HELTON v. NEV. VOTERS FIRST PAC (BALLOT ISSUE)

. 188 Nev., Advance Opinion 4 5
IN THE SUPREME COURT OF THE STATE OF NEVADA
NATHANIEL HELTON, AN No. 84110
INDIVIDUAL,
Appellant,
vs. *
NEVADA VOTERS FIRST PAC, A FILED :
NEVADA COMMITTEE FOR =
POLITICAL ACTION; TODD L. BICE, “ "JUN 28 20223
IN HIS CAPACITY AS THE
PRESIDENT OF NEVADA VOTERS CLERIOF wale
FIRST PAC; AND BARBARA K. BY free pEROTVOLERK
CEGAVSKE, IN HER CAPACITY AS
NEVADA SECRETARY OF STATE,
Respondents.
Appeal from a district court order denying a challenge to a
ballot measure. First Judicial District Court, Carson City; James K. Wilson,
Judge.
Affirmed.
Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP, and Bradley 8. Schrager,
John Samberg, Daniel Bravo, and Eric Levinrad, Las Vegas; Elias Law
Group LLP and Marc E. Elias and Elisabeth C. Frost, Washington, D.C.;
Elias Law Group LLP and Lindsay McAleer, Seattle, Washington,
for Appellant.
Aaron D. Ford, Attorney General, Craig A. Newby, Deputy Solicitor
General, and Laena St-Jules, Deputy Attorney General, Carson City,
for Respondent Secretary of State.
Pisanelli Bice PLLC and Todd L. Bice, Jordan T. Smith, and John A. Fortin,
Las Vegas,
for Respondents Nevada Voters First PAC and Todd L. Bice.
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BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, HERNDON, J.:
The Nevada Constitution guarantees to the people the power to
propose legislation and constitutional amendments by initiative petition.
Initiative petitions are subject to several requirements, some set forth in
statute and some set forth in Article 19 of the Nevada Constitution. In this
appeal, we address three of them: the single-subject requirement, the
description-of-effect requirement, and the funding requirement for a
proposal that makes an appropriation or requires the expenditure of money.
First, we clarify that even if an initiative petition proposes more than one
change to Nevada law, it may still meet the single-subject requirement,
provided that the proposed changes are functionally related and germane
to each other and a single subject. The initiative petition at issue here
meets that requirement. Although it proposes two changes (open primary
elections and ranked-choice general elections for specified officeholders),
both changes are functionally related and germane to each other and the
single subject of the framework by which specified officeholders are
presented to voters and elected. Second, we conclude that the initiative
petition’s description of effect is straightforward, succinct, and
nonargumentative. Finally, we conclude that appellant failed to
demonstrate that the proposal requires the expenditure of money without
providing a funding source. Thus, we affirm the district court’s order
rejecting appellant’s complaint challenging the initiative petition.
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FACTS AND PROCEDURAL HISTORY
Respondent Nevada Voters First PAC (NVF) seeks to place the
Better Voting Nevada Initiative (BVN Initiative) on the ballot for the
upcoming general election. If approved by voters, the BVN Initiative would
add two sections to Article 15 of the Nevada Constitution. One of the
proposed new sections addresses primary elections for partisan offices.! It
would change Nevada’s primary elections for partisan offices so that any
voter could vote in the primary, regardless of party affiliation, and the top
five candidates from the primary would proceed to the general election. On
the ballot, the name of the political party with which the candidate is
registered would appear next to the candidate’s name, and if the candidate
is not registered with a political party, the words “no political party” would
appear. Further, if there is a tie for fifth place, “the candidate who proceeds
to the general election for partisan office [would] be decided by lot.” The
other new section addresses general elections for partisan offices. It would
change those elections to a ranked-choice voting format in which voters
would rank the candidates by preference. If one candidate does not get more
than 50% of the first-choice votes, the candidate with the lowest number of
first-choice votes would be eliminated and the second-choice votes of his or
her voters would be counted. This tabulation process would continue in
rounds until one candidate gets more than 50% of the votes and is declared
the winner.
