Thursday, Sept. 9, 2004 | 11:20 a.m.
The initiative to legalize small amounts of marijuana was dealt a potentially fatal blow Wednesday when a federal court ruled that thousands of the signatures petitioners collected did not count.
The ruling, by a three-judge panel of the 9th Circuit Court of Appeals, upheld by a vote of 2-1 a lower court's decision that some signatures were invalid because the signers were not registered to vote at the time they inked the forms.
The ruling, if it stands, would also end the hopes for the group pushing the "Axe the Tax" petition, which would roll back last year's tax increase. The tax petition fell short of the required number of signatures and backers pinned their hopes on the marijuana case.
"It's very bad for us," Joel Hansen, attorney for the tax petition group, said of the court's decision. "We still have some legal avenues, but it's not looking real bright."
Even if the court decision had gone the other way, however, the tax petition still would have been 1,601 signatures short according to the state's count, Hansen said.
Marijuana initiative's backers decried the decision as unfair to voters. They said they hoped to fight the decision, but admitted it might be too late.
"We haven't exhausted our legal options, but this puts the initiative in great peril," said Jennifer Knight, spokeswoman for the initiative group, the Committee to Regulate and Control Marijuana.
Knight said the group would decide by Friday whether to request that the matter be examined by a larger group of judges, known as an en banc panel.
The ruling invalidated more than 2,000 signatures on the marijuana petition; the petition needed about 1,900 more valid signatures to get on the ballot.
By law petition signers must be registered voters in Nevada. When canvassers for the marijuana petition found residents who supported the initiative but were not registered to vote, they offered voter registration forms.
But the courts upheld the statutory rule that the signers were not considered registered voters until their registrations were received by their counties' election departments, sometimes days after they signed the petition.
"This requirement does not restrict speech," Judges Thomas Nelson and Andrew Kleinfeld wrote. "What it restricts is the power of persons not registered to vote to change the laws passed by the voters' duly elected representatives."
However, Judge Harry Pregerson argued in a lengthy dissent that the signers' rights to free speech and equal protection were violated. The registration rule, Pregerson said, stifled citizens' ability to express their views and treated some eligible voters differently than others.
Because of the rule, Pregerson wrote, "the (petition) circulators are thwarted from effectively engaging eligible citizens who support the initiative (but who are not yet registered to vote) during evenings, on Sundays, or holidays because the envelope containing the voter registration form will not be postmarked (or personally delivered) on the date it was signed."
The state chapter of the American Civil Liberties Union, which has sided with the petitioners' legalization push as well as their battles with election officials, lambasted the legal requirement and the court's decision.
"We care about ensuring that every single eligible Nevada voter who wants to be heard is heard, not silenced by a rule that makes no sense whatsoever and that impinges on fundamental constitutional rights," Nevada ACLU Executive Director Gary Peck said.
In earlier decisions, the court struck down two other rules for petition-gatherers: one requiring submitted signatures to be accompanied by affidavits, signed by registered voters, testifying to their authenticity; and another mandating that the total number of signatures include 10 percent of the voters in 13 of the state's 17 counties.
Renee Parker, chief deputy secretary of state, expressed relief that the court didn't strike down yet another petition requirement. "It's one of the few state (election) laws that have been upheld in the last few months," she said.
Clark County Registrar of Voters Larry Lomax said Nevada's counties are looking to the Secretary of State's office for guidance after a contentious round of petitions has left the initiative process in turmoil.
"We seem to have a lot of people out there who want to keep suing when they don't get their way, or when they don't get enough signatures," Lomax said.
Lomax said the county planned to start printing ballots for the November election during the weekend of Sept. 18.
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