MINUTES OF THE meeting
of the
ASSEMBLY Committee on Elections, Procedures, and Ethics
Seventy-First Session
April 5, 2001
The Committee on Elections, Procedures, and Ethics was called to order at 3:45 p.m., on Thursday, April 5, 2001. 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. Bob Price, Vice Chairman
Mr. Bernie Anderson
Mr. Douglas Bache
Mr. Bob Beers
Mr. Greg Brower
Ms. Barbara Buckley
Ms. Vivian Freeman
Mr. Richard D. Perkins
Ms. Kathy Von Tobel
COMMITTEE MEMBERS ABSENT:
Assemblyman Lynn Hettrick
Speaker Emeritus Joseph Dini, Jr.
GUEST LEGISLATORS PRESENT:
Assemblyman David Humke
STAFF MEMBERS PRESENT:
Scott G. Wasserman, Committee Counsel
Michael Stewart, Committee Policy Analyst
Ann M. VanNostrand, Committee Secretary
OTHERS PRESENT:
Polly Hamilton, Executive Director, Commission on Ethics
Barbara Reed, Douglas County Clerk/Treasurer
Donna Cardinelli, Clark County Registrar of Voters
James Hulse, Common Cause
M. K. (Ike) Yochum, Vice Chairman, Nevada Independent American Party
Lucille Lusk, Nevada Concerned Citizens
Janine Hansen, President, Nevada Eagle Forum
Alan Glover, Carson City Registrar
Nina Bechtel, Incline Village Republican Women
Elizabeth Pederson, League of Women Voters of Nevada
Jan Gilbert, Progressive Leadership Alliance of Nevada
Susan Morandi, Deputy of Elections, Office of the Secretary of State
Kateri Cavin, Deputy Attorney General, Office of the Attorney General
Tom Skanke, Private Citizen, Clark County
Todd Russell, Vice Chairman of the Ethics Commission
Janette Bloom, Clerk, Nevada Supreme Court
Chairwoman Giunchigliani opened the meeting as a subcommittee until other members arrived upon the conclusion of other assigned committee commitments. She opened the hearing on A.B. 483.
Assembly Bill 483: Makes various changes concerning reporting of campaign contributions and expenditures. (BDR 24-557)
Assemblyman Beers, Clark County, District 4, presented A.B. 483, which was borne out of a particularly bad campaign finance-reporting season in Clark County during 2000. He stated candidates had a particularly difficult time making sense of the forms as well as the filing process. There was enough press attention paid that made everyone involved in government look bad. In an effort to improve the campaign finance-reporting process, Assemblyman Beers met with Secretary of State Dean Heller, who agreed to attempt to rewrite the campaign finance disclosure forms, the result of that collaboration being A.B. 483.
Conceptually, the bill called for the same form to be filed by different entities, inclusive of campaigns, political action committees (PAC), and political parties. The report was filed annually regardless of total threshold funding met in a single, nonelection year. If $10,000 or more was raised during an election year, one of the three named categories listed was required to file a disclosure form, and repeat that information on the first report filed during the election year. The goal was to replace that method with annual filings for everyone involved, except during an election year, when there continued odd-looking ending periods and due dates in order to accommodate the additional disclosure requirements that citizens wanted to see prior to voting for a candidate. After election, a 1231 Report would be filed to close the year, after which the candidate, PAC, or political party returned to the annual reporting schedule.
All funds were included because of a high profile campaign in Clark County where the candidate failed to understand that he was to include all of his funds in the beginning balance figure. Assemblyman Beers hoped the language within the bill made it clear the beginning balance was to be included and to agree with the ending balance on the prior report. That being accomplished, it provided the citizens a continuous record of campaign financial activity.
Assemblyman Beers pointed out some minor changes regarding the detailed amounts and dates of all receipts and expenditures under $100, that procedure no longer mandated through this law. The separate line item for filing fees was also eliminated, with a separate line item to report interest or any other investment income earned while the funds were not being used. There was a section to highlight loans received, and the reporting of contributions and expenditures over $100 to be retained. He stated the bill was long was because there were several areas of law covering each category, therefore, the same set of changes had to be made repeatedly in the various sections of the law.
Chairwoman Giunchigliani asked if there was an area to enter carry-over funds as an opening balance. Assemblyman Beers stated he had volunteered to be a campaign treasurer for a friend and confessed to taking his accounting background to the test and through this bill, bring order to the chaos. Chairwoman Giunchigliani understood the form suggested dealing with amounts of $100 or less and asked if the bill eliminated the form that in the past required entering of the expenditures under $100 to come up with an aggregate amount. Assemblyman Beers stated the form in question was new during the last election cycle. Prior to that time, the total of under $100 activity was put on the front as a receipt or expenditure, and remained there under the new proposal. He did not recall if on the form it asked for the number of contributions under “X” amount, but it could be added if it was felt that area needed to be retained. He felt, as did Chairwoman Giunchigliani, the new form provided valid information the citizens understood.
In an overview of the bill, Chairwoman Giunchigliani verbalized picking up political parties, persons, and committees, as reported on page 7 of the bill. She understood the intent there was disclosure, not personal bank accounts. She asked the purpose for picking up the political parties. Assemblyman Beers answered it simplified the process of reporting. The disclosures were not changed, other than those described, but the objective was to develop one form to be used by all entities and as a simplification measure from the Secretary of State’s perspective. He pointed out on page 7 where the local municipality elections were picked up. The last report of the year covered six months, though for a general election, the last report of the year covered one month due to the timing of the election periods. Chairwoman Giunchigliani reverted to a prior committee meeting when Assemblyman Anderson pointed out that some local governments and city charters were trying to match the general election cycle, and asked if they would then fall under the general election cycle for filing.
James Hulse, representing Common Cause, believed A.B. 483 improved the reporting system and clarified the previous confusion.
Jan Gilbert, Progressive Leadership Alliance of Nevada (PLAN) introduced Exhibit C, a report developed by Paul Brown who had provided “jackpot reports” on campaign contributions to PLAN for several years. Mr. Brown was delighted that A.B. 483 reverted the report into an accounting style form. PLAN included examples of how the new form worked and simplified the process. Mr. Brown, through Ms. Gilbert, suggested the last entry be called “ending balance,” as that clearly defined the information. Per Ms. Gilbert, Mr. Brown felt people would be confused by the “all bank accounts” balance requirement.
Janine Hansen, President, Eagle Valley Forum, stated she was not specifically in opposition to making the reporting forms more understandable, but was opposed to that type of evasive campaign reporting that decreased citizen participation and involvement, reduced the number of candidates willing to run and thus decreased choices for the voters. It hurt, in particular, nonincumbents and minor parties by opening them up to reprisals and harassment, which she herself had experienced. She did not feel it improved the character level in the honesty of candidates and violated many constitutional rights.
