The Nevada Supreme Court was told Thursday there is nothing unconstitutional about term limits, but that the way the mandate was passed by voters in Nevada was so flawed the amendment must be thrown out.
"We are not arguing term limits is unconstitutional," said Kevin Powers of the Legislative Counsel Bureau. "We're challenging the manner in which it was approved."
Voters approved term limits for almost all public officers in Nevada in 1994 and 1996, making the 12-year limit part of the state constitution. Now that 12 years have elapsed, the attorney general and secretary of state have demanded more than two dozen long-serving public officials be removed from this year's ballot. When district attorneys in the two largest counties refused, saying term limits don't actually kick in until the next election, the state took the issue to the supreme court.
The high court took the case under submission with Chief Justice Mark Gibbons promising a ruling as soon as possible.
It was the high court itself that raised the constitutional question, calling for arguments on the constitutionality of the Nevada amendment and the manner in which it was approved by voters.
Powers told the court the initiative was unclear and misleading, didn't fully inform voters of what it would do and contains multiple subjects in violation of the law.
But his core argument was that the issue wasn't presented to the voters in two successive general elections in exactly same manner. Voters in 1994 approved term limits for all public officials including judges. It was the 1996 Supreme Court that agreed with the Nevada Judges' Association they were different and split the question into two ballot questions " one for judges and the other for all other officials.
"Dividing the initiative into two questions clearly puts it in front of the voters in a different manner," he said.
"Maybe our colleagues shouldn't have done that," said Justice Jim Hardesty. But he said the language in the 1996 questions was the same as in 1994.
Powers said that doesn't change the fact it wasn't presented to voters the same way twice, which he said is clearly required by Nevada's constitution.
He said it doesn't even say which officials will be term limited, listing only state constitutional officers, lawmakers and "other state and local officials." He said it took the attorney general's office five pages in its 1996 opinion explaining the petition to describe everyone it applied to.
Powers said it doesn't say whether the limit is a lifetime ban from that body or an office holder can return after taking a term off. And, he said, it contains multiple subjects that aren't clearly explained for voters.
He said voters were told term limits were aimed at "career politicians" " which they would understand to be the governor and other state officials and lawmakers. But, he said, it has been determined to apply to all state and local elected officials down to tiny improvement-district boards.
"I doubt the average voter thought their neighbor on the mosquito abatement board was a clear politician," he told the court.
Attorney General Catherine Cortez Masto argued the court was correct when it divided the 1994 question into two separate questions.
However, the attorney general's office had argued during the 1996 court case that dividing the 1994 question in two would create a potential constitutional violation that could invalidate the vote.
Masto said no explanation on a ballot question can contain every conceivable effect it would have. She said the issue was presented in the same manner both elections and that "exact" isn't required.
Masto also argued the Legislature's own 1996 opinion said the question was clearly a lifetime ban and that the voters clearly understood what they were voting for. She said the mandate that initiatives be limited to a single subject was not violated.
"The single subject was term limits."
She said the Legislature and local officials have waited far too long: "Twelve years is an unreasonable delay. It would be a disservice to the voters to invalidate it."
She said voters clearly voted to impose term limits and their wishes should be respected.
She was joined by Dominic Gentile, representing Clark County commissioner candidate Steve Sisolak, who is trying to force his opponent off the ballot. He too argued that opponents waited too long to make the challenge. To now argue removing a large number of incumbents would disrupt the elective and the legislative process, he said.
"They're saying they have to protect the integrity of the elective process," he said. "Well, if there was a problem with the elective process, they knew it in 1996 and 1994."
He said the real reason the challenge wasn't brought years ago was that "no one was willing to become visible in this challenge."
Members of the court also made it clear they don't appreciate being forced to decide this complex issue on such short notice. Primary ballots must be printed within two weeks when early voting begins. Chief Justice Gibbons told the audience of state officials and lawyers the case puts all other court business on hold until they make a decision.
Powers said after the hearing the answer is simply that there was no case to raise until the secretary of state's office demanded those candidates be pulled off the ballot. There are also now private candidate challenges to remove Assembly Speaker Barbara Buckley and Senate Majority Bill Raggio from the ballot.
Sen. Randolph Townsend, R-Reno, who isn't facing term limits this election, agreed the short timeline "is a situation where the court is put in a very untenable position." He said the situation was created when the secretary of state "unexpectedly" challenged the candidates this year and did so after the filing period closed.
He said everyone had expected the issue to become legally "ripe" before the 2010 elections.
- Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.