Las Vegas Sun

November 20, 2018

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For us, it’s a no on Ballot Question 3, but barely

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L.E. Baskow

Power lines run from panel fields into the sub station and beyond as seen during the Moapa Southern Paiute Solar Commissioning Project ceremony on Friday, March 17, 2017.

Thanks to a blizzard of advertising from both sides, Nevada voters are no doubt aware of the Energy Choice Initiative on this year’s ballot.

But in addition to deciding whether Nevadans can drop NV Energy and go shopping for another power company, voters also will be asked to decide the fate of five other ballot questions that would affect taxes, victim’s rights, renewable energy and registering to vote.

Here’s a rundown of the questions, with our recommendations.

Question 1: Marsy’s Law

Wording: “Shall the Nevada Constitution be amended to: (1) remove existing provisions that require the Legislature to provide certain statutory rights for crime victims; and (2) adopt in their place certain expressly stated constitutional rights that crime victims may assert throughout the criminal or juvenile justice process?”

Yes or no?: No. At first glance, Marsy’s Law looks like such a responsible, compassionate measure that supporting it seems like the only reasonable course. Who’s against rights for crime victims, after all?

But as much as it hurts to say it, some aspects and potential ramifications of the measure are deeply concerning, to the point that we can’t support it.

Marsy’s Law, which has been approved in several other states, would establish 16 constitutional rights for crime victims in Nevada, some of which are common-sense matters, such as the right to speak at hearings and to be notified about court dates.

Indeed, many of the other elements are perfectly reasonable, but others are worrisome, particularly a right to privacy and to refuse a defendant’s requests for interviews. The latter could hurt a defendant’s ability to defend himself or herself from the state, which undermines a fundamental tenet of our judicial system that guarantees due process for those accused of crimes. That argument has been made successfully in at least one court challenge to Marsy’s Law.

As far as the right to privacy, the element is so vague that it raises questions about how it could be applied. Could it be used to shield the identity of a law enforcement authority claiming self-defense in a shooting, for instance? Were that to happen, it would not be in the community’s best interests.

There are other common-sense means of accomplishing the sensible elements of this matter that wouldn’t be as sweeping.

In addition, Marsy’s Law has been found to be legally flawed elsewhere. The Montana Supreme Court struck it down in November 2017, saying the changes should have been submitted to voters separately rather than as an packaged initiative. And in South Dakota, lawmakers were forced to pass another constitutional amendment to fix problems with the language of that state’s original measure.

Again, many of the elements of Marsy’s Law are worth adopting, and Nevada lawmakers should do just that. But this imperfect ballot measure, amplified by the bludgeon of a constitutional amendment, is not the way to go about ensuring that victims’ rights are protected.

Question 2: Pink Tax Repeal

Wording: “Shall the Sales and Use Tax Act of 1955 be amended to provide an exemption from the taxes imposed by this Act on the gross receipts from the sale and the storage, use or other consumption of feminine hygiene products?”

Yes or no?: Yes. With this exemption in place, Nevada would join a number of other states where women would no longer have to pay sales taxes on tampons and sanitary napkins. It’s a fair measure, considering that the state exempts sales taxes on such necessities as food and medical equipment.

Critics have broken into hysterics over the exemption, with some going so far as labeling it sexist — to men. If women don’t have to pay taxes on their menstrual products, why should I have to pay taxes on my jock strap!?!?

Here’s why: Playing sports and wearing a jock strap while doing so are a matter of choice, but that’s not the case for managing menstruation. That’s a matter of health care, not choice.

Opponents also argue that the exemption would hurt the state’s tax revenue. But the impact is estimated at $5 million-$7 million per year, which is a drop in the bucket in the state budget.

Meanwhile, ending the tax will eliminate a form of discrimination against women by acknowledging that feminine hygiene products are not a luxury. It also benefits lower-income women, given that the tax is applied uniformly and therefore disproportionately affects them.

Question 3: The Energy Choice Initiative

Wording: “Shall Article 1 of the Nevada Constitution be amended to require the Legislature to provide by law for the establishment of an open, competitive retail electric energy market that prohibits the granting of monopolies and exclusive franchises for the generation of electricity?”

Yes or no?: No, but barely. Energy choice and encouraging renewables are extremely worthwhile goals, but the last two years since phase one passed have proved that Question 3 is a formula for chaos. There are much better ways to accomplish this goal.

To understand why, it’s important to go over some background.

The measure would establish energy choice by requiring the state to dump its regulatory monopoly model in favor of a competitive retail electric system. The state would be required to make the switchover by 2023.

Under the new model, NV Energy would continue to maintain the system of wires through which energy is transmitted. But the generation and retail sale of electricity would be opened to multiple companies using mechanisms that are, as yet, unknown.

There are multiple, serious problems with this initiative, not the least of which is the timeline. Given that the Nevada Legislature meets once every other year, it means that lawmakers would essentially have only two full sessions, and a small portion of a third, to create the regulatory framework for the new system. In the interim, chaos could reign — the only winners would be lobbyists.

Moreover, this is an extraordinarily difficult task for a Legislature that already has proved itself incapable of handling these issues.

With lawmakers rushing through the process — and being pushed and pulled by lobbyists from both sides — it’s easy to imagine them creating a system that resembles a Frankenstein monster with elements pandering to different special interests and not representing the interests of all Nevadans.

Let’s be honest: Energy policy is extremely hard work. It affects every aspect of our lives and the growth of our economy. And it demands a seriousness and incremental approach that ensures the right decisions are made. Question 3 would install a shot clock via a constitutional measure, which is profoundly dangerous.

