MINUTES OF THE
SENATE Committee on Government Affairs
Seventy-second Session
February 5, 2003
The Senate Committee on Government Affairswas called to order by Chairman Ann O'Connell, at 2:10 p.m., on Wednesday, February 5, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Ann O'Connell, Chairman
Senator Sandra Tiffany, Vice Chairman
Senator William J. Raggio
Senator Randolph J. Townsend
Senator Warren B. Hardy II
Senator Dina Titus
Senator Terry Care
STAFF MEMBERS PRESENT:
Michael Stewart, Committee Policy Analyst
Scott Wasserman, Committee Counsel
Ricka Benum, Committee Manager
Katherine Nash, Assistant to Committee Manager
Joseph Bozsik, Committee Secretary
Tara DeWeese, Committee Secretary
Olivia Lodato, Committee Secretary
Alice Nevin, Committee Secretary
OTHERS PRESENT:
Dean Heller, Secretary of State
Renee Parker, Chief Deputy Secretary of State, Office of the Secretary of State
Susan Bilyeu, Deputy Secretary of State for Elections, Elections Division, Office of the Secretary of State
David K. Schumann, Lobbyist, Nevada Committee for Full Statehood
Janine Hansen, Lobbyist, Nevada Eagle Forum
Lucille Lusk, Lobbyist, Nevada Concerned Citizens
Dan Musgrove, Lobbyist, Clark County
Chairman O'Connell opened the meeting with introductions of staff and committee members.
Dean Heller, Secretary of State, gave a PowerPoint presentation regarding the “Help America Vote Act of 2002” (HAVA) (H.R. 3295) (Exhibit C. Original is on file in the Research Library.). Mr. Heller noted President Bush enacted HAVA on October 29, 2002 following the 2001 presidential election. He said the purpose of HAVA was to change federal election legislation. He said the bill would extend to election races at all levels. Authority for election and enforcement responsibilities, he stressed, had been given to each state’s secretary of state. He stated there were numerous requirements for states to meet, and the biggest requirement for this State was implementing a statewide voter registration system. He acknowledged Nevada was one of just a few states without a system.
Secretary of State Heller pointed out $3.8 billion had been allocated for implementation of the bill, and it included at least a $5 million minimum for the State of Nevada for the Title I portion of the bill. He voiced concern over obtaining the remaining federal funds to help cover the cost of the many requirements. He testified the Title II portion for Nevada would be $20 million, but it required a 5 percent state match.
Mr. Heller said the chief elections officer must develop a state plan to be certified and sent to the federal government before June 1, 2003. He explained the State plan would be developed with the help of an advisory committee with representation from government, people with disabilities, and minorities. Mr. Heller stressed specific mandated issues must be in place by January 1, 2004.
Senator Raggio noted if federal funds required a 5 percent match, this would add to the current projected budget shortfall. He asked what sanctions the State might face if it did not comply with the federal mandate for changes, including the statewide voter list. Mr. Heller noted at this point the penalties were unclear, but his advice was to try to comply with the new requirements despite the funding uncertainty.
Chairman O'Connell asked if Nevada’s congressional delegation had been made aware of the mandate and Mr. Heller replied yes. He repeated the State was mandated to complete the requirements by the 2004 elections, but there was no guarantee the appropriations would still be available.
Michael Stewart, Committee Policy Analyst, provided a copy of HAVA and a bill explanation prepared by the National Association of Secretaries of State and the National Conference of State Legislatures (Exhibit D).
Renee Parker, Chief Deputy Secretary of State, Office of the Secretary of State, reviewed Exhibit C, specifically Title I - Early Payments to States, Title II - Commission, Title III - Federal Requirements, and Title IV - Enforcement.
Responding to Senator Raggio’s question, Ms. Parker said under Title I, the State was eligible for $5 million and following federal approval of the appropriation bill, the State would get the full amount. She clarified, the Title II funds would not be received until the fiscal year 2004 because the State plan must be certified before funds could be received.
