An anti-gerrymandering protest in Washington, D.C. in October, 2017. (Photo: Olivier Douliery, Getty Images)
In June of 2019 the U.S. Supreme Court ruled in Rucho v. Common Cause that federal courts will no longer accept partisan gerrymandering cases. Chief Justice Roberts wrote for the majority that partisan gerrymandering is a political issue that must be resolved at the state level. In response, the League of Women Voters U.S. launched a People Powered Fair Maps plan to create barriers to partisan gerrymandering in each state.
The League of Women Voters of Nevada adopted the plan and reached out to our democracy partners to form the Fair Maps Nevada coalition. On November 4, 2019, Fair Maps Nevada filed a constitutional amendment ballot initiative to create an independent redistricting commission. Nevada’s constitution protects the right to circulate a ballot initiative as well as the right to vote on ballot questions.
On November 27, 2019, Mr. Kevin Benson, a Carson City attorney, filed a lawsuit challenging the ballot question’s summary of effect for a “progressive Democrat.” His client argued that the summary of the amendment that appears on each signature sheet was misleading. Fair Maps Nevada offered to edit the summary to clarify the amendment’s intent, but Mr. Benson refused. The Judge James Russell ultimately agreed with Mr. Benson’s client and asked both parties to submit new versions of the summary to address the plaintiff’s complaints. Fair Maps Nevada submitted a new summary, but Mr. Benson did not. Instead, he argued that the whole amendment was misleading and so should be blocked completely from moving forward.
Essentially, Mr. Benson was asking Judge Russell to deny the Fair Maps Nevada coalition our constitutionally protected right to circulate a petition. Judge Russell accepted Fair Maps Nevada’s new summary of the amendment and closed the case.
According to Nevada Revised Statutes there are two causes for filing a complaint against a ballot petition, a challenge to the summary of effect or a claim that the amendment addresses more than one subject. And NRS states that once a summary of effect is amended it cannot be challenged again. So, Fair Maps Nevada viewed the closing of the case as a green light, filed the revised description of effect with the secretary of state’s office, and began gathering the 97,598 signatures needed to qualify for the November ballot.
On February 12, 2020, Mr. Benson filed an appeal with the Nevada Supreme Court as the prevailing party in the lower court. He filed an appeal to complain about his client winning. Mr. Benson claimed that Judge Russell lacked authority to rewrite our summary and that he was derelict in not providing an analysis of our amendment. Mr. Benson provided no reference to a statute restricting judges from re-writing a description of effect without the plaintiff’s permission, nor did he provide any evidence that the Fair Maps Nevada amendment violates any laws or causes any actionable harm.
Fair Maps Nevada asked that the appeal be dismissed, but the Nevada Supreme Court allowed the case to go forward with briefings.
For context, the initiative, referendum, and recall all date to the Progressive Reform Movement from just over one-hundred years ago, which formed in response to Gilded Age corruption. Progressive reformers believed empowered voters would hold corrupt political bosses directly accountable, negating the need for reams and reams of laws and regulations. Ultimately, creating the ability to vote directly on laws and to remove elected officials before a regular election directly enabled voters to stop bad actors.
By March 2020, it was clear to our coalition that someone else was funding Mr. Benson’s attack against Fair Maps Nevada’s constitutionally protected right to root out corruption in a system. The listed plaintiff had not uttered or written even one word explaining his arguments against Fair Maps Nevada redistricting reform amendment. The only conclusion for us was that this litigious harassment was meant to run out the signature gathering clock and drain our funds to keep us from even having a discussion with voters about putting up barriers to gerrymandering.
Democrats have a national organization devoted to eliminating gerrymandering and in red states they curse the practices as a threat to real democracy. But, apparently, in blue states gerrymandering is right to be guarded by any means necessary, including harassing the League of Women Voters.
But even more is at stake than one ballot initiative. The Nevada Supreme Court just ruled against the appeal, writing Mr. Benson “presented no authority that actually supports his positions” protesting the description of effect. The court failed to acknowledge, however, that Nevada Revised Statutes clearly states if a “description is amended in compliance with the order of the court, the amended description may not be challenged” (NRS 295.061). Because the ruling merely evaluates the merits of the arguments, the case resolution leaves the door open for anti-democratic appeals to happen again and again until the right to circulate a ballot petition effectively disappears.
Every ballot petition circulator who attempts to reign in corruption will draw a description of effect challenge, which will result in a refusal to comply with an order to re-write the summary, and then a Nevada Supreme Court appeal that will block the ballot petition from moving forward.
It is deeply hypocritical for a party that devotes endless energy to accusing others of suppressing the right to engage in representative democracy to be aggressively engaged in litigation that could destroy the main pillar of direct democracy.
Furthermore, when I conduct voter registration drives, eligible voters frequently tell me they see no point in voting because both sides are corrupt. Well, this type of duplicitous, dirty politics aligns perfectly with that narrative and doubles down on that perception. That’s voter suppression too, the people are tired of it, and it needs to stop.
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