MINUTES OF THE meeting
of the
ASSEMBLY Committee on Elections, Procedures, and Ethics
Seventy-Second Session
February 20, 2003
The Committee on Elections, Procedures, and Ethicswas called to order at 3:45 p.m., on Thursday, February 20, 2003. Chairwoman Chris Giunchigliani presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Ms. Chris Giunchigliani, Chairwoman
Mr. Marcus Conklin, Vice Chairman
Mr. Bernie Anderson
Mr. Bob Beers
Mr. Chad Christensen
Mr. Tom Grady
Ms. Kathy McClain
Mr. Bob McCleary
Ms. Peggy Pierce
Ms. Valerie Weber
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
Assemblyman David Parks, District No. 41
STAFF MEMBERS PRESENT:
Michelle Van Geel, Committee Policy Analyst
Kelly Fisher, Committee Secretary
OTHERS PRESENT:
Rick Combs, Deputy Fiscal Analyst, Legislative Counsel Bureau
Marvin Leavitt, Certified Public Accountant
Alan Glover, Carson City Clerk-Recorder, representing Nevada Association of County Clerks
Larry Lomax, Clark County Registrar of Voters
Dan Burk, Washoe County Registrar of Voters
Janine Hansen, Nevada Eagle Forum and Independent American Party
Lucille Lusk, Nevada Concerned Citizens
Joshua Hansen, Independent American Party
Christopher Hansen, Independent American Party
Stacy Jennings, Executive Director, Nevada Commission on Ethics
Allen Lichtenstein, American Civil Liberties Union of Nevada
Gary Peck, American Civil Liberties Union of Nevada
Chairwoman Giunchigliani opened the hearing on A.B. 35.
Assembly Bill 35: Makes various changes concerning Legislative Committee for Local Government Taxes and Finance. (BDR 17-631)
Assemblyman David Parks, District No. 41, read a prepared statement (Exhibit C). A.B. 35 was one of the recommendations that came out of the Legislative Committee for Local Government Taxes and Finance on which Mr. Parks served as Chairman during the interim. The Legislative Committee consulted with an advisory committee that consisted of 11 members. The first change in A.B. 35 made a minor technical adjustment to the membership of the advisory committee. The recommendation amended the current statutes to require the Legislative Commission to appoint a representative of a general improvement district to the advisory committee rather than appointing a member of the board of trustees of a general improvement district. The second change eliminated the subcommittee and transferred its duties to the advisory committee. This eliminated unnecessary duplication of effort.
Chairwoman Giunchigliani asked how long the committee had been in place. Assemblyman Parks responded that the 557 Committee was a new designation. Prior to that, it had been the 253 Committee, and prior to that it was the S.B. 40 Committee. It had had a number of different names, and had initially been requested by Senator O’Connell approximately 10 years ago. It had been a productive committee and had the support of individuals in the field who were experts on the local government distribution of taxes.
Chairwoman Giunchigliani asked when it was anticipated that the work would be completed. Assemblyman Parks did not know if the work would ever be completed. He thought it was one of those committees that had served the Legislature well and certainly should be a continuing standing committee. He thought that was what had happened in the Legislature when it was given the designation the 557 Committee.
Chairwoman Giunchigliani noticed on page 2 that the chair had been finite, but wondered if there was interest in rotating the chairmanship from one house to the next. Mr. Parks said there had been some rotation. He served in the last interim as the committee’s chair, and prior to that Senator O’Connell had been the chair.
Chairwoman Giunchigliani’s understanding was that they were eliminating the one subcommittee and combining it into the duties of the other.
Assemblyman Grady asked if the Advisory Committee would still be working without pay as they had been for the last ten years or so. Mr. Parks responded that that was correct. He stated that most of the Advisory members were employed by various local government entities and presumed that their pay would continue on in that respect. He said they also provided their own transportation as a contribution that they made.
Rick Combs, Deputy Fiscal Analyst, pointed out that the current statutes would require the Legislative Committee to expire by limitation after the next interim. There would have to be action taken either this session or the next to continue it on past that date. Chairwoman Giunchigliani said they had discussed eliminating all committees, so there would be a review at some point.
