Judge tosses three ballot questions

Carson District Judge Todd Russell ruled Wednesday that three petitions backed by Las Vegas casino mogul Sheldon Adelson failed to qualify for the November ballot.

Two of the petitions sought to raise the room tax collected by the Las Vegas Convention and Visitor's Authority from 3 percent to 13 percent. One would give the money specifically to public education. The other would include public safety and other purposes as well as public schools.

The third petition would have changed Nevada's initiative petition process to require a two-thirds vote of the people to raise any taxes or fees " the same super-majority the Legislature must get to do so. At present, a simple majority is all a petition needs to raise taxes.

Russell, ruling from the bench, agreed with lawyers for the secretary of state's office, Nevada State Education Association and visitor's authority that the petitions failed to include affidavits mandated by the Legislature. Because of concerns about potential voter fraud, lawmakers decided in 2007 to require signature gatherers to attest to the number of signatures they were turning in and to certify that each signer was offered the chance to read the actual petition instead of just the 250-word "Statement of Effect."

In the past, petition circulators were required to attest that they personally circulated the petitions and that each and every signer did so in their presence. The 2007 Legislature added the requirements that circulators state how many names they collected and that they offered voters the chance to personally review the petition itself.

Scott Scherer, representing the petition supporters, argued that even without those elements, the petitions were in "substantial compliance" with the law. He also charged that it would be a serious violation of legislative intent to disqualify petitions signed, between the three, by a total of nearly 350,000 voters.

Scherer said the signature gatherers were within their rights to rely on the guide issued by the secretary of state, and the affidavit form in that guide at the time did not include those two elements. And, he said, one of the regulations adopted to implement the new law was incorrect as well.

He questioned whether the state even has a right to require such an affidavit, saying it could violate the rights of signature gatherers.

Scherer said if the missing affidavits are an issue, he would urge the judge to allow circulators to submit them now. He said by telling clerks not to certify those petitions, "the actions of the secretary of state in this case are clearly in excess of his authority."

But Nhu Nguyen of the attorney general's office said the guide clearly states, in bold type, that the guide is just that, and the law may have changed and that anyone circulating a petition should check the statutes or call the secretary of state's office to make sure they are complying with the law.

Todd Bice, representing the vistor's authority, said lawmakers required the signature gatherers to put down how many signatures they were turning in to prevent more names from being added later. He said the culinary union raised concerns about that in a previous election cycle, charging that some groups held "signature parties" to beef up the numbers on their petitions.

He said the requirement circulators give every signer the opportunity to read the actual petition was included to prevent them from giving voters a slanted or incorrect description of the intent of a petition.

And Bice said the judge can't let them submit any new affidavits now because the law requires all documents be submitted to the county clerks at the same time.

"In all honesty, they just didn't read the statutes," he said.

And he argued that leaving out two mandatory elements required in the affidavits isn't substantial compliance with the law.

"Substantial compliance is when maybe the form is wrong but the substance is there," he said. "No one is arguing those elements were there."

Mike Dyer, representing the teachers' union, said affidavits are legal according to both the U.S. and Nevada Supreme Courts, which have upheld affidavit requirements.

He too argued the problem can't be fixed now: "On May 20, the law required those petition documents be filed with the county clerks. There is no way to go back and fix them.

Russell ruled the secretary of state did not exceed his authority in ruling petitions without those affidavits are invalid.

While he said he was reluctant to declare petitions signed by thousands of Nevadans invalid, "it's unfortunate here that some one didn't do their homework before circulating the petitions."

"The statute is clear," he said. "This is a harsh remedy, but I don't think there is any other alternative. "I can't unring the bell."

Scherer said he would talk with his clients before deciding whether to appeal the ruling. But spokesman Robert Uithoven indicated an appeal would follow: "It is likely we will continue to fight to give the voters a voice in how to reform their government."

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