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69 Chapter Six 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 allpowerful 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 69 70 The Sagebrush State 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 overrepresented 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 LasVegas,to file suit in federal court. A three-judge...


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