Assemblyman Brower had never heard the Eagle Valley Forum’s position on the issue in question and asked her to briefly explain what sort of system would be preferred. Ms. Hansen stated she preferred the system used since the beginning of our nation without government censorship where people had the opportunity to exercise their free speech without oversight. She believed campaign laws created censorship because they determined how much money people could receive for campaigning. For instance, a nonincumbent needed to raise double the amount of an incumbent in order to be able to compete on an equal playing field; therefore, putting challengers at a disadvantage. Also, the low reporting level of $100 made it difficult for challengers because they faced, through their businesses, reprisals from people in opposition. She felt it dampened political involvement. She stated there was no more honesty in government since the imposition of the laws than before, and felt the way to answer such problems was through public debate. It did not improve the level of debate or candidates, and ultimately it dampened the ability and interest of many to become involved in the process. Ms. Hansen stated one of their candidates was severely harassed and lost his job because of his political positions.
Assemblyman Brower understood she was basically opposed to the thresholds and disclosure requirements. Ms. Hansen answered in the affirmative. She was opposed to the concept, not the bill specifically.
M. K. (Ike) Yochum introduced himself as the vice chairman of the Independent American Party (IAP) for the state of Nevada and represented the IAP. He stated he signed in as opposing the bill, though his opposition was to the concept of that type of reporting. He stated he was old enough to recall when such reporting became mandated and he had not noticed any improvement over the years. He stated that even though no campaign funds were received, a candidate was required to fill out the forms. He felt the general public thought as he did, the financial requirements were a nuisance and should be done away with completely.
Mr. Yochum presented the committee with a letter to the Secretary of State from an IAP candidate, plus a memo to Janine Hansen defining the areas of the constitution they felt covered the infringement of constitutional rights (Exhibit D).
Chairwoman Giunchigliani closed the hearing on A.B. 438 and opened the hearing on A.B. 637.
Assembly Bill 637: Makes various changes concerning elections. (BDR 24-339)
The representative for the Nevada Association of County Clerks and Election Officials, Alan Glover, stated A.B. 637 was a bill election officials had been working on for the past one and one-half years. They had developed a number of amendments to the bill, which were described as follows:
Chairwoman Giunchigliani asked if the change was made, would it now be argued that if mailed they would not have to be hand distributed. Mr. Glover stated that “distribution” included mailing. Chairwoman Giunchigliani said that Senator Titus chaired the committee in the Senate that dealt with the same process.
· Section 25 – Mr. Glover stated the section needed an amendment because when they struck the language “Tuesday” and replaced with “10 calendar days,” they were informed that did not meet with federal requirements. The language had to indicate “7 days.” He stated that would help in the area of special elections because they were called on different days of the week. Therefore, they wanted a 7-day leeway before an election regardless of when it happened;
· Section 27 – Amendment on early voting to insert the term “early voting location,” which solved problems and helped voters with the legal mechanism for surrender of ballots to the clerk;
· Section 28 – Deleted language on line 48 . . . “file the voted ballots on a string, enclose and seal them in an envelope marked election returns . . .”;
· Section 29 – Amendment to delete new language, to be addressed by Donna Cardinelli, Clark County Elections;
· Section 30 – Addressed keeping up with modern times by eliminating the voter registration duplicates. Larger counties no longer kept the duplicates though some of the smaller counties did. On line 13, replace the word “unique” with “identifying number.”
Assemblyman Beers indicated he did not understand the reason for the line 13 changes. Mr. Glover stated the Committee on Elections, Procedures, and Ethics changed the word “unique” to “identifying number.” The Senate changed it back to “unique.” A “unique number” meant what? Assemblyman Beers indicated that to him it meant a number different from all other numbers, being a flag in the field of a database.
Barbara Reed, Douglas County Clerk/Treasurer, stated the amendment came about due to a court case out of Las Vegas because someone did not want to divulge their social security or Department of Motor Vehicles identification number. It was suggested to the registrars that in those cases, an individual be assigned a number. The concern with using the word “unique” was that it might create additional problems through challenges because their definition of “unique” was a social security or DMV identification number, not an assigned number picked by the registrar’s office. If the Secretary of State assigned each county a block of numbers, they did not want legal conflicts that indicated the block of numbers was not “unique” because each county had separate blocks. Each county clerk/registrar wanted a block of numbers assigned and from there assign the voter an identifying number out of that block. In essence, they were trying to prevent such limiting language.
Assemblyman Beers understood the issue to not be the voter identification number. Chairwoman Giunchigliani recapped Assemblywoman Tiffany’s bill from Mr. Hansen, during the 1999 Legislative Session, that social security numbers should not be a qualifier. It was similar to the discussions being held with DMV and personnel records. She said they would be assigned through a random, rolling, established list of numbers. Assemblyman Beers confirmed it did not relate to the voter identification number, but a number to put in the social security number field on the registration form.
Ms. Reed stated the legislation was passed on the assembly side during the 1999 Legislative Session, with the language “using identifying number,” yet somehow it was changed back to “unique number” on the Senate side. The change was not noticed until the final bill was released.
Alan Glover continued:
Assemblyman Beers asked if there was a problem amending Section 7 to say, “Upon exhaustion of current supply of registration forms, the following message will appear on the new forms,” alerting citizens to the fact the message would be imprinted on the new forms. Mr. Glover had no problem with that suggestion.
Chairwoman Giunchigliani asked if there had not been a bill from Senator Wiener regarding such wording. Ms. Reed stated that bill covered sample ballots but they were also required to include a statement on the registration form that said, “If a larger font is needed on the sample ballot, check this box.” She felt that amended the new applications as well.
Assemblyman Beers asked who printed the ballots, i.e., each county from the Secretary of State’s template, or did each county do a template and submit for approval. Mr. Glover stated the ballots were printed from the template provided by the Secretary of State. He also stated the clerks needed to work together to find the most efficient source for printing.
Assemblywoman Freeman found it difficult to understand the reasons behind withholding such information from the candidates and general public. Mr. Glover referenced legislation from several sessions prior that the Committee on Elections, Procedures, and Ethics set up laws for people to protect their identity if they so wished. At that time, the clerks withheld addresses only. This legislation would extend that to the telephone, social security, or driver’s license numbers. Chairwoman Giunchigliani stated Senator James presented the referenced legislation. Assemblywoman Freeman understood the right to privacy but it seemed that within the political process as a candidate it was important to know where constituents lived. Very often, the only way to discover this information was through the registrar of voters.
Donna Cardinelli, Clark County Registrar of Voters, stated their main concern was the identification number because prior to the unique number being assigned the social security numbers for 500,000 voters were at risk. There was an occasion where callers insisted the social security number of another person be revealed, and there was nothing in the law to prevent the clerks from following through. This bill would include the confidentiality of the social security and/or driver’s license numbers.
Assemblywoman Freeman felt a candidate should know where the voters in a district lived, as well as voters knowing where the candidate lived. Chairwoman Giunchigliani interjected that the genus of Senator James’ bill came about because of a stalking issue. Most of the counties had learned that only a handful of individuals would request their addresses be withheld from the voter registration lists. Assemblywoman Freeman understood the stalking issue, having been a victim of that crime herself, yet she wanted to know what percentage of the voters and candidates had requested their addresses not be available to the public.
Ms. Cardinelli answered the law only applied to those registering to vote, not the candidates themselves. If a candidate signed a declaration of candidacy, they could not keep their address confidential. Also, if a person applied for and filed an absentee ballot, they were unable to keep their address confidential.
