Sep. 30, 2008
Copyright © Las Vegas Review-Journal

Judge throws out law requiring petitions signed in all counties

By ED VOGEL
REVIEW-JOURNAL CAPITAL BUREAU

A federal judge struck down a state law on Monday that petitioners claimed hampered their efforts to put statewide ballot measures before voters.

U.S. District Judge Philip Pro declared unconstitutional the law that required petition circulators to collect a specific number of signatures in each of Nevada's 17 counties.

That requirement violated the Equal Protection Clause of the 14th Amendment of the U.S. Constitution because it "favors residents of sparsely populated counties over residents of densely populated counties," Pro ruled.

To qualify for this year's ballot, petitioners needed to collect signatures from at least 10 percent of the Nevadans who voted in the previous general election, and a proportion of those signatures had to be collected from each county based on its share of the statewide population.

That meant they needed to collect 58,628 signatures statewide to put a petition on November's ballot, but at least 40,364 of those signatures had to come from Clark County while only 29 were needed from Esmeralda County.

In other words, petitioners could collect hundreds of thousands of signatures in Clark and other counties, but their measure would not qualify for the ballot if they failed to collect the minimum in Esmeralda County.

The Marijuana Policy Project, the American Civil Liberties Union of Nevada and several residents, including Henderson lawyer Kermitt Waters, challenged the constitutionality of the so-called 17-county law.

While petitioners complained that the law made their work more difficult, none of the petitions circulated in the spring failed to make the November ballot because of the requirement.

Instead judges ordered them off the ballot because circulators failed to follow other laws, specifically one requiring them to sign affidavits stating they saw people sign the petition, gave them a chance to read the entire petition and counted the number of signatures on the petitions.

None of 12 petitions to amend the constitution that were circulated this year qualified for the November ballot.

Pro's decision is not expected to affect a petition now being circulated by the Nevada State Education Association. NSEA President Lynn Warne said her organization already has gathered enough signatures and met the now-unconstitutional requirement in each of the 17 counties.

The union wants to amend state law and increase the room taxes paid in Washoe and Clark counties by 3 percentage points. The group has until Nov. 11 to collect signatures.

If the petitioners succeed, the room tax proposal would be placed before legislators at the 2009 session. If it is rejected by lawmakers, it would then go on election ballots in 2010.

In making the decision, Pro noted the formula to qualify petitions had been approved by the 2007 Legislature and was "virtually identical" to an earlier formula that already had been declared unconstitutional by federal judges.

Neal Levine, director of state programs for the Marijuana Policy Project, was more blunt, calling the new formula "a different shade of lipstick on the same old pig."

He said it gave voters in the smallest counties as much as 1,000 times the clout of those in Washoe and Clark counties.

While his group did not circulate any initiative petitions during this year's cycle, it placed a question to legalize up to 1 ounce of marijuana before voters two years ago. That proposal received 44 percent of the vote. A marijuana petition circulated in 2004 failed to secure enough signatures to be placed on the ballot.

Kermitt Waters said he was pleased by Pro's decision, but does not yet intend to recirculate a petition that would have tripled the state's 6.75 percent gaming tax.

He said petition gathering is still hampered by another state law that limits petitions to a single-subject. Another lawsuit by Waters on that matter is pending in federal court.

Waters said he might circulate a petition to change state law and allow a business tax on companies making more than $2 million in revenue.

ACLU lawyer Allen Lichtenstein said his organization warned the Legislature that the 17-county plan was unconstitutional and passing it would be a "tremendous waste of resources and taxpayers' money."

Contact Capital Bureau Chief Ed Vogel at evogel@reviewjournal.com or 775-687-3901.                                                                                                                        [up]