The Nevada Supreme Court heard arguments Wednesday on the legality of a proposed ballot measure to require voter identification, after a lower court dismissed a lawsuit challenging it in February.

The appellant — represented by a group of Nevada and Washington, D.C.-based attorneys who typically represent Democrat-backed causes — argues that the petition would cost money while not explicitly outlining a funding source, which would be unconstitutional. Voter ID proposals are favored inside and outside of Nevada by Republicans, who say they are necessary to ensure election security, but the proposals have failed to gain momentum in the Democrat-controlled Legislature.

The hearing comes less than two months before the deadline for petition supporters to gather and submit enough signatures for the measure to qualify for the November ballot. So far, supporters have received about  60,000 signatures, according to David Gibbs, the head of the Repair the Vote PAC behind the effort. To make it on the ballot, petition supporters still must gather 102,362 signatures from voters by June 26, with at least 25,591 signatures coming from each of the state’s four congressional districts.

Republican Gov. Joe Lombardo's political apparatus has connected the PAC to a benefactor who is helping fund the campaign and will pay people for signature gathering efforts, said Gibbs, a former chair of the Clark County GOP. The PAC plans to have more than 100 paid signature gatherers within the next week, he added. 

Ryan Erwin, Lombardo’s top political strategist, did not respond to a request for more information. The PAC reported raising $100,000 in the first quarter of 2024, all from a single donor — Allen Knudson, president of a Henderson-based mortgage banking company.

The proposal, filed last November, seeks to amend the Nevada Constitution by requiring each in-person voter to provide a valid form of photo identification before receiving their ballot. That can include a driver’s license, passport, student photo ID card or concealed weapon permit. 

The proposal would also require everyone voting by mail to include part of a personally identifiable number — such as a Social Security number or driver’s license number — alongside their signature.

The legal challenge was brought in December by Jennifer Fleischmann, the development director for the progressive immigrant advocacy group Make the Road Nevada.

Arguments

David Fox, one of Fleischmann’s lawyers, argued Wednesday that the proposal is similar to a poll tax, which is illegal under the federal Constitution, because it would require in-person voters to provide forms of identification that cost money to obtain. He added that the question would require the Legislature to provide a funding source for free identification, making the framing unconstitutional as no such funding source is included in the ballot question’s language.

Justice Patricia Lee questioned attorneys for Repair the Vote, the pro-voter ID group, if it was indeed a poll tax.

“[If] I don't have a driver's license or any of the forms of IDs enumerated in the proposed rule change or the constitutional change, and then I have to go to DMV, then who's going to pay for my ID?” Lee asked. “How is that not a poll tax? I have to pay to vote.”

Repair the Vote’s counsel, Reno lawyer David O’Mara, responded by saying that even if the petition succeeds, a prospective voter would not be required to pay money to vote, an apparent reference to the option of providing part of a Social Security number to vote by mail. He also referred to voter ID cases in other states, although many of those cases involved voter ID requirements with more lenient rules about valid forms of ID.

“In Nevada, you don’t have to pay anything to vote. You get a ballot if you’re registered,” O’Mara said. “There is no specific [precedent from other states] that says that having to pay for anything is a specific poll tax.”

Chief Justice Elissa Cadish questioned whether the court’s task to determine if a poll tax existed was “excessively speculative” because the proposal itself does not call for the allocation of funding that could make obtaining an ID free. Fox responded by saying the high court has conducted similar analyses in the past.

Wednesday’s hearing also included a discussion of the constitutionality of the proposal’s “description of effect,” a 47-word description included on signature gathering forms that is required to explain the implications of the ballot question.

Justice Lidia Stiglich questioned the clarity of the description, saying it was not abundantly clear in the description that people would not be allowed to vote in person unless they have a photo ID.

O’Mara argued that the description was “a summary of what's going to happen,” and that the main implication of the proposal is amending the state Constitution, which is outlined in the petition’s description.

Fox, however, argued that the description did not explain all of the measure’s implications, including the forms of accepted ID and the funding source for the proposal.

If the initiative survives the legal challenge, lands on the ballot and receives support from a majority of voters, it would again be placed on the 2026 ballot, when another affirmative vote would amend the state Constitution.

The ballot initiative mirrors a bill pushed by Lombardo last year that stalled in the Democrat-controlled Legislature. The effort has received public support from former President Donald Trump, who encouraged Nevadans in February to sign the petition.

This marks the second time Repair the Vote has tried to place a voter ID ballot measure before voters. In 2022, a judge ordered the group to rewrite its “description of effect” because it was argumentative, which the group ultimately never did.

A Nevada Independent poll of 800 likely voters last year found that 74 percent supported voter identification.