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Nevada's Loyalty Pledge Law Regarding the Electoral College Violates the Constitution

"If one of them refuses to do it, they will be dismissed and we’ll bring in an alternate...I know there’s been talk about that in other states but that will not happen here."

-Nevada Secretary of State elections deputy Wayne Thorley

What if I was to tell you the electoral college..isn't a college at all?1)Sorry

Worse, this ragtag group of federal officials still don't even have office space, after all this time.

Finally, though, the electoral college has made its way to the national consciousness2)and here i thought my "Opaque election rules and procedures" club would get off to a much faster start. I'll talk to the marketing guy.., so I thought it'd be fun to talk about what the electoral college is, what they will be doing next Monday, and most importantly, examine if laws that command a federal electoral vote a particular way are constitutional.

Luckily, our elected officials gave us some great material to work with.

"Haven't I Voted Twice This Year Already?"

Well, if you start in February, a few. One more, I promise. And this time you don't even need to participate. Your job as engage citizen voter is completed for this year.

In November, you didn't vote for president, but for electors that will vote for president this coming Monday, 19 December. The following six people were elected from Nevada:

  • Dayananda Prabhu Rachakonda (The only one from Las Vegas. Will the Tyranny of the North know no bounds??)
  • Larry Jackson
  • Joetta Brown
  • Paul Catha II
  • Greg Gardella
  • Teresa Benitez-Thompson

On Monday, these 6 federal electors will convene in Carson City because the electors do not meet in one place, but at all the state capitols. This has been in effect since 1948.

In all previous elections the electors voted the same way as the people who elected them, and given that Nevada voted for Hillary Clinton, it is fair to assume that all six will vote for Hillary too.

But do they have to?

For the first time in my lifetime (likely yours too), there is serious talk of if the electoral college voters may express a different preference than that of the voters. (Vote for someone else)

Today I am not asking should the electors vote their faith, only if they can.

Now, I try not to be too tough in this forum3)This does function as marketing material as well, as I'm sure you are aware, but the Secretary of State elections deputy Wayne Thorley put out quite the statement in the press regarding this subject:

Secretary of State elections deputy Wayne Thorley said both major parties submitted the names of their six electors, one for each Nevada member of the House and U.S. Senate, well before the election.

He said since Hillary Clinton won the popular vote in Nevada, it will be the Democratic list who meets and votes that date. Rather than all 535 Electoral College electors going to Washington D.C. for that vote, they meet in each state capitol so that vote will take place in the capitol as well.

He said under Nevada law, they’re required to vote for Clinton and Tim Kaine.

“If one of them refuses to do it, they will be dismissed and we’ll bring in an alternate,” he said. “I know there’s been talk about that in other states but that will not happen here.”

Wait wut?

"We'll bring in an alternative" is quite the loaded statement.

Some potential questions consider:

Who is the "we" he is referring to? Does the Elections office have its own enforcement arm? Since when?

What do you mean by "bring"? Is that a physical threat against a federal official?

Who is the alternative? Which alternative is selected first? What behavior needs to be exhibited to trigger this threat?

(I can keep going.)

Most importantly, the assertion that Nevada's electors have to vote for Clinton/Kaine is unconstitutional and false. (And disappointing as a Nevada citizen to see an elected official make).

Let's not get mad at Wayne though, he's not the only elected official in Nevada that does not understand this. Our legislature actually put one of these silly loyalty pledge4)What year is it? laws on our books in 2013:

NRS 298.065  Meeting of presidential electors; nominees whose candidates receive highest number of votes become presidential electors; procedures for filling vacancies; pledge of presidential electors selected at meeting.

      1.  The Secretary of State shall preside at the meeting of presidential electors held pursuant to 3 U.S.C. § 7. Except as otherwise provided in this section and NRS 298.075, the nominees for presidential elector whose candidates for President and Vice President receive the highest number of votes in this State at the general election are the presidential electors.

      2.  If a nominee for presidential elector is not present to vote at the meeting, the position of presidential elector to be filled by that nominee for presidential elector is vacant and the vacancy must be filled as follows:

      (a) If the alternate is present at the meeting, the Secretary of State shall appoint the alternate to the position of presidential elector;

      (b) If the alternate is not present at the meeting, the Secretary of State shall appoint to the position of presidential elector a person chosen by lot from among the alternates present at the meeting, if any;

      (c) If no alternates are present at the meeting, the Secretary of State shall appoint to the position of presidential elector a person who is:

             (1) A qualified elector;

             (2) Present at the meeting; and

             (3) Chosen through nomination by and plurality vote of presidential electors who are present at the meeting; and

      (d) If votes cast pursuant to subparagraph (3) of paragraph (c) result in a tie, the Secretary of State shall appoint to the position of presidential elector a person who is chosen by lot from those persons who tied for the most votes.

      3.  If all the positions of presidential elector are vacant and no alternates are present at the meeting, the Secretary of State shall appoint from the qualified electors one person to the position of presidential elector, and the remaining positions must be filled pursuant to paragraphs (c) and (d) of subsection 2.

      4.  The nomination by and vote of a single presidential elector is sufficient to choose a person to be appointed to the position of presidential elector pursuant to subparagraph (3) of paragraph (c) of subsection 2.

      5.  Except as otherwise provided in subsection 6, a person appointed to the position of presidential elector pursuant to this section may not serve in that position unless the person signs a pledge in substantially the following form:

 

I agree to serve as a presidential elector and to vote only for the nominees for President and Vice President of the party or the independent candidates who received the highest number of votes in this State at the general election.

