Who is trying to stop the League of Women Voters of Nevada’s anti-gerrymandering reform?

The League of Women Voters strongly opposes any type of election corruption, including partisan gerrymandering, which has become a growing problem since 2001.

Because partisan gerrymandering is harder to prove than racial gerrymandering, the legal option for addressing the harm was not perfect.  So, a coalition of civil rights organizations appealed a series of partisan gerrymandering cases to the Supreme Court in 2019 hoping to convince the majority to set a standard deviation to use as a rule for overturning gerrymandered maps without suing.  These groups proposed using efficiency gap software developed at Massachusetts Institute of Technology that analyzes redistricting maps to find districts with too many or too few voters from either major political party.

Unfortunately, instead, the court’s majority ruled that partisan gerrymandering is a political issue that must be managed through political remedies at the state level.  The majority also ruled that federal courts can no longer accept partisan gerrymandering cases.  The case is Rucho v. Common Cause, June 2019.

This means that unless a state has anti-gerrymandering laws or state constitutional protections, there is no legal remedy for partisan gerrymandered maps.  In those states, one party can permanently gerrymander itself into power and silence the majority of the state’s voters.  Nevada has no statutory or constitutional gerrymandering prohibitions.

Because the League of Women Voters has prioritized protecting our representative governing processes for one-hundred years, the organization launched its People Powered Fair Maps initiative in September of 2019.  The foundation of this program are the 2015 Supreme Court ruling Arizona Legislature v. Arizona Independent Restricting Commission, which allows the people to take redistricting from state legislatures, and the 2017 League of Women Voters of Pennsylvania v. Commonwealth of Pennsylvania, in which Pennsylvania’s Supreme Court ruled that the state constitution’s “free and fair” election clause could be used to overturn gerrymandered maps.

Each state League of Women Voters president met with LWVUS leadership in October of 2019 to decide the best course of action based on her state’s laws and initiative processes.   I am the President of the League of Women Voters of Nevada.  I have lived in Nevada since 1986, raised my family here, received a Ph.D. in history from UNLV, and am a tenured professor of history at the College of Southern Nevada.

Because Nevada offers a constitutional right for citizens to amend the document directly, which is the gold standard for addressing partisan gerrymandering, it was not hard to select this option.  While it is more difficult to manage a constitutional amendment as a ballot question, once it passes, the political parties must abide by the change and cannot easily remove the amendment.

The League of Women Voters of Nevada then joined in a coalition with Indivisible Northern Nevada and RepresentUS to explore amending Nevada’s constitution to stop partisan gerrymandering.  After some research, we decided to follow, Arizona, California, Colorado, and Michigan to create an independent redistricting commission.

After reviewing those states’ redistricting commissions as well as the Campaign Legal Center’s guide to Designing Independent Redistricting Commissions and the Brennan Center for Justice’s Model Legislation for Independent Redistricting Commissions, we contracted with local election law attorneys to help us write our ballot question.  We also met with political consultants to help us broaden our reach into the community on this topic; especially into the business community.

Nevada has a strict single-subject rule that governs constitutional amendments; it forces proponents to only include the absolute minimum for the amendment to create the desired effect.  It disallows administrative details from being included in the amendment and from including more than one process or branch of government. 

The rule eliminates needing new amendments if administrative details must change and it ensures voters are only making one decision at a time.  Consequently, our amendment to add a restricting commission to Nevada’s constitution is short and bare bones.  If it passes at the required second vote in 2022, legislators will write the administrative details in the 2023 legislature.

In sum, the redistricting commission will give both political parties a seat at the table by allowing the majority and minority leaders in each house of the legislature to appoint someone to the commission.  Those four commissioners will then give 3 nonpartisan and/or voters aligned with independent minority political parties a seat at the table.   The appointees cannot have held a political office or been a paid lobbyist for 4 years previous.  Close family members to those two types of possible commissioners are also barred from officially serving. There is no application process included in the amendment, but it can be added as an administrative detail in 2023.

Unlike our legislature, which exempts itself from the Open Meeting Law, our commission must meet publicly and allow public comments and the submission of suggested maps.  This keeps the process independent of conflicted legislators and accountable to voters.  The commission will only draw maps for congressional and legislative districts.

When drawing maps, our redistricting commission must follow all federal laws and Supreme Court rulings on redistricting.  When final maps are drawn the vote to approve must include one member from each of the major political parties and one vote from the nonpartisan/independent set of commissioners.  This allows the nonpartisan/independent commissioners to exercise a veto in the same way our Governor would if the political parties decide to collude to protect incumbents.