Susan Bilyeu, Deputy Secretary of State for Elections, Elections Division, Office of the Secretary of State, reviewed certain state requirements including the statewide voter registration system, which she stressed was the biggest issue because of the specific requirements. Ms. Bilyeu stated Nevada had 17 counties, but there could only be one centralized information system which would be housed in the Office of the Secretary of State.She emphasized the system would be interactive with all county offices.
In response to Chairman O'Connell’s request for clarification, Ms. Bilyeu repeated the system had to be uniform for all counties and even the smaller counties would have to comply.She noted eventually all states would have uniform systems.Chairman O'Connell asked if the Legislature could be involved in the decision-making process and Ms. Bilyeu replied the federal bill contained very specific criteria.Chairman O'Connell asked Scott Wasserman, Committee Counsel, to verify this information.
Senator Tiffany asked if the specific criteria applied only to voter registration or the whole voting system. Mr. Heller replied the criteria applied only to the voter registration system.
Ms. Bilyeu noted even though the larger counties had fairly new information systems, every county would be required to purchase the new system to satisfy the requirements in the law. She noted this could be a large expenditure for the State.
Ms. Bilyeu reviewed voting system standards, noting there were two notable standards addressed in the bill. She clarified the first standard required each polling place to be accessible for people with disabilities by 2006. Ms. Bilyeu said the second standard was to have uniform definitions of what constitutes a vote. She commented Nevada had met this standard and would not have to implement anything further.
Ms. Bilyeu reviewed the specifics of the bill’s voting requirements as listed in Exhibit C. She clarified in provisional voting, a person would cast a provisional ballot, which would be separated from regular ballots and researched by the county clerk or registrar of voters in each county. She noted timing would be a problem in some cases because the provisional vote had to be researched individually to determine if the person’s vote was valid for the election.
Chairman O'Connell asked if the primary date would have to be moved, and Ms. Bilyeu replied the primary could be moved or Election Day registration could be used. She stressed this would require implementation of the statewide voter registration system.
Senator Raggio commented there might be other options. He requested clarification because he said he felt there would be a reluctance to change the date of the primary election. He noted Election Day registration was another problem. Senator Raggio asked Mr. Heller to provide additional information on this issue.
Ms. Bilyeu continued reviewing Exhibit C, touching on voting after the polls close, voter identification, voter registration application changes, and administrative complaint procedures.
Senator Tiffany asked if there were any quantifiable data on provisional voting. Ms. Bilyeu answered it would be a matter of wait and see, although she anticipated the most provisional ballots cast would be in Clark County where the largest population growth has occurred.
Chairman O'Connell stated Clark County anticipated as many as 112,000 persons would vote provisionally and perhaps 30,000 in Washoe County.
Mr. Heller clarified the voting system standards would require the State to provide at least one touch screen in each polling place for use by people with disabilities. He added, the cost of each machine is currently $3000 to $4000.
Chairman O'Connell said she wondered if it were possible to match certain criteria in a creative way to keep costs at a low level, especially for the smaller counties. Ms. Parker said funds would be dispersed from the Office of the Secretary of State, and vendors were aware the State needed a very complete package to cover the requirements statewide.
Mr. Heller assured the committee there was a State planning board ready to begin actively pursuing solutions, subject to the actions of this committee. He emphasized the June deadline meant the board needed to begin meeting and planning, but said he did not want to give the impression the Office of the Secretary of State was trying to usurp committee authority and responsibilities.
Senator Tiffany asked if Clark County would be able to get a waiver to allow the county to be phased in gradually. Ms. Parker answered it was possible to get a self-certifying waiver until 2006, but there was a chance the federal funds budgeted for this project would be depleted by then.
In response to Chairman O'Connell’s inquiry, Mr. Heller said there were numerous election bills this session. He presented a list of bill draft requests (BDRs) submitted by his office, the “Secretary of State 2003 Election BDR’s,” Exhibit E.
