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These words were penned by U.S. Supreme Court Justice Antonin Scalia when writing the majority (7-2) decision in California Democratic Party, et al v. Jones, Secretary of State of California, et al, certiorari to the United States Court of Appeals for the ninth circuit (No. 99–401. Argued April 24, 2000—Decided June 26, 2000). The full decision can be found here.

In 1996, California voters passed Proposition 198 creating a partisan blanket primary where all candidates, regardless of party affiliation appeared on the same ballot with the candidate of each party who received the most votes becoming that party’s nominee for the general election.  The parties sued claiming violation of the First Amendment right of association. The Ninth Circuit upheld the law, however in Jones, the Supreme Court overturned.

The paragraph quoted above appears at the end of the decision. What I find interesting is that while ruling a blanket primary that allows voters not affiliated with a particular political party to choose that party’s nominee(s) violates the First Amendment right of association, Justice Scalia is agreeing with the proponents’ argument of an overriding state interest by recommending an alternative process that would pass Constitutional muster.  In 2008, the Court did just that by a vote of 6-3 in Washington State Grange v Washington

Two versions of the Nevada Election Modernization and Reform Act (NEMRA) are presented on this blog. The first version implementing a top-three non-partisan, open, blanket primary with Ranked Choice / Instant Runoff Voting (RCV / IRV in general election clearly conforms with Justice Scalia’s decision in Jones. The modified version of NEMRA proposed last month more closely resembles a semi-closed primary in that members of opposing political parties cannot vote for the nominee of the party of which they are not affiliated while voters not affiliated with any political party may vote for the nominee of either party. I have received mixed legal opinions. Some say allowing voters registered as Non-Partisan to choose a political party’s nominee without declaring at least temporary membership in that party by selecting only that party’s ballot, as done in a traditional semi-closed primary, violates Jones. Others say that as long as opposing party members do not participate in each other’s nominating process the conditions set in Jonesare met.

Ideally the Legislative Council Bureau (LCB) should review both NEMRA proposals and advise legislators of any legal concerns. This advice will assist any legislator(s) considering filing a BDR as well as committee and full legislature consideration.  

On July 24, 2014 I posted my proposed draft of the Nevada Election Modernization and Reform Act (NEMRA). Last week I wrote about a proposed revision to NEMRA. Here is my proposed draft should the revised version be determined to be the best way to proceed.

   

      (b) File a petition with the Secretary of State not later than the last Friday in February before any primary election signed by a number of registered voters equal to or more than 10 percent of the total number of votes cast at the last preceding general election for the offices of Representative in Congress.

* Fiscal Note:

According to the Registrar of Voters of Clark and Washoe County, additional costs for printing of mail / absentee ballots could be incurred if the length of the ballot requires more than one (1) card.

An idea to modify the current draft of the Nevada Election Modernization and Reform Act (NEMRA) was proposed to me last week. The premise behind the idea was to have a bill that would have a better chance of being sponsored and passed while still accomplishing the primary goals of the act. From a pragmatic standpoint, it is worth considering.

Of course, I would prefer that NEMRA as currently drafted be sponsored, debated and / or amended in committee, then passed by the full legislature and signed by the governor. But I am not naive. In meetings with legislators and leaders of interest groups I have been told more than once the changes to Nevada election law being proposed may be too much and that a more scaled-back proposal might be better. I have been asked by a few legislators if I would be willing to modify the bill. My answer has always been “yes” so long as the main goal of NEMRA, to put in place an election process that allows all voters to fully participate in all elections regardless of political affiliation was achieved.  

The revised NEMRA would be a version of a semi-closed primary. Under a standard semi-closed primary, voters registered as Democratic or Republican are given their party’s ballot. Unaffiliated voters who desire to vote in the primary chose either the Democratic or Republican ballot. The proposed revision to NEMRA would:

•      Keep separate Republican and Democratic primary for party members  

•      Expand the Non-Partisan ballot to include both Republican and Democratic candidates for partisan office allowing voters registered as Non-Partisan to participate in primary; central focus of NEMRA

•      Keep current general election qualification procedures for minor party and Non-Partisan candidates

•      Keep possibility of outright election in primary if no minor party or non-partisan candidate had filed for the general election

•      Does not include Ranked Choice / Instant Runoff  voting (RCV / IRV) use in general election

If NEMRA, as revised were to be introduced, passed, and signed into law, nine of the ten benefits:

•      Broaden the scope and depth of discussion on issues

•      Increase voter knowledge and awareness of the issues

•      Potentially increase voter turnout

•      Ensure the elected candidate receives a majority, at least 50% + 1 of the votes

•      Potentially reduce campaign costs

•      Encourage voters who believe their vote does not matter to return to the polls

•      Potentially attract jobs to Nevada

•      Provide an atmosphere where political parties can regain lost membership.

