Lawyers battle over lawsuit seeking halt to mining tax hike proposals

Efforts to qualify a 2022 ballot question amending the state’s constitutional tax cap on mining could be effectively halted through a lawsuit that could be decided just weeks before the start of the 2021 Legislature.

Carson City District Court Judge James Wilson said on Thursday that he’ll take the request to halt the proposed constitutional amendment under advisement, after attorneys representing the Legislature, secretary of state, mining companies and a handful of small rural counties spent nearly three and a half hours locked in oral arguments.

Wilson gave no indication as to how he might rule, but asked attorneys to submit any requested changes to draft proposed orders by Tuesday at noon — a hint that a ruling could come next week.

The original case was filed by Lander County in early September and challenges the trio of proposed constitutional amendments raising the state’s 5 percent cap on the net proceeds of mineral taxes set in the state Constitution. Several additional rural counties with significant mining industries — Elko, Lander, Pershing and White Pine — joined on to the lawsuit, and the case was consolidated with a similar claim brought by Nevada Gold Mines (the joint mining venture between Barrick and Newmont).

Although the proposed constitutional amendments would affect the mining tax rate, arguments on Thursday focused almost exclusively on the legislative process — whether state lawmakers violated constitutional rules and requirements during the 2020 special session when the proposed constitutional changes were passed.

The request from the rural counties and mining conglomerate would throw a wrench in plans to increase the rate of mining taxes, essentially re-setting the five-year clock normally required for proposed constitutional amendments, which need to pass out of subsequent legislative sessions before heading to a statewide vote for final approval. If the 2021 Legislature passes any of the three resolutions, they’ll proceed to the 2022 midterm election.

Lawmakers during the 2020 special session considered and ultimately passed several proposals that would increase taxation rates for the mining industry — a longtime goal of progressives, who say the industry has had a “sweetheart” deal baked into the Constitution since the state was founded in 1864. 

Todd Bice, an attorney representing Nevada Gold Mines, said during the hearing that the resolutions were improperly passed because issues related to mining taxation were not explicitly noted in Gov. Steve Sisolak’s call for a policy-focused special legislative session.

Instead, lawmakers relied on a legal opinion authored by the nonpartisan Legislative Counsel Bureau stating that the constitutional language around special sessions only limits lawmakers on “bills,” and otherwise allows them to draft, vote and adopt resolutions, including those intended to amend the Constitution.

Although the specific wording of the constitutional provisions regarding special sessions was modified through a 2012 ballot question, Bice said that lawmakers were engaged in a “naked power grab” by over-broadly interpreting their powers during a special session beyond what the Constitution allows.

“They've now resorted to a super technical argument about what the word bill means, and so now the word bill has suddenly become to mean only legislation, not joint resolutions and so therefore we can do anything that's not technically a bill during a special session,” he said during the hearing. “That is simply not serious. Respectfully, the Legislature knows better.”

But Solicitor General Craig Newby, representing the secretary of state's office, said that the lawsuit should be dismissed because it was more focused on the “prospect of a future problem” rather than an actual, existing controversy.

“Nothing happens until the Legislature chooses to adopt any or all of these potential amendments. There's nothing here that’s ripe.”

Legislative Counsel Bureau General Counsel Kevin Powers said both plaintiffs lacked standing — counties are limited in what kinds of litigation they can file against the state, and the mining conglomerate was similarly limited because the resolutions have not yet gone into effect — meaning outside of potential future harm, the only adverse effect on the business would be potentially more political or lobbying costs, not an increase in their tax burden.

“We are essentially at legislative halftime, waiting for the proposed amendments to be considered by the (2021) Legislature,” he said. “We are smack dab at an intermediate middle stage of the process.”

But Bice — who also argued that the legislative attorneys had mishandled a constitutional deadline requiring proposed amendments be published for three months prior to the next general election — said his clients were in fact injured because they needed to extend “political capital” during the upcoming legislative session to defeat the resolutions.

He also said it would be “backward” if the Legislature was limited to what kinds of bills lawmakers could take up during a special session but had otherwise unfettered ability to pass resolutions or proposed constitutional changes, a process that normally requires more deliberation.

“Special sessions are supposed to arise from extraordinary occasions,” he said. “Something that is unforeseen, that needs immediate attention, that can't wait until the next legislative session. Constitutional amendments, on the other hand...are the opposite. They are supposed to be handled in a very methodical fashion.”

Secretary of State: No evidence of 'wide-spread fraud' in Nevada’s 2020 election

Nevada Secretary of State Barbara Cegavske’s office announced Friday evening that it has “yet to see any evidence of wide-spread fraud” in the state’s 2020 election, an indirect rebuke of unsupported claims of mass voter fraud made by President Donald Trump and Nevada Republicans.

In a “Facts vs. Myths” document posted to the secretary of state’s website late Friday, Cegavske’s office wrote that it is pursuing several “isolated” cases of voter fraud, but has not seen evidence of any large-scale fraud that would meaningfully affect Trump’s 33,596-vote loss in the state. Electors cast Nevada’s six electoral votes for President-elect Joe Biden on Monday.

Publication of the document comes two days after President Trump tweeted that “Nevada must be flipped” based on testimony presented by a Trump campaign attorney, Jesse Binnall, during a U.S. Senate hearing on election security on Wednesday. A Binnall-led lawsuit by the Trump campaign to grant the president the six electors tied to Biden, or withdraw Nevada entirely from Electoral College proceedings, failed in early December.

The purported evidence presented about the alleged fraud in Nevada’s 2020 election has been roundly rejected by courts in the state, including by a District Court judge as offering “little to no value” and failing to establish that any illegal votes were cast in the election. Judge James Russell’s order called into question data analyses provided by the Trump campaign, saying their methodology was questionable or that witnesses were unable to verify data or identify its origins.

Russell also said much of the evidence relied on out-of-court declarations of witnesses, which did not allow for cross-examination and thus was below the standard allowed for election contest proceedings. 

The document bats down a long list of other aspersions cast upon the Nevada election, including that the secretary of state is ignoring evidence of wrongdoing. Her office says election integrity violation reports and accusations with legitimate evidence are investigated, but not “unfounded accusations” or “anonymous declarations.”

It also covers complaints raised about changes in the state’s election process that were approved by the Legislature, including allegations that the secretary of state decided to mail ballots to all active registered voters in Nevada and didn’t oppose “ballot harvesting” — the practice of collecting and turning in absentee ballots for multiple voters. Lawmakers were the ones to approve those changes, in spite of Cegavske’s opposition to provisions allowing for low-restriction “ballot collection.”

“The Secretary of State has a sworn duty to uphold the election laws of Nevada as enacted by the Legislature and signed by the governor,” the document says.

It also addresses additional unfounded claims by Trump — who yesterday tweeted that “many thousands of noncitizens voted in Nevada” — in stating that the office has not been presented with any evidence of non-citizens voting in the 2020 election as of Friday.

