HELTON v. NEV. VOTERS FIRST PAC (BALLOT ISSUE)
Related Cases
concern with logrolling in this context cannot be separated from the single- subject requirement—the mere fact that an initiative petition proposes more than one change does not automatically mean the proponents are guilty of logrolling, provided that the changes are functionally related and germane to each other and the initiative petition’s subject or purpose. To conclude otherwise would only serve to frustrate the people's initiative power. Here, as described above, the two changes are necessarily connected to each other and the initiative’s subject. And Helton acknowledges that it is impossible to determine which of the two changes is the primary, and thus, the more popular, change proposed. It thus does not appear that the proponents are trying to hide an unrelated and unpopular change within the initiative petition with the hope that the electorate decides the more popular change is worth the adoption of the less popular one. We are not the only court to have considered whether an initiative petition proposing open primavies and a ranked-choice general election complies with a single-subject requirement. In Meyer v. Alaskans for Better Elections, the Supreme Court of Alaska rejected a singie-subject challenge to a similar initiative petition. 465 P.3d 477, 499 (Alaska 2020). The Alaska court concluded that the proposed changes “relate to the elections process and share the common thread of reforming current election laws.” Jd. In fact, the Alaska court noted that the changes establishing open primaries and ranked-voting general elections are clearly interrelated “because they together ensure that voting does not revert toa two-candidate system.” Jd. We find the Alaska court’s analysis persuasive SupREME Court OF NEVADA £© (Q) 19974 and supportive of our conclusion that the BVN Initiative’s two proposed changes comply with Nevada's single-subject requirement.? Thus, we conclude that even though the BVN Initiative proposes two changes, because those changes are functionally related and germane to each other and the subject of the framework of how specified officeholders are presented to voters and elected, the initiative does not violate the single-subject requirement.® Accordingly, we conclude the district court did not err in rejecting Helton’s request for injunctive relief based on a violation of the single-subject requirement. 4While we recognize that Alaska’s single-subject requirement is slightly different from our own, Meyer, 465 P.3d at 484, 498, we find Meyer to be persuasive in this instance. ‘Our dissenting colleagues, citing to Nevadans for Property Rights, 122 Nev. at 902, 141 P.3d at 1241, have opined that if changes in an initiative petition could be brought in two separate petitions, then the single-subject requirement demands that they be so brought. We disagree. Nevadans for Property Rights held only that bringing multiple subjects in a single initiative petition was improper, and such holding did not violate the people’s initiative rights because a second subject can be addressed by creating a second petition. Id. A subject is decidedly different than a change. A subject is the overall thing being discussed, whereas a change is the alteration or modification of existing law. See Subject, Black’s Law Dictionary (11th ed. 2019) (defining “subject” as “[t]he matter of concern over which something is created”); Change, Merriam-Webster’s International Dictionary of the English Language (2d ed. 1959) (defining “change” as to alter or “to make different in some particular” way, among other definitions). Here, the initiative’s proposed changes are functionally related and germane to each other and the initiative’s subject and are therefore in accord with NRS 295.009 and our holding in Nevadans for Property Rights. SUPREME COURT OF NEVADA 10 (0) 147A <> aS RTT The description of effect complies with NRS 295.009 Next, Helton argues that the BVN Initiative’s description of effect is legally insufficient because it misstates or neglects to mention many of its most significant ramifications. Specifically, Helton asserts that the description of effect (1) fails to address party affiliation and how the party listed on the ballot next to the candidate’s name does not indicate support from that party; (2) minimizes the changes to the general election by inaccurately stating that currently a candidate must receive 50% of the vote to win, when Nevada has a plurality-to-win system; (8) fails to mention that if a voter does not rank all of the candidates, their vote may not count; and (4) fails to address the training and voter outreach necessary for polling officials and the public to understand the new system. NRS 295.009(1)(b) requires that each signature page of an initiative petition include a description of the initiative’s effect that is “not more than 200 words.” The description of effect “facilitates the constitutional right to meaningfully engage in the initiative process by helping to prevent voter confusion and promote informed decisions.” Las Vegas Taxpayer, 125 Nev. at 177, 208 P.3d at 437 (internal quotation marks omitted). A description of effect “must be a straightforward, succinct, and nonargumentative summary of what the initiative is designed to achieve and how it intends to reach those goals.” Educ. Initiative PAC v. Comm. to Protect Nev. Jobs, 129 Nev. 35, 37. 