Federal judge throws lifeline to pot initiative

Jace Radke and Cy Ryan

Friday, Aug. 13, 2004 | 3:10 a.m.

A federal judge today found Nevada's process for putting initiative petitions on the ballot unconstitutional, giving a petition that would allow adults to have an ounce of marijuana a chance to be on the November ballot.

U.S. District Judge James Mahan found unconstitutional the "13-county" rule that requires circulators to obtain signatures of 10 percent of the people who voted in the last election in at least 13 of the state's 17 counties. He also said the requirement that a person in addition to the circulator must sign an affidavit verifying the signatures was invalid.

Mahan cited the portion of the Constitution that requires that each person be entitled to one vote, and said the 13-county rule gives more weight to rural voters. The second affidavit, he said, was unnecessary. Only the circulator could verify that the signatures are valid, he said.

The federal judge issued a permanent injunction that prohibits the Secretary of State Dean Heller from nullifying votes based on those rules.

Heller, the state's chief election officer, said that all of the petitions that failed -- minimum wage, frivolous lawsuits, marijuana and public employees in the Legislature -- now would have to have 100 percent of their signatures verified.

Counties are already recounting the signatures on the "Axe the tax" petition, which would roll back an $836 million tax increase last year.

Mahan refused to order Heller to place the marijuana initiative on the ballot, saying that the the number of signatures would determine if it would qualify. Mahan also denied a claim in the lawsuit, filed by the Committee to Regulate and Control Marijuana and the American Civil Liberties Union of Nevada, that called into question whether someone who signs a petition can register to vote after signing.

That question will be appealed to the 9th U.S. Circuit Court of Appeals, said Matthew Brinkerhoff, an attorney representing the Committee to Regulate and Control Marijuana.

"I think there is a decent likelihood that we'll be able to find the signatures that we need," Brinkerhoff said.

Heller said this lastest ruling is "bringing us to our knees" in preparing for the election. "We're not killed yet but it took us out."

County clerks and registrars of voters must have an answer by Sept. 2 on which questions will appear on the ballot in order to have time to print the absentee and sample ballots for the general election in November.

Heller said he understood the ruling based on the one-person one-vote concept and he was surprised it was not challenged earlier. But he said the practical effect is that a petition could be circulated only in Clark County to send 100 percent of the state's revenue to Clark County and the rest of the state would not have any say.

The latest registration figures show Clark County has 547,722 of the state's 882,602 registered voters. To qualify an initiative petition this election 51,337 signatures are needed. So a petition drive would need less than 10 percent of the voters to sign it to get it on the election ballot.

He said he would have to meet with Attorney General Brian Sandoval to determine whether to appeal the decision to the 9th U.S. Circuit Court of Appeals.

Sandoval, reached in Chicago Friday, said he was surprised by the decision invalidating the 13-county rule. He said he had not seen or read the opinion and would meet with Heller when he returns Monday.