That claim originates from a declaration submitted by the Trump campaign as part of an ultimately unsuccessful election contest lawsuit, which claimed it had evidence that 3,987 noncitizens voted in the 2020 election through comparing of voter rolls with subpoenaed documents from the state’s Department of Motor Vehicles of individuals with driver authorization cards, which are offered to noncitizens as a way to legally drive on state roads.

A DMV spokesman said in an email on Thursday evening that it provided the Trump campaign with a list of the names and addresses of individuals who over the last five years had obtained a driver authorization card or driver’s license using immigration paperwork, such as a permanent resident card, U.S. Visa or other immigration related documents. But the office said that the list was not definitive proof of citizenship or noncitizenship, as individuals could obtain citizenship and legally vote after obtaining a driver authorization card.

“The mere fact that a person presented such a document when applying at the DMV is not conclusive proof of their citizenship status,” DMV spokesman Kevin Malone said in an email. “These residents may well have gained citizenship but have not updated their driver’s license or ID.”

Michael Kagan, Director of the UNLV Immigration Clinic, said that the categories of immigration documents requested by the Trump campaign were documents that could have been used by individuals eligible to become U.S. citizens.

“Immigration status and citizenship change during people's lives, and driver's licenses last many years,” he said in a message. “Someone might have been a non-citizen three years ago when they got their driver's license, and they then got citizenship, voted legally, and haven't renewed their license with a new document yet.”

Why Trump’s lawsuit seeking to overturn Nevada’s presidential race sputtered in court

Ten days after major media outlets called Nevada for Joe Biden, attorneys and allies of President Donald Trump’s campaign stood outside state party headquarters in Las Vegas to make a stunning announcement — the campaign had identified enough irregularities to call election results in the state into question and planned to file a lawsuit challenging them in court.

“Donald Trump won the state of Nevada, after you account for the fraud and irregularities that occurred in the election,” campaign attorney Jesse Binnall said on Nov. 17, adding that the Trump campaign was “quite confident in the fact that when the law and the facts are clearly adjudicated in this matter, that it will be very clear that once all the voting happened, once everything occurred, the results were unreliable because of the irregularities and the fraud.”

But the Trump campaign’s eyebrow-raising accounts of voter fraud — tens of thousands of mail ballots sent from out-of-state, vote totals mysteriously changing overnight, and testimony that volunteers in a Biden van were caught filling out blank mail ballots — failed to make any headway in state courts.

The election contest lawsuit, filed the day of the press conference, was summarily rejected by Carson City District Court Judge James Russell, who in an order earlier this month wrote that the campaign had produced evidence with “little to no value,” a far cry from casting enough reasonable doubt on Biden’s 33,596-vote victory over Trump.

An immediate appeal to the Nevada Supreme Court was also rejected last week, with members of the court issuing a unanimous opinion on Tuesday stating that the Trump campaign failed to demonstrate any “error of law, findings of fact not supported by substantial evidence, or an abuse of discretion in the admission or rejection of evidence by the district court” that would provide grounds for a reversal.

That decision marked the end of realistic legal remedies for challenging Nevada’s presidential race results. The campaign could theoretically appeal to the U.S. Supreme Court, but the lawsuit deals specifically with state law and brings no federal claims, making it unlikely the high court would take up the lawsuit.

The defeat was the latest and most high-profile legal loss that befell the Trump campaign in Nevada. A late-summer challenge to the state’s adoption of near-universal mail voting for the 2020 election was defeated in federal court in September; a pre-election challenge to Clark County’s mail ballot counting and processing system failed in state court; and an Election Day challenge to Clark County’s mail ballot system failed before another federal judge

Nationwide, the Trump campaign and Republican Party allies have lost dozens of  post-election lawsuits, including one filed by the state of Texas that was rejected Friday by the U.S. Supreme Court.

With the dust settled, the Trump campaign’s only legal victory in Nevada was petitioning to keep certain in-person polling places in Las Vegas open for a few hours longer on Election Day. 

Nevertheless, the Nevada Republican Party and Trump campaign have continued to push the narrative that massive amounts of voter fraud occurred in the 2020 election — now through publication of select anonymous declarations and data analyses originally filed under seal and ultimately rejected in the campaign’s election contest lawsuit.

Election law experts interviewed by The Nevada Independent said the failures were unsurprising. Nevada’s legal parameters for challenging election results sets a high bar for acceptable evidence, including clear proof that serious error or malfeasance occurred before a court can step in and take action that could change the outcome of an election.

Those experts also said that election contest lawsuits typically deal with razor-thin margins and are only brought after a campaign is able to specifically identify a sufficient number of illegitimate votes that could have affected the outcome of the race — owing to that high bar of evidence. 

The Trump campaign has not publicly released names or identities of the tens of thousands of people who allegedly cast illegitimate votes.

Todd Bice, a prominent Las Vegas attorney and lifelong registered Republican who has argued election cases in the past, said every election cycle sees a small number of irregularities or mistakes, but they typically only come into play when the margin between candidates is small enough for those mistakes to matter.

In the Trump campaign’s case, the campaign failed to show any compelling evidence of mass fraud, he said.

“Trying to say that the system was so flawed that it doesn't matter what the margin is, that requires an extraordinary showing, and they of course made no showing,” he said. “They didn't have a case, they didn't have evidence, and the remedy they were seeking was to simply dislodge the electors chosen by the people.”

How election contests work

Nevada is no stranger to close elections, the most recent and notable being U.S. Senator Harry Reid’s 428-vote victory over John Ensign in 1998. Other nailbiter elections included the 1964 U.S. Senate race, an 84-vote victory by Democrat Howard Cannon over Republican Paul Laxalt, and the 1914 U.S. Senate race, a 40-vote victory by Democrat Francis Newlands over Republican Samuel Platt.

But only two close elections in the state have been overturned after a legal challenge and none more recently than half a century ago — once for a Douglas County state Senate seat in 1878, and in a 1970 Assembly race where a faulty voting booth incorrectly marked votes for the wrong candidate.

Compared to those margins in past statewide races, Biden’s 33,596-vote victory over Trump in 2020 isn’t nearly as close. Bice said that the state’s election contest law is designed to handle “close margin disputes,” not cases where the difference in vote totals differs by tens of thousands.

So what does the state’s election contest law actually say? 

Any candidate or voter for an office, except for the U.S. Senate and House, which are required to go to Congress, can contest the election of any candidate. State law lays out slightly different processes and deciding authorities for general election contests in races for governor, lieutenant governor, legislative races and judges on the state Supreme Court or Court of Appeals.