'The BVN Initiative defines partisan offices as (1) U.S. Senator,
(2) U.S. Representative, (3) Governor, (4) Lieutenant Governor, (5) Attorney
General, (6) Secretary of State, (7) State Treasurer, (8) State Controller, and
(9) State Legislators.
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The following description of effect appears on the signature
pages for the petition:
If enacted, this initiative changes Articles 5 and 15
of Nevada’s Constitution for Congressional,
Governor, Lieutenant Governor, Attorney General,
Secretary of State, Treasurer, Controller and State
Legislator elections, eliminating partisan
primaries and establishing an open _ top-five
primary election and a rank-choice voting general
election.
For these offices, all candidates and voters
participate in a single primary election regardless
of party affiliation or non-affiliation. The top five
finishers advance to the general election, and the
general election winner is determined by rank-
choice voting:
e General election voters rank the candidates
in order of preference from first to last, if they
wish to rank more than their first preference.
e As traditionally, a candidate receiving first-
choice votes of more than 50% wins.
e Ifno candidate is the first choice of more than
50%, the candidate with the fewest votes is
eliminated. And each voter who had ranked
the now-eliminated candidate as their first
choice, has their single vote transferred to
their next highest choice candidate.
e This tabulation process repeats until the one
candidate with more than 50% support is
determined as the winner.
The Legislature must adopt implementing
legislation by July 1, 2025.
Appellant Nathaniel Helton filed a complaint challenging the
BVN Initiative and seeking to enjoin respondent Secretary of State from
placing the BVN Initiative on the 2022 general election ballot. The district
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court rejected Helton’s challenge, concluding that (1) the BVN Initiative
embraces a single subject, (2) there is nothing misleading in the description
of effect, and (3) there was no evidence the BVN Initiative creates an
unfunded mandate for the expenditure of money.? Helton now appeals.
DISCUSSION
Courts will consider challenges to an initiative petition
preelection in limited circumstances, such as when those challenges are
based on the petition’s compliance with the single-subject requirement, the
statutory requirement for the description of effect, or the preclusion against
unfunded mandates. Herbst Gaming, Inc. v. Heller, 122 Nev. 877, 883-84,
141 P.3d 1224, 1228 (2006). The party challenging the initiative petition
bears the burden of demonstrating the proposed initiative is clearly invalid.
See Las Vegas Taxpayer Accountability Comm. v. City Council of Las Vegas,
125 Nev. 165, 176, 208 P.3d 429, 436 (2009) (holding that the party
challenging a ballot measure “bear[s] the burden of demonstrating that the
measures are clearly invalid”). Because the district court resolved the
challenge to the initiative in the absence of any factual dispute, our review
is de novo. Nevadans for Nev. v. Beers, 122 Nev. 930, 942, 142 P.3d 339, 347
(2006).
The BVN Initiative complies with the single-subject requirement
Helton argues that the BVN Initiative violates the single-
subject requirement because it presents two separate policy changes that
2The district court required Helton to provide an alternate description
of effect. Because Helton does not argue on appeal that his proposed
description of effect should be used and because this court need only
consider the validity of NVF’s description of effect, we need not consider
Helton’s proposed description of effect.
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could be brought in separate initiative petitions: (1) nonpartisan open
primaries and (2) general election ranked-choice voting. He contends each
change is so distinct that any characterization of the petition’s subject
would have to be excessively general to encompass both changes. Further,
he asserts that by including two separate policy changes, the petition
improperly logrolls them to improve the chance that voters will approve
both. We disagree and clarify that even if an initiative petition proposes
more than one change, each of which could be brought in separate initiative
petitions, the proper consideration is whether the changes are functionally
related and germane to each other and the petition’s subject.