 

      6.  If a person appointed to the position of presidential elector pursuant to this section is physically unable to sign the pledge, the pledge may be signed by proxy.

      7.  If a person appointed to a position of presidential elector pursuant to this section does not sign the pledge described in subsection 5, that position of presidential elector is vacant and must be filled pursuant to this section.

      (Added to NRS by 2013, 1231)

      NRS 298.075  Voting for President and Vice President; procedures when presidential elector acts contrary to pledge; recording of votes.

      1.  The Secretary of State shall provide to each presidential elector a ballot for the office of President and a ballot for the office of Vice President. The presidential elector shall mark the applicable ballot provided by the Secretary of State for the person who received the highest number of votes at the general election for the office of President and the person who received the highest number of votes at the general election for the office of Vice President. The presidential elector shall sign and legibly print his or her name on the ballots and present the ballots to the Secretary of State.

      2.  After all presidential electors have presented their ballots to the Secretary of State, the Secretary of State shall examine each ballot. If a presidential elector:

      (a) Presents both ballots and the ballots are marked with votes for the person who received the highest number of votes at the general election for the office of President and the person who received the highest number of votes at the general election for the office of Vice President, respectively, the Secretary of State shall accept both ballots.

      (b) Does not present both ballots, presents an unmarked ballot or presents a ballot marked with a vote that does not conform with the provisions of subsection 1:

             (1) The Secretary of State shall refuse to accept either ballot of the presidential elector; and

             (2) The Secretary of State shall deem the presidential elector’s position vacant. The vacancy must be filled pursuant to the provisions of NRS 298.065. The person appointed to fill the vacancy in the position of presidential elector, after signing the pledge described in NRS 298.065, shall mark both ballots and present both ballots to the Secretary of State pursuant to this section.

      3.  Only the votes accepted by the Secretary of State pursuant to this section may be recorded on the lists of votes made by the presidential electors pursuant to 3 U.S.C. § 9.

      (Added to NRS by 2013, 1232)

Well, at least I admire the chutzpah.

I thought there was consensus among legal professionals of how federalism works, but apparently not.

You have to be wondering before we get into the legal weeds (I know I was), where did this come from/who's idea is this?

(This is the part that doesn't make the legislature look very good).

..It was copied and pasted from a lobbyist organization called Uniform Laws.5)If you unfamiliar with these ALEC-type organizations, I will explain briefly. Very rich folks paid to found the fancy organization with governmental sounding names to write drafts of laws they would like see enacted in the states. Jane Mayer's book on the topic is excellent

The people who do this for a living (shadow-write your state laws) don't think the public is offended by this idea that people would sit in Washington D.C. and write your Nevada laws.6)This has always shocked me. Not only do they keep a public-running tally of the states in which they've succeeded, they even provide a handy map as a visual aid.

Map of the 4 States

Our legislators didn't even have the shame to not openly admit that this law was suggested by a lobbyist; the notes from the 2013 session say explicitly they are adopting this uniform law.7)Please have more shame going forward

Justification for laws often takes place in the Legislative Digest (for example I am writing about the new moped law, and the digest says taxing/regulating mopeds is the the safety of the riders. No, no, not today..). Here is the Digest for the loyalty pledge law. It provides no justification at all. You would think for as something as important as elections..

So why did Nevada, after voting in one manner since 1948, need to update the voting laws in 2013? The best rhetoric you can find is this for-profit argument (as in, he was told was conclusion to have and then justified it accordingly) from this Northwestern Professor8)What's going on at Northwestern? Yikes.

I'm not impressed with what he wrote, especially given the incentive structure; I'll allow you to evaluate it on your own.

My Opinion Regarding the Electoral College is Fairly Common; I Wish I Could Justify Why the Nevada Law Got Put Into Effect

As the last sentence of our loyalty pledge law makes clear ("Only the votes accepted by the Secretary of State pursuant to this section may be recorded on the lists of votes made by the presidential electors pursuant to 3 U.S.C. § 9".), our legislators are at least aware that there is federal law governing the electoral college.

My favorite part of that sentence of our statute, is that if they would check back just one more section they would see that there already is federal law governing the electoral college 3 U.S.C. § 8:

"The electors shall vote for President and Vice President, respectively, in the manner directed by the Constitution."

You know what is literally not "the Constitution"? That's right, the Nevada legislature. Or any other state legislature for that matter.9)Please find me the constitutional provision that allows the states to invalidate electoral college votes.

It's from this same chapter in the federal code that we decide when the electoral college meets:

3 U.S. Code § 7 "The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct."

So what we have here is called a conflict of laws because the state of Nevada claims they can disqualify a elector based on her vote, and the federal law says "the constitution" (and nothing else) governs the electors.

Who wins? The federal law. By the Supremacy Clause of the U.S. Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The laws of the United States are supreme to state laws. We're talking  McCulloch v. Maryland type of certainty here.10)As in, there is consensus

We saw this not too long ago with the GMO labeling laws and Vermont. We discussed how, in response to Vermont's strict GMO-label law, the industry moved to get a federal law passed covering the same topic, making the federal law supreme to that hippie-Vermont GMO bill.11)Oh Vermont, never change..You better believe they carved exemptions for their home industries cheese/syrup

So am I saying that the entire loyalty pledge law in Nevada is unconstitutional? No. The federal congress granted authority to the states to address electoral vacancies:

Each State may, by law, provide for the filling of any vacancies which may occur in its college of electors when such college meets to give its electoral vote. 3 U.S. Code § 4

So if there is a vacancy on Monday (one of the electors is absent), NRS 298 instructs us how the Secretary of State will fill the spot. The law they crafted, although weird seems fine with respect to vacancies.

