Summary report by the League of Women Voters on Legislative Reapportionment, "The Nevada Reapportionment Decision," October 1965

? ! ^ O ^ A J THE NEVADA APPORTIONMENT DECISION The League of Women Voters of Nevada________________________ October, 1965 Reapportiorment has been put back into the lap of the Nevada Legisla?ture to finish the job it put off last spring. The Federal District Court has given the lav-making body until November 20 to enact legislation creating a constitutionally valid reapportionment and redistricting plan, consistent uith the Dungan v. Sawyer decision. The Decision The decision, handed down September 23 by the three-man court sitting in Las Vegas, provides that Governor Grant Sawyer must call a special session of the legislature by October 30 for the sole purpose of reapportioning the State. The legislature is to submit the necessary legislation to the court by November 20, The court is retaining jurisdiction of the case so that if a valid plan for both houses is not adopted, the court itself may enter a valid reapportionment plan for the legislature or direct that each house be elected at large pending a valid apportionment by the legislature. The case was brought by Mrs, Flora Dungan, a former assemblywoman, and by Dr, C, W,. Woodbury of Clark County against the Governor, the Secretary of State, the Lieutenant Governor and the Treasurer of the State of Nevada* Members of the legislature were later added to the list of defendants by the court. Oral argument of the case occurred June 23 in Las Vegas. The plaintiffs asked the court to declare parts of Article IV, Section 5, of the Nevada Constitution unconstitutional, as well as all statutory laws based on that provision and to issue certain orders to insure constitu?tional representation to all persons in the state. 2 Article IV, Section 5, reads: Senators and members of the Assembly shall be duly qualified electors in the respective counties and districts which they repre?sent, and the number of Senators shall not be less than one-third nor more than one-half of that of the members of the Assembly. The Senate shall consist of one Senator from each county. The members of the Assembly shall be apportioned on the basis of population; provided, that each county shall be entitled to at least one Assemblyman. It shall be the mandatory duty of the Legislature at its first session after the tailing of the decennial census of the United States in the 1950, and after each subsequent decennial census, to fix by law the number of Assemblymen, and apportion them among the several counties of the State, according to the number of inhabitants in them, respectively. This particular article is not the sane as it was when the Nevada Constitution was originally adopted July 23, 1864, by a constitutional convention of delegates elected from the then existing ten counties. In 1950 the statements that "The Senate shall consist of one Senator from each county," and that "The members of the Assembly shall be apportioned on the basis of population; provide^, that each county shall be entitled to at least one Assemblyman," as well as the call for a decennial apportionment in 1950 and periodically thereafter were added. In his "Apportionment in lievada-Ristory" Dr. Elmer R, Rusco of the Political Science Department of the University of Nevada noted: Nevada became a separate territory, and then a state, at a time when it was the accepted principle that both houses of a state legis?lature should be apportioned on the basis of population. Between the adoption of the Federal Constitution and 1900, 25 states entered the Union with constitutions requiring representation in both houses of the legislature solely on the basis of population or with only slight modification of this principle in one house. Only four states entered the Union during this period with constitutions providing for other bases of representation in one or both houses. Other provisions of the constitution involving apportionment include Article I, Section 13, the Declaration of Rights, which states simply, "Representation shall be apportioned according to population;" Article XV, Section 6, in the Miscellaneous Provisions, which limits the aggregate number of legislators in both houses to 75; and Article XV, Section 13, 3 also in the Miscellaneous Provisions. The latter authorizes a State census in 1865, 1867, 1875 and every 10 years thereafter. The section continues, "....these enumerations, together with the census that may be taken under the direction of the Congress of the United States in A. D. eighteen hundred and seventy, and every subsequent ten years, shall serve as the basis of repre?sentation in both houses of the Legislature." Hence, the original intention of the Nevada Constitution seemed to be that apportionment be on the basis of population, and for about 85 years the constitution provided for representation on that base. In 1950 the electorate approved a constitutional amendment proposed by the legislature. The amend?ment added to Article IV, Section 5, provisions for a "little federal" plan of apportionment. But, as Dr. Rusco notes: ...for 35 years prior to the adoption of this amendment, although in direct violation of the constitutional provisions cited above, the Senate had in fact been apportioned on the basis of one Senator to each county. The 1915 session of the Legislature passed a law reapportioning both houses. Although no mention was made in the statute of any principle of representation, the law provided that in 1916 each county would be entitled to one and only one Senator; thereafter subsequent legislatures continued to pass apportionment statutes based on this principle. Hence, in 1950 the voters of Nevada merely ratified what had been actual practice by the legislature for 35 years. After noting the history of apportionment in the Nevada Constitution, the Federal