Introduction
The principle of democracy and promoting the rule of law are two aspects modern constitutions seek to achieve, whether at state or federal level. Democracy connotes majority consensus on the part of the citizens in defining and shaping key issues. It would be inaccurate to assume that the American constitution is inherently democratic (pure democracy for that matter). Essentially, elections are carried out by the majority of the citizenry who choose officials (Chiappinelli, 2007). These officials are given the responsibility of determining the country’s direction. This way, democracy is transformed from the determination of many to where few people can make crucial decisions through the election process. The American constitution greatly differs from the constitution of Nevada. This paper seeks to analyze the differences between the two in terms of the following aspects; initiative, recall measures and referendums.
Initiatives
This is a process that enables the citizens to place proposed statutes and amendments through bypassing the legislature. In the American history, only 24 States have had initiatives. The first initiative was carried out in the year 1898 by South Dakota. On this front, State constitutions are different from US constitutions since such initiatives are a creature of the State constitutions. Ballot initiatives are not practiced in the federal levels, although there is a proposal for an amendment to the constitution to provide for this (Chiappinelli, 2007).
Initiatives in the Nevada constitution can either be direct or indirect (Nevada, 2001). In indirect initiatives, the major concentration is on statutes, while the direct initiative focus more on constitutional amendments. Upon collecting sufficient signatures, initiatives that are statutory are presented to the State Legislature of Nevada for approval. If the legislature approves this, the Governor signs it and then the statute becomes law. Whenever this is not the case, say, for instance, the legislature fails to approve it, or the governor fails to sign it, the proposed statute is submitted to voters for determination. This however should happen at a general election.
If the Governor signs the statute into law, then the legislature is tasked with proposing an alternative statute to the voters. At this point, all proposed amendments are subjected to the people’s vote. For it to qualify, the statute ought to be approved at two different elections which should be consecutive.
Most States that allow initiation of legislation through such processes have restrictions that intend to restrict the content and scope of the initiatives that are proposed. In Nevada, initiatives must address only a single topic. This gave rise to the term single-subject rule. To further clarify this requirement, Nevada revised its statutes to ensure that any petition for a referendum or initiative should provide sufficient notice to address the affected interests. The proposed initiative should meet the set threshold (Nevada, 2001).
There is also a restriction on the topics that can be accepted as a proposed law. This is provided for in Section 6 of Article 19 of the Nevada constitution. Essentially, a measure that has been initiated may not require expenditures or make appropriations unless it succeeds to establish a tax that is sufficient to cover the expense in question.
The provisions of the Nevada law provide for what should happen in case two measures conflict. When this is the case, consideration is given to the measure that garners most affirmative votes (Nevada, 2001). The one that receives fewer votes fails to take effect. In case there is a tie, all measures fail to take effect. Constitutional amendments in Nevada ought to be approved by two legislators that are different before being placed for a ballot.
As already argued above, the US constitution does not provide for initiatives (United States, 2000). This implies that initiatives are a creature of State constitutions, Nevada being one of them. The fact that the US constitution fails to cater for this process means there is a big difference between the two constitutions on this aspect. However, there are proposals to have such provisions in the US constitution.
Referendum
In general terms, a referendum is a measure that should appear on the ballot. Referenda are of two types; legislative referendum and popular referendum. The legislative referendum refers to a measure that is subjected to the citizens for the approval. On the other hand, the popular referendum is as a result of voter petition and as such, it appears on the ballot. To some extent, the popular referendum has similarities to initiatives. This is because they are all triggered by petitions. Although this is the case, they have several differences.
Among the political reforms the State of Nevada adopted during the progressive era was the referendum. This right was enacted in 1904, giving the people the power to vote directly on whether to repeal or approve a law that the state legislature enacts. According to Nevada’s provisions, such a vote can only occur after the legislature has passed a law (Nevada, 2001). Amendment of such referendum can only be effected by another vote from the people. This implies that the legislators cannot change the law once the voters have approved it.