Filing an election contest lawsuit needs to be done no later than 14 days after an election, or five days after the conclusion of a recount, and can be filed on a variety of grounds, including:

  • An election board, or any of its members, was guilty of “malfeasance”
  • A person elected to an office was not eligible for that office at the time of the election
  • An election board made errors sufficient to change the outcome when conducting the election or canvassing the votes
  • The defendant or an agent gave or offered to give something of value for the purpose of manipulating election results
  • Any malfunction of a voting device, counting machine or computer that would raise “reasonable doubts” as to the outcome of the election
  • Illegal or improper votes were cast and counted, legal and proper votes were not counted, or a combination of both categories occurred in an amount equal or greater than the margin of victory or “in an amount sufficient to raise reasonable doubt as to the outcome of the election.”

In the past decade, there have been only two instances of losing candidates pursuing election contest lawsuits. In one instance, North Las Vegas City Councilman Richard Cherchio challenged the results of a municipal race won by exactly one vote by Wade Wagner in 2011. Election officials later discovered that an illegal ballot had been cast in the latter race, kicking off extended litigation between Cherchio and Wagner that ultimately resulted in Wagner staying in office.

In the other, three Republican Assembly candidates fought the losses of their 2016 primary challenges against three incumbents. 

Daniel Stewart, an election law attorney who represented and defended the incumbents, said that even in close races, a successful election challenge is difficult to prove as it requires extraordinary relief — judicial-mandated changes to race results — and requires evidence, acquired on a very short time-frame, that a substantial number of illicit ballots were cast and benefited the opposing candidate by such a margin as to affect the results of the election.

“It's just very unlikely, and likely to be the result of the loser just not not coming to terms with having lost,” Stewart said.

What Trump’s campaign alleged

In their lawsuit, attorneys for the president’s campaign went further than either of the previous election contest lawsuits, stating in their complaint that they would provide evidence that tens of thousands of illegal votes were cast, some by deceased individuals, some by noncitizens, but mostly by people who live and allegedly also voted in other states.

The complaint also included testimony of alleged illegal activity by Native American groups offering incentives in exchange for votes, a variety of statements from anonymous “whistleblowers” purporting to have seen illegal activity, including the aforementioned Biden van, and alleged deficiencies in Clark County’s poll observation plan. It also recycled complaints from past, unsuccessful lawsuits about Clark County’s use of an Agilis signature verification machine, saying the county was violating state law and opening the door to rampant fraud by allowing for the automatic processing of mail ballots.

The Trump campaign had previously sued and sought a court-ordered halt to use of the machine to process mail ballots. Carson City District Court Judge James Wilson denied the request in early November and said the party “failed to show any error or flaw” in use of the machine to verify mail ballot signatures. A federal judge on Election Day blocked a similar request, announced at a Trump campaign event and later filed by two Republican congressional candidates.

Still, the Trump campaign and state Republican Party continually expressed nothing but confidence in their efforts to successfully challenge the results of the election — touting a procedural step to allow depositions, which one conservative media outlet called a “HUGE COURT WIN,” and bragging that the campaign was prepared to present up to 20 binders with more than 8,000 pages of evidence.

“This is big news,” American Conservative Union chair Matt Schlapp said on Fox News prior to the hearing. “A lot of people in the national media have said, ‘If you have evidence of voter fraud, show it.’ Well, we have thousands and thousands of examples of real people in real-life instances of voter illegality.”

Why the lawsuit fell short

The much-touted evidence, however, failed to persuade Judge James Russell, who ultimately issued an order dismissing the case with prejudice, meaning the parties could not re-file a similar suit using the same claims.

In his order, Russell wrote that many of the anonymous whistleblower declarations constituted unusable hearsay and that, despite an unanswered question of what standard of evidence to apply in the case, he considered the “totality of evidence” provided and found it lacking.

“As reflected herein, the Court finds that the expert testimony provided by Contestants was of little to no value,” he wrote in the order. “The Court did not exclude consideration of this evidence, which it could have, but gave it very little weight.”

Stewart said that Russell’s decision to consider the evidence regardless of procedural defects or a lessened evidentiary standard — reasonable doubt is a higher standard than preponderance of evidence, which the Trump campaign pushed for — spoke volumes as to the lack of merit of the evidence.

“I think the judge is pretty explicit about it. Even under a preponderance of the evidence standard, the claims failed,” he said. “I mean, when you say there's no evidence, you're basically saying that literally under any standard, they lose. They just haven't even made that basic showing to give (the judge) pause.”

The campaign’s lists of alleged illegitimate voters — 42,000 instances of “double voters,” 1,506 apparently dead voters, 19,218 non-Nevada residents and more than 23,000 votes sent to fake, vacant or commercial addresses — also failed to make a strong impression on Russell. It’s unclear whether the campaign provided a list of voters it believed cast illegitimate ballots to the court, as nearly all evidence was filed under seal (the Nevada Republican Party did not return a request for comment). Russell wrote, though, that the evidence provided by the campaign was seriously flawed.

One Trump campaign expert, Michael Baselice, apparently conducted a phone survey of voters who cast mail ballots per court testimony, but Russell wrote that he questioned the “methodology” of that survey as there was no source of data identified, nor any apparent quality control efforts regarding the data received. The testimony of a data analysis expert, Jesse Kamzol, was also discounted by Russell, who wrote that Kamzol “had little to no information about or supervision over the origins of his data, the manner in which it had been matched, and what the rate of false positives was.” 

A third expert provided by the campaign, Scott Gessler, was similarly questioned by Russell as he provided no exhibits or citations for his conclusions, and “based nearly all his opinions on a handful of affidavits that he took no steps to corroborate through independent investigation.”

Stewart, who acknowledged that he hasn’t seen the provided evidence because it was largely filed under seal, said that the arguments made during the hearing gave him the impression that the campaign had no list of individual voters they believed had voted twice. He based that conclusion off a statement in court by an attorney for the Democrats that the Trump campaign hadn’t presented the name of a single person alleged to have cast an illicit ballot, an assertion the Trump campaign didn’t challenge.

He also said an expert report without backup documentation was not enough evidence to prove that enough fraudulent votes had been cast to call the results of the election into question, adding that those expert opinions are “basically approximation” without actual, hard evidence to back it up. Evidence published by the Trump campaign during and after the trial only includes numbers of people they believe cast illegal ballots, not any actual list of suspected fraudulent voters.

“That's the stuff that matters,” he said. “If they've got actual evidence of that, lists of people and names that can be verified, that's what they should be running with. That shouldn't be buried in the middle of the argument ... you can win an election contest with that kind of evidence.”

Matt Griffin, an elections-focused attorney and lobbyist who has represented Democratic Party clients and previously oversaw election administration in the secretary of state’s office, said that election officials in the state see a handful of cases every cycle where a voter tries to test the system or otherwise cast more than one ballot, but that the state had been effective in catching and prosecuting those cases whenever those occur.

“In every election that I'm aware of, there has always been a handful of folks who've tried to double vote,” he said. “And from Ross Miller to Barbara Cegavske, they’ve all been prosecuted. But those numbers have never risen to the point where it would have affected the outcome of an election.”

In the 2020 election, 8 News Now reported that state election officials were investigating two cases of ballots cast in the name of a deceased person and had discovered that six people cast a ballot twice. Other media outlets in the state, including the Las Vegas Review-Journal, reported they have found no evidence of mass, undetected voter fraud in the state’s presidential election.

