Never Say Die: Nevada Marijuana Regulation Initiative is Back After Favorable Federal Court Ruling 2/4/05

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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.

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Issue #373 -- 2/4/05

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Drug War Chronicle's Phil Smith Featured in New Book -- "Under The Influence" Available as DRCNet Premium | Editorial: DEA Has Stepped In It This Time | "Not Your Father's Marijuana" Canard Again Exposed -- This Time by DEA | Never Say Die: Nevada Marijuana Regulation Initiative is Back After Favorable Federal Court Ruling | DRCNet Interview: Roger Goodman, King County Bar Association Drug Policy Project | Blogging: Mobile, Alabama Police Chief Stuck "Inside the Box" Over City's Rising Drug Trade Violence, and More | Newsbrief: This Week's Corrupt Cops Stories | Newsbrief: DEA Pain FAQ Retract Flap Fallout Continues -- Criticism Comes from Unexpected Direction as Agency Seeks Comments | Newsbrief: HEA Repeal Picking Up Steam -- Congressional Advisory Committee, Arizona Legislators Urge Rescinding of Souder's Law | Newsbrief: DEA Must Pay Hemp Industry Plaintiff's Legal Bills, Court Rules | Newsbrief: Indiana Official Calls for National Agency to Provide Drugs to Addicts | Newsbrief: In Swan Song, Ashcroft Calls for Harsher Sentences, Chastizes Foes | Newsbrief: Man Bites Dog! Arkansas Bill to Lower Meth Sentences Moves Forward | Newsbrief: London Top Cop Warns He Will Target Casual Cocaine Users | Newsbrief: Belgian Cannabis Clarification Now in Effect | Newsbrief: Spanish Pharmacies to Begin Selling Medical Marijuana | Newsbrief: Safe Injection Site Opens in Oslo | Newsbrief: Rastas, Watch Out At Ethiopian Marley Fest, State Department Warns | Newsbrief: India Narcs Set Off Prescription Drug Panic | This Week in History | The Reformer's Calendar |

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