Yes, we need to create a competitive energy market. Yes, we need more renewable energy. But we need to do it right, ensuring that we establish an even playing field for businesses while also protecting consumers.

That being the case, our position on the measure is an extremely slim no.

That’s a switch from the first time the measure was on the ballot, in 2016. We supported it then in the hope that lawmakers would recognize the call from voters demanding a change and would start working toward it.

Voters approved the measure overwhelmingly, giving lawmakers a clear message that they insisted on energy choice, but the Legislature did nothing in the intervening two years.

This fact alone should scare voters off of approving of Question 3 now, flipping on a timer powered by a constitutional amendment and then counting on the Legislature to finally do what it has proved itself incapable of until its hand is forced.

That must not happen. Instead, lawmakers and a newly minted governor should head into the 2019 session with a full understanding that the voters are screaming for a measured and intelligent change in how energy is provided in Nevada.

The current model clearly isn’t working, except maybe for NV Energy. Major businesses like MGM Resorts, Wynn Resorts and Switch have dumped the utility in favor of establishing other power sources, paying hundreds of millions of dollars in exit fees to cut their ties with NV Energy, and the exodus continues. Meanwhile, however, residential customers without the means to create their own power generation have no choice but to stick with NV Energy.

It is worth noting that Switch and Las Vegas Sands Corp. are major financial backers of Question 3, even though they are among businesses granted permission to leave the system. A heroic view of this is that even though they were OK’d to cut ties with NV Energy, Switch and Sands will keep fighting for Nevada consumers. A more skeptical view would be that Switch intends to build renewable plants and wants to sell power into a deregulated market.

This is part of the challenge of unraveling Question 3 — you’ve got billionaires on all sides of this all claiming they have the interests of average Nevadans at heart.

Meanwhile, NV Energy has been a bad actor on energy issues in recent years, particularly in squelching the development of rooftop solar by insisting on unfavorable rates on net metering. The utility’s fear of competition has held back the proliferation of renewable energy, hurting both consumers and the environment.

NV Energy’s new president insists that it has learned from the recent events and that the company is changing. It understands the public has had enough with the old ways. NV Energy will be more open, more flexible, less convulsively destructive to anyone who wants to modernize our energy system.

These are a lot of promises from a company that has been nothing short of brutal in trying prevent change. If Question 3 fails, as it should, NV Energy should understand that this is not over and the voters have issued a clear and certain call for NV Energy to behave in a different manner with its consumers and competitors. Here’s why: Unless NV Energy wakes up, this will all be back again. There will be no mercy and utterly no reason to believe a word NV Energy says.

There is no question a big part of the appeal of Question 3 arrives simply from a desire to give the power company a punch in the face after years of ignoring consumers and thwarting even the slightest competition and choice. We get it. It’s a perfectly natural impulse and we share it.

None of this should have ever reached this point. NV Energy, abetted by the Legislature, has invited this on itself.

The problem remains, though, that we’ll also be punching ourselves in the face if Question 3 passes.

Instead, sober and open minds on all sides — and especially our new governor — should understand the voters want change, choice and energy alternatives. These sober minds — with only the benefit to the state’s consumers and businesses at stake — should work together in a sensible manner to deliver that change. Without a clock ticking. Without inviting legislators who have failed at this before to fail again under the shadow of a constitutional amendment.

The general goals of Question 3 are not incorrect, but the method is a formula for chaos.

Enough. Although the initiative isn’t the method for doing it, a competitive and well-regulated energy market is needed. So is full-throttle development of renewable energy.

Get cracking, lawmakers.

Question 4: Medical Patient Tax Relief Act

Wording: “Shall Article 10 of the Nevada Constitution be amended to require the Legislature to provide by law for the exemption of durable medical equipment, oxygen delivery equipment, and mobility enhancing equipment prescribed for use by a licensed health care provider from any tax upon the sale, storage, use, or consumption of tangible personal property?”

Yes or no?: Yes. As explained above in Question 2, Nevada already exempts taxes on some necessities. That includes prescription drugs and materials such as splints and bandages. Adding these devices — which also are necessities — is the right move.

Question 5: The Automatic Voter Registration Initiative

Wording: “Shall Chapter 293 of the Nevada Revised Statutes be amended to automatically register an eligible person to vote or update the person’s existing voter registration information if the person applies to the Department of Motor Vehicles for the issuance or renewal of or change of address for any type of driver’s license or identification card, unless the person affirmatively declines in writing to apply to register to vote or have his or her voter registration information update?”

Yes or no?: Yes. Making it easier for qualified people to participate in our democracy? Say no more. This one’s overdue.

Question 6: The Renewable Energy Promotion Initiative

Wording: “Shall Article 4 of the Nevada Constitution be amended to require, beginning in calendar year 2022, that all providers of electric utility services who sell electricity to retail customers for consumption in Nevada generate or acquire incrementally larger percentages of electricity from renewable energy resources so that by calendar year 2030 not less than 50 percent of the total amount of electricity sold by each provider to its retail customers in Nevada comes from renewable energy resources?”

Yes or no?: We’re neutral. This is a well-intentioned measure, but we feel the market forces make it inevitable that the state will meet or even exceed these targets. The costs of renewable-energy generation are steadily falling, meaning it’s increasingly more cost-effective to build solar arrays, wind farms and geothermal generators than fossil fuel-burning plants.