Wilbur S. Shepperson Series in Nevada History
Series Editor, Michael Green (UNLV)
Nevada is known politically as a swing state and culturally as a swinging state. Politically, its electoral votes have gone to the winning presidential candidate in all but two elections since 1912 (it missed in 1976 and 2016). Its geographic location in the Sun Belt; an ethnically diverse, heavily urban, and fast-growing population; and an economy based on tourism and mining make it a laboratory for understanding the growth and development of postwar America and postindustrial society. Culturally, Nevada has been associated with legal gambling, easy divorce, and social permissiveness. Yet the state also exemplifies conflicts between image and reality: It is a conservative state yet depends heavily on the federal government. Its gaming regulatory system is the envy of the world but resulted from long and difficult experience with organized crime. And its bright lights often obscure the role of organized religion in Nevada affairs. To some who have emphasized the impact of globalization and celebrated or deplored changing moral standards, Nevada reflects America and the world; to others, it affects them.
This series is named in honor of one of the state’s most distinguished historians, author of numerous books on the state’s immigrants and cultural development, a longtime educator, and an advocate for history and the humanities. The series welcomes manuscripts on any and all aspects of Nevada that offer insight into how the state has developed and how its development has been connected to the region, the nation, and the world.
Charcoal and Blood: Italian Immigrants in Eureka, Nevada and the Fish Creek Massacre
A Great Basin Mosaic: The Cultures of Rural Nevada James W. Hulse
The Baneberry Disaster: A Generation of Atomic Fallout Larry C. Johns and Alan R. Johns
THE SAGEBRUSH STATE NEVADA’S HISTORY, GOVERNMENT, AND
MICHAEL W. BOWERS
UNIVERSITY OF NEVADA PRESS Reno & Las Vegas
University of Nevada Press | Reno, Nevada 89557 USA www.unpress.nevada.edu Copyright © 2018 by University of Nevada Press All rights reserved Cover photographs: (background) iStock/FierceAbin and iStock/btgbtg; (inset)
iStock/DenisTangneyJr; (bottom) Allen Leo Svec
LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA Names: Bowers, Michael Wayne, author. Title: The Sagebrush State : Nevada’s history, government, and politics / Michael Wayne
Bowers. Other titles: Nevada’s history, government, and politics Description: Fifth edition. | Reno, NV : University of Nevada Press,  | Series: Wilbur S.
Shepperson series in Nevada history | Includes bibliographical references and index. | Identifiers: ISBN 978-1-943859-74-0 (pbk. : alk. paper) | ISBN 978-1-943859-75-7 (e-book) |
LCCN 2018004689 (print) | LCCN 2018005551 (e-book) Subjects: LCSH: Nevada—History. | Nevada—Politics and government. Classification: LCC F841 .B593 2018 (print) | LCC F841 (e-book) | DDC 979.3—dc23 LC record available at https://lccn.loc.gov/2018004689
Manufactured in the United States of America
Preface to the Fifth Edition
Chapter 1. Nevada—Origins and Early History
Chapter 2. Nevada Territory and Statehood
Chapter 3. Civil Rights and Liberties in Nevada
Chapter 4. Political Parties and Elections
Chapter 5. Interest Groups and Lobbying
Chapter 6. The Nevada Legislature
Chapter 7. The Nevada Executive
Chapter 8. The Nevada Judiciary
Chapter 9. City and County Governments
Chapter 10. State and Local Finance
Chapter 11. Nevada—Past, Present, and Future
Appendix. The Constitution of the State of Nevada
Illustrations and Tables
Figures 2.1. Territory and State of Nevada
3.1. Racial Diversity in Nevada, 2010 Census
3.2. Asian Population of Nevada, 2010 Census
3.3. Hispanic and Latino Population of Nevada, 2010 Census
8.1. Structure of the Nevada State Judicial System
10.3. Nevada General Fund Revenue, Adjusted Economic Forum Forecast, 2015– 2017 Biennium
10.4. Nevada General Fund, Legislature-Approved Appropriations, 2015–2017 Biennium
Tables 4.1. Voter Registration in Nevada by Party in Presidential Election Years, 1960–
5.1. Lobbyist Growth in the Nevada Legislature, 1975–2017
6.1. Party Control of the Nevada Legislature, 1961–2017
6.2. Standing Committees in the Nevada Legislature, 2017
6.3. The Nevada Legislature, Famous Firsts
7.1. Governors of Nevada, 1864–2018
7.2. Party Control of the Executive Branch, State of Nevada, 1864–2017
7.3. The Nevada Executive, Famous Firsts
8.1. Judicial Districts in Nevada, 2018
8.2. The Nevada Judiciary, Famous Firsts
9.1. Nevada Counties
9.2. Nevada’s Incorporated Cities
10.1. Nevada General Fund Revenues by Source, 1977–2017
10.2. Nevada General Fund Appropriations by Type, 1977–2017
11.1. Population of Nevada, 1860–2016
Preface to the Fifth Edition
Since the publication of the fourth edition of The Sagebrush State in 2013, the state of Nevada has undergone an incredible recovery from what were in some cases debilitating changes politically and economically. At the same time, many other good changes have occurred as well. In addition to the elections that have taken place since the fourth edition and the new officeholders who have taken their seats, there have been two regular and four special sessions of the legislature.
In the preface to the third edition, I noted that “the Democrats appear to be quickly losing ground in the Sagebrush State,” given electoral successes by the Republicans in the 1990s and early 2000s. But in the fourth edition, I remarked that “it is the case that the Republicans seem to be on the ropes, with Tea Party, Libertarian, and more traditional factions battling for the soul of the party.” Although the latter part of that statement remains true in 2018, it is the case that the Republicans made stunning victories in the 2014 elections, capturing both houses of the legislature and all six constitutional offices. And although the Democratic Party organization put together by now-retired Harry Reid continues to dominate that party’s politics, it is arguably not as strong as it was now that Reid is no longer majority leader of the U.S. Senate. In 2016, the Democrats won back both houses of the state legislature and Hillary Clinton won the state’s six electoral votes. All of that says that (1) the author is perhaps not the seer he believed himself to be and that (2) both major parties remain competitive in the state with election outcomes very much dependent upon individual candidates and voter turnout. The state senate remains closely divided, as it has for several years (with Democrats holding a two-seat majority), but the state assembly appears to be almost permanently in Democratic hands with the loss in 2014 a rare anomaly likely resulting from low turnout.
As most observers know, the state of Nevada was among the hardest hit by the Great Recession of 2007–2011. Unemployment rates and home foreclosures were the highest of any state. When the housing bubble burst, the bottom fell out of the construction industry, and many of these workers left the state to find jobs elsewhere. With national unemployment high and job security nonexistent in virtually every sector of the economy, tourists either did not have dollars to spend in Nevada or were too cautious to do so. As a result, the economy in the Sagebrush State tanked. Politically, the bad economy led to multiple special sessions of the legislature to balance the budget, conflict over raising taxes and cutting spending, and difficult relations between Governor Jim Gibbons and the
legislature. In 2010 Gibbons became the first governor in Nevada to be denied renomination by his party. Since publication of the fourth edition, the state has come roaring back. Tourism has returned to and even exceeded levels prior to the Great Recession; airport traffic is up; unemployment is at a low five percent compared to over twelve percent in 2011; construction is booming; the economy is diversifying; and major sports leagues have come to the state in the National Football League (Raiders, set for 2020), the National Hockey League (Golden Knights), Major League Soccer (Lights), and the Women’s National Basketball Association (Aces).
On a further positive note, the U.S. Court of Appeals for the Ninth Circuit and, later, the U.S. Supreme Court declared laws banning same-sex marriage (such as the one in the Sagebrush State) unconstitutional in 2015, thus allowing gay and lesbian couples to marry, entitling them to all the same rights as straight married couples had always been given. And in 2013, the legislature added transgender Nevadans to the list of hate crimes for which enhanced penalties may be given. In 2017, the legislature added “sexual orientation” and “gender identity or expression” to all of the state’s anti-discrimination laws.
In addition to the economic recovery in the state, perhaps the biggest change since the fourth edition has been the increasing political power of the Sagebrush State’s Hispanic population. As that population continues to grow, register to vote, and participate in various ways in numbers unseen before, Hispanics have become an important political force and one that officeholders cannot ignore.
I am very pleased to provide this updated version of a book that first came out in 1996. I hope the reader will find it to be educational and, if not entertaining, well, then, at least not boring. I am, as always, tremendously grateful to Brian Davie, formerly of the Legislative Counsel Bureau, for his assistance in tracking down even the most elusive and obscure information. This book is certainly the better for his efforts.
And, of course, I must once again thank all of the great folks at the University of Nevada Press for their helpfulness, cheerfulness, and assistance in creating all five editions of this work.
When I first began discussing this book with Nicholas Cady and Thomas R. Radko of the University of Nevada Press some years ago, I had in mind a relatively short work that would provide readers with an overview of Nevada history and government. I thought then, as I do now, that many Nevadans and non-Nevadans would be interested in a concise work that would allow them to understand Nevada’s intriguing past and its effects on the present and future direction of the state. A work of that type could be utilized as a supplementary text in the state’s universities and community colleges and would, perhaps, also find a niche among high school students and members of the general public.
These thoughts and discussions brought about The Sagebrush State. Throughout the writing of this book I have attempted to be true to my original intent to provide a concise work that could be revised on a regular basis to reflect changes in the state and its politics. Certainly this work does not pretend, nor was it ever intended, to be a comprehensive volume on every detail of Nevada history and politics; for that degree of thoroughness, the reader is directed to the bibliography. A great debt is owed by this author and all others in the field to those pioneering historians and political scientists who have taught us what we now know about the state: Hubert Howe Bancroft, Eleanore Bushnell, Don Driggs, Russell Elliott, James Hulse, Effie Mona Mack, William Rowley, Elmer Rusco, and many others too numerous to mention.
In addition, I would like to specifically thank Eugene Moehring of the History Department at the University of Nevada, Las Vegas, and Michael Green of the Community College of Southern Nevada for their assistance and counsel during the research and writing process. Were it not for their insights, this book would be the poorer. Brian Davie of the Legislative Counsel Bureau and Sidney Watson of the Government Documents Division of the James L. Dickinson Library at UNLV provided regular assistance in my quest for obscure facts and figures. I would also like to thank Leonard E. “Pat” Goodall for providing me with a draft of his forthcoming omnibus book with Don W. Driggs, Nevada Politics and Government: Conservatism in an Open Society. I am grateful to Trudy McMurrin of the University of Nevada Press for her unflagging devotion to seeing this work in print and her regular phone calls to ask, “So, how’s the book coming?”
I would also like to thank Dean Guy Bailey of the College of Liberal Arts and the staff of the Dean’s office (Joyce Nietling, Leslie Marsh, Judy Ahlstrom, Jeremy Wirtjes, and Mike Comstock) for all they have done to ease my burdens as an administrator. Without them, I would be unable to pursue the joys of
research, writing, and teaching. Any errors to be found within these pages must, of course, remain mine alone.
Nevada Origins and Early History
Early Exploration Although recent archaeological excavations indicate the migration from Asia of prehistoric peoples to the area now known as Nevada as early as 15,000 years ago, the state’s written history can be said to have begun in 1776, the same year the American colonists in the East launched their war for independence against the British Crown. In the spring of that year, a Spanish Franciscan missionary, Father Francisco Garcés, and two Indian guides broke off from the second expedition of Captain Juan Bautista de Anza at the present-day site of Yuma, Arizona, to discover a shorter, more direct route between Santa Fe and the Spanish military presidio at Monterey (on the central coast of what is now California). During the course of his exploration, it is believed, Father Garcés crossed the southernmost tip of what is today the state of Nevada.1 It is also possible that a Spanish expedition of fifty-five soldiers led by Gabriel Morara entered the southern portion of what we now call Nevada in 1819. Morara’s aims, however, were not quite so benevolent as those of Father Garcés. Morara’s party set out to the northeast from the San Gabriel Mission (what is now present-day Los Angeles) in an unsuccessful attempt to wreak revenge against a band of Mojaves who had raided one of the Los Angeles–area missions.2
The Spanish, however, had little interest in exploring and developing the vast, barren region that eventually came to be identified as the Great Basin. In 1822 the area was transferred to Mexican possession when Mexico gained independence from its Spanish conquerors, thus following the earlier course of the American revolutionaries in throwing off the yoke of European imperialism. Within five years, however, British and American commercial interests were routinely violating Mexico’s sovereignty in the furtherance of fur trapping and trading, concomitantly beginning the first serious explorations of the Great Basin. As one noted Nevada historian has observed, “Nevada’s written history [began] with a struggle to exploit the resources of land as rapidly as possible. . . . [It is a] struggle [that] has recurred several times throughout Nevada’s history.”3
In 1826 two fur-trapping expeditions entered the Great Basin, one American and the other British. Although the two parties entered the region from different directions, they both had the same goals: to trap as many fur-bearing animals as they could and lay claim to the area for their own companies. The first English- speaking person known to have crossed into the Great Basin was the leader of the British expedition, Canadian-born Peter Skene Ogden. Ogden and his party, representing the Hudson’s Bay Company, most likely ventured slightly into the northeastern corner of Nevada in the spring of 1826. Ogden’s major explorations of Nevada, primarily in the north, did not occur until his later ventures into the territory in 1828 and 1829. He is generally credited as the first Anglo to discover and explore the Humboldt River.
The first American expedition, which started out in present-day Utah in August 1826, was a fifteen-member team led by twenty-seven-year-old Jedediah Smith, one of three co-owners of the Rocky Mountain Fur Company. Smith’s party entered the area from the east and traversed present-day Clark County, in the south, reaching San Gabriel Mission in November. Mexican authorities, understandably anxious about new colonial threats so soon after they had gained independence from Spain, requested that Smith leave Mexican territory by the same route on which he had entered. Instead, he turned north, taking his party to an area along the American River in central California. The inhospitable nature of the snow-covered Sierra mountains made Smith decide to leave most of his party in California and attempt the mountain passage with only two other members of his expedition. Smith’s three-person party successfully crossed not only the Sierras but also central Nevada, eventually reaching the Great Salt Lake. Smith’s place in history is secure as the first Anglo to actually cross the hostile Nevada landscape. Although he retraced his original path through southern Nevada in 1827 to meet up with the members of his expedition whom he had left behind in California, Smith did not afterward return to the Great Basin.
The Ogden and Smith expeditions were the first to explore the region now known as Nevada, but they were most assuredly not the last. Other fur-trapping parties, originating in Santa Fe and traversing the southern part of the state, were led by Ewing Young (1829), Antonio Armijo (1829–1830), and William Wolfskill and George C. Yount (1830–1831). The path blazed by these hardy trappers eventually established an overland route known as the Old Spanish Trail.
One of the last fur-trapping expeditions, and one of the most famous and significant, was the Walker-Bonneville party of 1833 to 1834.4 Although the group was putatively on a fur-trapping expedition, some evidence suggests that its leader, U.S. Army Captain Benjamin L. E. Bonneville, sent some members of the party, led by Joseph Walker, on an excursion into California to spy on the Mexicans.5 During their trek through central Nevada, Walker’s party killed thirty to forty Native Americans, establishing an unfortunate precedent that would haunt later relations between the region’s oldest and newest inhabitants. Walker is
perhaps best known for the “discovery” of the Yosemite Valley in California and Walker Pass over the Sierra Nevada, although native inhabitants had clearly known of these for many years.
Explorers and Immigrants Spurred by the desire for land and the American creed of Manifest Destiny (that is, that the United States had a duty and an obligation to inhabit all land lying between the Atlantic and Pacific Oceans), emigrants on their way to California began to cross, but not settle in, the Great Basin. Unlike their forebears, who traveled in this region to pursue fur trapping, these individuals were interested in establishing a new life for themselves and their families in the Far West. The first group to do so was the Bidwell-Bartleson party in 1841. As head of the Western Emigration Society, twenty-year-old-schoolteacher John Bidwell organized the six-month journey from Missouri to California’s San Joaquin Valley; John Bartleson served as the group’s captain. In addition to its distinction as the first of the emigrant parties, the Bidwell-Bartleson party is noteworthy for including Nancy Kelsey and her young daughter, the first Anglo woman and child to cross the Great Basin. While the Bidwell-Bartleson party crossed the Nevada frontier in the north, a second emigrant party in 1841, the Rowland-Workman party, traveled through the Las Vegas Valley, following the Old Spanish Trail and the 1826 route of Jedediah Smith from Santa Fe to San Gabriel.
The hardship of the terrain and desert conditions along the Old Spanish Trail, however, led later emigrant parties to cross the Great Basin through the north along what became known as the Humboldt Trail. The discovery of the latter trail is credited to the aforementioned Joseph Walker, who led the 1843 Walker-Chiles party along the northern Nevada route he had discovered during his 1834 journey out of California. Other emigrant parties followed that route through the Great Basin over the next several decades, including one in 1844 led by Elisha Stevens, Martin Murphy, and John Townsend—an expedition famed for its successful crossing of the forbidding and deadly summit that would tragically become known a few years later as Donner Pass.
The Donner party left Missouri in the spring of 1846 to pursue dreams of land ownership in California. Following generally the path of the Humboldt Trail, the party took an ill-advised cutoff in northeastern Nevada that put them woefully behind schedule. Their tardiness caused them to reach the Sierras in October after winter storms had dumped snow on the mountains, which were difficult to cross even under better weather conditions. Trapped at Donner Lake, slightly more than half—forty-seven—of the eighty-seven people who began the trip survived, but only by allegedly cannibalizing the remains of their less fortunate companions. The misfortune of the Donner party caused a temporary slowdown in emigration to California, a hiatus that would end with the discovery of gold in California in January 1848 and the February 1848 cession of what is now the southwestern
United States by Mexico at the end of the Mexican War. In addition to the informal and unofficial explorations of the Great Basin area
by fur trappers and immigrants to California, a number of official expeditions were launched by the U.S. government in the early 1840s into what was then still Mexican territory. The leader of these expeditions was a member of the U.S. Army’s Topographical Engineers, Captain John C. Frémont, whose destiny was most assuredly not harmed by the fact that his wife, Jessie, was the daughter of influential Missouri senator Thomas Hart Benton, one of the most fanatical of the Manifest Destiny zealots. Frémont headed two expeditions into present-day Nevada, the first from 1843 to 1844 and the second in 1845. The former traversed the western edge of northern Nevada to central California and back along the Old Spanish Trail in the south. The latter expedition, on which he was accompanied by Joseph Walker and Kit Carson, explored the central portions of the state. The lasting significance of the Frémont expeditions can be seen to this day. Although Frémont “discovered” little that had not already been explored by others, his parties, unlike their predecessors, painstakingly and accurately mapped the area and gave names to its features, names that adhere today: the Humboldt River, the Walker River, the Carson River, Pyramid Lake. Indeed, it is Frémont who first identified this vast area of interior drainage as “the Great Basin.”
Settlement of Nevada The fur trappers, California immigrants, and explorers who visited the Great Basin in the 1820s, 1830s, and 1840s had no intention of settling in the region now known as Nevada. To them it was merely a place where they hunted or passed through on the way to a new land or to an adventure, respectively. Permanent settlement of Nevada would not come until the latter part of the 1840s. Political scientists Eleanore Bushnell and Don Driggs, among others, have noted that the settlement of Nevada came as a result of three contemporaneous events:
(1) the cession by Mexico of vast territories to the United States in the Treaty of Guadalupe Hidalgo in 1848; (2) the migration of the Mormons into the Salt Lake area and later into much of the region that now comprises Nevada; and (3) the discovery of gold in California.6
None of these momentous events had much to do initially with Nevada. No Mexican War battles were fought here, the Mormons first settled in what is now Utah, and the first discovery of gold came in California. Like the fur trappers, California immigrants, and explorers who had traveled the land before, few among the next groups of travelers through the Great Basin saw it as an area of inherent desirability. Yet these three milestones ultimately conjoined to lead to the permanent settlement and eventual statehood of Nevada.
The Church of Jesus Christ of Latter-day Saints (the Mormons) was founded in
western New York State in April 1830 by Joseph Smith, who claimed to have received from the angel Moroni a set of golden plates containing scripture and the Urim and Thummim to interpret them. Conflict with and persecution by more traditional Christian groups led Smith to move the Mormons to Ohio, Missouri, and Nauvoo, Illinois. The murder of the Mormon prophet in a Carthage, Illinois, jail led his successor, Brigham Young, to move the group once more. The journey, from 1846 to 1847, of 15,000 men, women, and children eventually came to rest at the Great Salt Lake, an area still within the sovereignty of Mexico. By March 1849 Young had proclaimed the independent State of Deseret, a region encompassing present-day Utah, Nevada, southern California, and parts of Arizona, New Mexico, Idaho, and Colorado.
While the Mormons were on their way to the Great Salt Lake, the United States was engaged in a war with Mexico for control of California and what is today the southwestern United States. Following the doctrine of Manifest Destiny to its logical, if bloody, conclusion, President James K. Polk launched the war in 1846, a war that ended successfully for the Americans in 1848 with the Treaty of Guadalupe Hidalgo. The treaty gave the United States control over California, Utah, Nevada, and portions of Arizona, New Mexico, Wyoming, and Colorado. The Great Basin was now firmly and legally ensconced in the hands of the United States.
Simultaneous to the end of the Mexican War, gold was discovered in California at Sutter’s Mill on the American River near Sacramento. Beginning in 1849, thousands traveled from the east to California in search of riches; some came by sea around South America (the Panama Canal was yet to be built), while others traveled overland along the routes used by earlier California immigrants through the northern Great Basin.
As already noted, none of these three events initially had anything to do with Nevada. However, each in its own way contributed to the region’s development. After 1848 the Great Basin was no longer foreign territory, the Mormons aggressively moved into its northern and southern regions to proselytize and establish settlements, and the influx of California gold seekers through the region created a need for supply stations along the overland route, including the area now known as Nevada.
The cession of California and the southwestern United States in 1848 by Mexico forced the U.S. government to deal with political issues of statehood and territorial boundaries. Rejecting Brigham Young’s massive State of Deseret, Congress approved the Compromise of 1850 to establish some order in its newly acquired territory. That act, debated by Congress for two years over the heated issue of slavery, established California as a free, that is, nonslave, state (even though it had, unlike other states added after the original thirteen colonies, never been a territory) and divided the remainder of the Mexican Cession of 1848 into the territories of New Mexico and Utah, which could, upon statehood, determine for themselves whether to allow slavery. New Mexico Territory included not only
New Mexico but also most of Arizona and the southern 10 percent of present-day Nevada. The newly created Utah Territory included all of present-day Utah, small parts of Colorado and Wyoming, and the northern 90 percent of present-day Nevada. Congress thus not only changed the name of the Mormon territory from Deseret to Utah but also included only half of the area Young and his followers had earlier claimed. It is doubtful that the Mormons would have achieved even that but for the death of President Zachary Taylor in July 1850. Taylor opposed the Mormon cause and was unsympathetic to state or territorial status for them. His successor, Millard Fillmore, however, was favorably impressed by the Mormons and their representative, Dr. John M. Bernhisel, who had been dispatched to Washington, D.C., in 1849 to lobby (unsuccessfully) for congressional recognition of the much larger State of Deseret. Not surprisingly, Fillmore appointed the Mormon leader, Brigham Young, as Utah’s first territorial governor.7
Mormon settlement in the western Utah Territory (now Nevada) began that same year, 1850, when a party led by Joseph DeMont established a temporary trading post in Carson Valley near Utah Territory’s western border with California.8 The post, named Mormon Station, served the needs of emigrants and gold seekers crossing the Great Basin on their way to California. Although abandoned with the onset of winter, the post became a permanent settlement the following year when a party led by John Reese sought to establish a farming and trading community and fort. In 1856 the name of this first permanent settlement in Nevada was changed to Genoa.
Once the Mormons had established the feasibility of survival, agriculture, and commercial enterprise in the Carson Valley, they were joined by non-Mormons (“gentiles”) who also opened trading posts in Carson, Eagle, and Jacks Valley and Truckee Meadows. Gentile population in the area was augmented by the discovery in 1850 of gold in Gold Canyon just east of the California border. Gold miners from California and new gold seekers from the East soon established residence in the region as well, although they generally had no intention of making the place a permanent home. The combination of Mormons and non- Mormons in the Carson Valley was from the beginning a volatile one and was partially responsible for Nevada’s eventual separation from Utah Territory in 1861.
