portion of the nevada constitution that portion requires a percentage of signatures on an initiative petition to come from at least thirteen of that out is seventeen counties i do want to distinguish  that there's another rule in that about a constitution that requires ten percent of the signatures state why that's not at issue here just the thirteen out of seventeen rule which has helped me with something we are not permitted we don't have jurisdiction to get to the question posed by this case unless there's a case or controversy with standing and my concern here is that wouldn't matter whether the thirteen county rule stayed in place or whether we affirmed the district court decision striking it they lose either way if they lose either way they can't get any practical relief and they have no standing it seems like both sides want to decide something that makes no difference to this initiative i don't understand why we should you're right your honor this this petition particular petition did not meet the ten percent and it did not go on the ballot the state did not you can't waive standing you don't have the power because federal courts don't have the power to decide something if it's not a case or controversy the state did not bring up that issue and did not contest it you understand what i just said yes doesn't matter that you didn't bring it up and didn't contest it it's a restraint on our power and it's not in your hands we looked at this as as one of the exceptions to the stand the requirement that one exception this is a case that's capable of repetition and in fact it would be capable repetition because why would it be gating review if it could come up again in other cases but you might have the same problem moment over and over again if if by the why would it be or evading review is this something a lot of election cases just inherently come up at the last minute so you never have time for them unless you just that  somersaults like we did in the california recall case but this one i don't understand why it although it's capable of repetition it's also evading review it sounds as though this by its nature proceeds on a more leisurely thousand and six year and all of those petitions the petitioners ignored why wouldn't i have plenty of time if it was if they get more than ten percent statewide but they don't get  they don't get the thirteen counties i'm sorry i didn't hear the first part why couldn't we review it after they got the temper set but before they got the thirteen counties i suppose you could your honor on on another case important is the qualification period it's ninety days before the general election would have ninety days to go to a federal district court get an injunction to us and get it all done in time for it to get on the ballot right  if you follow the last stand and probably wouldn't know until right there on the last day right historically speaking if you had why if it was a popular why would you have your signatures long before the ninety days that traditionally from our experience the signatures almost always get turning right at the end that just seems to be the way to go as a timing lapse in this case the timing for could this could this petition still get on the ballot well actually this petition in a different form is on the ballot this year this was the particular petition here was to amend the nevada constitution and i didn't get enough signatures but the petitioners went out and circulated another petition to enact a statute instead of changing the constitution that had the same function of legalizing marijuana and that i actually did get enough signatures and it's going on the ballot it's scheduled to go on the ballot this november so this is the subject matter of this petition  petitions that have been coming in have disregarded that this has been the overall ten percent requirement if i can i guess i still have the same question this petition that amended the constitution is it too late to get the total for all for this particular because yeah yeah in my opinion no there wouldn't be i think that biased nevada law you have to do it in that one year period and if you don't you're out you're out  save the day for you for this you know that's that's certainly where we've looked at it this is it's just something that's going to come up again so we look at it as we might as well just get it addressed now why does it matter and i mean they've got what they want to legalize marijuana they've got it on the ballot if it turns out the state wants to then vattel be well kind of like alaska and the only difference between the way it winds up and the way it would wind up with this past is whether people are free to smoke marijuana by statute or by the state constitution but it's a matter well for the way the feds can get them if they have the resources which i imagine they don't or and the state can't well for the subject matter it doesn't really matter but from an overall election and ministration enforcement type of perspective the state's looking at it does it matter how how we get a rule how it is thirteen of county will come i'm thinking in terms of federal jurisdiction we're supposed to restrain ourselves to cases in controversies and not just give people opinions willy nilly well i think in any other case if it came up it would also be an equal protection challenge just like this case based on the idaho case i just had one the thirteen county rule in nevada as i stated earlier is part of the nevada constitution it actually has been part of the constitution for almost fifty years it was part of an initiative that was passed and voted on by the majority of the people so you have the majority of voters in nevada saying that they wanted this thirteen county rule now i do hope it was a statute so the idaho legislature put their their