So the power to resolve vacancies has been delegated to the states by this 1948 federal statute covering the electoral college. Why did it take until 2013 for Nevada electeds to take this option? What changed?

The answer is so incendiary I can't publish it in marketing material like this. There's a reason you can't find a written justification for this law anywhere.

What I will say though, is if this was about "the will of the people" not being met, isn't the obvious solution direct election of the president? (I would support such a measure).

100 years ago we weren't even directly electing our U.S. Senators; we've certainly made some progress.12)I'm listening President Obama; I swear. If the goal is to ensure that the people's will is effectuated through the vote, the best means to do this is not through obscure, likely unconstitutional, statutes. It's also highly inefficient.

Nevada's Loyalty Pledge Law Isn't Seen As Unconstitutional Just By Me

The (nonpartisan) Congressional Research Office exists to provide necessary background to our legislators before voting on complicated issues. From the limited material I've read, their work is excellent. I've never heard a cross word against them (Evan McMullin worked for them explaining foreign policy before he ran for president. Bright people like that work there. You will get to see the person who wrote the proceeding grafs momentarily.). In April (8 months ago) of this year, they published a clear explanation of what the electoral college is and how it got to this place for U.S. members of congress13)This is the office that your representatives rely on for data. It's hard to be more trusted. The man is obviously more conservative14)when I use this word I don't mean anything pejorative than me, yet we've reached the same conclusion:15)The law isn't supposed to be political

Presidential electors in contemporary elections are expected, and, in many cases pledged, to vote for the candidates of the party that nominated them. While there is considerable evidence that the founders intended that they would be independent, weighing the merits of competing presidential candidates, the electors have been regarded as agents of the public will since the first decade under the Constitution. They are expected to vote for the candidates of the party that nominated them. “Faithless” electors provide an occasional exception to that accepted rule.

...Notwithstanding the tradition that electors are bound to vote for the candidates of the party that nominated them, individual electors have sometimes broken their commitment, voting for a different candidate or for candidates other than those to whom they were pledged; they are known as “faithless” or “unfaithful” electors. Although 24 states seek to prohibit faithless electors by a variety of methods, including pledges and the threat of fines or criminal action, most constitutional scholars believe that once electors have been chosen, they remain constitutionally free agents, able to vote for any candidate who meets the requirements for President and Vice President. Faithless electors have been few in number: since 1900, there have been eight, one each in the elections of 1948, 1956, 1960, 1968, 1972, 1976, 1988 and 2004, and one blank ballot cast in 2000. They have never influenced the outcome of a presidential election, however, but their “faithless” votes, or failure to vote, were all duly recorded, and none of these faithless electors was prosecuted for this action. (Emphasis added).

I would like to think that any person with a basic understanding of federalism would conclude the same, but sophism seems to be all the rage.

The National Archives points out that the Supreme Court has "not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution."16)Source That's a fair point. This is undecided law.

Do you really think a federal court is going to enforce a state law that commands a federal official how to vote? Really?

The Secretaries of State throughout the country produced this nice handout where you can see how popular this idea has gotten. Doesn't make it anymore constitutional17)I think the word ends in -hameful.

Mess With the Electoral College at Your Own Risk

Now, if you were an elector and trouble-maker (We know that at least one of the electors is an ran Bernie's operation in Reno, making this a possibility) you might have some potential fun come Monday.

Let's say for example you do not like this loyalty pledge law and want it declared unconstitutional by a federal court. In law, there's a rule called standing which determines what potential plaintiffs are sufficiently connected to a matter enough to sue. It's used to stop too many people from suing when they should not.

It's possible that the only people in Nevada that would have standing to challenge the loyalty pledge law would be one of these electors. And they may only have an opportunity to do so every 4 years.

Only if the elector voted as s/he intended, but then was removed by the Secretary of State (as they are threatening to do in NRS 298.), would said elector have standing and a cause of action to bring a claim.

The Secretary of State's office needs to be prepared for this. Hopefully between now and then, they realize they should not enforce an unconstitutional law, and allow the electors to vote as they choose. (The Congressional Research Office says one of these laws have never been enforced..there must be reason.)

The New York Times recently used our Secretary of State as an example of an elected official using the office to lobby (They have Nevada Energy emails), and I can't be the only person living here waiting for an explanation. All eyes will be directed their way early next week.

The Secretary of State's work Monday is likely the most important they will likely ever do. Here's to hoping they realize that.

If you would like to learn more about the electoral college (or check my work), I invite you to spend a few minutes with Mr. Neale (the Congressional Research Office employee I quoted at length).

If you are unsure if it is proper for an elector to evaluate the candidate for president, just watch the first two minutes.

Thanks for reading.

 

 

Footnotes

Footnotes
1 Sorry
2 and here i thought my "Opaque election rules and procedures" club would get off to a much faster start. I'll talk to the marketing guy..
3 This does function as marketing material as well, as I'm sure you are aware
4 What year is it?
5 If you unfamiliar with these ALEC-type organizations, I will explain briefly. Very rich folks paid to found the fancy organization with governmental sounding names to write drafts of laws they would like see enacted in the states. Jane Mayer's book on the topic is excellent
6 This has always shocked me
7 Please have more shame going forward
8 What's going on at Northwestern? Yikes
9 Please find me the constitutional provision that allows the states to invalidate electoral college votes.
10 As in, there is consensus
11 Oh Vermont, never change..You better believe they carved exemptions for their home industries cheese/syrup
12 I'm listening President Obama; I swear.
13 This is the office that your representatives rely on for data. It's hard to be more trusted.
14 when I use this word I don't mean anything pejorative
15 The law isn't supposed to be political
16 Source
17 I think the word ends in -hameful.

