DEMOCRACY IN PERIL

Up in smoke: Now that's just a bummer. An anti-smoking group works all
year to qualify an initiative petition for the ballot that would ban
smoking almost everywhere in Nevada, but then, at the last minute, it
falls into a legal black hole from which there appears to be no escape.

And black holes being what they are, a couple of other petitions got
sucked in, too, one that would largely preserve the status quo on
smoking rights and another to legalize up to an ounce of marijuana.

Here's the deal: Under the state constitution, petitions must get
signatures in the amount of at least 10 percent of the votes cast in
the "last preceding general election."

Now, until Nov. 2, the "last preceding general election" was held in
2002, when 513,370 people voted, 10 percent of whom equals 51,337.

Unfortunately, none of the three initiatives was turned in until after
this year's election, when a record turnout saw 831,563 voters come to
the polls, 10 percent of whom equals 83,156.

So which number do we use? According to the attorney general's office,
the bigger number. And that's bad for all three petitions, which got
more than 51,337 valid signatures, but less than 83,156.

Lawyers in the AG's office cite the 1994 state Supreme Court case of
Foley vs. Kennedy, which found that a recall petition announced before
a general election but filed after that election was nonetheless
subject to verification under the higher number set in the most recent
election.

In 1992, the Arizona Supreme Court took on the issue, too, and found
that "the alternative, however, would be to allow referendum
proponents to rely upon outdated election results to determine the
number of signatures required even though current election results are
available." Justices added that "persons of ordinary intelligence and
discretion could well conclude that some uncertainty as to the number
of signatures required is preferable to permitting a
disproportionately small number of electors to delay the wishes of the
majority." In other words, plan ahead, stupid.

The Nevada attorney general's analysis, which Secretary of State Dean
Heller will use to reject all three petitions, is fraught with at
least one pregnant question: Suppose the rabid anti-smokers had gotten
their petition in on Nov. 1, one day before the election, and the
status quo smokers petition had been filed Nov. 3, one day after the
election. (Actually, that's precisely when it was filed.)

Would the anti-smokers have to come up with only 51,337 valid
signatures while the status quo smokers would be held to the higher
83,156?

Under the interpretation, it appears the answer is yes, and that would
have opened a big old can of 14th Amendment equal protection worms.
It's not entirely clear, in fact, if that can will stay closed should
the anti-smoking or marijuana legalization groups decide to sue. (The
status quo group is no doubt happy with the results, since smoking
laws will remain unchanged.) What a difference a day makes, eh?