State constitution supermajority requirements

[Eastman, John]

Title: Message

Yesterday, in Guinn v. Legislature of the State of Nevada, http://www.leg.state.nv.us/scd/119NevAdvOpNo34.pdf, the Nevada Supreme Court effectively abolished a recently-enacted state constitutional provision requiring a 2/3 vote of the legislature to enact tax increases, granting the Governor's request for a writ of mandamus and directing the legislature to proceed to adopt a budget for education, with necessary tax increases, by mere majority vote.  The Court based its holding on other, older provisions of the Nevada Constitution requiring the legislature to adopt a balanced budget and to fund public education.  Apparently, the legislature had approved a $3.2 billion budget that excluded education, and for which existing revenues were adequate, but was unable to muster the 2/3 vote for a new tax hike to fund educational programs that it had excluded from the approved and funded budget.   Apropos of our recent discussion regarding Marbury, the Court decided to resolve the conflict because "constitutional construction is purely a province of the judiciary."  (citing Marbury).  This seems a great expansion on Marbury, of course, and even on Cooper v. Aaron, etc.  Any thoughts?   Also, does anyone see any other problems with this opinion?  Rejecting a more recently enacted, specific constitutional requirement in favor of a century-old, more hortatory requirement?    Beyond just the Nevada Court's suspect interpretation of its state constitution, are there federal rights implicated here?  Of the voters who adopted the 2/3 constitutional requirement by initiative?  Of state legislators who now have their votes diluted as a result of this ruling?  Is there a Republican Guaranty Clause issue here?  And in these peculiar circumstances, would it be justiciable?  Other issues?   This seems rather extraordinary to me. Do others on this list agree, or am I missing something?   John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence