Las Vegas Sun

October 23, 2017

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Teachers say two-thirds vote requirement is unconstitutional

CARSON CITY -- Nevada's schoolteacher unions said today that the two-thirds vote required to pass taxes is unconstitutional because it violates the "one man one vote" concept.

The Nevada State Education Association, the Clark County Education Association, the Education Support Employees Association of Clark County and the Washoe Education Association, filed a brief supporting the suit of Gov. Kenny Guinn to force the Legislature to act on a tax plan and funding for the public schools.

Voters in 1996 gave final approval to the so-called "Gibbons Initiative" to require a two-thirds vote before taxes are imposed or increased. It was named after Rep. Jim Gibbons, R-Nev., who led the initiative petition to require a super majority to approve new taxes.

A group of 15 Republicans in the Assembly have stopped the passage of a tax bill with the majority falling one vote short of the required two-thirds.

The brief, filed by attorney Michael Dyer, said the two-thirds requirement "unconstitutionally gives a minority of Nevada's population political power out of all proportion to their numbers."

Dyer said the Gibbons initiative "debases or dilutes the 'one person, one vote' principal."

"Here, the negative vote of 15 Assembly members outweighs the affirmative vote of 27 Assembly members," said the teachers unions. The brief said a negative vote in this case is weighted more than one and one-half times that of the majority of 27 Assembly members.

"The Gibbons initiative violates the Equal Protection Clause of the Nevada Constitution and is, therefore, patently unconstitutional," said Dyer.

The brief said there is a provision in the Nevada Constitution that the state must support the system of public education including the university system. It said the Gibbons Initiative "must give way" to the constitutional requirement for the state to fund the schools.

Pete Sepp, spokesman for the National Taxpayers Union, an Alexandria, Va., organization that advocates lower taxes, said today he didn't think the teachers' union had legal standing to make its argument.

Sepp said that he didn't believe the "one man one vote" concept would apply to states that require supermajorities to pass taxes because supermajorities are also required for other circumstances, such as constitutional amendments.

He said, for instance, that in order to amend the United States Constitution, it takes two-thirds approval from both houses of Congress and ratification from at least three-fourths of all states.

"In most states it takes two-thirds or three-fifths or three-quarters of a vote to change the constitution," Sepp said. "The supermajority rule goes to the very structure of the constitutions themselves.

"If all of these supermajority principles violated 'one man one vote' it's hard to imagine that any government could be properly constituted and established."

The "one man one vote" concept affected Nevada in the 1960s when the Nevada Legislature was forced by U.S. Supreme Court rulings and a lawsuit to change the makeup of the state Senate to reflect the population of the state. Through 1965, Nevada's Senate consisted of one senator representing each of the 17 counties even though Clark County represented nearly 50 percent of the state at that time.

The state Senate was reapportioned to reflect Nevada's population following a special legislative session in 1965.

The teachers union is the first of the others to address the question of the constitutionality of the Gibbons Initiative.

Assembly Majority Leader Barbara Buckley, D-Las Vegas, said that the court invited anyone from Nevada to comment on the apparent tension between the two-thirds requirement in the Gibbons initiative and the simple majority required for states budgets.

"When the court invited parties to comment on this tension, it was bound to be challenged," Buckley said. "Some will argue that it's created an impermissible tension. Others will argue that they can be read together, that they can be harmonized."

Buckley said a potential loser in this court challenge could be the voters, who approved the two-thirds requirement back in 1996. She blames the 15 holdouts in the Assembly who have blocked the new taxes from passing. The deal that collapsed over the weekend could have prevented the challenge from going forward, she said.

"When the people speak, it's the will of the people and the Legislature's role to carry it out," Buckley, an attorney with Clark County Legal Services, said. "It make sense for the Legislature to resolve this ourselves. That way we could have prevented this challenge.

"All of the parties, including those that are extremely frustrated with the small minority playing political games, still want to uphold the will of the people," she said. "It's just when it is abused for political gain that it becomes a problem."

Buckley noted that the Legislature would not directly challenge the two-thirds requirement.

"That is not the role of the Legislature."

In his brief, Dyer argued that "This crisis has been precipitated by a small group of publicity-seeking legislators who have deliberately prevented the legislative majority from complying with the Legislature's constitutional obligation to fund education."

These Republican legislators, Dyer said want to reduce other expenditures in government which have already become law and they "are using Nevada's schoolchildren as the pawns in their game."

The brief argues that the Gibbons Initiative, as applied in this case "will impair the contractual rights of teachers and other education employees.

"To the extent that the Gibbons Initiative allows the radical legislative minority to threaten to abrogate the contract rights of school district employees, the Gibbons initiative is unconstitutional," Dyer said.