Marvin Leavitt, Certified Public Accountant, commented that the subcommittee being eliminated had initially been given the responsibility of redoing the formula by which gasoline taxes were distributed. It was a technical matter, and most of the people who served on the subcommittee were public works types. Since then, the duties of the committee had changed, and the present members of the committee, in general, were finance types. Essentially, the duties of the two committees were similar and the same members could effectively serve on both. Mr. Leavitt said this effectively eliminated the need to hold separate meetings as Mr. Parks had mentioned. Ms. Giunchigliani agreed it was far more efficient.
Chairwoman Giunchigliani closed the hearing on A.B. 35 and opened the hearing on A.B. 125.
Assembly Bill 125: Makes various changes to laws governing elections. (BDR 24-294)
Alan Glover, Carson City Clerk-Recorder, said A.B. 125 was the annual clean-up bill that was presented every year by the County Clerks and Registrars of Voters in the state. After every election, they went through the statutes to see what was working and what was not and made technical changes to the statutes. Mr. Glover said that on page 2 of NRS 293.1715, they asked to change the close of filing for office from the third Monday in May to the second Friday. One of the reasons the clerks were putting this forward was because they were trying to get as much time out of every election period as they could. The extra couple of days helped them in preparing the ballots and seeing which candidates needed to be listed. The deadline appeared again under NRS 293.200 on page 8, subsections 4 and 9. The Legislative Counsel Bureau had gone through the bill and conformed all of the groups that had to file by that date and put them into that time frame.
Larry Lomax, Clark County Registrar of Voters, said the next change occurred on page 6, paragraph 5. This required candidates to show proof of identification and residency when they filed. Two court cases in Clark County were a result of the current practice of not requiring this proof.
Chairwoman Giunchigliani said paragraph 5 stated, “either driver’s license or other official documents.” She wondered if this would include a state identification card or a phone bill. Mr. Lomax said that NRS 293.517 included the phrase, “as proof of residency and identity.” This was acceptable to him as long as he had a picture and something that showed their current residence.
Assemblywoman McClain asked Mr. Lomax if his office would be doing background checks. Mr. Lomax replied that they had not proposed that. She asked if it would be a problem to run background checks on candidates, as she thought it would be vital to know if they were ex-felons. Mr. Lomax said they ran their field officers through a background check at a cost of $10 a candidate.
Chairwoman Giunchigliani said she had some discomfort with this and said it would be discussed further. She said there were a lot of ex-felons who were members of society who had been honorably discharged but still had the title “ex-felon” hanging over them.
Assemblyman Beers jokingly said that typically, before Election Day, a “public” background check ended up being run on most candidates anyway.
Alan Glover said that page 8, Section 5, was amended to provide for an electronic copy of the maps filed. In their original request, which was left off this bill, line 42 had originally had a period after “precincts in the county,” then bracketed out “together with the word description of the boundaries of the precincts.” He said they needed to transmit everything electronically. He thought the word descriptions were a tedious and laborious task. He said the word descriptions were never used because they used the map. Mr. Glover stated that they wrote the description from the map. He said that having used the description twice, he could say that word descriptions were never right. After doing so many section lines and streets, errors occurred. Mr. Glover asked the Legislative Counsel Bureau if maps could be filed without descriptions, and the LCB said that could work. He went on to say that in ten years, when redistricting was completed after a new census, the electronic mapping would be more advanced.
Chairwoman Giunchigliani’s understanding of their recommendation was to strike everything after “county” on line 42 and then everything on line 43. Alan Glover responded that that was correct. He believed the language showed up on page 9, line 18, “or description.” They wanted a period after “map.” Mr. Glover stated it also showed up on page 9, line 7, “precinct map.”
Assemblyman Anderson said they seemed to have a difficult time dealing with the transfer of information. Boundary lines had changed because of verbal descriptions. The counties were not pleased with the way the lines were drawn in terms of their precincts and districts. Mr. Anderson asked if technology had become so foolproof they would not have those problems. Alan Glover said they depended on the maps that were drawn. He said the word descriptions were written from the maps, not the other way around. His office checked with LCB on some of the maps to verify if the lines were drawn as intended. He thought they needed a higher level of confidence in the maps. He did not think the word descriptions helped when they drew the precinct lines.
