The Marijuana
Policy Project and its local affiliates, Nevadans for Sensible Law
Enforcement in 2002 and the Committee
to Regulate and Control Marijuana have been struggling for three years
to pass an initiative that would legalize the possession of small amounts
of marijuana. It has not been easy. The 2002 initiative was
defeated at the polls, garnering 39% of the vote, and the effort to get
a modified 2004 initiative on the ballot faltered in the face of adverse
rulings from state officials and an error by subcontractors that resulted
in thousands of Clark County signatures not being delivered to state officials
on time.
Thwarted in their efforts
to bring the issue before voters in the November 2004 elections, MPP and
CRCM immediately embarked on another signature gathering effort, this time
to bring a marijuana regulation initiative before the state legislature.
But Nevada Secretary of State Dean Heller, acting on the advice of Nevada
Attorney General Brian Sandoval, ruled that their petitions had insufficient
signatures and refused to certify them. The marijuana initiative
petition was one of three that were rejected by Heller after his office
seemed to have changed the rules in midstream.
Previously, Nevada officials
had based the number of signatures required to certify a petition on the
number of voters in the last general election. Thus, the signature
gathering campaigns that took place during the summer and fall of 2004
aimed at a goal derived from the 2002 voter turnout (51,000 signatures).
But Secretary of State Heller ruled that the marijuana petition, which
was turned in early in December, must achieve a number of signatures (83,000)
based not on the 2002 elections but on the 2004 elections, which had occurred
in the midst of the signature-gathering process.
But the initiative is now
back on track. In a January 28 decision, US District Court Judge
James Mahan ruled that Heller's moving the goal posts for the initiatives
was an unconstitutional violation of petitioners' First Amendment and due
process rights and that the petitions must be certified on the basis of
the 2002 numbers, which is what Heller had guaranteed in a guidebook provided
to initiative organizers.
"It's like you changed the
rules in midstream," Mahan told Nevada officials as he granted the injunction
sought by MPP and CRCM.
"The judge ruled they can't
change the rules in the middle of the game," said Allen Lichtenstein, an
attorney for American Civil Liberties Union of Nevada, which backed MPP's
appeal of Heller's ruling.
"We are of course extremely
pleased that the judge understood the situation and saw how completely
preposterous the state's position was," said MPP communications director
Bruce Mirken. "State officials were trying to set up an impossible
situation for us -- and in so doing they were contradicted their own previous
rulings. We are glad that this is over and we can now move forward
to get to the real point: a discussion about marijuana prohibition," he
told DRCNet.
Steve George, a spokesman
for Secretary of State Heller, told the Las Vegas Review Journal after
the ruling that Heller's office will move the marijuana regulation petition,
along with two anti-smoking initiatives also affected by Mahan's ruling,
to the legislature, which convenes on February 7. Under Nevada law
for statutory initiatives, the legislature has 40 days to approve the measure.
If the legislature fails to act, the initiative automatically goes before
the voters in the next general election in November 2006.
MPP's earlier initiative
efforts took the path of amending the state constitution. Under Nevada
law, such measures must be passed by voters in two consecutive general
elections.
"Since this is a statutory
change and not a constitutional amendment, it only has to be approved by
the voters once," explained Mirken. "The way the state constitution
is set up, though, the legislature gets the first crack at it. We
are not under any illusions that the politicians will suddenly find the
courage previously lacking on drug issues, but the legislature cannot stop
this. If the lawmakers fail to act, it goes directly before the voters
next year. The legislature could make that unnecessary by actually
passing the measure, but we are not holding our breath waiting for that
to happen," he said.
Still, said Mirken, MPP and
CRCM have not written off the legislature. "We will try to accomplish
as much as we can. We have one member of the assembly, Rep. Chris
Giunchigliani (D-Las Vegas), who is very supportive and who is interested
in having hearings. At the very least, we see this as an opportunity
to have a useful discussion and educate the politicians and the public,
but we are expecting this to go to the voters next year."
The MPP/CRCM initiative would
allow adults to possess up to one ounce of marijuana and would increase
penalties for providing pot to minors or causing a fatal accident while
driving under the influence. Marijuana sales would be taxed, with
revenues earmarked for drug and alcohol treatment and education programs.
In no state have legislators
or the electorate voted to legalize the possession of small amounts of
marijuana. Alaska has come closest, with voters there rejecting such
a measure in November by a margin of 57% to 43%. The Alaska courts,
however, have ruled that possession of up to four ounces of pot in one's
home is protected under the state constitution's privacy provisions, making
it the only state to recognize the legality of simple marijuana possession.
