The first push to make Nevada Territory a state originated from within the territory, without prior authorization from Congress. On September 2, 1863 the voters of the territory approved of the concept of statehood by the overwhelming margin of 6,660 votes to only 1,502. To implement this, on November 2, 1863, thirty-nine delegates met to draft a state constitution.

Because the great majority of the delegates had come to Nevada by way of California, they used the California state constitution as a first draft in formulating their own document. On December 11, 1863 the newly written constitution was submitted to the voters who, on January 19, 1864 surprisingly rejected it by a crushing 8,851 to 2,157 vote. There were a variety of reasons why it was rejected, including the idea that the taxation of mines, as established in the newly written constitution, was deemed too unfavorable for the mine owners.

Yet the idea of statehood did not die; instead it was immediately taken up on the national level, and a new attempt to create a state of Nevada was started in the United States Congress. An enabling act for Nevada statehood was passed just before the Thirty-eighth Congress was to go into recess, and signed by President Lincoln on March 21, 1864, which set up the procedure for future admission.

This enabling act stated that Nevada would achieve statehood when and if it wrote an acceptable constitution, which would include certain stipulated provisions. The constitution would be reviewed by the President, and, if approved, Nevada would be admitted. The procedure was constitutionally odd, in that Congress was left out of it; it was up to the territory and to the President to implement the required ideas. But there was haste to insure that Nevada would become a state before the next meeting of the congress.

There were reasons for both the rush to have a Nevada state, and for the irregular procedure. First, it was at a time when the nation was fighting a desperately fought Civil War, and Nevada Territory was universally and correctly perceived to be both pro-Unionist and strongly Republican. Thus, despite other territories having considerably more population, Nevada was pushed to the head of the line for statehood.

As the 1864 Presidential election approached, there were certain perceived advantages in having an additional Republican state. For one thing, a Republican congressional delegation could provide additional votes for the Passage of the Thirteenth Amendment to abolish slavery, which earlier had narrowly failed to garner the necessary two thirds support of both houses of Congress. More overriding, however, at least in the spring of 1864 was the real fear that there might be three major candidates running for President that year, and that no party would achieve a majority of electoral votes. Then, as required by the United States constitution, the election would go into the House of Representatives, where each state would have only one vote, and where a Republican Nevada would have voting rights equal to those of populous New York or Pennsylvania. This made the admission of an additional safe Republican state seem quite necessary.

A second convention to write a state constitution therefore met from July 4–27, 1864. The defeated 1863 constitution was used as the basis for the new document. The requirements of the congressional enabling act were duly incorporated at the beginning of the constitution in a section called "The Ordinance." This included the outlawing of slavery, and the statement that all undistributed public lands would be retained by the federal government and could never be taxed by the state. These provisions would be "irrevocable" without the consent of Congress and of the people of Nevada. The new constitution also included a "paramount allegiance" clause, proclaiming the supremacy of the United States government over the states and that no state had the right to secede, both very much Republican party doctrine, and voluntarily inserted into the document by its makers. The 1864 constitution also espoused democratic principles, popular in the West, with popular elections demanded for many state offices, including the state judiciary. Possible opposition from mine owners was headed off by a provision stating that only the net proceeds of mines could be taxed.

This state constitution was overwhelmingly approved by Nevada voters on September 7, 1864, with 10,375 votes supporting it, and a mere 1,184 against. The constitution was telegraphed to Washington, D.C. at a cost of $3,416.77, supposedly the longest and most expensive telegram ever sent up to that time. Lincoln proclaimed Nevada a state on October 31, 1864, and, eight days later, Nevada voted strongly Republican in the Presidential, congressional, and legislative elections. The state surely was "Battle Born" (one of its several state mottoes). The Civil War had been indispensable for giving statehood to one of the least populated and economically viable of all the territories.