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this to a friend Photos: Nevada Secretary of State Dean Heller | Meeting in February 2003 December 23, 2004
By Kirsten Searer WEEKEND EDITION
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 MoveOn.org -- 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."
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