After the 2000 presidential election, which saw a multitude of issues with Florida’s voting system, Griffin said that improvements funded and required by the Help America Vote Act — such as electronic poll books, substantial paper audits, improved automation and security improvements — minimized the amount of human error that could potentially result in changes to election results.

He said a recount or post-election challenge made more sense in a much closer race, pointing to Ross Miller’s narrow victory over Stavros Anthony for a seat on Clark County Commission, which was subject to a recount last week that ultimately reaffirmed Miller’s victory.

“That race is exactly why we have recounts,” he said. “If you lose by 30,000 votes, there is no light for you, because we run very good elections.”

Editor's Note: Daniel Stewart is a contributing columnist for The Nevada Independent

NV Supreme Court denies Trump campaign lawsuit seeking overturn of presidential election

The Nevada Supreme Court has ruled unanimously to dismiss an appeal filed by President Donald Trump’s campaign seeking to overturn the state’s presidential election results.

Members of the court wrote in a 6-0 opinion published late Tuesday that the Trump campaign had failed to show any serious errors or flaws in Carson City District Court Judge James Russell’s order last week that would warrant a reversal. Russell’s order denied the campaign’s election contest lawsuit amid findings that the campaign had not backed up its claims of mass voter fraud throwing the state’s presidential election results into doubt.

The three page order states that the Trump campaign failed to identify any direct “unsupported factual findings” in Russell’s order that it wished to challenge under the appeal, and the court itself has “identified none.”

"To prevail on this appeal, appellants must demonstrate error of law, findings of fact not supported by substantial evidence, or an abuse of discretion in the admission or rejection of evidence by the district court,” members of the court wrote in their order. “We are not convinced they have done so."

Though the Trump campaign can still appeal the decision to the U.S. Supreme Court, Tuesday’s decision is yet another blow to the campaign’s multi-faceted and thus far failed effort to overturn the results of the presidential election in Nevada and a handful of other closely decided swing states where former Vice President Joe Biden prevailed over Trump. The campaign has filed a litany of unsuccessful lawsuits in other states including in Pennsylvania, where the U.S. Supreme Court earlier Tuesday denied a last-minute attempt to overturn results in that state.

Biden won a 33,596-vote victory over Trump in Nevada.

Any future appeals will face another burden — Tuesday marks what’s known as the “safe harbor” deadline, a federal election-related date by which states need to certify election results or resolve related litigation before members of the Electoral College meet to cast their votes for president on Dec. 14.

In a statement published after the ruling, the Nevada Republican Party said it was "extremely disappointed" in the court's decision and said it had "rushed to judgment in the same flawed manner" as the District Court.

"We were not afforded an opportunity to write our brief or argue the case in front of the Supreme Court," the party said in a statement. "Full denial of legitimate due process and appellate rights is truly unprecedented, shocking and extraordinary."

The Trump campaign announced that it would file a lawsuit seeking to overturn the state’s election results in mid-November during a press conference in which campaign attorney Jesse Binnall flatly declared that Trump had won the state but was thwarted by mass voter fraud. It sought to have a judge either award the state’s electoral college votes to Trump, or prevent the state from casting its six electoral votes.

The lawsuit recycled claims that Clark County’s use of an automated signature verification machine was unlawful and allowed fraudulent ballots to be counted (a claim rejected in pre-election litigation also brought by the campaign) and claimed that tens of thousands of votes were cast by improper voters, including the deceased, non-state residents and noncitizens. The campaign also submitted depositions from anonymous whistleblowers who made outlandish claims about vote totals on machines changing overnight and a pro Biden-Harris bus arriving at an early vote site in which workers were said to have filled out dozens mail ballots.

The Trump campaign requested that most of its evidence be filed under seal, meaning much of the evidence isn’t publicly viewable.

But Russell, who was assigned to the case in Carson City District Court, summarily dismissed its claims of voter fraud and request for an overturn of election results in a ruling on Friday, writing that the campaign’s evidence provided “little to no value” based on questionable or “unsound” methodology, adding that the evidence failed to show any “credible or reliable evidence that the 2020 General Election in Nevada was affected by fraud.”

The Trump campaign nonetheless appealed the decision to the state Supreme Court on Monday, saying in filings that the court failed to take into account “expert” testimony provided by the campaign and applied a higher evidentiary standard than required to prove sufficient voter fraud had occurred.

“The massive scale of illegal and improper ballots that were counted casts reasonable doubt on the outcome of the election and requires the statutory remedy of nullification,” attorneys for the campaign wrote in a supplemental filing late Tuesday.

But the order filed Tuesday by the state Supreme Court states that the Trump campaign did not demonstrate any “legal error” in Judge Russell’s application of the state’s election law contest, and that Russell did not err in applying a higher burden of proof (noting that Russell still opted to consider the evidence and reject it even under a lesser standard.)

Democrats filed the motion on Monday asking the court to dismiss the suit and certify the state’s election results, writing in a supplemental brief on Tuesday that the Trump campaign had failed to provide “even a shred of credible evidence” and that the appeal should be considered “frivolous in light of the thoroughness of their defeat and the extraordinary high bar they must satisfy to overturn the district court’s fact-bound determinations.”

“Contestants have thus far identified no legal error committed by the district court and instead offer an improper invitation to this Court to invade the factfinding ambit of the district court, reweigh the evidence, and ignore the conspicuous logical and evidentiary gaps littered throughout the record,” attorneys for the Democrats wrote in the filing.

Prior to the decision, the Trump campaign also filed a motion seeking to disqualify Justice James Hardesty from the case, stating that the judge demonstrated “actual bias or prejudice” for one of the candidates because he congratulated the state’s Republican Secretary of State Barbara Cegavske last month for “carrying out an extraordinarily successful election.” Hardesty is a registered Democrat, but the seven members of the state Supreme Court run for office without party affiliation.

Attorneys for the president’s campaign argued that those comments essentially equated to Hardesty casting judgement on the election results, and that overseeing a case seeking to overturn the results would run afoul of rules against bias. 

Hardesty said in a written response that his comments were “an appropriately courteous and professional response and in no way reflects any predisposition or opinion by me,” and did not reflect any engagement of a judicial function or demonstrate his views regarding the facts of the case.

Other members of the Court agreed, saying in a unanimous opinion denying the challenge that they “find no basis for Justice Hardesty’s disqualification.”

Justice Elissa Cadish, who is also a registered Democrat, voluntarily recused herself from the case on Monday, saying in a disclosure that her “impartiality might reasonably be questioned based on my personal relationships with several of the named respondents.”

Updated at 10:53 p.m. to add a statement from the Nevada Republican Party.