geographic dispersion rule into effect and nevada is different in a very important way from idaho in that the vast majority of the population and the registered voters are concentrated in one county which is clark county which are las vegas is located the other most populous counties it's about seventy percent of the population just about sixty eight percent of the registered voters at least in two thousand and two it was the other most populous counties washer county which has about fifteen percent of population so you've got eighty five percent these two counties most of it in one county you know i his biggest county ada county has about one third of the population the problem that you have in the vatican is the potential for one county to completely run the show to propose the law and to pa ok from some other counties i think i don't necessarily view the signing of a petition as a vote although i recognize that the idaho case did equate to you have kind of a problem once you get there with statement usually the equal protection clause is directed toward treating people equally and this one is just extending the equal protection clause t coalition avoided distinguishing more because in more you needed the same number of people from a big county or a one on one and in idaho case it was percentages so it really took account of the more lightly populated counties right once you extend the equal protection to counties which means bigger counties have to count for more than little counties why isn't it then under idaho coalition not to let las vegas run the whole state why isn't las vegas entitled to run everything under idaho coalition well i think about fifty years ago the majority of nevadans voted on that voted on to put this thirteen county will in effect as kind of a check on letting one county run the show and i'll give you an example that's come up from this year of why we're already seeing some some issues of clark county doing things that may not necessarily going to best interest of the rest of the state there's an initiative petition a qualified this year it's going on the ballot in november and it's called the tax and spending control for nevada initiative and like i said this is just an example but that petition limits government spending at any level state county city to a certain formula that includes changes in population and inflation now that might be ok and clark county in the voters might think that's great because they're growing  they can have a flexible spending limit but in some other counties including rural counties now you're going to have spending limits essentially frozen if their populations declining or not changing room much you know you've got you have these differential in every state and some western states it'll be agriculture use of water you just described difference in that spending interests and taxing interests according to whether population and economy expanding or declining in alaska the areas that are mostly athabaskan indian villages want aerial wolf one thing kill the wolves because they're competing predators for moves anchorage it's not a not a very salient issue it's not as many people need moves to fill the freezer and you're going to have this in every state it looks to me though as though you have to tell me why the big urban county that's a majority of the state isn't entitled to run the state it's way under idaho coalition i think and i don't i'm not exactly sure how the alaska population breaks down mostly anchorage in the anchorage area ok the kind of like the better that way the compelling interest i don't compelling interest was about requiring they want to state wide support for things are compelling interest goes beyond that to just trying to prevent one county from controlling the whole process and that's what the voters voted on and take another example say the voters of clark county decided that they wanted to pass an initiative that seventy five percent of all tax revenue in the state goes to park county they could propose that they could vote on it and that could be the law and regardless of how that would cripple everyone else in the state so  that's why when you have one county that can completely control the whole process you're shutting out everybody else you're shutting out their voices and it's causing it can cause a serious problem and that's that's the the difference in the components of interest which when i had a whole case in the nevada case is that geographic unique i don't think you understood my question my my question is show me how under idaho coalition the dominant cities las vegas anchorage san francisco and los angeles aren't entitled under the equal protection clause to cause all kinds of problems for the more rural areas of the state well i think they certainly can  they can put in some kind of they can propose a law like that and but it's if there's a check on it a state check on it that checks going to be upheld if there's a compelling state interest so it's not necessarily that if there was no thirteen county rule i don't know if i could be here saying you know what clark county or what this one populous counties doing is wrong because it's hurting the rest of the state but the states tried to fix that problem by by putting this this check on on the system in one thousand nine hundred eighty eight i hope that answers your question i am not sure if i did didn't i thought i was reading the district court judges moral decision he suggested there are some other alternatives but there are problems with those that don't necessarily satisfy the state's interest just raising raising the percentage well if you still got seventy percent and one county raising it up to fifteen to twenty percent you still can just go to one county and get all the signatures that you need and we've seen