Initiatives' success rate so far a big zero

By SEAN WHALEY
Sep. 01, 2008
REVIEW-JOURNAL CAPITAL BUREAU
Copyright © Las Vegas Review-Journal

CARSON CITY -- Whether you're an average citizen or a billionaire hotel-casino owner, it's been a tough year to try to use the initiative process to get your pet issue on the ballot.

From efforts to increase the gaming tax to the more esoteric idea of legalizing the use of hemp for energy creation, the result so far has been failure.

Finding the money to hire professional signature gatherers, overcoming the challenge of collecting names in all 17 counties, and complying with the often complex legal requirements or fending off a host of lawyers seeking to shoot down a measure are all impediments to succeeding in the initiative game.

Of the more than a dozen petitions filed with the secretary of state this year to change state law or amend the constitution, the success rate so far is a big zero, although four remain alive in the courts.

Janine Hansen, a long-time citizen activist who has worked to qualify petitions and who has testified against lawmaker efforts to complicate use of the initiative, said actions by the Legislature have denied average people access to their constitutional right to circumvent government to implement change.

"It's abominable what the Legislature has done to the initiative process," she said. "The Legislature has showed complete disdain for the voters."

Hansen, who was once arrested in 2004 while trying to collect signatures in Reno at the local bus terminal, said voters have the right and the intelligence to propose changes to state law and the constitution.

But state AFL-CIO chief Danny Thompson, who used the initiative process to get a minimum wage increase into effect in Nevada in 2006, called the rules adopted by the Legislature a reasonable reaction to concerns about fraud in the signature collection process.

The AFL-CIO has been involved in challenges to several petitions that were circulated this year, including a property tax cap measure pushed by former Reno lawmaker Sharron Angle.

"Without those protections, we'd have a wide-open system," Thompson said. "The people who do this for a living, they just care about the money."

Some of the petitions that are in danger of failing would have qualified if the backers had done their homework, he said.

Of the four measures still showing some signs of life, two would divert money from the Las Vegas convention authority to state programs, including public education. A third would require a two-thirds vote on petitions seeking to raise taxes. The fourth is the property tax cap plan.

Most of the others, from a plan to triple the gaming tax and eliminate the property tax, to a proposal to make it easier for people to circulate initiative petitions, have been abandoned by their original sponsors for a variety of reasons.

One other is still alive, albeit in a radically different form.

A plan by the teachers union to raise the gaming tax to provide additional revenue to public education and teacher pay has morphed into something else entirely.

The Nevada State Education Association is now collecting signatures to raise the room tax in Las Vegas to generate money for education, a compromise reached by the union and some gaming leaders in Southern Nevada.

But if the Legislature does not choose to enact the proposal, voters won't see it until 2010. That's assuming enough signatures are collected and some as-yet-unidentified legal challenge does not knock it off the ballot before then.

Hansen said actions by lawmakers have allowed all kinds of legal challenges to impede those wanting to put a measure on the ballot.

Proponents of a cap on property taxes had to file a petition three different times before signatures could be collected, making it almost impossible to qualify the measure in the remaining time allotted.

The Nevada Supreme Court eventually ruled that a deadline imposed to turn in those signatures was too early and therefore unconstitutional. The petition still faces another court challenge from the teachers union that could keep it off the ballot.

Lee Rowland, a staff attorney with the American Civil Liberties Union of Nevada, said lawmakers talk about making the process easier for citizens to access the ballot but then appear to adopt measures that do the opposite.

"Our role is one of the watchdog, making sure the Legislature does not pass laws preventing people from placing an initiative on the ballot," she said. "Unfortunately every recent legislative session has seen more attempts to restrict this right. And now we're seeing the result. A zero percent success rate. That is alarming and problematic."

One example is the new legislative requirement that signatures be collected in all 17 counties, she said.

A previous rule requiring signatures from 14 of 17 counties was found unconstitutional in the federal courts, and the group has challenged the new rule as well. A decision has not yet been made in the matter.

The new requirements for affidavits that must be submitted by those who circulate the petitions, also adopted by the 2007 Legislature, are another example and are an issue before the Nevada Supreme Court in three different petitions still seeking ballot access.