•      Provide a benefit to taxpayers 

•      Allow candidates who hold moderate views to express them

would be realized. Since the use of RCV / IRV in the general election is not included, the possibility for a plurality winner would still exist.

Based on initial discussion with persons knowledgeable in election law, the revised NEMRA version does meet constitutional muster. As a type of semi-closed primary, there does not appear to be any conflict with California Democratic Party v Jones or  Clingman v Beaver.

When discussing any proposed legislation, there is a question of cost. If NEMRA were introduced in this modified form, the only potential cost, based on a brief conversation with both the Registrar of Voters of Clark and Washoe County would be if the length of the Non-Partisan mail (absentee) ballot required more than one card. This potential cost increase would only apply to those ballots and be directly linked to the length of the ballot.

As highlighted in other postings on this blog, the election demographic is changing. Our election process must recognize this fact and adjust. NEMRA as originally proposed AND NEMRA as modified does this. A BDR for either will start the legislative process and discussion.

   

According to the most recent Gallup poll conducted during the last half of last year, Nevada ranks 39^thin the amount of trust we have for our state government. 53 percent of Nevadans trust our state government, five percent below the national average of 58 percent. North Dakota ranks first with 77 percent trusting their state government. Illinois is last at 28 percent.

Some may think since the percentage that trusts our state government is more than half, there isn’t a problem. I do not accept that. Mediocre is never good.

To understand why a low level of trust; yes 53 percent when compared to the national average and ranking 39^th is low, we have to look at the reasons people do not trust government. While Gallup didn’t look into the why, an article in The Atlantic gives a good analysis. The state of the economy, the level of unemployment, and how the government is perceived to be handling those issues are driving factors. In other words, is the government solving the problems most impacting the daily lives of the state’s residents?  There is a partisan aspect. Those who are members of the political party in power tend to trust the government more.

We won’t know if this trend of declining trust in state government has continued until Gallup releases their next poll on the subject. Did the Tesla deal increase our trust in our state government? We do know trust in Congress continues to decline reaching new lows this month.

In an earlier post, Nevada Election Modernization and Reform Act – The Details, I link to studies that show open, non-partisan, blanket primaries and the use of Ranked Choice / Instant Runoff Voting (RCV / IRV) lead to elections where the debate is more focused on the median voter resulting in a legislative body more receptive to collaboration, more able to solve the major issues facing the state.  Addressing and solving the issues of employment, education, and taxes would increase our trust in our state government.

SUCCESS!! No one probably ever saw this coming. Political divisiveness and Congressional gridlock have transitioned in to reality television entertainment. We have the Kardashians. We have Honey Boo-Boo. We have Real Housewives. Welcome Senator Jeff Flake (R- AZ) and Senator Martin Heinrich (D-NM) on Rival Survival.

It’s often said Americans know more about and care more about how they will be entertained than about the events and people that impact their daily lives. People can tell you the smallest detail about their favorite celebrity but can’t tell you who represents them at any level of government. They will spend hours on social media but maybe a few minutes, if we’re lucky, on news and current political affairs. So how could having two opposing politicians join the media where Americans spend their time be a bad thing?

It could be good if they were discussing and resolving their political differences. But according to The Hollywood Reporter “The duo will be given a modest choice of items from which they can select only three. They’re forced to use the limited resources and work together as they attempt to spear fish, build shelter and find enough water to survive for a week on Eru in the Marshall Islands, where the reefs alone are littered with venomous stonefish, lionfish and scorpion fish.” 

Nevada is not California. Because California does it is not a valid reason for Nevada to do anything. I know of very few Nevadans who would not agree with these two sentiments.

The Nevada Election Modernization and Reform Act (NEMRA) is not like California’s Top-Two system. It is superior! When discussing NEMRA, it is therefore like comparing apples to oranges to compare it to California’s, or for that matter any other state’s Top-Two system.

The key to success of any election system is how it encourages citizens to participate in the election. Does it foster open and honest discussion of the issues? Is there a real opportunity for all candidates to fully and meaningfully participate? Are all voters treated equally? Do all votes have a true impact on determining the outcome?  Does the system create interest and motive voters to go to the polls? Are there benefits to all involved in the political process? Does the system result in a government that is representative of the state as a whole and works towards to best interest of all the residents?  Under NEMRA the answer to all the questions is “yes”. Not the case under Top-Two.