Assemblyman Anderson voiced concern about the telephone number. In the course of campaigning many telephone calls were placed. Upon calling someone with an unlisted telephone number they normally asked how the candidate had received the number. Honestly answered, the candidate would say from the registrar of voters. Thus, there was an issue where someone specifically excluded himself or herself from having their phone number listed in the telephone book because they wished not to have that number disclosed. He had more difficulty with the addresses being withheld because there had to be a way to find the voters. He felt if a person wanted to vote, they had to be informed, and the candidate more often than not mailed out material as well as made in-person contact within their precinct areas, though he thoroughly understood the fears regarding the crime of stalking.
The committee shared the same concern when it came to reaching voters, Chairwoman Giunchigliani answered. She also pointed out it was an “option,” not mandated that the phone number appear on the voter registration form. Mr. Glover stated for those people who chose to use the provision of the law, not only would the address be withheld but the phone number as well. Under the present statute, only the address could be withheld. Chairwoman Giunchigliani stated the registration form did not require the phone number.
Ms. Reed shared that in Douglas County there were approximately 28,000 registered voters and only 12 to 15 voters had chosen to have their address remain confidential. The reason given in each instance was because the individual had, at one time or another, been stalked.
Mr. Glover added there were 2 of 25,000 registered voters in Carson City who had requested this service.
Ms. Cardinelli presented testimony regarding the above-mentioned changes (Exhibit E).
Assemblywoman Freeman asked how long the hard copies of registration forms were maintained. Ms. Cardinelli answered the originals were kept indefinitely as there were no provisions within the law to allow for destruction of the records. She stated Washoe County scanned the applications and maintained those within a computer system though the original applications were also available. Chairwoman Giunchigliani asked if there was a need to keep them that long. Ms. Cardinelli stated that when Clark County upgraded to an imaging system, the original forms were batched and stored in a warehouse. In the event of a court case, copies were not accepted. Mrs. Freeman stated libraries had dealt with such a problem for many years and urged changes.
Chairwoman Giunchigliani referenced Section 29 and stated the current law allowed destruction of the voters’ ballots and rejected ballots after 22 months. Ms. Cardinelli stated existing law allowed destruction of the poll books.
Scott G. Wasserman, Committee Legal Counsel, clarified that existing law required voted ballots, rejected ballots, spoiled ballots, tally lists, and poll books all be sealed and destroyed 22 months later. The clerks indicated that the tally lists and poll books had to remain open to public inspection. The amendment stated the materials had to be maintained and preserved for the 22 months, and after that period all materials were destroyed. Thus, the tally lists and poll books no longer had to be sealed. Chairwoman Giunchigliani asked if NRS 293B.400 referred to printed-paper records of a ballot. Ms. Cardinelli answered in the affirmative.
Chairwoman Giunchigliani asked Mr. Glover to walk through Page 26, which pertained to petition issues. Mr. Glover stated that area pertained to cleanup language. Mr. Wasserman interjected the language was added to apply to NRS 295 in its entirety for verification of signatures. It was based on existing law that applied to specific petitions, the new language applying it to all petitions. He said also the language was in statute for some petitions and the clerks had indicated it the procedure followed for all petitions. The new wording made it clear the law applied to all petitions.
Chairwoman Giunchigliani asked if the new wording provided for noncount of name removal requests if those received would not affect the outcome of the petition. Mr. Wasserman stated that was an amendment to A.B. 299.
Chairwoman Giunchigliani did not want to conflict with Senate legislation in this area, therefore if amendments were going to be enacted there, they should not be dealt with on the Assembly side. Mr. Glover stated the clerks preferred to have everything addressed on the Assembly side. He stated the amendments would be redrafted and given to Michael Stewart, Committee Policy Analyst, by April 10, 2001, in time for the scheduled work session.
Lucille Lusk, Nevada Concerned Citizens (NCC) representative, voiced support of the bill and the many areas that improved the process. She began by referencing the section that dealt with voters removing their name from a petition and approved the language regarding requests for name(s) removal from a petition, though it would not be needed if A.B. 637 was adopted. She pointed to Section 21, page 6, which removed the requirement of a published alphabetical listing on voting day. She understood that in the past they were not used, but felt this a valuable tool and NCC preferred that process continued. Turning to page 8, Section 23, she requested changing the wording to “. . .a person who distributes more than 500 absentee ballot requests.” NCC agreed and was in favor of changing the word to “mailed.” Ms. Lusk then presented an amendment for line 41. NCC wanted “. . . an approximate number of forms distributed . . .,” since the forms were no longer being mailed.
Going on to line 44, Ms. Lusk stated the language “. . . may not mail a form later than 21 days. . .” made sense for mailing instructions, but did not feel it should apply to “. . . may not distribute a single form 21 days before.” NCC requested that in that line only the term “mail” remain, restricting an organization from mailing the forms later than 21 days but they could still hand the form to someone who personally appeared at the party office. Or, as an alternative, if distributing 500, to say, “may not distribute more than 500 forms.” As it presently read, it addressed a single form. Page 12 provided confusion regarding lines 4 and 5, where it read, “A form on an application to vote must include a duplicate copy.” The bill as written would change “must” to “may.” If it was a voter registration form, the duplicate copy, she understood, was given to the person as a receipt for having registered. Her question was what proof was given to the voter that they did indeed register if the NCR type forms were no longer used for registration.
Chairwoman Giunchigliani stated she had made a similar note, and felt there should be something on the form itself instructing the individual to retain a copy for their records.
Ms. Lusk addressed page 29, stating the language was currently in law but was confused as to what she understood the law to mean. Lines 29 through 40 stated, “A petition certified insufficient for lack of the required number of ballot signatures may be amended once if requested within two days.” She understood there were actually ten additional days to turn in more signatures. Not only did it seem odd, people understood that when the petition was turned in, that it was counted. It was far too confusing if a group was allowed to amend a petition after it was turned in as it appeared to say there was a second chance option and NCC felt it was not a good idea.
Chairwoman Giunchigliani commented that regardless if there was agreement with the subject of the petition or not, the petitioner could discover they only needed one more county and three more signatures, which was, to her, nonsensical and defeated the entire purpose of certifying the petition. Ms. Lusk commented also that the clerks would then be required to count signatures twice. Chairwoman Giunchigliani asked Ms. Lusk to present her amendments in writing and provide them to the committee before the work session, to which she agreed. Mr. Stewart pointed out the section addressed dealt with county initiatives and referendums only. Ms. Cardinelli replied that if needed, the area could be removed to provide the same standard for city, county, and/or state.
Janine Hansen, President, Eagle Valley Forum, pointed to page 16 and the issue of allowing the voter’s social security number to not be given out was appreciated, especially with identity theft as one of the growing crimes today becoming a serious problem. On page 28, line 18; they supported the non-removal of a signature from a petition. Ms. Hansen closed by referring to information provided earlier (Exhibit D).
