Opinion: Nevada Democrats Speed Towards Constitutional Train Wreck

Democrats in the Nevada Legislature are pushing two bills that will create a constitutional crisis in a future presidential election. It would seem that the Democratic Legislative Majority is the at-large Keystone Cop of the Electoral College by introducing two bills that directly conflict with one another in relation to the electoral college and the outcome of elections. 

Senate Bill 133 (SB133) mandates that Electors mark only ballots that represent the winner of the vote in Nevada and is being considered at the same time Assembly Joint Resolution 6 (AJR6) mandates that Electors vote for the national vote total.

SB133 could be best described as the “We Hate President Trump and Don’t Understand the Electoral College Bill.” Democratic Senator Skip Daly (SD-13) is the sponsor advocating to charge an alternate elector with a felony for marking ballots for a presidential candidate who did not win the popular vote in Nevada. Secretary of State Cisco Aguilar testified in support of the bill.

Senator Daly dismissed comments from public defenders who warned that the proposed penalties are far too steep and disproportionate to the “crime.” As we watched the live video stream of the Operations and Elections hearing, Sen. Daly was “offended” by those who opposed his legislation and rejected the public defenders’ warnings, insisting that his proposed felonies “didn’t go far enough.”

How far would you like to go, Senator?

This continuing fixation on punishing Trump supporters clashes with the Democratic majority’s other priority of seizing as much power as possible without letting the US Constitution get in their way. State Democrats are once again pushing for the National Popular Vote Compact (NPV) efforts with Assembly Joint Resolution 6. (AJR6)

Today, Democratic State Senator Howard Watts opined: “The National Popular Vote Interstate Compact ensures that the person who becomes president is the one that wins the most votes nationally — continuing the fundamental democratic principle of all votes being treated equally. That is why I have introduced Assembly Joint Resolution 6, an amendment to the Nevada Constitution to add Nevada to other states that have come together to say the president of the United States should be the person who wins the most votes across the United States.”

Yet, how are Nevadan’s treated equally if a majority of Nevadan’s reject President Joe Biden in 2024 but populous Democratic states and urban areas give Biden the edge over his Republican challenger?

During the 2017 legislative session, the first attempt at the compact was introduced in  AB274 but died in the Assembly Committee of Legislative Operations and Elections after one hearing with no vote taken. 

During the 2019 Legislature session AB 186 made its way to Governor Sisolak’s desk where he vetoed it, warning that the NPV could leave a sparsely populated Western state like Nevada with a greatly diminished voice in the outcome of national electoral contests.

During this legislative session, in order the bypass another likely veto, the NPV lobby wants to amend the Nevada Constitution through AJR6. AJR6 must pass two sessions of the Legislature and a vote of the people before it is amended into the Nevada Constitution. 

Trent England, attorney and executive director of Save Our States described the Democrats’ efforts: “It’s ironic that those pushing the NPV compact in Nevada are trying to avoid the normal democratic process, which involves passing a bill in each chamber and then sending it to the governor. They’re trying to avoid Gov. Lombardo—who was elected by the people—because he might veto NPV just like former Gov. Sisolak.”

The US Constitution clearly specifies that legislatures determine how Electors are assigned. As AJR6 requires a vote of the people, it violates the Elector’s Clause of the US Constitution.

The Supreme Court cleared this up in  Hawke v. Smith: “The term “legislatures,” as used here and elsewhere in the Constitution, means the deliberative, representative bodies that make the law for the people of the respective states; the Constitution makes no provision for action upon such proposals by the people directly.”

Clearly, NPV abolishes the one-peron, one-vote of Nevadans. Candidates will campaign in large cities to cost-effectively collect votes. This runs in opposition to the intent of the Presidential Primary law passed by the Nevada Legislature to make Nevada “First in the West” in the upcoming 2024 election.

NPV also changes the assignment of Electors based on Nevada’s election results by assigning Electors based on the national vote total. Thus, AJR6 ignores the will of Nevada voters and lets the country dictate our vote.

To illustrate this above, legislative dichotomy, consider this scenario: Jane Doe wins the NPV and mandates that Nevada Electors will vote for her under AJR6. However, if in the same election, Nevada voters choose Billy Smith, SB133 requires the Electors to vote for him. If the Electors vote for Jane Doe, Sen. Daly’s SB133 hits them with a felony.

Yet another legal problem for NPV is the Compact Clause of the US Constitution, which reads in part, “No State shall, without the Consent of Congress, …enter into any Agreement or Compact with another State….”

Legal scholar Thomas Jipping, Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies, wrote: “The NPV compact requires congressional consent under the current theory of Virginia v. Tennessee and Northeast Bancorp because it enhances the political power of compacting states at the expense of non-compacting states.”

In a future election where votes are already cast and our Nevada Secretary of State will have to determine what the proper national vote counts are with other states to settle on a final total. Once our Secretary announces that Nevada’s electoral votes will go to the NPV winner, not the winner in Nevada, lawsuits will fly.

Whether Nevada’s results agree with the national vote or not, we will see litigation against the NPV and force the courts to decide if Congress must approve the NPV compact. The principle of legal standing essentially means that a litigant must be injured before a legal case can be brought. This means the NPV must be triggered before it can be challenged in court.

The Electoral College was designed to reflect the will of a state. The Electoral Count Act, as updated earlier in 2023 by Congress as a response to the 2020 presidential election, does not allow a state to change how they assign electors or count ballots once votes are cast.

What happens if the NPV is declared unconstitutional? Does Nevada assign Electors via NPV anyway? Can they change back and then violate the Electoral Count Act? Will the Supreme Court have to direct some radical fix? Any change would require the Nevada Legislature to meet in an emergency special session as it is up to them to decide how Electors are assigned.

Legal scholar Trent England of Save Our States added, “Putting an interstate compact into a state constitution is very odd. I don’t know of any other state or compact where that’s the case. And for good reason. Binding a state in an agreement with other states is something that belongs in statutes, not in a state’s most fundamental law.”

Should these two bills pass the Democratic majority, Nevada will muck up a national election and be a national embarrassment while forcing the courts to rapidly process a novel, half-baked constitutional question as the nation awaits their final decision to incorporate into their NPV total.

Democrats have been insisting that Republicans move on from the 2020 election, yet, Democrats are the ones who can’t seem to move on. They are determined to give away Nevadan’s votes to some national total while passing a law forcing future Electors to choose which law to violate.