not even though we have ten percent we've seen what that these groups who propose these petitions do they just go to clark county now and that's where they get their signatures  the judge i believe the district judge used the term electoral districts and i'm not sure exactly what he meant by that because there are no electoral districts in of out of their congressional districts there are senate districts and there simply distress the problem using congressional districts which i think is what the judge was was getting at is that there's three congressional districts in the state of nevada two of those are in clark county actually all three are part of clark county but two are in clark county and one is basically the rest of the state including washoe county so if you use congressional districts you still have the problem where these these urban counties where all the populations concentrated can effectively silence the will of anyone i believe all of them all three from this year i believe would have would not have met thirteen county rule would not have met the the thirteen county rule yes the the tax and spending control which i referenced earlier i know that one would not have met the thirteen county rule and there are two does it have the the total number of voters require yes they did they had a ten percent statewide but they were they basically got all their las vegas to get all their signatures why wouldn't that be the appropriate case take this up one of those cases that certainly could be but we might just be right back with the same problem if the voters voted it down  court my name is matthew brinkerhoff and i represent a number of plaintiffs pelleas in this case this case is definitely just distributed i just want to go over who the plaintiffs are in this case there are three organizational plaintiffs and a thirteen counties and that sounds like the cases that really pose the question correct and in fact the committee to regulate and control marijuana plaintiffs in this case the marijuana policy project a plaintiff in this case and to a certain degree even the a of nevada also a plaintiff in this case are involved in an initiative that is now at least at the moment scheduled to be on the ballot in november the signatures that were gathered to get that initiative on the ballot satisfy the ten percent statewide rule but did not satisfy the thirteen county rule or an extremely important distinction here is that that is the difference between when a case comes up on appeal and an injunction has been denied and here where it's been granted all done you have another initiative it satisfies the temper stamp it does not satisfy the thirteen counties correct and the state allows it on the ballot chorale ation of its own statute because of the injunction it is allowing it on the ballot if the injunction were to be lifted or the district court were to be reversed has anyone asked us to lift well the problem is that the state is complying an injunction so that only now why doesn't that make it move it doesn't make it indeed is not appealing the injunction the state is happy to be enjoined from enforcing its thirteen county role and has exceeded to non enforcement and why isn't this controversy moved well for one they're obviously continuing to to assert the position that the thirteen county moot is because it is capable of repetition and it will remain a review otherwise it's capable of repetition for obvious reasons when you deal with election cases as i know the court is familiar there was a somewhat recent case actually authored by judge what reason is there to think that the state will enforce the thirteen county rule if we were to dismiss this case after a lack of standing they enforced it until there was injunction they have fought it every step of the way the fact that they even appealed at least substantively on the merits here i can consider to be somewhat surprising given the state of the law in this circuit they have an interest and they have an obligation to  o meaning the attorney general to enforce the constitution that constitutional provision exist but for that injunction if this case is dismissed as moot that injunction will dissolve and they will be in allowed to entitled to enforce it again and there is no reason to believe that they won't and even if they didn't for some time they would always have the ability to do so and it would if nothing else would affect petitioners out there who are going out collecting signatures would always know that this is a requirement that is not enjoin has not been declared unconstitutional you don't stand though for all petitioners on all possible petitions in the future this i assume this is one of those george soros petitions well funded easy for them to seek signatures in all the counties just for the record it is actually not a george soros funded initiative but in any event we do stand for two three organizations that regularly petition in nevada and rely right now on this injunction we also represent a number of the voter plaintiffs in clark county who sign petitions are presented with petitions and they are entitled to have their signature count  weight to everyone else in the state at the moment as a result of the injunction they are why i am in this petition does that matter since the very same petition is on the ballot to change the statute rather than the constitution so if if the state voters want to do with the petition six they're going to be able to do it not if the injunction is dissolved and they start to enforce  initiative that will be on the ballot this november to regulate and control the use of marijuana in the state of nevada it did not satisfy the thirteen county rule there can be no dispute about statutory money excuse me defeated in this particular case in this case where the constitutional