Saturday, August 14, 2004
Copyright © Las Vegas Review-Journal

Rules on initiative process unconstitutional

Judge's decision requiring signature verification puts Nov. 2 election in peril, some say

Two rules governing the initiative process in Nevada were declared unconstitutional Friday in a federal court case brought by supporters of a measure that would make it legal to possess small amounts of marijuana.

The decision could affect other initiatives that had failed to qualify for the Nov. 2 ballot and left officials concerned that the general election is now in jeopardy.

In making the ruling, U.S. District Judge James Mahan stopped short of ordering Secretary of State Dean Heller to place the marijuana initiative on the November ballot.

"If you've got the signatures, then it's on the ballot," the judge said.

Mahan struck down the "13 counties rule," which requires an initiative to have signatures from at least 10 percent of the number of voters who voted in the most recent general election in at least 13 of the state's 17 counties. He also struck down a rule requiring a registered voter to sign the initiative petition and sign an affidavit verifying that others who signed the petition are registered voters.

The judge's decision prompted Heller to order verification of all signatures in the eight counties, including Clark County, where statistical sampling was used to verify signatures on not only the marijuana petition but also on a petition that seeks to ban public employees from serving in the Nevada Legislature. The counties have 12 working days, starting Monday, to verify the signatures.

Heller also ordered a full verification earlier this week of signatures on a petition that seeks to repeal record tax increases passed by the 2003 Legislature.

He said Friday's ruling has raised concerns among election officials across the state that the Nov. 2 general election is now in peril.

"Local election officials have told me the decision puts the ballot at risk with only 81 days until the general election," Heller said.

For larger counties, re-checking thousands of signatures on three different petitions will be a huge undertaking, he said.

Clark County Registrar of Voters Larry Lomax, who attended Friday's court hearing, said he already has hired 16 temporary workers to verify signatures on the tax petition. He was making arrangements Friday to hire an additional 20 temporary workers and reassign 10 existing county employees to verify signatures on the other two petitions.

Lomax said he fears that some counties will not be able to meet the 12-day deadline.

"We've just thrown too much on the counties, and they don't have the resources to make it happen," Lomax said.

He said the additional verification is being required at a time when workers already are busy preparing for the upcoming primary election. Early voting begins Aug. 21.

"Laws that allow this to happen jeopardize our primary mission, which is to conduct an election," Lomax said.

Heller said he believes the signature verification work will be done in time, but it might require extra staffing and emergency funding in some counties. Smaller counties are not affected because they already check all signatures.

"We'll get through it, and we'll be better off because of it," Heller said. "But it's hard to convince some of our election officers of that right now."

Mahan's ruling came in response to a lawsuit and motion for injunction filed July 27 by the American Civil Liberties Union of Nevada, the Committee to Regulate and Control Marijuana, the Marijuana Policy Project and several individual petition circulators and registered Nevada voters.

Two weeks earlier, Heller had announced that supporters of the marijuana initiative had failed to secure enough valid signatures to qualify the measure for the ballot.

To qualify for the 2004 general election, the initiative petition needed the signatures of 51,337 registered voters by June 15. Initiative supporters said they gathered 66,000 signatures.

The lawsuit focused on three issues: the 13-counties rule, the rule pertaining to affidavits, and the state's refusal to count the petition signatures of those who simultaneously signed voter registration applications.

Mahan sided with the state on the third issue, and the plaintiffs have vowed to appeal that portion of his ruling as soon as possible to the 9th U.S. Circuit Court of Appeals in San Francisco.

Although the ACLU of Nevada supports the marijuana initiative, executive director Gary Peck said its members "believe that these rules are just as unconstitutional when applied to any other ballot initiative in dispute."

"Like the judge, we were principally concerned with the integrity and the fairness of the process," Peck said after the court hearing. "We wanted to make sure that no eligible voter who signed the petition and wanted the initiative on the ballot was denied the opportunity to be heard."

Plaintiffs in the case argued that the state's 13-counties rule increased the relative weight of voters' signatures in rural counties while diminishing the relative weight of voters' signatures in urban counties.

According to the plaintiffs' motion for an injunction, Clark and Washoe counties have 87 percent of the state's total population. In the 2002 general election, according to the document, 82 percent of the state's voters came from the two counties.

"As a result of the '13-counties rule,' even though more people voted to put the initiative on the 2004 ballot in Clark County than in any other county in Nevada, Clark County's 'vote' did not count," the motion alleged. "This is unfair, unequal and unconstitutional."

The 9th U.S. Circuit Court of Appeals recently struck down an Idaho restriction that mirrored Nevada's 13-counties rule, and Mahan relied on that decision in declaring Nevada's rule unconstitutional.

It is unclear whether the ruling could affect a measure pushed by Sen. Sandra Tiffany, R-Henderson, in the 2000 election cycle to break up the Clark County School District.

The measure failed to get on the ballot when it qualified in only 12 of 17 counties.

Tiffany already has a case in federal court seeking validation of the measure based on the 9th Circuit's decision in the Idaho case. She could not be reached for comment Friday.

Heller said the Idaho decision already is on appeal to the U.S. Supreme Court.

At Friday's hearing, Mahan also declared what is known as the state's "dual-affidavit rule" unconstitutional.

The rule requires petition circulators, who need not be registered voters, to sign an affidavit indicating they believe all signatures are valid.

If the circulator is a registered voter, that person also must sign what is referred to as an "affidavit of document signer." If the circulator is not a registered voter, then someone who signed the document must sign the affidavit.

The plaintiffs claimed the requirement for a second affidavit serves no valid purpose and poses an unconstitutional burden on the First Amendment rights of circulators and citizens.

Mahan said the dual-affidavit rule has the effect of forcing petition circulators to be registered voters. The U.S. Supreme Court has determined that petition circulators need not be registered voters.

Friday's decision also could affect a state court ruling favoring ballot measures that seek to raise the minimum wage and prohibit caps on attorney fees.

Last month, Carson City District Judge Bill Maddox declared the dual-affidavit rule unconstitutional. Heller, seeking clarification from the Nevada Supreme Court, appealed the ruling.

In light of Mahan's decision, Heller said, state attorneys will reconsider the decision to appeal Maddox's ruling. They also will decide whether to appeal Mahan's decision on the 13-counties rule.

Meanwhile, Heller said, he will go forward with adopting ballot language for the marijuana, public employees and tax repeal measures so they are ready for the election.