ClearCast Episode 12: Pat Hickey Answers Your Tough Marijuana Questions

[Editor's Note]

Welcome to today's ClearCast!

The most discussed (Easily!) Ballot Question this year is Question 2, regarding ending the prohibition against the sale of marijuana in Nevada.

And do we have a special treat for you today! A nearly 40 minute conversation with the most prominent advocate of "No on 2," current Nevada State Board of Education Member, Pat Hickey!

Following along on social media, the conversation surrounding Question 2, unfortunately, has been unable to move beyond 140-character insults. A few days ago, we sat down with a Nevada marijuana dispensary owner, Andrew Jolley, and he was kind enough to explain what marijuana is for those of us not who need a little more background before evaluating Question 2.

In that conversation, he advocated for passage for Question 2, so we wanted have a representative from the 'No on 2' Campaign come on the ClearCast so you could hear both sides.

I doubt you will find a more articulate presentation of the 'No on 2' materials!1)Just my personal opinion, but I thought Pat was great. I wish the "No on 2" campaign would stop trying to trick people, and adopt this course. You can make good arguments against marijuana legalization without being dishonest. Watch the video!

For many viewers out there2)I speak of the prominent 'Yes on 2' folks, Pat may not persuade you to vote No on 2, but regardless, listening to his concerns is certainly worth your while. If marijuana is soon to be legalized in Nevada, it needs to be regulated properly. Pat is raising a lot of valid points here.

In the conversation, you will hear that Pat names Nevada state senator Tick Segerblom three times (in a less-than-becoming manner) in reference to Nevada marijuana regulation.

Know that Monday morning, we are scheduled to sit down with Tick so he will have an opportunity to respond..

Thanks for watching!

-Brian

[End Note]

 

Transcript:

Jordan Flake: Hi, I'm Jordan Flake. I'm an attorney with Clear Counsel Law Group. I'm really excited today to be joined by Pat Hickey, who is leading the coalition I would say against the regulation and legalization of marijuana Question 2 here in Nevada. As always, on ClearCast our goal is to hopefully provide an objective viewpoint of the different issues that we cover. We're always very interested to where we may have been wrong, what we might have missed, what your opinions are. You can always leave comments on the videos, either on Facebook or on our web page.

Pat Hickey, I don't know too much about your history. I appreciate you coming. I understand that you have been an assemblyman in the past and that you are kind of the state coordinator for the opposition against this Question 2. Tell me a little bit about yourself and how you came to be interested in Question 2.

Pat Hickey: I will, and thank you for doing this. It's a great service to your clients, your potential clients, and the public at large, because ballot questions ... Not everyone even knows that issues are going to be on the ballot, much less have an opportunity to avail themselves of this information.

Jordan Flake: Right.

Pat Hickey: I appreciate you doing this. Quickly, yes, I have served in the Nevada Legislature four different terms in two different decades, and in fact in two different centuries, because I came and went ... Apparently lost my mind and returned and came to my senses and left again, so I have been a part of the Nevada Legislature. I now am serving on the State Board of Education, appointed by Governor Sandoval, which led me to concerns about recreational marijuana from two points.

One, this is a very serious and impactful public policy question, whether or not to legalize a recreational drug, and I would add commercialize one, because that is a big part of the move behind this, to create should Question 2 be passed by the voters aiding new dispensaries, or as have traditionally been called pot shops, throughout the Las Vegas area.

My two concerns, and we'll get into it, are number one, for education in Nevada we have serious challenges anyway. The new Nevada that Governor Sandoval and many educators envision is one where the emphasis of career Pat Hickey’s for our students are to be things like advanced manufacturing, the law, a professional industry that's not just reliant upon tourism and basically catering to the whims and the pleasures of people who may be visiting the Las Vegas Strip.

Secondarily, concerns about work force. I'm in the construction business, and workplace safety is a real consideration for those that are involved in either alcohol or substance abuse, including marijuana. In Colorado, and I've been to Colorado three times in the last six months, as a result of legalization ... Resulted in real workforce challenges, especially manufacturing and the construction industry, and even the gaming industry, which obviously is important to us.

Jordan Flake: Really there's just ... Education is obviously a big concern for you and the effect that legalization could have on our ability to kind of implement this new Nevada, especially from an educational standpoint, and then just kind of a constructive workforce aspect of this is do we want to have marijuana be something that's easily accessible to and potentially affect or ability to be productive in this state.

You've gone to Colorado a few times and done some research on this. Let's just kind of take the classic case when somebody comes up to you and says, "Hey, Pat Hickey, I went online and I tried to find resources about the dangers of marijuana," and I've heard people say there's just no proof that it's any worse than alcohol. In fact there's some indication that it's nowhere near as alcohol. Alcohol is I heard a hundred and fourteen times more toxic than marijuana and there's never been an overdose in marijuana, whereas alcohol kills people.

Alcohol yet is something that we regulate and something that we allow and something that people can participate in recreationally and socially. Why can't we just regulate marijuana the same way we regulate alcohol to an extent? How would you respond to that? I'm sure you've heard that countless times.

Pat Hickey: Right. Right. In some ways it's true. Abusing or overusing alcohol can certainly be detrimental to a person and so can marijuana. While it's technically true that there aren't instances of people that sat down and smoked so much that it killed them, as can happen in the case of alcohol, but at the same time it's a cumulative effect. I mean the same could be said about tobacco.