NRS 295.009(1) provides that “[e]ach petition for initiative or
referendum must...[e]mbrace but one subject and matters necessarily
connected therewith and pertaining thereto.” Subsection 2 of that statute
explains that an initiative “embraces but one subject and matters
necessarily connected therewith and pertaining thereto. if the parts of the
proposed initiative ...are functionally related and germane to each other
in a way that provides sufficient notice of the general subject of, and of the
interests likely to be affected by, the proposed initiative.” NRS 295.009(2).
The single-subject requirement “facilitates the initiative process by
preventing petition drafters from circulating confusing petitions that
address multiple subjects.” Nevadans for the Prot. of Prop. Rights, Inc.'v.
Heller, 122 Nev. 894, 902, 141 P.38d 1235, 1240 (2006). Thus, “the single-
subject requirement helps both in prometing informed decisions and in
preventing the enactment of unpopular provisions by attaching them to
more attractive proposals or concealing them in lengthy, complex initiatives
(t.e., logrolling).” Las Vegas Taxpayer, 125 Nev. at 176-77, 208 P.3d at 436-
a7,
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In considering single-subject challenges, the court must first
determine the initiative’s purpose or subject and then determine if each
provision is functionally related and germane to each other and the
initiative’s purpose or subject.? See Nevadans for Prop. Rights, 122 Nev. at
907-09, 141 P.3d at 1243-45; Las Vegas Taxpayer, 125 Nev. at 180, 208 P.3d
at 439. “To determine the initiative’s purpose or subject, this court looks to
its textual language and the proponents’ arguments.” Las Vegas Taxpayer,
125 Nev. at 180, 208 P.3d at 489. The court also will look at whether the
description of effect articulates an overarching purpose and explains how
provisions relate to a single subject. Jd.
The BVN Initiative’s single subject is the framework by which
specified officeholders are presented to voters and elected. The purpose
articulated by the description of effect and the textual language in the BVN
Initiative support this characterization of the initiative’s subject. This
subject is distinctly different from, for instance, the mechanics of how voters
vote, which would include early voting, absentee ballots, machine voting,
and paper ballots, among other things. Thus, this subject is not excessively
broad given that the initiative’s proposals only apply to the framework of
the election of partisan officeholders as defined in the initiative petition.
3Our dissenting colleagues express concern with how the majority has
characterized the subject of the initiative petition, implying that the
majority first determined the interrelation of the proposed changes and
then sought to identify a subject. This concern is unwarranted. Under our
de novo review process, we start anew in evaluating the initiative petition
and it is our obligation to first independently identify the subject, not just
adopt the argument of one party or tne other. Here, our detailed review
revealed the subject to clearly be as we've stated, which is the framework
under which certain candidates for office are presented to voters and
elected.
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Having identified the BVN Initiative’s subject, we next consider whether
each provision of the initiative petition functionally relates and is germane
to each other and that subject.
Both changes proposed in the BVN Initiative concern the
election process in Nevada and more specifically how candidates for the
specifically defined partisan offices are presented to voters and elected. The
fact that the two changes concern different steps in that process—the
primary election and the general election—does not make them two
separate subjects. Further, the changes are functionally related and
germane to each other in that they work together to reform Nevada’s
election process and the effectiveness of one change would be limited
without the other. For example, absent the open-primary change, the
ranked-choice-voting change would have little practical effect because the
closed primary system makes it more likely that voters would have only two
candidates to choose from in the general election—the candidates selected
by the two major parties in the closed primary election—such that voters
would have no need to rank the general election candidates beyond their
first choice. Thus, the changes are necessarily connected and pertaining to
each other and to the subject of how specified officeholders are presented to
voters and elected.
Additionally, although the petition proposes two changes, they
do not constitute logrolling because they are interrelated. As it has been
described in connection to the single-subject requirement, logrolling “occurs
when two or more completely separate provisions are combined in a petition,
one or both of which would not obtain enough votes to pass without the
other.” Nevadans for Prop. Rights, 122 Nev. at 922, 141 P.3d at 1254(Hardesty, J., concurring and dissenting) (emphasis added). Thus, our
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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
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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.
