We mean well. We really do.

In 1904, voters in Nevada added Article 19, which granted Nevadans the right to directly petition for changes in state laws, to the state Constitution. So, naturally, what was the first thing Nevada’s voters did with that right? 

Why, nearly 60 percent of them elected to ban alcohol.

In the intervening decades since Nevada’s first ballot initiative was passed, the Legislature has tried, in some small measure, to rein in the power of Nevada’s voters to scribble all over the state’s laws and Constitution like a bunch of hyperactive toddlers with a pile of coloring books and permanent markers.

In 1962, the voters approved a Legislature-drafted amendment to the Constitution that, among other things, granted the Legislature the power to “facilitate the operation” of the state’s initiative and referendum process. This amendment granted the Legislature the power to statutorily govern the petition process by, for example, requiring petitions to embrace only a single subject and describe the effect of their passage in 200 words or less.

In 1972, the voters passed further amendments to Article 19 at the Legislature’s request. One in particular added a requirement to subsequent statutory initiatives to also include sufficiently large tax increases to fund any expenditures or appropriations included within each initiative. In 2022, a court ruling made that requirement applicable to all voter petitions, not just those that seek to amend state statutes.

As I discussed last December, those amendments — along with subsequent court rulings and statutory changes — have created a logical and legal pretzel that, at least on paper, make it technically impossible for any voter petition to qualify for our ballots.

To begin with, according to the letter of Article 19, Section 6, it is unconstitutional to “permit the proposal” of any petition “which makes an appropriation or otherwise requires the expenditure of money” unless the petition “also imposes a sufficient tax” to fund those expenditures. All voter petitions, however, require the expenditure of money — in paper, ink, typesetting, and time — to reach our ballots regardless of whether they pass or not. Since a petition cannot raise a tax before it’s passed, all petitions create an expense before they can create any revenue to fund those expenditures.

Technically, election officials shouldn’t even be allowed to collect them, much less read them. Time is money.

Though this might sound like an insufferably particular interpretation of that constitutional provision, it’s only slightly less ridiculous than the current status quo. 

A pair of petitions designed to implement an independent redistricting commission were rejected because they failed to include a revenue source for the commission — never mind that the Legislature, which currently handles redistricting, doesn’t do the work for free and has no need of those funds if another body is doing their work for them.

A reproductive rights petition was briefly rejected in part on similar grounds since, according to opponents, its passage would implicitly require the creation of a board to review whether reproductive services were performed pursuant to a standard of care. The Nevada Supreme Court later overturned that ruling.

Opponents of a petition to require voter identification, meanwhile, argued to the Nevada Supreme Court a few weeks ago that the petition did not identify a funding source to provide or process said identification. Though this line of reasoning was ultimately rejected in district court and by the Supreme Court, there’s no logically consistent reason to treat the potential expenses incurred through increased voter identification requirements — including ballot redesigns, reprogramming of state election systems and training staff on the new requirements — any differently from the potential cost of funding an independent redistricting commission.

Even if any of these petitions included a tax to fund any potential expenses, however, doing so would likely run afoul of the statutory requirement for petitions to embrace only a single subject. As every Nevadan knows, tax increases are a contentious enough subject on their own.

Every petition, then, is constitutionally or statutorily deficient. It’s impossible for any petition not to be.

Ruling accordingly, however, would require the Nevada Supreme Court to acknowledge that the current letter of the law governing voter petitions has, as it's currently written, rendered all voter petitions legally deficient for one reason or another. So, instead, the Supreme Court decides which ballot questions are worthy of our attention and which ballot questions will be rejected out of hand.

Regardless of what you think about any given ballot question we’ll be given the opportunity to vote for or against this year, this is not an ideal system. At the very least, it’s a recipe to politicize our ostensibly politically neutral judicial branch once activists realize they can endorse justices who might wave their petitions through — or endorse justices who seem likely to block opposing petitions on the textual basis of the letter of the law.

Fortunately, unlike Arizona, Ohio and Missouri, we do not have a Republican-led legislature fighting to radically reduce the rights of voters to directly control the laws they govern themselves with. We can consequently approach the possibility of reform, perhaps with the Legislature’s cooperation, with somewhat less trepidation.

An obvious place to start would be to repeal the prohibition on initiatives that make appropriations or require expenditures of money. The Legislature and the governor already have the power to refuse to fulfill any statutory requirement that isn’t appropriately budgeted — pay raises guaranteed to certain state workers under a 2021 arbitration agreement, for example, were never paid since the Legislature’s bill to fund them was vetoed in 2023.

Besides, how is a petitioner supposed to know how much any given measure is going to cost? Who decides if their estimate, either of the costs of their measure or the revenue generated by any proposed tax increase, is accurate enough to survive current constitutional muster? State, county and municipal governments all have professional staff dedicated to answering these questions on a daily basis — voters shouldn’t be required to duplicate that effort before they get a direct say in their government.

The next step should be to better specify the Legislature’s power to “facilitate the operation” of the voter petitioning process. Voters are well within their rights to vote against any overly verbose or complicated ballot question they can’t understand. The Legislature, along with the secretary of state’s office, should absolutely ensure all voter petitions and ballot questions provide complete and accurate information pertaining to the effect any given measure might have once passed — anything beyond that, however, should be left to the voters.

Finally, in the spirit of compromise, the voters should amicably and sensibly volunteer to return some power to the Legislature. 

Article 19, Section 1 grants voters the right to approve of a statute enacted by the Legislature — once such a statute is approved, it can only be amended or repealed by a subsequent ballot question. Consequently, for example, every amendment to the Sales and Use Tax Act, which was originally ratified by the voters in 1956, must be approved by the voters. By contrast, per Article 19, Section 2, statutes written and passed through the voter petition process can be amended by the Legislature three years after their passage.

Voter referendums for statutory approval, then, should have an expiration date. Voters in 2024 shouldn’t have to explicitly vote against laws approved by voters in 1956 — we have a legislative branch for a reason and we should be permitted to use it. Since legislators have 12-year term limits, perhaps voter approved statutes should have a similar limit. If voters remain fond of a specific statute, there’s certainly nothing preventing them from voting in favor of the measure for another 12 years.

Nevada’s voters deserve a sensible, logical and legally consistent method of directly affecting the laws that govern us. It’s time we give ourselves one.

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, on Threads @davidcolbornenv or email him at [email protected].