The American Civil Liberties Union of Nevada and the Marijuana Policy Project (http://www.mpp.org) filed a lawsuit in federal court Tuesday seeking to force Nevada officials to count signatures they had excluded for various reasons from the valid signature count. MPP and its local affiliate, the Committee to Regulate and Control Marijuana (http://www.regulatemarijuana.org), had gathered some 66,000 signatures for their initiative to make marijuana a regulated, non-criminalized commodity for adults. They needed 51,337 valid signatures representing at least 10% of voters in 13 of the state's 17 counties. Secretary of State Scott Heller announced two weeks ago that the signature-gathering effort had failed.
The lawsuit includes an emergency motion for a court order to force Secretary of State Heller to certify the initiative for the November ballot. The motion accuses Nevada officials of using "a raft of unreasonable, purposeless and unconstitutional restrictions" to prevent the measure from getting on the ballot.
"We are beginning to feel this is not all just a coincidence," said Bruce Mirken, MPP's director of communications. "Many thousands of voters have been effectively disenfranchised," he told DRCNet. "However you feel about marijuana, that should not happen."
A spokesman for Heller told the Las Vegas Review-Journal that the secretary of state's office needed to study the lawsuit. "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," the spokesman said Tuesday.
"There are three major issues at play in this suit," said Mirken. "One of them has to do with the 13 counties rule. It has already been thrown out by the 9th Circuit Court of Appeals. We are astonished that Nevada has not attempted to adapt itself to that ruling," he told DRCNet. "The way the rule is written, a signature from Clark County (Las Vegas) carries only a third of the weight of one from Washoe County (Reno) and one-eighteenth of the weight of a signature from Carson County. Voters are being discriminated against based on their county of residence," Mirken argued.
"Our argument on the 13 counties rule is primarily an equal protection argument, explained attorney Sarah Netburn of the New York firm of Emery Celli Brinckerhoff & Abady, which, along with the Nevada ACLU, is representing MPP. "The 9th Circuit Court of Appeals has already affirmed a lower court decision challenging a similar statute in Idaho, so we hope that the court here will feel bound by the precedent," she told DRCNet. "We are arguing that the one person one vote rule bars state laws that give different weights to voters. With the 13 counties rule, where petitioners must get 10% of the number of voters who voted in the last election in 13 of the state's 17 counties, an unequal weight is given to your signature based on the county you live in," she said.
"The second issue is the rule requiring a second affidavit on each petition booklet," said Mirken. "This is nothing more than a backdoor way for the state of Nevada to try to enforce a rule that has already been thrown out by the courts in another initiative this year. We lost 20,000 signatures because of this rule," Mirken said.
"This is primarily a First Amendment issue," said Netburn, "and it has to do with burdening your right to participate in elections. The US Supreme Court held in a 1999 case that you can't require circulators to be registered voters in the country where they are circulating petitions. The Nevada constitution had a similar provision, which everyone expected to be struck after that ruling, but instead the secretary of state decided to require two affidavits on each petition. If the circulator was registered in that county, he can sign the second affidavit, but if not, someone who signed the petition must instead sign the second affidavit. We have cases where the circulator signed one affidavit, but not the other, and as a result, the secretary of state disqualified entire booklets of signatures," she explained.
"Finally, and most egregiously in terms of showing bias, Clark County threw out the signatures of thousands of voters who signed registration forms at the same time they signed the petitions," said Mirken. "This is not unusual at all. You always register new voters and get them to sign your petitions. Our people worked closely with Clark County officials and were repeatedly reassured that those signatures would be fine, but because of administrative delays in adding those new voters to the rolls, the state has concluded they were not registered voters," he explained. "I'm sorry, but that's just crazy."
"This is also a First Amendment claim," said Netburn. "You just can't burden fundamental rights that way. These are plainly registered voters, now and when the signatures were counted. There is also a due process claim because we repeatedly consulted with Clark County authorities and they verified they would accept the new voter signatures."
The Nevada ACLU has joined in both because it has been involved in litigation on ballot initiative questions and because it supports this initiative, said Gary Peck, executive director of the ACLU of Nevada. "Our prior involvement has included the support of people whose petitions we both agree and disagree with," Peck told the Review-Journal. "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 is enfranchised. In this case, we actually support the legalization of small amounts of marijuana."
The litigants are seeking a quick ruling, said Netburn. "The judge set a hearing date for August 13, but we filed a motion Thursday requesting an earlier date. If we win, and we believe we will, the state needs time to get the ballots printed, so we need a ruling right away. If the court doesn't rule until October, all this will be moot."