Jordan Flake: Sure.

Pat Hickey: I don't know of anyone that has sat down and smoked for thirty-five hours straight and has died as a result of it.

Jordan Flake: Right.

Pat Hickey: The health impacts, the costs to society are the result of a lifetime of a habit that is not altogether healthy for you. We have a huge challenge in this country. We seem to be having a growing tendency towards dependency. In fact, there's an epidemic of prescription drugs that society, and Nevada in particular, is facing right now. To the point about if you regulate something and you tax it, legalize it, then don't you take care of the problem? I would argue that prescription drugs are both legal and regulated and yet we're abusing them horrendously.

The new marijuana, while most people who smoke marijuana do not become addicted or become a great detriment to them, but the new marijuana is far more toxic. The THC levels, the  psychoactive elements of them are far stronger than the elements ... The THC of the marijuana in the sixties and seventies, sometimes seven or eight times as strong. In the form of edibles, which are now being marketed and arguably are somewhat child-friendly by the big marijuana industry, which I would say is quite akin to the big tobacco industry, that a number of decades ago thought that by marketing Joe Camel they would appeal to a younger clientele and therefore create for themselves a customer base for life ... I think the same thing is going on with the marijuana industry.

 

Pat Hickey, Question 2, Las vegas, marijuana

 

Jordan Flake: You raised a lot of additional questions that I have just in your response there. First by way of clarifying what you said, the alcohol corollary is one way to argue it, but the prescription drugs is another. People would disagree about that, whether it turns out to be regulation leads to dependency of use, as in the case of prescription drugs. Just kind of having you respond a little bit more on the alcohol front, would you favor the prohibition of alcohol if you were the end all, be all, and could just make it happen?

Pat Hickey: We tried that once in our history and there were socio and economic reasons for doing that. The reality is at this point in time ... I think it's somewhere in the category of seventy percent of Americans participate in one way or another in the consumption of alcohol. It's somewhat like eight percent for marijuana, and alcohol has a long cultural history to it as well. On the surface, yes, it's another substance that certain people choose to enjoy. I don't have a problem with decriminalizing possession, and while a member in the Legislature I looked for people to co-sponsor that. The problem that I have with it is the over-commercialization of it that Question 2 is going to do.

For example, not putting in the language of the initiative petition anything to restrict advertising, anything to control the potency or the THC levels, or to even ban the marketing of edibles such as gummy-bears, pot tarts, soda pot and other ice creams and things that obviously have an appeal-

Jordan Flake: It's the Joe Camel of marijuana.

Pat Hickey: It absolutely is.

Jordan Flake: To that point, you mentioned big marijuana. We know who big tobacco is. We can get on our websites and we can identify these companies that really are big tobacco. Who is big marijuana? Do we know who these people really are?

Pat Hickey: Yes, we do, but let's talk about Nevada, and especially with the law firm you're certainly aware of ... And the "Panama papers" recently disclosed the fact that it's quite easy to hide behind shadow corporations in the state of Nevada, given the way that we've marketed ourselves in the use of resident agents and other corporations for tax reasons and others. It's quite easy to incorporate in Nevada.

Yes, we do know a number of the people behind them, and in fact they're not Woodstock hippies. They're corporate folks with trust funds and others that are investing into a market that they think will be profitable. An example can be a corporation just purchased from the Bob Marley family, the old Reggae singer from Jamaica, where marijuana is somewhat of a religious icon or a custom. They just purchased the naming rights from Bob Marley for a product, Marley Naturals, for fifty million dollars, so we're talking about corporate interests who are behind this.

Specifically, this is on the ballot in Nevada due to the support of the Marijuana Policy Project, which is a Washington DC lobbying organization, somewhat of a guild for the industry itself, funneling its investment monies, and much of the original monies were from Colorado, California and others, where the industry already has a foothold. This is big business.

We love big business in Nevada. My argument is I would much rather see the Teslas, the Switches, the Faradays, socially responsibly investing in our future rather than trying to produce a new economy where what the jobs are pot shop cashiers.

Jordan Flake: Right. I get your point. That's interesting. I admit that I don't know who these big players are, who the big investors are, and it does give me a little bit of pause to think about what their motives and intentions are and just-

Pat Hickey: It's green.

Jordan Flake: Right, yeah.

Pat Hickey: And not necessarily the stuff that is rolled into the joint if you're still smoking it.

Jordan Flake: I have no doubt that's the case. With respect to children, my understanding when I spoke with the owner of a dispensary the other day is that here in Nevada it would be illegal to have anything shaped like a bear, anything shaped like a ... Something that would identify with kids.

Pat Hickey: That's not accurate. That's in response to the fact that in the initiative itself there are absolutely no restrictions to the way it can be packaged, produced or marketed.

Jordan Flake: There's not a restriction on the ability for it to be something that would be easily opened by a child?

Pat Hickey: No, no, but now they hope to put that in through regulation. You'll see proponents like Tick Segerblom and others say we're going to go with the Legislature and fix all of these things that the concerns have been raised. My argument would be why don't we do this at the Legislature to begin with and really have this discussion out in front of the public and with the public involved? In other words, a person should be at the table from the business interests involved with the government entities that are going to have to regulate this, with educators who are going to have to deal with its impacts, with Metro and law enforcement. We ought to all be at the table and have this discussion.

One of the arguments, and it was made by the Colorado Governor, when he's advised Governor Sandoval and others to say wait a few years. See how it's working in other states before you go headlong into it. We just legalized medical marijuana, and oh, by the way, there are still some real challenges there.