Different from the US constitution, the Nevada constitution provides for petitions and elections for referendums. This was passed in 1901 and 1903. In article 19, the Nevada constitution provides for the referendum provisions, effectively advocating for a process that is petition-based (Nevada, 2001). One ought to collect signatures to merit a resolution to the enacted legislation. Importantly, the number of signatures one collects must be more than 10 percent of the voters in the general election.
In the US constitution, article five gives the provisions and the process of how and when the US constitution can be changed (United States, 2000). Since its promulgation, the US constitution has been amended 27 times. For the amendment proposal to be considered, it must receive a supermajority of the quorum in both Houses. Alternatively, it should have supermajority vote in the national convention. In practice, most of the constitutional amendments have been effected via the Congress. However, State legislators tend to use their power to pressure the Congress to propose a given amendment.
The US constitution further provides the provisions on the threshold the amendment should meet in order to become an operative. This is regardless of where it was proposed, be it by the national constitution convention or by congress. Ratification of the amendment should be through the states’ legislature (three-fourths of the present 38) or state ratifying conventions (United States, 2000). A good example of how the congress has specified such legislation is the ratification of the 21st amendment in 1933, forming part of the US constitution.
This is very different from what happens in the state of Nevada. As from the 20th century, all amendment proposals for state ratification have a deadline of seven years to be ratified. For an amendment to be operative, it must meet the required threshold of three-quarters of the states. Unlike the federal government referendums which are rigid, state constitutions are regularly amended. The necessity of state amendments is facilitated by the length that the state constitutions have.
Averagely, state constitutions are three times longer when compared to the US constitution. The fact that the state constitutions are detailed also reflects how the public has lost its confidence in legislation by states.
Recall
This is a procedure through which citizens are allowed to replace public officials even before the expiry of their tenure in office. The process is very different from impeachment because it is a political device, contrary to impeachment that is a legal device. The US constitution and the Nevada State constitution differ when it comes to recall measures.
According to the US constitution, officials that are federally elected cannot be recalled. Although this option was considered in 1787 during the drafting, it never proceeded to the final version.
The United States Supreme Court is yet to rule on whether it is constitutional to recall an officer at the federal level. The closest this has come was in the case of Term Limits, Inc. v. Thornton, where the court held that states did not have any right or obligation to impose qualifications, service conditions or even new term on federally elected or representative officials (Chiappinelli, 2007). This is interpreted to mean that federal officials cannot be recalled in any process, whether legal or political.
Amid the opinions given by a number of states advocating for federal officials to be subjected to the recall process, this has not been effected. In 1967, a federal court dismissed a case where petitioners had prayed the court to force the Idaho state to agree to petitions that sought to recall a senator. To date, no federal officer has been recalled. The US constitution does not provide for this.
Unlike the US constitution, the Nevada state constitution has provisions for recalling a state officer. In article II section 9, the Nevada constitution states that any public officer in this State can be recalled from office by the elected voters of either the county, the municipality, the district or the state who have elected him to office (Nevada, 2001). This broad definition gives the Nevada citizens a huge right to recall officers in elective positions any period after six months have elapsed. In a more confusing manner, the Nevada state constitution also has provisions for recalling federal officers. However, this was mitigated by the advisory letter in 1978 from the Nevada Secretary of State that warned that voters cannot recall federal politicians.
The Nevada constitution gives the necessary procedures that should be followed in recalling an officer (Nevada, 2001). First, one should file a notice of intent with the relevant filing officer. After this, there should be a collection of signatures. Anybody within the state is eligible to sign. This was ruled in the case of Waymire v. Miller in 2009 where it was held that any registered voter who resides within the district that a certain office holder who is being recalled represents has eligibility to sign the petition document (Chiappinelli, 2007). This should be followed by the circulation of the petition and reviewing the petition respectively. After this, a recall election can be held.
References
Chiappinelli, E. A. (2007). Book Review: Law School: Legal Education in America From the 1850s to the 1980s by Robert Stevens.
Nevada. & Driggs, D. W. (2001). The Constitution of the State of Nevada: A commentary. Carson City, NV: State Print. Off.
United States. Madison, J., Hunt, G., & Scott, J. B. (2000). The debates in the Federal Convention of 1787: Which framed the Constitution of the United States of America. New York: Oxford University Press.
