Replies

Ok, I read the plaintiff's complaint and brief.

Unfortunately, this case is going nowhere. It lacks the requisite "hook" to permit the federal courts to assert jurisdiction.

Plaintiffs have two theories. The first is that the SCONEV's decision dilutes the votes of individual legislators and or voters.

The problem with this theory is that it proves too much. Under the principle advanced by the plaintiffs, there isn't a procedural dispute concerning the enactment of a state law that wouldn't be subject to review in federal courts.

What I think the federal judges will say is that SCONEV has the final word on what the state constitution says, and what should happen if there is a need to reconcile two (allegedly) conflicting state constitutional provisions. As long as the state constitution, as interpreted by SCONEV, is followed, there is no federal "vote dilution" claim.

Second, the plaintiff's claim a violation of Article IV, wherein the Constitution requires the feds to guarantee the states a republican form of government.

The problem here, as the plaintiffs acknowledge in their brief, is that the SCOTUS early on (I think maybe in reference to Shay's rebellion) held that that provision was "non-justiciable"--that is, was directed at and could only be enforced by Congress, not the federal courts.

The plaintiffs invite the Court to create an exception to the general rule of non-justiciability. The Nevada Federal District Court will decline. That invitation is properly directed only to the SCOTUS--the court that articulated the rule in the first place.

My prediction--after the en banc hearing, the restraining order will be dissolved.

FWIW, I read the SCONEV decision as well, and think SCONEV's reasoning is ludicrous. They basically held that the two provisions of the state constitution--the one requiring that the state fund education, and the other requiring a 2/3rds vote to increase taxes--were inconsistent with each other and could not be reconciled. Therefore, they threw out the 2/3 vote requirement.

That reasoning fails in two ways. First, the two provisions are by no means inconsistent. The Court couuld easily have devised a remedy that respected both provisions. For example, the Court could have ordered the legislators to be locked in until they passed a budget by a 2/3rds vote, required the budgets presented to appropriate increasingly less money until a budget garnered the required 2/3rds vote, etc.

Second, even if one were to accept that the two provisions were not consistent, it should have been the educational provisions that got invalidated. Under normal rules of statutory construction (or constitutional construction, which is the same thing), the more recently enacted provision should prevail. In addition, the Nevada constitutional provisions respecting education are in fact not all that strongly worded (in contrast with other state constitutions with which I am familiar, which, unlike the Nevada constitution, do explicitly say things like "It is the paramount duty of the State to provide for education.").

The Bottom Line--SCONEV issued a ridiculous, result-oriented decision. But the federal courts should find they have no power to correct it. If you are a Nevada voter, your remedy lies at the ballot box. Recall those damn judges, or at least vote them out of office at the next election!