District Court turned to the effects of the "little federal" plan on representation. The court noted that there exist large population disparities in Nevada and that Less than 26% of the population of Nevada in the fifteen counties other than Clark and VJashoe control more than 88$ of the Senate* Less than 8$ of the population control more than 50$ of the Senate.... Dilution of political power between thinly and heavily populated counties of a state is no longer permissible. The court held that such "watering down" of votes is invidious discrimination against the least favored voter and unconstitutional because it violates the Equal Protection Clause, as well as the Fifteenth and Nine?teenth Amendments to the Federal Constitution. After mentioning that an absolute equality can never be achieved because of births, deaths, moving voters, etc., the court said that the approximate equality must "...honestly and conscientiously approach absolute equality, with a frequent reassessment of the fact...." In short, the court held that the Nevada Legislature must meet in special session by October 30 and submit to the court a plan of reapportion?ment by November 20. According to good sources, the bill will not need to be submitted to the citizens in the form of a referendum but will be valid after the court accepts it. (It is likely that the legislature will seek to "clean up" the present constitution by rewriting Article IV, Section 5, and submitting it to the voters.) The Problem of the Census Just what census figures are used in an apportionment plays a vital role in determining the number of legislators granted to each district. The latest federal census was taken in I960 and is already five years behind the present population distribution. Constitutionally, the legislature can ask for a state census in 1965 and in 1975 under Article XV, Section 13, mentioned above. However, it would be almost impossible for the legislature to get a 1965 census taken within the time limit set by the court. (There is the further problem of cost. A state census on the order of the federal census, as a guess, might cost $?0,000 to $50,000.) 5 An estimation of population might be used were it not for Article IV, Section 13, which seems to require an actual census for the basis of representation. How Often Apportionment? The frequency with which the legislature should reapportion is related to the problem of what population figures are used. The federal census is taken every 10 years, and Article IV, Section 5, requires that the legisla?ture apportion at its first session following each decennial census. If the legislature does not rewrite this article so as to change this provision, it seems that the law-making body will be required to apportion again at the first session following the 1970 census, and after that time apportionment would occur theoretically at ten-year intervals unless the legislature should take advantage of its power to call for a state census in 1975. Automatic Apportionment What will happen at the end of the next time limit? Will the legisla?ture again wait for a citizen* s law suit to force it to carry out its con?stitutional duty? Special sessions are expensive for the taxpayers. One newspaper writer has estimated that a 20-day special session will cost more than $80,000, Some states have passed "automatic" reapportionment bills in hope of avoiding a periodic struggle over representation, and the trend has been away from assigning the apportionment responsibility to the legislature, according to William J. D. Boyd in his Patterns of Apportionment. Also, the American Political Science Association and the National Municipal League have made recommendations that a commission be given the task. The NHL has drawn up a Model State Constitution. The provision for enforcement of reapportionment in this constitution reads: 6 (b) Immediately following each decennial census, the governor shall appoint a board of __ qualified voters to make recommendations within 90 days of their appointment concerning the redistricting of the state. The governor shall publish the recommendations of the board when received. The governor shall promulgate a redistricting plan within 90 to 120 days after appointment of the board, whether or not it has made its recommendations. The governor shall accompany his plan with a message explaining his reasons for any changes from the recom?mendations of the board. The governor's redistricting plan shall be published in the manner provided for acts of the legislature and shall have the force of law upon such publication. Upon the application of any qualified voter, the supreme court, in the exercise of original exclusive and final jurisdiction, shall review the governor's redistrict?ing plan and shall have jurisdiction to make orders to amend the plan to comply with the requirements of this constitution, Mr, Boyd notes that several states have applied these recommendations, ,o.apportionment is assigned to a special commission in Alaska, Arkansas, Hawaii, Missouri and Ohio, Arizona assigns the task to its secretary of state. In so,ie states the commission is to act only if the legislature fails to apportion within the allotted time; this latter procedure is provided in California, Illinois, Michigan, North Dakota, Oregon, South Dakota and Texas. Thus far the experience in those states which have assigned the task to commissions only if the legislature fails to act would suggest that a token reapportionment by the legislature can often avoid the true reapportionment which the census figures would seem to demand, Oregon and South Dakota have the additional safeguard of judicial review, however, which has forced compliance with the full apportionment provisions of the constitution. There are numerous arguments given in favor of assigning the task to a commission. First, it relieves legislators of the problem of