November was not a good month for voter petitions.

On Nov. 6, a district court judge rejected the language of a petition that sought to place a question on the ballot to  repeal public funding for a new baseball stadium in Las Vegas. Eighteen days later, the same district court judge rejected a petition to place a question on the ballot to establish a state constitutional right to abortion.

That both petitions faced challenges in court is not particularly surprising. If a petition has any hope of electoral success, at least one opponent will believe it’ll be easier to convince a judge in a courtroom to reject it than take his or her chances on the collective wisdom of their fellow Nevadans. If foes have enough money and political support, they file accordingly.

For example, a petition to put redistricting in the hands of an independent commission instead of the Legislature, which Nevada’s voters may have an opportunity to consider in 2024, was repeatedly challenged when it was first filed in 2020. Similarly, Question 3, which will implement open primaries and ranked-choice voting if a majority of voters approve it again in 2024, was challenged unsuccessfully before the 2022 election.

Sometimes the challenges have merit.

Article 19, Section 6 of the Nevada Constitution prohibits voters from seeking to create or amend statutes that require additional expenditures without adding a corresponding tax to fund them. Thanks to a ruling against a petition filed in 2022 to establish a state constitutional right to “education freedom accounts,” the same prohibition applies to all other voter petitions as well. 

This is a sensible requirement designed to ensure voters don’t approve, say, state-funded trips to Mars and free puppies for every Nevadan without describing in some detail how they plan on paying for their government-funded wish fulfillment.

The catch, however, is that all initiatives seek to make changes and all changes require the expenditure of time and money. The work required to edit the state Constitution’s website or update the contents of our statutes online is done by paid state workers, not volunteers. Consequently, if you’re being particular enough, every voter petition arguably includes an unfunded mandate if it fails to raise a tax sufficient enough to fund the paperwork required to add it to our laws.

Is this a nonsensical interpretation of a specific clause of our state Constitution? Perhaps, but that doesn’t stop many challenges from including arguments approaching this level of particularity — and succeeding. The ruling against the petition seeking to establish a state constitutional right to abortion argued, in part, that the petition failed the requirements established in Article 19, Section 6, because it didn’t include funds to pay for a board of doctors that the petition never explicitly sought to create.

An additional requirement all voter petitions must meet was established under NRS 295.009, which requires all voter petitions to stick to a single subject. This measure is designed to prevent “logrolling,” — which, if you’re a Simpsons fan of a certain age, is the sort of thing that causes people to think democracy simply doesn’t work.

Addressing the requirement more directly, the idea is to prevent petitioners from proposing measures that are broadly popular while including obviously unpopular unrelated measures alongside them. Borrowing again from “The Simpsons,” a petition requiring the state or a local agency to evacuate disaster areas should not be on the same petition to, for example, provide $30 million for the “perverted arts.”

The catch, however, is that it’s difficult to agree on what a single subject is, exactly. Is an evacuation from a fire a separate subject from an evacuation from a flood? If you're a disaster manager or an emergency worker, certainly not — but at the level of legislation or public policy, how much does it matter?

Of course, a hypothetical petition requiring state or local agencies to evacuate disaster areas would need to include a tax sufficient enough to fund all possible evacuations, lest it run afoul of Article 19, Section 6. Additionally, a suitably motivated opponent of such a petition could argue that, even if a tax was included in the petition, it may be insufficient to fund all of the various supervising boards, panels, commissions and other agencies that logically must be funded as well to administer and ensure compliance with the measure — and is the tax sufficient to ensure all evacuees are evacuating in sufficient comfort, perhaps on taxpayer-provided massage chairs? Back problems are quite debilitating, after all.

Why does any of this legal hairsplitting matter? The answer is because we've accidentally added it as an unofficial yet mandatory step in the process required for a petition to reach our ballots.

The theoretical process for getting a petition on the ballot is simple enough for grade school children to understand. On paper, all anyone needs to do is file a petition with the secretary of state’s office, gather enough signatures, then wait for the voters to weigh in. This explanation glosses over a few key details such as deadlines, which signatures need to be collected, and whether either the Legislature or the local government gets a crack at enacting the proposed measure or not, but it’s at least directionally accurate with what’s in the state constitution and statutory law.