Nina Bechtel, Incline Village Crystal Bay Republican Women, echoed comments made previously regarding the posting of Election Day lists of those who had and had not voted. Having used the process, the list had helped considerably the “Get-out-to-Vote” effort. She called attention to differences in language in Section 23, page 8, regarding the form distribution. Line 37 stated, “The organization distributing the absentee ballot must state that by returning the form, the form would be submitted to the county clerk.” That differed from S.B. 297, which stated, “The registered voter must return the form to the county clerk and the person who mailed the form to the registered voter may not return the form.” That was the type of language they preferred not to see as it related to the problems encountered in Florida where the Democratic Party sent out their absentee ballots, which were returned to the party office. The Republican Party did not follow that process, thus causing the faux pas during the past Presidential election. By having the absentee ballots returned directly to the county clerk’s office, a state avoided being accused of voter fraud. Going on, she referenced Section 27 on “. . . absentee voters appearing at the polling place requesting to vote.” She wanted assurance that not only was the information checked in the voter’s presence, but when it came to Election Day that the county clerk verified the absentee ballot was not returned later. Ms. Cardinelli stated there were procedures to assure the absentee ballot was not turned in or counted. Ms. Bechtel asked why the distribution of absentee ballots was limited to 500 voters. Her concern was smaller interest groups could put together mailers or distribution of 100 at a time, being able to collect them personally and taking to the county clerk. Chairwoman Giunchigliani stated that question was addressed during the 1999 Legislative Session as well, and was not sure from where the “500” limit came.
Ms. Reed stated the number was picked to provide notice and avoid running out of supplies, i.e., ballots or envelopes, and if additional personnel were needed, they would be able to bring on staff without creating a backlog. Absentee ballots were at times received in batches of up to 1,000 at a time and that created a severe hardship if the supplies and staff were not available to process the paperwork. She said the “500” or greater created the best comfort zone.
Elizabeth Pederson, League of Women Voters of Nevada (LWVN) representative, had one exception to the bill: Section 3 and Section 37. She understood there was a concern about the length of time someone stayed in the voting booth, but did not feel it should be in statute as it opened up the possibility for discrimination. She asked how the election staff decided someone was in the voting booth for the purpose of holding up the election and not because they were voting. There were many reasons for one taking longer than another:
There was any number of legitimate reasons for being in the voting booth longer than what was beyond the norm. Chairwoman Giunchigliani interjected the section addressed was being deleted from the bill.
Susan Morandi, Deputy Chief of Elections, Secretary of State’s Office, shared that there was now available a voter registration card given to the voter upon completion of registration. There was a statement on the registration form that alerted the voter to contact the county clerk and/or registrar if within ten days they had not received this card via the mail. Chairwoman Giunchigliani asked if the yellow form was still used and if the cards were available at the registration site. Ms. Morandi stated the cards were handed out by the county clerk’s office after the application was processed. Chairwoman Giunchigliani commented on others collecting the registration forms or they were dropped off at the Department of Motor Vehicles, the yellow copy being the only proof voters had because the original had never reached the county clerks office and been processed.
Ms. Hansen returned to the table and stated that during the past year some rural counties did not have the duplicate forms available, restricting the use of the NCR forms, and using the federal form rather than that of the Secretary of State. In cases where there was no duplicate copy, should those counties be instructed to use the form recommended by the Secretary of State versus the federal form. She stated voter registration information from several rural counties was difficult to obtain and she ended up sending copies from Washoe County because the copies were not available through the rural clerk’s office. Chairwoman Giunchigliani stated she appreciated knowing about the problems encountered and said it was very discomforting.
Ms. Cardinelli stated they were trying to eliminate the yellow NCR copy of the application. The Secretary of State was in the process of designing a new form for all counties to use, in turn allowing the counties to design an attached, perforated receipt that the voter could use for proof of registration. The purpose of getting away from the NCR forms was economic in nature.
Assemblywoman Freeman commented on the resource difference between large and small counties. Smaller counties lacked funds to provide the services that the larger counties had no difficulty with. Due to Clark County’s size, she felt it was difficult for people in that area to truly understand the problems of the rural areas. If the smaller counties were expected to provide the services the residents of the larger counties had always been able to financially provide, they needed help from those more fortunate. Chairwoman Giunchigliani agreed with the disparity mentioned by Assemblywoman Freeman. She then asked Ms. Morandi if there would be, in the new form, a check box to alert the clerks of a disability. Ms. Morandi stated that was one of the areas she was waiting on as the forms had gone to the printers prior to seeing the requirements of the bill. The bill mandated font size, which meant possibly going from one page to two. Chairman Giunchigliani asked if the Senate bill mandated the font size. Ms. Morandi stated it did but she had not seen a redraft so could not say for sure. Chairwoman Giunchigliani stated they would talk about that in work session, as the original intent was not the voter registration form but the absentee ballot. Also, the check box would alert the clerks to the need for an absentee ballot. Ms. Morandi stated the check box had been affixed to the form.
Chairwoman Giunchigliani closed the hearing on A.B. 637.
Assembly Bill 638: Makes various changes regarding elections, ethics and financial disclosures. (BDR 24-873)
Upon opening the hearing on A.B. 638, Chairwoman Giunchigliani requested the gallery’s pleasure of walking through the bill from her seat at the dais. With no objections, she continued, stating the committee worked to draft a bill that would alleviate many of the problems faced during the last Presidential election in Florida. It also addressed a tighter definition of “disclosures.”
She began the discussion with the definition of “chips” (not chads as commonly known in other states), where excellent language was found within the Secretary of State’s regulations. The language had worked and there had never been a recount or challenge. She referenced the most recent history of such an issue being the race between Senator Ensign and Senator Reid. What they wanted was to codify in law how and why the procedures had worked, and because regulations could be changed very easily through public hearings. They felt a statute was needed that would clarify what Nevada’s recount procedures were as well as a clear definition of a “chip.”
When Mr. Wasserman worked on the drafting, it was simply to codify and not make any changes because Chairwoman Giunchigliani did not want to fix something that was not broken. Therefore, if anyone had found language changes, a phenomenon that could happen, let the committee know.
Mr. Wasserman spoke on both Section 4 and Section 17 at the Chairwoman’s request.
Ms. Hansen asked if that was a federal law requirement. Mr. Wasserman answered in the affirmative regarding Section 17 and negatively for Section 4. Chairwoman Giunchigliani stated it was there for discussion purposes because the problem had come up and it needed to be verified and clearly defined. She had no problem if it was not acceptable. Chairwoman Giunchigliani continued with the description of the bill:
Kateri Cavin, Deputy Attorney General, Attorney General’s Office, asked if the settlement or agreement involved the Ethic’s Commission. Chairwoman Giunchigliani stated that documentation was trying to be tracked because of the way the bill was drafted, but in her opinion, she felt they should be kept separate.
Chairwoman Giunchigliani asked Tom Skanke, private citizen from Clark County, to more tightly define “candidate,” the language in the statutes considered weak. For discussion purposes she welcomed Mr. Skanke’s testimony on express advocacy and anonymous mailers.
Mr. Skanke stated he was involved in an incident in Las Vegas regarding an anonymous mailer. Because of that incident, he had spent a great deal of time researching the definitions of candidates and felt he now knew election laws much better than election officials. His knowledge was obtained via the four-and five-foot tall stacks of information he had perused for the past 12 to 18 months. Because of the things learned during that time, he had a pretty good understanding of:
It was important to understand that under the constitution there was freedom of speech. However, there were decisions made across the country regarding freedom of speech and where those freedoms were allowed.
