If Nominated, I Will Not Run — But Can I Serve?

The Nevada Policy Research Institute has sued Mo Denis, who repairs computers for the Public Utilities Commission. What does NPRI have against him? Nothing, but he’s a Democratic state senator and a public employee. NPRI argues that the Nevada Constitution prohibits him (or me, thankfully), as a state employee, from serving in the legislature.

Political analysts Jon Ralston and Steve Sebelius have columnized that they have no great love for NPRI—and Ralston correctly has called for a full-time Legislature; we’ll explore that another time—but the law, they argue, is on the group’s side.

They may be right. And they may be wrong.

NPRI cites the Nevada Constitution, Article 3, Section 1: “The powers of the Government of the State of Nevada shall be divided into three separate departments—the Legislative, the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution.”

That seems clear. But it isn’t. For one thing, legislators employed by the Nevada System of Higher Education have pointed out that colleges and universities don’t really belong to any branch. Could the court rule that some state employees can serve and others can’t?

Also, “the functions, appertaining to either of the others,” may not technically be legislative or executive or judicial, and “the cases expressly directed or permitted in this constitution” aren’t cut-and-dried.

Consider Article 4, Section 6: “Each House shall judge of the qualifications, elections and returns of its own members,” among other things. That seems expressly directed. If the two houses decide their members are qualified and do not clearly exercise those functions, that may well be all that matters. The Nevada Supreme Court could say the state Constitution precludes it from deciding who sits in the Legislature.  You can call that punting the decision—but it would put the onus on lawmakers, who might protect their colleagues but also might face public opprobrium.

Another issue is that the U.S.  Constitution supersedes Nevada’s.  Sheila Leslie, a Democratic state senator from Washoe County, asked, “How can you have a citizen legislature and exclude an entire class of citizens?” Section 1 of the 14th Amendment says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws.”

The U.S. Supreme Court used this equal protection clause and Article IV, Section 4 of the Constitution — “The United States shall guarantee to every State in this Union a Republican Form of Government” — to force legislative redistricting that assured “one man, one vote.”

Does barring a class of citizens from serving in the Legislature violate both the original document and the 14th Amendment? You may say no, but if the answers were that obvious, every judicial decision would be unanimous. This one could be, too, but the Nevada Supreme Court may not have the last word.

Still, this lawsuit begs fascinating questions. For example, the discussion about the 14th Amendment and “one man, one vote” makes one wonder: Is it legal to require two-thirds of Nevada’s Legislature to approve a tax increase when no other legislation must meet such a standard, and thereby make one-third of the voters more powerful than the other two-thirds? Doesn’t that violate the reapportionment decisions?

Also, why has NPRI decided to act now? Since it won’t open its books and show who the ventriloquists are, who make its staff’s mouths move, we may never know, but did anybody notice that Dina Titus, a university professor whose work might be outside the province of this case, spent 15 years as state senate minority leader without NPRI suing, but the prospect of PUC employee Denis as majority leader prompted action?

Whether or not the law is on NPRI’s side, at least we know morality isn’t.