Trump campaign files appeal to state Supreme Court in election lawsuit seeking to block presidential race results; Dems ask for dismissal

The front of the Nevada Supreme Court Building

President Donald Trump’s re-election campaign has filed an appeal with the state Supreme Court for reconsideration of an election contest lawsuit tossed by a lower-court judge last week, seeking to block confirmation of Nevada’s six electoral votes or to have them awarded to the president’s campaign.

The appeal notice was filed Monday afternoon before the state’s highest court and marks the likely last chance for the president’s campaign to challenge election results in Nevada, as Tuesday marks a federal “safe harbor” election deadline where states must certify election results or resolve litigation before members of the Electoral College meet to cast their votes for president by Dec. 14.

The campaign is asking for an expedited process and decision from the state’s highest court in asking for an appeal from Carson City Judge James Russell’s order on Friday denying the campaign’s claims of mass voter fraud and request to overturn the results of the election.

Russell wrote in his order that the Trump campaign had failed to provide any backing evidence to support the claims of mass-level voter fraud that the campaign alleged brought the results of the presidential election into question. He declared in the order that many of the depositions and examples of evidence provided by the Trump campaign were “unsound,” and found “no credible or reliable evidence that the 2020 General Election in Nevada was affected by fraud.”

The appeal itself argues that Russell ignored “substantial evidence” that tens of thousands of illegal votes were cast, and erred by using “judicial gloss” in raising the standard of proof needed for the campaign to demonstrate sufficient evidence that there were enough fraudulent votes cast to provide “reasonable doubt” as to the results of the election.

“It is clear from the record that there is sufficient evidence of illegal and improper votes cast and counted in Nevada in an amount sufficient to overturn or annul the results of the election,” attorneys for the campaign wrote in a filing.

Attorneys representing state and national Democrat Party groups also filed a motion for summary affirmance with the state’s highest court on Monday, essentially a legal request for the court to immediately deny the appeal, affirm Russell’s initial decision and agree to certify the state’s election results by the “safe harbor” deadline of Tuesday.

The motion called the appeal a “frivolous” filing that had no chance to succeed given the campaign’s failure to prove any of its “farfetched claims of fraud” at the District Court level, and that the court had a responsibility to finalize election results ahead of the Tuesday deadline.

“Immediate resolution of the appeal is needed to bring certainty and stability to the people of Nevada — and the entire nation — in advance of pending deadlines related to the casting and counting of votes by presidential electors,” attorneys wrote in the motion.

On Monday evening, the Court issued a procedural schedule instructing the Trump campaign to respond to the motion filed by attorneys for the Democrats by 2 p.m. on Tuesday, while also instructing attorneys for the Democrats to respond to the Trump campaign's motion by the same deadline.

Election results certified by the state Supreme Court last month gave former Vice President Joe Biden a final 33,596-vote win over Trump in Nevada. The state’s six electors and all electors nationwide are scheduled to meet on Dec. 14 to cast official ballots for president and vice president.

Also on Monday, Justice Elissa Cadish (a Democrat), voluntarily recused herself from the case, saying that her “impartiality might reasonably be questioned based on my personal relationships with several of the named respondents.”

Updated at 5:01 p.m. to include additional information about the campaign's appeal, which was filed after this story was first published. Updated again at 5:14 p.m. to include information on a procedural schedule set by the Court.

Judge rejects Trump campaign lawsuit seeking to block state’s presidential election results, says no evidence election was affected by fraud

President Donald Trump’s legal effort to overturn presidential results in Nevada has fallen short after a Carson City District Court judge rejected his team’s request to award the state’s six electoral votes to the incumbent.

Judge James Russell ruled Friday against the Trump campaign’s unprecedented request to either block certification of the state’s presidential election results or award the state’s electoral votes to Trump, saying in a written order that the campaign’s claims of voter fraud to the level needed to bring the state’s presidential results into question fell far short of the evidentiary standard needed to contest the results of the presidential election.

In his 35-page order, Russell wrote that he found the evidence offered by the Trump campaign to have “little to no value,” and failed to provide under any standard of proof that the campaign’s long list of alleged fraud and vote irregularities could be backed up under any evidentiary standard.

“Contestants did not prove under any standard of proof that any illegal votes were cast and counted, or legal votes were not counted at all, for any other improper or illegal reason, nor in an amount equal to or greater than 33,596, or otherwise in an amount sufficient to raise reasonable doubt as to the outcome of the election,” Russell wrote in the order. “Reasonable doubt is one based on reason, not mere possibility.”

The judge also wrote that he found many of the depositions and expert witnesses provided by the Trump campaign questionable, referring to several of the exhibits presented to the court as “unsound” or based on questionable methodology. He wrote that there was “no evidence that voter fraud rates associated with mail voting are systematically higher than voter fraud rates associated with other forms of voting,” and that there was no evidence that fraudulent election activities had affected the outcome of the presidential race in the state.

“Based on this testimony, the Court finds that there is no credible or reliable evidence that the 2020 General Election in Nevada was affected by fraud,” he wrote.

Election results certified by the state Supreme Court last week gave former Vice President Joe Biden a 33,596-vote lead over Trump in Nevada. The state’s six electors and all electors nationwide are scheduled to meet on Dec. 14 to cast official ballots for president and vice president.

The Nevada Republican Party said late Friday that it plans to appeal the decision to the state Supreme Court, saying the presented evidence was "compelling and overwhelming" while promising that "the fight continues for clean and fair elections."

But the lawsuit’s initial defeat is the latest in a string of post-election losses for the Trump campaign and Republican in Nevada, who have filed a flurry of unsuccessful legal efforts seeking either new elections or a halt to certification of the state’s election results, over a myriad of unsupported claims of massive voter fraud. At least five other election challenges filed after the election by losing Republican candidates or affiliated organizations have been rejected outright at the District Court level.

In its lawsuit filed mid-November and during a court hearing on Thursday, attorneys for the Trump campaign claimed that they had evidence that the election was “stolen” from the president, pointing to a handful of anonymous declarations alleging wrongdoing and data analysis that they claimed indicated tens of thousands of nonresidents voted in the 2020 election.

But nearly all evidence cited by the campaign — save for the initial complaint and a brief data analysis report published after the Thursday hearing — were filed under seal, meaning that records such as depositions or lists of alleged ineligible voters are not publicly available.

In his decision, Russell took issue or declined to accept any of the evidence presented by the Trump campaign. He wrote that claims regarding Clark County’s use of an Agilis signature verification machine had not only been previously litigated and resolved in other courts, and that spurious claims of vote totals shifting overnight were based merely on hearsay evidence — noting that a follow-up paper trail audit revealed no discrepancies in vote totals.

Russell also rejected the wide swaths of alleged illegal voting that the Trump campaign claimed had occurred in the state, with ballots supposedly cast by tens of thousands of out-of-state residents, deceased individuals, or individuals impersonating other voters.

But throughout the order, Russell wrote that the record and evidence presented failed to support any of those findings, writing that nearly all of them were based on hearsay evidence without the necessary factual evidence to support the claims.

