NUMBERS GAME

Supporters of three initiative petitions celebrated getting on the
ballot--until Nevada's attorney general found a new way to count the signatures

Three initiative petitions may have qualified for legislative review and
the Nevada ballot, but it will take a court fight to decide.

The petitions:

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

* A more permissive smoking petition registered with the state on Aug. 13
by the Smoke Free Coalition (SFC), backed by bars and casinos.

* A pro-marijuana petition registered with the state on Sept. 27 by the
Committee to Control and Regulate Marijuana, 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 Nov. 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 registered before the Nov. 2 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 groups 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 announced that the benchmark isn't
the midterm 2002 election but the 2004 presidential election, in which
Nevada's voter turnout saw its first substantial upturn in many
years--831,563 voters cast ballots. Under Sandoval's view, 83,156
signatures would be needed.

The three groups, not surprisingly, are outraged by having the rules
changed after the game was over. "Attorney General, Secretary of State
Change Rules to Bar Initiatives" was the headline posted on MPP's Web page.

"We were totally blindsided by them springing the 2004 requirement on us,
as were the anti-tobacco people," says Bruce Mirkin of MPP.

Left uncertain is whether the petitions would have qualified if they had
been submitted early--before the Nov. 2 election. The election returns did
not become final until Nov. 23.

Two of the three petitioners--NTPC and MPP--have announced plans to
challenge Sandoval's ruling in court. 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 remedy--or sanctions against officials--is
available when a petition fails because the government misleads petitioners.

The litigants are expected to argue that a law requiring petitioners to
gather signatures on the basis of a future election makes it impossible to
know how many signatures to collect.

Neal Levine, Washington, D.C., spokesperson for MPP, says that he also
expects his attorneys to argue that his group was deprived of due process.

"We were told, 'These are the rules. This is what you have to do.' We
conformed to it, and when it was all said and done, they said, 'Uh--no.'
And they changed the rules."

In fact, it wasn't just the rules that were changed after the game was
played. It was also the score.

Levine says one indication of how thoroughly established the official
position in favor of the 2002 numbers was can be seen in the fact that as
late as Nov. 19--17 days after the election--the Secretary of State's
Office sent the NTPC petition to county clerks for signature verification.
If the 2004 numbers had been the standard, the petition would have been
ruled off the ballot without a verification process, since its 77,000
signatures clearly fell short.

Left in the lurch are the volunteers who worked on the petition drive.
While some paid signature gatherers were used, ordinary citizens also
collected signatures.