MINUTES OF THE ASSEMBLY COMMITTEE ON ELECTIONS AND PROCEDURES Sixty-eighth Session April 20, 1995 The Committee on Elections and Procedures was called to order at 3:40 p.m., on Thursday, April 20, 1995, Chairman Giunchigliani presiding in Room 331 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Jack D. Close, Chairman Ms. Chris Giunchigliani, Chairman Mrs. Joan A. Lambert, Vice Chairman Mr. Richard Perkins, Vice Chairman Mr. Dennis L. Allard Mr. Joseph E. Dini, Jr. Mrs. Jan Evans Mr. Thomas A. Fettic Mr. David E. Humke Mrs. Jan Monaghan Mr. Bob Price COMMITTEE MEMBERS EXCUSED: Mrs. Vivian L. Freeman GUEST LEGISLATORS PRESENT: Assemblyman Thomas Batten, District No. 27 Justice Cliff Young, Nevada Supreme Court Assemblyman Larry L. Spitler, District No. 41 Assemblywoman Marcia de Braga, District No. 35 STAFF MEMBERS PRESENT: Mr. Robert Erickson, Research Director OTHERS PRESENT: Ms. Thelma Clark/Nevada Coalition of Senior Citizens Mr. Dale Erquiaga/Chief Deputy Secretary of State Ms. Kathyrn McClain/Legislative Analyst, Clark County Manager's Office Mr. Alan Glover/Carson City Clerk/Recorder Ms. Leola Armstrong/Executive Director, Common Cause Nevada Ms. Marlene Henderson/Washoe County Registrar of Voters Ms. Lucille Lusk/Nevada Concerned Citizens ASSEMBLY JOINT RESOLUTION 24 - Proposes to amend Nevada constitution to provide for election of chief justice by justices of supreme court. Assemblyman Thomas Batten, District No. 27, sponsor of A.J.R. 24, introduced Justice Cliff Young, and explained A.J.R. 24 dealt with the selection of Chief Justice of the Supreme Court of Nevada. He submitted background information on the legislation (Exhibit C) and offered general asides. The majority of states select their Chief Justice by electing their justice within their own body of justices. If a Chief Justice is selected by lot and he does not wish to be a Chief Justice, he has no choice, he has to be Chief Justice. Assemblywoman Giunchigliani asked for the year it was on the ballot, and Assemblyman Batten related it was on the ballot in 1991, and it passed 1989 and 1991 sessions. Assemblyman Batten, responding to Assemblyman Allard's question, explained under the current system, the justice must accept the Chief Justice position whether he wants it or not. Justice Cliff Young, member of the Supreme Court, assumed the testimonial table and told committee he was appearing in support of A.J.R. 24. The office of Chief Justice was becoming more complicated with each passing year as the state grew, he explained. He felt the Chief Justice should be someone who wanted the job and was willing to serve on the job. He cited the legislation also changed the term to four years from two years. Assemblyman Allard asked how duties of the Chief Justice differed from duties of the other justices. Justice Young responded to Assemblyman Allard's inquiry by explaining when people wanted to contact someone in the Supreme Court, they did not want to see an Associate Justice; they always wanted to speak with the Chief Justice. When someone wanted a speech made, they always wanted the Chief Justice. He informed the Chief Justice had no more power as far as voting was concerned. He referenced Section VI, Article 19, which stated the Chief Justice shall be the administrative head of the Judicial system. Admitting he was not sure what that meant, Justice Young said he felt the Constitution should be amended to read the Court had clear supervision over the justice courts, the muni courts, and the district courts. That was not recognized, particularly of the district courts, at the present time. The Chief Justice is a figurehead, but he is a spokesman for the other members of the Court, and the Court tries to act by consensus, Justice Young continued, and stated his practice and the practice of Chief Justice Steffen was to get a vote of the court before acting as a spokesman for the Court. Justice Young, responding to a question by Assemblyman Allard, discussed liberal and conservative philosophy. The justices tried to decide on the basis of prior decisions and interpretation of what the legislature had mandated in statutes, Justice Young informed. Assemblyman Fettic and Justice Young discussed continuity of the Chief Justice, and Justice Young said in areas of the country where Chief Justices had more tenure, the courts were stronger. Assemblyman Close asked for Justice Young's opinion as to the philosophy of the electorate when the legislation had been voted down. Justice Young declared the public relations program was less than desirable in recent years, and there was no leadership on the part of the Court to sell the program. There being no further testimony, Chairman Giunchigliani closed the hearing on A.J.R. 24. ASSEMBLY BILL 365 - Makes various changes relating to elections. Assemblyman Larry L. Spitler, District No. 41, sponsor of A.B. 365, announced he would be addressing Section 7 and would explain the details on only that section. Ms. Thelma Clark, Nevada Coalition of Senior Citizens, accompanied Assemblyman Spitler to the testimonial table, and Assemblyman Spitler told committee Ms. Clark would speak on all other sections of A.B. 365. He first informed page 3, line 17, recommended change would need to be amended to remain at 30 feet. Assemblyman Spitler then discussed Section 7, lines 6 through 27. He spoke concerning a situation which began when one of his constituents received a letter from the Election Department Registrar of Voters, stating