Tuesday, Sept. 21, 2004 | 11:02 a.m.
Unless the Nevada Legislature makes reforms to the referendum and initiative process, local and state voting officials say litigation will become commonplace for future ballot questions.
Even with such reforms, some officials say the wave of the future appears to be for the party on the losing side of a debate surrounding a ballot question to head for the courts.
"Ballot questions today are highly funded, organized efforts by special interest groups that have a lot of money to spend on lawyers to challenge decisions they lose," said Clark County Registrar of Voters Larry Lomax.
Former Nevada Assemblyman and ex-State Sen. Alan Glover, the clerk-recorder for Carson City since 1987, said, "I believe there will be litigation on almost every question from now on. It will become part of the process."
Election officials say that because of litigation regarding several questions this election season they already have missed their deadlines for getting absentee ballots distributed and likely will miss getting sample ballots to voters before early voting begins on Oct. 16.
A decision by the Nevada Supreme Court on Saturday, which caused the secretary of state's office to rewrite Ballot Question 3 (tightening of medical malpractice laws), has rendered useless 140,000 Clark County absentee ballots that were printed and set to be mailed to voters on Monday.
The potential filing of lawsuits over the wording of two other questions on the Nov. 2 general election ballot -- Question 4 (insurance rate reduction) and Question 5 (stopping frivolous lawsuits) -- caused Lomax to hold off Monday on correcting and reprinting the 288 versions of his bi-lingual mail-in local ballots.
"Reprinting is an expensive process," Lomax said, noting that he estimates it will cost Clark County $500,000 more than it planned to spend because of the need to reprint ballots with newly-worded Question 3 -- more if other ballot questions need to be changed in coming days.
"But we cannot wait too long because it takes seven days to print new ballots."
Glover said he has not yet had his absentee ballots printed and as of Monday was running four days late in that process.
"I hope I can get them printed and out by Friday," he said. "I can tell you our printer is panicky and I'm getting near that point."
The secretary of state's office and the attorney general's office worked 15 hours Saturday to repair what the Supreme Court said was misleading language on Question 3. The court also gave them the option to simply kill the question.
As a result, the newly worded question is three times longer than what was slated to go out to absentee voters this week. On top of that, opponents of the measure, Nevada's trial attorneys, late Monday challenged the newly worded question -- a move that could further delay the ballot-printing process.
Secretary of State Dean Heller said the court's decision coupled with the attorneys' latest action has sent a clear message to him to either kill Question 3 or it will be "litigated to death" -- a tactic he believes may be used to stifle future ballot issues.
"This shows what a litigation-happy society we have become," said Heller, who has an 18-year-old daughter at Arizona State University who plans to vote absentee in November -- assuming that a ballot is sent to her in time.
"All someone has to do is find a judge who is sympathetic to their cause and they can change decisions regardless of what the law says."
Election officials say that given such a situation they are unable to obey both the federal policy that requires them to get absentee ballots distributed 45 days before an election and the last-minute court decisions.
For example, Lomax said there is "no way" he can wait until October for a potential U.S. 9th Circuit Court of Appeals hearing on a disallowed ballot question for the legalization of marijuana and get it on any ballot.
Heller, however, said regardless of logistics problems courts can order election officials to send to voters late addendums modifying ballot questions.
Supporters of the marijuana measure are clinging to their hope that a decision from the San Francisco-based federal appeals court will force election officials to somehow get their question before the voters.
Jennifer Knight, spokeswoman for the Committee to Regulate and Control Marijuana, the group that is pushing for the legalization of small amounts of pot, says it has every right to seek every legal remedy to get its issue on the ballot.
"It's our duty to fight the state if we feel the state made a wrong decision that could disenfranchise about 60,000 voters who signed petitions that they wanted to see this question on the ballot," she said.
"There would have been no harm for Nevada to put our question on the ballot because it still would have to be approved by the voters. But instead of giving voters a chance to address it they silenced it."
Election officials threw out many marijuana petition signatures of newly registered voters because petitioners did not submit the completed registration forms to election departments on the day people registered, in accordance with state law. That left the committee 1,900 names short of getting on the ballot.
A three-judge panel ruled against the petitioners, resulting in the committee asking the 9th U.S. Circuit Court of Appeals to review the constitutionality of the rule. A hearing date has not yet been set.
Knight said the state's laws regarding ballot questions lack consistency, especially from county to county.
"The challenges (to questions) in this election cycle have brought out a lot of flaws that need to be dealt with by the Legislature," Knight said.
As for election officials facing time constraints in their efforts to get issues on the ballot, Knight said if judicial review finds the state was at fault then "the onus is on the state" to get the matter before the voters.
Glover, who is regarded as an expert on Nevada's voting history, said no general election dating to the 1800s has been this contentious regarding litigation of ballot questions.
Guy Rocha, Nevada archivist and historian, agrees.
"This is a contemporary issue," Rocha said. "You will not find examples of this (type of litigation) much in history -- certainly not the 19th century or during much of the 20th century.
"Legal questions are being raised today because there are more issues and more at issue. Nevada, much like California, is becoming government by referendum. As a result, more people are using and challenging the process."
Glover said the Legislature "must deal" with the issue of ballot question reform, including determining when signatures count and when they don't.
"The signatures will have to be submitted earlier in the process so there is time to add the step of litigation," he said, recommending that the deadline for petitions be moved from June to March.
Lomax called the situation election officials now face "absurd," and says it likely won't change even if election laws are reformed.
"There already are laws that address the issues, but the problem is the courts do not have to abide by the deadlines that are set for us (printing and distributing ballots)," he said.
Glover said one potential law change that could get ballots out to voters in a more timely manner is to require attorneys to litigate the constitutionality of ballot questions after elections.
Heller said given the current climate, it might be an option to "err on the side of the voter" with such a policy.
Another solution, Glover said, would be to limit the grounds upon which someone can challenge ballot questions and election department decisions.
archive
