Like many Nevadans, I recently received an anti-Question 3 mailer from the Nevada State Democratic Party. According to the mailer, Question 3 is “complicated, unfair and bad for Nevada” because it “makes voting complicated.”
I’ve written before about Question 3, so I’m not going to spend much time repeating myself regarding the measure here. Summarizing briefly, I’m probably one of a small handful of Nevadans who are more excited about the ranked-choice voting provisions of the ballot measure than I am in bringing open primaries to this state.
That said, if you favor open primaries — as Sen. Catherine Cortez Masto (D-NV) announced she did during a recent episode of Ben Margiott’s Ballot Battleground: Nevada podcast — it’s important to understand that top-two open primaries, such as the ones conducted in California and Washington, have demonstrated a crucial weakness. So long as partisan political party affiliations are marked next to candidates’ names on open primary ballots, it’s possible for several candidates to split the same pool of partisan voters. If a district’s majority party voters are split, this can sometimes result in the minority party having the top two candidates.
To understand what I mean, imagine a situation where only two Democrats run against several Republicans in Congressional District 2. District 2 has a Cook Partisan Voting Index score of R+8, making it a fairly solidly Republican congressional district. Even so, two Democrats splitting the Democratic-leaning votes in the district — roughly 46 percent of the district’s voters — could each receive more votes than a dozen Republicans splitting the remaining 54 percent of the district’s voters. Consequently, following a heavily contested primary, two Democrats could end up being the only choices available for the majority-Republican district.
Democrats, before you get too excited about this possibility, note that it works the other direction, too. Imagine a universe where Nevadans have to decide between Gov. Joe Lombardo and Joey Gilbert in a general election because a dozen Democrats think they have what it takes to defeat the former sheriff.
The only way around this is to expand the number of candidates who reach a general election. That, however, introduces other complications. If there are, say, five major party candidates who can reach a general election, many general elections will likely be decided by a plurality of the vote. Consequently, though one candidate out of the five will receive more votes than the rest, they may not receive more votes than the rest of the field combined. In that situation, voters will be represented by a candidate that was disapproved of — that was voted against — by a majority of the voters.
Ranked-choice voting, then, is the only way for a majority of voters to reliably select a candidate in a heavily contested general election featuring more than two candidates. By allowing voters to support multiple candidates on a ballot, ranked-choice voting ensures that the winning candidate in every election will be someone a majority of voters expressed some support for.
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Having said all that, Nevada Democrats have a point. Our ballots are too long and too complex. There is, however, a better way to reduce the complexity of Nevada’s ballots.
We could simply reduce the number of races and ballot initiatives that reach our ballot.
Though sample ballots aren’t available yet, I can take an educated guess at which elected offices and propositions my neighbors and I will get to vote for this year:
- President
- Senate
- Congressional representative
- State senator
- State assembly
- At least one Supreme Court justice
- At least one Court of Appeals judge
- Multiple district court judges, including at least one from the family division
- Regent
- County commissioner
- At least one school board trustee
- City council
- At least one municipal court judge
And, as icing on the cake, seven statewide ballot questions — including Question 3.
Some of those races are comparatively easy to research and decide upon. Federal races, such as president, Senate and congressional representative are frankly almost impossible to escape. Meanwhile, at the risk of overly flattering this column’s host, The Nevada Independent does an excellent job of covering the Legislature, which makes researching those seats fairly straightforward as well.
Matters, however, become increasingly challenging the further down my ballot I go.
As a former colleague noted here more than six years ago, judicial positions never should have been elected in the first place. Most Nevada voters would be hard pressed to take an educated guess on how many justices serve on the Supreme Court (seven), much less name any of them.
Justices and judges, meanwhile, aren’t supposed to prejudge cases. Instead, they’re supposed to evaluate the evidence in each case as it comes in and directly use that evidence, along with any useful precedents established by the Supreme Court, to render a decision. Running as a “pro-choice” or a “pro-business” judge is therefore out of the question, especially at the appellate, district or municipal levels.
Consequently, judicial candidates say little and voters learn even less.
According to the University of Chicago Center for Effective Government, supreme court justices are either appointed by governors or by state legislatures in 29 states. At the local level, judicial elections are admittedly more common — 87 percent of all state appellate and trial court judges in the country face voters at some point in their career — but appointments are certainly not unheard of.
Nevada, in fact, already appoints judges whenever positions become vacant.
Granted, appointing judges is obviously no panacea. Any process that promotes Michele Fiore, a federally designated domestic terrorist who lacked a college education to become a local justice of the peace, leaves room for improvement.
Electing judges, however, doesn’t produce better results. Before Fiore was charged with several counts of wire fraud, Nye County voters were given a chance to decide if they wanted to retain her or replace her with absolutely anyone else. Fifty-six percent of the voters agreed with the judgment of their county commissioners and kept her on just long enough for her to ultimately be suspended by the Nevada Commission on Judicial Discipline.
That suspension demonstrates an important point. Unlike the federal judiciary, which holds itself largely unaccountable from anyone or anything through the use of lifetime appointments, unenforced codes of conduct and seldom-used impeachment proceedings, the state judiciary is held accountable through a constitutionally created commission that includes two judges, two attorneys and three appointees from outside of the legal profession.
If appointing and electing judges produces identical results and judicial elections don’t deliver the information voters need to intelligently hold the judicial branch accountable, why bother holding them? Getting rid of judicial elections would likely shrink the size of Nevada’s ballots in half.
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There’s no reason to stop there, though.
