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Lawyers debate if taking redistricting out of Legislature’s hands will cost more money

Supreme Court justices will weigh arguments about whether proposed ballot measures contain unfunded mandates and issue a decision in the coming months.
Tabitha Mueller
Tabitha Mueller
CourtsElection 2024State Government

The Nevada Supreme Court heard arguments Thursday over an effort to invalidate two proposed ballot questions seeking to establish an independent redistricting commission.

At issue: whether the change would create additional expenses that the ballot measure isn’t prepared to pay.

The nearly 40-minute arguments on Thursday surrounded an appeal of a Carson City judge’s February ruling that the petitions filed by Fair Maps Nevada would violate the Nevada Constitution by creating an unfunded mandate. The two petitions are identical, save that one would have called for an independent commission to redraw the state’s congressional and legislative maps in 2027 at the earliest and one by the next redistricting cycle in 2031.

Fair Maps says the 2031 proposal should be cost-neutral because the timeline aligns with redistricting that is already planned.

Supporters, who filed the ballot questions in mid-November, have argued that an independent redistricting commission would remove partisan biases from the redistricting process, which in Nevada is handled by the Legislature. They say it will help undo district gerrymanders that have minimized some voters at the expense of others in pursuit of maximizing partisan control of legislative bodies. 

Two prominent Democrat-aligned law firms filed legal challenges against the petitions on behalf of Las Vegas-based Democratic voter Eric Jeng, arguing that the petitions are constitutionally invalid because they would create an unfunded mandate. 

Nevada’s electoral maps were last redrawn during the decennial redistricting process in 2021. However, under unified Democratic control of the Legislature and Gov. Steve Sisolak, those maps were drawn to maximize the number of competitive districts favoring Democrats in congressional and legislative races. 

Sondra Cosgrove, a College of Southern Nevada professor who has helped lead the ballot initiative process, has said that because the petition would replace one funded body with another, that the same funds used to support the Legislature during the redistricting process could instead be used to pay for the envisioned commission.

Historically, the seven-member Supreme Court does not issue decisions from the bench and is expected to issue a decision in the coming months. 

Attorney Adam Hosmer-Henner with McDonald Carano represented Fair Maps Nevada in the hearing. He said Thursday that the unfunded mandate accusation is “unfounded speculation” and there was no evidence from the opposing party that the independent commission would incur extra costs. 

“This doesn’t compel the legislators to spend any more or less than they have in previous years,” Hosmer-Henner said. “This independent commission is within the legislative branch and its funding is received from the legislative branch as part of the Legislature’s general fund.”

Pressed by justices about costs that will inevitably take place as a result of the redistricting process, Hosmer-Henner said funding used for redistricting can be repurposed to pay for an independent commission.

“We’re simply saying this is the way government is done and we want to do it slightly differently,” he said, adding that the Legislature does not set aside money in the state budget for redistricting, instead pulling it out of the state’s general fund. 

In a rebuttal, attorney David Fox, representing the ballot proposals’ opponents, said that creating the commission will require the Legislature to add a new expenditure without establishing a funding source.

“The basic problem is simple,” said Fox, who works for Elias Law Group, one of the most prominent firms representing Democrats in election-related cases around the country.

“The petitions create a new government body — the redistricting commission — and they mandate that it carry out a mandatory and complicated task. The condition will require funding to achieve that task, and the Legislature will have to provide it.”

There is also “issue preclusion,” Fox said, meaning the defendants had already litigated and lost similar challenges to the structure of the ballot question in 2020 and had not made changes reflective of that decision in the initiative's current form.

Asked by justices about the argument that moving money that is already in existence means costs won’t rise, Fox said state law restricts how general fund dollars (which are used to pay for redistricting costs every ten years) can be used and wouldn’t allow the Legislature to pay for an independent commission.

Fox said past decisions around the issue show that the funding mechanism does not need to be placed into the Constitution and could be a statutory change.

If the court rules in favor of Fair Maps Nevada, the organization will have fewer than 75 days to collect 102,362 valid voter signatures, including at least 25,591 from each of the state’s four congressional districts by June 26, to qualify for the upcoming election. If a petition receives enough signatures and a simple majority of Nevadans vote in favor of the corresponding ballot question, it would pass and be placed on the ballot again in 2026; an affirmative vote in that election would add the language to the state Constitution.

This is Fair Maps Nevada’s third run at a proposed redistricting commission ballot measure, with unsuccessful efforts in 2020 and 2022.

According to Ballotpedia, 13 states use commissions for congressional redistricting, and 18 use them for legislative redistricting, with the vast majority of commissions not populated by those in elected office. However, research from the Loyola Marymount University law program indicates that legislatures control redistricting in most states. 

The new maps helped create a supermajority for Democrats in the Assembly and near-supermajority in the Senate in 2022, even as Republican Joe Lombardo bested Sisolak in the race for governor and Nevada is generally considered a purple state. A potential veto-proof supermajority is on the table again in the 2024 election, which could allow Democrats to stymie Lombardo’s agenda just two years after he issued a record number of vetoes

An analysis by Princeton University’s Gerrymandering Project gave Nevada’s congressional maps an “F” grade for partisan competitiveness, citing a “significant” Democratic advantage. The project found more subtle advantages in legislative maps, giving the state Senate map a “B” grade for a “slight” Democratic advantage and leaving the Assembly map ungraded. 

Split control of state government has shaped past Nevada redistricting fights. In 2011, Republican Gov. Brian Sandoval twice vetoed maps proposed by the Democrat-controlled Legislature, sending the redistricting process to a three-person panel of “special masters” to draw up maps eventually approved by a Carson City judge. In 2001, debates between Republican Gov. Kenny Guinn and the Democrat-controlled Legislature forced a special session to finalize new maps.


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