He also rejected an argument that the Nevada Native Vote Project — a nonprofit organization dedicated to increasing voter turnout among Native Americans — had acted in concert with the Biden campaign or offered things of value to manipulate votes for president, saying the campaign showed “Facebook screenshots from groups and individuals, but not demonstrating that they offered anything of value to alter outcome of election.”

Russell also wrote that an anonymous declaration that purported to see multiple mail ballots being filled out on the side of a bus with a Biden-Harris emblem at one of the state’s early voting sites to be “not credible,” given that no other witnesses corroborated the account of “alleged ballot-stuffing occurring in broad daylight outside a busy polling station in Nevada’s most populous county.”

Attorneys representing the Democratic Party-selected slate of electors (named as defendants in the lawsuit) said Thursday that the evidence provided was flimsy at best, and failed to provide the specific evidence generally required for election results to be called into question, instead relying on what one attorney said was “nothing more than speculation, conspiracy theories and a fundamental misunderstanding of the electoral process.”

Updated at 3:05 p.m. to include additional information on Judge Russell's decision. Updated again at 4:17 p.m. to include a statement from the Nevada Republican Party.

Legislative gun law changes inspired by October 1 have seen middling adoption over last nine months; advocates urge patience

Flowers lay on the ground near the Route 91 Festival grounds

Democratic lawmakers entered the 2019 Legislature with a clear vision in mind; toughen up Nevada’s historically loose gun laws.

State Democrats had won a near sweep and clear legislative majorities in the 2018 midterm election, the first election since the 2017 mass shooting at the Route 91 Harvest Festival that left 58 people dead and hundreds more injured. On the campaign trail, Democrats did not shy away and instead campaigned on preventing gun violence; one of Steve Sisolak’s most memorable ads focused directly on the mass shooting and a promise to ban “assault rifles, bump stocks, silencers.”

Within the first two weeks of the Legislature, Democrats had passed (along party lines) a bill to finally implement a narrowly passed 2016 initiative requiring background checks on private party gun sales. By the end of the 120-day session, they had passed a “1 October Bill” (AB291) banning bump stocks, raising blood alcohol limits for firearm possession and implementing a legal process allowing courts to temporarily seize firearms from a person displaying high-risk behavior.

Many of the bills elicited a strong negative reaction from pro-gun rights groups (including the National Rifle Association), with opponents flooding the halls of the Legislature to oppose the measures as unnecessary or overly punitive. 

Still, Democratic lawmakers — including bill sponsor and October 1 survivor Sandra Jauregui — touted the legislation as the “most comprehensive gun safety legislation in Nevada history.”

“We'll never be able to go back and protect those who have been taken from us because of gun violence, but because of the actions that we took in Nevada we are making our communities a safer place,” the Democratic assemblywoman said in a statement after the bill was signed.

The two major provisions — expanded background checks for private party sales and “red flag” extreme risk protection orders — took effect in January.

But over the last nine months, adoption and use of the new laws has been mixed.

Public records obtained by The Nevada Independent indicate that more than 2,400 background checks on private party transactions have been conducted between the law’s effective date in January and Sept. 1. But the state Department of Public Safety — which manages the state’s background check system — only reported four issuances of “red flag” Extreme Risk Protection Orders over the last nine months.

The small number of orders — which only include approved orders and not applications or denials — may be in part attributable to the COVID-19 pandemic, which resulted in many state courts closing in-person operations and taking other safety precautions to limit spread of the disease.

Advocates say it's also too early to draw strong conclusions about the efficiency of the laws William Rosen, Everytown for Gun Safety's managing director of state policy and government affairs, said in an interview that adoption and use of the laws isn’t an automatic process, but will become more widespread as time goes on.

“It's going to be an effort among various agencies and law enforcement officials and the public to continue carrying that into practice,” he said. “The first year of data, it's the beginning of the road, not the end.”

Expanded background checks

By a margin of fewer than 10,000 votes out of more than 1.1 million cast, Nevada voters narrowly approved Question 1 on the 2016 ballot — an initiative that would require background checks before the sale or transfer of a firearm between two private parties, with some limited exceptions.

Federal law already requires background checks to be conducted on any firearm sales from a federally licensed dealer, but backers — led by former New York City Mayor Michael Bloomberg and his Everytown for Gun Safety group — say the ballot question was necessary to cover the “gun show loophole,” or sales between private individuals without the involvement of a dealer.

Supporters, led by Bloomberg and Everytown, poured more than $19 million into the group supporting the ballot question, while the NRA contributed close to $6.6 million to the opposition group.

But implementation of the measure never happened. Then-Attorney General Adam Laxalt announced in late 2016 that the FBI was refusing to conduct the expanded background checks for the state — a major procedural issue as the initiative specifically required the federal agency, and not the state, to conduct the checks. Nevada law also prohibited any changes to voter-approved statutory initiatives for a period of three years.

Fast-forward to 2019 — after Democrats won clear legislative majorities and control of the governor’s office for the first time in two decades — and Democratic lawmakers introduced a bill (SB143) moving the responsibility of conducting the background checks from the FBI to the state. Gov. Steve Sisolak signed the bill into law in just the second week of the legislative session, with it set to take effect in January 2020.

Since the law went into effect in January, the number of private-party background checks per month has continually increased. January saw 168 private-party background checks, with August seeing the highest to-date total of checks at 518 total.

Nevada’s Point of Contact Firearms Program typically handles more than 100,000 background check requests per year, according to the agency. The agency rejects about 2,000 attempted firearm purchases every year.

Lawmakers and state officials say the state-run background check system is more effective and comprehensive than the federally operated system, as it includes state-level criminal history and mental-health records.

Though data on rejection rates for private party background checks were not immediately available, Rosen said he believed the state was off to a “healthy start” and that the law was more designed to take away gun-buying opportunities for individuals that would otherwise fail a background check.

“That's the whole point of the law, of course, is that law abiding sellers can help shrink the market of unlicensed non-background check sales for unlawful buyers,” he said.

Annette Magnus, executive director of progressive advocacy group Battle Born Progress, said the uptick in background check totals was a positive sign that meant more people were following the law and going through the correct process. But she added the numbers may also reflect the  higher number of gun sales in 2020 thus far, which could be a future cause of concern.

“I do think people feel unsafe,” she said. “I think you're going to continue to see those numbers go up and look, I'm glad we closed the background check loophole, that does make all of us safer. But I think on the flip side of that, seeing those numbers rise for gun sales generally and these numbers, I think there's more to that and there's more going on.”

Red Flag laws

Nevada’s new “red flag” law that allows courts to temporarily seize firearms from high-risk individuals has been used sparingly over the last nine months, and a lawsuit challenging its constitutionality is still pending in court.

The ability to issue orders come from a multi-pronged firearms bill (AB291) approved during the 2019 legislative session. A total of 19 states and Washington, D.C. have implemented some kind of “red flag law,” according to gun safety group Everytown for Gun Safety.  