Because redistricting is mandated in Nevada’s constitution if the redistricting commission deadlocks any Nevadan can sue to force the completion of the process.  This happened in 2011 when the redistricting process moved into the courts. Once the redistricting maps are approved, they cannot be changed until the next census cycle.  Currently, in Nevada, there is nothing to stop redistricting from happening mid-decade. Right now, either party could redraw our maps, in-between decennial census counts.

Our current district maps are not egregiously gerrymandered, but our current maps were not drawn by our legislature.  Our current maps were drawn by a panel of three special masters, similar to an independent commission.  In 2011, the Democrats had majorities in both legislative houses and Brian Sandoval, a Republican, was Governor.  The Democrats submitted two sets of maps that Governor Sandoval vetoed claiming both cracked the Latino population in Clark County.  At a stalemate, the process moved over to the judicial system and into Judge James Russell’s courtroom.

Judge Russell created a panel of three Nevadans and instructed them to draw new redistricting maps using all federal laws and Supreme Court rulings on redistricting.  We used this process as a reference for our redistricting commission.

Our coalition became Fair Maps Nevada PAC and we filed our amendment with the Secretary of State on November 4, 2019. Under Nevada statute, there is a fifteen-day period for legal challenges, which fall into two types.  The first type is a challenge to the description of effect, the summary of the amendment that appears above the full amendment on the petition, and a more serious challenge claiming a single-subject rule violation.  On day fifteen, a Democratic Reverend filed a legal challenge to our description of effect, claiming it was misleading.

Our attorneys helped us write five different versions of our description of effect to address the plaintiff’s complaints. We offered them during the hearing, but the plaintiff rejected our offer.  Judge Russell instructed the plaintiff to write a new description of effect and we agreed to accept that new version.  The Democratic plaintiff refused to write a new description of effect and instead asked Judge Russell to strike our amendment down to keep it from being circulated.  Judge Russell accepted one of our revised versions and adopted it as our new, legal description of effect.

Because Nevada law states that once a description of effect has been amended it cannot be challenged again, we refiled our amendment with the new description of effect and started gathering the close to 98,000 required signatures on January 7, 2020.  

NRS states: If a description of the effect of an initiative or referendum required pursuant to NRS 295.009 is challenged successfully pursuant to subsection 1 and such description is amended in compliance with the order of the court, the amended description may not be challenged. (NRS 295.061 (3))

On February 12, 2020, the Democratic plaintiff’s attorney, Kevin Benson, challenged our new description of effect by filing an appeal as the prevailing party in our first case.  His client won that case, but the attorney still filed an appeal.  The appeal asserted that Judge Russell lacked authority to re-write our description of effect and only the plaintiff could approve the new version.

Yet, Mr. Benson had refused to re-write our description of effect, so he had created a complaint to mire our ballot question in continual litigation.  Mr. Benson asked the Nevada Supreme Court to strike down our new description of effect and to send our amendment back to Judge Russell’s court.  He stated that Judge Russell was required to rule on findings of fact, which, he claimed, would reveal our amendment to be misleading and in violation legal rights. 

Nevada Revised Statute cited above does not preclude a judge from writing a new description of effect and Mr. Benson provided no evidence during the original hearing to show how our amendment would be misleading in a way that violates any laws or legal rights.   

For inexplicable reasons, we submitted a motion to dismiss Mr. Benson’s appeal of the case his client won at the lower jurisdictional level, but the Supreme Court justices allowed the case to proceed.  It is beyond comprehension why the Nevada Supreme Court is allowing Mr. Benson to harass the League of Women Voters of Nevada in an obviously frivolous appeal.  This case has drained our funds and is still not resolved as we wait. 

Nevada Revised Statute clearly states that a description of effect cannot be challenged after being amended.  If this is not the case, then there is no constitutional right to circulate a petition in Nevada.  From this point forward every plaintiff’s legal counsel will challenge every petition’s description of effect, refuse to amend, and then will kill the ballot petition with an appeal to the Nevada Supreme Court.   The legal system should not be used as a tool of harassment.

In his appeal briefs, Mr. Benson began by recirculating his complaints about our amendment that were never substantiated as violations of an existing statute or legal rights.  But in later briefs, Mr. Benson revealed the true complaint when he wrote that our amendment violates the rights of Democrats to draw “friendly” redistricting maps. In other words, Mr. Benson believes a right to gerrymander exists.

(Filed Appellant/Cross-Respondent’s Opening Brief, Jackson v. Fair Maps Nevada, No. 80536, (March 27, 2020). 