The area that is now southern Nevada was also being settled during this time. Although the development of the south did not have the same profound effects on Nevada’s becoming a territory and, later, a state that the development of the north did, the settlement of both areas exhibited many of the same characteristics. Settlement of the Las Vegas Valley (part of New Mexico Territory since 1851) began in 1855, when Brigham Young sent a group of Mormons led by William Bringhurst to establish the Las Vegas Mission. The mission was to serve a dual purpose: establish supply stations along the Old Spanish Trail (just as Mormon
Station had in the north) and convert the Native Americans, primarily Southern Paiutes, to Mormonism. Their task was, in many ways, a hard and thankless one, performed in a hostile environment. One of the missionaries, John Steele, observed in an 1855 letter that “the country around here looks as if the Lord had forgotten it.”9 Later in that same letter he noted that there was a “general weakness” among the Mormon missionaries because
the weather is very hot; and not having light, suitable clothing fit for the season; and the last and principal reason is, they have nothing (with a very few exceptions) to eat but dry bread, as the cows are mostly dry. But we still are not discouraged, for we hope for better times ahead; and if we don’t live to see it, maybe our children will.10
The Las Vegas Mission eventually was abandoned as a result of a split in the community between Bringhurst and Nathaniel V. Jones, whom Brigham Young had sent to the mission in 1856 to mine lead ore in the area. This division was part of a larger conflict within the Mormon community over whether its primary purpose was to proselytize or mine. By 1858 most of the missionaries had returned to Utah, leaving only a small band under the authority of Benjamin R. Hulse. Hulse’s group soon followed, and the Las Vegas Valley was left to its Native American inhabitants until 1861, when small traces of silver were found in the old Mormon lead mine and a large gold strike was made near the current site of Hoover Dam. A permanent settlement in Las Vegas (named Los Vegas Rancho) did not take root until 1865, when Octavius Decatur Gass took ownership of the Old Mormon Fort and established a station to supply Las Vegas Valley miners and the settlers passing through to California.11
Establishing a Government From the first moments of their arrival in the Carson Valley in 1851, the settlers agitated for separation from the Mormon-dominated Utah territorial government. Separated as they were by five hundred miles from the territorial capital, first in Fillmore City and later in Salt Lake City, and ignored by Brigham Young, who concentrated on organizing that part of the territory that was nearest to him, the western settlers were left with no established government and no protection from bandits and Indian attacks. In response to this lack of law and order and Utah’s de facto policy of benign neglect, settlers held three meetings in Mormon Station on November 12, 19, and 20, 1851, to establish order.
During the course of these meetings, the settlers created a squatter government to establish bylaws and regulations for the community and to create public offices. Ten resolutions were adopted dealing with the survey and recording of land claims, while an eleventh established a committee of seven officers to act as the region’s governing board. In addition, a magistrate’s court, made up of a justice of the peace and four others, was to serve as the area’s judicial body;
appeal could be taken to a court of twelve citizens who had final say on matters brought to them. Notably, the group also adopted a petition to Congress seeking “a distinct Territorial Government” for the western Utah Territory.12
Displeased by the Carson Valley settlers’ petition, Brigham Young intervened and attempted, at last, to establish territorial control over the area. Seven Utah counties were extended to the California border in order to include the western Utah Territory. County seats remained in present-day Utah, however, and with such a distance between them, county officials persisted in their failure to exercise any authority over their newly acquired western lands. The ineffectiveness of the squatter government in achieving law and order, combined with the objections by many non-Mormons to the possibility of control by Salt Lake City, led forty-three settlers in 1853 to sign a petition to the California Legislature requesting annexation by California “for judicial purposes until congress [sic] should provide otherwise.”13
Although the settlers’ petition was ignored by California, Utah took great note of it and attempted once more to bring its western territory into the fold. In January 1854 the territorial legislature created Carson County, an extremely large new county in the western Great Basin. It encompassed what is today Carson City, Washoe, Douglas, Storey, Lyon, and Mineral Counties and parts of Nye, Esmeralda, Churchill, and Humboldt Counties. Once again, however, no immediate attempts were made by the Utah authorities to exercise control over their newest creation.
Utah’s lack of action led the squatters to once more endeavor to establish an organized government in what was now Carson County. In 1854 they hired attorney William A. Cornwall to write a constitution for the Carson Valley. Very little is known about the Cornwall Constitution, and most Nevada history books fail even to mention it. What we do know is that the powers of government were to be exercised by an elected group consisting of a sheriff, a president, a secretary, and a three-member court. The Cornwall Constitution was, apparently, never adopted, and “there seems to be no evidence that it was ever presented for a vote.”14
In January 1855 the Utah Legislature took several actions that indicated a serious desire to maintain territorial control over the Carson Valley. It established Carson County as Utah’s Third U.S. Judicial District, and George P. Styles was assigned as presiding judge. Orson Hyde, a member of the church’s governing board, the Twelve Apostles, was appointed as probate and county judge to organize the county. In response to the settlers’ complaints that they were without representation in the territorial legislature, Carson County was also given one vote in the Utah Territorial Assembly.
In May, Hyde, Styles, and thirty-eight others left Salt Lake City to once and for all establish territorial (and Mormon) control over Carson County. In those terms, Hyde was incredibly successful. Arriving in Carson Valley in June, Hyde
first commissioned a survey to ensure that Mormon Station and Carson County were within the boundaries of Utah. Determining that they were, he called for county elections to be held at Mormon Station on September 20. All but one of the victorious candidates in the 1855 contest were Mormon, thanks to the immigration of Mormons into the area.
Not surprisingly, non-Mormons in the area were displeased with the now- realized Mormon domination of the Carson County government. The gentiles were convinced that the law was not administered fairly to Mormon and non- Mormon alike and were particularly dissatisfied with the practice of polygamy exercised by Hyde and others. They looked “with disgust upon the prospect of raising their daughters among such associates, and they ardently desired that their homes in their pleasant valley shall not be ‘defiled’ by the horrible favoritism and deception of Mormonism.”15
Mormon domination of the Carson County government led non-Mormons in the area to petition once more, in November 1855, for annexation to California. Unlike its February 1853 predecessor, this petition was looked upon favorably by the California Legislature. Unfortunately for those seeking annexation, Congress failed to act on their plea. Hearing of the settlers’ continued attempts at secession, Brigham Young ordered fifty to sixty more Mormon families into the Carson Valley. “By the middle of 1856 Carson County was organized politically, economically, and socially in the firm and able hands of the Mormons.”16
Territorial and Mormon control over the western territory, however, was not destined to last. Probate Judge Hyde left Carson County to return to Salt Lake City in November 1856; whether he was frustrated with his position or recalled by Young is open to dispute. In January 1862 he illustrated his contempt for the people of the Carson Valley when he wrote to seek compensation for the sawmill he had left behind in his hasty departure:
You shall be visited of the Lord of Hosts with thunder and with earthquakes and with floods, with pestilence and with famine until your names are not known amongst men, for you have rejected the authority of God, trampled upon his laws and his ordinances, and given yourselves up to serve the god of this world; to rioting in debauchery, in abominations, drunkenness and corruption. You have chuckled and gloried in taking the property of the Mormons, and withholding from them the benefits thereof. You have despised rule and authority, and put God and man at defiance. If perchance, however, there should be an honest man amongst you, I would advise him to leave; but let him not go to California for safety, for he will not find it there.17
Hyde’s departure from Carson County left the area once more bereft of organized government and law and order. He was followed to Salt Lake City by a large party of Mormons in July 1857, and all of the faithful were officially called back to Salt Lake City by Brigham Young in September of that year to fend off what Young believed was an imminent invasion of Utah by federal troops in what
became known as the Utah War. Although characterized by some historians as a series of misunderstandings and miscommunications,18 there were real causes for the federal government to be concerned with goings-on in the territory, including antagonism between Mormons and gentiles in the Carson Valley and an incident in 1856 in which a federal judge had been “driven from the bench” in eastern Utah by “an armed mob of Mormons.”19
The official beginning of the Utah War came in July 1857 when President James Buchanan removed Brigham Young as territorial governor and appointed a new, non-Mormon government headed by Alfred Cumming. The anticipated arrival of the new territorial government, accompanied as it was by 2,500 federal troops led by General Albert Sidney Johnston, struck fear into the hearts of the Mormons. It was then that Young called upon all Mormons, including approximately 1,000 in the Carson Valley, to return to the capital to fend off the anticipated federal invasion. In addition, Young issued an order prohibiting an armed force from entering the Salt Lake Valley and declared martial law. The Mormons prepared for war, but the federal forces eventually were allowed to enter the valley peacefully after successful negotiations between Young and Buchanan’s representative, Colonel Thomas L. Kane, who had made friends with the Mormons when they had lived in Nauvoo. In April 1858 the Utah War, such as it was, officially ended when Buchanan granted amnesty to all who swore allegiance to the Union. Although the returnees were, thus, not ultimately needed, they did not go back to the Carson Valley, and the land, homes, and businesses they had spent years building into profitable enterprises were often simply taken by the remaining settlers—a situation that led to Hyde’s curse upon them.
In apparent anticipation of the September call by Young for all adherents to return to the Salt Lake Valley, the Utah Legislature in January 1857 repealed the act creating Carson County and put the area under the nominal control of Great Salt Lake County, headquartered in Salt Lake City. Although no doubt happy to see the Mormon exodus, the western settlers were once more left without any organized government, and the Carson Valley was again in the grip of the same lawlessness it had suffered prior to the Mormons’ arrival in large numbers in 1856.
The period between 1857 and 1861 has been described as an “era of anarchy and confusion.” The phrase is an apt one. In 1857, after the Utah Legislature’s dissolution of Carson County and Judge Hyde’s return to Salt Lake City, the settlers held a series of mass meetings in which they once more petitioned Congress for status as a separate territory within the shortest time possible. The settlers’ representative to Washington, D.C., James M. Crane, predicted in a letter to his constituents that Congress would act favorably on the petition in order “to compress the limits of the Mormons and defeat their efforts to corrupt and confederate with the Indian tribes.”20 Crane’s optimistic prediction was wrong. A bill granting territorial status, which included a change of name from Sierra
Nevada to Nevada, passed the House Committee on Territories, but the full Congress adjourned before acting on the petition. The congressional failure to act was based in part on the pre–Civil War sectional strife over slavery that was even then dividing the nation: the territorial bill was held up in the House by Speaker James L. Orr of South Carolina, who feared that the new territory would not support slavery and who had a strong personal dislike for the bill’s sponsor, Representative William “Extra Billy” Smith of Virginia. Of lesser, but still significant, importance, the federal government hoped that the newly appointed non-Mormon government of Alfred Cumming would resolve the antagonism in the western territory between Mormons and gentiles.
In addition to petitioning for separate territorial status, the settlers attempted to establish a more immediate mechanism for protecting law and order in the region. A committee of twenty-eight men was created during the 1857 squatters’ meetings to serve as a provisional government. The committee proved ineffectual, and in March 1858 the settlers met again, this time to establish a vigilante committee to maintain law and order. The vigilantes were equally unsuccessful in holding the criminal element in check, although they did try, and sentence, several people. One of those, the ironically named William “Lucky Bill” Thorrington, was a prominent member of the community who had served on the twenty-eight- member provisional committee of 1857. Thorrington was hanged for being an accessory after the fact to murder, although substantial evidence supports his innocence.21 Thorrington’s hanging had the unfortunate consequence of creating a serious rift in the Carson Valley community between those convinced of his guilt and those who believed him innocent.
Once again, Utah Territory attempted to establish control over its wayward western province, this time by appointing, in 1858, John S. Child as probate judge to reorganize local government in the Carson Valley. Child called for new elections in October, elections noted for such intense conflict and voter fraud that the results in four of the six precincts were discarded because of charges of fraudulent voting. In January 1859 Utah officially reestablished Carson County, gave it a single representative in the territorial legislature, and combined it with two other counties to form the Second U.S. Judicial District. John Cradlebaugh was appointed as the district’s judge.
The failure of Judge Child to effectively reorganize Carson County led the settlers to call for a mass meeting in Carson City on June 6, 1859, to take up once more the issue of separate territorial status. At that meeting an election was called for July 14 to choose a delegate to represent the interests of the Carson Valley in Washington, D.C., and to select fifty delegates to attend an unauthorized constitutional convention.
Nevada Territory James M. Crane was again elected to serve as the settlers’ representative to the
nation’s capital, although his election was surrounded by more charges of voter fraud. The convention delegates met in Genoa on July 18, 1859. Again, support for separation from Utah Territory appeared to be based primarily upon a desire to be freed from the Mormon authorities, who, according to the settlers, “so [mixed] together church and state that a man [could not] obtain justice in any of its courts.”22 Illustrating the point was a letter written in January 1859 by Crane to Representative William Smith in which he opined that
The only remedy for this unnatural war, now raging between the Mormons and the Anti- Mormons in Utah, is to be found in the immediate separation of these people under two distinct governmental organizations. One thing is inevitable,—the Mormons and Anti- Mormons will never, and can never live together in peace, under one government.23
A nine-day convention, presided over by Colonel John J. Musser, voted to secede from Utah Territory, produced a territorial constitution modeled upon that of the state of California, and adopted the name Nevada. A ratifying election was held on September 7 concurrent with elections for a governor and territorial legislature.
Support for the 1859 constitution was substantial. The election returns were not preserved, but “there is evidence that the majority for the constitution was about four hundred,. . .although the board of canvassers failed to meet to canvass the votes, and the certificate of the president of the board, J. J. Musser, alone testified to the result.”24 Musser’s certificate of election did not issue until December, three months after the election, leading to doubts about the veracity of the reported results. In any event, Isaac Roop was elected territorial governor and the legislature was to meet on December 15. The legislature did meet on that date but was unable to act for lack of a quorum; only four members attended. After an address by “Governor” Roop, the group adjourned, never to meet again. Roop, however, did continue to act as governor for some time.
Undeterred by the unauthorized actions of the settlers, U.S. District Court Judge John Cradlebaugh arrived in Genoa in the summer of 1859. Although not a Mormon, Cradlebaugh was a representative of the Utah territorial government, and Carson County residents refused to work with him. In yet one more attempt to establish control over the western settlers, Probate Judge Child attempted unsuccessfully to hold court in September and also called for new elections on October 8. In protest, only three of the county’s ten precincts opened for the election. Under those rather disconcerting and unsupportive circumstances, the winning candidates refused to take office. Child could finally enjoy some sense of achievement in August 1860 when elections were successfully held to select various officeholders, including a representative to the Utah Territorial Assembly.
Attempts by the western settlers to achieve separate territorial status and some measure of law and order were exacerbated by three significant, contemporaneous events. In September 1859 James M. Crane, the settlers’ delegate to Washington,
D.C., died of a heart attack in Gold Hill. He was replaced by the aforementioned John J. Musser, who was unable to persuade Congress during its 1859–1860 session to establish an independent territory in Carson County. Complicating matters further was President Buchanan’s appointment of R. P. Flenniken as the new judge of the Second U.S. Judicial District to replace Judge Cradlebaugh— and Cradlebaugh’s refusal to leave his position. Thus was created the unworkable situation of two federal judges attempting to enforce the law. Conflict between the two only increased the judiciary’s impotence in the face of escalating lawlessness. The ineffectiveness of any government authority to maintain law and order was further exacerbated by a third event: the discovery of gold and silver in what became known as the Comstock Lode. The Comstock Lode brought with it a huge tide of humanity, including miners and the tradespeople who sought to supply them. New towns sprang up overnight, and thousands of people rushed to make their fortunes. In addition to dealing with the general lawlessness to be expected with the sudden, unplanned influx of so many fortune seekers, the western territory now had a new problem with which to cope: conflict between various parties over ownership of lucrative mining claims.
Thus, the years 1857 to 1861 were marked by anarchy and confusion, without any strong authority to establish law and order and without an effective government. Confusion was at an all-time high, with at least three governments in operation: the provisional government of Isaac Roop, the Utah territorial government of Probate Judge John S. Child, and the divided federal court authority exercised by warring U.S. District Judges John Cradlebaugh and R. P. Flenniken. A San Francisco newspaper of the time noted that
There is no government. Nominally the Mormon government bears sway over that portion of the territory as well as over Salt Lake City. But practically Mormon laws are a nullity, they are not enforced, nor could they be. Should a Mormon judge or justice of the peace attempt to hold his court at Carson City or Virginia City, he would not only find that he possessed no power to execute the mandates of his court, but also that all attempts to do so would endanger his personal safety. . . . Politically, the people are in a chaotic state, without law and without a Constitutional [sic] government. . . . The present position of the people is deplorable. The evils to which they are exposed are terrible to contemplate and the coming season it is to be feared, will witness scenes of anarchy and bloodshed, fearful to behold, as the rich silver mines will attract thither a large crowd of desperate and abandoned men, who, in the absence of law and a well-established government will give full scope to their vicious inclinations.25
Nevada Territory and Statehood
In 1861, the settlers’ representative, John J. Musser, finally persuaded Congress to establish a separate territory in western Utah. Musser was aided by the election of Abraham Lincoln as president and the resulting secession from the Union of the southern states. With the pro-slavery states no longer represented in Congress and unable to block the territory bill, passage was virtually guaranteed. And it certainly did not hurt the settlers’ cause that the influx of population and the increase in lawlessness in Carson County as a result of the discovery of the Comstock Lode had shown that the non-Mormon territorial government of Governor Cumming was no more effective than Brigham Young had been in assuring law and order and in quelling the desire for separate territorial status among the western Utah residents. On February 26, 1861, the U.S. Senate passed legislation entitled An Act to Organize the Territory of Nevada; the House of Representatives followed suit on March 2, and President Buchanan signed it into law later that day. Thus, after ten years of uninterrupted pleas and petitions, the western Utah settlers achieved their goal: the establishment of Nevada Territory.
Two days after Buchanan signed the act establishing Nevada Territory, Abraham Lincoln was sworn in as president of the United States. So it was his responsibility to name the territory’s first officers. On March 22, President Lincoln announced the appointment of James W. Nye of New York as territorial governor and Orion Clemens (brother of Samuel, better known as Mark Twain) as territorial secretary. Both were patronage appointments: Nye was a good friend of Lincoln’s secretary of state, William H. Seward, and the two had campaigned in the West for Lincoln during the 1860 election; Clemens had studied law in the St. Louis law offices of Edward Bates, Lincoln’s attorney general.
Governor Nye arrived in Nevada on July 7, 1861. He chose Carson City as his site of operation and later instructed the first territorial legislature to meet there, indicating the town’s ascendance in the territory over the previously dominant Genoa. Nye soon issued three proclamations: the first named his appointees to various territorial offices (July 12); the second announced the creation of a judiciary (July 17), and the third called for elections to be held on August 31 for the purpose of selecting a delegate to Congress and members of the territorial legislature (July 24).
Nye’s July 17 proclamation establishing a judiciary was one of the most important actions he took in this early organizational period. The lawlessness that characterized Nevada demanded the creation of courts to enforce law and order; indeed, aside from the Mormon question, the absence of legal authority was the major reason the settlers had lobbied for separate territorial status. Following the dictates of Section 9 of the Territorial Act of 1861, Nye established a supreme court, three district courts, probate courts, and justices of the peace. Three Lincoln-appointed territorial judges each heard cases on original jurisdiction in one of the district courts, and all three sat en banc as the supreme court to hear appeals. The lower-court judges were appointed by Nye until such time as elections could be held. In a letter to Secretary of State Seward, Nye confirmed the importance of establishing a judiciary in the territory when he noted that there was “no such thing as law or order existing in the Territory” and that there was, in particular, a great need for a court system to establish mining rights.1
In the August election, Judge Cradlebaugh was chosen to serve as the territory’s first delegate to Congress. Also elected were nine members to serve in the Council and fifteen to serve in the House of Representatives, the upper and lower houses, respectively, of the territorial legislature. The legislature met only three times: in 1861, 1862, and 1864. The first session convened on October 1, 1861, at Abe Curry’s Warm Springs Hotel two miles outside of Carson City, a site purchased later by the territorial government for $75,000 that served as the Nevada State Prison until 2012. During this first session the legislature passed 107 pieces of legislation organizing the territory. Some of the more noteworthy acts were those adopting the common law of England, forming nine counties in the territory to be governed by three-member boards of commissioners, and establishing a system of common schools. And in marked contrast to what Nevada’s future would hold, some of this early legislation made divorce difficult except under the most extreme circumstances and prohibited gambling, which Governor Nye had referred to in his address to the legislature as “the worst” of “all the seductive vices,” which “captivates and ensnares the young, blunts all the moral sensibilities and ends in utter ruin.”2
Two of the most controversial issues facing this first legislative session were the permanent location of the capital and the generation of revenue for supporting the territorial government. The question of where to locate the territorial capital was, apparently, a difficult and emotional one, resulting in charges of underhanded dealing and a barroom brawl in the Ormsby House Hotel between a Virginia City councilman and a Carson City representative. By a vote of 15 to 9, it was decided that Carson City, and not Virginia City, would be the capital. The issue of how best to raise revenue in the territory was a precursor of the events that would disrupt and derail later attempts to write a state constitution. Governor Nye proposed a tax on the gross proceeds of mines, at that time the major source of the territory’s wealth. The mining-dominated legislature vehemently objected
and eventually passed a general property tax measure of forty cents per one hundred dollars valuation on property in the territory. Counties could, in addition, adopt a levy of up to sixty cents more per one hundred dollars valuation on all property within their jurisdictions. The mines and their products would be untaxed. This battle over the taxation of mining property was only the first of many to come, leading one Nevada observer to note, “The background of Nevada politics for thirty years was a fight of mine operators against paying taxes.”3
Statehood Although Nevada had been a territory for little more than a year when the second session of the legislature met in 1862, an election was called for September 1863 to determine support for statehood and, assuming support, the selection of thirty- nine delegates to a convention to draft a constitution for the State of Washoe. Support for statehood in the fledgling territory was overwhelming, with a vote of 6,600 in favor and 1,502 opposed.4 Even though Congress had authorized neither the election nor statehood for the territory, a convention met in Carson City for thirty-two days in November and December of 1863 to draft a constitution for the state they chose to name Nevada rather than Washoe, as the 1862 legislature had wished, or Esmeralda or Humboldt, as some of the delegates had proposed.
The 1863 Constitution The delegates to this unauthorized convention were optimistic not only that Congress would grant statehood but also that their handiwork would be as overwhelmingly supported by the citizens as the question of statehood had been in the September election. In that, they were sadly mistaken. Except for an unprecedented clause in which the state’s citizens pledged “paramount allegiance” to the federal government, the constitution coming out of this body was itself rather unremarkable, based as it was on California’s and New York’s constitutions. This constitution’s lack of originality is not surprising when one considers that of the thirty-nine delegates, “all but 5 had come from California, all but 5 were under 50 years of age, and all but 2 had been in the territory less than 5 years.”5 In addition, a plurality of the delegates listed New York as their place of birth. Although many issues divided the delegates during the course of their deliberations, two of the most controversial spelled overwhelming defeat at the polls for the constitution they had so carefully and painstakingly crafted.
Just as mine taxation had led to a dispute between Governor Nye and the 1861 legislature, so it disrupted the 1863 convention. The move from territorial to state status would eliminate the federal government’s subsidy of the Nevada government, creating a need for additional revenue to support it. Indeed, the additional cost to be borne by a state government, as opposed to a territorial one, was a common concern among some members of various anti-statehood
movements in the West during the later nineteenth century.6 One faction, led by convention president John W. North, proposed that mines should be taxed the same as other property, arguing that “all property should bear alike the burdens of society.”7 A second faction, led by the powerful mining lawyer William M. Stewart, objected that such a tax would “mean the death of the mining industry” by “impos[ing] a burden upon the miners which would be heavier than they could bear. It would mean a tax on the shafts, drifts, and bedrock tunnels of the mines whether they were productive or not.”8 Stewart noted ominously that taxing unproductive mines, ninety-nine out of one hundred by his calculation, would stop the mining industry dead in its tracks and lead to economic disaster for the state. Instead the Stewart faction favored taxing only the net proceeds of the mines. The North faction prevailed, however, and the convention adopted a provision requiring the legislature to “provide by law for a uniform and equal rate of assessment and taxation and [to] prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal including mines, and mining property.”9
The second issue responsible for the 1863 constitution’s defeat at the polls involved the election of officeholders to serve in the new state government. Convention delegates decided to offer a single slate of officeholders on the ballot with the constitution; thus, in voting for the constitution, one would also vote for a particular slate of candidates. This proved deadly. Even though the mining-tax issue created a serious rift in the territory, it is possible that the constitution, voted on by itself, could have been ratified. Indeed, Stewart, defeated as he was in the convention on the tax issue, supported the constitution’s adoption and fought mightily for ratification. But the slate of candidates, to the chagrin of many, had been handpicked by Stewart in a pair of rather nasty Union Party conventions, first in Storey County and later at the territorial convention in Carson City.10 Stewart’s domination of the Union Party proceedings led to a split in the party and the defeat of territorial supreme court justice John North, his nemesis from the constitutional convention, in his bid for the party’s gubernatorial nomination. Much of Stewart’s vigorous support for the 1863 constitution, including as it did the mining-tax provision he opposed, was a result of his desire to be rid of the territorial judges, including North, whom he hated as much as, if not more than, the mining tax, and his belief that his chosen candidates for “the First State Legislature would amend the new Constitution to provide taxation only of the net proceeds of productive mines.”11
The split in the Union Party had a twofold, negative impact on the quest for ratification. First, North and his followers, who supported the constitution itself, were in no mood to vote for its ratification if that meant, as it did, the concurrent election of Stewart’s slate of candidates. North and other disappointed office seekers, “and their names were legion, became hostile to [the constitution’s] adoption.”12 Second, small mining companies were unwilling to take a gamble
that the legislature would, in fact, repeal the mine tax, especially if that meant turning control of the state government over to Stewart and the large San Francisco mining companies he represented. As historian David A. Johnson has noted, much of the opposition to the 1863 constitution was “based upon a widespread conviction that Stewart intended to control the new state government as a means to further his own interests and those of the mining corporation officials he represented.”13
The unlikely combination of disappointed Union Party office seekers, small miners, merchants, farmers, and a few Democrats residing in the territory—who supported the Confederacy and wished, therefore, not to become a Union state— was large enough to ensure the overwhelming defeat of the constitution in the January 1864 election. The four-to-one vote against the constitution, 8,851 to 2,157, was ironically similar to that which had favored statehood earlier. In a letter later that year to his old friend Secretary of State Seward, Governor Nye noted that the chief reason for the constitution’s defeat was a “dissatisfaction with some of the State ticket, and the proceedings of some of the county conventions [that] caused its opponents to act in concert, and all combined they were strong enough to defeat it.”14 A delegate to the second constitutional convention in 1864, John A. Collins, shared Nye’s belief and laid blame for the constitution’s defeat on “efforts to introduce a certain set of delegates into the State Convention.”15 Yet there were those who disagreed, including Charles E. DeLong, also a delegate to the 1864 convention, who noted colorfully that the mining-tax provision, which had “stunk in the nostrils of the people,” was the true cause for the failure of the 1863 constitution to be ratified.16
The defeat of the 1863 constitution, however, did not entirely quell Nevadans’ desire for statehood; the four-to-one vote in favor of statehood in the September 1863 special election was evidence enough of its force in the territory. But for the mining-tax provision and the Union Party split engendered by Stewart’s political legerdemain, the 1863 constitution might well have been ratified. Nonetheless, as will be discussed later, the mining depression that gripped Nevada Territory in mid-1864 reduced statehood desires within the territory itself. What ultimately provided the impetus for Nevada’s statehood came quite outside the young territory’s borders; national issues were quickly coming to a confluence that would give Nevada its cherished prize. Within twenty days after the defeat of the 1863 constitution, a bill was introduced into Congress allowing the territories of Nevada, Colorado, and Nebraska to hold constitutional conventions and establish state governments. The bill, introduced on February 8, 1864, by Senator James R. Doolittle of Wisconsin, a Republican, easily passed both houses of Congress and was signed by President Lincoln on March 21.
