Wednesday, March 14, 2012

Whose Initiative?

Today, the federal Ninth Circuit Court of Appeals (yes, the one of recent Prop 8/marriage equality fame) weighed in on Nevada state statutes regulating ballot initiatives.

The ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco upholds a lower court ruling against former state lawmaker and Republican U.S. Senate contender Sharron Angle and others who argued initiative regulations passed by the Nevada Legislature in 2007 are unconstitutional.

Angle and others sued Nevada Secretary of State Ross Miller in 2009 over the law that requires signatures amounting to 10 percent of the votes cast in the previous general election in each Nevada congressional district to qualify. Nevada had three congressional districts at the time. After reapportionment last year, it now has four.

Their lawsuit argued the mandate gives unequal influence to the voters in one district where sponsors might fail to meet the 10 percent threshold.

Surprise, surprise, Sharrrrrrrrrrrrrrrron Angle was one of the plaintiffs in this suit. She argued that her First Amendment rights were being infringed upon by the State of Nevada in imposing this requirement for ballot initiatives. Apparently, the Ninth felt otherwise.

In its ruling, the appeals court said in part, "There is no First Amendment right to place an initiative on the ballot."

The opinion, written by Judge Raymond Fisher, noted that half the states that allow initiatives impose a geographic distribution requirement. He also cited a 2010 National Conference of State Legislatures report that said such signature requirements "are important because they force initiative proponents to demonstrate that their proposal has support statewide, not just among the citizens of the state's most populous region."

"Nevada has therefore articulated an important regulatory interest sufficient to justify the all districts rule," the opinion concluded.

So was the Ninth correct in doing this? Isn't it just common sense for initiative supporters to demonstrate support throughout the State before they qualify to place their initiative on the ballot statewide? Well, isn't it?

Kermitt Waters probably wouldn't think so. While we mostly talked about his own law suit challenging Nevada's single subject rule for ballot initiatives last month, this law suit also came up in our conversation. And funny enough, Waters seemed to side with Angle in the Congressional District requirement constituting an improper burden on someone trying to qualify a ballot initiative. Especially for a grassroots outfit with limited resources, is it fair to force them to scour the entire state just to gather signatures in a way that pleases the Secretary of State's office? Why should a handful of voters in Washoe and White Pine Counties be able to so easily thwart the will of the people in Clark County, and vice versa?

Honestly, I feel conflicted about this. While I do see the value in making initiative backers show broad support for an initiative before just tossing it onto the ballot, I can also see how this "geographic veto" can improperly veto the will of the people just because supporters are a little more concentrated in one area than elsewhere.

This is just one of those tricky challenges in balancing the ideals of "small d democracy" with the ideals of protecting individual rights and respecting due process. And this comes back to an even more existential dilemma: How easy should it be to throw anything on the ballot? Do we the people have the right to vote on whatever we want? Or are there certain civil rights and legislative matters that shouldn't be subject to an electoral campaign? This is something we need to keep asking ourselves, especially this year as ballot initiatives will be so prominent in the 2012 campaign season here in Nevada.

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