 He notes that our amendment requires our commission to meet at the end of the 2023 legislative session to “adopt a redistricting plan.”  We added this to warn whoever draws the redistricting maps in 2021.  If those maps follow all federal laws and Supreme Court rulings, the redistricting commission can accept them as Nevadan’s redistricting plan.  But if those maps contain partisan gerrymandering, our commission will redraw them because gerrymandering violates the rights of Nevadans.

Mr. Benson admits in his briefs that someone in Nevada’s Democratic Party plans to gerrymander our redistricting maps and sees this act as a right they have earned.  In addition to gerrymandering being illegal, Democrats rail against the practice in states Republicans control, in fact, in red states the Democrats partner with the League of Women Voters to pass laws and amendments to create redistricting commissions. 

A new documentary, Slay the Dragon, goes to great lengths to put the Democrats on a pedestal for championing redistricting reform.  Apparently, this is just a political game and some Democrats are only against partisan gerrymandering when someone else is doing it.  This level of hypocrisy is the type of corruption eligible voters cite when they refuse to register to vote.

The Fair Maps Nevada team slowed our signature gathering in early March due to the spread of COVID-19 and we discussed hiring a vendor to collect signatures at the upcoming spring festivals and events.  But that did not happen because Governor Sisolak put the state on a strict Stay at Home order on March 24th.  We were, therefore, forced to wait until the Stay at Home order was amended or rescinded, but as time went on it became apparent that the state of emergency would be long-lasting.

At the end of March, our Secretary of State announced she and our seventeen county election officers were implementing a plan to move our June 9^th primary to a full vote-by-mail election.  This included sending every registered voter a mail-in ballot with a postage-paid envelope and each county would have at least one in-person voting site.  As all large buildings usually used as early voting and election day voting sites were closed due to the pandemic, the Secretary of State strongly urged voters to vote from home to stay safe from the virus. Most importantly, the ballot curing process included a new electronic signature program.

Our attorneys contacted the Secretary of State’s office to request using electronic signatures as a means to continue working toward qualifying our ballot petition.  As the Secretary of State’s office accepts electronic signatures for voter registration, business filings, and now absentee ballot curing, we asked to use one of those options, but the response was that the Secretary of State did not have the authority to help us.

Not too long afterward, a conservative group, True the Vote, sued to stop the mail-in voting process in federal district court.  In that case, the Attorney General’s office argued that for the most part, the Secretary of State followed Nevada law, but in the instances where she did not, that discretion was allowed due to the need to protect the public’s health.  

Case in point, Nevada law requires voters who have not shown identification at the time of registration to show identification when voting for the first time.  The Secretary of State waived this requirement for voters who registered to vote online, stating that the online voter registration system was sufficiently reliable for verifying eligibility at the point of registration.  (Please see Deputy Secretary of State for Elections Wayne Thorley ‘s Declaration in Paher v. Cegavske)

So, the state’s attorneys decided she had the authority to protect the right to vote for candidates, but then also decided she did not have the authority to protect the right to circulate or vote for a ballot petition, despite both rights being protected in the Nevada Constitution.

What’s the difference?  Someone in the Democratic Party does not want to protect our right to circulate our amendment petition because they plan to gerrymander the party into a permanent majority in Nevada.

Our attorneys filed a case in federal district court seeking an extension of the deadline for submitting our petition signatures and to gather signatures through one of the currently used electronic signature programs.  But once again, the Attorney General’s office argued that the Secretary of State lacks authority to protect our constitutional rights.  The AG’s office argued instead that we should sue the governor as he has emergency power to grant pandemic-related relief.  (See Fair Maps Nevada et al v. Cegavske et al)

The judge ruled that the current signature submission deadline is unconstitutional under these unique circumstances as Nevada’s constitution states that the submission deadline shall be no less than 90 days before the general election and the pandemic had severely limited our right to circulate a petition.  But she also found that she lacked authority to compel the Secretary of State to grant us the right to use electronic signatures, noting in a footnote, instead, that it appears our Governor has the same discretionary authority as Colorado’s Democratic Governor who issued an executive order to allow petition circulators to gather signatures electronically.

Fair Maps Nevada has sent two letters to Governor Sisolak asking him to allow us to use the existing online voter registration system to gather signatures for our petition electronically to stay safe from COVID-19.  This is a currently recognized system for affixing DMV signatures onto voter registration forms that verifies a signer’s eligibility at the point of signing, which eliminates the possibility of signature fraud.  Unsurprisingly, we have heard nothing from the Governor or his office.  Why? We are constituents who deserve a response from our elected officials.  

[1] Filed Appellant/Cross-Respondent’s Opening Brief, Jackson v. Fair Maps Nevada, No. 80536, (March 27, 2020).