Elections, mining taxes, and civil liability; everything that passed in the Legislature’s special session
Nevada lawmakers wrapped up a six-day special session in the wee hours of Thursday morning after enshrining an expansion of mail-in voting, extending anti-lawsuit protections to businesses and laying the groundwork for a potential tax increase on mining companies that has been long-sought by progressive activists.
They also took steps to address issues bedeviling the backlogged Department of Employment, Training and Rehabilitation and secure additional weeks of benefits for the jobless. And they implemented policing reform measures such as restrictions on chokeholds in response to a nationwide movement against police brutality.
“If history hasn’t taught us anything else, you have to capture the moment,” Democratic Assemblywoman Daniele Monroe-Moreno said about the police reform bills. “There are still protests going on. There are still people who are hurt. And there’s still people saying ‘I elected you, I need you to do something to change it.’”
The session comes after lawmakers convened for 12 days in July to rework a state budget pummeled by the pandemic. Sponsors of the bills in the latest session argued that they addressed issues too pressing to wait for the regular session set to start in February, although the results didn’t satisfy everyone — Republican Sen. Ira Hansen called the unemployment bill “window dressing” on a massive problem of delays in benefit payouts.
Perhaps the highest profile measure was AB4, an expansion of mail-in voting headed into the general election that has taken heat from national Republicans, including repeated tweets and public criticism by President Donald Trump. On Tuesday, the Trump campaign, the Republican National Committee and the state Republican Party fought it by filing a lawsuit — something that Democratic Senate Majority Leader Nicole Cannizzaro said she thought would be dismissed.
Cannizzaro, in an interview after midnight on Thursday, called it “really just an attempt to get people to feel that they can't trust the results of this election, and therefore they should not vote, and that's a suppression issue. We are not going to stand for that. We're going to fight it in court. We're going to continue to advocate for the right for everyone to vote and do so safely.”
The most heavily lobbied bill of the session was likely SB4, a measure granting some legal immunity to businesses if they follow health guidelines that conspicuously excluded health care facilities and schools. The last project of the session to wrap up, the bill was the subject of much behind-the-scenes wrangling and pointed, public questions from lawmakers who called it a deal that picked winners and losers.
In the end, though, lawmakers billed it as an imperfect bill that was better than nothing to help preserve the tourism industry that powers the Nevada economy. It passed by comfortable margins in both chambers of the Legislature.
Gov. Steve Sisolak has already signed several bills into law, and his office said early Thursday that he will sign the rest of them in the coming days.
Here’s a look at the measures that passed in the special session:
AB4: Expansion of mail-in voting and ballot collection
Votes: Passed Assembly 29-12 on 7/31/20. Passed Senate 13-8 on 8/2/20.
What it does: The legislation creates a new set of rules for elections conducted under state of emergencies or declaration of disaster, which would be in effect for the 2020 general election.
AB4 will allow for a voter to authorize another person to return their absentee or mail-in ballot to an election clerk — a practice called ballot collecting or “ballot harvesting.” Current Nevada law only allows voters to authorize a member of their family or a limited pool of individuals to return their mail-in ballot.
It also requires election officials to provide a mail-in ballot to all registered, active voters in the state. The mail ballots must be mailed 20 days before the election to registered, active voters who reside in the state and 40 days before the election to registered, active voters who live outside the state. It also allocates $2 million in state funds for the general election, with instructions on further disbursements of potential future funds.
The bill requires Clark County to provide at least 35 polling places for early voting, with at least 15 in Washoe County and at least one permanent location in every other county. On Election Day, Clark County must have at least 100 polling places, Washoe County must have 25, and every other county must have at least one polling place open.
It also lays out requirements for tribal governments to request early voting locations on reservations.
But as with other new election-related changes in the bill, those provisions are only in effect during state of emergencies or decorations of disaster declared by the state governor. The bill is written in a way that will allow the 2020 general election to be covered under those provisions because of the COVID-19 pandemic.
For affected elections, each active registered voter would receive a sample ballot and a mail ballot. Voters, in turn, would need to fill out the mail ballot, deposit the ballot in the mail envelope and attach a signature to the space provided on the return envelope. The mail ballots must be postmarked on or before Election Day and received by the clerk no later than 5 p.m. on the seventh day following the election. They can also be hand-delivered to the county or city clerk or to any established ballot drop boxes.
Voters’ signatures will be checked against voter records available to the clerk. If two employees in the office of the clerk believe there is “reasonable question” the signatures don’t match, the voter will be contacted to confirm whether the signature indeed belongs to the voter.
If there are issues remaining with the signature, a voter has until 5 p.m. on the ninth day after the election to submit a corrected signature.
For affected elections, the bill also instructs the county or city clerk to establish a mail ballot central counting board, which would begin counting the received mail ballots 15 days before Election Day. The board must count all ballots on or before the ninth day following an election.