she could not vote. The letter said the constituent had been challenged. At that time, 388 votes were challenged, he said, and over six precincts were impacted. An official letter from the Registrar of Voters was almost like a letter from the Internal Revenue Service, he articulated. The letters were frightening, intimidating, and in language that survives legal challenge. The letters are not user-friendly pieces of correspondence, he further declared. Continuing his experience, Assemblyman Spitler conveyed he went to the Election Department and asked for names of all the people in his district who had been challenged. There were 366 names. The list, purchased by one of Mr. Spitler's opponents, dropped the last number of the apartment numbers on the addresses. The area had 2200 apartments, and if the address had no apartment number, the mail was returned to the sender. Mr. Spitler and his assistants used the telephone to inform people the mail was a challenge and not a denial of their right to vote. The address was usually correct but approximately one third of the phone numbers had been changed, or, for some reason, the person could not be found. The timing of the challenges did not allow for another mailing, Mr. Spitler explained. Mr. Spitler detailed the problems encountered by his assistants in trying to locate voters and the obstacles and length of time required to obtain the information from the Elections Department. Mr. Spitler believed a person had a right to challenge, and he did not wish to minimize that right. He, however, did ask that the challenge be signed and verified by the registered voter and include the name, address and telephone number of the person whose right to vote was challenged as that information appeared on the list described in N.R.S. 293.440. The information should include the precinct in which the person whose right to vote was challenged, the name, address and telephone number of the registered voter who filed the challenge, the precinct in which the person filing the challenge is registered to vote, the date of the challenge and the grounds for the challenge. A.B. 365 makes it very clear that challenging is a serious business, he said. Assemblyman Spitler concluded his presentation by asking the committee for support of Section 7 of A.B. 365. Chairman Giunchigliani asked if Assemblyman Spitler thought the letter from the Registrar of Voters should also include the statement, "Just because you have been challenged, does not mean your right to vote has been taken. You may bring "x" kind of information with you." Assemblyman Spitler thought the amendment would be a good one. Assemblyman Price pointed out page 4, beginning at line 14, "The challenge must be signed and verified by the registered voter and include the: (a) Name, address and telephone number." Assemblyman Price thought there would be occasions where a telephone number would not be available due to unlisted phone numbers, and he suggested the words, "telephone number if available". Assemblyman Spitler agreed it was a good point. Assemblyman Spitler then requested Ms. Thelma Clark, representing Nevada Coalition of Senior Citizens, review the remainder of A.B. 365 for the committee. Ms. Thelma Clark, at this time, recapped each section of A.B. 365 with the exception of Section 7 which had been reviewed by Assemblyman Spitler. Most of the changes on the recall petition came from a Supreme Court decision and the National Voter Registration Act of 1993, she told committee. On Section 4, page 3, line 17, Ms. Clark preferred the figure would be 500 feet from the entrance to the voting area. At this point in Ms. Clark's testimony, Chairman Giunchigliani interjected A.B. 18, which had already been passed by the committee, reinstated the 100 feet allowable after the Constitutional challenge. The 30 feet was left in place because it allowed for early voting where malls were being used for the election department. The Registrars of Voters from most of the counties felt that 30 feet in that instance was appropriate. It gave some flexibility, but the 100 feet would be in standard public areas. She explained that was the reason Mr. Spitler said A.B. 365 should go back to the 30 feet. Ms. Clark then continued her recap of A.B. 365. Following Ms. Clark's recap, she gave a description of another amendment which she stated she would like to have in the legislation. Wording was needed which would say, "when did we file the petition - when we filed for recall or when we submitted it?" The word "submitted" is in A.B. 365 instead of "filed", so the Supreme Court's reading was the petition was "filed" when the petition was actually "submitted", she clarified. Ms. Clark reiterated she did not have appropriate wording and did not know where to insert wording. Chairman Giunchigliani asked Ms. Clark to restate the problem which arose. Responding to Chairman Giunchigliani's request, Ms. Clark stated, "We filed the intent three days before the election, and the law said we had to use the last election. So when we filed our petition, it was 60 days later which was after the last election which made no sense to us because on the top of the petition the law tells you what has to be at the top. It says you have to have the reason you are recalling and the number of signatures you need. It has to have the name of the county and a few other things at the top." Mr. Dale Erquiaga, Chief Deputy Secretary of State, assumed the testimonial table with Ms. Clark, and