The driving force behind Doolittle’s bill had four components. First, Lincoln desired additional votes in Congress to assure the two-thirds vote he needed in both houses for passage of the Thirteenth Amendment, which would abolish
slavery and thereby place a constitutional imprimatur on his Emancipation Proclamation. Second, Lincoln expected that he would need Nevada’s three electoral votes to win the 1864 presidential election. Third, the Radical Republicans, already at odds with their own party’s president over the coming Reconstruction of the southern states, had their own reasons for supporting Nevada statehood: they sought additional Republican votes in Congress to support congressional, rather than presidential, policies on such matters. Finally, with the third-party candidacy of John C. Frémont, it was thought (until his withdrawal in September) that the 1864 presidential election might be so close that no candidate would win a majority in the Electoral College and the decision would thus be thrown into the House of Representatives; an additional Republican vote from Nevada in that body would help to assure selection of Lincoln, the Republican nominee.
The 1864 Constitution Acting quickly, Governor Nye on May 2 called for an election to be held on June 6 for the purpose of choosing thirty-nine delegates to attend a second constitutional convention. Unlike the gathering in 1863, this convention was legally authorized by Congress and, ultimately, successful.
The convention, presided over by J. Neely Johnson, former governor of California, met in Carson City on July 4 and concluded its work on July 27; thirty-five of the thirty-nine elected delegates attended. The demographic makeup of the convention was similar to that of its predecessor: ten members had served in the 1863 convention; most were from California; lawyers and mining interests dominated; and all but one, Francis Proctor, a Democrat from Nye County, were Union Party members. Unlike the 1863 convention, antagonists John W. North and William M. Stewart were not delegates.
The Nevada Enabling Act established a number of limitations on the type of constitution the convention delegates could draft. Those restrictions, to which the delegates faithfully adhered, included the following:
(1) The new State Constitution must be republican in nature and not repugnant to the Federal Constitution or the Declaration of Independence; (2) there shall be no slavery or involuntary servitude other than for punishment of crimes, without the consent of the United States and the people of Nevada; (3) the Constitutional Convention must disclaim all rights to unappropriated lands in Nevada; (4) land owned by U.S. Citizens outside Nevada must not be discriminated against in taxation; and (5) there must be no taxation of federal property in the state.17
There were a great many areas of dispute among the delegates at the 1864 convention; some of the most interesting and significant included the naming of the state and the ever-present issue of mine taxation.18 The convention as a whole supported the move to statehood but debated vigorously the state’s name. Among
the suggested appellations were Washoe, Humboldt, and Esmeralda, all of which had also been proposed at the 1863 convention, and Bullion, Oro Plata, and Sierra Plata. Because the territory’s name was Nevada and the area was, therefore, known throughout the nation by that designation, and because the congressional Enabling Act had used that name, the convention agreed to call the new state Nevada. The delegates also agreed early in their proceedings to use the failed 1863 constitution as the basis for its new draft. Although some of the members had urged abandoning the rejected document and starting anew, utilizing the California Constitution as a base, it was agreed that the 1863 constitution “owed much of its substance to the California Constitution, [so] there was no point in starting all over again.”19 In addition, by using the 1863 document as a starting point, the convention saved considerable time and expense, since several hundred copies of it were already in print.
A statistical analysis of twenty-eight significant issues voted upon in the 1864 convention has shown that, to no one’s surprise, the delegates’ voting behavior was much the same as it had been in the 1863 convention. The chief division among them came along “economic and geographical lines,” particularly in regard to variations in voting between mining and agricultural/ranching interests. Given that all except Francis Proctor were members of the Union Party, party affiliation was “largely meaningless” in explaining any of the divisions among the delegates.20
The 1864 constitution differed in two major respects from its failed 1863 predecessor. On the divisive issue of mine taxation, the delegates had apparently learned their lesson. Delegates from the non-mining “cow counties” continued to support the language of the 1863 constitution that allowed for the taxation of mines at the same rate as other property. Their strong feelings on the question were generated by at least two complementary issues: equity and colonization. In regard to equity, the cow-county delegates thought it unfair that mines be taxed only on the basis of their net proceeds, as some had suggested, while all other types of property were taxed on their assessed value. George A. Nourse, an attorney from Washoe County, argued that if mines were to be taxed solely on their net proceeds, then the constitution should also provide that “farms, and sawmills, and other property shall be taxed only on their net proceeds”; only then would there be “some degree of fairness.”21 In pursuing an exemption from taxation, the mining interests were clearly exhibiting one of history’s oldest political axioms: additional costs are fine (in this case, the higher expenses of statehood)—as long as someone else picks up the check.
On the issue of colonization, resentment had festered for some time in Nevada over the fact that large, wealthy mining companies from California controlled most of the area’s mineral wealth. The Virginia City Territorial Enterprise, for example, had editorialized in 1862 that “the interests of no parent country and colony could possibly be more closely united than are those of California and
Nevada. The colony has untold wealth of gold and silver, and the mother country manages. . .to get it all as fast as it is dug out.”22 This resentment was echoed at the 1864 convention by A. J. Lockwood, a mechanic from Ormsby County, who noted, “I am in favor of taxing the mines, because I want to make those gentlemen who are rolling in wealth in San Francisco, pay something for the support of our government, for the support of our common schools, and for the support of our courts.”23 Indeed, even now, San Francisco is still referred to by some as the “city Nevada built.”
At the other end of the spectrum were those who did not want the mines taxed at all. E. F. Dunne, a lawyer from mining-dominated Humboldt County, warned that a tax on mines would “encumber the mining interest, which shall destroy it, or thwart its development, and. . . strike a ruinous blow” to the state’s other economic interests.24 More explicitly, delegate Charles E. DeLong from Storey County threatened that “but for the mines, all your stores would be removed, your farms would dry up, and be abandoned, and your wagons would stop in the streets or be turned elsewhere.”25 In addition to their superior numbers at the convention and the ghost of the 1863 constitution’s failure, the miners held one other important card: the legality of taxing mining property. As noted above, the Enabling Act passed by Congress prohibited the state’s taxation of unappropriated public lands within Nevada. Convention president Johnson, a lawyer from Ormsby County, concluded that this provision of the Enabling Act rendered the state powerless to tax the mines, which were situated on unappropriated federal lands.
The mining-tax debate was a long, divisive one in the convention; several proposals were offered and rejected by both sides. The unlikely alliance of small miners, farmers, and disappointed office seekers who had defeated the 1863 constitution now fell apart, victim of its own internal disagreements.26 Eventually, however, in order to prevent the total collapse of the convention, the delegates agreed by a vote of 23 to 10 to a compromise proposal stating that “the legislature shall provide by law for a uniform and equal rate of assessment and taxation,. . .excepting mines and mining claims, the proceeds of which alone shall be taxed.”27 It was left to the legislature to determine whether these taxable “proceeds” would be net or gross. The compromise was not without cost, however. The mining exemption from taxes marked a turning point in the convention; thereafter, the small miners, who had previously supported positions taken by the cow-county delegates, began voting uniformly on the side of the large mining interests.28 At the end of the convention, the “odious and unjust discrimination between different kinds of property” led George A. Nourse and Israel Crawford, an editor from Ormsby County, to vote against the constitution.29
The second significant distinction between the 1864 constitution and its 1863 predecessor was in the election of the state’s first officers. This time the constitutional ratification vote and the election for state officials would take place
separately, the former on September 7 and the latter on November 8. Thus, in the 1864 ratification election, the voters would be free to support statehood and the constitution without necessarily voting for a particular slate of candidates they might find unacceptable.
Support for the 1864 constitution was overwhelming. At the convention it received a positive vote of 19 to 2, and in the September 7 election it was decisively supported by a popular vote of 10,375 to 1,284, a margin of more than eight to one.30 In its haste to admit Nevada as a state before the 1864 national elections, Congress, in the Enabling Act, waived the right to inspect and approve the constitution and allowed Nevada Territory to become a state upon acceptance of the constitution by President Lincoln. On October 17 the territorial government wired the entire text of the state constitution to the nation’s capital at a cost of $4,303.27, making it the “longest and most expensive telegram ever dispatched in the United States up to that time.”31 Finding the constitution acceptable, on October 31, 1864, President Lincoln issued the proclamation making Nevada the thirty-sixth state in the Union.
Thus, in the course of approximately one year, the residents of Nevada had made a complete turnaround from rejecting to accepting a state constitution. Clearly the 1864 convention’s decisions to tax only the proceeds of the mines and to separate the ratification ballot from that for state officers are critical in explaining this reversal. Two other issues, however, bear brief mention here. The first of these was a mining depression that hit the territory hard in 1864. It had two effects on the acceptance of the 1864 constitution. The depression’s impact upon the region’s economy was so immense that six of the eight delegates at the convention who had also served in the 1863 convention and who had previously voted against the tax exemption for mining property supported it in 1864. With the mining economy now fallen upon hard times, the tax-exemption compromise was more acceptable to them, since “concern over economic survival supplanted [their] fear of domination by outside interests.”32 In short, Nevadans had come to believe, accurately, that the day of the solitary miner was over and that mining could survive only with the infusion of capital from other places and the
“corporatization” of what had previously been an individual labor. The California capital they had so feared and distrusted in 1863 had come to be seen as crucial to the mining industry’s, and thus the state’s, survival.33 The depression also had the effect of strengthening statehood desires among the general populace. This sentiment was evidenced by an editorial in the Territorial Enterprise: “The only hope we have of effecting a speedy and absolute cure of our crushing ills is in the adoption of a state government. . . . Better to pay even double taxes, if by doing so we can make our property ten times more productively valuable, than to pay even less and let property continue to depreciate. . . . If we should have flush times again, we must vote for the State Constitution.”34
The second issue, to be noted again in chapter 8, was the sad and disreputable state of the territorial judiciary. The residents of Nevada Territory were now as resolute in ridding themselves of the federally appointed territorial judiciary as they had been in 1858 in ridding themselves of the Mormon-dominated judiciary emanating from Utah. Indeed, DeLong noted at the 1864 convention that “many are going to vote for the Constitution in order that we may be released from the present judiciary system.”35 The territorial judges were accused of being corrupt and of worsening the mining depression by failing to move mining cases along quickly enough. Although the judges had behaved in a sometimes-unprofessional manner, much of the opposition to them was politically motivated and engineered by William M. Stewart. As historian Hubert Howe Bancroft has noted:
Probably the first federal judges would have been able to hold their own against the criminal element in Nevada; but opposed to the combined capital and legal talent of California and Nevada, as they sometimes were, in important mining suits, they were powerless. Statutes regarding the points at issue did not exist, and the questions involved were largely determined by the rules and regulations of mining districts, and the application of common law. Immense fees were paid to able and oftentimes unprincipled lawyers, and money lavished on suborned witnesses.36
Stewart could certainly be counted among the “unprincipled” lawyers to whom Bancroft referred. At a time when “cases were to be won through the bribing and browbeating of witnesses, juries, and justices,” it has been observed, “Stewart had no equal on the [Comstock] lode.”37
Stewart’s attacks on the alleged corruption of the territorial judges disguised in a cloak of good government his continuing desire to control the state government and to remove from the bench his old enemy, John North. Stewart’s dispute with North, which had begun over the mining-tax provision in the 1863 convention, had now reached a boiling point with Judge North’s decisions in several mining cases that were adverse to the financial interests of Stewart’s California clients.
On August 22, 1864, North and the other two territorial judges, Powhatan B. Locke and Chief Justice George Turner, resigned, giving (unwarranted) credence to Stewart’s claims of corruption and bribe taking. That they did so was in no
small part due to attacks upon them and a petition signed by more than 3,500 voters in Virginia City and Gold Hill demanding their resignations.38 Stewart and his supporters took the opportunity to push for ratification of the constitution on the grounds that statehood would be the only remedy to ensure justice in the region. The Nevada Transcript editorialized, for instance, that “[Nevada] can never prosper while the judiciary is suspected. Capital will refuse to go there for investment unless at heavy premium for risk, and men of families will decline to make a spot for their homes where vice instead of virtue reigns.”39 Although there is no proof the three judges were corrupt, it is hard to imagine that the intense campaign impugning their integrity had no effect on those voting on the constitution slightly more than two weeks after their mass resignation. As Robert M. Clarke, Nevada’s second attorney general, later observed, “Nevada became a state to escape the deadfall of her Territorial courts. Her Temple of Justice had been transformed into a den of iniquity.”40
After their territory became a state on October 31, Nevadans’ first duty was to hold elections for state officials and for their representative to the U.S. House of Representatives (at that time, prior to the Seventeenth Amendment, U.S. senators were selected by the state legislatures). “Battle Born” and loyal to Lincoln and the Republicans who had given them the statehood they had desired, Nevada voters lived up to congressional expectations. Republicans won the presidential ballot, all executive and judicial seats, and all but two of the legislative contests. Republican H. G. Worthington was elected to the House, and when the legislature met in December, Republicans William Stewart and James Nye were selected as the state’s first U.S. senators. Worthington voted in favor of the Thirteenth Amendment, but Stewart and Nye were not sworn into office in time to join him; the state ratified it in 1865. Nevada’s three federal representatives were not needed, however, to ensure Lincoln’s reelection; the 1864 presidential and vice- presidential elections were not, as had been widely expected, thrown into the House and Senate, respectively. (Of perhaps minor interest is the fact that only two of Nevada’s three electors voted in the 1864 Electoral College; the third, A. S. Peck, was stuck in a snowstorm in Aurora and could not attend the convocation to vote.) Thus, the state’s first elections not only put Nevada firmly in the Republican fold but also began the domination of the state’s politics for years to come by the victorious William M. Stewart.
The Nevada State Constitution The State of Nevada continues to function under its 1864 constitution, although that document has been amended over 150 times since. Its contents are not particularly remarkable or unique, based as they are on the constitutions of California and New York. What does distinguish it most of all, perhaps, is that it is the culmination of a series of five “constitutions” proposed, sometimes ratified
and sometimes rejected, that sought to govern the area. From the 1851 squatters’ compact to the Cornwall Constitution of 1854, the ineffective constitution of 1859, and the rejected 1863 state constitution, Nevadans have shown an abiding interest in and respect for constitutional government. The 1864 constitution must, then, be seen as the successful product of those other attempts at constitution making and as the ultimate will of the state’s people.
The Constitution of the State of Nevada consists of nineteen articles that perform the functions of all such documents: creation of an organized government, distribution of government power among its divisions, and the protection of individual rights from government infringement. Because the Tenth Amendment of the U.S. Constitution reserves to the states all powers not delegated to the federal government or prohibited by it to the states, state constitutions do not grant powers but seek to structure and limit those powers reserved to the states. Therefore, like the constitutions of the other forty-nine states, the Nevada Constitution tends to be longer and more specific than the federal Constitution, particularly in regard to express limitations on the power of the state. Daniel J. Elazar, the nation’s most prominent scholar of federalism, cites Nevada’s constitution as an example of the “Frame of Government” type of constitution, a type that is “found exclusively among the less populated states of the Far West” and characterized as a “business-like” document of moderate length reflecting “the relative homogeneity of the states themselves.”41
By the way of comparison, the U.S. Constitution contains 240 provisions and consists of only 7,500 words. The Nevada Constitution, on the other hand, has more than twice that number of provisions and more than three times as many words. Although lengthy by reference to the federal Constitution, the Sagebrush State’s constitution is actually shorter than the “average” state constitution, which encompasses 828 provisions and 34,000 words.42
In the chapters that follow, we shall examine various provisions of the state’s constitution in more detail as they relate to particular topics in Nevada’s post- 1864 political history.
Civil Rights and Liberties in Nevada
Civil rights are generally defined as those “positive acts of government designed to protect persons against arbitrary or discriminatory treatment by government, or individuals.”1 Civil rights include those we deem necessary for equality to prevail among and between citizens: the right to vote, for example, and the right to equal employment and housing regardless of sex, sexual orientation, gender identity, race, color, creed, or religion. Civil liberties, on the other hand, refer to “negative restraints” upon the government in its exercise of power.2 Included here would be those rights normally found in a bill of rights, such as the freedoms of speech, press, and religion. In this chapter we shall examine the past and present of Nevada’s record on civil rights and liberties, a record that is at times sad and at other times cause for jubilation.
Civil Rights Nevada, like most states, has a mixed and sometimes pitiful historical record in protecting the civil rights of its citizens. Indeed, for many years, the state was referred to as “the Mississippi of the West.” Although that sobriquet was neither entirely justified nor entirely wrong, the state’s treatment of minorities does not, unfortunately, always suggest the actions of an enlightened populace or government.
The roots of discrimination against ethnic, religious, and other minorities run deep in Nevada history. The Declaration of Rights that forms the first article of the Nevada Constitution states that “all men are by Nature free and equal and have certain inalienable rights.” Yet even the men who wrote those words did not necessarily believe that they applied to all men, and most assuredly not to women. For example, delegates to the 1864 constitutional convention, the very convention at which those awe-inspiring words were written and adopted, also agreed upon Article 2, which gave the right to vote to white males only. Indeed, Nelson E. Murdock, one of these delegates, noted during the convention’s deliberations over the issue of voting rights that “I think the Anglo-Saxon, the Celtic, or any other of the White or Caucasian races, is a far superior race of men to the Indian, the Negro, or any of the colored races. . . . Why should we condescend to make any
of the inferior races our equals?”3 The irony of the convention’s actions on the issue of voting rights in the face of both its previous high-sounding rhetoric and the fact that Nevada was born in the midst of a civil war over the issue of slavery apparently occurred only in passing to the delegates. For instance, in that same discussion over voting rights George Nourse suggested striking the word “white” from the suffrage article; his motion received neither a second nor discussion.
Although politically incorrect by today’s standards, Murdock’s speech before the convention delegates represented nothing more than a continuation of the attitudes that had existed in the territory for some time. In one of its first acts, the Nevada Territorial Legislature, meeting in 1861, provided that “no black person, or mulatto, or Indian, or Chinese” would be allowed to give evidence in court either in favor of or against any white person, presumably because they were considered untrustworthy. Similarly, the legislature prohibited cohabitation with “Indians, Chinese, or negroes [sic]” and made a breach of that law punishable by either a fine or a jail term. Things were little better after the granting of statehood, when the state legislature amended the law to allow blacks, but not Indians or Chinese, to testify against a white person.
Native Americans Although virtually all minorities in the United States have been discriminated against at one time or another, Native Americans have arguably been the only group targeted for genocide. As noted in chapter 1, prehistoric peoples entered the
Great Basin as early as 15,000 years ago via a land bridge between Asia and North America at the present site of the Bering Strait near Alaska. Those who settled in present-day Nevada eventually came to be known as the Northern Paiutes (in northern and western Nevada), Southern Paiutes (in southern Nevada), Shoshones (in northern and eastern Nevada), and the Washos (in a small area of western Nevada).
One of the first encounters between these Native Americans and whites, as noted earlier, came in 1833, when at least thirty of them were killed by members of Joseph Walker’s trapping party; unfortunately for the Indians, it would not be the last hostile meeting between the natives and the new immigrants. The influx of new settlers and treasure seekers to the Great Basin led to numerous conflicts with the various tribes. One of the most noteworthy was the Pyramid Lake War of 1860. That episode involved Bannock Indians who were temporarily staying at Pyramid Lake after leaving their homes farther north for the winter. The Bannocks killed either three or five whites (accounts differ) at Williams Station after two Indian girls had been kidnapped by the men and reportedly held in a cave near the station. In retaliation, more than one hundred white settlers moved, mistakenly, against the Northern Paiutes, who had, in fact, refused the Bannocks’ invitation to join their raid on Williams Station. Prepared for the assault they knew would come, the Paiutes, led by Chief Sequinata, also known as Chiquito (“Little”) Winnemucca, killed seventy-nine whites and wounded another twenty- six before the defeated settlers-turned-militiamen returned to Carson City. More battles ensued, with the now-outnumbered Paiutes receiving the worst of it. The U.S. Army was called in to build a garrison at Fort Churchill, and thirteen military outposts were eventually established in Nevada to “control” the Native American population. The influx of troops and the coming of the railroad eventually made it clear to all that the Native Americans could not stop the increasing tide of white settlers and miners. Ultimately most of their land was taken and treaties with the federal government were routinely broken. In the 1870s, reservations were created to house these, Nevada’s first inhabitants: the Pyramid Lake Reservation and the Walker River Reservation in 1874 for the Northern Paiutes, the Moapa Reservation in 1875 for the Southern Paiutes, and the Duck Valley Reservation in 1877 for the Shoshones.
During the period after white settlement in Nevada, Native Americans quickly became foreigners in their own land, the object of both social and legal discrimination. Through various laws, first the territory and then the state of Nevada prohibited the sale of alcohol, firearms, and ammunition to the Indians, prohibited intermarriage between the tribes and whites, controlled fishing on the Walker River Reservation, sought to diminish the size of reservations in order to secure prime timber property, and prohibited Indians from attending public schools. During this early period of Nevada’s history, the Native Americans were exiled to live on the fringes of white society, performing unskilled labor. At one point, legislators went so far as to suggest that any Indians who could not be
“subjugated” should be “exterminated.”4 In the 1920s, Indian children were allowed to attend public schools, and in the
1940s Native Americans began to see somewhat better legislation as the state recognized the validity of Indian marriages, repealed laws prohibiting the sale of alcohol to Indians, and allowed the use of peyote in Native American religious ceremonies. In 1965 an Indian Affairs Commission was created by the legislature to study and make recommendations to the state government on issues relating to Nevada’s Native American population.5 At the federal level, Congress established the Indian Claims Commission in 1946 to place a monetary value on, and pay compensation to the tribes for, the lands taken. Although the amounts to be paid were in the millions of dollars, some tribes, most notably the Western Shoshone, refused the moneys. However, in lopsided votes in 1998 (1,130 to 53) and 2002 (1,703 to 230), tribal members voted to accept the money which, as a result of interest had by 2005 grown from $26.1 million to more than $145 million. Distribution of these funds began in 2011. Nonetheless, many of the tribe’s members challenge the decision and continue to lay claim to the lands, approximately one-third of the state of Nevada, which were promised to them in the Treaty of Ruby Valley in 1863.
In two separate cases during the Clinton administration the federal government turned over land to the Washo and Timbisha Shoshone tribes. In the former case, the Washo Tribe of Nevada and California is leasing 350 acres of U.S. Forest Service land on the California side of Lake Tahoe and has access to ninety additional acres near the lake, land upon which it built a cultural center for tribal ceremonies. Although the leases will run for only thirty years, the tribe hopes to make their status permanent before the expiration date of 2027. And, in 2000 the Timbisha Shoshone were granted a permanent homeland in the Mojave Desert consisting of 5,800 acres in Nevada and 1,900 acres in California. At one time, the Timbisha Shoshone occupied 15,000 square miles in the area around Death Valley.
The Chinese Chinese immigrants began arriving in Nevada after 1849 for the same reason their white counterparts had come: to find wealth in the area’s mines. Discrimination against them began almost immediately, and what the law could not accomplish, physical violence often did. Apparently not satisfied that the Chinese were prohibited by state statute from owning property, whites singled out Chinese miners as the subjects of frequent attack, and they were soon driven out of the industry and relegated to service occupations such as laundering and cooking.
The greatest increase in the Chinese population occurred from 1867 to 1869, during the construction of the Central Pacific Railroad across the state. Because they were willing to work hard in dangerous situations for little pay, the Chinese were prized workers for the railroads. However, in spite, or perhaps because, of
this, they were despised by the local inhabitants, who saw them as a threat to their own livelihoods. Mining unions saw them as threats “to the union against the bosses” and “as tools of corporate monopolists.”6 They were excluded from union membership and thus were denied employment in the mines, which at that time were closed union shops. Discrimination against the Chinese was so intense that most left the state after the railroad’s completion. Various federal acts in 1882, 1907, 1921, and 1924 established strict immigration quotas and regulations, slowing to a trickle any further Chinese emigration to the United States.