Regardless of one’s opinion of the two-party system, this country’s political system is firmly grounded to it. Recent polls show over 40 percent of voters considers themselves independent. Voters are leaving the two major parties and registering as non-partisan (independent).However, this does not necessarily transfer into votes for non-partisan or minor party candidates. Rather, it usually means the voter will consider both the Republican and Democratic candidate and vote for the one they consider best. They may even vote for candidates from both parties in the same election.

Because only two move forward under Top-Two, the ideas presented by minor party and independent candidates are truly irrelevant. There is little, if any chance they will finish among the top two. Unlike the old system where they appeared on the general election ballot, competing in a two-party system Top-Two primary virtually eliminates them. No need for a totally inclusive discussion of the issues. No chance for major party candidates to voice an opinion on possibly new or innovative ideas presented by minor party or independent candidates. All candidates are not afforded the opportunity to meaningfully participate.  Not so under NEMRA.

Under NEMRA, the top three move forward. Depending on the field of candidates, there is a real possibility a minor party or independent candidate will advance. Their ideas are relevant to the debate and the discussion is broadened. Major party candidates, as I’ve stressed in conversations with legislators, have the opportunity to provide their input on innovative ideas they may not have considered. Voters benefit from this comprehensive discussion. All qualified candidates have full and meaningful participation. Candidates and voters benefit.

All voters, regardless of party affiliation are allowed to vote in the primary and general election under both Top-Two and NEMRA. But when evaluating true equal treatment of all voters, I think you have to include impact on the outcome. Since under Top-Two, the likelihood of a non-major party candidate advancing to the general election is just about nil, voters who prefer such a candidate are marginalized. Their primary vote is no different than a general election vote under standard systems and they have no opportunity to vote for that candidate in the general election. Not so under NEMRA.

Since NEMRA places three candidates on the general election ballot and uses Ranked Choice / Instant Runoff voting (RCV / IRV) all voters have a direct impact on the outcome. In the primary, all voters determine whether the candidates advancing to the general election will include a minor party or independent candidate. In the general election RCV / IRV requires voters to mark a second choice that is counted if one candidate does not get a majority; at least 50 percent plus one of first choice votes. No voter is marginalized.

Top-Two is meant to increase voter interest and motivate voters to turnout for the primary. Statistics show turnout in states that use Top-Two surpass Nevada in primary election turnout.

But what is possible if voters are not marginalized as I point out above? Under Top-Two, if one of the top two finishers receives a majority of the vote, at least 50 percent plus one in the primary, they still must run in the general election where they could lose. This means increased expense for candidates and reduces the importance of a primary vote. Voters are faced with a valid question; why vote in the primary, why not just wait for the general election? Not so under NEMRA.

NEMRA specifically states that if a candidate receives at least 50 percent plus one of the votes in the primary, they are elected. The office is not contested in the general election. Current Nevada law includes this provision. However, as I have pointed out previously, such a win is only representative of a small plurality of a plurality of voters; 20 percent of voters registered to a particular party. Since NEMRA allows all voters, regardless of party affiliation or registration as a non-partisan, to vote, a win in the primary under NEMRA is representative of a much larger share of the voters. Knowing a winner could be declared in the primary is motivation to vote. Another motivation under NEMRA is the use of RCV / IRV in the general election. Second-choice votes could determine the winner. Every vote counts in both the primary and general elections. This is not the case under Top-Two.

Does Top-Two benefit all those involved in the political process? Do the resulting legislative bodies more represent the state as a whole? Given available studies, the answer is yes.

I have to be subjective here, but I can’t help believing that NEMRA will do a better job restoring confidence in our electoral process, that NEMRA will be a greater help to the major political parties in regaining lost membership and attracting new members. Why? Because NEMRA does not marginalize any voter. Under NEMRA, the discussion of issues and solutions will be broader. Under NEMRA, every voter matters.

Some I’ve spoken with say “Let’s see what happens in California”. The Top-Two system in California is not the same as NEMRA. Legislators need to evaluate NEMRA on its own merits. It is superiorto the Top-Two system being used in California or any other state at this time. Once NEMRA is signed into law, Nevada will have the most inclusive voting system in the nation. According to the leaders of both the Economic Development Authority of Western Nevada (EDAWN) and the Las Vegas Global Economic Alliance (LVGEA) this could be a positive discriminator to companies looking to locate in the state.