Chairwoman Giunchigliani said part of the errors that occurred last session were caused because they had a separate staff drawing the lines internally for the Regent’s seats and the State Board of Education, who did not realize that every squiggle made another mailing precinct. She said it was their error in not using an overlay, which she thought she put into the bill draft as a Committee bill to try to correct. Ms. Giunchigliani said they had been told by Legal that they could make minor changes this session so they could eliminate some of the mail precincts. She said that needed to be corrected. She suggested that rules for redistricting could say that, prior to approving any redistricting, they would allow the clerks to come in and review that part as an overlay to make sure they had not inadvertently created pockets of problems that were not anticipated from redistricting. Chairwoman Giunchigliani said that that was probably what Mr. Anderson was referring to earlier.
Dan Burk, Washoe County Registrar of Voters, thought the Legislature needed to set up a process in which everybody discussed the maps they would be using, compared the latest data, and went over issues that had arisen during the previous redistricting. He said that would clear up a lot of misunderstandings. Mr. Burk said that in the case of Washoe County, they had created over 74 new precincts as a result of the year 2000 redistricting. At the end of that process, they found that about 65 of those 74 precincts had no people in them. He thought there should be a formal process or opportunity where they met and “got on the same street” as the maps. Mr. Burk thought it would be a good idea for not only the Legislature, but for the school district, the City of Reno, and the City of Sparks. He believed that everyone should be working from the same set of maps.
Chairwoman Giunchigliani thought it was a good idea. She said they had talked about formulating redistricting mapping procedures in anticipation so they could have a suggested rule for 2009 to at least get them into the preplanning stage. Then they could go a review stage prior to adopting changes.
Assemblyman Beers questioned the term “electronic file.” He asked if technically, if he were to burn a map on a CD, would that be considered an electronic file. He said they might want to change that to “geographical information system file.”
Chairwoman Giunchigliani thought Mr. Beers had a good point. She said they would take that into consideration for amendments.
Mr. Burk said the clerks had a change they wanted to make that had already been included in A.B. 125. The clerks and registrars would like to lower the age of individuals who worked at the polls from 18 to 16. They wanted to remove existing prerequisites such as the fact a student poll worker must be a senior, must be enrolled in a civics class, must be performing at a particular academic level, or had the principal’s approval. He said all of those things worked to keep young people out of the system, and the workers wound up being a very select group of overachievers. Other students believed the system was really for those kids. Mr. Burk wanted to teach kids as early as possible was that it was for everybody to participate in. He said he would like it changed so that school counselors could approve individual student requests. Mr. Burk said he had a different copy of the bill that he would like presented to the Committee. He said it would still require parental approval and approval from a school authority, but did not put hurdles in the way that made participation difficult.
Chairwoman Giunchigliani thought he made good sense. She thought most of the districts could count some of that time towards community service. Ms. Giunchigliani thought young men and women needed to see more of the process and thought it would generate interest.
Mr. Lomax said the next change occurred on page 11, section 9. The law currently stated that if one lived in a mail precinct, one had to vote on a paper ballot. In Clark County, people voted early on electronic voting machines, and this change was requested to straighten that out. On page 12, paragraph 4, the intent was to allow the Registrar’s office to centrally locate their audio voting machines so visually handicapped people could go to those centralized locations to vote. Mr. Lomax stated that he did not have enough of those machines to put one at every polling place, which he said was the goal. Currently, the law did not make any provisions for centralized voting locations.
Chairwoman Giunchigliani said that under HAVA they would eventually be required to have the audio voting machines at every site. She asked if they should word the bill in anticipation of HAVA requirements so they would not have to come back and amend the statute as they considered the Secretary of State’s bill. Mr. Lomax replied that it had to be in place by 2006. Ms. Giunchigliani said they would reword it so it was in compliance with HAVA by 2006.
Mr. Lomax referred to page 13, lines 4 and 5. Presently, if a physically disabled person requested a mail ballot, the law required them to describe their physical disability. It did not matter what they put down, they would be sent a sample ballot. Mr. Lomax said his staff did not read what was put down, so there was no reason for that to be there. Paragraph 12 contained the same language addressing early voting in mail precincts.
Mr. Glover said page 14, line 12, dealt with early voting. He said they would like flexibility on the Saturdays for early voting. They were currently not allowed to open until 10:00 a.m. Carson City and other larger counties would like to open earlier. In rural counties, such as Storey County, clerks had worked Saturdays and no one had come in to vote. Mr. Glover would like the clerks to have more flexibility. He would like to see the rural counties opened for at least four hours, and the larger counties would stay open longer. He said the politics of the counties would dictate if they had a lot of people who wanted an early vote.