Although the Chinese were allowed after 1881 to give testimony in court against whites, jurors often disregarded that testimony. In a case tried in 1903, more than twenty Chinese witnesses testified to the guilt of five white men who had beaten and killed two elderly Chinese laundry-men in Tonopah’s Chinatown. All five were acquitted.7 Various anti-Chinese organizations were created in the state, including one in Virginia City that passed a resolution stating that “the presence of the Chinese in Nevada ‘was injurious to the welfare of the State and a danger to the Republic.’”8 And in one of the most blatant and egregious acts of violence against the Chinese, most of Reno’s Chinatown, including private homes, was burned to the ground in 1908 by a mob acting upon the instructions of local officials.
Beginning in the 1940s, the federal government relaxed its laws limiting Chinese immigration to the United States. Employment prohibitions against the Chinese were repealed by the state legislature in 1959. In addition, as we shall see
later, various anti-discrimination laws enacted by the federal and state governments in the 1960s and 1970s worked to free the Chinese, as well as other minorities, from much of the discrimination that had impeded their progress over the years.
Of course, the Chinese are not the only Asians to have settled in Nevada. One will also find those whose heritage can be traced to India, Pakistan, Japan, the Koreas, Thailand, and a host of other nations, although the largest single group of Asians living in the Sagebrush State is Filipinos. In the decade of the 2000s, the Asian population in Nevada grew at a faster rate than did the state as a whole. In 2000 there were only 90,266 Asians in the state, approximately 5.7 percent of the population. By 2010 that number more than doubled to 195,436 or 7.24 percent of the statewide population. By comparison, during that same time, Nevada’s population grew by 32 percent.
African Americans The existence of a sizable community of African Americans in Nevada is a relatively recent phenomenon. Even though African Americans lived in the state in the latter nineteenth and early twentieth centuries, their numbers were small. Fewer than 40 blacks lived in Las Vegas at the time of the 1910 census, and only 134 lived in the entire state at the turn of the century. African Americans in Nevada were discriminated against in various ways and never treated as full equals, but the worst discrimination against them did not begin in earnest until Nevada’s black population began to rise in the 1930s and 1940s. In the early period of statehood, Nevadans, like the inhabitants of other western states, expressed a “paternalistic—if condescending—interest in the few blacks who migrated to [the] state.”9 Indeed, Nevada, as a Republican-dominated state, easily and eagerly ratified the Thirteenth and Fourteenth Amendments and was the first state to ratify the Fifteenth Amendment to the U.S. Constitution, which prohibited denial of the right to vote on the basis of race.
Discrimination against African Americans certainly existed from the beginning, with prohibitions on their testimony against whites and their exclusion from public schools. A significant number of African Americans came to the Las Vegas area in the 1930s and 1940s as a result of the federal government’s construction of Hoover Dam and the creation of war-related industries and military bases. Perhaps because of the growing African-American population in the state at that time, discrimination against blacks began to increase in 1931 when the companies constructing the Hoover Dam near Las Vegas refused to hire them. Unlike the southern states, where statutes existed mandating separate and unequal treatment for blacks, Nevada had no laws requiring segregation; nonetheless, African Americans found themselves increasingly discriminated against by private segregation in housing and employment. In addition to their relegation to only menial jobs, they were not allowed to gamble, eat, drink, or
attend shows in casinos and restaurants; the state’s business owners did not want to offend their white clientele, many of whom were Californians who had migrated west from the southern states. Indeed, African-American entertainers such as Sammy Davis Jr. and Lena Horne were not even allowed to stay in the hotels in which they played.
With the looming threat by NAACP leader Dr. James McMillan of massive demonstrations and sit-ins such as those that had occurred in the South, Las Vegas mayor Oran Gragson announced in March 1960 that segregation in public accommodations in the city would end; the businesses on the Strip, outside city limits, soon followed suit. The state’s crisis in race relations, however, did not end there. A sit-in at Reno’s Overland Hotel and demonstrations at various Reno casinos and the state capitol building in Carson City occurred in 1961 to protest unequal treatment and to support creation of a state Equal Rights Commission. In 1969 and 1970, several riots occurred at Las Vegas schools over the race issue.
Even though discrimination against and segregation of African Americans in Nevada was the result of private actions, the federal and state governments were forced to come to grips with the issue, just as they had in the states of the former Confederacy. The U.S. Congress responded by passing the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. In Nevada, the state legislature moved more slowly. At the urging of Governor Grant Sawyer, who had supported civil rights legislation since at least his election in 1958, the state legislature in 1965 passed a civil rights bill outlawing discrimination in public accommodations and employment on the basis of race, creed, national origin, or color (a prohibition on sex discrimination was not added to the law until 1971). Discrimination in employment did not end with the passage of civil rights legislation, however. Hotels and casinos continued to discriminate until 1971, when a consent decree was signed in Las Vegas in which the hotels and unions, without admitting that any discrimination had occurred, agreed not to engage in discriminatory practices.10 Also in 1971, under the threat of federal court action and with the support of Governor Mike O’Callaghan, the state legislature finally passed a fair housing act ending residential segregation.
Much more recently, attention has focused on disparities between blacks and others in education, employment, and the justice system. In the area of education, for example, the rate of failure on Nevada’s high school proficiency exams is higher for African Americans than for any other group of students. According to the State of Nevada Department of Education Annual Reports of Accountability for 2009–2010, statewide only 50 percent of blacks taking the mathematics exam were graded as “meets” or “exceeds” the standard. For whites that number was 82 percent, Native Americans 66 percent, and Hispanics 62 percent. According to the National Center for Education Statistics, statewide graduation rates show that same unfortunate trend. For the Class of 2015, 78 percent of white seniors graduated while only 56 percent of black seniors and 67 percent of Hispanic seniors achieved that distinction. For Asian/Pacific Islanders it was 83 percent.
Although it is unclear exactly why these disparities exist, many believe that they are the result of a lack of equal access to the classes necessary to learn these skills.
Although African Americans can no longer be legally discriminated against, it is the case that they are scarce in management and executive positions in the state. A March 2001 survey, for example, found that all twenty-one of Station Casinos’ (now Red Rock Resorts) top executives were white; these results are neither unique to Station Casinos nor are they surprising. As a result, many gaming companies, including MGM Resorts International, Red Rock Resorts, Caesars Entertainment Corporation, and others, have pledged to increase their attempts to diversify their executive suites and to patronize minority-owned suppliers and contractors. In a 1997 breakthrough, Hilton Hotels Corporation named the first African-American director of a major gaming corporation when Robert Johnson, founder of the Black Entertainment Network, took his seat on the board. In December 2001 Don Barden became the first African American to wholly own a casino in Nevada when he took the reins of Fitzgeralds (now The D Las Vegas) in downtown Las Vegas while, in 2002, Lorenzo Creighton took the helm of the Flamingo, becoming the first African-American president of a Las Vegas Strip hotel-casino. Still, U.S. Census Bureau data show that, although the percentage of African Americans in Nevada rose from 6.8 percent in 2000 to 7.7 percent in 2010, the percentage of black-owned businesses stands at only 3.9 percent.
African Americans also tend to fare poorly in the state’s justice system. A report in 1996 by the Nevada Supreme Court Task Force for the Study of Racial and Economic Bias in the Justice System found disturbing trends in the judicial system’s treatment of minorities. For example, based on 1994 data from the Clark County Family and Youth Services Division, the panel found that, in spite of their relatively low numbers in the population, 54 percent of detentions, 84 percent of transfers, and 62 percent of commitments involved minorities. The panel also found that black youths were more likely to face stiff penalties and transfer of their cases to adult court than were whites. According to a report by the Sentencing Project, nationally in 2005 blacks were nearly six times as likely to be incarcerated as whites and Hispanics nearly double the white rate. In Nevada Hispanics were incarcerated at the rate of 621 per 100,000, while whites came in slightly higher at 626 and the black rate for incarceration was 2,916 per 100,000. It is difficult to know whether these statistics are the result of racism or broader socioeconomic factors such as poverty and urbanization that hit minorities particularly hard (that is, minorities tend to have higher levels of poverty and live in cities, factors that correlate to criminal activity).
On an optimistic note, a study by the University of Georgia found that, between 1990 and 1997, the buying power of African Americans increased 54.2 percent. Nevada placed third in terms of its increase with a rise of 103.6 percent in the seven-year period. It was outpaced only by Idaho (160 percent) and Utah (136.9 percent). Although Nevada’s relatively small African-American population
easily allows for such large increases, it is significant nonetheless that the state’s increase was only slightly less than double the national average. In a follow-up study the UGA researchers found that black buying power nationally rose 98 percent between 2000 and 2016.
Also on an optimistic note, African Americans have generally fared well in Nevada’s more recent elections. In the 2017 legislative session, for example, there were four African-American members of the state assembly, including the speaker of the assembly and the chief deputy majority whip. There were three African-American members in the state senate, including the majority leader and the assistant majority leader, the most powerful individuals in that body. Thus, at a time when African Americans made up 7.7 percent of the state’s population, they held seven out of sixty-three seats in the legislature, or 11.1 percent.”11
The African-American population in Nevada is growing faster than the state as a whole, but at a smaller rate than other minority groups. Between 2000 and 2010 the state’s population grew by 35.1 percent. While the Hispanic population grew by 77.8 percent and the Asian population by 93.6 percent, the African-American population grew only 49.6 percent, to a total of 202,700.
Hispanics To speak of Hispanics as a single group can be somewhat misleading; in fact, Hispanics trace their roots to any number of Spanish-speaking countries and territories, including Mexico, Puerto Rico, Cuba, and the various nations of Central and South America. It is important to bear in mind that these different groups often have disparate cultures, backgrounds, and political and social ideologies. Similarly, although some are new immigrants to the United States, others are native-born citizens whose families have lived in this country for many years. Some of the immigrants, such as the Cubans, have come to escape political oppression, while others, such as the Mexicans, have fled poverty and poor economies in their native homelands. Nonetheless, for purposes of simplicity, in this section we shall speak of Hispanics generally while observing those areas in which the various groups differ.
As noted in chapter 1, the Spanish and, later, Mexicans were the first nonnative explorers of the area now known as Nevada, although they did not settle here in large numbers. During the pre-statehood period of gold and silver mining, however, Hispanics were represented in large and important numbers; indeed, the Comstock mine was first discovered by Ignacio Paredes of Sonora, Mexico, who abandoned it prematurely. Miners from northern Mexico not only were responsible for the discovery of many of Nevada’s ore sources but also taught Anglos the methods of panning, placer mining, dry digging, and ore reduction.12 As was the case with other minorities on the western frontier, however, Hispanics were frequently treated as second-class citizens, receiving less pay than did their Anglo counterparts.
Hispanics began migrating to the state in large numbers in the 1860s for the same reason that other groups did: opportunity. They worked in the mines, in service occupations, and as sheep and cattle ranchers. In this early period, most of Nevada’s Hispanic population resided in the north. Hispanic migration into southern Nevada began in the early twentieth century with the construction of a railroad line between Los Angeles and Salt Lake City that passed through the Las Vegas Valley. Along with the Chinese, Mexican laborers performed much of the work on this and other railroads in the state. In the American Southwest as a whole, including Nevada, Mexicans made up 70 percent of the section crews and 90 percent of the extra gangs on the principal railroad lines.13
The most significant migration of Hispanics to the state began after World War II. Federal investment in the state in the form of capital and military expenditures brought Hispanics to Nevada in large numbers as construction workers and soldiers and to fill a number of other occupations. As had been the case with other minorities, however, these new residents frequently found themselves the victims of discrimination. In Las Vegas, for example, Hispanics, like African Americans, were concentrated on the Westside or in North Las Vegas as a result of restrictive covenants by white homeowners prohibiting the sale of property in most parts of Las Vegas to anyone other than whites.
Virtually all Hispanics residing in Nevada prior to the 1960s were of Mexican descent; that pattern changed somewhat with the communist revolution of Fidel Castro in Cuba. With casino experience derived from the gaming halls of Havana, many of these exiles settled in Nevada to continue the occupations they had known in their homeland. Many Hispanics from the East Coast, primarily Puerto Ricans, also began to migrate to the state during this period.14 As had African Americans, Hispanics in the 1960s began to demand equality in housing, employment, and education. The changes noted above in the discussion of African Americans in Nevada apply equally to Hispanics in the state. Civil rights laws passed during the 1960s did much to make Nevada a more egalitarian state for all minorities.
Unlike African Americans, however, Hispanics have often been at odds with one another over even the most basic issues. As sociologist Jim Frey has noted,
Cubans were class conscious and tended to look condescendingly at lower-class Mexicans and Chicanos, while some Chicanos viewed the Cubans as aggressive, arrogant, materialistic, overly rational, and motivated totally by self-interest and greed. These personality traits, combined with prior experience in Cuba’s pre-Castro gaming and tourism, helped them to gain employment in highly paid positions in gaming and tourism. Mexicans and Chicanos, on the other hand, continued to be relegated to low- paying jobs in the service industry, some blue collar positions, and general laborers.15
Although the late twentieth and early twenty-first centuries have seen unity among Hispanic groups on some issues, the community frequently remained
divided. This division and the small percentages of Hispanics who register and vote had the effect of marginalizing their political power even though they constituted the state’s largest minority. Historically few public officeholders in Nevada were of Hispanic origin. Prominent members of the Nevada Hispanic community, however, have been and are attempting to remedy this situation by recruiting quality candidates, actively participating in reapportionment to design districts friendly to Hispanic candidates, and registering new voters, especially in Clark County where three-fourths of the Sagebrush State’s Hispanic population reside. Clearly, these efforts have paid off in recent elections. In January 2011 Nevadans swore in the first and, to date, only Hispanic governor in the state’s history. And in the 2017 legislative session, two of the twenty-one senators (9.5 percent) were Hispanic, as were six of the forty-two members of the assembly (14.3 percent). Overall, then, 12.7 percent of the state legislature was of Hispanic origin, a better representation than in past sessions but still well below the 26.5 percent in the state’s population as a whole. However, of particular note was that the president pro tempore and majority floor leader of the assembly were Hispanic, thus ensuring that population a voice in the legislative leadership.
Continued growth in the Hispanic population of Nevada, as well as the United States in general, is likely to continue for some time. As anthropologist Tony Miranda has noted, Hispanics are on average younger than most of the state’s other residents, which means that they are approaching or have reached childbearing age. Thus, as a natural consequence of birthrates, there will be more Hispanics in the state in the years to come. A 2008 Census Bureau report noted that although the average U.S. woman produces 1.9 children, that number is 1.7 for Asian Americans, 1.8 for whites, 2.0 for blacks, and 2.3 for Hispanics. Also, Hispanic immigration is likely to continue as many Hispanics flee from California to Nevada. Additionally, many Hispanics outside the United States who speak little English find Nevada’s gaming and tourist economy one in which they can thrive in unskilled but relatively well-paying jobs. Those who are bilingual can find higher-paying jobs and are much in demand as Nevada markets itself to an increasingly international community.16
It should come as no surprise, therefore, to discover that while Hispanics made up only 6.8 percent of the state’s population in 1980 (54,130 out of 800,493) by 2010 they comprised 26.5 percent (700,293 out of 2,643,085). The difference between 1980 and 2010 represents an increase of an eye-opening 1,194 percent. The largest single group responsible for this growth is Mexicans and Mexican Americans, making Nevada one of the fastest-growing Mexican communities in the country. In 1990, Mexicans and Mexican Americans constituted 68.5 percent of the state’s Hispanic population; in 2010 that figure had grown to 78.4 percent. At the same time, the Puerto Rican community in the Sagebrush State was also one of the fastest-growing in the nation.
Although, to date, Nevada’s Hispanics have historically been less successful in the political arena than other groups, they have made gains economically. The University of Georgia study noted earlier found that Hispanic buying power is growing nationally at three times the rate of inflation. The 2016 update conducted by UGA researchers found that between 2000 and 2016, Hispanic buying power had risen by 181 percent. According to a 2004 study by the Progressive Leadership Alliance of Nevada (PLAN), Hispanics generated as much as $20 billion annually of Nevada’s gross state product, or approximately one out of every four dollars in the state.17 One area in which gains have been slow is in business ownership. A survey of Hispanic-owned businesses in the Sagebrush State between 2002 and 2007 found that such businesses had increased from 9,741 to 18,029, an increase of 85.1 percent. And between 2007 and 2012 that number jumped another 86.7 percent. Although this does represent growth, it is not at all reflective of the Hispanic community’s explosive growth during that period. On the other hand, the Census Bureau’s 2007 Survey of Business Owners
shows Nevada ranking eighth in the nation in the percentage of businesses owned by Hispanics, at 8.1 percent.
Clearly the Hispanic population will continue to grow in the state; what remains to be seen, however, is whether these numbers and the increased buying power that comes with them will continue to translate into a concomitant increase in political and economic power as they have in California, Arizona, New Mexico, and Texas.
Women As in most other states, discrimination was applied in Nevada to virtually all minorities, in addition to those already discussed. It was noted earlier that women were not allowed to vote under the 1864 constitution. Unlike the state’s lag in guaranteeing equal rights for racial minorities, however, Nevada was among the first to grant women the right of suffrage. Whereas the Nineteenth Amendment to the U.S. Constitution granting women the right to vote was not added until 1920, women in Nevada had had suffrage rights since 1914. Women’s success in Nevada, at least on this issue, was due in no small part to the efforts of the untiring Anne Martin, president of the Equal Franchise Society in Nevada.
Economically, however, the struggle for equal rights for women was a different matter. Although women were sometimes employed in the lucrative fields of dealing and bartending in northern Nevada casinos, that was not true in southern Nevada. Indeed, the Las Vegas City Commission recommended as late as 1958 that women not be hired as dealers for fear that their lower salaries would undercut the men; only one of the city’s many dealers schools would even permit women to enroll. In 1959 the North Las Vegas City Council prohibited women from being hired as bartenders. Instead, women were more often to be found in the lower-paying jobs of waitress, cashier, and keno runner. Only a few southern Nevada casinos would hire women as dealers and bar-tenders. It was not until 1981 that Las Vegas’s casinos and unions signed an agreement to end discrimination against women in employment-related matters.18
In spite of legal protections against discrimination, women still often found themselves in a second-class position economically and politically in both the nation as a whole and in Nevada. Although women made up 49.1 percent of Nevada’s population in 2000, a Nevada Personnel Department study discovered that they held only 35.5 percent of administrative jobs, but 91 percent of lower- paid support, or secretarial, positions in state government. No doubt as a result of women’s predominance in these lower-paying positions in both the public and private sectors, a 2009 Census Bureau survey found that for every dollar earned by Nevada men, women earned only eighty-two cents. However, that was better than the national average of seventy-seven cents.
Women have, however, made some notable advances economically and politically. In spite of the differences in median pay between men and women, as
of 2016 Nevada ranks as the eleventh best state in wage disparities. The national figure indicates women make only seventy-six cents to every dollar made by a man whereas in the Sagebrush State that figure is eighty-four cents. Statewide, in 2016 women owned a majority stake in over 75,000 privately held businesses generating billions in sales and employing thousands of people. U.S. Census Bureau data show that between 1997 and 2011, the number of women-owned enterprises grew from 33,311 to 62,500, an increase of 87.6 percent, second highest in the United States, behind only Georgia, at 97.5 percent.19 In 2016 that number stands at 75,600. In addition, the percentage of women in poverty has historically been lower than the national rate. Whereas the national rate for women in poverty in 2009 was 13.9 percent, in Nevada it was 12.3 percent, tying the state of Washington for thirty-eighth place in the country. According to the National Women’s Law Center, in 2016, after the Great Recession, Nevada ended up worse than the national average with a U.S. rate of 12.8 percent of women in poverty while in Nevada that figure was 13.8 percent, tying for twenty-fifth place with Montana and Oregon. In other words, the Sagebrush State fell into the middle of the pack for the rate of women in poverty.
Women have also made strides politically. In 2005, a Reno resident, Cindy Kirkland, was named the first female adjutant general of the Nevada National Guard. In 1998, women held five out of seven seats on the Clark County Board of Commissioners, although by 2017 that number had fallen to three. In 2017 the Washoe County Board of Commissioners saw a majority of women, three out of five, serving. In the 2017 session of the state legislature, eight of the twenty-one senators were women (38.1 percent), as were seventeen of the forty-two assembly members (40.5 percent). At 39.7 percent total women legislators, Nevada’s 2017 legislature came in second only to Vermont (40 percent) in the percentage of women in the state house. Also of some note is that in the senate, two women served as co-majority whips and two served as co-caucus policy coordinators. In the assembly, women served as the speaker pro tempore, majority floor leader, minority whip, and both assistant majority whips. Although these figures are not proportionate to the percentage of women in Nevada’s population—49.1 percent, according to the 2010 census—they do represent gains over previous decades, especially in the number of women holding leadership positions. Also worth noting is that after the 2010 elections, women held exactly half of the six constitutional officer positions in the state’s executive branch (treasurer, controller, and attorney general) although by the 2014 elections that number had dropped to one (secretary of state). It is also notable that in 2017 the mayors of Nevada’s three largest cities were women: Carolyn Goodman in Las Vegas, Debra March in Henderson, and Hillary Schieve in Reno.
Nevada is also noteworthy as one of only 15 states that failed to ratify the proposed Equal Rights Amendment to the federal Constitution by the 1982 deadline imposed by Congress. Proposals to ratify the ERA were defeated in the state senate in 1973 and 1975 and in the state assembly in 1977. Wishing to avoid
the heat and controversy created by the era issue, the legislature washed its hands of the affair and submitted the ratification issue to the voters. After heavy lobbying against the proposal by conservative women, some business interests, and the Mormon Church, the measure failed in a 1978 election by a two-to-one margin. However, in 2017 the legislature voted to ratify the ERA on the forty-fifth anniversary of its having been sent to the states by Congress in 1972. Even if Congress accepts that Nevada is the thirty-sixth state to ratify the ERA (in spite of the 1982 deadline), two additional states would be needed before it could be added to the U.S. Constitution.
LGBT The changes wrought by the state’s 1965 civil rights legislation worked to the benefit of all minorities in the state, not only African Americans. Asians, Native Americans, and Hispanics likewise have benefitted from its liberalization of employment, public accommodations, and housing. Several groups historically excluded from such civil rights protection, however, have been the lesbian, gay, bisexual, and transgender (LGBT) communities. Until recently, the state’s estimated 200,000-plus LGBT individuals could be discriminated against solely because of their sexual orientation or transgender status. However, over the past two decades Nevada has shown a more enlightened perspective on issues surrounding discrimination against gays and lesbians. In 1993, the state legislature repealed its antiquated anti-sodomy law, a law aimed specifically at the state’s homosexual minority, and in 2013 it equalized the age of consent at 16 for both opposite sex and same sex couples. In 1995 the legislature added sexual orientation to the state’s hate crime statute that enhances penalties for crimes committed against an individual due to that person’s race, religion, color, nationality, or disability. And in 2013 gender identity and expression was also added to the list of hate offenses. The 1999 session of the legislature passed legislation that outlaws employment discrimination on the basis of sexual orientation. The law applies equally to homosexuals, heterosexuals, and bisexuals. In 2011 gender identity and expression was added to the list of characteristics for which one cannot be discriminated against. In 2003 the legislature unanimously passed a statute allowing hospital patients to designate who their visitors could be. Although the law is applicable to everyone in the state, its primary intent was to serve as a means to grant gay partners hospital visitation privileges that they were frequently denied on the basis that they were not a family member, no matter how long the two had been in their relationship. And, in the 2005 session the legislature passed a bill declaring it state policy that services provided by private establishments such as casinos, restaurants, movie theaters, hotels, and other places of public accommodation should not be denied to anyone on the basis of sexual orientation. Although the law did not provide penalties for discriminating, it did allow the Nevada Equal Rights Commission to investigate complaints. In 2009 the legislature expanded upon the law by allowing individuals to bring a
civil suit for damages against any business or other place of public accommodation that discriminates based on sexual orientation.
With the passage of three bills, the 2011 legislative session was a particularly good one for those supporting the rights of transgender individuals. Those three bills essentially protected rights that had previously been protected for gays and lesbians: protection against discrimination in public accommodations, protection against discrimination in housing such as the sale and rental of homes and property, and protection from workplace discrimination based on gender identity or expression. A fourth bill that would have added transgender people to the state’s hate-crimes protections failed to pass, but, as noted above, was successful in 2013. In an omnibus one-fell-swoop way, the 2017 legislature passed and the governor signed a law that added “sexual orientation” and “gender identity or expression” throughout all instances of Nevada statutes next to race, sex, religion, age, etc. In keeping with the notion of equality of treatment, Nevada in 2017 became the eighth state to ban conversion therapy for minors.