In a case from the Ninth Circuit Court of Appeals, The Federal Elections Commission vs. Ferlatch, Citation 807, that dealt with “express advocacy,” which was defined by the Federal Elections Commission, “Direction to vote for or against something or a candidate.” The two issues dealt with by the U.S. Supreme Court were:
The definitions were:
Issues Advocacy is communications whose purpose is to promote policy position, a set of ideas and/or an opinion. Issue advocacy communication cannot expressly call for the election or defeat of a candidate for office. Express Advocacy, however, is just the opposite. Express Advocacy describes communications whose purpose is to elect or defeat a candidate for office.
These communications often include the magic words as defined by the U.S. Supreme Court, “vote for,” “vote against,” “elect,” and “defeat.” In a campaign mail piece, if it truly was a campaign mail piece, those types of words needed to appear in a campaign mail piece. It was in that particular case, under the United States Constitution and the U.S. Supreme Court, express advocacy came into play. So would issues advocacy.
Mr. Skanke stated he was not an attorney but a layman who had researched this area extensively. He stated if a piece said “vote for” and “vote against,” or “defeat,” then that individual should have their name on that piece. That was a piece advocating the election of an individual or issue. If, however, it merely informed the public as to what had occurred, by telling the truth on an issue, or advocating an issue, i.e., informing the public about a ballot question without saying to vote for or against an initiative, that was an issues piece. Therefore, those people had a right to send out that mailer if they so chose. Most recently, in his particular case, Judge Hagen decided the piece Mr. Skanke mailed was constitutional. He felt the ACLU, in that particular case, was charging the constitutionality. Mr. Skanke did not testify nor did he attend any of the hearings, but having read the judge’s decision, he basically said the candidate had a right to know who their persecutors were. As an elected official, the candidate should know who was mailing out such information. As the legislature tried to make better laws for the people of the state to protect candidates and elected officials, as well as the First Amendment of the Constitution, it was most important to deal with the freedom of speech. Therefore, he felt it important for Nevada to take the lead on the issue.
Mr. Skanke was not aware if other states had adopted such legislation because he stopped his research for about four months, having begun again during the past six weeks. Within the next five to ten years, he felt such issues would occur again and again. People wanted to have a right to say what they believe, and they should be able to do that. There was case precedent law across the country where the First Amendment was protected; however, as Judge Hagen said in his decision, elected officials should know who their persecutors were. Mr. Skanke knew that if someone said something about him, he would want to know who he or she was. Oftentimes that was not possible. He felt it was important and he had learned a great deal from his research of election laws, Nevada’s laws, and felt the definition of “candidate” needed changing and the election laws revisited and tightened, with a provision that allowed for the above-types of communication.
When Attorney General Frankie Sue Del Papa brought the law into statute in 1989, it came about because of the race in 1988 involving Richard Bryan, when the United Auto Dealers sent out anonymous mailers against Richard Bryan and promoted Chic Hecht. If statements were made falsely about an individual and there was no name on the piece, it was very difficult to discover who was saying those things. “Candidly, in my opinion and as an elected official, according to the First Amendment that was the chance taken when one ran for office. Lobbyists took the same chances.” He referenced the headlines in which he was involved during the past 12 months. He was not only humbled, but educated as well. However, for the record, none of the accusations were true. Fortunately Mr. Skanke knew who his persecutor was. He brought forward the above because as a resident of Nevada, a voter, and someone who was part of the political process for the past 15 years, he truly wanted to help to make the laws better and insure that the First Amendment was upheld for all voters for all people in Nevada and the United States.
Mr. Skanke closed by stating it was important to take a look at the difference in the advocacies, and that it was important to change the definition of “candidate,” as our NRS 294A.320 definition was very weak regarding published material concerning campaigns. He offered to work with the committee, the Secretary of State or Attorney General’s offices on cleaning up the language to make it better.
Chairwoman Giunchigliani stated she had “candidate” language to share with the committee and gallery. Mr. Stewart provided information regarding definitions for a “political committee” as well as “a candidate” from the state of Colorado (Exhibit F). Currently a candidate was defined as having filed a declaration, accepted candidacy, after which the name appeared and the $100 filing fee was paid. It was simple, but she wanted to make sure that within the simplicity additional loopholes were not allowed. She pointed out that in North Las Vegas there was another anonymous political mailer during the previous election. The Nevada State Constitution said it was allowed, but there were certain circumstances to be followed that were tied to the campaign-mailing piece.
Mr. Skanke stated that under NRS 294A.005 where “candidate” was defined, the problem he had with the $100 was if he decided to run for office tomorrow, and five friends each gave him $100, but six weeks later he decided not to run, but he did not know the law, and did not disclose the contribution, there was no way to enforce the $100 donations. Was he a candidate? Yes, because he took the money. But yet he was not because he had never filed. Colorado defined a candidate as someone who had announced and was in the race. If a candidate had accepted a significant sum in the amount of $50,000, that posed a problem that could be enforced. He had, in his 15-year career, encountered many “candidates” that accepted up to $500 and yet never ran for office. He felt that was the area that needed tightening.
Polly Hamilton, Executive Director, Ethics Commission, introduced her Vice Chairman, Todd Russell. Ms. Hamilton stated their concerns regarding Section 23 of A.B. 638, and related to where disclosure and abstention were required if a public officer, indeed, had a commitment versus private interest. She felt the commission might be tied up in endless debates if the candidate’s interests were not disclosed. The Ethics Commission also wanted to define, in the absence of any statutory language, a private interest versus an interest other than private.
Assemblyman Beers asked for a nongray example of a nonprivate interest.
Todd Russell, Vice Chairman of the Ethics Commission, reviewed a narrative written by Peter Bernhard (Exhibit G). A public official could have an interest so ingrained in his public job from the standpoint of where he went outside the specific public area being dealt with from a legislative area. That reverted to not a private interest, but a public interest. The main concern was it became a two-step rather than the current one-step process. In that case, each candidate looked at his or her own individual responsibilities in making a disclosure. The responsibilities or any conflicts in regard to any specific family members, pecuniary interests, or gifts, suddenly shifted to a two-pronged task where there had to be a determinate difference. Additionally, the determination had to be made between private and public interests. They felt it had become very restrictive in regard to the disclosure standpoint, having the opposite effect of what was trying to be accomplished, taking the disclosure down to a very limited area. He did not believe that was the legislative intent during the 1999 Legislative Session.
The commission felt the committee did an excellent job regarding the ethics laws with the major changes regarding disclosures. The Vollaha Case from Clark County limited the Ethics Commission. The language used in the bill had helped eliminate many of the concerns from that case. Section 23, subsection 8, page 17, lines 4 through 9 explained the vagueness in the law that surrounded the Vollaha Case. Looking at the definitive standard of what a private capacity in the interest of others under existing law was a very ascertainable standard, a very important issue from the legal standpoint. He felt the language on line 4 left the Ethics Commission open for another lawsuit, which they wanted to avoid. During the past two years they had been very effective with the law provided by the 1999 Legislative Session and the detailed guidance for many public officials. It also provided direction for training of public officers and officials in an effort to reduce complaints. During the last election process there was not one complaint received. The commission overall preferred deletion of Section 23.
