the petition.
“It is irrelevant that ‘sanctuary city’ may be susceptible to multiple other meanings so long as there is one meaning, consistent with the primary purpose of the petition, that satisfies the single-subject rule,” he wrote.
In a response brief filed by ACLU legal director Amy Rose and Perkins Coie attorney Marc Elias, a nationally prominent Democratic attorney, asked the court to uphold the ruling and blasted its “Description of Effect” as “fatally flawed” with “broad, undefined, ambiguous, and excessively broad language.”
“Here, the Description of Effect fails to meet this requirement, because it does not put Nevadans on notice of any practical effects of the Petition, nor how the purposes of the Petition will be achieved if it becomes law,” they wrote in the brief. “Instead, the Description of Effect uses substantially the same excessively general language as the Petition itself and misleads and confuses voters.”
They argued that the petition’s use of the term sanctuaries cities alone constituted a violation of the single-subject rule, given that it’s status as “an excessively broad subject” with “such shifting and imprecise meaning.” The brief stated that use of the term “federal immigration laws” in the petition was overly simplistic and could be extended to include a variety of topics including admission qualifications, removal, adjustment of status, naturalization and international treaties.
They also drew parallels to an earlier case where the court had ruled the language of a ballot question violated the rule as it had an “excessively broad purpose.”
“With this argument, (Prevent Sanctuary Cities) is asking the Court to endorse an improper loophole, through which initiative proponents can circumvent the single subject requirement simply by obscuring, or omitting altogether, the myriad of multiple subjects encompassed by a proposed initiative by making the purpose of the initiative excessively broad,” they wrote. “The Court should reject this misleading approach.”
Why it matters
Roberson, considered the top Republican candidate for lieutenant governor, has made opposition to “sanctuary cities” a priority of his campaignn and prominently included the issue in his first campaign ad.
Outside of Roberson, other high-profile Republicans including Sen. Dean Heller and gubernatorial hopeful Adam Laxalt, have proudly touted their opposition to sanctuary cities both publicly and in campaign material.
If placed on the 2018 ballot, it could entice higher voter turnout for traditional Republican base voters and could stem expected negative effects during a midterm election, where the party in power has historically suffered losses in Congress.
What comes next
No matter what the court decides, backers of the ballot initiative will have until June 19 to submit the 112,544 valid signatures needed to qualify the petition, including 28,136 from each of the state’s congressional districts.
If the court reverses the District Court decision, the group will have an easier time qualifying the petition, as it will be able to use any signatures gathered over the last seven months.
If the court upholds the previous decision, any previously gathered signatures won’t be legally binding and the PAC will need to start over — an uphill battle given the short time between now and the June deadline to submit signatures.