SB4: Liability protections for businesses, protections for casino workers
Votes: Passed Senate 16-5 on 8/5/20, passed Assembly 31-10 on 8/5/20.
What it does: The bill covers three topics: enhanced cleaning policies for large casinos and hotels in Las Vegas and Reno; enhanced protections for workers at those casinos and hotels; and broad immunity from COVID-19-related litigation for businesses, government agencies and nonprofits, but not for health care facilities, including hospitals, or K-12 schools.
The liability shield aspect drew some of the most heated testimony and heavy lobbying in the session, especially from hospitals and health care groups upset at their exclusion from the liability protections.
Essentially, the bill creates a higher standard for bringing a personal injury or wrongful death lawsuit related to COVID-19 against a business, governmental agency or nonprofit. It isn’t a blanket immunity, but grants expanded protection against lawsuits unless a plaintiff can prove the business violated minimum health standards with “gross negligence” and that failure to follow the health standards was the “proximate cause” of the individual’s injury or death.
The legislation exempts hospitals, other health care facilities and public schools, including charters, from those enhanced protections. Staff from the governor’s office said that the bill would not affect existing liability protections for those businesses covered in other parts of law, such as medical malpractice. Still, several hospital leaders said the changes would force them to adopt policies limiting visitors or vendors on their premises as well as transfers between facilities, which would put further strain on the number of available hospital beds.
The bill also requires the state to develop regulations on enhanced clearing standards for hotels and casino resorts in Reno and Las Vegas, including regular cleaning of high-touch areas such as fixtures, door handles and other objects. It also requires the state to adopt regulations implementing COVID-19 mitigation protocols among employees at those casinos and hotels, and authorizes them to regularly inspect and if necessary fine non-compliant businesses.
It also includes certain paid-time off mandates for employees at those casinos or hotels while awaiting test results or if they contract the virus, as well as requirements for free testing and other safety protocols for employees.
SB3: Expanding flexibility for DETR, extending unemployment benefits
Votes: Passed Senate 21-0 on 8/4/20. Passed Assembly 41-1 on 8/4/20
What it does: The bill allows people to work more hours before they are deemed to make too much to be eligible for unemployment benefits, which would allow more people to take advantage of any federal bonus payment that Congress might enact after the recent expiration of the $600-per-week Federal Pandemic Unemployment Compensation add-on.
It also makes changes allowing Nevada to tap into an additional seven weeks of federally funded payments once claimants exhaust earlier benefits.
The bill will allow the Nevada Department of Employment, Training and Rehabilitation (DETR) to disregard vacation cash-outs or other income that is counted toward a person’s eligibility, but often delays payments for weeks because it sends their claim to an adjudication process. An amendment added after the bill was first unveiled made some of those provisions retroactive to late May in an attempt to capture about 14,000 claimants stuck in limbo because of a “disbursable income” issue.
Votes: SJR1 passed Senate 13-8 on 8/1/20, passed Assembly 25-17 on 8/2/20.
AJR1 passed Assembly 29-13 on 8/2/20, passed Senate 13-8 on 8/2/20.
AJR2 passed Assembly 29-13 on 8/2/20, passed Senate 14-7 on 8/2/20.
What it does: Lawmakers introduced and passed three resolutions that could substantially overhaul constitutional provisions affecting how Nevada taxes its mining industry.
All three resolutions will move forward to the 2021 Legislature and, if approved again, would need to be signed off on by voters during the 2022 election in order to take effect.
Two of the measures, AJR1 and SJR1, contain substantially similar changes to the Constitution’s mining tax structure, which currently limits taxation on the net proceeds of minerals to be no more than 5 percent. But they differ in how they would allocate proceeds from the higher taxes.
Both measures would amend the state Constitution by removing the 5 percent maximum net proceeds of minerals tax and replacing it with a tax on the gross proceeds at a rate of 7.75 percent.
And they both would undo the normal two-thirds majority required for any tax increase, allowing a simple majority of legislators to increase taxations on mines or minerals but requiring a two-thirds vote to reduce the rate or provide exemptions from the taxes.
The Senate proposal would require 50 percent of the proceeds go to a separate budget fund in the state Treasury and fund a program making regular payments to “eligible persons domiciled in this State.” The Assembly proposal would earmark 25 percent of the proceeds to be used exclusively for education purposes, health care for state residents or economic assistance to state residents.
AJR2 would also amend the Nevada Constitution by raising the upper limit of the net proceeds of minerals tax from 5 percent to 12 percent.
The resolution would also establish a minimum rate of the net proceeds tax tied to the property tax rate in the taxing district, whether that’s a county or municipality, where the mining operation is located.
SB2: Revisiting 2019 police misconduct bill
Votes: Passed Senate 13-8 on 8/3/20. Passed Assembly on 25-17 vote on 8/4/20.
What it does: This bill removes several provisions of SB242 of the 2019 Legislature, which implemented additional protections for police officers accused of misconduct.