Under the law, a court can issue an “extreme risk protection order” that takes away any owned firearms or the right to possess or buy a gun from an individual for any of the following reasons:

  • Making threats or committing actual acts of violence against themselves or others
  • Engaging in behavior a police officer determines to be a “serious and imminent threat” 
  • Engaging in high-risk behavior while possessing or recently purchasing a firearm

The law requires that a hearing to be held within seven days of the issuance of the initial order, allowing judges to issue an extended order valid up to a year prohibiting an individual from possessing firearms if the court determines gun ownership could result in injury to the person or others and if other, less restrictive options have been exhausted or not effective. 

The final version of the bill, which also banned firearm modifications similar to bump stocks and added penalties for negligent storage of firearms, was staunchly opposed by Republicans and passed on near-party line votes in the Senate and Assembly before being signed into law by Gov. Sisolak.

But according to the Nevada Department of Public Safety, only four such protective orders have been granted since the state’s new law went into effect in January. Two of the orders were filed in February, another in May, and the fourth in September. One was issued in Carson City, one in the Ninth District Court (Douglas County) and two in Eighth Judicial District Court (Clark County).

Other states that have adopted similar “red flag” laws have generally seen larger numbers of protective orders filed. Oregon, which implemented a similar law in 2018, saw about 74 petitions filed in its first year of implementation. Maryland judges granted 148 such orders within the first three months of the law; Vermont issued about 30 such orders in its first 16 months of having a similar law in place.

The group found that states with “red flag laws” issued around 3,900 protection orders between January 2018 and August 2019, with a tally showing no state has issued fewer than nine extreme risk protection orders per year.

Rosen said there were a number of “confounding factors” that could affect Nevada’s total of protective orders issued, including court closures from the COVID-19 pandemic, and that most states tended to issue more orders as law enforcement and the legal system because they were more comfortable with their use.

“I do think it's going to take a little time and effort, but I'm not disappointed at all that in its first year, especially this year, that we may be off to a slow start,” he said.

Advocates of the law say it can help family members and law enforcement take a preemptive step to prevent mass shootings, domestic shootings or suicide by an individual demonstrating high-risk behavior.

Magnus, who lobbied for the bill in the 2019 Legislature, said the small number of protective orders filed thus far is likely attributable to court closures and disruptions caused by the COVID-19 pandemic. She said a smaller number of the orders being filed should be considered a good sign — meaning fewer people found it necessary — but acknowledged it may take time for use of the tool to become more widespread.

“As more people find out about this new law, and are able to access this new law when they're in dangerous situations, you will see an uptick in the number of people who are utilizing this and I think you'll see judges and law enforcement also start to utilize this as well,” Magnus said.

But the law in Nevada has been met with a flurry of opposition from gun right activists and several rural counties and sheriffs, some of whom have threatened to not enforce provisions in the law.

That opposition culminated in a lawsuit filed in December 2019 by a conservative nonprofit group, NevadansCAN, which sought to challenge the new law as an unconstitutional “government power grab” that ignored due process rights in allowing a judge to temporarily seize a person’s firearms.

The request was rejected in an order filed in early July by Carson City District Court Judge James Russell, who denied the injunction request over a lack of standing.

Without ruling on the constitutionality of the law, Russell wrote that the political advocacy group and an individual gun owner who joined the lawsuit lacked standing because they “have not alleged that they will suffer an imminent cognizable personal injury due to the order for protection provisions.”

Instead, Russell wrote that a lawsuit challenging the law’s constitutionality would be better suited if brought by a person subject to an extreme risk protection order.

But the lawsuit is still pending, as three rural counties and four sheriffs in Elko, Pershing, Humboldt and Eureka counties have filed to intervene. No additional hearing on their motion has yet been scheduled, and a spokeswoman for Attorney General Aaron Ford’s office said a decision from the court could take a “couple of months.”

Judge sides with state Senate GOP in lawsuit challenging extended payroll, DMV taxes

Senate chambers

A judge has ruled that Nevada lawmakers violated the state Constitution by approving extensions of more than $100 million in set-to-expire taxes at the end of the 2019 Legislature, ruling in favor of state Senate Republicans who filed the initial lawsuit more than 15 months ago.

Carson City District Court Judge James Russell issued the ruling from the bench on Monday, saying that state lawmakers had violated the constitutional two-thirds vote requirement for tax increases in passing two bills during the last session that extended tax rates or fees that were set to expire. The two taxes included a higher payroll tax rate (expected to raise more than $98 million over the two-year budget) and a $1 per transaction “Technology Fee” for the state Department of Motor Vehicles.

Russell — who noted that he reviewed four separate dictionary definitions of the word “generate” prior to the hearing — said it was clear to him that the extension of a tax rate that would otherwise expire met the constitutional threshold for a two-thirds vote, which applies to any bill that “creates, generates, or increases any public revenue in any form.”

“That was revenue that was there and would have gone away with respect to this particular matter,” he said on Monday. “But for the deletion of the tax computation mechanism, these taxes would not have produced. This amount of money wouldn’t even exist.”

Russell also ordered the state to pay back tax revenue collected through the higher tax rates. But he noted that the matter is likely to head to the state Supreme Court, and the issuance of a stay could delay any repayment of tax fees for several months to more than a year. 

He also agreed to remove four named defendants — Senate Majority Leader Nicole Cannizzaro, Senate Secretary Claire Clift, Lt. Gov. Kate Marshall and Gov. Steve Sisolak — from the case, leaving just the DMV and the Department of Taxation as defendants. 

Still, Republican Senate Minority Leader James Settelmeyer — who attended the hearing — said the ruling was a “slam dunk” victory for affected businesses and state taxpayers. While he wished a decision had come sooner, Settelemeyer said, the court’s ruling backed up the original complaint of Senate Republicans that they were not included in discussion around a potential tax (state Senate Democrats hold a 12-8 seat advantage but need one additional vote for a two-thirds majority).

“They should have done it right to begin with,” he said. “We weren't, as Senate Republicans, saying we were against taxation. We weren't saying no. We're saying we needed to have a discussion, we had to be involved in it, we had to make some decisions together. And that wasn't being done. It was all being decided one way.”

In a joint statement on Tuesday, Senate Majority Leader Nicole Cannizzaro and Assembly Speaker Jason Frierson said they "wholeheartedly disagree" with the court's decision and planned to appeal.

"We intend to appeal the decision to the Nevada Supreme Court on an expedited basis to provide clarity on this matter before the start of the next session," they said in an emailed statement.

During oral arguments on Monday, attorneys largely re-litigated the final days of the 2019 Legislature and ultimate passage of the bill extending the life of a set-to-expire payroll tax rate, as well as constitutional definitions of the words “generate” and “create.”

The hearing stemmed from a lawsuit filed by all eight state Senate Republicans in July 2019 over a pair of bills — one removing a scheduled decrease in a payroll tax and another extending a $1 per transaction DMV technology fee — passed during the 2019 Legislature with less than a two-thirds majority, constitutionally required for any tax increase. 