responded to an inquiry from Chairman Giunchigliani. The right to recall was established by the Constitution, he explained, and it said one would circulate a petition, and this is what it would contain, then you would file that petition, and then you would have an election. Continuing his explanation, Mr. Erquiaga told committee the legislature had created in recall a notice of intent. One files a notice of intent to circulate a recall petition, and then the recall petition is circulated, Mr. Erquiaga explained. What the court held in the case Ms. Clark referred to, is because the notice of intent is a creature of statute, the constitutional time frame takes precedent. In 1992, the Notice of Intent was filed, for instance, in October. They received the number and began circulating. Then they filed the petition, and in that time, an election had been held. The court said that was the election from which the number of signatures should have been derived because the Constitution speaks only in terms of the preceding general election. It does not speak in terms of the notice of intent. Therefore, the only way to avoid that problem is to eliminate the statutory creature, the notice of intent, which this body created in the 1970's when the recall laws were redone. What the court has given in that ruling is a time during which one would not want to be trying to recall somebody because an election is about to occur that will change the number. So there is a period now backing out some days before a general election when it would be unwise to initiate a recall drive because the numbers will all change once that election occurs, and that is because of a notice of intent which is a creature of the statutes. Chairman Giunchigliani queried if it would be proper to have that included in the pamphlet for directions to those who wish to circulate. Mr. Erquiaga thought it would be very proper because the case had reached the Supreme Court and was the law of the land. Chairman Giunchigliani thought a Letter of Intent would suffice. Ms. Clark said the resolution would change the Constitution if the people voted for it. Then the Letter of Intent would not have to be changed again. Chairman Giunchigliani agreed and said the pamphlet would have to be adjusted based on Ms. Clark's statement. Chairman Giunchigliani clarified the section being repealed was in compliance with the National Voter Rights Act. Ms. Clark said there was another problem in the law which allowed a person to register to vote and file for office the same day. She asked if that could be reasonably legal and ethical. Chairman Giunchigliani told Ms. Clark it was legal and ethical, and it was based on residency versus registration. Mr. Erquiaga, responding to a situation related by Ms. Clark, said there were statutes which prohibited a candidate from changing parties at certain times. However, in the strictest interpretation of the Constitution, one need not even be a registered voter to seek office; one must simply be a qualified elector which is the Constitutional requirement to hold every public office in Nevada, he declared. The person must have reached the age of 18 and be a citizen of the United States, either naturalized or by birth. Residency was unrelated to voter registration, and was based on intent, not on whether or not you are registered. Ms. Clark announced she would like to do something about it, but did not know what. She asked if it was too late to obtain a study bill to study the entire law for the next session because the recall law was in every section of the law: 293, 294, 294b, 306, 293b, 294a and 295. Ms. Clark thought all of the recall law should be in one section. Chairman Giunchigliani cited overall there was a petition process and specific areas of petition process, and voter registration on who could actually secure the petition. Chairman Giunchigliani believed the pamphlet which the Secretary of State's office had published did a good job explaining in a lay person's terms. Mr. Erquiaga, responding to a question by Assemblywoman Lambert, clarified the National Act reads a state may not purge a voter for failure to vote without notifying that voter and giving the voter additional opportunities to appear. It does establish a way to purge a voter after two federal elections, he said, which is, in essence, what Nevada presently has. Every four years, a notice can be sent and then the voter would go on an inactive list. A voter whose name is on an inactive list can at any time reappear and activate his registration by that appearance at the polling place, so they will have to be dealt with as candidates. The registrars will have to deal with them when they appear at the polls. But after this time has elapsed, and after a certain number of notices and they have not appeared, they could ultimately be canceled. Therefore, the mechanism is there, but it is more cumbersome than the present one. Assemblywoman Lambert questioned if Nevada was dealing with it appropriately in Section 6. She pointed out Nevada was a transient state and would still be on the rolls which would complicate matters and add to the expense of the election. Mr. Erquiaga informed Sections 6 and 13 of A.B. 365 would appear in the Secretary of State's National Voter Registration bill in some form. The presidential purge would be repealed and NRS 293.540 would be changed in a variety of other ways. A few sections would set off conflict notices, and he asked committee to be prepared. Nothing