293 P.3d 874, 876 (2013). Because the description of effect is limited to only 200 words, it “cannot constitutionally be required to delineate every effect that an initiative will have; to conclude otherwise could obstruct, rather than facilitate, the people’s right to the initiative process.” Jd. at 37-38, 293 P.3d at 876. Further, “[i]n determining whether a ballot initiative proponent has complied with NRS 295.009, it is not the function of this court to judge the wisdom of the proposed initiative.” SupPREME Court OF Nevapa 1d (0) 197A Id. at 41, 293 P.3d at 878 (internal quotation marks omitted). The opponent of the initiative bears the burden of demonstrating that the description of effect is insufficient. Id. at 42, 293 P.3d at 879. Helton did not meet his burden of demonstrating the description of effect included in the initiative petition is statutorily inadequate. Because the statute limits the description of effect to 200 words, the description necessarily will be short and will not address or thoroughly explain every provision in, or possible ramification of, the initiative. The description of effect included with the BVN Initiative petition briefly, but clearly and nonargumentatively, summarizes the initiative petition’s provisions and how those provisions will achieve the initiative’s goal. We address Helton’s specific arguments below. First, Helton suggests that the description of effect does not adequately explain the effect of the change to the primary election system, particularly with respect to the candidates self-identifying their political party. The description of effect provides that the BVN Initiative “eliminat[es] partisan primaries’ so that all candidates and voters can participate in the primary election “regardless of party affiliation or non- affiliation.” This is a succinct and nonargumentative way of explaining the elimination of partisan primaries, which puts the public on notice of the change. And contrary to Helton’s suggestion, we believe the public is smart enough to understand that when a candidate self-designates a party preference, this does not mean that party has chosen or endorsed the candidate. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 454 (2008) (“There is simply no basis to presume that a well-informed SupREME Court OF NEVADA 12 (Q) 197A electorate will interpret a candidate’s party-preference designation to mean that the candidate is the party’s chosen nominee or representative or that the party associates with or approves of the candidate.”). Next, Helton argues that the description of effect is misleading because it states that “traditionally, a candidate receiving first-choice votes of more than 50% wins.” It is true that under Nevada’s current plurality voting system, a candidate may win by receiving the most votes even if their total number of votes does not exceed 50%. But it is also true that under the plurality system, a candidate who receives more than 50% of the vote is the winner. Thus, even though there may have been a better way to explain Nevada’s current plurality system and the ways in which ranked-choice voting would change that system, we are not convinced that the description here does such a poor job that it violated NRS 295.009(1)(b), particularly given the statute’s 200-word limit. See Las Vegas Taxpayer, 125 Nev. at 183, 208 P.3d at 441 (explaining that an initiative’s “summary and title need not be the best possible statement of a proposed measure’s intent” (internal quotation marks omitted)). Because the description of effect is not incorrect in its statement that currently a candidate who receives 50% of the vote wins, the description of effect is not misleading in this respect. Lastly, Helton argues that the description of effect is inadequate because it fails to mention what happens when a voter does not rank all of the candidates (their vote may not count) and does not address the training and outreach that may be necessary to educate people on the new system. Just as we believe the public is smart enough to understand what it means when a candidate self-designates his or her party affiliation, we believe the public is smart enough to understand that with ranked- SuprREME Court OF NEVADA 1 3 (0) 147A choice voting, if all the candidates a voter ranked are eliminated, that voter’s vote will not go toward any of the remaining candidates the voter did not rank. Additionally, while some voter education may be required if voters approve the initiative petition, that education is not what the initiative petition is designed to achieve or how the initiative petition intends to reach its goals. It therefore need not be included in the description of effect. See Educ. Initiative, 129 Nev. at 37, 293 P.3d at 876 (explaining that the description of effect is intended to summarize “what the initiative is designed to achieve and how it intends to reach those goals). Given the 200-word limitation on the description of effect, the omission of these two points cannot invalidate the entire initiative. See id. at 38, 293 P.3d at 876 (providing that an initiative proponent “cannot constitutionally be required to delineate every effect that an initiative will have’). With so few words in which to explain the effect of an initiative petition, a challenger will always be able to find some ramification of or provision in an initiative petition that the challenger feels is not adequately addressed in the description of effect.6 That is why the sufficiency of a 6Our dissenting colleagues have opined that the majority has relaxed the standard for initiative descriptions of effect. We disagree. The description of effect must be evaluated in the context of its word limit and its purpose. The word limit necessarily restricts the amount of detail that can go into the description, and judicial review must account for the inherent limitations occasioned by that. The purpose of the description of effect is to inform signatories to the initiative petition about the petition’s subject. It does not serve as the full, detailed explanation, including arguments for and against, that voters receive prior to a general election. To that end, as we noted in Education Initiative, the description of effect does not need to address every possible effect of an initiative, especially since once enough signatures have been gathered to place the initiative on the ballot, the Secretary of State will draft a neutral summary of the Supreme Court OF NevaDA (0) 1947A R= 14 description of effect depends not on whether someone else could have written it better but instead on whether, as written, it is “a straightforward, succinct, and nonargumentative summary of what the initiative is designed to achieve and how it intends to reach those goals.” Jd. at 37, 293 P.3d at 876. Helton has not demonstrated