Assemblyman Anderson made the observation that the voter registration office was dictated more by the budget allocation of hours than the requirement of the law in terms of access. He said a major problem was the ability to cover multiple spots simultaneously because of personnel. In his county, that was a major problem. He said some areas only allocated one day to early voting. The location was shared with another community. He was not seeing the kind of opportunity in terms of service that he felt was needed for his constituency.
Mr. Glover responded that he could only speak for himself. He said Carson City wanted the flexibility to open earlier. Mr. Glover said they did not want to be mandated to open at 8:00 a.m., but would like the language changed to provide more flexibility.
Assemblyman Anderson said that organizations in his county had tried doing breakfast meetings before the time period to attract people to the county area so they would be able to vote early on voting days. He approved of the opportunity to vote as early as possible, but it seemed to him that the costs would be increased in a budget that was already extremely strained in terms of the personnel required at the voting locations. Mr. Anderson complimented Mr. Glover on his staff. He said they would move heaven and earth for the electorate, but they were only human and could only work eight hours. He did not think there was enough money to staff Mr. Glover’s needs. Mr. Anderson did not feel giving the clerks flexibility was the answer.
Mr. Burk said there had been a change in the way Washoe had to do early voting. They had made a mistake in identifying the location where they had early voting. He said they did need to review and expand early voting, but in his view it was not fair to punish small counties.
Chairwoman Giunchigliani said they would debate the issue of early voting, as she personally did not support it. She thought there might be some language for flexibility for the particular Saturday vote for districts under a certain size.
Mr. Lomax referred to page 14, section 15 and subsequent sections on pages 22, 23, and 28. After elections, the law now required those who used electronic voting machines to print out copies on paper of all ballots. After the 2000 election, they had had to print out 387,000 pages of ballots. He said it had taken his staff over two weeks to do that. They then had put the printout in a vault, locked it up for 22 months, and then burned it. He felt that was a waste of paper. Unless there was a recount or challenge, Mr. Lomax said they were proposing to maintain the capability of printing those records by saving the data on disk and that the data be maintained in a format by which, if they needed the paper ballots, they could print them out and a recount could still be conducted on paper.
Chairwoman Giunchigliani asked if the electronic disk would still be contained in a vault so it would be in a safe place. Mr. Lomax said it would.
Mr. Glover said page 16 conformed the second Friday after the first Monday in May for question from the county.
Mr. Lomax said page 17, section 5, addressed registration applications. At the present time, if a voter failed to mark a party, the clerks could not count them as a registered voter. They would send them a letter giving them 15 days to respond. The proposal would allow the clerks to mark them as non-partisan, and then send them a letter giving them a chance to respond. The letter would inform them they had not indicated a party. They would be eligible to vote in the election. For the General Election, the party did not make a difference.
Mr. Glover said page 19 went back under section 20, subsection 2, where they were asking for flexibility in the hours they were open during the close of registration. He said he could not remember how they came up with 11 hours, but said they would like flexibility in determining office hours.
Mr. Lomax referred to page 20, line 15. He said the law currently stated that they would print their roster books five days before the election. He said they did not do that, because early voting was not over until four days before the election. He said it was something that needed to be cleaned up.
Mr. Glover said no county did that anymore. They tried to print on a Saturday before the election.
Mr. Lomax moved on to page 22. He said all of the items had been discussed. The changes at the top of the page referred to centralized voting and a notice in a sample ballot telling people where audio voting would be available. Line 30 addressed the need for the DRE machine to be capable of printing a paper record of the ballot. The top of page 23 said more about the requirement of paper ballot printing and the ability to print them out if a recount was called for.
Mr. Glover said everything else was under NRS 293C, which conformed the city election law to that being used in the county.
Mr. Lomax moved to page 31. He said this was the worst thing he had to deal with, and it had to do with the committees that were formed to write arguments for and against the ballot questions. Mr. Lomax said there was some confusion about what questions required the formation of a committee. He discussed a current question that involved the Las Vegas/Clark County Library District. The legal opinion they received said the district did not require committees to be appointed by the commissioners because that was a subdistrict of the county, and because there was also the Boulder City Library District and the North Las Vegas Library District. He asked if they wanted the Clark County commissioners appointing the committee to write an argument for the Boulder City Library District. Mr. Lomax said their proposal added “county-wide” initiative and deleted “or county clerk” to eliminate confusion.
Chairwoman Giunchigliani agreed that they should not have the county commissioners from one jurisdiction writing somebody else’s ballot language.
Assemblyman Anderson thought their concern rested more with the fact that the county commission might be in a better position of creating a balance when addressing both sides of an issue in a nonpartisan manner. Ms. Giunchigliani thought the local jurisdictions could form their own advisory groups. She felt the Clark County commissioners, who were not elected to represent that area, should not be the ones writing the ballot language for a particular local entity.
Mr. Lomax said in their particular case, that was true. He thought the Boulder City Library District should have the right to select committees to write arguments for and against. Chairwoman Giunchigliani said committees would still exist. Mr. Lomax said that would have to be addressed.
Ms. Giunchigliani said they might need to wait until Mr. Mortenson’s bill came out to see if they could parallel that or deal with it in his legislation. She said the intent would be that Boulder City had a library question. Their counsel would appoint their advisory people to write the language.
She asked Mr. Anderson if that addressed his concerns. Mr. Anderson said he was concerned that Mr. Lomax’s office had to print the ballot and asked if the Henderson people would print their own ballot. Mr. Lomax said Henderson contracted out to his office and they did the printing for them. Mr. Anderson said would it then be conceivable that they could end up with a countywide ballot with a question that would not relate to the library district of Boulder City. Mr. Lomax responded no.
Mr. Lomax referred to page 33, section 11. He said the committees that had been appointed to write arguments for and against questions had already been identified as people who were for or against the question; that was why they were selected. He went on to say that there should be no open meeting requirements when the committees wrote the arguments, as it would defeat the purpose of the committee. Mr. Lomax said that in Clark County they did not use the open meeting rule for the committees, but some jurisdictions were confused about that issue. He said the time requirements of notifying when an open meeting was going to take place would make it impossible for them to do it in some instances.
Mr. Glover said Carson City had caused the problem when its Board of Supervisors wanted the committees covered under the open meeting laws since they appointed them, which was a contradiction to what the District Attorney in Clark County was telling them. He said the open meeting portion did not work in that instance. Mr. Glover said under the present law there was a requirement that a county commissioner be present when there was a recount. He said they wanted to remove that requirement. He said it was not important that they be there. Ms. Giunchigliani said you would not be able to find one with a Geiger counter if they wanted to bring them back at 3:00 a.m.
Chairwoman Giunchigliani asked if spoiled ballots were available in a recount. Mr. Lomax responded that in the absentee ballot portion of the recount, those ballots were identified as a duplicated version of the ballot. Ms. Giunchigliani said that in a contest they would give them the actual spoiled ballot if somebody requested it. Mr. Burk said in a contest of election there could be a process ordered by a judge in which those could be opened and looked at. In a recount situation, those could not be opened and looked at. The only thing that could be seen would be the actual duplicate ballot that was used. Ms. Giunchigliani asked what the rationale was for that. Mr. Burk said it was because they were sealed up and part of the sealed record. When there was a spoiled ballot, there was a remade ballot. A recount team would go through an objective process to determine what should go on the ballot. Mr. Burk said when an election was challenged, the person would actually challenge whether or not the ballot was legally counted. In a recount, they were really looking at what was counted the first time and whether or not it was counted properly.
Chairwoman Giunchigliani asked if some states did an automatic recount if the number was below a certain amount. Mr. Burk replied that they did. He said most states had a threshold. Nevada was one of the few states in which an individual who apparently had lost the election would have to put up the money and pay for the entire recount if it were not reversed.
Janine Hansen, representing the Nevada Eagle Forum and the Independent American Party, discussed the change of date of filing proposed by the clerks. Her concern was that there was already only two weeks’ time for candidates to file. She said the minor parties had a requirement that was not required of major party candidates that made the time element more difficult. Ms. Hansen said they were required to file the list of their candidates before they could file with the Secretary of State during that same period. After that list was filed, the candidates only had whatever time was left to file for office. She was concerned about reducing the amount of days they had in which to file and thought maybe the date could be moved back so they could file earlier.
Ms. Hansen stated her concern regarding identification for running for office. She said there was no definition for “other official document.” According to Ms. Hansen, that requirement could be declared void for vagueness. She went on to speak about the section that dealt with being capable of providing a record on paper ballot. Her understanding of HAVA was that a paper ballot had to be produced. She was in favor of a paper ballot, as it helped to reduce fraud and other problems. With regard to committee review of ballot questions, Ms. Hansen thought the language precluded the committee requirement for small districts. She said the committees were helpful and provided balance, and went on to say that they should not be subject to the open meeting law.
Chairwoman Giunchigliani thanked Ms. Hansen and said her concerns would be taken into consideration.
Lucille Lusk, Nevada Concerned Citizens, said she was uneasy with the portion of A.B. 125 that appeared on page 11, Section 9, and read, “By any other system approved by the Secretary of State or specifically authorized by law.” She did not like the idea of putting that responsibility with the Secretary of State. Ms. Lusk said she would be more comfortable with it saying, “as specifically authorized by law.” She thought the Legislature should specify what was required. Page 14, Section 15, lines 37 through 40, specified that “The records of voted ballots that are electronic are to be preserved in such a manner as the county clerk may determine to be reasonably calculated to safeguard.” Ms. Lusk felt that was too open. She said electronic storage could take many forms and would like the Legislature to specify that as well.
Chairwoman Giunchigliani closed the hearing on A.B. 125 and opened the hearing on A.B. 127. Then she closed A.B. 127 without testimony and reopened the hearing on A.B. 125 to in order to hear testimony from Las Vegas.
Joshua Hansen, Independent American Party, made comments about candidates being required to provide identification that included, without limitation, a driver’s license or other official document that indicated the candidate’s current address. He had a problem with the phrase “other official document.” He indicated that he would like a notarized statement to qualify as an official document.
Chairwoman Giunchigliani agreed that it might be too broad and said the Committee would look at some suggested language.
Christopher Hansen, Independent American Party, stated that if the language was not cleared up and was left vague, his party members would be sure to come in with as many different IDs as they possibly could to challenge the law if any of them were refused. He said one of their Congressional candidates was homeless and did not have any identification. He said that would limit the IAP’s base for who was going to run for office. Mr. Hansen said he agreed with everything Ms. Lusk had to say. He said when things were left up to the Secretary of State, the Secretary of State had a tendency to change the rules when he could not comply with them in the manner he felt was appropriate at that moment in time. Mr. Hansen said he could never get the Secretary of State to answer a question on what was appropriate or inappropriate, but that he could get answers from the Legislature. He went on to say that a paper ballot was required according to HAVA standards.
Mr. Hansen referred to page 14. He felt the portion that read, “being maintained in electronic form,” was in violation of HAVA. Referring to the ID section, Mr. Hansen said he could easily make identification cards with a computer that was used to make cards for their own businesses to identify their employees. He said they had a small press group called the Independent American Press, and a Christian fellowship that gave out identification cards to ministers. He said they were picture IDs. Mr. Hansen said the word “official” was vague, and wanted to know of one of the identification cards made by the Independent American Press would qualify.
Chairwoman Giunchigliani said the Committee would take a look at the language. She said the Secretary of State did verify the equipment, and had the authority to do so, and she thought that was why the language was there. Mr. Hansen then thanked Ms. Giunchigliani for being against early voting.
Chairwoman Giunchigliani closed the hearing on A.B. 125 and reopened the hearing on A.B. 127.
Assembly Bill 127: Repeals certain provisions relating to Commission on Ethics. (BDR 23-47)
Assemblyman Beers said the section of law A.B. 127 proposed to eliminate was that which put the Ethics Commission in the position of judging political speech. Mr. Beers said political speech had clear boundaries in both the Constitution and Supreme Court case law. He said the timing requirements were short and created a burden for the Ethics Commission in carrying out their legal duties. Assemblyman Beers disclosed that he had an unpaid $5,000 fine from the Ethics Commission for having violated that section of the law. He said it was an interesting opinion that concluded that although the political speech that he had been sanctioned for was true, it was negative. He said in his mind it was clearly outside the scope of acceptable political speech standards set in New York Times vs. Sullivan in 1964. Mr. Beers stated that he and Ms. Giunchigliani had worked successfully on this as a Committee bill last session. Chairwoman Giunchigliani said they had actually got it out of their house, but it had stalled over in the Senate. She said it was a freedom of speech issue that they felt was important to bring back for discussion purposes.
