RULES ON INITIATIVE PROCESS UNCONSTITUTIONAL

Judge's Decision Requiring Signature Verification Puts Nov. 2 Election
in Peril, Some Say

Two rules governing the initiative process in Nevada were declared
unconstitutional Friday in a federal court case brought by supporters
of a measure that would make it legal to possess small amounts of marijuana.

The decision could affect other initiatives that had failed to qualify
for the Nov. 2 ballot and left officials concerned that the general
election is now in jeopardy.

In making the ruling, U.S. District Judge James Mahan stopped short of
ordering Secretary of State Dean Heller to place the marijuana
initiative on the November ballot.

"If you've got the signatures, then it's on the ballot," the judge
said.

Mahan struck down the "13 counties rule," which requires an initiative
to have signatures from at least 10 percent of the number of voters
who voted in the most recent general election in at least 13 of the
state's 17 counties. He also struck down a rule requiring a registered
voter to sign the initiative petition and sign an affidavit verifying
that others who signed the petition are registered voters.

The judge's decision prompted Heller to order verification of all
signatures in the eight counties, including Clark County, where
statistical sampling was used to verify signatures on not only the
marijuana petition but also on a petition that seeks to ban public
employees from serving in the Nevada Legislature. The counties have 12
working days, starting Monday, to verify the signatures.

Heller also ordered a full verification earlier this week of
signatures on a petition that seeks to repeal record tax increases
passed by the 2003 Legislature.

He said Friday's ruling has raised concerns among election officials
across the state that the Nov. 2 general election is now in peril.

"Local election officials have told me the decision puts the ballot at
risk with only 81 days until the general election," Heller said.

For larger counties, re-checking thousands of signatures on three
different petitions will be a huge undertaking, he said.

Clark County Registrar of Voters Larry Lomax, who attended Friday's
court hearing, said he already has hired 16 temporary workers to
verify signatures on the tax petition. He was making arrangements
Friday to hire an additional 20 temporary workers and reassign 10
existing county employees to verify signatures on the other two petitions.

Lomax said he fears that some counties will not be able to meet the
12-day deadline.

"We've just thrown too much on the counties, and they don't have the
resources to make it happen," Lomax said.

He said the additional verification is being required at a time when
workers already are busy preparing for the upcoming primary election.
Early voting begins Aug. 21.

"Laws that allow this to happen jeopardize our primary mission, which
is to conduct an election," Lomax said.

Heller said he believes the signature verification work will be done
in time, but it might require extra staffing and emergency funding in
some counties. Smaller counties are not affected because they already
check all signatures.

"We'll get through it, and we'll be better off because of it," Heller
said. "But it's hard to convince some of our election officers of that
right now."

Mahan's ruling came in response to a lawsuit and motion for injunction
filed July 27 by the American Civil Liberties Union of Nevada, the
Committee to Regulate and Control Marijuana, the Marijuana Policy
Project and several individual petition circulators and registered
Nevada voters.

Two weeks earlier, Heller had announced that supporters of the
marijuana initiative had failed to secure enough valid signatures to
qualify the measure for the ballot.

To qualify for the 2004 general election, the initiative petition
needed the signatures of 51,337 registered voters by June 15.
Initiative supporters said they gathered 66,000 signatures.

The lawsuit focused on three issues: the 13-counties rule, the rule
pertaining to affidavits, and the state's refusal to count the
petition signatures of those who simultaneously signed voter
registration applications.

Mahan sided with the state on the third issue, and the plaintiffs have
vowed to appeal that portion of his ruling as soon as possible to the
9th U.S. Circuit Court of Appeals in San Francisco.

Although the ACLU of Nevada supports the marijuana initiative,
executive director Gary Peck said its members "believe that these
rules are just as unconstitutional when applied to any other ballot
initiative in dispute."

"Like the judge, we were principally concerned with the integrity and
the fairness of the process," Peck said after the court hearing. "We
wanted to make sure that no eligible voter who signed the petition and
wanted the initiative on the ballot was denied the opportunity to be
heard."

Plaintiffs in the case argued that the state's 13-counties rule
increased the relative weight of voters' signatures in rural counties
while diminishing the relative weight of voters' signatures in urban
counties.

According to the plaintiffs' motion for an injunction, Clark and
Washoe counties have 87 percent of the state's total population. In
the 2002 general election, according to the document, 82 percent of
the state's voters came from the two counties.

"As a result of the '13-counties rule,' even though more people voted
to put the initiative on the 2004 ballot in Clark County than in any
other county in Nevada, Clark County's 'vote' did not count," the
motion alleged. "This is unfair, unequal and unconstitutional."

The 9th U.S. Circuit Court of Appeals recently struck down an Idaho
restriction that mirrored Nevada's 13-counties rule, and Mahan relied
on that decision in declaring Nevada's rule unconstitutional.

It is unclear whether the ruling could affect a measure pushed by Sen.
Sandra Tiffany, R-Henderson, in the 2000 election cycle to break up
the Clark County School District.

The measure failed to get on the ballot when it qualified in only 12
of 17 counties.

Tiffany already has a case in federal court seeking validation of the
measure based on the 9th Circuit's decision in the Idaho case. She
could not be reached for comment Friday.

Heller said the Idaho decision already is on appeal to the U.S.
Supreme Court.

At Friday's hearing, Mahan also declared what is known as the state's
"dual-affidavit rule" unconstitutional.

The rule requires petition circulators, who need not be registered
voters, to sign an affidavit indicating they believe all signatures
are valid.

If the circulator is a registered voter, that person also must sign
what is referred to as an "affidavit of document signer." If the
circulator is not a registered voter, then someone who signed the
document must sign the affidavit.

The plaintiffs claimed the requirement for a second affidavit serves
no valid purpose and poses an unconstitutional burden on the First
Amendment rights of circulators and citizens.

Mahan said the dual-affidavit rule has the effect of forcing petition
circulators to be registered voters. The U.S. Supreme Court has
determined that petition circulators need not be registered voters.

Friday's decision also could affect a state court ruling favoring
ballot measures that seek to raise the minimum wage and prohibit caps
on attorney fees.

Last month, Carson City District Judge Bill Maddox declared the
dual-affidavit rule unconstitutional. Heller, seeking clarification
from the Nevada Supreme Court, appealed the ruling.

In light of Mahan's decision, Heller said, state attorneys will
reconsider the decision to appeal Maddox's ruling. They also will
decide whether to appeal Mahan's decision on the 13-counties rule.

Meanwhile, Heller said, he will go forward with adopting ballot
language for the marijuana, public employees and tax repeal measures
so they are ready for the election.