As with the other groups discussed in this chapter, legal protections alone have not ended all forms of discrimination and inequality for the LGBT community. A survey by the Gay, Lesbian and Straight Education Network in 1997 and again in 1998 gave the state’s largest school district, Clark County, an “F” for failing to protect the rights of gay, lesbian, and bisexual students. And, of course, marriage between same-sex couples is also prohibited by state statute. In the 2000 and 2002 general elections a ballot initiative to install this ban into the state constitution passed overwhelmingly. It is ensconced as a part of Article 1 of the Nevada Constitution, an article that is, quite ironically, the state’s “Declaration of Rights.” However, in a significant victory for supporters of LGBT rights, in 2009 the state legislature overrode the veto of Governor Jim Gibbons to establish domestic partnerships in Nevada. Under the law, gay, lesbian, and straight couples could register as domestic partners with the state and are entitled to all the same rights as married couples. The law passed not only because of support for equal rights but also with substantial lobbying by major gaming companies such as Harrah’s (now Caesars), MGM Mirage (now MGM Resorts International), and Wynn Resorts, which heavily market to gay and lesbian customers and their typically larger-than- average discretionary income.20
At the time of the 2010 Census, Nevada had over 9,000 same-sex couples listed as “head of household.” No doubt given the closeted nature of some in the LGBT community, that number is likely higher.
The largest and most significant victory for the LGBT community came when first various U.S. Courts of the Appeals and then the U.S. Supreme Court struck down as unconstitutional bans on same-sex marriage such as those in Nevada. As a result of those rulings Nevada’s ban could no longer be enforced and marriage was opened to same-sex couples in Nevada in 2015. In response to that, the state legislature in the 2017 session began the lengthy process to repeal the state constitutional ban on same-sex marriage.
Civil Liberties As noted at the beginning of this chapter, civil liberties are those “negative restraints” upon government that define what it cannot do to its citizens. In general, these liberties are of the type found in the U.S. Constitution’s Bill of Rights: freedom of speech, freedom of the press, freedom of assembly, the rights to counsel and a jury trial, and so on. In 1833, however, the U.S. Supreme Court held in the landmark case Barron v. Baltimore that none of the twenty-three provisions in the Bill of Rights applied to the states.21 That is, although the Bill of Rights prohibited the federal government from engaging in any of these violations of civil liberties, the state governments were not bound in any way by these provisions. Thus, the only protections that an individual had from the state government were those in his or her own state constitution’s bill of rights.
In light of that, the framers of Nevada’s 1864 constitution included as the document’s first article a Declaration of Rights to protect the state’s citizens from an overzealous state government. Included within Article 1 are the standard civil liberties protections we have come to know in the United States: freedom of speech, press, and assembly; trial by jury; religious freedom; habeas corpus; a prohibition on excessive fines and bails, cruel and unusual punishment, bills of attainder, ex post facto laws, unreasonable searches and seizures, and double jeopardy; and the right to just compensation for property taken by the government through its power of eminent domain.
The Nevada Constitution’s Declaration of Rights was far more significant in 1864 than it is today. At that time, it constituted the sole protection the state’s citizens had against intrusions into civil liberties by the state government. However, in a series of cases from the 1920s through 2008, the U.S. Supreme Court, in a process known as incorporation, held that virtually all of the provisions in the U.S. Bill of Rights apply to the states via the due process clause of the Fourteenth Amendment. Thus, today the state governments are held to the same federal constitutional standards as the federal government has always been; even if Nevada’s Declaration of Rights did not exist, Nevadans would now be protected in their civil liberties from both federal and state intrusion by the U.S. Constitution’s Bill of Rights.
The process of incorporation, however, does not render state bills of rights obsolete. In some states (California, Oregon, Washington, and Hawaii), state courts have held that their state bills of rights grant civil liberties protections to their citizens even greater than those in the U.S. Constitution. The Nevada courts, however, have not followed the lead of their western counterparts and have traditionally interpreted civil liberties protections in the state’s Declaration of Rights to be parallel to similar clauses in the federal Bill of Rights. For that reason, any student familiar with the rights embodied in the Bill of Rights will also be knowledgeable about the rights protected by Nevada’s Declaration of
Rights. Nonetheless, there are a couple of areas in which the Declaration of Rights differs from the Bill of Rights, and they are worth discussing.
Although juries in both civil and criminal trials at the federal level must be unanimous, that is not the case in Nevada. Article 1, Section 3, of the Nevada Constitution allows a jury in civil cases to reach a decision by a three-fourths vote of its members (nine of twelve jurors). The rationale for what at the time was a departure from tradition and practice in the country can be found in Nevada’s unfortunate history with juries during the territorial period. During that period many a jury was unable to reach a unanimous verdict, and civil cases often ended in a mistrial with a split vote (a hung jury)—the result of the bribing of at least one juror by the mining companies that stood to win or lose fortunes, depending upon the verdict. Apparently believing that it was more difficult to bribe four jurors than one, the framers of the constitution, over the objections of the cow- county delegates, agreed upon the three-fourths requirement. Like their federal counterparts, however, juries in criminal cases in Nevada have always been required to reach unanimous verdicts.
A second distinction between the two constitutions is in the area of eminent domain. The Nevada Constitution, like the federal Constitution, allows the government to take private property for government use if it provides “just compensation” to the property owner. Unlike the U.S. Constitution, however, the Nevada Constitution requires that the compensation be made prior to the taking unless the property owner waives that right. As a result of an initiative in the 2006 and 2008 elections, the state constitution was amended to define fair-market value of such property as the highest price the property would garner on the market. This initiative further prevents the state, county, or city government from taking private property in order to transfer it to another private party; that is, the taking must be by the government and for the government’s use, not, for example, a private commercial developer. And, finally, the 2006–2008 initiative mandates that if the government has not used the property within five years for the original purpose it was taken, the original property owner has a right to the property upon repayment of the government’s purchase price.
Political Parties and Elections
Nevada has traditionally been a competitive, two-party state in which elections are fought more on the basis of personalities and issues than parties. Nevadans are notorious ticket splitters who take pride in the fact that they vote for the “person” and not the “party.” Nonetheless, it is possible to divide Nevada’s political history into five distinct periods of voting patterns.1
From the granting of statehood in 1864 until 1890, the Republicans dominated the state’s elections. That they did so is chiefly explained by the support of the national Republican Party for Nevada statehood and the lingering effects of the Civil War, which had been fought against the Democratic-dominated, proslavery states of the South. As noted in chapter 2, all of Nevada’s state and federal officers selected in 1864, with the exception of two legislators, were Republicans. Of the elections held during the twenty-six years of this period, Republicans won six of seven presidential races, eight of ten for the U.S. Senate, ten of thirteen for the House, four of seven for governor and lieutenant governor, seven of seven for secretary of state, five of seven for state treasurer, seven of seven for state controller, and five of seven for attorney general.
During the second period, 1892 to 1906, the state’s voters turned to the Silver Party for leadership. During that time, the national issue of free coinage of silver dominated the politics of Nevada and the other western mining states. In the first two elections of this period, the Silver Party won all but two statewide positions.2 In 1896 the Silver Party joined with the Democrats to become the Silver Democrats and dominated the state’s political landscape until 1908.
Between 1908 and 1930, electoral victories in the state were roughly equal between the Democrats and Republicans, with the Democrats winning more positions but the Republicans winning the top spots at the presidential, congressional, and gubernatorial levels. The fourth period of electoral dominance began in 1932 with the election of Franklin D. Roosevelt to the presidency. From 1932 until the mid-1980s, Democrats tended to dominate state politics with an overwhelming number of registrants and control of the legislature and most of the executive offices.
Starting in the 1980s the Republican Party began a resurgence in the state that lasted through the 1990s and into the twenty-first century. During this fifth period,
no one party has dominated the state’s elections. As of 2017, for instance, elective positions in the state were fairly evenly divided. Although all six executive officers were Republican, Nevada’s federal delegation was split with one Democratic and one Republican U.S. Senator and three Democratic and one Republican members of the U.S. House of Representatives. The 2017 state senate and the state assembly were majority Democratic. The resurrection of the Republicans in the state to the point that they were competitive with the previously dominant Democrats was due to several factors: increased voter registration activity by the Republicans, the popularity of Ronald Reagan, and the pattern of migration by upper-middle and upper-class retirees to the state.
By the end of 1995, Republican registrants had overtaken Democrats for the first time since 1930. As table 4.1 shows, this continued to be true in the presidential elections of 1996, 2000, and 2004 when Republicans had more registrants than did the Democrats. The pendulum swung back again, however, after 2004 as a result of a significant push by the Democrats, led by Senator Harry Reid, to register more voters to support Barack Obama’s campaign for president in 2008 and Reid’s reelection campaign in 2010. As a result of that push and the recruitment of many young or minority voters who might not otherwise have registered, the Democrats went from 40 percent of registered voters in 2004 to more than 43 percent in 2008, percentages they had not seen since 1992. It appears that 2008 may have been an anomaly. Democratic voter registration went down from 43.2 percent in 2008 to 42.3 percent in 2012 and, by the 2016 presidential election, it had declined to 39.7 percent.
At the same time, the split of the state’s congressional delegation in 2017 and the mix of parties in the constitutional, legislative, and local offices suggest that ticket splitting and the fact that most Nevada Democrats tend to be fairly conservative mean that elections, especially non-presidential ones, will likely continue to be highly competitive between the two parties.
One of the most interesting facets of Nevadans’ voting patterns is their almost unerring ability to vote for the winner in presidential elections. Of the thirty-nine presidential elections in which Nevadans have participated between 1864 and 2016, the state voted for the winning candidate thirty-two times; of the seven instances in which Nevadans voted for the losing candidate, they had supported the free-silver crusader William Jennings Bryan three times (1896, 1900, 1908) and had one time (1892) voted for the candidate of the People’s Party, who had been endorsed by the Silver Party. Since 1908 the state has voted for the eventual winner in all presidential elections except in 1976, when Nevadans voted for the Republican ticket of Gerald Ford and Robert Dole instead of Democrats Jimmy Carter and Walter Mondale, and in 2016 when the Sagebrush State went with Democrat Hillary Clinton instead of eventual winner Republican Donald Trump (although in Nevadans’ defense, Clinton did win the national popular vote by almost three million). Thus, in the twenty-seven presidential elections between 1912 and 2016, Nevadans have gone with the winner in twenty-five instances. Perhaps those figures indicate that Nevada is much more like the rest of the country than we have traditionally wanted to believe.
Political Parties Political parties in the United States have traditionally been much weaker than those in other parts of the world. That is particularly true in Nevada, where political-party labels have little meaning. Democrats and Republicans in the state tend to be rather conservative, and there exist few in either party who would describe themselves as liberal, much less radical. Nonetheless, it is possible to say that, as a general rule, Democrats are more supportive of education and labor issues, while Republicans support business and the conservative social agenda to a greater degree. Worth watching is that more recently the Sagebrush State seems to have followed the national trend and become more politically polarized. A study by the Guinn Center for Policy Priorities, for example, found steadily declining levels of bipartisanship in the state legislature.
European political parties are “responsible” parties. That is, members of the party, once elected to office, are expected to support the party platform, defer from publicly criticizing party leaders, and vote with their party on each issue that may come forward. Failure to do so could lead to drastic consequences, including the loss of one’s position. In Nevada, and in the United States generally, elected officials win or lose based on their own personalities and stands on the issues, regardless of party affiliation. The parties have few measures available to discipline errant members and have little ability to keep them off the ballot. Candidates raise their own campaign funds, run their own campaigns, and owe little to the party with which they are nominally affiliated.
The chief function of political parties in Nevada and elsewhere is to select candidates to run in a general election against an opponent from the other party. Prior to the election of 1910, the method of selecting candidates was a generally close-knit affair. Members of the party would gather in precinct meetings to select delegates to county party conventions that in turn would select a smaller number of delegates to a state party convention. Party nominees would then be chosen by the state convention of each party. Typically, only a few party activists would participate in such meetings, leaving the vast number of voters out of the process. In 1909, the state legislature adopted a direct primary law mandating that parties select their candidates in primary elections held in September (now June) of each year in which a general election is to be held. Primary elections give the average party member more control over who his or her party’s nominees will be than did the old system. At the same time, however, primaries have reduced whatever hold the party’s leadership may have once exercised on its party’s slate of nominees; candidates now rely upon the voters, not the party elite who attend the precinct meetings and party conventions, for their place on the general election ballot.
Elections in Nevada Eligibility to Vote
As it was originally ratified in 1864, the state constitution allowed only white males of the age of twenty-one or older to vote. Even though Nevada, in 1869, was the first state to ratify the Fifteenth Amendment to the U.S. Constitution (1870) prohibiting the denial of the right to vote on account of race, the word white was not removed from this part of the state constitution until 1880. In 1914, six years before the Nineteenth Amendment to the U.S. Constitution gave women the right to vote, Nevadans amended their state constitution to extend the right of suffrage to them; nonetheless, Nevada was one of the last western states to do so. In 1971, the state’s voters barely approved (51–49 percent) a referendum to amend state law to reduce the voting age in the state to eighteen. Interestingly, the Nevada legislature never voted on ratification of the Twenty-sixth Amendment, which made this same change to the U.S. Constitution. That amendment, however, was ratified within one hundred days and did not require Nevada’s vote.
Today, the chief requirements one must meet in order to vote in the state are age, residency, and registration. In addition to the minimum age of eighteen, one must be a U.S. citizen and have resided in the state for at least thirty days. Actually, the state constitution requires a six-month residency period, but when the U.S. Supreme Court declared such lengthy residency requirements unconstitutional in 1972, that provision became unenforceable. The state legislature subsequently adopted the thirty-day requirement; but for reasons unexplainable, the voters refused in 1976 and again in 2008 to amend the constitution with parallel language. The state legislature has also adopted registration provisions requiring one to register in order to vote. One may register as a member of a political party or as an independent, or nonpartisan.
Specifically excluded by the constitution from voting are those who have been judged mentally incompetent and those who have been found guilty of treason or a felony, unless they have had their civil rights restored. In Nevada voting rights are automatically restored in a nonviolent felony case once the sentence has been completed. Violent felonies and second-time felonies, however, require a court to restore these rights. The 1864 constitution also prohibited anyone who had borne arms against the United States or who had served in an office of the Confederacy from voting. That the framers included this provision is not surprising, given the state’s entrance into the Union during the Civil War. This prohibition was removed by constitutional amendment in 1914 at the same time that suffrage was extended to women.
The 1864 constitution also provided for payment of a poll tax in order to vote. All males between the ages of twenty-one and sixty, “uncivilized American Indians excepted,” were required to pay the tax. White males had to pay the tax in order to vote; minorities were also required to pay the tax even though they were not allowed to vote. In 1910 that section of Article 2 was amended to remove the connection between paying the tax and voting, and the proceeds of the poll tax were earmarked for public roads. In 1966, the entire poll tax provision was eliminated by an amendment to the state constitution.
Today anyone may vote who is at least eighteen years of age, a U.S. citizen, a resident of the state for at least thirty days, registered to vote, and neither mentally incompetent nor a felon whose rights have not been restored. Although these requirements are quite minimal, Nevada has one of the lowest percentages of voters in the nation. In the very competitive presidential election of 2008, which also included contests for all three seats in the U.S. House of Representatives, all forty-two seats in the state assembly, half of the state senate positions, and a variety of other local offices and ballot questions, only 80 percent of registered voters in the Sagebrush State exercised their right to do so. This ranked Nevada forty-second in voter turnout in the fifty states.3 Turnout has not increased in more recent presidential elections, settling in at 81 percent in 2012 and 77 percent in 2016. Although these percentages might sound high, they include only those who are registered to vote and not the large number of citizens who do not even register. In part these lower-than-national-average figures reflect Nevada’s transient population, distrust of politicians, and a generalized feeling that it makes little difference who is elected given the power of the gaming industry to control the state’s various governments. One group, however, that continues to turn out in large numbers, thus making them a serious force to be dealt with, is senior citizens. In spite of age and health problems faced by some, they register to vote and, in any given election, approximately three-quarters of those registered actually vote, compared to approximately half of all other registered voters in the state who choose to do so.
Primary Elections The Direct Primary Law of 1909, as noted earlier, opened the process of candidate selection to the average party member, who could now simply show up at the ballot booth and cast a vote within a few minutes rather than attend a lengthy precinct meeting or party convention. The law also provided, four years before ratification of the Seventeenth Amendment to the U.S. Constitution, that party nominees for U.S. Senate seats would also be selected in the primary.
State primary elections in Nevada occur on the second Tuesday of June in even-numbered years. It is here that each party will select its nominees to run in the November general election. Nevada primaries are “closed,” which means that only those who are registered to vote in a particular party may vote in that party’s primary election. Republicans and Democrats cannot cross over to vote in the other party’s primary election, and independent voters cannot vote in party primaries at all, although they can vote in primary elections for nonpartisan seats such as the supreme court.
In the November general election, the candidate who wins the most votes (a plurality) is declared the winner, regardless of whether he or she actually receives a majority. Thus, unlike some other states, particularly those in the South, Nevada does not have runoff elections when no one receives a majority of the vote in the
general election. Prior to the presidential election of 1976, Nevada’s delegates to the national
parties’ presidential conventions were selected in the traditional manner of precinct meeting, county convention, and state convention, as discussed earlier. However, in 1973 the legislature approved a law allowing the parties to hold presidential primaries for the purpose of choosing each party’s delegation to the national conventions. That process was followed in the 1976 and 1980 elections for president. In 1981, however, the legislature rescinded that legislation, and national party convention delegates in 1984, 1988, and 1992 were once again selected by state party conventions. The 1995 legislature approved a compromise proposal allowing each party to decide whether it would use presidential primaries or state conventions to choose delegates to represent the state at future national conventions. Should a party choose the presidential primary option, it may also determine whether to allow only party members to vote or to open the election to independent voters. Unlike the 1973 statute, the 1995 version attempts to cut costs by mandating the use of mail-in ballots in presidential primaries rather than opening the polls. Nevada’s mail-in primary process was first used in the 1996 election by the Republicans, who chose Bob Dole as their candidate. The process was generally successful with a turnout rate of 51 percent of registered Republicans returning their ballots. Less positively, however, this first-of-its-kind primary in the state cost over $555,000, almost three times the $200,000 appropriated by the state legislature. With an incumbent president running for reelection and no serious opposition to him, the Democrats in 1996 opted for the traditional state party convention method. In the 2000, 2004, 2008, 2012, and 2016 presidential elections, both parties relied upon state conventions rather than mail-in primary elections for selecting their delegates to the national party conventions. A proposal to eliminate the caucus system and adopt a secret-ballot primary failed to get a vote in the 2015 legislative session.
One of the unique aspects of Nevada elections is the availability of the “none of these candidates” option. In both primary and general elections for statewide offices (e.g., governor, U.S. Senate) the voter may choose to vote for one of the candidates or for none of them. Thus, rather than simply not voting in a particular race, voters can now show their dissatisfaction with the slate by voting for “none of these candidates.” Even if the “none” option receives the most votes, as occurred in the 1976 Republican primary for Congress and the 2014 Democratic primary for governor, the actual candidate who receives more votes than his or her opponent(s) is declared the winner. In 2012, shortly before the election, a U.S. District Court judge in Nevada declared the “none of these candidates” option unconstitutional. The option had been challenged in a lawsuit financed by the Republican National Committee on the basis that because “none of these candidates” could not win the election, these votes essentially would not count. The judge agreed with that argument. However, because the decision had come so close to the election and left little time for the secretary of state to prepare ballots,
a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an injunction staying the order. Consequently, voters in 2012 were allowed to vote for “none of these candidates.” Subsequently in 2013, the Ninth Circuit held that the plaintiffs in the case did not have standing to sue (i.e., they could show no personal stake in the outcome of the case) and dismissed it. An appeal taken to the U.S. Supreme Court was denied a hearing.
Campaign Finance In 1974, Congress passed the Federal Election Campaign Act, which now limits individual donations to no more than $2,700 per year to any candidate for federal office; all donations of $100 or more must be reported to the Federal Election Commission. These regulations apply to all candidates running in presidential, U.S. Senate, and House elections in Nevada.
In 1975, the Nevada Legislature followed suit and passed limitations on spending in state races and required candidates to disclose the sources of contributions. Following the lead of the U.S. Supreme Court,4 the Nevada Supreme Court upheld the disclosure requirement but declared the spending limitations to be unconstitutional as a violation of freedom of speech.5
Although the state’s campaign finance laws are designed to inform the voters of the source of a candidate’s campaign funds and to prohibit any single person or individual from having too much influence in the election process, they have been criticized by proponents of more openness in government. Prior to 1997, contributors of $499 or less to individual candidates did not have to be identified. Further, political parties and their caucuses were not required to disclose the source of any donation, no matter how large. These groups were then able to “bundle” these contributions and give an unlimited amount to their party’s candidates without disclosing to whom it was given. The secretary of state has estimated that the sources of only $2 million out of more than $5 million donated to candidates and parties in the 1994 legislative campaigns were required to be disclosed. The Senate Republican Leadership Conference, for example, received almost $400,000 in donations from individuals and groups; neither the donors’ names nor the names of the candidates receiving funds from the SRLC were required to be made public. A report by the Progressive Leadership Alliance of Nevada found that six dollars out of every ten given to state legislative candidates who won in 1994 and 1996 were unidentified, either because they fell under the $500 limit or because they came from party caucuses. The parties and caucuses were seen by many individuals and corporations as an effective method for hiding the source and amount of their contributions to candidates. For example, in the 1994 legislative elections, four of the top five contributors were the Senate Republican Leadership Conference (1), the Senate Democratic Caucus (2), the Republican Assembly Caucus (3), and the Assembly Democratic Caucus (5). The fourth-ranked contributor was Bizpac, the political action committee of the Las
Vegas Chamber of Commerce.6 Campaign finance was a major issue in the 1995 legislature when Secretary of
State Dean Heller’s proposals for reform were defeated by his Republican brethren in the state senate. Heller came back in 1997, however, and with bipartisan support from Governor Bob Miller, Attorney General Frankie Sue Del Papa, and the public, the state legislature adopted Heller’s recommendations. Under current law, candidates must report the source of contributions over $100 and political action committees and political parties must also disclose the source and amount of all contributions.
Voters also had an opportunity to be heard on campaign finance. In the 1994 and 1996 general elections, the state’s voters approved Question 10, which amended the state constitution to define campaign contributions and to limit them to $5,000 in a primary and $5,000 in a general election per candidate whether individual, corporate, or a political action committee. That is a steep reduction from the previous law, which allowed candidates to accept up to $20,000 from individuals and $40,000 from corporations. The provision adopted by the voters applies to all candidates for state or local, but not federal, office and it applies to individuals and organizations seeking to support or oppose ballot questions. However, in a 1998 decision, U.S. District Court Judge Philip Pro held that the restriction on campaign contributions to groups supporting or opposing ballot questions was a violation of freedom of speech protected by the First Amendment of the U.S. Constitution. Thus, although other provisions of the law are valid and enforceable, that portion of it is not.
Although the new campaign finance laws are better at informing the public than they were in the past, they still have gaping holes. For example, under the law each corporate entity may donate up to $5,000 in both the primary and the general elections to each candidate, for a total of $10,000 per individual. However, if a casino owner, developer, or other entity controls several corporations, each may donate up to the maximum, thereby exerting great influence on the electoral process. For example, in the 2014 gubernatorial election Barrick Gold Corporation was able to use its subsidiaries to legally donate $55,000 to Governor Sandoval’s reelection campaign while Wynn Resorts and MGM Resorts International each legally contributed $120,000 and Caesars Entertainment legally offered up $215,000 to Sandoval through its subsidiaries. Worse, however, is the case of limited liability corporations (LLCS). Those entities may donate the maximum $10,000 per candidate and, under state law, are not required to divulge the names of their owners. Consequently, an individual or a small group of individuals could create a number of these LLCS, and each of the LLCS could donate the maximum $10,000. Not only would these individuals be exerting a great deal of influence over the electoral process (donating potentially hundreds of thousands of dollars), their names would be undisclosed to the public. A proposal in the 2005 state legislature to require LLCS to identify their owners was defeated. A similar situation occurs in the case of political action committees
or PACS. Each PAC is allowed to donate the maximum $10,000. A corporation or individual could create several of these PACS and each could contribute the maximum.
At the urging of Secretary of State Ross Miller, the 2011 legislature passed three laws to increase the transparency of who is contributing to campaigns. The first of these requires candidates to file their contribution reports electronically through the secretary of state’s office. Unlike the paper reports that were previously filed at different locations, such as county clerks’ offices, these electronic reports will be in one place and in a searchable database. A second change in 2011 was that contribution and expense reports must be filed four days before early voting begins. Thus, voters will be able to examine who is contributing to which candidates. And, finally, any advertisement such as a radio spot or billboard on behalf of a candidate by a third party that costs more than $100 must identify who paid for it, and the third party must register with the secretary of state and file expense reports.
At the urging of Senate Majority Leader William “Bill” Raggio, the state legislature added to Heller’s 1997 campaign finance reform legislation an amendment requiring the State Ethics Commission to investigate complaints by political candidates that their opponents lied about them. In spite of charges that the amendment was designed to kill the reform bill and that it violated freedom of speech, it was passed by both the Republican senate and the Democratic assembly. In 2005, the “truth squad” law was declared unconstitutional by a U.S. district court in Las Vegas and the state legislature repealed the law.
Direct Democracy Elections In the late nineteenth and early twentieth centuries, the United States, especially the western states, was swept up in a wave of reform and a move toward greater democratic participation by the individual in government. The Progressive Era, as this period was known, resulted in the direct primary and civil service reform. It also led to the creation in Nevada and elsewhere of three special types of elections: initiative, referendum, and recall. The three are generally referred to as “direct democracy” elections. They allow the voters to bypass the legislature and directly initiate and approve laws and constitutional amendments, approve or reject laws passed by the legislature, and remove elected officials prior to the expiration of their terms.
