MARIJUANA PROPOSAL: ACLU SUES, TRIES TO SAVE INITIATIVE

Group Alleges Unreasonable Restrictions

The American Civil Liberties Union of Nevada and supporters of the
marijuana-regulation initiative filed a federal lawsuit Tuesday that seeks
to restore the measure in time for this year's general election.

Accompanying the lawsuit was an emergency motion for a court order that
would force Secretary of State Dean Heller to place the initiative on the
November ballot.

Although more than 66,000 registered voters signed petitions for the
initiative, according to the motion, officials are preventing the measure
from appearing on the ballot "based on a raft of unreasonable, purposeless
and unconstitutional restrictions."

To qualify for the 2004 general election, the initiative petition needed
the signatures of 51,337 registered voters by June 15.

Heller announced two weeks ago that supporters of the initiative, which
seeks to legalize possession of small amounts of marijuana, had failed to
secure enough valid signatures to qualify the measure for the ballot.

Steve George, Heller's spokesman, said officials at the secretary of
state's office needed more time to review the lawsuit before commenting on it.

"I'm quite sure that we will put together a very good argument against the
lawsuit, but I can't speak to the merits of it at this time," George said
Tuesday.

The ACLU of Nevada filed the complaint with the Committee to Regulate and
Control Marijuana, the Marijuana Policy Project and several individual
petition circulators and registered Nevada voters.

Gary Peck, executive director of the ACLU of Nevada, said his organization
has been involved in litigation and public advocacy on ballot initiative
questions.

"Our prior involvement has included the support of people whose petitions
we both agree and disagree with," Peck said. "What is paramount for us is
the integrity of the process. We want to make sure that the rights of the
voting public are properly respected and no one is unlawfully
disenfranchised. In this case, we actually support the legalization of
small amounts of marijuana."

The lawsuit focuses on three issues:

*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.

*The rule requiring a registered voter to sign the petition and sign an
affidavit verifying that others who signed the petition are registered voters.

*The state's refusal to count the petition signatures of those who
simultaneously signed voter registration applications.

According to the emergency motion filed Tuesday, 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.

"Given this remarkable disparity in voter turnout among counties, the
effect of the '13 counties rule' is to dramatically increase the relative
weight of the signatures of voters in rural counties and diminish the
relative weight of the signatures of urban voters," the motion alleges.

According to the document, the 9th U.S. Circuit Court of Appeals in San
Francisco recently struck down an Idaho restriction that mirrors Nevada's
"13 counties rule." Nevada is part of the 9th Circuit.

"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 alleges.
"This is unfair, unequal and unconstitutional."

According to the motion, Heller 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 motion alleges the document signer rule serves no valid purpose and
poses an unconstitutional burden on the First Amendment rights of
circulators and citizens.

According to the motion, petition circulators gathered 35,409 signatures in
Clark County, 4,049 more than required under the '13 counties rule."

But Heller concluded that nearly 18,000 of those signatures were invalid,
according to the motion, because they were contained in documents in which
a circulator signed both the affidavit of circulator and affidavit of
document signer but did not sign the document as a supporter.

"The initiative is not the only initiative petition to suffer from the
secretary of state's strained view of what the law requires for qualifying
initiatives," according to the emergency motion.

Heller also disqualified thousands of signatures gathered in support of
petitions to raise the minimum wage and stop frivolous lawsuits.

A state court judge later declared the requirement for an affidavit of
document signer unconstitutional under the First Amendment and ordered
Heller to count those signatures as valid.

According to the lawsuit in the marijuana case, the Clark County Election
Department disqualified signatures in a random sample because it said the
signatures were placed on the petition before the signers had registered to
vote.

In those cases, the lawsuit alleges, the petitions and voter registration
forms were signed at the same time. The state's refusal to count the
signatures violates due process, according to the lawsuit.

The lawsuit alleges Clark County officials had given assurances that such
signatures were valid.

New York attorney Matthew Brinckerhoff, one of the plaintiffs' attorneys,
was in Las Vegas on Tuesday.

"This is a case that all the citizens of the state of Nevada should care
about, because ultimately it's their right to choose to make new law, and
that right has been stripped from them without any rational justification,"
the attorney said.