Mr. Spitler outlined in the challenge section was contrary to National Voter Registration Act in any way, but the National Voter Registration Act bill would affect that same section of the statute. The National Voter Registration Act had required Nevada to do similar things or other things to the same sections. Chairman Giunchigliani asked if the Registrar of Voters, since they were maintaining an inactive list and any person could come forward and say, "I am still here," had to merge the two lists or could they be separated so that candidates could get clean lists thereby not driving up the cost of campaigning. Mr. Erquiaga clarified the federal act said the Registrar of Voters shall designate the voter who has failed to reply to a notice as inactive. The Secretary of State will ask this body for the power to define an inactive list by regulation. The office of Secretary of State would like to work with the F.E.C. to see exactly how far the Secretary of State's office can go in keeping those lists separate. Smaller counties would not be a problem. Clark County could be a huge problem because any time a voter moves and is sent a notice about whether or not he/she moved, if the voter fails to reply, he did not receive it, or just did not do it, the voter would be moved to the inactive list for four years and could not be purged. Therefore, Secretary of State's office will ask the body to define an inactive list to make it workable rather than try to do it by statute. Ms. Clark said except for a special proceeding under 306.040, which was the recall, they were exempted from having to pay for court costs. Assemblyman Price brought up the subject of recallers paying court costs which would be a chilling effect, and Mr. Erquiaga said Chapter 18 allowed for the award of attorney's fees, basically costs, and the way A.B. 365 was amended with a recall petition, you would not be able to do that. Chairman Giunchigliani clarified the bill would remove the chilling effect so that a voter had the opportunity to challenge. Ms. Clark then submitted newspaper clippings regarding the Motor Voter mandate. See (Exhibit D). Mr. Erquiaga brought to the attention of the committee in two different sections of the bill, on page 5, lines 24 and 25, and on page 6, lines 4 and 5, the bill drafter had removed the requirement that the documents be notarized. The rationale that the bill drafter expressed to Ms. Clark was cross-referencing with 293.172 earlier in the measure. Those were unrelated statutes as 306 is recall and 293.172 is minor parties. This was incorrect, and is a policy decision for committee to make, he noted. Every other petition must be notarized and affidavits must be notarized. This was a policy change, he advised. Chairman Giunchigliani thanked Mr. Erquiaga and stated committee would discuss the issue of notarization. Ms. Kathyrn McClain, Clark County Manager's office, testified she had received a fax from Kathryn Ferguson, Registrar of Voters for Clark County offering support for A.B. 365. She requested a copy of the amendments. Ms. McClain, at the request of Chairman Giunchigliani, outlined the amendments in the fax. See (Exhibit E). Mr. Alan Glover, Carson City Clerk/Recorder, testified in support of A.B. 365 and announced Section 7 should especially help everybody. He expressed the opinion A.B. 365 was good. He echoed Mr. Erquiaga's statements regarding the National Voter Registration Act and suggested committee might wish to deal with the purge which was ugly. Ms. Leola Armstrong, representing Common Cause, stated for the record Common Cause supported Section 7 of A.B. 365. Ms. Marlene Henderson, Washoe County Registrar of Voters, testified regarding Sections 1 through 3, she had asked for a B.D.R. The B.D.R. would give her more administrative time to implement and verify signatures. Last year six petitions were received, she said, and more people had to be hired. Budget does not allow for petitions since it was not known how many petitions her office would receive. This was an unfunded mandate for the Registrar's office, she said. (See Exhibit F). Chairman Giunchigliani said committee would review. Ms. Henderson stated National Voter Registration Act was hard to implement, and she supported her statement by giving examples of work procedures the Act required by her office. Chairman Giunchigliani pointed out Ms. Henderson's (Exhibit F) should be changed from Sections 7 and 8 to Sections 6 and 3. Chairman Giunchigliani closed the hearing on A.B. 365. ASSEMBLY BILL 457 - Prohibits former legislator from serving as lobbyist for one regular session after termination of service in legislature. Assemblywoman Marcia de Braga, District No. 35, prime sponsor of A.B. 457, explained A.B. 457 required legislators who would not be returning to the legislature as legislators, to sit out one session before becoming a lobbyist. Assemblyman de Braga began her presentation reading from prepared text. See (Exhibit G). She concluded her testimony by stating a cooling-off period would benefit both the process and the legislator turned lobbyist, and she urged committee support for A.B. 457. Responding to a question of advantage and disadvantage for a former legislator by Assemblywoman Monaghan, Assemblywoman de Braga stated she was most concerned with the advantage for the former legislator. Assemblywoman Monaghan suggested some relationships would be friendships with former legislators and some could be unfriendly relationships which would