Initiative The state constitution’s provisions on initiative were added in 1912 and have been amended several times over the intervening years. Prior to 1912, only the legislature could enact laws and propose constitutional amendments. The initiative allows the citizens of the state to propose and enact constitutional amendments and legislation, independent of the legislature.
In order to propose a statute or constitutional amendment through the initiative process, a petition must be signed by 10 percent of the number of those who voted in the previous general election. According to the state constitution, a petition must receive the signatures of 10 percent of the voters from at least thirteen counties who voted in the previous general election. This requirement prohibited the state’s two most populous counties (Clark and Washoe) from putting an initiative on the ballot without the support of at least eleven other counties. The “13-counties” rule was declared unconstitutional in 2004 by a U.S. district court judge whose decision was upheld by the U.S. Court of Appeals for the Ninth Circuit in 2006, and, thus, it is unenforceable. In response, the 2007 state legislature passed and Governor Jim Gibbons signed into law a requirement that signatures must be gathered from all seventeen counties based on the percentage of the state’s population in each of the counties. Thus, if a county had 5 percent of the state’s population, then 5 percent of the total number of signatures required would have to come from that county. In 2008 that law, too, was declared unconstitutional by Judge Philip Pro of the U.S. District Court.
The problem with both laws was that they violated equal protection in favoring residents of sparsely populated counties over residents of densely populated counties. That is, the signature of a voter in a less populated county counted more under this scheme than that of a voter in a more populated county, thus violating the “one person, one vote” mandate in the U.S. Constitution. The issue was revisited by the state legislature, which voted to require that the signatures come from 10 percent of voters who participated in the previous election in each congressional district. Given that, unlike counties, theoretically each congressional district has the same number of residents, this requirement has been upheld by the federal courts as constitutional.
If the initiative petition proposes a statute, the proposed legislation goes to the next session of the legislature, which then has forty days to act. If the legislature approves and the governor signs, the proposed statute becomes law. If the legislature or governor disapproves or does nothing, the proposal goes on the next general election ballot for approval or disapproval by the voters. If the voters approve, the measure becomes law and cannot be changed by the legislature for at least three years. Should the legislature wish, it has authority to propose an alternative measure that would go on the same general election ballot as the initiative proposal. Should both measures pass, the one winning the most affirmative votes would become law.
If the initiative petition proposes a constitutional amendment, the proposal does not go to the legislature. Instead it must be put directly on the ballot and must be approved by a simple majority at the next two general elections. Should the measure fail to pass either election, it is defeated.
Referendum The referendum process was added to the state constitution in the election of 1904
and has been amended twice since then. The referendum allows voters to approve or disapprove any law passed by the legislature. A law may be referred to the voters by the legislature itself, or the voters may demand a referendum election by petition. A referendum petition requires the signatures of at least 10 percent of the number of voters who participated in the state’s last general election. Unlike the initiative petition, these signatories are not required to be dispersed among the state’s congressional districts.
Should the appropriate number of signatures be acquired, the law in question is put on the ballot for a vote by the people. If the law is supported by a simple majority, it remains on the statute books; if it is not, the law is repealed and no longer in effect. A law that is approved by a referendum initiated by the voters cannot be repealed or amended by the legislature; it can be changed or repealed only through another direct vote of the people. This fact led pro-choice forces in Nevada to refer the state’s abortion statutes to a vote of the people in 1990. These statutes, generally along the guidelines approved by the U.S. Supreme Court in Roe v. Wade,7 were approved. Therefore, even if the Supreme Court were to someday overturn Roe, pro-life forces could not repeal or change the state’s abortion laws without another time-consuming and costly referendum election. This immunity from legislative change, however, applies only in those cases where the referendum has been called by petition; laws approved through legislatively mandated referendum elections can be amended or repealed by the legislature at its discretion.
Recall State constitutional provisions on recall were added in 1912. Recall allows the voters to remove any state or local, but not federal, official from office prior to the expiration of his or her term. No statewide official has ever been recalled in Nevada, and the process has generally been unsuccessful at the local level as well. Only a few local officials have been successfully recalled in the state, most recently in 2009 when Fernley voters removed a city council member.
Recall elections can be held only after a petition seeking recall has been signed by the requisite number of registered voters. As amended in 1996, the recall provision of the state constitution requires that 25 percent of the number of voters who voted in this officeholder’s most recent election must sign the petition. If, for example, the governor or a supreme court justice is targeted for recall, the petition must have the signatures of at least 25 percent of the number of people who voted statewide in that official’s most recent election. Should a mayor be the target then the figure would be taken from the number of people who voted in that city in the mayor’s most recent election. It is important to note that the number of signatures is based on that officeholder’s most recent election and not simply the most recent election in that jurisdiction. Some confusion was thrown into the signature process in 2008 when Secretary of State Ross Miller opined that in order to sign a
recall petition, the state constitution requires that one must have actually voted in the election in which the targeted official was elected to office. Although there was no prior decision on this issue, it was generally the practice prior to that time that anyone who was a registered voter within that election district could sign a recall petition. Miller’s decision had the expected effect of making recall elections more difficult to call. In response, the state legislature passed a law in its 2009 session rejecting Miller’s interpretation and allowing any registered voter living within the jurisdiction to sign a recall petition. However, in 2010 the Nevada Supreme Court held unanimously that only the signatures of voters who actually voted in the prior election could be counted. In 2015 the state legislature codified that into the statutes. Thus, in order to sign a recall petition in the Sagebrush State one must have voted in the most recent election for that officeholder.
Once the required number of signatures has been obtained, the official has five days to resign. If he or she refuses to do so, a recall election is held within thirty days. At that election, both sides have the opportunity to state their case on the ballot. Other candidates may run against the targeted official, and the candidate winning the most votes serves the remainder of the term. Should no other candidates file, the voters simply vote to recall or not to recall. If the official is recalled, the seat is declared vacant and is filled as for any other midterm vacancy.
Officeholders are protected by the constitution from harassment by their losing campaign opponents and their opponents’ supporters in two ways. First, the official must have been in office for at least six months before being subject to a recall. The sole exception is for members of the legislature, who may be recalled after ten days from taking office. Second, those wishing to promote a second recall effort against an official must first pay the costs of the first recall election.
Constitutional Amendment and Revision There are two ways to amend the state constitution: initiative and legislative proposal. The initiative process, discussed previously, has been available for amending the constitution only since 1912. Prior to 1912, the sole method for amending the constitution was by legislative proposal; that process still exists today. The legislative proposal method of amending the constitution is a multistep process requiring (1) the approval of a proposed constitutional amendment by two consecutive sessions of the legislature and (2) ratification by the voters at an election. Just as is the case with other legislation, the proposal must be passed by a majority of the total membership of each house and not simply a majority of those present. In the ratifying election, a simple majority of those voting on the amendment is needed to formally add the amendment to the constitution.
There is also a provision in the state constitution (Article 16) allowing for its revision, that is, for writing an entirely new constitution rather than simply adding amendments. There have been four attempts, all occurring in the late nineteenth century, to revise the constitution; none were successful. Not surprisingly, the
process of revision is more difficult than that for mere amendment. A convention to revise the constitution can be called only with the approval of two-thirds of the total membership of each house of the legislature and a majority of the voters at a general election. If the voters give their approval, the convention must occur within six months of the election. The number of delegates to the convention cannot be less than the total number of legislators in both houses of the legislature (currently sixty-three). There is no provision in the state constitution for selecting these convention delegates; presumably those details would be included in the legislature’s proposal to call a convention. Also not included in the revision provisions of the state constitution is a requirement that the proposed constitution coming out of the convention be ratified by the voters. The issue was not discussed at the 1864 constitutional convention. However, since the Enabling Act allowing Nevada to form a state required a ratification vote on the 1864 constitution, it is probable that the revised constitution would have to be approved by the state’s voters if, as required by the U.S. Constitution, the state is to have a “republican” form of government. Furthermore, it would be strange indeed for a constitutional amendment to require voter ratification, while an entirely new constitution would not.
Term Limits in Nevada Riding the national wave of popularity for term limits that hit in the late 1990s, Nevada voters also enacted term limits on the state’s executive, legislative, and local officials. Prior to 1996 only the governor was limited in the number of terms he or she could serve. Now, however, an initiative passed in 1994 and 1996 has amended the state constitution such that all elected state and local officials except judges have their service eligibility limited.
Although the original initiative to impose term limits included Nevada’s U.S. Senators and House members, the U.S. Supreme Court held in a case out of Arkansas that such limits violated the U.S. Constitution, which already established the criteria for election to the federal Congress.8 Since an identical amendment to the state constitution in Nevada would, therefore, be invalid at its inception, the portion of the term-limits initiative relating to members of Congress was removed from the ballot by Nevada’s secretary of state.
The original initiative included all state and local officials except the governor in its term-limits provisions. However, the Nevada Supreme Court held that the sections limiting the terms of judges were to be listed as a separate question on the ballot from those sections limiting other officeholders. The provision limiting executive, legislative, and local officials was passed with 54 percent of the vote while the question relating to judges failed, garnering only 41 percent of the vote. Consequently, judges are not limited in the number of terms they may serve. Members of the state legislature, on the other hand, may not serve more than twelve years (six terms for members of the assembly or three terms for senators)
and members of the executive branch other than the governor and lieutenant governor (i.e., attorney general, secretary of state, treasurer, controller) may not serve more than eight years or two terms. Furthermore, all other nonjudicial state officeholders, including the lieutenant governor, and local officials are limited to no more than twelve years in a particular office. Any partial term that may be filled by appointment is counted as a full term. In a surprising ruling in 2014 the state supreme court held in a case out of Reno that time spent as a member of the city council counted for purposes of eligibility to serve as mayor. That is, if a person had served for twelve years as a city council member, he or she would be ineligible to then run for mayor; if a person had served eight years on the council, he or she could serve only one term as mayor before hitting the limit. The governor was not included in the term-limits initiative because that office was already subject to a limited term of no more than ten years.
Exactly when the term-limits clock began to tick was a matter of some contention. A 1996 opinion by Attorney General Frankie Sue Del Papa held that term limits would not apply to those elected in the 1996 election since the ballot measure imposing these limits would not be effective until election results were officially certified three weeks after the election. This led many officeholders to believe that the term-limits clock would not start until the 1997 municipal elections and 1998 statewide elections. However, in 2008, Secretary of State Ross Miller informed several Nevada System of Higher Education regents, county school board members, and county commissioners who were elected in November 1996 that they were not eligible to run for reelection because they were term limited, having reached their twelve-year mark. Miller’s logic was that because these 1996 election winners did not take office until January 1997, they were affected by the term-limits measure that was certified in late November 1996. However, state legislators who were elected in November 1996 were considered to have started their terms as soon as they were elected. Therefore, their terms would have started in early November 1996, prior to the certification of the term- limits measure in late November. The case eventually wound up in the state supreme court, where the justices unanimously upheld Miller’s reading of the law and ruled twenty-one incumbents across the state ineligible to run for reelection in 2008.
Those in favor of term limits argue that they will allow more people to serve in government and will put limits on career politicians. Those who oppose such limits respond that they will result in less experienced officeholders who will more easily be manipulated by lobbyists. These arguments will be proved or disproved only by the passage of time; the first officials to bump against the term limits’ wall did not do so until the elections of 2008. However, one likely outcome of legislative term limits is that they will increase the power of southern Nevada in the legislature. Historically, turnover among the southern delegation in the legislature was high, primarily a result of the hardship imposed by having to give up one’s business interests and family for four months every other year in
order to move to Carson City for the biennial sessions. This turnover has allowed northern Nevada’s longer-term legislators who could continue to live a more normal life and go home at night during the sessions, to build seniority and, thus, control the leadership positions in the legislature. Now that northern legislators will also be required to rotate out of office periodically, it is the case that turnover rates between northern and southern legislators have become more comparable.
By 2011, the first session after term limits kicked in for the state legislature, northern and rural Nevada lost substantial seniority through the loss of legislative giants such as Randolph Townsend, Bernice Mathews, Maurice Washington, John Carpenter, John Marvel, Sheila Leslie, and Mark Amodei. That trend continued in succeeding sessions when legislative stalwarts from outside Clark County such as Dean Rhoads, Bonnie Parnell, Mike McGinness, and others reached the twelve- year mark. As in 2011, the 2013, 2015, and 2017 legislative leadership teams were dominated by legislators from Clark County.
Interest Groups and Lobbying
Introduction While political parties are concerned with ensuring that their members are elected to various governmental positions, interest groups are more interested in seeing that the policies they favor are enacted into law, regardless of which party controls the government. Thus, parties tend to be more personnel oriented, while interest groups are more issue oriented. Of course, those lines are often blurred by the fact that some interest groups are more likely to support one party over another, since that party and its members are, in turn, more likely to favor a group’s interests than is the other party (e.g., mining and ranching interests are likely to find that working with Republicans is easier for them than attempting to persuade Democrats, who are more often sympathetic to environmental causes). The decline in the importance of political parties in the United States that was noted in chapter 4 has been accompanied by a rise in the power of interest groups. A study of Nevada politics and history, therefore, would not be complete without an examination of the interest groups that have affected the state since its inception.
Political scientist Don W. Driggs has argued that the dominance of various interest groups in the state has changed over time.1 Not unexpectedly, the first fifty years of statehood found railroad and mining interests dominating the political landscape. Chief among the lobbyists for those groups were Charles “Black” Wallace of the Central Pacific Railroad and various agents of the big California banks (the “Bank Crowd”) that owned the most lucrative mines in the state. In addition to using the usual forms of political activity, Wallace and his counterpart with the Virginia and Truckee (V & T) Railroad, H. M. Yerington, ensured their success through bribery, vote buying, and intimidation.
For the next fifty years, from roughly 1908 to 1958, the chief forces in the state were those representing Nevada’s powerful political machines. From 1908 until he lost most of his wealth in the Depression, George Wingfield controlled the state’s politics through a bipartisan, but predominantly Republican, machine. He was replaced by the machine of Senator Pat McCarran, a Democrat, and his allies, John Mueller and Norman Biltz. The McCarran-Mueller-Biltz machine was
dominant until McCarran’s death in 1954, when he was replaced by E. L. Cord, inventor of the Cord automobile. The Cord-Mueller-Biltz machine, however, suffered a staggering blow in 1958 when Grant Sawyer defeated the machine’s candidate for governor. Driggs notes that Sawyer’s 1958 victory spelled the end of machine politics in the state.
Since that time, no one group has dominated the state’s politics in the way that the railroads and the Bank Crowd had done. That is not to say, however, that some groups and individuals are not more successful than others. Since 1958, three groups in particular, three organized and one not, have been highly successful in influencing state politics. Not surprisingly, gaming interests have been extremely powerful in the state. As the state’s chief industry and primary campaign contributor, gaming has been extraordinarily successful in getting its preferred candidates elected to office in large numbers. Although they do not have the financial resources of the gaming industry, the various state teachers’ organizations have also been successful in obtaining their goals in Nevada. The teachers’ unions are unable to contribute monetarily to campaigns to the same degree as gaming; however, they have thousands of volunteers at their disposal to walk districts, stuff envelopes, and engage in other forms of campaigning that candidates depend upon to win elections. After the boom-and-bust cycles of mining in the late 1800s and early 1900s, the industry made a comeback in the late 1960s after the discovery of heap leaching, which allowed small amounts of gold to be economically taken from large amounts of ore through the use of cyanide. In 2011, compared to the $10.7 billion in gaming revenue, mining brought to the Sagebrush State $9.6 billion, $8.8 billion of which came from silver and gold.2 Yet in spite of that figure, the mining industry has generally been out of the minds of those Nevadans not employed or dependent upon it. “Out of sight, out of mind” has historically allowed the industry to maintain its privileged place in the state constitution. However, as mineral prices, particularly gold, began to dramatically increase in the first and second decades of the twenty-first century, the industry organized to protect its interests and to prevent increased taxation and a change to the state constitution. Much of this lobbying has been through public relations campaigns promoting mining’s contributions to the state.
Unorganized but still highly effective have been the media power brokers in the state. Through their endorsements and decisions over what stories to run in their newspapers and on their television and radio stations, these individuals have shaped the state’s politics in significant ways. Jack McCloskey of the Mineral County Independent, Walter Cox of the Mason Valley News, Hank Greenspun and (former governor) Mike O’Callaghan of the Las Vegas Sun, and Donald Reynolds of the Las Vegas Review-Journal have certainly had a great influence on the state. Indeed, O’Callaghan’s columns on the 300 percent pension increase that legislators gave themselves in 1989 and the public outcry that resulted are partly responsible, along with television editorials by Las Vegas newsman George Knapp and the actions of Common Cause of Nevada, for the legislature’s repeal
of the provision in a special session later that year. Whether the media will continue to have the same degree of influence since the deaths of media giants Greenspun, McCloskey, O’Callaghan, and Reynolds remains to be seen. However, it is likely that as the state grows and voters become more removed from direct contact with state government officials in the years to come, the influence of the media will become even more significant. This would seem to be particularly likely in the area of the electronic and social media, which most citizens rely upon for news and information.
Lobbying in Nevada Interest groups and the lobbyists who work for them have a wide array of tools at their disposal with which to affect governmental policy. They may provide campaign contributions to candidates they favor, testify for or against bills at the legislature, seek to persuade executive-branch officials to adopt or reject certain rules and regulations, encourage writing campaigns to officeholders, organize protest marches, endorse candidates, or attempt to influence the appointment of judges and other officials who are outside the electoral arena. The appropriateness of a particular method in a given situation will depend upon the goals to be achieved, the interest group’s available resources, and the venue in which the lobbying takes place.
Interest groups attempt to influence officials at all levels and in all branches of state government. At the executive level they will, for instance, contribute to and campaign for favored candidates and lobby executive-branch officials, both elected and appointed, to enact regulations and rules that they favor. In the judiciary, interest groups will attempt to influence the selection of judges either by lobbying the governor to appoint a particular judge or by contributing to the campaigns of judicial candidates they support. In addition, they may bring test cases, that is, lawsuits challenging the constitutionality or application of state laws with which they disagree. Or they may file amicus curiae (friend of the court) briefs in cases brought by others in an attempt to convince a judge to rule in a particular way that is favorable to the group’s interests.
By far the most visible lobbying activities of interest groups, however, occur at the biennial sessions of the state legislature. During these sessions, Carson City becomes a beehive of lobbyists intent on persuading the legislators to pass laws favorable to them or to defeat laws they find unpalatable. That the actions of the legislature are of growing importance to the state’s organized interests can be seen in the fact that about 350 lobbyists registered for the 1975 session, 519 registered in 1985, 642 were registered in 1995, and 883 were registered in 2011. A study in 1991 concluded that the Nevada legislature was the sixth “most lobbied” legislature in the country, with nine lobbyists for every legislator;3 the 2011 session surpassed that mark with an average of over fourteen lobbyists per legislator. The national average is seven per legislator. An examination of Table
5.1 shows that, with few exceptions, the number of lobbyists continues to grow each year. In the 2017 session, the absolute number exceeded, for the first time, one thousand and the average per legislator exceeded sixteen.
Because the Nevada State Legislature is a part-time body, legislators are especially reliant upon lobbyists for information regarding bills that are pending before them. Although, as we shall see in chapter 6, they have the expertise of professional lawyers, auditors, and researchers in the Legislative Counsel Bureau available to them, the legislators are, by virtue of their part-time status and the press of time, dependent upon lobbyists for information regarding the potential effects of legislation. A survey of legislators and lobbyists at the 1971 session found general agreement between the two groups that a major purpose of lobbyists is to provide information to the legislators.4
That same survey indicated that lobbyists and legislators agreed on the five most effective lobbying techniques in the state legislature: personally presenting arguments, presenting research results, testifying at hearings, initiating contacts by constituents, and contributing or withholding a contribution to a candidate.5 It is doubtful that those conclusions have changed in the years since the survey was taken.
Regulation of lobbyists in Nevada began only in 1973. Prior to that time, lobbyists were not required to register, they did not have to identify the group or groups for whom they were lobbying, and in some cases they were actually permitted to sit on the floor with legislators. As one observer has noted, “Nevada
legislators have been traditionally very friendly toward lobbyists.”6 In 1973, when it appeared that a more stringent initiative supported by
Common Cause of Nevada might qualify for the ballot, the legislature reluctantly passed a bill requiring lobbyists to register with the secretary of state. Spurred by the same fears in 1975, the legislature required lobbyists to report monthly on their expenditures during the session for entertainment, gifts, and loans to legislators. In 1979, lobbyists were further required to wear identification badges while in the halls of the legislature, and the registration site was moved from the secretary of state’s office to the Legislative Counsel Bureau.
One of the most important pieces of legislation to regulate lobbyists was enacted during the 1993 session. The legislators passed a law requiring not only that lobbyists list their expenditures for the session, as they had done since 1975, but that beginning with the 1995 session they specify the individual legislators on whom the expenditure was made and the amount of that expenditure. The law has had a significant effect on lobbyist spending on legislators. Not wanting to find themselves on a list of those frequently wined and dined by lobbyists, a distinction that election opponents would surely use against them, many legislators simply avoided the gifts and free meals they had so willingly accepted in past sessions. To no one’s surprise, spending by lobbyists on legislators dropped by more than 90 percent between the 1993 and 1995 sessions, when this new law took effect. In recent years, however, lobbyist expenditures on legislators have begun to creep up although still comparatively low.
Winners and Losers Interest groups and their lobbyists have always been controversial in the United States. On the one hand are those who argue that they serve an important function in a democratic system by allowing people to band together and make their wishes known to their elected representatives; interest groups simply serve to communicate to officials what their constituents want. On the other hand are those who abhor the increased importance of interest groups and their money in the governmental process and who note that what is in the best interests of these organized groups is often not in the best interests of either the state or its citizens. As noted earlier, some groups are more successful in obtaining their wishes than others. As with any aspect of politics, there are winners and losers. The winners, not unexpectedly, are often those with the greatest resources: money, organization, effective leadership, and a cadre of dedicated members who campaign for and against candidates. The losers, not infrequently, are those without such resources.
By far the most frequent winner in Nevada politics is the gaming industry. Although it has not dominated the issues to quite the same degree as banking and railroad interests did in the nineteenth century, the gaming industry is clearly the biggest winner in the state. That it finds itself in this position is the result of
several factors. First, gaming is the single most important industry in the state. Nevada has
typically been a one-industry state, first with mining and now gaming. As a result, the economic health of the industry is of vital concern to the state’s officials, who must protect jobs and encourage economic growth if they are to remain in office. Proposals that affect gaming are sure to result in close inspection by the state’s officials. With the “corporatization” of casinos in the 1960s and the declining influence of organized crime in the industry, gaming has succeeded in establishing for itself a clean reputation and a legitimacy that, with its economic dominance, gives it influence beyond that of other groups.
Second, gaming is a significant contributor to election campaigns in Nevada. A 1993 study by the Western States Center, comparing seven western states, found that gaming gives more to political candidates in Nevada than the primary industries of the six other states give to their preferred candidates. The study also found that of disclosed contributions in the 1990 state and legislative elections, gaming provided 18 percent, mining 2 percent, organized labor 3.7 percent, and resource development industries 2.8 percent. Although gaming and other contributors frequently give to both candidates (just in case), the industry has a knack for choosing winners: “winning candidates got 41.5 percent of their traceable funds from gambling, while losers got just 13.5 percent.”7 In addition to channeling funds toward favored candidates, gaming also “freezes out” those who pose a challenge to them by ensuring that potential candidates cannot raise sufficient funds to run a serious campaign. An example is that recounted by political columnist Jon Ralston in his book The Anointed One. In his book, Ralston examined how gaming (and other interest groups) anointed Kenny Guinn governor by starving for funds and forcing out potential challengers such as Attorney General Frankie Sue Del Papa.8
Third, gaming has been successful as a result of its high-quality, well- connected lobbyists. For many years, gaming interests were represented by the powerful and hugely talented Jim Joyce. A survey of the 1983 legislature indicated that the three most effective lobbyists were all from the gaming industry: Jim Joyce, Harvey Whittemore, and Sam McMullen.9 Joyce died in 1993, but the influence of gaming has been continued by Richard Bunker and other lobbyists, including Joyce’s son, Robin. It has also been the case that the gaming industry has achieved an amazing degree of access to government officials through its hiring of lobbyists who also run the election campaigns of state and legislative officials. In 2010, for example, two of the most important and successful lobbyists in the state, Pete Ernaut and Greg Ferraro, served as key campaign advisers for Brian Sandoval as he ran for governor. After Sandoval’s election, both returned to their primary job, lobbying the governor and legislature on behalf of gaming, tourism, and mining. Such arrangements are not novel in the state; in 1998 Ernaut, backed by Ferraro, Sig Rogich, and Billy Vassiliadis,
together arguably the four most significant and powerful lobbyists in Nevada over the past several decades, ran Kenny Guinn’s campaign. Interestingly, after guiding Guinn’s election to the governorship, Ernaut served as his chief of staff, an incredibly powerful position in any administration.
For different reasons, the Nevada State Education Association has also been a frequent winner in state politics. The association does not have the economic clout and deep pockets of the gaming industry, but the tremendous growth in the state’s population has vastly increased the number of schoolteachers, giving NSEA thousands of volunteers willing to walk precincts to campaign for or against electoral hopefuls.