We need to have the discussion on how NEMRA will benefit Nevada and all Nevadans during the upcoming legislative session. By filing a Bill Draft Request (BDR), a legislator is agreeing to start the conversation.

On Wednesday, August 20, 2014, the National Conference of State Legislatures (NCSL) held a panel discussion on “Bridging the Ideological Divide” as part of its 2014 Legislative Summit. The discussion with a panel of four distinguished former state and federal legislators is well worth the 89 minutes needed to view. The discussion further reinforces the need for the Nevada Election Modernization and Reform Act (NEMRA).

The overview provided by the NCSL states in part, “The problem of gridlock can’t be laid at the feet of one political party or the other. So what is causing it?” The panel will “draw from their experiences and offer ideas on specific reforms that might help improve our system of government, overcome ideological roadblocks and avoid unnecessary conflict based on party rather than principle.”

Since not everyone can take 89 minutes out of their schedules, the following summary will give you the focus of the panel members. However, whether at one sitting or over the course of a day or two, I encourage you to watch.

The moderator for the discussion was Tom Loftus (D), former Wisconsin House speaker and U.S. ambassador to Norway. Panel members were Tom Berg (D), former state legislator and U.S. attorney for Minnesota, Mickey Edwards (R), former Oklahoma congressman and current vice-president Aspen Institute, and Christopher Rants (R), former speaker of the Iowa House of Representatives.

Tom Loftusopened the session stating our institution of government is broken, that the current divide does not allow for the identification of unifying issues. As a former Ambassador, he raised a point I’ve never thought about; how the current dysfunction in government is viewed by the rest of the world and the resulting impact on foreign policy. Loftus stated that the driving argument in this nation’s foreign policy is that our system of government is the best. The current gridlock and inability for legislative bodies to agree on even the simplest of things raises many doubts. As I link in Nevada Election Modernization and Reform Act – The Details, studies show that open, non-partisan, blanket primaries result in legislative bodies more willing to have honest debate to resolve issues.

In an earlier blog post, “Bipartisan Policy Center Recommendations and Nevada Election Modernization and Reform Act Go Hand-In-Hand”, I cover how the current political divisiveness permeates all aspects of our daily lives. Tom Berghighlighted this in his opening comment. There is now an App “BuyPartisan” that identifies companies by political philosophy allowing for purchasing decisions to be made based on closeness to our own. Berg goes on to stress the need for legislators to develop personal relationships not based on partisanship as a way to break through the rhetoric and reach consensus. Legislative leaders must set the example in this. During the question and answer period, Berg suggested legislatures establish a non-partisan research staff. He closed by saying legislators need to stop the stagnation and start acting on what is best for the state or nation and not just the party.

 Mickey Edwards started his remarks by stressing he is a party person, always has been, always will be. This is important because he goes on to say the political parties should not control ballot access. That by restricting the number of candidates, that are normally chosen by a very small plurality of voters; he gives several examples including his own nomination, and not allowing voters to have the widest possible choice, we are contradicting the intent of the Constitution. Edwards stated he supports the open, non-partisan, blanket primary system. This is what NEMRA is all about.

The system is not to blame, we are. This was the premise of remarks by Christopher Rants. He dwells on the fact that this country is more divided now than at any other time in recent history. We view people with opinions different from our own as idiots. One reason for this according to Rants is that we can now hand-pick our information sources. No more do all media get their information from the same source such as the Associate Press. All we have to do it look and we will find a source of information that “fits”. We are unwilling to listen, to find out why a person with a differing point of view holds that opinion. Because of this, collaboration, resolving problems is virtually impossible. What’s interesting is that as a former majority and minority leader in the Iowa House, Rants emphasizes resolving differences and solving problems can be done without forfeiting principles. NEMRA broadens the scope of discussion allowing various points of view to be discussed and debated by all candidates creating an atmosphere where listening can take place.

The NCSL provides tools, information, and resources to state legislators. They also serve as a major force supporting or opposing legislation in Congress that impacts the states. Nevada should be proud that our own State Senator Debbie Smith (D-Sparks) was installed as President this week.

The need for election reform is recognized as a major issue at all levels of government. The NCSL recognized the importance by including this panel discussion during their annual summit. All members of the panel agreed change is needed.  The 2015 Nevada legislative session can resolve this issue in Nevada by debating and passing the Nevada Election Modernization and Reform Act.