AG wants suit on marijuana initiative dismissed

Monday, Aug. 9, 2004 | 11:19 a.m.

CARSON CITY -- The state attorney general's office has filed a motion asking the U.S. District Court in Las Vegas to dismiss a suit that seeks to get the marijuana initiative petition on the November ballot.

The motion, filed Friday, argues that a section of the Nevada Constitution defining signature requirements for an initiative petition is valid and an Idaho court case decision does not apply in this state.

U.S. District Judge James Mahan has issued a temporary restraining order stopping Secretary of State Dean Heller from taking further action on the petition to allow adults to possess and use one ounce of marijuana. He will hear oral arguments Friday.

In order to qualify for Nevada's ballot, an initiative petition must have the signatures of 10 percent of the voters and 10 percent of the voters in 13 of the state's 17 counties.

The groups are also challenging the disqualification of petition signatures obtained from people who registered to vote at the same time. A third challenge is based on the state's enforcement of the dual affidavit rule.

The Committee to Regulate and Control Marijuana, the Marijuana Policy Project and the American Civil Liberties Union of Nevada are challenging the section requiring that 10 percent of the voters are required in 13 of the 17 counties.

They refer to a decision by the 9th U.S. Circuit Court of Appeals in an Idaho case that required an initiative petition to have six percent of the signatures of the qualified voters in the state including six percent of the qualified voters in each of at least half of Idaho's 44 counties. The appeals court invalidated that requirement.

It said, "Because some of Idaho's counties are far more heavily populated than others, an initiative that is popular primarily with voters in sparsely populated counties can reach the ballot with support of many fewer voters than can an initiative that is popular primarily with voters in densely populated counties."

Those in support of the marijuana petition cite that case as precedent for tossing out the 13-county requirement in Nevada.

Assistant Solicitor General Richard Linstrom and Senior Deputy Attorney General Victoria T. Oldenburg say the Idaho case is different than the Nevada issue.

"Unlike Idaho, only two counties in Nevada, Clark and Washoe, are regularly populated by the vast majority of Nevada's registered voters."

In June this year, the two counties held 85 percent of the registered voters.

"Because Clark County and Washoe County hold such a huge percentage of Nevada's registered voters, a statewide initiative that is popular with registered voters in Nevada's two largest counties could reach the ballot without the support of any of Nevada's other 15 sparsely populated counties," wrote Linstrom and Oldenburg.

They said if the requirement for 10 percent of signatures in 13 counties is struck down, the two major counties "could completely control the statewide initiative process. Preventing one or two counties from completely taking over statewide initiatives is certainly a compelling state interest, and the 13-county rule is narrowly tailored to serve that interest."

The marijuana petition was also found to be defective and 17,872 signatures were not counted in Clark County because some of the petition document affidavits were not signed by registered voters. In the case of two other initiatives, a District Court judge in Carson City ruled that requirement was invalid.

The secretary of state's office added those 17,872 signatures back to the petition in Clark County, but the petition was still 4,629 signatures short.