redistricting their associates, and sometimes themselves, out of a job. Second, making the commission responsible to the governor is part of the argument for checks and balances. Third, such a commission would be much less exposed to the pressures existing in a legislature, and the evils of malapportionment and gerrymander?ing might be avoided. Also, since the governor must accept responsibility for the apportionment, subject to judicial review, the temptation to draw lines for partisan advantage might well be minimized. And last, Boyd reports that the actual experience of the state which have used such a commission has shown "...a high degree of adherence not only 7 to the letter hut also to the spirit of laws governing both apportionment and the compactness and contiguity of districts." The major difficulties in Nevada in achieving such a commission may well be distrust of the governor and the Nevada tradition of leaving apportionment to the legislature. Despite the fact that apportionment is anathema to legislators, it is likely that the cry of weakening legislative powers would be raised. Furthermore, no major organization or faction seems to have thought such a plan to be worth mentioning publically; hence, there is no public backing apparent presently. Other Recommendations Other recommendations for state apportionment were made in 1954 by the Committee of American Legislatures of the American Political Science Association: 1. The state should be divided into districts for the election of members of the legislature. For bicameral bodies, districts serving as the basis for election to the upper chamber should be larger than for the lower chamber. Ihe controlling factors in drawing district lines should be: equal numbers of population in each district, no gerrymandering, district lines drawn to permit a wide representation of interests. 2. Provision for reapportionment of seats in both houses following each decennial federal census by a special administrative agency outside the legislature, which reapportionment shall go into effect either automati?cally or in case the legislature fails to act promptly. 3. Disregard of counties and other areas of local government in laying off representative districts in so far as is consistent with efficient election administration. 4. If bicameralism is to be retained, the use of different bases of representation for each house not inconsistent with the principle of equal population constituencies right be proposed to produce a more vital bicameralism. It is suggested that if single-member districts are retained for the lower house, the senate might be elected from multi?member districts laid off with regard to important economic regions with or without proportional representation for each district. Or such a plan might be used for the lower rather than the upper house, for both houses, or for a unicamera.1 legislature. These recommendations bring up two problems of special concern to Nevada__ whether the state should use multi- or angle-member districts, and if the second house of the bicameral Nevada legislature also must represent population, how should its districts differ from those of the Assembly. Multi- or Single-Member Districts? A single-member district is a constituency in which only one legislator is elected; whereas, a multi-member district is one in which several legisla?tors are elected by the same voters. Often the multi-member district is larger geographically than the single-member district. (Sometimes one house of a legislature is elected by multi-member districts while the second, smaller house is elected by single-member districts.) Advantages claimed for single-member districts are that a citizen living in such a district is more likely to know his representative than if he lived in a multi-member district; that campaigning in a smaller district is cheaper for candidates; that candidates will be more familiar with their district and its needs; and that a group which might be a minority in a larger district will be a majority in a small district so that it might elect one voice to speak for it in the legislature. Proponents of the multi-member district claim that such a district pro?vides broader representation of the interests within the state, better candi?dates, more emphasis on the issues, rather than personality, and less likeli?hood of gerrymandering. Also, a minority group will have more of a chance of electing a candidate if it is strong enough to marshal its forces so that its members vote for only one of the candidates running, thus, in effect, maV-tng their votes count more by not giving any of the other candidates the rest of the votes. The basic argument against the multi-member district is that it promotes a "winner-take-all" system in which a bare majority can win all of the seats available. For example, if candidates are split between two major political parties, and if voters chose according to party affiliation, it is to be 9 expected that the party registering just over 50% of the vote will win 100/5 of the seats. (The Nevada League*s **The Nevada Apportionment Scene,? published in June, 1965, carried some discussion of this problem on p. A, Persons interested in reading further can consult Boyd's Patterns of Apportionment. pp. 12-1A.) Base of the Second House If both houses of a bicameral legislature are to be based on population, it may be argued that there is actually no need for more than one house. Proponents for a unicameral legislature offered a bill in the spring, 1965, session of the legislature, titled A. J. R.