A Carson City judge has ruled in favor of backers of a proposed ballot question calling for open primaries and a ranked-choice general election in a lawsuit aimed at keeping the initiative off the ballot.
The ruling was issued Thursday evening by Carson City District Court Judge James Wilson, following a roughly hour-long hearing on Wednesday. It rejected all three claims raised against the initiative, and the judge concluded that changes to both primary and general elections did not violate the single-subject rule for ballot initiatives.
“Every initiative presents voters with policy choices, some of which voters may prefer more than others,” the ruling stated. “But so long as those provisions relate to a single subject, it is for the initiative’s proponents to propose those policy changes. The law allows Nevada voters to propose to change the manner in which specified officeholders are chosen.”
While the decision could be appealed to the state Supreme Court, the ruling is an initial win for the initiative, which is backed by a 501(c)(3) nonprofit called the Institute for Political Innovation, founded last year by Katherine M. Gehl, an author, philanthropist and former CEO of a Wisconsin-based high-tech food-manufacturing company.
It was filed by Las Vegas attorney Todd Bice in November, and seeks to amend the state Constitution to require that most high-profile partisan elections in Nevada move to an open primary system (where voters of any political party can participate) with a ranked-choice voting system in place for the general election for the top five finishers in the open primary.
Under a ranked-choice system, voters in the general election would be able to mark candidates in their order of preference (ranking), and if a candidate wins an outright majority of votes (more than 50 percent), they would be elected to the office. If not, the candidate with the fewest first-preference votes would be eliminated, with their “votes” redistributed based on the second preference of those individual ballots. The process would continue until the final two candidates, or when one candidate reached a majority.
Affected races would include U.S. Senate and House seats, statewide office elections — governor, lieutenant governor, attorney general, secretary of state, treasurer and controller — and legislative races. It would exclude the presidential race.
But less than a month later, a lawsuit challenging the initiative was filed by Nathan Helton, a Churchill County registered voter who previously worked for a variety of Democratic Party-aligned candidates and campaigns. Attorneys representing Helton included Bradley Schrager and Marc Elias, both of whom are well known for representing Democratic candidates and causes in both state and federal court.
Much of the hearing on Wednesday centered on claims raised in Helton’s lawsuit, namely that the proposed petition language violated constitutional requirements for initiatives including the single-subject rule, creation of a cost without a funding source, and a deficient “description of effect,” the 200-word summary that accompanies the signature form for the petition.
Attorney Lindsay McAleer, representing Helton, said that the proposed move to two kinds of new elections (an open primary election and ranked-choice general election) should be considered too broad to fit under the single-subject rule, which under state law requires provisions in an initiative to be “functionally related and germane to each other in a way that provides sufficient notice of the general subject of, and of the interests likely to be affected by the proposed initiative.”
“The only common link between the two changes is that they involve the general act of voting, which is too general to be a single subject,” she said.
But Bice disagreed, saying that Helton’s attorneys had presented an overly narrow reading of the single-subject rule and that the proposed election changes in this initiative were “far narrower” than other proposed ballot measures upheld by the state Supreme Court as meeting the single-subject rule.
“The standard isn't, does one [subject] depend on the other,” he said. “The standard is, whether or not the provisions functionally relate to the subject matter of the initiative. And here, obviously, the primary and the general [elections] relate to the selection of office holders.”
Wilson’s order aligned with Bice. It stated that arguments claiming changes to primary and general elections violated the single-subject rule were “unsupported and contrary to existing Nevada law.”
“The primary election is just a step in the process,” the ruling stated. “The primary election and general election are intertwined steps in the process for how officeholders are ultimately chosen, which is the primary purpose of this initiative.”
As for the potential cost, McAleer also said the initiative would likely force the state to spend money to adopt a new election system that could handle the ranked-choice voting process, noting that other jurisdictions and states that have adopted similar systems spent hundreds of thousands of dollars to adopt new systems and launch voter education campaigns.
Even if the language of the initiative doesn’t explicitly require any new spending, McAleer argued that its adoption would require at least some state dollars be expended, and that past state Supreme Court cases held that even minor expenditures required a funding source.
“If an initiative would force Nevada officials to spend a dollar, [the Constitution] says that the petition must also provide a way for raising that dollar, and this petition would force Nevada officials to spend money,” she said.
But Bice countered, saying the burden of proof to show that the initiative would create an expense and trigger the constitutional requirement for a funding source came from the plaintiffs, not backers of the initiative, and that their assumed technology and voter education costs were “open naked contentions unsupported by anything.”
“There's zero evidence offered by the plaintiff that this initiative will cost any amount of money, or that it won't even be [covered by the] current system that the state operates,” Bice said.
Again, Wilson’s ruling aligned with Bice, stating that changing the form of a primary election from closed to open “imposes no expenditure mandate,” and that a shift to ranked-choice voting “does not create a new requirement for an election; it is simply a process for tabulation of all the votes.”
A financial impact statement prepared by the nonpartisan Legislative Counsel Bureau in December 2021 stated that the secretary of state’s office is still analyzing the potential costs of the initiative.
As for the initiative’s 200-word description of effect, McAleer said it was “confusing, deceptive and misleading,” claiming it did not give voters a clear enough explanation of the proposed changes to the state’s election system.
“The description requirement exists out of respect for voters' time … It's not required for them to actually have to comb through the initiative’s text,” she said.
Bice noted several times that initiative backers were limited by the word count, and said that several of the suggested tweaks made by the plaintiffs — including language that the top vote-getter was not assured of winning an election under ranked-choice voting — were just attempts to poke holes in the initiative.
“They're trying to hijack this description as an advocacy piece against the initiative,” Bice said.
Wilson's decision called the description of effect “straightforward, succinct, and non-argumentative,” and called the criticisms levied by the plaintiffs were “not well founded and are largely an attempt to use the description as an advocacy piece for his opposition to the Initiative.”
The initiative — which needs to be approved in 2022 and 2024 to take effect — would require state lawmakers to implement the new ranked-choice system no later than July 1, 2025, meaning it would be in place by the 2026 election.
Qualifying the measure for the ballot will be a difficult and expensive process — initiative backers need to turn in 140,777 valid signatures from registered Nevada voters, including nearly 35,200 signatures from each of the state’s four congressional districts, by the end of June 2022.