IIn the end, it wasn’t even a close call.
Everyone knows that passing a new tax or increasing an existing tax in Nevada requires a two-thirds vote in both houses of law. This has been the law since voters passed a constitutional amendment in 1996.
But what about a tax that is about to expire? Or one that should go under? Does maintaining these taxes at the same level also require a two-thirds vote?
I’ve said no for years – and I’ve been a lonely voice on the matter. Even the Legislative Counsel Bureau had decided that such a vote would take two-thirds.
But in 2019 things changed. Legislators were considering a bill that would prevent the state’s wage tax from falling to a lower rate and another that would keep an expiring DMV fee alive. Legislative lawyers delved into the issue and concluded (based on a careful reading of the Constitution and recent cases ruled in other states) that two-thirds was not really necessary after all.
Why? The state constitution states that any bill that “creates, generates or increases public revenue in any form” requires two-thirds. But lawyers claimed – as always – that the two-thirds requirement did not apply and a simple majority would be good enough, since the bills in question are only keeping existing earnings at current levels.
Well, on Thursday the Nevada Supreme Court told us that we were completely wrong.
“Based on the simple language of the super-majority determination, we come to the conclusion that it applies to the bills in question because they create, generate or increase public revenue,” said the unanimous decision. “Since the bills in the Senate were not passed with a two-thirds majority, those parts of the bills that would require a majority decision are unconstitutional.”
Chief Justice James Hardesty has graciously omitted the word “duh”.
The court further elaborated on its reasoning: Since the bills would result in the state receiving more public revenue than it could have realized had the bills never passed, they would increase and increase public revenue. In other words, without the wage tax and DMV technology fee, the state would have lost more than $ 100 million in revenue.
And the part about that money that just keeps existing tax revenue, not increasing it? “The state’s arguments in interpreting the super-majority rule are not convincing,” the court wrote.
Ouch, judge! The arguments of the state were my arguments and long before it was cool.
But look, I know when I’m beaten. I subscribe to the principle formulated against Madison in Marbury as early as 1803: “It is strongly the province and duty of the Justice Department to say what the law is.”
Legislative Democrats have not been so generous in defeat. In a joint statement, spokesman Jason Frierson and Senate majority leader Nicole Cannizzaro said they were only trying to help the children as opposed to the mean Republicans who pampered big business.
No, really: “In 2019, legislators blocked an unnecessary corporate tax cut and instead funded increases for educators,” the statement said. It continues: “In response, Republican legislatures have made it their primary responsibility for the past two years to protect the bottom line of some of the largest state-owned corporations at the expense of schools in Nevada.”
And again, “Despite their (Republicans) misguided decision to move forward despite the unprecedented budget deficits last year, we will continue to seek ways to oblige large, profitable corporations to pay their fair share and support Nevada families. “
It is not clear how “wrong” was the decision to move a lawsuit, as Republicans won an outright victory. And there is not a single “my bad!” There, Democrats found by the Supreme Court had broken the state constitution, and they swore an oath to protect and defend it.
It is fair to question the wisdom of voters in 1994 and 1996 when they approve the two-thirds demand (which, by the way, most of them did).
It is an anti-majority rule that gives immense power to the disobedient minority and has contributed many times to Nevada’s troubles since it came into effect in the quarter century.
But whether you like it or not, people have spoken. And now the Supreme Court must tell us all what the Constitution requires, even if you consider your own end noble and your opponents ignoble. So if Democrats really want their Republican counterparts to “work with us on meaningful tax law,” as the Democratic Declaration says, they know what to do.
Get on two thirds.
Contact Steve Sebelius at [email protected]. Follow @SteveSebelius on Twitter.