CHANGING THE RULES MIDWAY: WHY PEOPLE HATE POLITICS

Imagine that you decided to get involved in politics to try to make
things better. You chose to circulate an initiative petition to put an
issue you cared about on the ballot. Election officials told you, "Get
51,337 valid signatures of voters." You and other volunteers went out
and got them and filed the petition by the deadline. Whereupon the
state attorney general said, "No, actually you need 83,156
signatures."

As it happens, we don't have to imagine. This is exactly what has
happened in the case of three initiative petitions whose fate now
hangs in the balance. All three may have qualified for legislative
review and the Nevada ballot, but it will take a court fight to
decide, which means that to all the other money people have had to
spend getting these petitions qualified will now be added legal fees.

An anti-smoking petition was registered with the state on March 17 by
the Nevada Tobacco Prevention Coalition (NTPC), which is backed by a
couple of dozen groups like the American Cancer Society.

A competing and more permissive smoking petition was registered with
the state on August 13 by the Smoke Free Coalition (SFC), which is
reportedly backed by bars and casinos and slot route operators.

A pro-marijuana petition registered with the state on September 27 by
the Committee to Control and Regulate Marijuana, which is backed by
the Marijuana Policy Project (MPP).

Under the law, if the petitioners gathered enough signatures, the
petitions would go first to the Nevada Legislature at the 2005
session. If the lawmakers failed to enact them, the petitions would
then go on the 2006 ballot for the voters to decide. The deadline for
submitting signatures for all three petitions was November 9.

What's at issue is how many signatures must be on the petitions for
them to qualify for legislative review and the ballot. The Nevada
Constitution says "the total number of registered voters signing the
initiative petition shall be equal to 10 percent or more of the voters
who voted in the entire state at the last preceding general election."
Since the petitions were all registered before the November 2, 2004
election and most of the signatures gathered before that date, county
and state election officials told the petitioners to collect 51,337
signatures - 10 percent of the number of voters who went to the polls
in the 2002 election (513,370 Nevadans voted in 2002.) A handbook
provided by the Nevada secretary of state's office said the same thing.

Acting on that advice, the three organizations gathered that number
plus enough for a protective cushion as a hedge against signatures
that might be disqualified. NTPC submitted 77,000 signatures (64,828
were adjudged valid), SFC turned in 93,000 (74,347 valid), and MPP
submitted 84,000 (69,261 valid). All three appeared to have the
necessary signatures to qualify for the ballot.

But then Attorney General Brian Sandoval ruled that the benchmark must
be not the midterm 2002 election but the presidential-year 2004
election in which Nevada's voter turnout saw its first substantial
upturn in many years - 831,563 voters cast ballots. Under Sandoval's
ruling, 83,156 signatures would be needed.

It's exactly the kind of game playing that makes people hate politics,
and the three groups are entitled to their anger. NTPC and MPP have
announced plans to challenge Sandoval's ruling in court (the third
group has decided to stand aside but will probably benefit from any
ruling won by the first two).

Case law has generally held that where an initiative petition seeks to
change the Constitution, a petition must be in "strict compliance"
with the law, while petitions seeking to change or add statutes must
merely be in "substantial compliance" with the law. All three
petitions propose statutory change. There are no available court cases
on the issue of what remedies (or sanctions against officials) are
available when a petition fails because the government misleads
petitioners.

Most of the discussion of this mess has focused on the mechanical
details of what went wrong, not on systemic problems. Discussion of
the details has its place - this is not, for instance, a case of the
old warning to state workers not to give legal advice.

The number of signatures needed for a petition is more basic than
that. Petitioners should be able to find out that piece of information
without hiring a lawyer.

But there is much also to be learned about what's wrong with the
election system that made this happen.

One big factor, for instance, is the centralization of elections that
has been happening in Nevada for many years. At one time, most of the
job of running elections was left to county clerks. But over the last
quarter century the Nevada Legislature has directed that things start
going vertical, through the secretary of state, often with unforeseen
consequences for policy.

Until 1987, for instance, each county clerk designed his or her own
voter registration form. In that year, the secretary of state was
given the authority to mandate a single form, with the result that
every county started collecting from voters the keys to their personal
privacy - their social Security numbers.

In the current case, I can guarantee that if 17 county officials had
been consulting 17 different deputy district attorneys to find out how
many signatures were needed for a petition, the problem with 2002
versus 2004 would have surfaced a lot sooner than after the deadline.
Frequently, bureaucratic duplication is our friend.

The same thing is happening in many fields. Nevada's decentralized
criminal justice system, for instance, is slowly weakening county
prosecutors while beefing up the authority of the state attorney general.

Some of these changes may be perfectly valid, but others may be made
or perpetuated simply because they sound good or fit someone's dogma.
It would be helpful if the Legislature revisited some of them when
incidents like the three petitions come along.