Other groups have also had success in lobbying state government. Organized labor and the State of Nevada Employees Association, as a result of their cadres of volunteer campaign workers, have been successful on occasion, particularly with Democrats. The Chamber of Commerce and the Nevada Taxpayers Association have been more influential with Republicans. One of the quieter winners continues to be the mining industry, which not only has the constitutional protection of paying taxes only on net proceeds, but over the years has also convinced policy makers to define very broadly the expenses that could be deducted in defining “net” proceeds for taxation purposes. In spite of broad public opinion that mining pays too little in taxes, the industry has been able to fend off attempts to require it to pay more. In 2011, however, the legislature reduced some of the deductions that mining companies could take prior to determining “net” proceeds. Nonetheless, the additional $24 million in tax levies the mining industry paid was less than the $38 million it would have had to pay had the legislature stuck with a law passed in a 2010 special session.
Some of the “losers” in Nevada politics tend to vary over time, finding themselves victorious in one era but not in another. Yet others seem to find themselves chronically defeated and disappointed. Mothers Against Drunk Driving (MADD) had some successes in the 1980s and early 1990s but was soundly defeated by the gaming industry when it worked for legislation to lower the legal intoxication level from .10 to .08 and to make bars and casinos legally liable for accidents caused by drivers who had been drinking at their establishments. The state legislature did eventually lower the legal intoxication level to .08 but only after the U.S. Congress passed a statute denying federal transportation funds to states that did not adopt the lower limit.
Welfare recipients and their advocates have regularly found themselves among the state’s lobbying underdogs. As far back as 1955, a study of social welfare policies found Nevada’s services for the poor were in such dreadful condition that they fell “below those of many of the poorest states” and the state consistently “turn[ed] a cold poormaster’s eye to its poor, its sick, and its socially misshapen.”10 In the six decades since, services have gotten better, but the state continues to rank near the bottom of any national list assessing state-provided social services. Because the poor tend to vote less often than others, because they
are unorganized, and because they are often seen by the public and officials as architects of their own condition, they simply do not achieve the victories that gaming, mining, the Chamber of Commerce, and any number of other groups in the state do.
The Nevada Legislature
Introduction Like the federal government, the state government of Nevada consists of three branches that oversee one another through a series of checks and balances. The state legislature is the first of these. Unlike the federal Constitution, which merely implies the separation of powers, the state constitution establishes this separation explicitly in Article 3. That separation of power is maintained by the constitution through a separation of duties and a separation of personnel. In terms of the former, Article 3 specifically prohibits any branch from exercising the powers of another. And in terms of the latter, no person may serve in more than one branch simultaneously.1
As noted in chapter 2, the Tenth Amendment to the U.S. Constitution reserves to the states all powers not delegated to the federal government or prohibited to the states. Consequently, the framers of the 1864 constitution sought to incorporate into that document limitations and exclusions on the legislature’s vast reserve of power. The Declaration of Rights, discussed in chapter 3, is one example of that effort, as are the various provisions in the constitution limiting the power of the legislature in areas such as taxation, borrowing, and spending. The constitutional convention delegates of 1864 feared the possibility of an all- powerful legislature run amok. During the convention’s debates, E. F. Dunne of Humboldt County noted, “The fact is, that whenever the Legislature is in session, the people wait with fear and trembling for it to adjourn, and then they thank God that it is over.”2
Apportionment Nevada’s legislature, like that of all other states except Nebraska, is bicameral; the lower house is called the Nevada State Assembly and the upper house is the Nevada State Senate. Currently there are forty-two members in the assembly and twenty-one in the senate. Although those numbers are not constitutionally mandated and have been altered over the years, Article 15 does limit the total number of legislators to seventy-five and Article 4 requires that the number of
senators be no more than one-half or less than one-third the number of members of the assembly.
During the 2001 and 2011 reapportionments northern and rural legislators hoped to increase the size of the senate and the assembly. On account of the explosive growth of Clark County, if the membership remained at twenty-one and forty-two, northern and rural areas of the state would not only lose representatives to Clark County, but also some incumbents from the same party in these areas would be forced to run against each other in upcoming elections. The battles between North and South were not resolved in favor of the status quo. Unlike the Civil War that gave Nevada its “Battle Born” motto, the South won and the senate and assembly will remain at twenty-one and forty-two, respectively, until at least 2023.
For fifty years the senate was wildly malapportioned, with representation not commensurate with population. From 1915 to 1965 the state senate was apportioned on the basis of one senator per county. In addition, each county, no matter how sparsely populated, was given at least one assembly member. This scheme had the effect of overrepresenting the rural counties while underrepresenting the urban areas of the state. For instance, prior to 1966, the districts representing the state’s most populous areas, Reno and Las Vegas, contained 75 percent of the population but had only twenty-one of thirty-seven seats in the assembly (57 percent) and two of seventeen seats in the senate (12 percent). The fourteen least populous counties, on the other hand, had only 21 percent of the population but controlled 37 percent of the assembly seats and 82 percent of the senate seats. The remaining population and representatives were to be found in Elko County, which was slightly over-represented in the legislature.3
From the beginning, this arrangement was of dubious constitutionality, since Articles 1 and 15 of the state constitution require that legislative apportionment in both houses be based on population. Nonetheless, it was not until 1964, in Reynolds v. Sims,4 that the U.S. Supreme Court interpreted the federal Constitution to require that both houses of all state legislatures be apportioned on the basis of population. The failure of the 1965 legislature to fairly apportion legislative seats led Flora Dungan, a member of the assembly from Las Vegas, to file suit in federal court. A three-judge federal court held that Nevada’s apportionment scheme was unconstitutional, and they ordered the governor to call a special session of the legislature for the purpose of reapportionment.5 The governor called the session in 1966, and the legislature, dominated by the rural counties, grudgingly reapportioned its seats on the basis of population. The effect of that reapportionment, and the succeeding ones that occur after the census every decade, has been to shift legislative power from the rural counties to the populous urban counties, especially Clark County, which now has a majority in both houses.
Structure and Function of the Legislature Qualifications, Sessions, Salary
Article 4 of the state constitution requires only that members of the legislature be “duly qualified electors in the respective counties and districts which they represent.” Under the constitution, an “elector” is not necessarily the same as a “registered voter.” Any U.S. citizen who is eighteen years of age or older, who has not been convicted of a felony, and who has resided in the state for thirty days is considered a qualified elector, regardless of whether he or she is registered to vote. However, the legislature has also required by statute that a legislator be at least twenty-one years old at the time of election and have resided in the state for at least one year prior to the election. And the courts have held that although candidates running in a nonpartisan election do not have to be registered to vote, political parties can require that candidates in party primaries be registered to vote in that party.
Members of the state senate serve four-year, staggered terms; members of the assembly serve terms of two years. Thus, every two years all seats in the assembly and approximately half of those in the senate are up for election. This structure parallels that in the U.S. Congress and guarantees some continuity, at least in the senate, at each legislative session. Although originally the constitution required that vacancies occurring between sessions be filled by election, amendments adopted in 1922 and 1944 now allow county commissioners to fill them. In doing so, however, the commissioners must select an individual who is of the same party as the legislator vacating the seat and who lives in the district to be represented. These interim appointments may be made only if there is to be no regular election prior to the next legislative session and are valid only until such time as a regular election does occur, at which time the remaining term, if any, is up for election.
The sixty-three members of the state legislature meet in regular session biennially, that is, every other year for a period of approximately four months. These regular sessions begin on the first Monday of February in odd-numbered years and are required to conclude within 120 calendar days. The 1864 constitution originally placed a limit of sixty days on regular sessions and twenty days on special sessions. These limits were removed by constitutional amendment in 1958 as it became clear that the state’s growing and complex business could not be conducted in so short a time. With the limitation removed, the length of sessions progressively increased after 1958. Whereas the 1973 session lasted 102 days at a cost of slightly more than $1 million, the 1997 session, the longest in state history, went on for 169 days at a cost of approximately $15.5 million.
The growing length and escalating cost of these biennial sessions eventually led to the adoption in 1998 of another constitutional amendment establishing the current limit of 120 calendar days in a regular session. In addition to saving time
and millions of dollars in legislative expenses, it is hoped that a shorter session will encourage more people to serve in Nevada’s citizen legislature. At the same time, however, there is legitimate concern that many good bills might fall between the cracks of an expedited schedule and that legislators will not have the time or opportunity to examine complicated bills upon which they are expected to vote. During the 2001 session, for example, at one point the assembly passed nine bills in seven minutes; it is doubtful that the members knew exactly what was contained in each of them.
In order to conduct its business within this shortened time period, the legislature adopted new rules and procedures to expedite legislation. These rules impose time limits on when legislation can be introduced by lawmakers, approved by committees, and voted on in each house so that action can be taken in the other. In addition, members of the money committees, Senate Finance and Assembly Ways and Means, begin their hearings on the governor’s budget two weeks prior to the official start of the session.
In the first session to occur under the 120-day limit, in 1999, everything ran fairly smoothly, with the legislature adjourning sixteen minutes early, 11:44 p.m. on the 120th day. Although there were some concerns that citizens had not had an opportunity to testify on bills that were pushed quickly through the committees and that the committees themselves had little time to explore the complexities of legislation pending before them, most legislators and observers seemed content with the outcome.
During the 2001 session, however, the wheels fell off. The legislature not only did not finish its business by midnight on the 120th day, based upon an opinion by the Legislative Counsel Bureau it continued to pass legislation until 1:00 a.m. In addition, the governor was forced to call a special session in order to conclude reapportionment deliberations. At this special session, the governor requested that the legislature reapprove legislation that it had previously approved between midnight and 1:00 a.m., in order to avoid any question of their legitimacy, and to pass a reapportionment plan. Although the houses did ultimately agree upon a reapportionment plan, the fifteen Republicans in the assembly were unhappy with it and voted against two bills in the special session that they had previously voted for in the regular session, thus denying them the majority needed to pass. The two bills sat in limbo for several weeks until the Nevada Supreme Court held that they had been legitimately passed in the regular session (that is, because the state constitution specified adjournment by midnight Pacific Standard Time, and because the legislature was operating on Daylight Savings Time at that point, they could continue to meet and pass bills until 1:00 a.m.). Therefore, the two bills did not need to be repassed in the special session, and they were transmitted to the governor who then signed them.
Since 2001 the ability of the legislature to complete its business on time has only worsened. Two special sessions had to be called after the 2003 regular session ended in order to deal with tax issues. And yet another special session was
called after the 2005 regular session ended in order to work on Millennium Scholarship and Canadian prescription-drug importation issues. In addition, a special session was called in 2007 after the regular session ended, and special sessions were called in 2008 (twice) and in 2010. No special sessions were called immediately after the 2009 through 2017 legislatures adjourned (although there were special sessions called in 2013, 2014, 2015, and 2016). That did not mean, however, that the legislature had concluded its business, only that the governor found no reason to expect that a special session would result in a successful outcome. For example, by the end of the 2011 legislature, a new reapportionment plan for the state had still not been passed and signed by the governor; Governor Brian Sandoval had vetoed two redistricting plans favored by the Democrats, and they did not have the votes to override him. Ultimately, reapportionment fell to a state district court judge in Carson City, working with a panel of three electoral experts from the state. A two-hour special session was called at the end of the 2013 session to conclude business.
The embarrassment and disgust many feel as a result of the 120-day limit has led to calls by some to adopt annual sessions, or at least to establish a limited session in even-numbered years to deal with budget issues. In 1958 the voters approved an amendment to the constitution allowing for annual sessions but promptly repealed it in 1960. Although biennial sessions have created significant problems for the legislature, particularly in its attempts to accurately predict revenues and then budget for a two-year cycle, further proposals to adopt annual sessions have died in the legislature. For example, a proposal in the 2001 legislature to amend the state constitution to provide for a 120-day session in odd- numbered years and a forty-five-day session in even numbered years passed in the assembly but was once again defeated in the senate, where it was opposed by the powerful majority leader, Bill Raggio. Likewise, attempts in the 2013, 2015, and 2017 sessions to provide for annual sessions all failed. The single post-1960 proposal that did manage to get through the legislature died at the hands of the voters by an almost two-to-one margin in the 1970 elections. To date, Nevada is one of only four states continuing to mandate biennial sessions. The others are Montana, North Dakota, and Texas.
In addition to these regular biennial sessions, the legislature may meet in special session. Prior to 2013, the state constitution allowed only the governor to call the legislature into special session, and he or she was given authority to determine what business the legislators could conduct; no business other than that called by the governor could be conducted. Special sessions called by the governor since 1958 have had no constitutional limit placed upon their length. An opinion by the state attorney general, however, determined that the governor can limit the length of a special session that he has called either at the time that he calls it or by simply rescinding his call at any point once the special session has begun.
As noted, until 2013 only the governor could call the legislature into special
session. However, after defeating a constitutional amendment in 2006, the state’s voters in 2012 approved allowing the state legislature to call itself into special session without relying upon the governor. The legislature may now call itself into special session upon the written request of at least two-thirds of the members of each house. A special session called by the legislature may last no more than 20 days. In making this change, Nevada joined thirty-four other states that also allow legislatively called special sessions. Although there was little campaign either for or against this constitutional change, it is thought by many that the troubled tenure of Governor Jim Gibbons (2007–2011) had much to do with the public’s desire to remove this monopoly power from the hands of the state’s chief executive and put the legislature on a more level footing. During Gibbons’s tenure, there was at least some discussion of impeaching the man some have referred to as the worst governor in Nevada history. However, no governor would call the legislature into special session for the purpose of impeaching himself and possibly removing himself from office. Arguably, it is with this history in mind that the voters approved in 2012 what they had disapproved only six years earlier, prior to Gibbons’s governorship.
By the time of the 2017 regular session, there had been thirty special sessions of the legislature, fourteen of them since the 120-day limit on regular sessions was imposed in 1999. Because most special sessions prior to 1969 had been called by the governor for the purpose of dealing with revenue and appropriation shortfalls between sessions, the creation of the Interim Finance Committee in 1969 decreased the need for special sessions, at least for a while. That committee, made up of the members of the Senate Finance Committee and the Assembly Ways and Means Committee, has authority between regular sessions to appropriate additional funds to agencies experiencing shortfalls or to allow them to move funds from one pool to another. However, the trend away from special sessions appears to have ended with the 120-day limit on regular sessions. Prior to the special session in 2001, the most recent special session had been in 1989 to repeal a 300 percent pension increase the legislators had voted for themselves in that year’s regular session. As noted above, in the period between 2001 and 2017, the legislature met in fourteen special sessions to deal with various measures, budgetary and otherwise, that were left incomplete after 120 days or which arose after they were out of session.
Until 2005, legislators received $130 per day for salary and a per diem for living expenses plus telephone and travel expenses. The state constitution provides that the salary figure may be paid only for the first sixty days of a regular session and the first twenty days of a special session. The per diem for expenses, however, is paid for the entirety of the session. An attempt in 2006 to allow legislators to receive compensation for every day of regular and special sessions that they work went down to a massive defeat by the voters. Since that time, however, state statute has incrementally increased legislative pay by the same percentage as other state employees’ pay. Consequently, in the 2017 regular
session, legislators were paid $8,777.40 in salary ($146.29 per day for the first sixty days only), $17,040 in per diem expenses, up to $10,000 for travel and living expenses, and the constitutionally mandated cap of $60 for postage and stationery (Article 4, Sec. 33).
Organization of the State Legislature The presiding officer of the senate, the president of the senate, is the lieutenant governor, one of the few instances in which the constitution allows an individual to serve in two branches simultaneously. In that sense, the lieutenant governor is like the vice president of the United States, who serves as president of the U.S. Senate. In this capacity, the lieutenant governor has the authority to interpret rules and has the power to exercise a “casting vote” in case of a tie. In the absence of the lieutenant governor, the senate is presided over by the president pro tempore, an elected position held by a member of the majority party.
The real power of the senate, however, is held by the majority leader and, to a lesser extent, the minority leader. These individuals are chosen by their party caucuses at the beginning of each session. Each is considered the leader of his or her party in the senate and in that capacity makes committee assignments for his or her party’s members; in addition, the majority leader chooses the chairs of each senate committee and controls floor debate. The power of the majority leader is tremendous, and no better example of that can be found than Republican senator William “Bill” Raggio of Reno, who served in that position for ten sessions. As majority leader, Raggio managed to advance Republican issues and protect the interests of northern Nevada by delaying, forcing compromises, and killing bills in the senate, in spite of Clark County’s majority in that body. Because of his power and persuasiveness, Raggio had an unerring and somewhat baffling ability to keep his fellow Republicans in line, even when that meant Clark County Republicans were voting against the interests of the southern portion of the state. After the 2001 session, however, the long-term majority leader had difficulty keeping his troops in line and was not quite the power he was in past sessions. In the 2010 election, Raggio endorsed incumbent Democrat Harry Reid for the U.S. Senate over Republican and Tea Party favorite Sharron Angle. Shortly thereafter, the Republican caucus in the state senate removed him as majority leader, and he resigned from that body entirely. Raggio died in February 2012 at the age of eighty-five, after having served longer than anyone else in the history of the state senate, with nineteen regular and twelve special sessions to his credit. With legislative term limits now in place, no one will ever come close to Raggio’s mark.
In the assembly, the presiding officer is the speaker of the assembly. The speaker, who is selected by the majority party caucus, not only presides over the assembly but also serves as his or her party’s leader. In that capacity, he or she appoints the majority party’s members to the various committees and selects the majority leader, the speaker pro tempore, and the committee chairs. Unlike the senate majority leader, who typically serves for many sessions, assuming his or her party controls the upper house, only four speakers of the assembly have
served two or more consecutive terms. The record is held by Democrat Joe Dini of Yerington, who held the speaker’s position in 1977, 1987, 1989, 1991, 1993, 1997, and 1999 and was co-speaker in 1995. The assembly minority leader makes committee assignments for his or her party members.
No one party has dominated Nevada politics, and that is true also for the legislature. In the senate, the Republicans have been the majority party forty-eight times; the Democrats, twenty-five. In the assembly, Democrats have reversed that trend and been the majority party forty-seven times, compared to twenty-six for the Republicans.6 In an odd turn of events in 1994, the Democrats and Republicans each won twenty-one seats in the 1995 assembly. After substantial maneuvering, legal and political, it was determined that co-speakers and committee co-chairs would be appointed and would alternate their service on a daily basis. That is, the Republican co-chair would preside over a given committee on Monday, the Democratic co-chair on Tuesday, and so on.
Lawmaking in the Legislature The process of making laws in the Nevada legislature is quite similar to the process in the U.S. Congress, but with some important distinctions. Unlike the U.S. Constitution, which leaves such matters up to congressional discretion, the Nevada Constitution quite specifically lays out the procedures that must be utilized by the state legislature in passing a bill into law.
Although the importance of committees in Congress cannot be overstated, their importance in the state legislature is even more significant. Because the members of the legislature are part-time legislators and meet for only four months every other year, the level of expertise developed in various policy areas may often be less than that of members of Congress who serve as full-time legislators in a full-
time legislature. Consequently, members of the state legislature are more dependent upon the specialization developed by committee members and more compelled by the press of time to complete their business before the end of the 120-day session. It is, therefore, relatively rare that a committee recommendation on a bill is rejected by the full house.
A second difference from the U.S. Congress comes in the types of bills that may be introduced. The U.S. Constitution, for example, mandates that all revenue (i.e., taxation) bills originate in the House of Representatives. The Nevada Constitution makes no similar distinctions, so a bill of any type may originate in either house.
Yet a third difference arises in the time-honored practice of attaching nongermane amendments to legislative proposals. In Congress it is common practice to attach an unrelated amendment (or “rider”) to a popular bill in order to ensure the amendment’s passage. For example, a controversial welfare proposal might be attached to a popular crime-control bill that members of Congress would have a hard time voting against. Nongermane amendments in the Nevada legislature are prohibited by Article 4 of the state constitution, which requires that all bills “embrace but one subject.”
The majority necessary to approve a bill in the state legislature also differs from that at the federal level. The framers of the 1864 constitution were fearful that a handful of legislators, in the absence of others, would pass obnoxious legislation. Consequently, whereas in the U.S. Congress a bill needs only a positive vote by a majority of those present to pass, the Nevada Constitution requires a majority of the elected members of each house to vote for passage of a bill. Thus, for a bill to pass it must have eleven votes in the senate and twenty-two in the assembly, regardless of how many legislators are actually present and voting on the proposal.
Some bills, however, are required to have a supermajority in order to be passed. In 1996 Nevada’s voters approved an amendment to the state constitution known as the Gibbons Tax Restraint Initiative, named after its primary sponsor, Jim Gibbons. The amendment requires that tax increases be passed by a two- thirds majority in both houses of the legislature. Thus, a tax increase now requires the votes of twenty-eight members of the assembly and fourteen in the senate. Conversely, a minority of fifteen assembly members or eight senators could stop any tax increase from passing. It is this supermajority requirement that allowed the fifteen Republicans in the assembly to put into question the passage of the two bills at the 2001 special session discussed previously in this chapter. A similar situation brought the legislature to a standstill in 2003 when assembly Republicans refused to go along with Republican Governor Kenny Guinn’s proposed tax increases, thus requiring two special sessions that summer. It is probable that future bills to fund state government and its programs in education, transportation, and many others will likewise be in jeopardy as a result of the Gibbons Initiative, which allows a minority of either house to subvert the will of
the majority. Two final differences in the lawmaking process occur once a bill has been
passed by both houses and is transmitted to the governor. In order for a bill to become a law, the governor must sign it or his veto must be overridden. Once a bill is transmitted to the governor, he has five days (Sundays excepted) to consider the bill if the legislature is in session and ten days (Sundays excepted) if the legislature has adjourned. By the end of that period the governor must sign or veto the entire bill (in Nevada, unlike forty-three other states, the governor does not have the power of line-item veto and thus cannot pick and choose parts of the bill to sign or veto). If the governor does nothing the bill automatically becomes law. Unlike the president, then, the governor of Nevada does not have a pocket veto, whereby a bill may be vetoed by inaction.
To override a gubernatorial veto, the legislature must obtain a two-thirds majority of the elected membership of each house (fourteen in the senate, twenty- eight in the assembly) and not, as in the Congress, simply two-thirds of those present and voting. Bills that are vetoed by the governor after the session has
adjourned are returned to the legislature for any override action at the beginning of the next regular session two years later.
Modernization Over the past several decades, concomitant to the state’s tremendous population growth, the legislature has attempted to modernize its proceedings in order to deal with the ever-increasing complexity of state government. As noted above, the Interim Finance Committee was established in 1969 to deal with appropriations issues between regular sessions and reduce the need for additional special sessions. With the opening of a new legislative building in 1971, each legislator got an office, something that had not happened during previous sessions when legislators met in the cramped confines of the State Capitol Building. In the late 1990s, the legislative building was given a $20 million remodeling that added 80,000 square feet and a new facade, a welcome addition for those who found the old building one of the least attractive structures in the state.
In addition to providing laptop computers for all legislators, the legislature has entered the twenty-first century by utilizing the internet and television to allow citizens to keep abreast of their activities. Interested parties can view bills and bill-draft requests, and committee hearings can be heard on the legislature’s website at www.leg.state.nv.us. Those who wish to participate in hearings without traveling to Carson City can do so through videoconferencing that is available.
Perhaps the most important step toward modernization, however, has been the creation and expansion of the Legislative Counsel Bureau (LCB). The LCB was established in 1945 and has been essential to the success of Nevada’s citizen legislature. The bureau is overseen by the Legislative Commission, which is made up of six members from each house and which meets monthly between sessions. The Legislative Commission has the authority to appoint the director of the Legislative Counsel Bureau. The director in turn is responsible for hiring the LCB’s staff, including four of the five division heads.
The Legal Division of the LCB is of primary importance. It provides legal advice to the legislature and drafts bills requested by legislators. As citizen legislators, members of the assembly and senate rarely possess the knowledge and skills necessary to draft complex legislation without the assistance of the professionals in the Legal Division. The Legal Division also possesses the authority to issue advisory legal opinions, although like those of the attorney general they are not binding upon the courts in any later litigation.
Not as well known or as visible as the Legal Division, but equally important, are the four other divisions of the LCB: Administrative, Audit, Fiscal Analysis, and Research. The Administrative Division provides accounting, information systems, police protection, maintenance, purchasing, and other operational support for the other divisions and for the legislature. The director of the LCB also serves as director of this division. The Audit Division performs legislative audits on the
various agencies of the executive branch in order to provide the legislature with the information it needs to ensure that appropriated funds have been expended properly and efficiently. The Fiscal Analysis Division is responsible for providing the legislature with information on the fiscal effects of various spending and revenue proposals by the executive branch. In that sense, then, they too assist the legislature in its ability to check and balance the governor and other members of the executive branch. The Research Division provides necessary research and background information to the legislature on a multitude of issues confronting it. For example, with the even party split in the assembly in 1995, the Research Division was assigned the task of determining what legislatures in other states had done when faced with the same dilemma.
The Nevada Executive
Introduction In general, the executive power can be defined as one that enforces and implements the laws passed by the legislature as interpreted by the courts. The area now known as Nevada has been governed by an executive throughout its recorded history. During the period of Spanish colonialism, the area was governed by a provincial governor. After the Mexicans overthrew their Spanish conquerors, what is now Nevada was governed by the Mexican governor of the Province of Alta California (headquartered in Monterey). From the time of the Compromise of 1850 until Nevada became a separate territory in 1861, the northern 90 percent was under the formal authority of the Utah territorial governor, while the southern 10 percent was controlled by the governor of the vast New Mexico Territory. James W. Nye served as the only territorial governor of Nevada Territory from its inception in 1861 until statehood was granted in 1864.
Since 1864, when Republican Henry G. Blasdel was elected the state’s first governor, Nevada’s chief executive has continued to be its governor. As in all other states, the governor may be considered the “chief” executive, but in Nevada he or she is not the only member of the executive branch to be elected by the voters. Nevada has what is called a “plural executive.” Under this system, voters elect six executive-branch officers: the governor, lieutenant governor, attorney general, secretary of state, treasurer, and controller. Under the 1864 constitution the surveyor general and the superintendent of public instruction were also elected executive officers; the former was eliminated entirely and the latter was made an appointive office through constitutional amendments approved by the voters in 1954 and 1956, respectively.
In some states, these five other executive branch officers are appointed by the governor and are responsible solely to him or her. The framers of the Nevada constitution, although on good relations with territorial Governor Nye, were generally distrustful of concentrating too much power in the hands of any single officer or branch. The incorporation of a plural executive in the constitution was, therefore, a purposeful effort on their part to diffuse the executive power among the six officers. Because these five other officers are all elected by the voters, they
owe their allegiance to them and not the governor; the governor cannot command them to do anything, nor can he or she remove them. This provides for a system of multiple constitutional checks upon the executive branch: the governor is prevented from absolutely controlling the entire executive branch, the other five executive officers are held accountable to the voters and not to the governor, and executive power is made less dangerous by its diffusion into the hands of six officers instead of one.
Eligibility, Election, and Removal All six elected members of the executive branch must meet the same eligibility requirements for office. They must be at least twenty-five years of age, qualified electors, and residents of the state for the previous two years. Each serves a term of four years, and all are chosen at the same general election; that is, their terms are not staggered like those in the state senate.
The failed 1863 constitution had included a term of only two years for the governor. For reasons not indicated in the published debates, the framers of the 1864 constitution increased it to four years. Under the original 1864 constitution, all six officers could serve an unlimited number of four-year terms. However, in 1970 the voters approved a constitutional amendment, similar to the Twenty- second Amendment to the U.S. Constitution, limiting the governor, but not the other five officers, to no more than two full terms and up to two years of his or her predecessor’s unexpired term. Even before passage of the 1970 amendment, however, no governor had ever been elected to a third term and none of the three who had attempted to do so (Lewis R. Bradley, Charles H. Russell, and Grant Sawyer) were successful. At the end of his term in January 1999, Governor Bob Miller became the longest-serving governor in Nevada history, having served two full terms and the last two years of Governor Richard Bryan’s term, which came vacant upon Bryan’s move to the U.S. Senate in January 1989.
As noted in chapter 4, in 1996 Nevada’s voters once more amended the state constitution, this time to impose term limits on all other state and local officials, except judges. Consequently, starting with the election of 1998, the secretary of state, treasurer, controller, and attorney general can serve no more than two terms in office. Furthermore, any partial term (e.g., appointment to fill a midterm vacancy) is counted as a full one for term-limit calculation; thus, anyone appointed to fill such a vacancy would be allowed to run for the office only once more. Perhaps because the office of lieutenant governor is a part-time one with little power, the 1996 amendment limits that officeholder to twelve years, or three terms, in the position.
The six elected officers of the executive branch are all subject to removal through recall by the voters or impeachment by the legislature. Article 7 of the state constitution provides for the sanction of impeachment for reasons of misdemeanor or malfeasance in office. The process of impeachment is similar to that at the federal level: the lower house, the assembly, votes on articles of
impeachment, which require a simple majority to be approved, and the upper house, the senate, conducts the trial. A two-thirds majority in the senate is needed for conviction and removal from office. One important difference between the federal and state procedures for impeachment, however, is the state constitution’s provision that these majorities be based on the number of elected members of each body and not, as in Congress, on the number of those present and voting. Thus, impeachment in Nevada requires at least twenty-two votes in the assembly, and conviction requires at least fourteen votes in the senate, regardless of how many legislators actually vote.
As noted in chapter 6, the lieutenant governor serves as the president of the senate. Consequently, he or she would preside in an impeachment trial. However, in the case of an impeachment trial involving the governor, the chief justice of the Nevada Supreme Court has been designated by Article 7 as the presiding officer. The framers of the constitution thought it inappropriate for the lieutenant
governor to preside over the impeachment trial of the governor, since the lieutenant governor would become acting governor if the governor were to be convicted and removed from office. To have the lieutenant governor preside over the governor’s impeachment trial would constitute a clear conflict of interest, and every decision that he or she made in that capacity would be questioned. The difficulties that an acting governor would have in establishing his or her own legitimacy to the office after having presided over the preceding governor’s removal led the framers to follow the federal constitutional model, which provides that the chief justice of the United States presides over an impeachment trial of the president. Should an officeholder be impeached and convicted, the legislature has authority to remove him or her from office and to disqualify that person from other state office in the future. If the removed officeholder has committed any crimes, he or she could also be subject to a trial in the courts and any appropriate penalties that might ensue; this does not constitute double jeopardy. To date, only one executive official in Nevada has ever been impeached: State Controller Kathy Augustine. In a 2004 special session of the legislature, the assembly voted unanimously to impeach Augustine on three articles relating to her use of state employees and state resources to run her 2002 reelection campaign. In an odd ending to Augustine’s impeachment, the state senate voted 20–0 to convict her on one of the articles of impeachment but did not remove her from office. Consequently, although impeached and convicted by unanimous votes in both houses of the state legislature, she would have thus been able to finish out the final two years of her term as controller had she not been murdered by her husband in August 2006.
The Governor Between 1864 and 2018, the state of Nevada will have had thirty governors: fifteen have been Republicans, eleven have been Democrats, and the remaining four were members of either the Silver Party or the Silver Democrat Party. These four governors served from 1895 to 1911, when the issue of free coinage of silver was an important one in Nevada and other western mining states. Democrats dominated the governor’s office for most of the twentieth century, with Republicans holding that office for only twenty-eight years between 1895 and 1999. However, in spite of the Harry Reid–Barack Obama juggernaut and increased Democratic registration in the twenty-first century, all governors elected between 1998 and 2014 were Republicans (Kenny Guinn, Jim Gibbons, and Brian Sandoval).
Other patterns can also be found among the men, and they have all been men, holding the office. During the first twenty-four years of statehood, when mining and ranching were the state’s chief industries, all ten of the state’s governors had backgrounds in mining, cattle ranching, or both. Since 1959, seven of the nine have been attorneys and four of those have previously served as county district
attorney. Six have been graduates of the University of Nevada, Reno (Emmet D. Boyle, Charles H. Russell, Grant Sawyer, Richard Bryan, Jim Gibbons, and Brian Sandoval), none have been graduates of the University of Nevada, Las Vegas, and only eight have been native-born Nevadans (the most recent being Jim Gibbons, who served from 2007 to 2011). Eight had served in the legislature prior to becoming governor, three (Richard Bryan, Robert List, and Brian Sandoval) had served as attorney general, and other than those six who became acting governor upon the vacation of the office by their predecessors, only one (Laxalt) had previously served as lieutenant governor.1
Should the office of governor become vacant, Article 5 of the constitution provides that the lieutenant governor becomes acting governor. Should both offices be vacant, that section provides for the president pro tempore of the senate to exercise gubernatorial powers. In the rare chance that all three offices are vacant, the legislature has provided by statute that the line of succession be continued with the speaker of the assembly and the secretary of state. Permanent succession to the office of governor by the lieutenant governor has occurred six times in Nevada. One of those instances involved the disability (and later death) of the governor, three were cases in which the governor died in office, and two involved resignations by the governor to serve in the U.S. Senate.
Chief Executive Although only one of six elected executive officers, the governor is considered the chief executive of the state. In this capacity it is his or her duty to see that the laws of the state are faithfully executed. In order to achieve that goal, he is imbued with the power to appoint a substantial number of executive-branch officials. Currently the governor appoints about 80 heads and deputy heads of cabinet-level departments and the members of 200 boards, commissions, and committees. In addition, he is a member of several state boards and commissions.2 Among the most important appointments the governor makes are the heads of the departments of Motor Vehicles, Public Safety, Human Resources, and Employment Security, and the members of the Gaming Control Board, the Gaming Commission, the Public Works Board, and the Parole Commission.
In making these appointments, the governor is more powerful than the president of the United States and the governors of many other states because he or she is not required to solicit the approval of the state legislature. Although, as we have noted earlier, the framers were distrustful of a strong executive and sought to limit its power, the irony of their giving the governor sole power to appoint these officials was no doubt related to the fact that they were also realists who knew that the legislature would be in session for only a few months every other year and thus in no position to approve or disapprove the governor’s appointments.
Even though it would be unwieldy for legislators to attempt to approve
gubernatorial appointments, they have attempted to assert power over the governor’s appointees by granting themselves the authority to overturn regulations adopted by agencies of the executive branch. The voters defeated a ballot question giving the legislature this power in 1988, and a similar bill passed by both houses of the state legislature in 1995 died when the assembly failed to override Governor Miller’s veto. The legislature did ultimately get its way, however, when the voters approved a constitutional amendment granting it this power in 1996. This provision (Article 3, Section 1) gives the legislature the power (1) to review proposed executive branch regulations before they become effective, (2) to suspend the regulations if they appear to exceed the agency’s statutory authority, and (3) to reject the regulations entirely if the legislature deems them to exceed the agency’s authority. Given that the legislature is out of session twenty months out of every twenty-four, the first two functions may be performed by a legislative agency delegated that task by the legislature while the third function, complete nullification of a regulation, can be accomplished only by a majority vote of a legislative body consisting of members of both the assembly and senate that is authorized to do so (e.g., the Legislative Commission.)
That the governor is more powerful in his discretion to select executive-branch appointees than are his counterparts in many other states is an anomaly in a system in which his power is generally quite limited. For example, as noted above, he is only one of six members of Nevada’s elected plural executive. Not only is he without power over the actions of these other officers, they may be, indeed are likely to be, members of other political parties and may use their positions to actively oppose him and his policies at every turn. This often has the effect of reducing his ability to see that the laws are duly enforced. The governor’s power over these other five constitutional officers is, as political scientist Richard Neustadt once noted concerning the power of the president of the United States, ultimately nothing more than the power to persuade them to do what he thinks is right. In only fourteen out of thirty-nine elections for state officers has a single party controlled all six executive positions; the last couple of times this occurred was in 2002 and 2014, when Republicans swept all six constitutional offices. Prior to that time, no party had done so since 1946, when the Democrats had achieved the same feat.3
Consistent with their thoughts on limiting the power of the governor, the framers of the 1864 constitution also denied to him the sole power to issue pardons, a power held by the president and many state chief executives. In its debates on the issue, the convention’s delegates stated that the power to issue a
pardon for crimes against the state’s citizens “should not rest upon one man alone.”4 Apparently, modern Nevadans agree: a constitutional amendment to grant the governor that power was defeated by the voters in 1960 by a 59–41 majority. Instead, the governor serves as one member of a nine-member state Board of Pardons Commissioners; the other members are the attorney general and the seven justices of the state supreme court. A majority of the board must vote to grant a pardon. However, even here the governor has some leverage, albeit negative. According to Article 5, he exercises a veto in that he must be one of those in the majority to grant a pardon; therefore, even if all eight of the board’s other members were to vote in favor of a pardon and the governor did not, a pardon would not be granted.
As chief executive, the governor exercises other constitutional powers as well. He has the power to appoint officials to serve in some offices should a vacancy occur between elections; he may suspend a fine or forfeiture and grant a reprieve in a criminal conviction for up to sixty days from the time of judgment, and he must sign all grants and commissions from the state. In addition to his membership on the Board of Pardons Commissioners, the governor also serves on the Board of State Prison Commissioners, which oversees the state prison system, and the Board of Examiners, which reviews all claims against the state for money or property; no money can be appropriated by the legislature to pay a claim against the state unless it has first been submitted to the Board of Examiners, although the board’s recommendation is merely an advisory one.
Chief of State Like the president of the United States, the governor serves as chief of state. This is a ceremonial and symbolic function but an important one nonetheless. The governor serves as the state’s chief goodwill ambassador, attending various state functions and representing the state to the world outside of Nevada. In this role, he or she will meet with the president and other governors and engage in more low-profile activities such as ribbon cuttings at new casinos and groundbreakings for important construction projects. In performing these noncontroversial functions the governor not only is able to meet with the people and hear their concerns but also is guaranteed generally positive media attention that will aid him in his reelection or in bringing his pet issues to the state’s attention.
Chief Legislator Although not a member of the legislature, the governor is deeply involved in its biennial sessions in a number of ways. The state constitution requires the governor to give a State of the State address to the legislature at every regular session. Through this address the governor is able, in part, to set the legislative agenda by proposing bills he would like to see adopted, supporting those proposed by others that he favors, and indicating those that he would be unwilling
to sign into law should they be passed. The constitution requires a State of the State message only at each biennial session of the legislature; some modern governors, however, have seized upon the media’s attention to this address and have sometimes given one in even-numbered years, when the legislature is not meeting.
The governor’s chief method for shaping the legislative agenda, however, has not been with the State of the State address but through his budget proposals. The executive branch uses a system of “central clearance,” which means that all budget requests by state agencies must be submitted to the governor prior to transmission to the legislature. The governor and his budget director may reduce or add to these requests before submitting them to the legislature. Woe be unto the agency head who attempts to subvert the governor by asking for more at the legislature than the governor has recommended, for his or her time in office may be short. Although the money committees in the legislature often consist of legislators who are seasoned in budget matters and who are aided by budget professionals in the Fiscal Analysis Division of the Legislative Counsel Bureau, the brevity of legislative sessions means that the governor’s budget is usually adopted with only a few modifications by the legislature.
That the legislature generally adopts the governor’s budget with few changes is probably to the good, as far as the governor is concerned, for he is held responsible by the voters for the state’s economy despite the fact that it is often buffeted or bolstered by factors over which he has no control. For example, the Great Recession that hit the U.S. after 2007 reduced the number of tourists to Nevada and created a decline in revenue to the state’s coffers. Unfortunately, there was little Governor Gibbons and, later, Governor Sandoval could do other than reduce state spending or raise taxes. Gibbons chose the former, causing a rift with the legislature, while Sandoval chose the latter, causing a rift within the state Republican Party.
As chief legislator, the governor has some limited power over the legislature’s commencement and adjournment. He may call special sessions of the legislature, which are restricted to conducting only the business for which he has called them. (Although he no longer exercises exclusive power to call special sessions as the legislature may now do so as well.) Also, should the two houses of the legislature find themselves unable to agree upon a time of adjournment, Article 5 gives the governor authority to adjourn them at “such time as he may think proper.”
The governor also exercises the power of the veto. All bills passed by the two houses of the legislature in the same form go to the governor for his action. In order for these legislatively approved bills to become law, the governor must sign them, do nothing, or have his veto overridden. In this respect, governors of Nevada have not fared as well as those nationally; whereas the national average is only 1 percent of gubernatorial vetoes overridden, Nevada’s governors have been overridden 12 percent of the time.5 In modern times, governors have typically vetoed a half-dozen or fewer bills passed by the legislature each session.
However, a new record was set during the 2009 session when Governor Gibbons vetoed forty-eight bills, more than the five governors before him combined. Of this record number of vetoes, a record number were also overridden: twenty-five, or slightly more than half. The record number of vetoes came about in part because of the state’s serious budget plight during the Great Recession that saw Gibbons seeking to cut budgets and services and Democratic legislators seeking to increase taxes to provide what they deemed necessary services. That Gibbons was generally disengaged during this time, rarely meeting with or talking to legislators, did not help an already fraught situation. Continuing this partisan divide in the 2011 session, Governor Sandoval vetoed twenty-eight bills, with the legislature taking no post veto action on any of them, knowing that they did not have the votes to override. Although Gibbons holds the record for the highest number of vetoes by a governor in a single session of the legislature, Sandoval holds the record for the highest number of vetoes by a governor during his tenure in office. In addition to the twenty-eight bills that he vetoed in 2011, he also vetoed seventeen in 2013, seven in 2015 (when Republicans held both houses of the legislature), and forty-one in 2017, for a total of ninety-three vetoes during his two terms in office.
Other Duties Chief executive, chief of state, and chief legislator duties take up most of a governor’s time and efforts, but he also engages in a number of other functions given to him by the constitution, statutes, or custom. Articles 5 and 12 of the state constitution make the governor commander-in-chief of the Nevada National Guard. As commander-in-chief, he has authority to call the guard into service during emergency situations such as riots or catastrophes of nature, and he appoints the functional head of the guard, the adjutant general.
By custom the governor is seen as the chief of his party in the state. It is considered his responsibility to ensure that members of his party are elected to various positions, especially in the legislature. Success in this area, of course, works to the governor’s advantage, since he would prefer to see an executive branch and legislature dominated by his party rather than by the opposition. Just how sensitive this role can be is illustrated by an episode arising out of the 2000 general election. In a race for a seat on the Nevada Supreme Court, Governor Kenny Guinn endorsed the incumbent, Nancy Becker, for reelection. Although the race is nonpartisan and candidates are not identified by political party, it happened that Becker, a Democrat, was running against a Republican, Gary Backus. Guinn’s endorsement of Becker brought forth condemnation from some of his Republican cohorts, including the Clark County Republican Central Committee. As chief of his party the governor is also expected to use his patronage power to reward members of his party by appointing them to important posts in the state government.
Lieutenant Governor Unlike the situation at the federal level where the president and vice president run on a ticket and are, therefore, of the same party, the lieutenant governor in Nevada runs for office independently and may be of a different party from the governor. This has occurred only nine times out of a total of thirty-nine elections.6 When it does occur, a problem could develop when the governor is out of state.
Under Article 5 of the state constitution, the lieutenant governor becomes acting governor not only through a vacancy but also in case of the governor’s “absence from the state” for any reason. Exactly what absent means became a matter of some importance in 1965 during the governorship of Grant Sawyer, a Democrat, who was serving with a Republican lieutenant governor, Paul Laxalt. While Sawyer was out of the state for five hours, Laxalt requested that a state judge impanel a grand jury to investigate the Highway Department. When Sawyer returned, he rescinded the order.
The case eventually landed in the Nevada Supreme Court, where the justices voted to construe the constitutional language narrowly. In Sawyer v. District Court, the state’s highest court held that in order for the lieutenant governor to serve as acting governor in the governor’s absence, there must be an “effective absence” and a critical, emergency need for action; the governor’s absence must be “measured by the state’s need at a given moment for a particular act.” Given that the grand jury impanelment was not critically needed during the governor’s absence, the court held Laxalt’s request for a grand jury constitutionally invalid.7 The most recent event of this type occurred in 1996. While Democratic Governor Bob Miller was on vacation in the Caribbean, Republican Lieutenant Governor Lonnie Hammargren attempted to appoint a county commissioner to fill a vacancy in Lincoln County. Because there was no emergency need to do so, Secretary of State Dean Heller refused to notarize the appointment, in spite of Hammargren’s personal pleas to do so. That a conflict of this type has not occurred since 1996 is at least partly due to the fact that the three governors elected since Governor Miller left office have all been Republicans with lieutenant governors of the same party.
Constitutionally, the lieutenant governor has few powers, and the position is considered a part-time one. He or she serves as president of the senate with a “casting vote” in case of ties and serves as acting governor when the governorship is vacant through death, disability, impeachment, or recall or when the governor is “effectively absent” from the state and emergency action must be taken. Should the lieutenant governor become acting governor, he or she holds both offices until the next general election, at which time a successor is chosen. Most recently this occurred between January 1989 and January 1991, when Lieutenant Governor Bob Miller also served as acting governor.
By statute, the legislature has given the lieutenant governor the chairship of the Commission on Tourism and he or she also serves as a member of the Board of
Directors of the Department of Transportation and on the Board of the Governor’s Office on Economic Development. The lieutenant governor may also serve as the governor’s confidant and adviser when the two are close; but when they are not, the lieutenant governor is frequently left out of the executive “loop.” Such was the case after the 1994 election with Governor Bob Miller, a Democrat, and Lieutenant Governor Lonnie Hammargren, a Republican. However, Republican Governor Sandoval and Republican Lieutenant Governor Brian Krolicki worked closely together after their elections in 2010 and that relationship continued with the 2014 election of Republican Mark Hutchison as lieutenant governor.
Attorney General Next to the governor, the attorney general is probably the most visible member of the executive branch. Although chief legal adviser to the state, the attorney general is not legally required to be an attorney; it would, nonetheless, be improbable that a layperson could now be elected to the position. Constitutionally, the attorney general has few powers. He or she serves with the governor and secretary of state as a member of the Board of State Prison Commissioners and the Board of Examiners and with the governor and justices of the supreme court on the Board of Pardons Commissioners.
Other duties have been given to the attorney general by statute, including the obligation to provide legal advice to the various agencies of state government through advisory legal opinions. These advisory opinions serve only as guidelines to the agencies and are not binding upon the courts in any subsequent legal action that may arise. The attorney general is also responsible for defending the state or prosecuting cases at the Nevada Supreme Court and the U.S. Supreme Court. Technically, the attorney general also has authority to oversee the district attorneys in Nevada’s seventeen counties. Since these district attorneys are popularly elected by the voters of their individual counties, however, the attorney general rarely involves his or her office in their affairs. He or she will do so, however, if a district attorney has a conflict of interest in a case or if it appears that out of favoritism or a lack of fortitude a district attorney has failed to pursue a case. Finally, the attorney general is required by statute to submit a biennial report to the governor on the condition of law enforcement in the state.
Secretary of State The secretary of state is primarily a custodian of the state’s records. Constitutionally, he or she is prescribed only three duties. First, the secretary of state, along with the governor, must sign all state grants and commissions. Second, with the governor and attorney general, he or she serves on the Board of State Prison Commissioners and the Board of Examiners. Third, the secretary of state is required by Article 5 to “keep a true record of the Official Acts of the Legislative and Executive Departments,” which includes printing the official acts of government departments and the journals of the legislature and returning to the legislature at the beginning of each regular session any bills that may have been vetoed by the governor after the adjournment of the previous session.
The secretary of state is also responsible for issuing certificates of incorporation to Nevada businesses and regulating securities issued by these state- based entities. Statutorily, the secretary of state commissions notaries public in Nevada. Although Article 5 makes the Nevada Supreme Court the official canvasser of votes in the state, the secretary of state is responsible for preparing the official ballot, publishing official election results, and issuing certificates of election to the winners.
Controller and Treasurer The offices of controller and treasurer are created by the state constitution, but that document assigns them no particular responsibilities. Consequently, whatever functions they do perform are prescribed in state statutes. In its 1999 session, the state senate voted to combine the offices of treasurer and controller, but they were blocked by the state assembly, which refused to go along.
In spite of attempts in 1995 and 1999 to combine the offices, today they
remain separate and independent. Nonetheless, the two offices must work together closely. The treasurer receives all moneys paid to the state and disburses them upon receipt of a warrant from the controller. It is the responsibility of the treasurer to deposit all state funds and to ensure not only that they are not lost, as happened in Orange County, California, in the mid–1990s, but that they build the state’s treasury by accumulating interest at the highest rate safely possible. In addition to issuing warrants to the treasurer, the controller serves as the state’s chief bookkeeper, making an annual report of state expenditures to the governor and serving as the chief auditor in any claims against the state. In this latter capacity, the controller, along with the Board of Examiners, makes advisory recommendations to the legislature on appropriations to pay such claims.
The Nevada Judiciary
Introduction In interpreting the meaning of various statutes and constitutional provisions, the judges of Nevada’s courts engage in a form of policy making that affects not only the lives of the litigants in each case but also the lives and fortunes of all the state’s citizens. It should come as little surprise, then, that the state’s judges, especially the justices of the Nevada Supreme Court, have come under intense scrutiny and, on occasion, criticism for the decisions they have made. Two periods of Nevada history in particular illustrate the vigor of the courts’ critics.
The early years of the judiciary in the Great Basin were not good ones. As noted in chapter 1, early settlers in the Carson Valley were eager to gain separate territorial status as early as 1851. This desire was based in part on their wish to rid themselves of the Utah territorial judiciary, Mormon judges who were accused by the settlers of “so [mixing] together church and state that a man [could not] obtain justice in any of its courts.”1 Even after separate territorial status was granted in 1861, however, the courts were not spared criticism of their actions. President Lincoln’s three appointed territorial judges (Chief Justice George Turner, Associate Justice Horatio N. Jones, and Associate Justice Gordon N. Mott) and their successors were subjected to at least as much criticism as their Mormon predecessors, albeit for different reasons.
Although, as we will discuss, the Nevada territorial judges did behave in unprofessional and inappropriate ways, the primary factors undermining them were the overwhelming number of disputed mining claims they were forced to handle and the unbridled desire of William M. Stewart to control the territorial and state governments. The Nevada territorial courts were inundated with mining claims and did not have the staff to deal with them in a timely fashion. As one historian of the period has noted, “The first result of the opening of the Comstock mines was wild speculation, and the second almost endless litigation.”2 Chief among the reasons for this litigation was the question whether various lucrative ore veins were part of a single ledge and therefore the property of one company or whether they were separate ledges that would allow ownership by a number of individuals or companies.