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Photos: Nevada Secretary of State Dean Heller | Meeting in February 2003

December 23, 2004

Lawmakers, advocates petition for better handling of initiatives

By Kirsten Searer



December 24 - 26, 2004

Some advocacy groups are accusing Secretary of State Dean Heller of mishandling state election law this year by making arbitrary and unfair decisions.

In a move that one legislator said "just boggles my mind," Heller struck down three petitions this past week, citing a constitutional provision that some say could be interpreted several ways.

Neal Levine, a state policy director for the Marijuana Policy Project, a group whose ballot measure was struck down this week, said "the whole thing has been completely mismanaged."

After several controversies, some lawmakers vow a massive overhaul of election laws governing initiatives next year in the Legislature. Already at least nine bills are in the works.

Heller is in the middle of another challenge over initiatives and facing increased criticism for his handling of the petitions, some of which he disqualified on what has been described as arcane or unclear rules.

But the blame might not be so clear.

Ballot initiatives have become increasingly popular methods for advocacy groups to push their causes, and as the initiative process has come under more scrutiny, attorneys have found some statutes are dated, counter-intuitive and unclear. This has led to an initiative process mired in court challenges and legal opinions.

Heller contends he has followed the advice of the state Attorney General's office, and looked to the courts to interpret any laws that needed clarification.

But Heller's controversial rulings have made it appear the initiative system, the most direct way for people to change law, is not reliable, said Gary Peck, executive director of the ACLU of Nevada.

"What has happened, at the very least, created the appearance of unfairness that is, in and of itself, a problem," he said. "You want a process that inspires public confidence and the process has certainly not inspired public confidence."

First signs

Heller enjoyed success in the national spotlight this year because Nevada was a leader in voter technology. After the general election, he headlined a conference in Washington on voting machines and won rave reviews for Nevada's system. Yet several of his decisions this year drew him heat at home.

This summer, Heller invalidated several petitions, saying they didn't have enough signatures in the state's rural counties and didn't contain affidavits from people who signed the petitions. The ruling sent advocacy groups to court, where Heller was largely overruled.

And this past week Heller tossed out three petitions that were headed to the Legislature -- one that would legalize small amounts of marijuana and two regulating smoking in public. Heller's office, based on advice from the attorney general's office, ruled they didn't have enough signatures, even though they met the number of signatures prescribed in the secretary of state's manual on initiatives.

Heller's staff members said they realized the petitions needed more signatures after an anonymous tip led them to re-examine the constitutional requirements on the number of signatures needed.

Heller says the problem isn't unclear election laws. He argues that the ballot process has been hijacked by special interest groups that would rather collect signatures than lobby legislators in Carson City.

"This is just going to get worse in the future," Heller said. "They're going to keep hiring a bunch of lawyers."

Ballot initiatives can have weighty consequences and aren't designed to be something people push through quickly, Heller said.

"It should not be easy for somebody with $20 million to change the Constitution of the state of Nevada," he said.

Advocacy groups have increasingly used initiatives because they see a chance to make their case to the public instead of the Legislature. And the groups plotting the initiatives are often well-funded and well represented.

This general election pitted a fight between trial lawyers and an alliance of doctors and insurance companies on three initiatives -- Questions 3, 4 and 5 -- aimed at changing medical malpractice law and overhauling insurance regulations.

The groups spent more than $9.9 million on TV advertising, campaign consulting, legal fees, and other campaign outreach, according to campaign finance reports.

Meanwhile, the state's powerful unions, including the local AFL-CIO, threw their might behind an initiative to raise the minimum wage, while the teachers backed a provision to raise education spending to the national average or higher.

Even billionaire George Soros -- who was a major backer of progressive groups such as America Coming Together and -- had a hand in Nevada petitions. He contributes to the Marijuana Policy Project, which has spent more than $760,000 on two initiative attempts this year to legalize small amounts of the drug.

The intersection of money and power might be greatest in the latest round of petitions.

Health groups are backing a strict smoking ban in most public areas except for casinos and stand-alone bars. Casinos, bars and restaurants -- represented by Republican powerhouse Sig Rogich's public relations firm -- are backing a competing initiative that would impose a less stringent smoking law.

Rogich's group was the only one not to say it would sue after the petitions were bounced this past week.

With some of the state's biggest players on board, advocacy groups have been able to come up with novel approaches and challenges to the law.

Heller gets his legal advice from the attorney general's office, which, spokesman Tom Sargent said, has been "very objective and straightforward in terms of interpreting the law."

In some cases, though, the attorney general is relying on law that is decades old, long before Nevada blossomed into one of the fastest-growing states in the nation.

Even though the courts ruled against Heller in two major cases, Heller has to follow the law and the Nevada Constitution, said Sen. Barbara Cegavske, R-Las Vegas, who is chairwoman of the senate's newly restructured Legislative Operations and Elections Committee.

Cegavske said she hopes to revise state law and end speculation over several areas that were called into question this year.

"We want to clarify this stuff and make sure there's no gray area," she said.

Outdated laws

Already this year, Heller lost a federal court decision. The court threw out a constitutional measure that required groups gather a certain amount of signatures from people in 13 of the state's 17 counties.

The law was designed to force petitions to be circulated throughout the state so that more populated areas cannot force their will on rural counties.

While that provision was clearly stated in the Nevada Constitution, the 9th U.S. Circuit Court of Appeals previously struck down a similar measure from Idaho, prompting some to ask why Heller spent taxpayer money to push the issue.

"That was pretty clearly some minutia that didn't have anything to do with what the voters wanted," said Sen. Dina Titus, D-Las Vegas. "There seems to be a lot of this out of this administration, both the attorney general and Heller are taking a lot of things to court."