Jordan Flake: Skeptics would say that that Colorado Governor is potentially saying I want to keep the money and I want to keep people coming here for a few years and keep the party going in Colorado.

Pat Hickey: Fine. As far as I'm concerned, let him.

Jordan Flake: No, this is great. This is great information. One thing that ... You said so many things that I could kind of pick up and very interesting, want to go with it. One thing I think is indispensable here is you said, Pat Hickey, that you actually wouldn't have a problem ... I don't want to put words in your mouth, with private possession of marijuana. Maybe it sounds like you're more concerned about the corporate kind of policy effects, and not so much of the individual's choice and right to consume. Is this a-

Pat Hickey: Right. Even Adam Laxalt, conservative Attorney General, chief law enforcement official in Nevada, has said we are not interested in arresting people for what they do in their private life. In fact, we already have de facto decriminalization. It's been by legislative regulation reduced down to a misdemeanor. Most people, if they're arrested, are just going to get a ticket or sent to an education class or a drug enforcement court.

Police in the state are not interested in arresting people for it, and by and large federally less than one percent, 0.7 percent in fact are in federal prisons or state prisons for that matter for mere possession of marijuana. There are still a lot of monies and crime related to selling drugs. One of the arguments against it is the black market on drug dealership, it doesn't go away.

The Attorney General of Colorado has said we have more cartel activity than ever as a result of it, because when you legalize it, then a person's possession of it is no longer a factor whatsoever, so drug dealers, as we've seen in Las Vegas, they simply innovate and they find ways to still pretend to be legal delivery services in the instance of medical marijuana, and in fact they're not, and they're going to pop up all over should legalization take place.

The tourist that comes down on the Strip and visits from Ohio for a convention isn't going to want to try to go over to Maryland Parkway and find the closest pot shop. They're going to order off an internet service that they find that says it will deliver to their hotel room, and they're probably going to pick the cheapest one, which will in most cases probably result in them being an illegal one, since they don't have to comply with the regulations, they aren't taxed, and so these ... Drug dealing will continue as it has in Colorado. We're not going to get rid of it by legalizing.

Jordan Flake: Interesting. I haven't read up on it and I don't know the extent to which ... I'm at a loss to kind of respond with counterarguments that might be out there at this point. That being said, one thing that you mentioned earlier that I want to come back to was the threat of marijuana use on the workplace. I understand that the question actually continues to protect an employer's right to drug test their employees. If every employer, including for example Clear Counsel Law Group, my law firm, we could do this, even if it gets legalized I could still say, "Hey, employees, we're all getting tested because this is one of the conditions of working at this job." Doesn't that cover that-

Pat Hickey: As written, that's correct. Question 2 does not take away that right of an employer to still have a zero tolerance drug policy in effect, drug test. Many industries in the state in fact are required to. Certainly the gaming industry does, our largest. Anyone involved in transportation, the construction industry, which I'm a part of. I mean workers comp, and you deal with things like that ... Our liability insurance dictates that you better have a zero tolerance drug policy or you're going to see the expenses for workers comp and insurance go through the roof.

Jordan Flake: Right.

Pat Hickey: While it does not remove that, what it does is create additional challenges for human resources departments and others, because then you're going to get litigated persons that have a medical marijuana card and say I should be able to be using it on work since it was "prescribed" by a physician. So far in Colorado, the courts have held up the rights of employers to still make those decisions and dismiss employees who have broken their policies. On the other hand the Marijuana Policy Project ... This will be good business for lawyers, by the way, have promised to litigate this right and left.

Tick Segerblom said he thinks Nevada employers if legalization takes place, and he's on record for saying this, that they'll probably have to loosen their drug enforcement laws because everybody will be smoking it. That's okay, but as a parent and grandparent and member of the State School Board, I don't want that relaxed for school bus drivers, for teachers, for airline pilots, or for people that climb my forty foot ladders in my painting business.

Jordan Flake:     So we're not quite as concerned immediately that people are going to be showing up to work high? It's the fact that this is going to create litigation, additional policies, additional need for regulation, and just basically a ton of HR headaches essentially, along with the likelihood that as a result of that litigation the door will possibly get wider open to permit a high school bus driver, for example?

Pat Hickey: Yeah.

Jordan Flake: These are some of the concerns that are out there?

Pat Hickey: One of the problems ... Look, I fully understand as an employer the problems that alcohol can bring to bear on a family, on an employee. If someone falls off one of my ladders in my painting company, we're going to rush them to the emergency room. They're going to be treated, but one of the first things that's going to happen is a drug test by the hospital. If it comes out that this person was inebriated or impaired on the job because of abuse of a substance, marijuana or another drug, it's going to impact my workers comp rates, my insurance rates. I may even be taken to court for not enforcing a drug-free policy because it endangers my fellow employees, it endangers my customers, so it presents all kinds of problems, which translate into costs.

Let me tell you something specific about our industry, the gaming industry. In Colorado I visited with the head of their Resorts Association before I briefed members on the Strip of our Resorts Association, who took a very strong stand against this. There I was told that they're having a particular problem in their casinos in Colorado, and they're few and far between, nothing like Nevada, but especially in their entry level positions in food and beverage departments. They are finding more and more employees, because they do drug test and they have to because it's against federal law, and in order to keep their gaming licenses, our Gaming Control Board has been adamant to gamers in Nevada, big and small, you cannot have anything to do with this industry whatsoever, the Gaming Control Board has.

You can't take monies that come in from the cash business. You can't be investors yourself. You're going to have to report under sections of money laundering any people that you bring in that you suspect are coming from a marijuana dispensary, because maybe it smells like skunk. I say that affectionately of course.

Back to the point in Colorado, they are having entry level employee problems because there are people that are applying for jobs and they're typically eighteen to twenty-nine year olds who are now frequently using more in Colorado, number one it's popular, legal, permissible, abundant, and they're failing pre-employment drug screens. When that happens, then where do they get jobs and does society have to take care of them in other ways?

Jordan Flake: I have some brothers who work for the federal government and I think it's the same story on the federal level, that's just not going to be permissible. That's interesting. You kind of heard it here first from Pat Hickey, that if this passes and you don't consume marijuana, then you're almost assured to get an entry level job. Is that right? Because they're going to have a hard time-

Pat Hickey: That's a good point. We in the construction business ... Let's assume the Oakland Raiders become the Vegas Raiders and the stadium is built. One of the reasons for the support of lawmakers, which I used to be one, is predicated on the notion we're going to have a lot more construction jobs. Great. The industry has been somewhat depressed since the Great Recession. Okay, but still those guys, union or non-union, are going to be drug testing because they're going to have to. Already the construction industry has great challenges finding qualified employees. I can tell you that personally. This is one more barrier to that.

Another problem with marijuana impairment, we haven't scientifically come up with a test to be fair about what is real impairment. People can actually test positive because it stays in your system, in your fatty areas, unlike alcohol which is in blood and then it sort of dissipates, so you can tie one on Friday night, come to work on Monday, maybe experience a random drug test and be fine. That may not be the case with marijuana. You may be determined to be impaired even when you're actually not, and that's certainly not fair either.

Jordan Flake: Right, and that's interesting, because that issue of impairment, that's another one we could spend a very long time on that, but I know that that's part ... As a voter, part of what makes all this very hard to read and understand is that both sides are obviously going to use the data that supports their position, and I don't blame them. That's the reality of politics that I'm sure you know a lot about.

Some of the data that says, for example, more accidents are as a result of marijuana abuse. I'm wondering if that's relying on data about impairment that means that yes, there was marijuana, the person that caused the accident had marijuana in his system, but it was actually from two days ago and he was just a bad driver because he was checking his cell phone. You see what I'm saying? There's data problems that-

Pat Hickey: Of course there are, and you're right to the point that both sides can use things selectively for their own argument. I get that, okay? That's why I appreciate an opportunity like this where we're talking about not just the talking points that the other side would use. We're going to have all kinds of money for schools. Let's talk about that, or are the edibles or DUIs going to affect us.

We're having a more nuanced conversation here, and that's why ... Part of my argument is what's the rush folks? Even Colorado took twelve years to go from medical to recreational. We're trying to do it in the span of one or two years, when we still have real challenges and questions about how to regulate appropriately and fairly the medical marijuana industry, which I do not oppose and I voted for the funding mechanism for it.

 

Pat Hickey, Las Vegas, Nevada, marijuana, question 2

 

One of the real challenges is this coming under the Department of Taxation as written in Question 2 in the initiative. There are huge challenges for them to become the new super agency to have to manage this. In fact, in Colorado their counterpart met with our head of Department of Taxation and said I'm here to tell you three things. This is going to be far more complicated than you think. Are you setting up the infrastructure, the ecosystem to manage this whole new business, because make no mistake, government is going to be now in the business of marijuana even in more significant ways than we are alcohol, I'd be happy to point that out.

He said it's going to be far more complicated than you think and it's going to take much more time, and maybe most importantly, or it should be most important to the taxpayers, it's going to be far more costly than you think, and it's all front-loaded, because we're going to have to put all this money into infrastructure, in growing a department ... And if you're in business, you know the Department of Taxation has taken fourteen months to figure out the two-sided form for the new commerce tax, and it's still a big fat mess.

Now we're going to ask our glorious Department of Taxation, I have friends there, to become the new Food and Drug Administration, to deal with pesticides, with labeling, with potency, with background checks, with educational programs to present to schools to warn people-

Jordan Flake: What we have is some-

Pat Hickey: We're ill-equipped for this to go rushing into.

Jordan Flake: We have some bureaucratic heavy lifting to do and a really steep growth trajectory, but don't you think that ... Isn't it the case that the taxation of marijuana over the course of time, the taxes that they levy on the actual purchase and consumption, et cetera, et cetera, will be a great boon to the coffers of the State of Nevada?

Pat Hickey: The proponents would certainly like it to be a great boon.

Jordan Flake: Has it not been in Colorado?

Pat Hickey: For those ... Not exactly. They've said that. The Governor and the drug czar and others have said those things. The Governor said, "If you think this is going to pave roads and hire new school teachers, you've got another think coming." Most of it is going to go into creating the infrastructure implementing. Nevada law as it's proposed, thirteen pages, is very different from Colorado's. At least with Colorado's Amendment 64 a certain percentage of monies went to education first.

In the Nevada initiative, we're third on the list. Education sort of gets the crumbs. After taxation, local municipalities, counties and cities are repaid for their expenses, then the budget of the district schools ... Let me say this specifically about it. Proponents will tell you in advertisements from their studies that when all is said and done and all those back-fills have been done to government, they project Nevada will get annually twenty million dollars a year pure for education. You say that's good, I'm a proponent for education.