Do you know who your current Nevada System of Higher Education regent is? Do you know which Board of Regents district you live in? Do you know how many regents serve on the board?
If you work for Nevada’s higher education system, the answer might be yes to some or all of those questions (there are 13 regents, in case you were wondering). If not, the only time you might be exposed to the board’s existence is either when a regent’s position shows up on your ballot or when a regent does something utterly incomprehensible — such as posting racist memes on social media, bringing a gun to private legal briefings with the chancellor or repeatedly talking as if they suffered a coma in 1956 and just woke up in time for the next board meeting.
Or, alternatively, you might read about the chronic dysfunction of the Board of Regents — the messy end of Chancellor Melody Rose’s tenure, followed by the acrimonious year of Dale Erquiaga’s term as acting chancellor, followed by the failure to appoint a permanent replacement, followed by the appointment of Patty Charlton in 2023 as interim higher education chancellor and the opening of a new search.
That new search, by the way, was supposed to open more than a year ago. Even so, Charlton is still listed as the chancellor and her LinkedIn profile still shows her current role as “Chancellor (Interim).” Perhaps the board is still working on creating a committee to review the policies it plans to use to search for a chancellor.
Clearly leaving regents accountable to indifferent voters every six years is not producing the levels of accountability or results we might hope for from a public body. Replacing the board with appointees held directly accountable by political leadership voters can identify in a police lineup might introduce some professionalism and drive to a body that’s grown excessively comfortable to spinning unproductively in bureaucratic circles.
Matters certainly don’t improve at the local school board level.
Residents in Douglas County probably wish they didn’t elect school board trustees anymore — or, alternatively, they may wish they had a chance to vote for trustees more than once every four years. Once Susan Jansen, Katherine Dickerson and David Burns were elected as trustees in 2022, they decided the most pressing issue facing Douglas County students was the theoretical possibility of a biologically male from birth transgender student participating in girls’ sports.
Look, in 2022, it was either this or banning cat litter from classrooms. Perhaps the janitors talked them out of that one.
When informed by the district’s legal counsel that any attempts at drafting policy to address an imaginary issue that affects, at one trustee’s own admission, no more than 0.3 percent of the roughly 5,000 students in the district would violate various federal and state laws, the Douglas County school board did the rational thing. Namely, it voted to fire the firm that provided the district’s legal counsel for decades and elected to replace it with a firm managed by Gilbert, a failed Republican gubernatorial candidate who was ordered to pay $161,000 in attorney fees following a frivolous lawsuit against Lombardo.
Did I mention that Gilbert’s firm promised to charge more than the old firm?
Since then, the superintendent resigned. That, in turn, was followed two months later by the resignation of the district’s director of human resources — he later filed a complaint against two of the trustees. Despite lacking a human resources director, the trustees attempted to recruit a new superintendent.
First the board attempted to promote the interim superintendent. Instead of adding that promotion to the agenda, however, members of the board attempted to consider the matter extemporaneously, which is a violation of the state’s Open Meeting Law.
Next, the board nearly hired a former superintendent from Stockton who had been fired from his previous superintendency following an arrest for DUI, accusations of financial mismanagement of district funds and sexual harassment. Following a heated public meeting, that effort failed.
Finally, seven months after the original superintendent resigned, the board successfully completed its recruitment for a superintendent — but not before Jansen asked the finalists to weigh in on the district’s proposed policy to prevent biologically male from birth transgender students from participating in girls’ sports.
In addition to a comically mismanaged superintendent search, the board also spent nearly as much money on legal fees with Gilbert’s firm in five months as the district used to spend in a year. Many of those fees, in turn, are being spent on fighting against a lawsuit alleging that four of the trustees violated Open Meeting Law by texting each other during public comment instead of deliberating openly in front of their constituents.
Ordinarily, when habitual incompetence gets this expensive, someone gets fired. Even government employees and appointees operate under prohibitions and penalties which, under extreme circumstances, can lead directly to termination.
Since school board trustees are elected, however, only the voters get to hold them accountable — and, ordinarily, voters only get to hold trustees accountable once every four years. Though recall elections are technically possible, the barriers to organizing one are formidable. Once a petition is filed indicating an intent to recall an elected official, petition organizers have 90 days to collect enough signatures to meet or exceed 25 percent of the number of voters who cast ballots in the election that selected the potentially recalled candidate.
Ballot initiatives, by contrast, have nearly a full year — and only need enough signatures to exceed 10 percent of the number of voters.
Perhaps if school board trustees were appointed instead of elected, Clark County residents wouldn’t have had to wait for the county district attorney to threaten to sue Katie Williams for no longer living in Nevada while still attempting to serve as a trustee. Or Washoe County residents wouldn’t have had to wait until the primary election to finally send a trustee home after the district budgeted $500,000 to fight against the various lawsuits he kept filing against it.
If school board trustees were appointed, perhaps I wouldn’t have received a mailer calling my school board trustee “Death Smith” for having the temerity to survive cancer.
It’s true that Nevada’s ballots are too complex. That, however, has more to do with the flood of miscellaneous officials voters are expected to semi-blindly have an opinion on than anything proposed in Question 3 or anywhere else. Saying no to a measure that would actually draw greater input in the high-profile races voters actually follow will not solve that problem.
David Colborne ran for public office twice. He is now an IT manager, the father of two sons, and a weekly opinion columnist for The Nevada Independent. You can follow him on Mastodon @[email protected], on Bluesky @davidcolborne.bsky.social, on Threads @davidcolbornenv or email him at [email protected].