David K. Schumann, Lobbyist, Nevada Committee for Full Statehood, asked by what authority the federal government could dictate how election systems would be run. He stressed there must be constitutional authority.
Janine Hansen, Lobbyist, Nevada Eagle Forum, voiced concern about the statewide voter registration system.She noted the bill stated the unique identifier would be the last four digits of the social security number or a state assigned number.Additionally, she noted there was a movement on the national level to have a uniform system of drivers’ licenses using social security numbers.She remarked, “This is essentially a national ID, which would make it easier for government to function, but opens up the issue of identity theft.”
Ms. Hansen noted she had attended a national convention recently where many of the HAVA mandates were discussed.She stressed there were tremendous problems in many states during the November 2002 elections.She added the State would not have to comply with federal government demands when there was no constitutional authority.She suggested the committee look at opportunities for Nevada to maintain state sovereignty over its voting system.
Mr. Heller verified the federal legislation mandate stated an individual must have a driver’s license or the last four digits of the social security number would be used for identification. Regarding the touch-screen voting machine, Mr. Heller stated it was under consideration because it would be accessible to people with disabilities, would have the capability to change languages, and would enhance the capabilities of certain persons to participate in the voting process.
Chairman O'Connell asked Ms. Hansen if she had discussed this issue with Nevada’s congressional delegation, and Ms. Hansen replied she would pursue it in the near future.
Senator Raggio asked if HAVA had specified a touch-screen voting machine. Ms. Bilyeu noted it is in Exhibit C, under Title III, Subtitle A - Requirements, Section 301, paragraph a, subsection 3, Accessibility for Individuals With Disabilities.
Chairman O'Connell referred to the “Senate Committee on Government Affairs Standing Rules for the 2003 Session,” Exhibit F.
Senator Townsend MOVED TO ADOPT THE SENATE COMMITTEE ON gOVERNMENT AFFAIRS standing rules for the 2003 session.
Senator Raggio seconded the motion.
THE MOTION CARRIED UNANIMOUSLY.
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Chairman O'Connell opened the hearing on Senate Bill (S.B.) 16.
SENATE BILL 16:Clarifies effect of abstention from voting by member of certain public bodies on necessary quorum and number of votes necessary to take action on matters. (BDR 19-377)
Senator Care stated the intent of S.B. 16 was to bring forward an issue discussed last Legislative Session.He cited an example in Clark County of a problem that occurred during construction of a neighborhood casino. He explained there was a provision in S. B. No. 208 of the 69th Session requiring a three-fourths vote of the seven-member Clark County Board of Commissioners.He said of the seven, three abstained and four voted, with three voting to approve and one voting no.He emphasized the casino was approved with the approval of only three of seven commissioners.
Senator Care stated he cosponsored S.B. No. 329 of the 71st Session with Assemblyman David R. Parks, Clark County Assembly District No. 41.He noted many state boards objected to the bill because their boards were not composed entirely of elected officials.He advised the bill was amended to include only elected bodies of officials as in county commissions and city councils. He noted, “Even though the bill passed, according to Brenda Erdoes [Legislative Counsel] the bill was not complete because the language had not been changed in the Nevada Revised Statutes [NRS] 281, which dealt with the Commission on Ethics.”Senator Care explained the discussion for and against the bill was heard 2 years ago and S.B. 16 was brought forward to correct a mistake made 2 years ago and just discovered last year.
Senator Care restated if a majority of the members of the elected body were not voting in the affirmative, the measure would not pass.A worst-case scenario, he commented, would be if a board of seven elected members could pass a measure with six abstentions and one person voting in favor of the measure.He emphasized:
The Legislature decided 2 years ago the notion of having the majority of the members of the entire body voting in the affirmative outweighed the complications that might arise from those rare circumstances when you just had a majority of the members having to declare a conflict and thus abstain.
Lucille Lusk, Lobbyist, Nevada Concerned Citizens, testified in support of S.B. 16. Ms. Lusk said, ”Decisions should be made by a large enough number of an elected body that there would be confidence in their decisions.”She expressed the alternative would lead to some absurd results.
