A Las Vegas federal judge is set to hear arguments today over claims the state changed the rules after the fact by disqualifying two anti-smoking petitions and the marijuana initiative.
Secretary of State Dean Heller disqualified all three initiatives after receiving an Nevada Attorney General's opinion that the number of signatures they needed to qualify must be 10 percent or more of the total voter turnout in the November 2004 elections.
All three petition drives were conducted under the understanding they would have to collect 10 percent of the November 2002 turnout.
The petition drives began last summer when the "last general election" referred to November 2002 but were turned in the week after the 2004 vote, making that "the last general election."
Because of the increase in voter turnout this past year, the difference is about 30,000 signatures. All three would have qualified for submission to the Nevada Legislature if 2002 turnout was used. None reached the 83,156 signatures needed using November 2004 as a base.
The Marijuana Initiative organizers, who want to make possession and use of small amounts of marijuana legal in Nevada, and the anti-smoking proponents are arguing the attorney general and secretary of state changed the rules after the fact, informing them they needed some 30,000 additional signatures after they had already turned in their petitions.
They point out the medical malpractice petitions had the same problem two years ago, but weren't challenged.
Attorney General Brian Sandoval objected to that argument.
"Plaintiffs imply that because the state made a mistake in the past, it should repeat that mistake again in the name of equal protection," they said.
"Two wrongs do not make a right," he said.
But U.S. District Judge James C. Mahan refused the state motion to toss out the case and ordered today's hearing proceed.
Petition organizers are expected to argue the state cannot be allowed to change the rules after petitions have already been submitted and that, doing so, violates the rights of more than 69,000 individuals who signed the marijuana petition and about the same number who signed each of the two smoking restriction initiatives.
If the petition organizers win, their initiatives will be presented to the 2005 Legislature which can approve them or refuse - which, if approved, would put all three issues on the next statewide ballot for voters to decide.
Contact reporter Geoff Dornan at nevadaappeal@sbcglobal.net or 687-8750.