Legislative Democrats, in part relying on a legal opinion from Legislative Counsel Bureau lawyers, argued that removing a scheduled decrease in a tax rate was not the same as voting to raise an existing tax or enact a new one.

That argument was reiterated by LCB General Counsel Kevin Powers, who said during oral arguments that there was a clear and important distinction between operative and effective dates of when laws were enacted. As nothing changed for the businesses in terms of the tax rate, he said, it shouldn’t be considered an increase in revenue.

“There was a maintenance of the current level of collection,” Powers said. “Nothing changed from before the bill passed, to after the bill passed. The amount collected and the computation base remained the same.”

The first hearing on the merits of the case came nearly 16 months after the initial lawsuit was filed, owing to a lengthy legal dispute over whether legislative attorneys could participate in the case.

Earlier this year, the Nevada Supreme Court issued a 5-2 ruling allowing attorneys with the nonpartisan Legislative Counsel Bureau to represent Cannizzaro and Clift in the case, even though they also represent the Republican senators during normal legislative sessions.

That decision reversed an earlier decision by Russell, who ruled last November that the LCB attorneys could not represent Cannizzaro and Clift as the case involved one group of lawmakers suing another group of legislators.

An estimated 22,000 businesses pay the Modified Business Tax, a 1.475 percent payroll tax assessed on businesses with more than $50,000 in taxable wages per financial quarter. Finance and mining businesses pay a 2 percent rate.

Updated on Sept. 22 at 12:10 p.m. to include a joint statement from Senate Majority Leader Nicole Cannizzaro and Assembly Speaker Jason Frierson.

Supreme Court rejects challenge to teacher union-backed sales tax initiative petition

The front of the Nevada Supreme Court Building

The Nevada Supreme Court ruled Thursday in favor of a sales tax ballot question sought by the Clark County Education Association and rejected a challenge from business groups contesting language on signature forms for the petition.

The court issued a unanimous ruling, upholding a decision from Carson City District Court to amend and otherwise allow the 200-word “Description of Effect” for a ballot question that would raise the state sales tax as a push for more K-12 funding sought by the CCEA.

The order is a win for the union, as a reversal would have invalidated any previously gathered signatures and forced CCEA and an affiliated political action committee (Fund Our Schools) to start anew on any previously gathered signatures.

The union announced the initiative in January, which would raise the state’s Local School Support Tax from 2.6 percent to 4.1 percent and bring the state’s baseline sales tax rate to 8.35 percent. That proposal and another CCEA initiative to raise state gaming taxes were projected (pre-pandemic) to bring in more than $1.4 billion a year for K-12 education.

But the sales tax initiative was almost immediately challenged by a PAC affiliated with the Las Vegas Metro Chamber of Commerce, saying the petition’s “Description of Effect” — the 200-word summary of the initiative included on signature gathering forms — was misleading and did not fully explain the effect on sales tax rates if the initiative were to pass.

Carson City District Court Judge James Russell agreed and issued an injunction requiring the union-backed PAC to rework the language in March, but the Chamber of Commerce PAC appealed the decision to the state Supreme Court, challenging Russell’s ability to order changes to the “Description of Effect” language.

In its order, the state Supreme Court wrote that state law “clearly contemplates” a lower court judge’s authority to change “description of effect” language, and called the group’s other arguments for additional changes “inherently speculative and argumentative and is not proper for inclusion within a description of effect.”

A similar legal challenge filed against the union’s proposed initiative raising gaming taxes is still pending before the state Supreme Court.

In order to qualify, Nevada law requires backers of a statutory initiative to gather signatures from at least 10 percent of registered voters who cast a ballot in the previous election. For the 2020 election cycle, that means backers have to gather a minimum of 97,598 valid signatures and at least 24,400 in each of the state’s four congressional districts, which must be submitted by Nov. 18.

If enough signatures are deemed valid, the initiative petition moves to the 2021 Legislature, where lawmakers have 40 days to approve the petition. If they reject the petition or take no action, it would then move to the 2022 ballot.

Nevada Supreme Court will allow legislative lawyers to participate in major payroll tax case

Photo of the top front of the building with the words Supreme Court of Nevada

The Nevada Supreme Court has issued a ruling allowing Legislative Counsel Bureau attorneys to represent lawmakers and staff named in a major lawsuit filed by Republican state senators challenging an extension of the state’s payroll tax rates.

The 5-2 decision, which was published on Friday, will allow attorneys for the nonpartisan legal division of the Legislature to represent Senate Majority Leader Nicole Cannizzaro and Senate Secretary Claire Clift in a lawsuit challenging the constitutionality of an extended payroll tax (about $100 million over two years) approved in the 2019 legislative session without a two-thirds vote normally required for any tax increase.

The decision is a major procedural win for Democratic lawmakers and the LCB’s legal division, which was barred from participation in the case by a Carson City District Court judge last year over issues with the group representing one group of lawmakers against legal action brought by another group.

Writing for the majority, Justice Elissa Cadish wrote that the lower court erred in disqualifying the legal division because they did not violate rules of professional conduct in representing potentially adverse parties. She wrote that it was “unfair and unsupported” to say that LCB attorneys were picking sides in the case, given that they were fulfilling their duty to represent the official interests of the Legislature.

“LCB Legal does not have a disqualifying conflict of interest that prevents it from defunding such a lawsuit because its only client is the Legislature acting through its duly authorized constituents, and LCB Legal only represents individual senators to the extent they are acting on the Legislature’s behalf,” she wrote.

The court’s decision stems from a lawsuit filed by all eight state Senate Republicans in July 2019 over a pair of bills — one removing a scheduled decrease in a payroll tax and another extending a $1 per transaction DMV technology fee — passed during the 2019 Legislature with less than a two-thirds majority, constitutionally required for any tax increase. 

Legislative Democrats, in part relying on a legal opinion from Legislative Counsel Bureau lawyers, argued that removing a scheduled decrease in a tax rate was not the same as voting to raise an existing tax or enact a new one.

In November, Carson City Judge James Russell ruled that attorneys employed by the LCB could not represent Cannizzaro or Clift in the case owing to the nature of the case, with one group of legislators suing another group of elected lawmakers. LCB Attorney Kevin Powers warned that such a decision could wreak havoc on the normal function of the nonpartisan legal division, which provides guidance and bill-writing duties for lawmakers, though Republicans said such fears were overblown.

Justices Abbie Silver and Kristina Pickering dissented, writing that they believe the legal division was violating rules of professional conduct by representing adverse parties in the case.

The case will now move back to Carson City District Court and resume over the merits and legality of approving the tax extension without a two-thirds vote. The current payroll tax rate, as compared to the level it would have otherwise been reduced to without the vote, was expected to bring in about $98 million over the two years of the budget cycle.

20-23754 by Riley Snyder on Scribd

20-23754 by Riley Snyder on Scribd