Dan Musgrove, Lobbyist, Clark County, spoke in opposition to S.B. 16 and noted he had opposed S.B. No. 368 of the 71st Session.He said for the record:
We feel there are some inherent problems if this bill passes as is.We believe it is a systemic problem with abstentions, especially in Clark County, where there is a tone of individuals feeling they need to file ethics complaints against our commissioners and our councilmen because of perceived relationship problems.We have district attorneys who advise our elected officials if there is any perceived relationship, they should abstain.That puts us in a very awkward position because they want to vote.We wish we had the same opportunity the Legislature does in declaring and then voting.
For example, I am a schoolteacher and I will vote for this pay increase for schoolteachers, but it does not affect me more than anyone else.If my commissioners could make the same statement, declare I know this individual, he is my neighbor, but this issue does not affect me more than anyone else and I am going to vote for it, then I would support this bill completely. Our folks want to vote, but because they have to abstain, we get into a position where we lose the majority.Good projects that have no opposition could essentially be dead in the water.
I have three attorneys on my board, and an engineer.At a planning commission meeting maybe two, three, or four of them have to abstain because there is a perceived relationship problem.This causes a problem because there may be a great project that will never pass because you can never get a majority to get it passed.We see it as a systemic problem based on our inability to vote.
We also want to let you know the county commission [Clark County Board of Commissioners] is looking at changing our rules as it relates to non-conforming zone changes.The county commission wants to impose a supermajority on those kinds of issues, such as changing the master plan or changing zoning.They want to impose a supermajority on themselves and are currently reexamining this issue because of this legislation.
I support the idea of Senator Care’s bill because it forces folks to vote instead of hiding behind abstentions, and we do not want that either, but they do not have the ability to vote on these issues because of these perceived relationships.
Senator Care noted perceived conflict, as opposed to real conflict, led to this legislation. He questioned why a perceived conflict would be a reason for not voting.
Mr. Musgrove said for the record:
We have reached the point where we have a lot of folks in Clark County that file ethics complaints. The ethics commission [Commission on Ethics] is asking for more money to do investigations. There is a huge volume of issues that have caused our attorneys to give the advice that you are probably better off abstaining rather than to go through the procedure of proving that there is not a relationship. I cannot tell you why our district attorneys are giving that advice, but if there is a perceived relationship, they are advising declaring and abstaining. If they could declare and announce it, I think they would feel better about it, but they have been given the advice because of the case law or history generated out of some of these complaints. They are disclosing, but taking the position that they should not vote even though they have disclosed. If you could address in the law that they can simply disclose and if there were no pecuniary interests, perhaps they would feel better.
Senator Raggio asked if a different standard applied to the members of the Clark County Board of Commissioners than the standard applied to legislators. He indicated perhaps this issue should be addressed because the same standard should apply to all public officials. Mr. Musgrove agreed to provide more information on this issue.
Mr. Wasserman clarified the district attorneys were taking a much more restrictive view of abstaining to vote. He added the district attorneys might be counseling the commissioners not to vote instead of determining whether or not it fit under subsection 2 of NRS 281.501 “independence of judgment.” He advised Clark County appeared to be taking a very conservative approach.
Chairman O'Connell closed the hearing on S.B. 16 and asked Mr. Stewart to give an overview of the “Committee Policy Brief” (Exhibit G).
Mr. Stewart called attention to page 39 in Exhibit G, “State of Nevada 2003 Legislative Session 120-Day Calendar.” He pointed out April 11 was the deadline for passage of bills from the first House and May 23 was the deadline for passage of bills from the second House.Continuing, he gave a brief summary of topics that may be addressed by the committee during this Legislative Session.
Chairman O'Connell adjourned the meeting at 3:50 p.m.
RESPECTFULLY SUBMITTED:
Alice Nevin
Committee Secretary
APPROVED BY:
Senator Ann O'Connell, Chairman
DATE: