Application to enjoin, pending disposition of an appeal, the
placement on the November 1978 ballot in Nevada of an advisory
referendum for the Nevada Legislature's benefit on the Equal Rights
Amendment, is denied. It appears unlikely that four Justices of
this Court would vote to note probable jurisdiction to consider
applicants' claim that the Nevada statute authorizing the
referendum violates Art. V of the Federal Constitution.
MR. JUSTICE REHNQUIST, Circuit Justice.
Applicants request that I "summarily reverse" a judgment of the
Supreme Court of Nevada holding that the Constitution of the United
States does not prohibit the Nevada Legislature from providing for
an advisory referendum on the proposed amendment to the United
States Constitution commonly known as the Equal Rights Amendment.
In the alternative, they apparently request that I either enjoin
the placement of the referendum question on the November ballot in
Nevada or require that the ballots be impounded and their counting
be deferred until this Court has had an opportunity to pass on
applicants' jurisdictional statement seeking review of the judgment
of the Supreme Court of Nevada.
It scarcely requires reference to authority to conclude that a
single Circuit Justice has no authority to "summarily reverse" a
judgment of the highest court of a State; a single Justice has
authority only to grant interim relief in order to preserve the
jurisdiction of the full Court to consider an applicant's claim on
the merits. 28 U.S.C. § 1651(b); this Court's Rule 51(1). Since the
likelihood that applicants' claim on the merits would induce four
Justices of this Court to note
Page 439 U. S. 1386
probable jurisdiction on their appeal seems to me very remote, I
find it unnecessary to deal with their contention that failure on
the part of a single Justice to grant some sort of interim relief
will cause them irreparable injury.
In 1977, the Nevada Legislature enacted a statute requiring the
submission of an advisory question to the registered voters of the
State as to whether the Equal Rights Amendment should be ratified
by the legislature. The statute expressly provides that "the result
of the voting on this question does not place any legal requirement
on the legislature or any of its members." 1977 Nev.Stats., ch.
174, §§ 3, 5. Applicants asked the Nevada state courts to enjoin
respondent Swackhamer, the Secretary of State of Nevada, from
complying with the statute. The trial court in Carson City denied
their request for relief, and the Supreme Court of Nevada affirmed
that ruling by a vote of four to one.
Applicants contend that the Nevada statute providing for an
advisory referendum for the benefit of the legislature is repugnant
to Art. V of the United States Constitution because it
"alters the mode of ratification of a proposed constitutional
amendment by . . . providing for citizen participation in the
amendatory process through the State's electoral machinery."
Juris.Statement 3. Applicants also contend that Art. V is
offended insofar as the statute requires the Nevada Legislature to
defer action on ratification until it receives the results of the
referendum, which is not to occur until the next regularly
scheduled election of Nevada legislators.
The plain meaning of the Nevada statute and the opinion of the
Supreme Court of Nevada convince me that the deferral issue
presented by the latter contention is not in this case, because the
Nevada statute does not prevent the state legislature from acting
on the Equal Rights Amendment before the referendum. That the
Nevada Legislature is
unlikely to vote on the amendment
before a referendum that it mandated
Page 439 U. S. 1387
is not a constitutionally cognizable grievance. Applicants'
other contention, objecting to citizen participation in the
amendatory process, is, in my opinion, not substantial, because of
the nonbinding character of the referendum. The Supreme Court of
Nevada said with respect to the statute that it
"does not concern a binding referendum, nor does it impose a
limitation upon the legislature. As already noted, the legislature
may vote for or against ratification, or refrain from voting on
ratification at all, without regard to the advisory vote. The
recommendation of the voters is advisory only."
App. to Juris.Statement 4a.
Under these circumstances, applicants' reliance upon this
Court's decisions in
Leser v. Garnett, 258 U.
S. 130 (1922), and
Hawke v. Smith, 253 U.
S. 221 (1920), is obviously misplaced. Both seem to me
to stand for the proposition that the two methods for state
ratification of proposed constitutional amendments set forth in
Art. V of the United States Constitution are exclusive:
ratification must be by the legislatures of three-fourths of the
States or by conventions in three-fourths of the States.
Leser,
supra, held that Art. V afforded no basis for the argument
that an amendment was not properly ratified because ratification
resolutions in certain States had not complied with state statutory
requirements over and above those prescribed for ratification by
Congress and by Art. V.
Hawke, supra, held that a state
statute providing for ratification by a binding referendum of the
electorate was contrary to Art. V, since that Article had specified
one of the alternative methods as being ratification by the state
legislature and Congress had chosen that alternative.
Under the Nevada statute in question, ratification will still
depend on the vote of the Nevada Legislature, as provided by
Congress and by Art. V. I would be most disinclined to read either
Hawke, supra, or
Leser, supra, or Art. V as
ruling out communication between the members of the legislature
and
Page 439 U. S. 1388
their constituents. If each member of the Nevada Legislature is
free to obtain the views of constituents in the legislative
district which he represents, I can see no constitutional obstacle
to a nonbinding, advisory referendum of this sort. The application
for interim relief is accordingly
Denied.
Comments
Be the first to comment
Leave a Comment