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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.”
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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
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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-
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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
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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.
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474, 476, 635 P.2d 276, 277 (1981) (explaining that this court’s review is
limited to the record made in and considered by the district court). Helton’s
failure to provide evidence showing that the proposals in the BVN Initiative
require the expenditure of money defeats his argument in this regard.
Accordingly, we conclude the district court properly denied Helton’s
unfunded-mandate challenge to the BVN Initiative.
CONCLUSION
The district court did not err in denying Helton’s challenge to
the BVN Initiative and his request for an injunction preventing the
Secretary of State from placing the BVN Initiative on the ballot. An
initiative petition may propose more than one change if those changes are
functionally related and germane to each other and the initiative’s subject.
Because the BVN Initiative’s proposed 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. Further, as the BVN Initiative’s
description of effect is a straightforward, succinct, and nonargumentative
summary of the goals the initiative is designed to achieve and how it intends
to reach those goals, it has met the statutory requirements for a description
16
of effect. Lastly, Helton has not demonstrated the BVN Initiative proposes
a change that requires the expenditure of money. Accordingly, we affirm
the district court’s order denying Helton’s complaint for injunctive relief.
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Nev. 165, 179, 208 P.38d 429, 488 (2009) (quoting the purported single
subject articulated by appellants in that matter). That initiative required
voter approval of certain City of Las Vegas lease-purchase agreements and
also substituted in the voters as the legislative body that oversees
redevelopment projects. Jd. at 170, 208 P.3d at 482. This court concluded
that because the articulated single subject was excessively general, and
because there was not a clear overarching purpose connecting the
initiatives two provisions. the initiative violated the single-subject
requirement. Id. at 180-82, 208 P.3d at 439-40. The subject of the BVN
Initiative (how specified officeholders are elected) is similarly excessively
general, and it is impossible to determine a clear overarching purpose. No
matter how many times one reads the BVN Initiative, one cannot discern
which of the two changes is the initiative’s primary purpose.
The majority even recognizes that NVF’s proposed subject is
insufficient to comply with the single-subject requirement, as the majority
fashioned its own subject for the BVN Initiative: the framework by which
specified officeholders are presented to voters and elected. In doing so, the
majority had to stretch to find a broad enough subject to cover both distinct
proposed changes to Nevada’s election process, while also attempting to
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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
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(0) 197A 465 P.3d 477, 499 (Alaska 2020), is misplaced. That matter
concerned an initiative that sought to “(1) replac[e] Alaska’s current party-
based primary system with an open, nonpartisan primary; (2) establish[ ]
ranked-choice voting in general elections; and (3) adopt[] new disclosure
and disclaimer requirements for independent expenditure groups and their
donene® Id. at 490. The Alaska court applied Alaska’s single-subject test
and concluded all three provisions fell under the single subject of election
reform. Id. at 499. However, Alaska’s single-subject standard is much more
relaxed than Nevada’s standard. Alaska only requires the provisions to be
“logically or in popular understanding” germane to one general subject. Jd.
at 484, 498 (internal quotation marks omitted). Nevada requires the
provisions to be “functionally related and germane to each other in a way
that provides sufficient notice of the general subject.” NRS 295.009(2). The
Alaska court specifically rejected narrowing its single-subject requirement
to require the provisions to be functionally related. Meyer, 465 P.3d at 496
(declining an interpretation of the single-subject test which would require
subjects to be functionally connected as opposed to “merely ... germane”)
(omission in original). Even under the majority’s single-subject analysis,
the initiative petition considered in Meyer would not meet Nevada’s single-
subject test because its three proposed changes are not functionally related.
Thus, Meyer is unpersuasive here, and this court is under no obligation to
follow it.
Because the BVN Initiative includes more than one subject, I
would reverse the district court’s decision that it meets Nevada’s single-
subject requirement.
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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
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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
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