and credit get the ten percent overall correct we always had standing when we brought the case there were three issues if we had prevailed on all three we would have been put on the ballot and we expedited the process as much as possible in fact possibly just kind of may remember an emergency request for an appeal of a preliminary injunction that was decided by this court on the last remaining issue the only issue that we lost if we had won that it would have gone on the ballot it didn't and the reason it didn't was because we didn't satisfy that threshold ten percent number we were off by about one hundred signatures actually that's all true but this  there was no reason for us to appeal this issue to state tows to appeal it it's a classic case of the mood in this exception applying we know that it wasn't basically the duration did not allow us to get this reviewed  qualified for the ballot or not on a constitutional initiative in any event in july of each even numbered year and at which point there's usually reached some  start usually some point at which the secretary of state says you know it's just impossible to print the balance correct you know when when that date is yes i mean we ran up against it in the in this case actually it's approximately the third week in september so it's not exactly the time period would be from july to september correct that you have to get all the litigation completed that's when the absentee ballots get printed as i understand it i'm sure the state could give you more specific details about the dates but there's no question that's the kind of timeframe that we're dealing with obviously this is the questions and the issues that we're talking about are go to the jurisdiction of this court they can be raised obviously they can't be waived they have not been raised however and if nothing else i would like the opportunity to brief this issue to the court i'm quite convinced that i will be able to convince the court that this is a just issue a controversy and needs to be decided and because it wasn't raised obviously was not something that we had a chance to brief you had a chance to brief the jurisdiction as part of their very brief you just make a strategic decision if the other side frankly because we have the possibility of being injured should this injunction be dissolved on the move in this questionnaire there's no question i think that this particular case meaning  which concern one particular initiative that you know has already now passed is moot but it unquestionably in my mind satisfies the exception the capable of repetition yet abating review exception to the lutenist doctrine it satisfies it because it's an election case which is treated differently just as a general matter obviously one of the reasons election cases are treated differently is because of the short timeframe in order to satisfy the capable of repetition it evading review exception you need to have two things you need to have a short duration in which to challenge so short that there isn't the ability to fully litigate the issue on appeal and you have to have a reasonable expectation that the issue will repeat itself the duration issue we've discussed we had approximately three  months to get this done there have been cases many of them dealing with much longer periods than that where you have election cycles that come up over and over again and here they are two year cycles where on into the next one this is an issue that that is affecting voters and petition signers and petition gatherers right this minute in nevada and will continue to unless that the injunction is affirmed and the particularly offend the particular offending portion of the constitution is declared unconstitutional once that happens then of course it will all be over but as long as that injunction has the possibility of being dissolved which is what would have to happen if this were dismissed on moving this grounds then the state will be able to enforce the thirteen county rule that made it very plain that they intend to and desire to to enforce the rule they think it's a good rule  there's no doubt that having state wide support is a legitimate interest on behalf of the state they can satisfy that interest in any number of ways but what they can't do is have a percentage requirement or a fixed signature requirement that applies equally to political subdivisions in this case the counties that are so dramatically unequal and in population and that's what they've done idaho coalition is i think quite clear on this point there's really not a whole lot to argue about on the merits but it's it is unquestionably a live real controversy because that injunction is in place and if it's dismissed it will be dissolved and it will come up again and the same thing could happen again and again is there not is there not time for these other provisions for example a approximately six weeks to seek an injunction to get it put back on in the district court and whatever kind of expedited review we could get in this court if we prevailed it would go on the ballot and if we were unable to get appellate review and the state continued to resist to continue to enforce the thirteen county rule just the way they have done here then we would before that we would be before this court again in a year or two or whatever it would be and we'd be answering asking i'm sorry answering the same questions the question would be you got it on the ballot it was voted up or down isn't it now moot and we would say yes it's moot but it satisfies the exception to the moot in this dr and that will happen over and over again unless we get a ruling well unless you get through one percent and then if you're if you get the if you get required bring an action for an injunction i don't see why it can't be reviewed well in time the