Heller also upheld a constitutional measure termed "antiquated" by Clark County Registrar Larry Lomax. It required a certain number of voters signing a petition to sign another affidavit stating the other signatures on the petition appeared to be people who lived in their county.

The law also goes back to Nevada's early days, when counties were so small that people knew their neighbors and could verify their residence, elections officials said.

When he struck down Heller's arguments to uphold the law, District Court Judge Bill Maddox called the provision "meaningless."

Still, Heller appealed it up to the state Supreme Court, which sided with Maddox.

At the time, Heller said he needed a court ruling to set a precedent.

"I strongly believe that the Nevada Constitution is not a fast-food menu that you pick and choose which parts you want to uphold and discard those parts that do not fit your particular agenda," he said.

Some advocates claim that Heller enforced the affidavit rule this year but didn't in 2002 because he didn't support the petitions to legalize some marijuana use and increase the minimum wage.

"They literally changed their position from two years before," said Gail Tuzzolo, a longtime Nevada consultant who worked on the minimum-wage petition as well as the petitions targeting medical malpractice laws and changes to insurance laws.

She nearly saw two petitions fail because of Heller's decisions, which were overturned by the courts.

The affidavit rule wasn't even enforced consistently throughout the state's counties this year, said Allen Lichtenstein, an attorney representing the ACLU of Nevada, which helped file federal lawsuits against Heller.

"There was really no coordination, no organization with that rule," he said.

Ultimately, the state Supreme Court upheld a decision that tossed out the rule and the signatures were reinstated.

One of the attorneys who fought Heller's decision in the state Supreme Court agreed with Heller on how he handled it.

"On my issues they were straight forward, and I thought they were fairly accomodating," said Robert Crowell, a Carson City attorney who represented People for a Better Nevada, a group that sponsored a measure on this year's ballot to hold attorney's accountable for frivolous lawsuits.

Crowell blamed unclear election laws for the mixup, and he said attorneys who opposed the measure found the affidavit rule, which had not been consistently enforced before.

"I think the rules were cumbersome, and I think you could say they were unclear in a sense from a legal perspective," Crowell said.

People for a Better Nevada obtained a memo from one of the state's largest law firms, Jones Vargas, to county registrars pointing out that they should enforce the rule. Jones Vargas received at least $118,476 from Nevadans Against Frivolous Lawsuits, a group that opposed Question 5.

Unclear instructions

While Heller suffered complaints about the general election, his decision this week could be his most controversial.

Some charge that Heller gave the wrong instructions to groups circulating petitions to put issues in front of the 2005 Legislature.

Heller's office put out a manual earlier this year saying initiatives needed 51,337 signatures to qualify -- 10 percent of the votes cast in the 2002 general election.

Three groups complied, turning in plenty of spare signatures by the Nov. 9 deadline.

In mid-November, Heller's office determined the initiative had the potential to qualify and forwarded signatures from all three petitions to the county registrars for verification.

Yet around this time, word started to leak that Heller was investigating an anonymous call stating that the petitions needed 10 percent of the votes cast in the last election -- the 2004 election.

The state constitution requires petitions to contain "10 percent or more of the voters who voted in the entire state at the last proceeding general election."

That meant the petitions would have needed 83,156 signatures.

Heller's office asked the attorney general for a ruling on the issue, and eventually determined the groups needed to meet the 2004 standard with 83,156 signatures.

Heller fights back

Heller lashed out at groups who said they were misinformed by his office, telling several media outlets that they received bad information from county registrars.

"These people have hired a bunch of attorneys, maybe they should do some court research," he said, noting that a 1994 state Supreme Court ruling backed his interpretation of the law.

Yet Heller himself must have thought the petitions could qualify in mid-November, when he forwarded all three petitions to county registrars for verification, said political consultant Billy Rogers, who helped circulate several petitions this year.

"Heller's talking out of both sides of his mouth on this," Rogers said.

Several of the groups that gathered the signatures call the decision ridiculous because the Nov. 2 results weren't certified until Nov. 23 -- two weeks after the signatures were due.

How, they ask, could they have anticipated how many people were going to vote on Nov. 2 when they were collecting signatures this summer?

"It's been quite shocking definitely to all of the health groups involved," said Brooke Wong, director of program services for the American Lung Association, one of the health groups that filed a petition to create a tough smoking ban in most public places except for stand-alone bars and casinos.

"They're pretty outraged that there's a possibility that they're going to not allow this to move forward," she said.

Lomax said he understands why groups are frustrated. Election results weren't certified until Nov. 23 -- weeks after the signatures were due.

"To be honest with you, it seems quite unfair to have told the groups collecting the signatures for all this time period that one standard should be met and all of the sudden there's a new standard," Lomax said.

What's worse, the groups said, is they had the signatures ready the week before the election, but were encouraged by county clerks to turn the signatures in after the election because county clerks were too swamped to count the signatures.

"If we had known this was an issue we would have just gotten it done the week before," Wong said.

The secretary of state's booklet probably should point out to people gathering signatures that if they turn a petition in after an election, they may be required to base the number of signatures they need on that election, said Heller spokesman Steve George.

"In all documents like that you end up making changes, making decisions as new problems might arise," he said.

But Assemblywoman Chris Giunchigliani, D-Las Vegas, who helped circulate petitions years ago when she was the president of the Nevada Education Association, said she thinks Heller has been unclear with advocacy groups too many times. Giunchigliani hasn't submitted a bill yet to clarify the rules but was the chairwoman of the Assembly's election committee last session.

"Whether people like initiative petitions or not," she said, "it's a constitutional right to petition the government and you shouldn't change the rules in the middle of the game."

Printable text version | Mail this to a friend
Photos: Nevada Secretary of State Dean Heller | Meeting in February 2003

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