Changes made by SB2 include allowing use of a police officer’s statement in an internal investigation in a civil case without their consent, increasing the statute of limitations on when a law enforcement agency can bring an investigation against an officer, allowing an officer who is under investigation to be reassigned removing a prohibition on law enforcement agencies reopening investigations without “new material evidence.”
AB3: Policing reform: Chokeholds, duty to intervene and recording law enforcement
Status: Passed Assembly 38-4 on 8/1/20. Passed Senate 19-2 on 8/3/20.
What it does: The bill explicitly allows recording of law enforcement activity if it is not obstructing the activity and bars police from seizing recording instruments or destroying recorded images.
It also provides that police can use “only the amount of reasonable force necessary” to carry out the arrest of someone who is fleeing or resisting. The law currently allows police to use “all necessary means” to make the arrest.
Other provisions ban officers from choking people and requires them to “take any actions necessary to place such a person in a recovery position if he or she appears to be in distress or indicates that he or she cannot breathe.”
It also creates a “duty to intervene” that requires an officer to prevent or stop another officer from using unjustified force against a person, regardless of the chain of command. The officer must report in writing within 10 days the details of the incident.
The legislation additionally requires the testing of officers for alcohol and drugs — including prescription drugs and cannabis — if they are in an officer-involved shooting.
SCR1: Declaring racism a public health crisis
Votes: Passed out of both houses on a voice vote.
What it does: It’s a nonbinding resolution declaring that “systemic racism and structures of racial discrimination constitute a public health crisis which is magnified by the disproportionately high impact of COVID-19 on communities of color and which affects the entire State of Nevada.”
Introduced by Democratic Sen. Pat Spearman, the resolution highlights that COVID-19 related deaths and hospitalizations among Hispanic, Black and Indigenous people are higher than their population shares in the state, and the “chronic stress of racism” exacerbates and negatively affects the mental and physical health of minority populations.
The resolution also states the Legislature’s support for “local, state, regional and federal initiatives” to address and dismantle systemic racism, and a request to the federal government to distribute funding equitably among minority communities in proportion to “their disadvantages by individual racial category.”
SB1: Alternative dispute resolutions for evictions
Votes: Passed Senate 18-3 on 8/2/20. Passed Assembly 38-4 on 8/3/20.
What it does: This bill requires a halt on eviction proceedings for any tenant in a dwelling unit, apartment, mobile home, recreational vehicle, or low-rent housing program operated by a public housing authority if a court in the state establishes an “expedited program of alternative dispute resolution.”
Alternative dispute resolution typically refers to a wide array of legal processes to bring two disputing parties to an agreement short of formal litigation. Gov. Steve Sisolak announced the lifting of the state’s moratorium on evictions in late June, though it will be a phased-in process and prohibit evictions of residential tenants for non-payment of rent until September.
The bill halts evictions for up to 30 days if the parties agree to enter the program for alternative dispute resolution.
AB1: Corrects technical errors on law for ex-felon voting rights, evictions
Votes: Passed Assembly 31-10 on 7/31/20. Passed Senate 18-3 on 8/1/20.
What it does: It corrects several unintended clerical or drafting errors from bills approved during the 2019 Legislature.
This includes a change in legal language to indicate that people who are placed on probation, granted parole or granted a pardon immediately regain their right to vote. Existing law leaves a gray area on people under supervision because it says the right to vote is restored to someone who “has served his or her sentence and has been released from prison.”
It also takes out provisions of law that prevented voter rights restoration for people who were released from prison but had been convicted of a serious category A felony, a category B felony involving the use of force, or two or more felonies arising from separate incidents.
The bill also amends language passed in 2019 about when a person is evictable. It specifies that a tenant is guilty of an “unlawful detainer” if they remain in a commercial property for five days after not paying rent and being notified in writing of the default.
The term is seven judicial days for noncommercial properties and 10 days for a mobile home lot.
AB2: Remote voting, legal staff and constitutional changes
Votes: Passed Assembly 40-1 on 7/31/20. Passed Senate 15-6 on 8/2/20.
What it does: This bill largely codifies practices and actions taken by interim legislative bodies over the past few months, including allowing legislators to participate in committee meetings or floor sessions using remote technology.
Legislators in the previous special session adopted floor rules allowing for remote voting technology, a precaution given concerns over COVID-19. The bill essentially adopts those rules into law, and makes it a crime to unlawfully disrupt any videoconferenced proceedings or meetings.
It also codifies a staffing change in the Legislative Counsel Bureau approved by the interim Legislative Commission last month that created a new office of “general counsel,” a new position heading any litigation or lawsuits involving the Legislature.
Finally, the bill includes technical processing instructions for what to do if the Legislature begins the process of amending the Constitution during a special session. Usually, a constitutional change originating in the Legislature needs to pass two subsequent sessions and be approved by voters to take effect, but constitutional deadlines allow the Legislature to shorten that process if they pass a resolution during a special session.