promise it's difficult to imagine a situation where it will be reviewed if you at least from my perspective i hope coalition is very clear i think it obviously controls hard to imagine a district judge in the vat who will not apply it to the thirteen county rule if that happens then junction issue and and then issue will be put on the ballot it will be voted up or down and it by the time it's reviewed by the circuit at the state insists on resisting which they have to date and have shown no indication of doing otherwise it will be moot in the same way this is moot now i think what you've just said is i don't coalitions clear enough so that any time any protection where you get your ten percent but you don't satisfy the thirteen county role you're going to be able to get an injunction from a federal district judge if you if the state doesn't voluntarily yield even without one and you're going to be able to get your initiative on the ballot the only time you're going to have any trouble is when you not only missed the thirteen county rule which either through state concession or easily obtainable junction injunction is not going to be applied anyway the only time you're not going to get your initiative on the ballot is when you fail to meet the ten percent requirement which the sun challenge well i actually believe that that's correct but then the question becomes and it's not capable of repetition yet evading review the only party that would really have a claim that they have a constitutional claim that's capable of repetition yet evading review would be the state of nevada your adversary would say we're going to lose every time we're never going to be able to keep something off the ballot for failure to meet the thirteen county rule because of the high duco poco allision case and we're not party to that it came and went long before we got involved and nothing we can do about it  exception to the move this doctrine is obviously judicially created exception and it's an exception that exists so that things can be reviewed that otherwise would not be and i certainly take your point judge kleinfeld that in most circumstances one would imagine that an injunction will issue at the district court level and only time i understand all of that but then the question becomes why is it that every time the committee to regulate and control marijuana or any of the other social national plaintiffs here or any of the  voters who are signing these petitions want to put initiative on the ballot the only way that they are able to do that if they're not satisfying the thirteen county requirement which they shouldn't have to it's quite plainly unconstitutional is to go to court and seek an down in a couple of weeks because the case to be controlled by idaho coalition so we wouldn't need regular full panel that's true that somebody would have to appeal it forced to be reviewed and the only person who would be would appeal  point we did on another point they could have easily cross appealed it would have been determined by this court at that time on an expedited basis as the other issue was but they have to file the expedited appeal it's all up to the state everything is backwards here because we're dealing with a situation where the injunction has issued and always will you're talking about court proceedings and i'm talking about people getting to vote on  s or a little bit of cross purposes what i'm thinking is as long as you get your temper sent you're going to get your initiatives on the ballot in nevada and the thirteen county rule just isn't going to matter as you've laid out the ballot when there las vegas initiatives that nobody else in the state wants is by amending the constitution and making it a so the state senate district rule instead of a thirteen county rule if i got something wrong no i agree with all of that i don't think it's solves this particular issue nonetheless because again i understand i'm talking about cases but these are plaintiffs who should be entitled under the equal protection clause to go through this process without having to resort to court on every single occasion can't be that capable of repetition yet evading review doctrine was created only for circumstances where injunctions are denied but not when they are granted as they were here where you have is the state of the state is protecting this and i'm not saying it's intentional at all but if they never seek expedited review and they always continue to challenge they didn't have to file appeal of course and in fact we had litigation on th for instance in the case you have to appeal within a particular time a very short time so why why couldn't you seek expedited review for a very good reason certainly if there were a district judge that denied our request for an a that's a good point i think that that's correct but look at the timing in this case here the district judge's opinion issued on august twentieth we filed an immediate appeal the next day the judge to the state did not file its notice of  nor was it required to until thirty days later on september twentieth at which point the time for getting on the ballot or not had passed and so we would then be in the position of seeking ex but i mean it's very unusual position we'd be seeking expedited review in order to confirm essentially a decision by the district judge that is not in any way injuring us and then we will be told we have no standing and they'll be right we're  not being injured what is what is the controversy there that's why this is a classic case of the movement's exception applying thank you c i know i'm i'm out of time but i'm not going to present argue i just wanted to clear up one factual question the last day to print the sample ballots aug fifteenth i couldn't hear the last state of print alpha sample ballots with the question