Two would divert Las Vegas Convention and Visitors Authority revenue to public education and other statewide needs. The third measure would require a two-thirds vote of the public to approve ballot questions that sought to raise taxes.

All three are financially backed by Las Vegas Sands Corp. Chairman Sheldon Adelson.

The ACLU has weighed in on the side of the petitioners, arguing the affidavit requirements are procedural rules that should not discount the will of the thousands of registered voters who signed the petitions.

The affidavits require circulators to acknowledge certain facts, including that signers were allowed to read the petitions if they asked to do so.

Secretary of State Ross Miller, who enforces the state's election laws, said he believes the affidavit requirements established by lawmakers add an important level of security to protect against fraud, which emerged as an issue in previous petition efforts.

"I think the system at this point functions well," he said. "We made some great progress last session to get more transparency into the process and hold individuals accountable."

Miller, who certified the Angle petition for the ballot but not the three Adelson-backed measures, does agree that the initiative process timeline should start earlier so legal challenges can be resolved in a more timely manner.

The four measures now in the courts are causing local election officials some concern because of the deadline for printing ballots.

But Miller said Nevada's rules are less burdensome than other states that allow the initiative process.

"The process is very straightforward and simple," he said.

State Sen. Barbara Cegavske, R-Las Vegas, chairwoman of the Senate Legislative Operations and Elections Committee, said the Legislature should not be blamed for all of the failed petitions. Many were dropped by the sponsors for their own reasons, and some of the legal challenges are unrelated to legislative efforts, she said.

And no matter what the Legislature does, an attorney will figure out a way to challenge a petition in court, she said.

"I don't know that there will ever be a safeguard against a challenge," Cegavske said. "It's not my goal to make the process difficult. I do believe in the process. But it's a very sticky road to go down, trying to take care of everyone's concerns."

The affidavit issue is also in play for Angle's California-style Proposition 13 plan to limit annual property tax increases to 2 percent a year. It is awaiting a hearing in Carson District Court. It too will likely end up before the state Supreme Court.

Another roadblock for petitioners, also adopted by the Legislature after a ballot measure controversy in 2004, is the "single subject" rule requiring measures to confine themselves to a lone topic.

This is also at issue with the three petitions before the state Supreme Court.

In a hearing before the court Aug. 20, an attorney for the convention authority argued the real intent of the two petitions was to take away money from the government entity, not to fund education or other state programs. That language was included as a "sweetener" to get people to sign, and so violated the single-subject rule, attorney Todd Bice said.

But attorney Scott Scherer, representing the petition supporters, argued that the two subjects were inextricably linked. Requiring separate petitions for every element of a proposal would render any ballot measure nonsensical, he said.

The single-subject issue was used against proposed measures in the 2006 election as well.

It was used to challenge both a measure seeking to restrain a government's ability to take private land, called eminent domain, and another measure seeking to impose a cap on government spending. The spending cap measure was ultimately disqualified by the Nevada Supreme Court on other grounds. The eminent domain measure was allowed on the ballot, although the court removed some elements of the initiative. It is on the 2008 ballot for a second and final vote required for it to take effect.

Hansen said there is no constitutional requirement that an initiative must be confined to a single subject. The Legislature has adopted such a rule for itself, but did not need to extend the rule to initiatives, she said.

Actually, one of the petitions filed for circulation this year would have repealed the requirement that such measures limit themselves to a single subject. It was withdrawn.

Las Vegas attorney Kermitt Waters, one of the proponents of the eminent domain ballot measure, also proposed the petition to do away with the single subject rule. He is now looking instead at overturning the limitation in federal court but will pursue a petition if necessary.

"It's prior restraint of core political speech," he said. "It was put in to destroy the initiative process."

Waters said the Legislature wants to retain the ability to enact laws for itself exclusively. If citizens can enact laws on their own, the Legislature becomes meaningless, he said.

Without some changes, Hansen said the initiative process is unworkable in Nevada.

"The Legislature has placed so many unconstitutional rules on petitioning, it has made it practically impossible to get an initiative petition on the ballot," she said. "I believe this is proved true by what has happened this year."

Contact reporter Annette Wells at awells @reviewjournal.com or 702-383-0283.                                                                                                         [up]