ACLU challenges new initiative petition rules

By Geoff Dornan

Appeal Capitol Bureau

The American Civil Liberties Union has asked the federal district court to rule Nevada's new initiative petition rules unconstitutional.

The complaint was filed in Las Vegas late Thursday charging that the new law approved by the 2007 Legislature suffers the same flaws as the old law. It said the Ninth Circuit Court of Appeals "has already struck down a virtually identical Nevada statute."

"The Nevada Legislature and its secretary of state are dead set on discriminating against voters in densely populated counties and, in doing so, violating the United States Constitution," the complaint charges.

The ACLU in 2006 won a court ruling tossing out the historic 13-county rule that requires that any initiative get signatures totaling at least 10 percent of the number of voters who cast ballots in the last general election - and do so in at least 13 of the 17 counties - to get their petition on the ballot.

That law was ruled unconstitutional because it violated the one-man, one-vote rule since a small number of rural voters could prevent Washoe and Clark county voters from putting a constitutional question on the ballot even though, between them, those counties are home to nearly 90 percent of the state's voters.

The new formula approved in 2007 requires signatures totaling 10 percent of the statewide voter turnout in the last general election. It attempts to compensate for the huge disparity in population between tiny rural and major urban counties by requiring the number of signers in each county to be adjusted according to that county's percentage of the total state population.

But it requires every county to meet its share of the 10 percent statewide total.

The complaint gives the example of the 2006 general election when 283,598 people voted in Nevada. Ten percent of that is 28,360. But since Clark County has 69 percent of the total state population, the number of signatures collected there would have to be at least 19,525 - 69 percent of the total needed.

By contrast, Esmeralda County with four-tenths of a percent of the population - 971 people, would only require 14 signatures.

"This is essentially the same thing all over again - only worse because you need those numbers from Esmeralda County. They can undo a ballot initiative that has 90 percent support in the rest of the state," said Executive Director Gary Peck of ACLU Nevada.

ACLU lawyers Allen Lichtenstein and Matthew Brinckerhoff argued the new formula changes nothing because it still gives a tiny minority in the rural counties the power to block the will of the vast majority of Nevadans.

"The county population rule is indistinguishable in both result and effect from the unconstitutional 13-counties rule," their complaint argues. "Once again, Nevada's geographic distribution rule dilutes the will of residents in densely populated counties such as Clark and Washoe counties and favors the desires of residents in rural counties such as Esmeralda and Eureka counties."

The complaint charges that, like the old rule, the new rule violates the 14th Amendment of the U.S. Constitution. It asks an order permanently enjoining Secretary of State Ross Miller from enforcing the new law.

Peck said the complaint was filed on behalf of the Marijuana Policy Project, which is seeking eventual legalization of marijuana through the ballot process and Las Vegas lawyer Kermit Waters, who is attempting to put questions on the ballot which would sharply raise taxes on Nevada casinos to fund schools and services.

Peck said the nature those petitions isn't the issue.

"It's not the substance of the underlying issues inherent in particular ballot issues," he said. "The issues are constitutional in nature and have to do with one person one vote."

State officials had not yet been served with the complaint Thursday afternoon.

• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.