Ms. Hamilton referenced S.B. 466 (Exhibit H), subsection 2, NRS 281.481, which they believed would withstand any challenges of vagueness. Chairwoman Giunchigliani stated if the Senate bill covered the definitions needed, she had no problem removing Section 23 from A.B. 638.
Ms. Cardinelli stated the clerks’ areas of concern were addressed earlier (Exhibit I). She felt they needed more than five days to respond to challenges should an exorbitant number be received in a short period of time. Referencing Section 4, they remained adamant that a person should have to register to be able to vote, or provide identification that they were appearing to register to vote or vote. The language read anyone could walk in, fill out a special form and receive a ballot.
Within Section 9 there was no problem with the definition of the “chip,” but asked that for clarification on line 4(b). Chairwoman Giunchigliani stated there was duplicate language. It read, “Ballots which are voted by punching a card by using a ballot duplicating board shall . . . “ What the polling officials had to do was receive and then remove the chip if it had at least one corner punched. Part (b) said, “. . . duplicate the card without punching the location.” Because that ballot was damaged, if the duplicating board found that it was a valid vote intended to be cast, they duplicated the vote onto another ballot so it could be counted. Ms. Cardinelli asked if the card was duplicated without punching the location of the incompletely punched chip, and the chip did not have at least one corner attached in the card and the fibers were not showing, what was actually being duplicated? As she understood it, the chip would be removed if there was a corner punched. Chairwoman Giunchigliani stated that because that was the duplicating section, it had to actually be duplicated.
Assemblywoman Freeman asked Ms. Cardinelli to restate her reference to Section 4. Ms. Cardinelli answered the clerks felt a person should have to register to vote. The language in the law allowed a voter to request a special form to register onsite, at which time they were issued a ballot. Assemblywoman Freeman agreed with the clerks.
Mr. Glover pointed to Section 4, page 2, line 30, and Section 17, page 10, line 45, asked for the words “on election day” to be inserted making it very clear non-registered voters could not appear during early voting for casting a special ballot. Chairwoman Giunchigliani asked for an explanation. Mr. Glover felt a voter could go into every county and vote in all precincts, which left clerks with no way to check for duplicate or multiple registrations. If only allowed on Election Day, it was more difficult to travel from county to county. Chairwoman Giunchigliani answered the constitutionality of that rule. Section 17 stated if an individual was a new resident and qualified elector, they had the right to request the special ballot for the purposes of voting for the President, Vice President, and Senator. Mr. Glover stated they would like to limit that process to Election Day only since early voting was peculiar to Nevada and a couple of other states. Therefore, the clerks would have preferred the special ballot be requested only on Election Day during regular hours. Chairwoman Giunchigliani asked if the ballots were already printed. Mr. Glover answered in the affirmative and stated there was a special precinct number (777) assigned. With those ballots, voting was only allowed between 8:00 a.m. and 5:00 p.m.
Mr. Glover voiced, like Ms. Cardinelli, he felt people should be registered to vote if living in Nevada and voting in an election. Unlike the Presidential election where a state with five electoral votes was not terribly important, though it certainly was during the 2000 election, in a U.S. Senate or Congressional race, the election could easily be swayed by allowing those who never bothered to register to vote and simply showed up on Election Day. The clerks could not guarantee the integrity of an election where that occurred. Chairwoman Giunchigliani appreciated the concerns voiced by Mr. Glover and Ms. Cardinelli, and thought that a very narrow margin, as those individuals were only allowed to vote for the national offices and could not be counted with the voter turnout count, therefore did not jeopardize the security. She felt his view was philosophical in nature. Mr. Glover agreed it was philosophical because of the security of the ballot for knowing how those individuals voted. Carson City had 17 people vote for President under that law. He referenced the Senate race in 1998, voicing if enough voters had come forward for a special ballot, the results could have been very different. Chairwoman Giunchigliani asked if the 17 unregistered voters fell within the 30-day limit. Mr. Glover answered in the affirmative.
Barbara Reed, Douglas County Clerk/Treasurer, asked for clarification on Section 4 where it said, “An elector who is not a registered voter . . .,” and asked if additional wording “in the state of Nevada,” could be added, which would allow the clerks to ask for proof the elector resided within the state, county, or municipality. If any qualified elector was allowed the privilege, she referenced a voter who appeared asking to vote and when asked if he recently moved into the state, the response was no, he just wanted to vote. She had no knowledge if he had voted in another state before arriving in Nevada. She felt the need for limiting language and was unaware if that was addressed in another area.
Mr. Wasserman interjected the term “elector” required the voter to live in the state for 30 days. At that point, the only votes allowed would have been for President, Vice President and U.S. Senator. To vote for the U.S. Congressman under this section, the individual would have to provide proof of residence within the state.
Ms. Reed then referred to Sections 21 and 24. She did not know if there was anything that could be done to alleviate the confusion on filing financial disclosures. The Douglas County District Attorney believed that any elected officer that had budgetary control over the expenditure of public money should file a financial disclosure form. It mattered not if they received compensation. Therefore, all elected officials within the county and improvement districts filed financial disclosures. In Section 24, and from advice received from the Ethics Commission, financial disclosures were not needed if they had not received compensation. The district attorney felt there was an opening for conflict if a public officer could sign contracts, spend public money, and ask for tax increases not file a financial disclosure regardless if compensation was received or not. Though the advice was received from the Ethics Commission, they would not put it in writing because they could not provide legal advice. Therefore, one of the county improvement district individuals filed a letter indicating he would not file a disclosure based on a discussion held with the Ethics Commission. She asked if the financial disclosure from these individuals was truly necessary.
Chairwoman Giunchigliani answered the same issue was legitimately presented through Assemblyman Neighbors regarding a constituent that served on a small board in one of the rural districts. Unanimously, a law was passed that if compensation was not received, filing of financial disclosure forms was not necessary. Thus, the Douglas County District Attorney was in violation of state law, regardless of his or her belief. She did not know why the Ethics Commission was uncomfortable putting their ruling in writing. Ms. Reed was comforted knowing she could go back and share the clear legislative intent of the bill. Chairwoman Giunchigliani stated everyone felt that small boards consisted of community volunteers and were being fined by the Ethics Commission unnecessarily. She offered a letter from LCB if necessary to clear up the issue addressed by Ms. Reed.
Ms. Lusk went over a couple of points within the bill that had caused concern. In reviewing the bill with her husband, who was a retired IBM employee and the individual who oversaw election machines in Clark County when punch card machines were still in use, he expressed considerable dismay regarding the punching of “chads” all the way through. What was written was not a clear description of what machines actually did, and expressed a much better approach would be to define the requirements clearly as to what was expected for a counted vote and then give plain and clear instructions to the voters before they voted as to what was required. Also, the standard should be maintained as closely as possible to the ability of the machine to count. She felt that would provide the least confusion and make recounts the most effective.
Referencing Section 4, Ms. Lusk expressed the view that an individual should, in fact, be registered, even if they were registering just prior to voting, by using an official voter registration card.