The actual process, by contrast, includes an extra unofficial step that wasn’t added with much intent or forethought — namely, routine adversarial judicial review of each and every step of the aforementioned theoretical process.

The reason judicial review is becoming increasingly common is because the expected value of challenging a petition in court is always positive compared to the alternative of leaving a petition unchallenged. In 2022, advertisers spent $360.7 million on political advertising in Nevada — well ahead of nearly every other state in the country. If it takes even 5 percent of that figure to get enough anti-petition messaging in front of voters for them to second-guess a petition they likely signed earlier that year, that’s a potential commitment of nearly $20 million with no certain payoff.

In a courtroom, by contrast, even a fraction of $20 million is more than enough to hire some excellent lawyers and cover any associated court fees. Additionally, if a petition isn’t successfully challenged in court, organizing voters against the measure remains a viable backup plan.

So what does the process of challenging a petition in court currently look like? 

Per NRS 293, decisions by the secretary of state may only be appealed in the First Judicial District Court, which has statutorily assigned jurisdiction over Storey County and the state capital, Carson City. That district court consists of two judges who are both elected by the voters of Carson City and Storey County. In their last election in 2020, they both ran unopposed and received nearly 27,000 votes each.

The wisdom of electing judges is, as a colleague opined a while back, already questionable. Leaving the first step of every voter petition’s legal review in the hands of a pair of judges most Nevadans have never heard of and will never be able to exercise even an indirect measure of accountability against is absurd.

The absurdity, however, doesn’t end there. 

Regardless of the ruling of either judge of the First Judicial District Court, someone — either each petition’s proponents or its opponents — almost always appeals the ruling to the state Supreme Court. If a petition is found legally deficient by a district court judge, a successful appeal is the only way for the petition to be potentially eligible to be voted on. If a petition isn’t found legally deficient, meanwhile, a state Supreme Court ruling is still substantially cheaper for an opponent than a political advertising campaign during a general election.

This raises an obvious question: If petition challenges invariably reach the state Supreme Court, why do they need to go through the district court first? Is the district court adding anything of value to the process, especially when the judges are selected by a geographically narrow slice of Nevada’s voting population?

One possible answer is that the state Supreme Court has historically struggled with a severe backlog, one which only started to relieve itself a couple of years ago. According to the court’s most recent annual report, there is still a backlog of more than 1,000 cases, though that’s less than half the size of the backlog that overwhelmed the court in 2018. 

That objection, however, isn’t convincing. Since petition challenges in district court are routinely appealed to the state Supreme Court, the number of petition challenge cases reaching the Supreme Court likely remains identical. 

Additionally, the number of petitions filed with the secretary of state’s office is not particularly high compared to the remainder of the volume of cases the Supreme Court routinely handles. In 2022, 14 petitions were filed with the office, of which 12 received some form of legal review (two of the filed petitions were withdrawn). Those 12 cases would account for less than 1 percent of the total caseload handled by the state Supreme Court in any given year.

There might, however, be an even better solution. The secretary of state’s office could be granted the power to review voter petitions for legal and constitutional appropriateness — and challengers could be required to prove to an extremely high evidentiary standard that the office’s decision was incorrect.

This solution has two benefits. 

The secretary of state is a constitutional office, one that is selected by voters statewide and that correspondingly tends to have a high enough profile to receive more attention and scrutiny than most judicial races. Consequently, assigning primary responsibility for voter petition reviews to that office provides voters a direct path of accountability should a desirable petition be rejected. 

Additionally, by raising the evidentiary standard for challenges to the office’s rulings regarding voter petitions, the merit of each petition more often would be decided by the voters, not by a handful of judges and lawyers.

Whatever the solution is, one thing is clear. Whenever someone files a voter petition, someone else will file at least one legal challenge against it. It’s well past time we thoughtfully and intentionally find a way to routinely address them.

David Colborne ran for public office twice. He is now an IT manager, the father of two sons, and a weekly opinion columnist for The Nevada Independent. You can follow him on Mastodon @[email protected], on Bluesky @davidcolborne.bsky.social or email him at [email protected].