Signature rule to qualify ballot measures challenged

CARSON CITY -- A new state law requiring signatures from registered voters in all 17 counties in order to qualify measures for the ballot is being challenged in federal court.

The American Civil Liberties Union of Nevada joined citizen activists to file the challenge in U.S. District Court in Las Vegas on Thursday, saying the requirement is unfair to ballot measure proponents and gives voters in rural areas of the state more political influence than residents of the more populous Clark and Washoe counties.

Getting a ballot measure qualified is difficult and costly enough without having unconstitutional impediments thrown in the way as well, ACLU Executive Director Gary Peck said.

"It's a waste of taxpayers' money and it's unfair to the proponents of these ballot measures," he said.

The Marijuana Policy Project, which has tried unsuccessfully several times to win voter approval for measures dealing with the drug, and Kermitt Waters, a Las Vegas attorney who is pushing two measures for the November ballot to raise state gaming taxes and eliminate property taxes for homeowners, joined the complaint.

The groups contend that the requirement is worse than the previous requirement to collect signatures in 13 of the state's 17 counties.

That requirement was thrown out by the 9th U.S. Circuit Court of Appeals as a violation of the "one man, one vote" rule. That ruling allowed those proposing ballot measures in 2006 to collect all their signatures in just one large urban area such as Clark County.

The new formula requires signatures to be collected based on 10 percent of Nevadans who voted in the previous general election multiplied by the percentage of a county's share of the statewide population in each of the 17 counties.

Peck expressed disappointment that the Legislature would enact what he said is an obviously unconstitutional requirement to qualify ballot measures.

"It's the same old law dressed up in different language," he said. "I appreciate their desire to ensure that all parts of the state should be able to weigh in on important ballot initiative questions. But there are ways to do that that are constitutional."

Allen Lichtenstein, the ACLU's general counsel, said lawmakers were told in 2007 that setting signature requirements by congressional districts, which are required to be roughly equal in population, would be one constitutional way of giving rural residents some say in the petition process.

But giving a registered voter in Esmeralda County more say in qualifying an initiative petition for the ballot than a Clark County resident is clearly unconstitutional, he said. That's because few people in one rural county can thwart the wishes of many more people in a larger county.

"I think the court will resolve the matter quite quickly," Lichtenstein said. "The law is clearly on our side."

State Sen. Dean Rhoads, R-Tuscarora, concerned that rural voters would be bypassed in the effort to qualify measures for the ballot, pushed for the new law, which was approved by the Legislature in 2007.

Rhoads could not be reached for comment Thursday on the filing of the complaint, but said several months ago that the new measure should be able to withstand a challenge because it is based not on some arbitrary number, but the actual population of each county using the 2000 census.

"The idea is to give rural counties the chance for input," Rhoads said in the interview in August.

But the complaint says the new rule has the same constitutional problems as the previous measure, and is actually more onerous.

"Once again, Nevada's geographic distribution rule dilutes the will of residents in densely populated counties such as Clark and Washoe counties, and favors the desires of residents in rural counties such as Esmeralda and Eureka counties," it states.

The complaint names Ross Miller, who as secretary of state has the duty of enforcing Nevada's election laws.

Neal Levine, director of state campaigns for the Marijuana Policy Project, said the group worked successfully to overturn the previous rule requiring signatures in 13 of 17 counties that was in place in 2004. Between 2004 and 2007, ballot measure proponents could get their signatures anywhere they wanted, and the rural counties didn't even have to be involved.

"They've just put a different shade of lipstick on the same old pig," he said. "It is an anti-democratic move designed to take a voice away from the people."

Nevada is facing problems with its budget and now will have to spend scarce money to defend an unconstitutional law, Levine said.

The marijuana group is not planning an initiative for the 2008 general election, but it will propose a new initiative someday and the rule will make qualifying it for the ballot more difficult, Levine said.

"We think we're ready to win this thing," he said.

Waters said the law is clearly designed to keep citizens from putting proposals before the voters.

"The power brokers who run this state don't want initiatives from the people," he said.

Other measures are also being pushed by various groups for the November ballot and would be affected by whether the new requirement is upheld. They include proposals to freeze property taxes, another measure to raise gaming taxes and one to regulate tip sharing.

To qualify a petition for the ballot under the new law, a group would have to collect 40,364 signatures of registered voters in Clark County. The number is derived from the total voter turnout in 2006, which was 58,627, multiplied by the county's share of the population of about 69 percent, according to the 2000 census.

Using the same formula for Lincoln County, the 10 percent of the vote in 2006 would be multiplied by 0.002 percent, the county's share of the state population, making the signature requirement 123.

But failing to get the 123 signatures in Lincoln County, for example, would render the proposed petition invalid no matter how many signatures were gathered in other counties.

Lichtenstein said that is why the new law should be rejected by the federal court.

Contact Capital Bureau reporter Sean Whaley at swhaley@reviewjournal.com or (775) 687-3900.