Page 12, lines 40 and beyond took a “judge or justice” out of the definition of public office. Ms. Lusk felt there was great concern by the public on disclosures as listed on page 18. The implication was if the judges and justices were removed from that arena, a judge could receive a gift and not have to report it. NCC felt it very important for a judge to remain unbiased and without the requirement of financial disclosure, they were left open to ridicule.
Chairwoman Giunchigliani stated she was shocked when she saw the language and Mr. Wasserman explained LCB had not been able to get a copy of the alleged settlement agreement that removed them from the public official arena. Her belief was they were public officers and disclosure was a part of that position. Financial supports were disclosed through a judicial board, though she did not know if those disclosures were public records. The committee was struggling to make sure that judges were classed as public officials.
Janette Bloom, Clerk of the Nevada Supreme Court, appeared to answer any questions regarding judiciary financial disclosure and ethics. The court had a code of judicial conduct that covered the conduct of all judges throughout the state. It was a code based on the American Bar Association (ABA) model code. In 1991, the legislation on the Ethics Commission was first created. The court looked at the Code of Judicial Conduct at that time because there was a revision to the code established by the ABA. As part of the code, every judge in the state was required to file a financial disclosure statement. In 1991, the justices made a statement in the code that this provision of the law would not apply to the judiciary because they filed with the Clerk of the Supreme Court.
Addressing the lawsuit filed by the Ethics Commission against the court, she was puzzled as to why the committee had never seen a copy of the results of the lawsuit, and stated she would provide it to the committee (Exhibit J). The agreement reached was the judges would disclose to the Clerk of the Supreme Court, with disclosure requirements being identical to all other public officers throughout the state. They went so far as to set a $250 limit on gifts, as was stipulated by NRS for all other public officials. In follow-up, the Clerk of the Supreme Court was required to file the financial disclosure statements with the Ethics Commission. Copies of the disclosures were returned to the justices for their files after being stamped as having been received.
Because failure to file with the Ethics Commission resulted in a misdemeanor charge against the officer, it was Ms. Bloom’s practice to sit with the executive director of the Ethics Commission and compare the disclosure data. Ms. Bloom signed up in favor of the bill because Section 24 took the judicial officers out of the requirement of filing with the Ethics Commission. The financial disclosure statements were public documents, thus the court recently transferred the responsibility for filing the statements from the clerk’s office to the Administrative Office of the Court. The restructure of duties between the clerk’s and administrative offices was to simplify the disclosure filing process for justices of the peace, judges, and Supreme Court Justices. With enactment of the new code, all disclosures were filed at the state level.
A question arose on Section 21 concerning justices, judges, and other public officers, for which Ms. Bloom requested a meeting with Scott Wasserman, Kateri Cavin of the Attorney General’s Office, and Alan Radkin from the Judicial Discipline Commission. She was not sure if NRS 281 applied across the board regarding judicial public official standing, or if it was only intended for the purposes of the Ethic’s Commission. She voiced a similar question on Section 22, where judicial officers were added back in on questions concerning statements made during a campaign.
Mr. Wasserman stated the Section 22 provision was only applicable to ethics law. When looking at Section 21, where “public office” was defined, it excluded the justices and judges under subsection 2, which dealt with “public officers.” They were exempted from the Code of Ethics because the Code of Judicial Conduct covered them. All other changes were to exclude the justices and judges from having to file a financial disclosure statement. When reviewing the section that added in “candidate for public or judicial office” that was one provision in the group of sections where, if a false statement was made about a candidate, judicial or otherwise, the judges and justices needed to be included because false statements toward a candidate was not a Code of Ethics provision. The only effect of all the sections was to say to that the judges and justices did not have to file financial disclosures. In the definition of public office, one looked at the provision above the definition of a public officer and excluded them to understand they were identical.
Chairwoman Giunchigliani stated she missed the “ . . . currently does not include . . ..” In answer to Mr. Wasserman, Ms. Bloom stated the court established the Standing Committee on Judicial Ethics and Election Practices, which placed the general counsel for the judicial discipline as head of the committee. A procedure was set up to resolve the judicial election disputes, and that came about through the more publicized campaigns where there were very negative and untrue statements made about judicial candidates. Since the procedure was in place, Ms. Bloom requested returning during the work session as her concern centered on the two contradictory sections regarding statements made in a judicial campaign.
Chairwoman Giunchigliani agreed and suggested narrative to state the law did not apply because judges and justices filed with the Administrative Officer of the Courts. The people would then understand there was a disclosure though processed through another area. Ms. Bloom stated she found it necessary to add cross references in the Code of Judicial Conduct because she had people trying to file campaign disclosure forms with the Supreme Court Clerk’s Office, asking for the disclosure form regarding campaign funds; thus, the clarification in the code. She recalled that during the process of amending the Constitution about the Judicial Discipline Commission, it was written in the Constitution that the Supreme Court would adopt a Code of Judicial Conduct and emphasized that was not something that could be repealed. Chairwoman Giunchigliani stated Assemblyman Anderson presented the bill. She felt it wise to add that a Standing Committee on Judicial Ethics and Campaign Practices could be established if that was the wish of the committee. Chairwoman Giunchigliani asked Mr. Wasserman to help organize a meeting to develop language for the work session on April 10, 2001.
James Hulse of Common Cause commended the committee for clarification of the areas in the election law. He voiced apprehensions about the fact that people could vote without being registered. He referenced Section 23, suggesting, as had the Ethics Commission, the verbiage muddied the water rather than clarifying. He felt the word “private” created chaos. Common Cause was an advocate of full disclosure. Chairwoman Giunchigliani commended the Ethics Commission for job well done.
Ms. Bechtel echoed the same concerns voiced by others, especially the registering to vote on Election Day. She was concerned that it was a federal law and nothing that could be changed within the state law. She shared there were many college students and others during the 2000 Presidential Election who bragged that they had voted in a state where they were attending university, as well as in their home state. She asked if there was a provision between states to check on the possibility of double voting, have the votes removed from the count and the people brought to justice.
Ms. Bechtel’s primary concern with the bill was in Section 3, page 2. She understood the language that referred to “chips” and/or “chads.” In spite of the fact it was language already in the Secretary of State’s regulations, she strongly urged review of the language. She had spoken with an overseer of the recount in Palm Beach County, Florida, and asked what problems were encountered with judging during the recount in determining if the vote was indeed legal. The response was they felt votes were created, the reason being a person could correctly punch through the “chad” for every other elected office, but if there was a corner or unimpeded light in one section, the vote was counted, even though the voter had clearly been able to demonstrate the ability to clearly vote for all other candidates. She did not know how the intent of the voter could be judged by a non-clearly punched card for only one of the many offices voted on that card. Thus, she requested language be added into the bill that required a review of the entire ballot to determine the capability of the voter. Along the same lines, she asked about the duplicating board referenced in Section 9, page 6. She would prefer that someone actually determine if that was the intention of the voter, when the fourth corner dislodged. Before, it was actually duplicated because essentially if the board was duplicating the ballot, they had just voted for that person. There was no county commissioner to make a judgment call but yet that was the intention of the voter before the duplication took effect.