balance out. Assemblywoman de Braga disagreed and gave a scenario supporting her stance. Assemblyman Dini asked Assemblywoman de Braga if she could cite an example of abuse during the past two years. Assemblyman Dini gave an example from his own experience which negated her viewpoint. Assemblywoman de Braga agreed there were a lot of very good people this would not be a problem for, but the possibility still existed. She did not cite a specific example. Assemblywoman Evans said there were two sides - what actually happens and the perception of what happens and that even though there may not be a palpable advantage given to person "X", if people who visit the building say that person was just a legislator and now he or she is here as a lobbyist, they feel that there is a disadvantage. In the interim studies between 1993 and 1995, a number of interim studies were chaired by people who are now lobbyists or are out of office. They just barely leave their legislative work by a couple of months, and are already lobbyists. It contributes to a perception that this person has an edge and that it is not a level playing field. Mrs. Evans thought the bill was realistic. The cooling off period makes a lot of sense and is a very modest request, she conveyed. Assemblywoman Evans expressed a favorable stance on A.B. 457. Assemblyman Allard asked Assemblywoman de Braga her feelings about a lobbyist becoming a legislator without a cooling off period. Assemblywoman de Braga did not believe there was a similarity to her legislation. Assemblyman Price asked if she thought there was a difference between a professional contract lobbyist and an unpaid lobbyist. Assemblywoman de Braga stated primarily A.B. 457 was aimed at a paid lobbyist. Chairman Giunchigliani thought A.B. 457 equalized government employees and government public employees. She noted it was reported in the press that this meant someone had to be out four years. Discussion ensued between Assemblywoman de Braga, Chairman Giunchigliani, and Assemblyman Fettic regarding interpretations of the length of time. Assemblyman Close questioned page 1, Section 1, line 3, if the words, "No former legislator may act as a lobbyist...," meant "in the legislature" and asked if they could have their own private business as a lobbyist outside of legislature and never appear here. Assemblywoman de Braga said no because they would not personally appear and whatever alliances or aversions they had formed would not be carried on by their staff. Assemblywoman Lambert said while there was a great deal of turnover in the legislature, even if you would not be able to lobby until the 1999 session, there probably would still be people here in the 1999 session that were here this session. Assemblywoman de Braga pointed out it was required in other agencies. A.B. 457 only requires a cooling off period. She concluded her testimony by stating the legislators were not just coming right back with the same biases and hopefully they have calmed down from whatever it was or cooled off. Ms. Leola Armstrong, Executive Director, Common Cause Nevada, testified in support of A. B. 457 which, she noted, her organization also supported last legislative session. She began her presentation reading from prepared text (Exhibit H). Ms. Lucille Lusk, of Nevada Concerned Citizens, testified in opposition to A.B. 457, and stated there was a significant free speech issue in A.B. 457. She noted Mr. Price said that it included unpaid individuals, basically citizens who were exercising their citizenship rights by affiliating with a group and were required to register as lobbyists. She suggested adding the term "paid" before lobbyist. When a person has served in the legislature, she communicated, "we see no reason that service should require them to abdicate their ability to act in a full citizenship capacity." A lot of discussion has taken place about the advantages and disadvantages, she conveyed, but "we see them as the same as any other person who becomes involved in the process." Over time you work with people, you develop relationships, and some of those develop well and some do not. You have the advantages of whatever friendships you have developed, whatever party affiliations you may share, and the disadvantages of those that have not worked out so well. She asked committee if they did proceed, to not exempt state agencies and political subdivisions. You would create a real privilege class there. She concluded her testimony by stating in the final analysis, the responsibility for a vote lies with the legislator. The voting record stands with the legislator and should not be transferred to the responsibility of a lobbyist. She said it was stated that some of these provisions were in other places, and she thought they were wrong also. Chairman Giunchigliani asked the secretary to note Mrs. Freeman as excused because her mother was ill. Chairman Giunchigliani called committee's attention to a letter from Assemblyman Close and herself regarding A.B. 371 which would be mailed if committee had no objections. There were no objections, and Chairman Giunchigliani told committee the letter would be sent. See (Exhibit I). There being no further business to come before committee, the meeting was adjourned at 5:20 p.m. RESPECTFULLY SUBMITTED: Bobbie Mikesell, Committee Secretary APPROVED BY: Assemblyman Jack D. Close, Chairman Assemblywoman Chris Giunchigliani, Chairman Assembly Committee on Elections and Procedures April 20, 1995 Page