that the BVN Initiative’s description of effect fell short of that standard. Accordingly, we conclude the district court did not err in denying Helton’s request for injunctive relief based on an insufficient description of effect. Helton failed to demonstrate the BVN Initiative proposes a change requiring an appropriation or the expenditure of money Lastly, Helton contends that the BVN Initiative must be invalidated because the changes it proposes will require the expenditure of money and the petition includes no provisions to fund that expenditure, which violates Article 19, Section 6 of the Nevada Constitution. The district court concluded that Helton’s assertion that the BVN Initiative would require an expenditure of money to implement was unsupported speculation. As we have explained above, the burden of demonstrating the invalidity of an initiative falls on the challenger. Las Vegas Taxpayer, 125 Nev. at 176, 208 P.3d at 436. Below, Helton offered some references to the expected costs to implement similar changes in Alaska and New York City, but he did not provide any evidence regarding the expected costs to make the proposed changes to the Nevada election system. And although Helton initiative, which does not have a word limit, and committees will draft arguments for and against the passage of the initiative, both of which will be placed on the ballot, instead of the description of effect. Id. at 40, 42, 298 P.3d at 878-79. SupREME Court OF NEVADA 15 (0) 147A EEE Supreme Court OF NEVADA (0) 147A 2 narrow the subject sufficiently to comply with the _ single-subject requirement. Such application of the single-subject requirement is flawed. A court should not first determine that the proposed changes are related enough that they should be permitted to proceed together and then search for an overarching subject that covers both the changes. Indeed, the court should not need to search for an appropriate subject, as the subject should be clear from the initiative petition’s textual language and description of effect. See id. at 180, 208 P.3d at 439 (explaining that in determining an initiative’s subject, a court will look to the text of the initiative petition, the proponent’s arguments, and whether the description of effect articulates an overarching subject). In this case, any reader of the BVN Initiative and its description of effect would not be able to discern a clear, single subject, and any effort to describe what the initiative proposes inevitably involves describing two distinct changes—open primary elections and ranked-choice voting in the general election. It is not for the court to divine a subject for the initiative, particularly when it results in selecting a topic as broad as “the framework by which specified officeholders are presented to voters and elected.” In my view, this is simply too broad to satisfy the purpose of NRS 295.009’s single-subject rule. Additionally, in its application of the single-subject requirement, the majority ignores the purpose behind that requirement. NRS 295.009’s single-subject requirement was adopted to ensure the electorate was not presented with confusing or misleading petitions by limiting each initiative petition to a single subject. See Nevadans for the Prot. of Prop. Rights, Inc. v. Heller, 122 Nev. 894, 906, 141 P.3d 1235, 1243 (2006) (providing that the purpose behind the requirement was “preventing the public from being confronted with confusing or misleading petitions and SupREeME Court OF NEVADA 3 (0) 197A The description of effect was inadequate I also disagree with the majority’s conclusion that the description of effect was adequate. A description of effect “must be a straightforward, succinct, and nonargumentative summary of what the initiative is designed to achieve and how it intends to reach those goals.” Educ. Initiative PAC v. Comm. to Protect Nev. Jobs, 129 Nev. 35, 37, 293 P.3d 874, 876 (2013). The description of effect fails to state what the initiative is designed to achieve. While it discusses the two separate changes proposed, it never states the goal those changes are designed to achieve. A signatory of any initiative petition must understand the initiative’s goal before assigning his or her signature to the petition. A signatory to the BVN Initiative could read the description of effect multiple times and still not understand what goal the initiative intends to achieve. This alone renders the description of effect inadequate. Furthermore, I find the majority’s analysis of the description of effect concerning. The majority appears to be relaxing the standard for descriptions of effect because of some preconceived notion that it would be difficult to comply with that standard within the statutory 200-word limit. The brevity of the description of effect does not grant initiative proponents the right to hide the goals of the initiative petition or mislead the public on how the initiative seeks to fulfill those goals. If the majority is concerned with the word-limit for descriptions of effect, that is an issue better addressed by the Legislature. The statute requires descriptions of effect to have no more than 200 words, and many initiative proponents have capably met the standard for descriptions of effect in 200 words or less. NVF’s inability to do so was likely due to the initiative petition embracing more than one subject and being too complex to be sufficiently addressed in so SupREME Court OF NEVADA 7 (0) 197A few words. We cannot relax the standard for what is included in a description of effect merely because an initiative proponent has presented an initiative too complex to be addressed in 200 words or less. For the reasons stated above, I disagree with the majority’s decision. The BVN Initiative fails to comply with the single-subject requirement. Additionally, its description of effect is inadequate. I would reverse and remand this matter to the district court to enter an order enjoining the Secretary of State from placing the BVN Initiative on the ballot. Cadish We concur: i Aa Lasky 3 Hardesty Cnr ot. Stiglich SupREME Gourt OF NevaDA (0) 19470 GER