-33. The major reason for a second house is to provide a more deliberative chamber as an additional element in the system of checks and balances, (it can be argued that the concept of checks and balances applied to the three major branches of govern?ment? the executive, the judicial and the legislative? not within one of the branches. Furthermore, dividing the legislative branch weakens it in its relationship to the other two branches, and thereby weakens the system of checks and balances within the state.) A difference between the two houses can be maintained despite both being on a population base. The second house can have longer terms, larger districts, or can be elected in single-member districts while members of the other house are elected in multi-member districts. Any or all of these devices can be used to give the second house more stability and make it less subject to popular whim. Apportionment Proposals Various plans of apportionment were submitted to the legislature in its spring session. These plans well may form the basis for discussion during the October special session, which the Governor has called to start October 25. 10 Bills and resolutions introduced during the session were discussed in ?'The Nevada Apportionment Scene," published by the Nevada League of Women Voters in June, 1965? A look at the plans in terms of maps of the state may prove helpful to some readers. AB-1 has been described as one of the bills most favorable to the so-called "cow counties." The districts would be as follows: 1. Clark County: 7 Sen., 15 Assem, 2. Washoe County: 5 Sen., 10 Assem. 3. Elko, Eureka, Lander Counties: 1 Sen., 2 Assem. U, Churchill, Humboldt, Pershing Counties: 1 Sen., 2 Assem. 5. Douglas, Ormsby, Storey Counties: 1 Sen., 2 Assem, 6. Esmeralda, Lyon, Mineral: 1 Sen., 2 Assem. 7. Lincoln, Nye, White Pine: 1 Sen., 2 Assem. AB-327 would divide the state into six legislative districts: 1. Clark: 8 Sen., 16 Assem. 2. Washoe: 5 Sen., 11 Assem. 3. Elko, Humboldt: 1 Se?., 2 Assem. A. Churchill, Lander, Mineral, Pershing: 1 Sen., 2 Assem. 5. Douglas, Lyon, Ormsby, Storey: 1 Sen., 2 Assem, 6. Esmeralda, Eureka, Lincoln, Nye, White Pine: 1 Sen., 2 Assem. 11 AB-632 would divide the state into five legislative districts: 1. Clark: 9 Sen., 19 Assem, 2. Washoe: 5 Sen., 10 Assem. 3. Ormsby, Douglas, Lyon, Storey: 1 Sen., 2 Assem. U. Humboldt, Elko, White Pine: 1 Sen., 2 Assem. 5. Pershing, Churchill, Lander? Lincoln Eureka, Mineral, Esmeralda, Hye: 1 Sen., 2 Assem. Other Proposals Three other suggestions have been reported in the newspapers as possible alternatives. The first is to enlarge the senate to 25 members so that perhaps the AB-632 small counties could justify some of the additional seats. 'there is a constitutional limit of an aggregate 75 members for both branches; hence, this would be possible. However,one resulting problem to the small counties might be that the larger populated counties would get the lion1s share of the new six seats, giving Clark and Washoe a still larger majority of senators. Another proposal is that small population counties be allowed to retain non-voting state senators if they lose their lone seats through reapportion?ment. The non-voting senators would serve in addition to full-fledged members who would represent a block of small counties. The plan is similar to the method Congress uses to recognize U, S. territories. The territories are allowed to send representatives to study bills and speak on them, but cannot vote or introduce legislation. Such a plan may well be acceptable to the federal courts, because it is likely that the voting members are the ones counted. Also, such members could tend to local legislation for their counties. The "Pdght to be Heard" proposal is not yet fully developed and numerous questions remain. For example, what part would the non-voting members play in committee hearings? It is likely that they could not be allowed to vote. Would such members use the speaking right to block legislation by filibustering if the right was not limited? Would these members be paid the same as regular members? Would citizens lose interest in elections for legislators who have no power to vote? The other proposal involves having counties nominate candidates for the senate. These candidates would then run at large in the state. It is claimed that the court might accept this proposal because everyone in the state actually votes for all of the candidates. However, it Is possible the court would view this as an attempt to circumvent the ruling, because the senators, thus elected, would most likely feel their first allegiance to be to the counties. Also, it is highly unlikely that voters would be familiar enough with all of the candidates on the ballot? probably there would be at least 34- for the senate alone? to vote for those from other counties. Bibliography This writer is much indebted to Dr. Elmer Rusco for history of apportionment in Nevada; to William J. D. Boyd for information on "automatic" apportionment, including quotations from the National Municipal League's Model State Constitution and recommendations of the Committee of American Legislatures of the American Political Science Association, and for discussion of the base of the second house; and to the Legislative Counsel Bureau for discussing various phases of the decision with the writer. 12 13 V** U. Boyd, William J. D., Patterns of Apportionment (New York: National Municipal League, 19^2.). Driggs, Don W., The Constitution of the State of Nevada: A Commentary (Reno, Nevada: University of Nevada Press, 1961)? Dungan v. Sawyer. (United States District Court for the District of Nevada, Civil No. 695? Sept. 23, 1965). League of Women Voters of Nevada, "The Nevada Apportionment Scene" (mimeographed, June, 1965). Rusco, Elmer, "Apportionment in Nevada? History" (mimeographed, 1965). "Nevada Reapportionment Plan: Maybe It111 Work Out This Way: Voteless Senators for Some," Reno Evening Gazette. Oct, 5, 1965, p. 12. "Slattery Seeks Statewide Senator Election," Reno Evening Gazette. Oct. 8, 1965, p. 13. Sfaith, Bob, "Gazette News Analysis: Reapportionment Headache: a Pain to Taxpayers," Reno Evening Gazette. October 6, 1965, ;? 1? a