Mr. Wasserman stated that was what Bush vs. Gore addressed. That case told the voters directly that it could not be left up to a board to determine the intent of a voter, as that was too vague. Therefore, specific standards had to be set. The provision, as written, included those specific standards. Of course, the legislature could choose to change whether it was one, two, or three corners, but a standard had to be set and then applied in a uniform manner.
Ms. Bechtel stated if that was the case, she would recommend something unequivocal such as the “chip” or “chad” being completely removed or allowing two corners to be removed so there could be no question about the intent. If it stood as written, there was still a question about the intent of the voter. She touched on the subject of the optical scan ballot mentioning the designated space being darkened, or there was an inconsequential mark in a designated space line counted as a vote. S.B. 297 read that if there was a dot in the circle, it was to be counted as a vote. In essence if a pen was accidentally dropped on the circle, the elector had voted whether intended or not. She wanted to see clear language on how much of a mark had to appear. If an “x,” it should be a big “x” and very clear. If allowing marks, it should be 50 percent of the circle or line to provide a clear definition of what the voter intended. Without that, we were back to the same situation found in Florida.
Chairwoman Giunchigliani stated the subcommittee working on S.B. 297 removed the dot mark, and assured Ms. Bechtel her comments would be considered during the work session. With the recounts held in Nevada, there had not been a problem with defining intent. The committee would move cautiously. Ms. Bechtel shared her concern was created votes.
Assemblywoman Freeman asked what part of the state used the punch card system. Chairwoman Giunchigliani answered Clark County did for all mail-out ballots, and it could not be assumed a machine made the punch. The disabled, at times, could not get the hole punched through the Styrofoam piece, which would cause a “chip.” In total, there were eight counties that used the old punch machine. Assemblywoman Freeman asked if that system was used because of the cost encountered in updating. Chairwoman Giunchigliani stated she felt it was the cost and if smaller counties were to upgrade, help was needed financially through a pool of dollars created by the state for that purpose. Further, larger counties might be motivated to upgrade as well to an optical scan system for mail-out ballots. Assemblywoman Freeman asked if the state had a revolving fund through which the local governments could obtain a loan. Chairwoman Giunchigliani stated that was an excellent idea, and referenced this session’s school construction bill and the safe drinking water program of the past. She was not aware of any for elections, but felt that was the reason the federal government was being urged to help all localities.
Assemblywoman Freeman asked if there was a possibility for federal funding. Chairwoman Giunchigliani stated there were proposals suggested but allocations coming forth were yet to be seen. She suggested creating a line-item budget someplace to allow for acceptance and distribution of such funding. Assemblywoman Freeman agreed that Section 2 complicated the issue and the way to resolve many of the problems was to upgrade and eliminate the punch card machines completely.
Ms. Pederson echoed Mr. Hulse’s comments on Section 23, as well as voicing the concern of the LWVN about the language addressing justices not being public officers. Their concern over the disclosure issue was dismissed since there was already another tracking system in place. Chairwoman Giunchigliani stated many presumed there was disclosure, but the public needed to be advised of that as well.
Ms. Hansen came forward questioning Section 4 though she understood the purpose of setting up dual voting systems:
She asked why it only applied to three or four candidates. Chairwoman Giunchigliani answer the drafting on Section 17 became the genesis of Section 4, because constitutionally an elector did not have to be registered to vote, only a qualified elector. Therefore, she had Mr. Wasserman draft that section separately for discussion purposes. Section 17 dealt with the Nevada State Constitution. She felt there was a federal question to be answered. Ms. Hansen asked if the state or federal constitution only required them to be electors with regard to the sections. Chairwoman Giunchigliani felt it to be the federal, where Section 17 addressed both the state and federal constitutions. Ms. Hansen agreed to the correctness of the response regarding the constitution only requiring electors.
Ms. Hansen addressed the Ethics Commission on page 14, line 48, where it spoke of the district court, “. . . a final opinion of the commission rendered pursuant to this section is subject to judicial review. The district court shall give a petition for judicial review of final opinion of the commission priority over other civil matters.” Was that issue a civil or a criminal matter? She felt that question very important because the Nevada State Constitution provided that in any civil case, unless the right of a trial by jury was waived, the person had a right to trial by jury. Under the Ethics Commission, there was no right to trial by jury, thus a constitutional right was being denied. That was only for judicial review, which denied the right to trial by jury. If a civil or criminal matter, she was not sure of the definition, but the language implied it to be a civil matter. Therefore, the accused had a right to trial by jury and with regard to the Ethics Commission, that right was denied.
Ms. Hansen stated further that the reason for a trial by jury was to stand between the citizen and the government, and to provide that protection for the accused. Usually judicial review was very limited in terms of what could be reviewed and she felt if laws were being developed regarding people’s individual speech rights and participating in campaigns, very sensitive issues, what was needed was to protect the individual citizen in the case the Ethics Commission might be biased or there were political forces at work. In order to protect constitutional rights, which had been denied by the process, the right to trial by jury needed to be restored as the way to review the issues in the Ethics Commission. She doubted there would be very many of these cases, as most people would not want to withstand the expense or the problems associated with such a feat, but she felt it needed to be available in terms of obeying the Nevada State Constitution.
Chairwoman Giunchigliani commented the points addressed were excellent and asked Mr. Wasserman for input. Mr. Wasserman had not specifically reviewed the provision in light of trying to determine if it was a civil or criminal matter. He assumed it was a civil matter since it was not a prosecution of a criminal statute. Ms. Hansen interjected that in either case, the Nevada State Constitution provided the right to trial by jury in civil cases unless waived. Therefore, the provision violated the right to trial by jury because there was no process for trial by jury after the case was heard in the Ethics Commission. Chairwoman Giunchigliani asked if anyone had brought forth that issue before and felt it important to research. She stated this scenario was no different than when challenged on a campaign years prior, as she had no “day in court.” Ms. Hansen said that was exactly what she was trying to get across. All rights in that regard with this process were denied. She stated she had raised those issues regarding the Ethics Commission in the Senate a few years ago, and it continued to be an issue.
Chairwoman Giunchigliani asked for further comments on A.B. 638. The hearing was closed.
Chairwoman Giunchigliani reminded the committee of the public hearings on reapportionment and redistricting:
Assemblywoman Freeman asked if bus transportation was being provided to the Fallon hearing for legislators and staff. Mr. Stewart stated vans had been reserved for the legislative staff and would be leaving at 4:00 p.m. Dinner was scheduled at 5:30 p.m. at the Overland Hotel.
Assemblyman Anderson asked if Mr. Stewart was also coordinating the flight arrangements to Las Vegas for Saturday’s meeting as well. Chairwoman Giunchigliani indicated personal secretaries would schedule though she would check on a van from the motor pool for transportation to the Grant Sawyer Building. She also stated neither meeting was mandatory though the meeting Saturday would be videoconferenced, allowing those who did not wish to travel to Las Vegas to participate.
Chairwoman Giunchigliani adjourned the meeting at 6:51 p.m.
RESPECTFULLY SUBMITTED:
Ann M. VanNostrand
Committee Secretary
APPROVED BY:
Assemblywoman Chris Giunchigliani, Chairwoman
DATE: