A Private Little Bush V. Gore, or, How Nevada Violated the Republican Guarantee and Got Away with It

By Sandefur, Timothy | Texas Review of Law & Politics, Fall 2004 | Go to article overview

A Private Little Bush V. Gore, or, How Nevada Violated the Republican Guarantee and Got Away with It


Sandefur, Timothy, Texas Review of Law & Politics


I. INTRODUCTION

"For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments . . . ."'

On July 1, 2003, Nevada Governor Kenny Guinn filed a remarkable lawsuit.2 He asked the Nevada Supreme Court to issue a writ of mandamus ordering the state legislature to pass a budget which had failed to garner the constitutionally required two-thirds vote in the State Assembly. As the lead attorneys for the Pacific Legal Foundation's amicus curiae participation in the Guinn case, I had a unique perspective on this legal controversy and on the fundamental issues of American law that were involved, including one of the forgotten provisions of the United States Constitution: the Republican Guarantee Clause.3 This article examines the facts of Guinn v. Legislature of Nevada and related litigation, explains how the Nevada Supreme Court violated the Guarantee Clause, and explores the future constitutional implications of this unusual case.

II. HOW GUINNv. LEGISLATURE CAME TO BE

In 1996, Nevada voters enacted an amendment to their state constitution to require a two-thirds vote of both houses of the legislature to pass any bill increasing taxes.4 Amending the Nevada Constitution is not an easy matter; any such initiative must be passed at two separate elections,' but the two-thirds amendment passed by over seventy percent of the vote in 1994 and by a similar margin again in 1996.8 Nevada is one of several states with some sort of supermajority requirement for tax increases.7 Such requirements have been criticized by many as overly burdensome,8 and they do tend to cause stalemates when state legislatures come to passing budgets.9 But others see such requirements as an effective way of restraining legislatures from imposing overly burdensome taxes10 and of requiring a degree of fiscal discipline from government. Whatever the validity of these arguments, Nevada's voters evidently considered the two-thirds requirement a good idea and made it part of their constitution through state's constitutional process.

Another provision of the Nevada Constitution requires the state to fund public education:

The legislature shall provide for a uniform system of common schools, by which a school shall be established and maintained in each school district at least six months in every year, and any school district which shall allow instruction of a sectarian character therein may be deprived of its proportion of the interest of the public school fund during such neglect or infraction, and the legislature may pass such laws as will tend to secure a general attendance of the children in each school district upon said public schools.11

This clause was part of Nevada's original constitution, written in 1860.12 Other clauses of the state's constitution require the legislature to pass a balanced budget13 and to do so by July 1 of every other year.14 Another prohibits the imposition of state income taxes.15

All of these principles came into explosive conflict in the summer of 2003, when the Nevada legislature met to confer on the state budget. By the end of the session, lawmakers had failed to make appropriations for two matters: the operations of the legislature itself and the education spending bill. Yet with these two major appropriations still outstanding, the legislature had already spent almost all of its expected income. The alternatives were clear: either the legislature must go back and cut its previous spending decisions, or it must raise taxes. But these decisions were not made before the legislative session ended. So, pursuant to the Nevada Constitution,16 Gov. Guinn called a special session of the legislature to confer on these matters and finish the passage of a balanced budget. The state constitution permits the Governor to limit the subjects that can be discussed at special sessions,17 however, and Guinn, who endorsed increasing both taxes and spending, limited the special session to addressing only the tax and education bills. …

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