As a Republican, I voted for more taxes for schools, for education, which got a lot of people un-elected as Republicans standing with Brian Sandoval on that. I'm for more money for education spent appropriately, but take that twenty millions in the context. We spend, and I know this as a member of the Budget Committee and a chair of some of the sub-committees on funding ... We spend a total of $5.9 billion annually in education from all sources, federal, state, local, property taxes. That twenty million that they're projecting is less than one-third of one percent of our overall education budget, so to say it's a mere drop in the bucket ... Even Chris Giunchigliani on PBS television admitted there's very little money that's going to go to schools, but they've been advertising-

Jordan Flake: Right. That doesn't stop people from saying, "Smoke marijuana, help our children."

Pat Hickey: Yeah. Think about the logic of that. I love the editorial recently by ... Our rural papers keep us somewhat sane in Nevada. The Elko Daily, which is not all that unsophisticated with their billion dollar companies, Barrick and Newmont Mining out there, recently editorialized against Question 2 and said selling marijuana in order to pay for schools is kind of like selling pornography to support daycare, something to think about.

Jordan Flake: Yeah. That's a very visceral kind of ... You have a very visceral reaction to that quote for sure.

Pat Hickey: Yeah. The other side of it is though ... Your more serious question was isn't over time this going to be a boon or a help to the expenses of society? Again, I would point to both alcohol and tobacco, to the proponent's point if we regulate and tax it, isn't that a good thing? The reality is for both alcohol and tobacco, for every dollar in revenue that is paid, and this is from national studies, ten dollars goes out other doors to pay for related health costs, for regulation, for lost employment time because of substance problems that people have, just the whole infrastructure. Tobacco, cigarettes, and I would argue marijuana, they're money drainers on society. They're not money makers.

Jordan Flake: That's interesting. I think any proponents listening to this would kind of freak out at the idea that you're equating tobacco-

Pat Hickey: They can just chill out. Just take some Segerblom haze and it'll calm them.

Jordan Flake: Tobacco and marijuana, equating those I think would be a big problem in the minds of some of the proponents.

Pat Hickey: Okay. I'm happy to make that comparison. The industries are comparable.

Jordan Flake: I'm talking about from anatomy, biological standpoint.

Pat Hickey: Do you think it's any safer to smoke marijuana than it is to smoke tobacco? I think the science says no. That's why it's evolved into edibles and things like that, just because of that very fact. Isn't it also true the tobacco industry argued effectively for decades that tobacco was not addictive?

Jordan Flake: That's true. Yeah.

Pat Hickey: In fact, there's famous scenes ... I think one of Michael Moore's movies, you know, where they're all lined up before Congress and the committee chair is now, "Is tobacco addictive or not?" "No, it is not," Philip Morris. "No, it is not," Marlboro Man, all the way down the line, when in fact Congressional research found that they knew from the 1930s that tobacco was addictive.

Proponents are saying marijuana is not addictive. It's less harmful, less addictive. I think studies will show otherwise, and I do think we should be studying it more. Anecdotally, I think many of us know people, and I do as a child of the sixties ... You can say it's addictive or not, but I have friends that smoke it four or five times a day. Now if you want to call that an addiction or just a serious habit, to me that's all ... That's a matter of-

Jordan Flake: Yeah. Pat Hickey, I appreciate you so much coming and talking to us. I have one more question here and then I'll let you go. You've been great to answer all my questions. You make the argument that Sandoval's new Nevada should focus on getting Faradays and Teslas in here. I certainly agree with that vision for our future, but at the same time isn't there kind of this idea that we live in Sin City, we already participate in many, many of the vices out there and we actively market that image, and it would almost seem that marijuana is just a natural fit for that industry, that if you come to the Strip you can participate in a wide array of debauchery and now legally marijuana?

Part of the boon to the economy is this idea not necessarily of just the twenty million that would go to the schools, but also the increased commercial activity based on the ... This is an argument out there and-

Pat Hickey: I get that. Of the forty-two million tourists that fly in annually and the rest that drive in from SoCal, maybe sixty million-

Jordan Flake: Sixty million a weekend.

Pat Hickey: Okay. According to proponents, and I think it's true, and according to Metro, if they want to get marijuana now they can. Frankly, I don't care about the impact of marijuana upon tourists. I do care about its impact upon Nevadans. This is a Nevadan's choice, whether or not we want to decide to legalize, regardless of what other states have done. In the overall, I would say I don't think it supports the direction that we're trying to go in. I don't think it's going to be helpful for students in the state, where once it's legalized, popularized, it will become more abundant, more acceptable, frankly more used. Colorado and Washington state already proved that. It's just common sense.

I don't want to see more barriers. I teach in the schools. I teach at the university level. I'm on the board of a charter school. I substitute teach in the Washoe County School District. I don't want more barriers to our students' finding success either beyond school or once they get into the workplace, and that's why I'm opposing it.

Jordan Flake: Great. Pat Hickey, I really, really appreciate it. I feel like we could have talked two or three times this long. You have a lot of opinions and views on this and a lot of information. Thank you so much for giving us so much of your time. I really appreciate it. Thank you for joining us for ClearCast and please let us know what you think. We could potentially do a follow-up, especially if it doesn't pass and comes on for another-

Pat Hickey: If it doesn't pass, I'm taking a long vacation and I'm not going to talk about this stuff-

Jordan Flake: For a long time. Thank you so much Pat Hickey.

Thanks for joining us.

 

Footnotes

Footnotes
1 Just my personal opinion, but I thought Pat was great. I wish the "No on 2" campaign would stop trying to trick people, and adopt this course. You can make good arguments against marijuana legalization without being dishonest. Watch the video!
2 I speak of the prominent 'Yes on 2' folks
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