Stacy Jennings, Executive Director, Nevada Commission on Ethics, stated that A.B. 127 did two different things. She pointed out for the Committee the relevant parts of the bill that would affect NRS 281:
All of those statutes had been struck down in U.S. District Court. The Commission’s bill and S.B. 147 proposed to delete those sections. The Ethics Commission was supportive of those efforts. Ms. Jennings said the remainder of the bill did strike out provisions related to the Campaign Practices Act. NRS 281.477, which specified time frames for the complaints, was being repealed. She said when a complaint came into her office, she was required to immediately notify the person about whom the complaint was being lodged. At that time, she had to let that person know when the hearing was, because it had to be within 15 calendar days. She had to ascertain whether she could have a quorum before she could schedule the hearing. The person about whom the complaint was filed had two days to respond to it. Ms. Jennings said it was difficult to meet the deadlines in the statute.
Ms. Jennings said there were four criteria required to find someone guilty of violating the statute:
It was a high burden of proof, and it must be proven by clear and convincing evidence. The Commission had three of those complaints in the past year. Even when people admitted they had made false statements which they knew were untrue and admitted they had done so with malice in order to hurt someone’s campaign, how could the Commission say that was the single thing that actually influenced the outcome of the campaign? They believed the bill met the New York Times vs. Sullivan criteria for “actual malice,” and it was presumed constitutional unless a court ruled it otherwise.
Allen Lichtenstein, General Counsel, American Civil Liberties Union of Nevada, stated that he currently had a case that challenged the constitutionality of one of the provisions Ms. Jennings had discussed. Chairwoman Giunchigliani disclosed that she and Assemblyman Beers were parties to that court case. Mr. Lichtenstein said the issue was whether it was the job of the government to set up a “truth squad,” essentially a politically appointed governmental body, to circumvent the courts. The idea of doing this quickly did not work. He said they were very complicated cases requiring a lot of discovery. He said it could not be adequately done in 15 days. Mr. Lichtenstein believed the proper forum for those kinds of complaints was the courts. The courts were not affected by political appointees and they had judicial review provisions. He said the law circumvented the courts and put the Commission into the role of deciding whether what someone said was true and how an election would have gone. Mr. Lichtenstein said there seemed to be an attitude among some in the Legislature that somehow the rough-and-tumble of politics was too much for the “gentle souls” that were involved in politics. He said the provision to have an Ethics Commission try to resolve those disputes had not worked and had constitutional problems. Mr. Lichtenstein stated that he did support the bill both to get rid of the provisions that had already been declared unconstitutional and provisions that were likely to become unconstitutional according to the courts.
Gary Peck, Executive Director, American Civil Liberties Union of Nevada, said it had been pointed out by counsel for the Ethics Commission that members of the Commission were struggling with the whole issue of meeting the threshold of proof regarding whether or not statements impeded the success of the campaign. Mr. Peck thought it was important to understand, because he had attended some of the Ethics Commission hearings and heard the members state explicitly on the record that they were “struggling mightily” with the First Amendment issues alluded to by Mr. Lichtenstein. Mr. Peck, in referring to the last Ethics Commission meeting he had attended, said the members stated on the record that they were having a difficult time balancing the First Amendment and the right to free speech, particularly political speech. He said this particular law was plainly unconstitutional. He thought it would waste everyone’s time, energy, effort, and money to force them to litigate the issue. He said he fully supported what was being proposed, and he hoped the Assembly and Senate would support it as well.
Mr. Lichtenstein said the bill did not comply with the New York Times vs. Sullivan ruling. He said one of the things missing was that a statement, even if it were false, did not have to be defamatory in order to be actionable. The Supreme Court, in New York Times vs. Sullivan, hadclearly stated that they were talking about defamatory statements that sullied somebody’s personal reputation; that was not really part of this. He said it was simply the perceived effect it might have on an election. In defamation law, one had to prove how one was damaged. In this case, that was impossible, so they were dealing with assumptions. An assumption of how an election would go when certain statements were made would likely be made more on the basis of people’s individual political divisions than on anything that was tangible. Mr. Lichtenstein reiterated that this in no way complied with New York Times vs. Sullivan.
Gary Peck said they would make themselves available to anyone on the Committee, in the Assembly, or in the Senate. He said they would be happy to sit down and discuss the issues at any other hearings that were held on the matter. Mr. Peck said they were happy to work with them, it was the right thing to do, and they appreciated the effort.
Chairwoman Giunchigliani adjourned the meeting at 5:07 p.m.
RESPECTFULLY SUBMITTED:
Kelly Fisher
Committee Secretary
APPROVED BY:
Assemblywoman Chris Giunchigliani, Chairwoman
DATE: