Democrat-linked attorneys sue to stop voter ID ballot measure

11 December 2023

A member of an immigrant advocacy group represented by well-known Democratic attorneys is suing to stop a question aimed at requiring Nevadans to provide photo identification before voting from appearing on next year’s general election ballot.

The lawsuit, filed Monday in Carson City District Court, argues that the ballot initiative is unconstitutional because its description of effect (a 200-word summary of the measure included on signature forms) does not reflect all of the question’s implications and would expend taxpayer funds as it does not have an identified funding source. Challenging the description of effect is a common tactic in Nevada to persuade judges to reject proposed ballot questions.

The suit was filed by a group of Nevada and Washington, D.C.-based attorneys, who are well known for representing Democratic Party causes, on behalf of Jennifer Fleischmann, the development director for Make the Road Nevada, an immigrant advocacy group.

Repair the Vote, a political action committee led by former Nevada Republican Club President and former Clark County GOP Chair David Gibbs, filed the petition for the ballot question last month. The initiative aims to amend Nevada’s constitution by requiring in-person voters to provide valid photo identification, and those voting by mail to provide a personally identifiable number — such as part of a driver’s license number or Social Security number — alongside their signature. 

Nevada does not require voters to provide any type of identification before voting, but voters are required to provide a signature that must match the state’s files.

Under state law, petition supporters must gather and submit at least 102,362 signatures by July 8, 2024, to qualify for the 2024 ballot, with at least 25,591 signatures coming from each of the state’s four congressional districts. As a constitutional initiative, it would need to pass twice in subsequent elections (2024 and 2026) to take effect.

It marks Repair the Vote’s second attempt at putting a voter ID proposal directly in front of voters, following a failed attempt with a similar ballot measure last year. At the time, a judge ordered the group to rewrite its “description of effect” because it was argumentative. The effort ultimately did not receive enough signatures and did not make it on the ballot.

A Nevada Independent poll earlier this year found a majority of Nevada voters strongly supported voter ID laws, which have been a key aspect of Republicans’ electoral reform efforts. A bill pushed by Republican Gov. Joe Lombardo this year to enact voter ID laws stalled in the Democratic-controlled Legislature.

In an interview Thursday, Gibbs said the group had addressed the legal issues raised last year, and he derided Democrats for their opposition to voter ID laws.

“Why are the Democrats so afraid of voter ID?” Gibbs said in an interview. “You’ve got to show an ID to do a lot of different things nowadays, and yet when it comes to the fundamental right of our democracy and our republic, which is voting, they’re insistent that nobody should have to prove who they are.”

Bradley Schrager, one of the lawyers who brought the lawsuit, declined to comment. The secretary of state’s office, which oversees ballot petitions and was named as a defendant in the suit, also declined to comment.

Monday’s lawsuit challenges the constitutionality of the initiative by claiming it would implicitly require a funding source. Nevada law prohibits ballot initiatives from costing money unless the measure also includes a sufficient tax or funding source to make up for the costs. 

The suit argues that the state would have to provide and pay for free identification cards for all Nevada voters, because requiring voters to pay for identification would be considered an implicit poll tax, which the U.S. Supreme Court has deemed unconstitutional across all American elections. Most of the identification options outlined in the initiative require some kind of payment, and those that do not are only available for certain populations.

The lawsuit also said the initiative’s description of effect fails to outline the full implications of the ballot question. The 47-word description also fails to outline differing identification requirements depending on a voter’s age. Under the petition, identification for voters who are at least 70 years old could be expired for any period of time and still be accepted as valid, while other voters’ identification must not be expired by more than four years.

“Independently and collectively, these omissions and misleading statements render the Petition’s description of effect legally deficient,” the lawsuit said.

The lawsuit marks another legal challenge to a proposed 2024 ballot initiative. Last month, a Carson City judge tossed out an initiative filed by reproductive rights groups that aimed to place an abortion rights question on the ballot next year. The judge ruled the petition was too broad for a ballot question, would expend state funds and had a misleading description of effect.

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