CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 7/12/2023 1

Minimum County Requirements 

for Ballot Petitions 

Committee to Regulate and Control Marijuana v. Heller 

(James C. Mahan, D. Nev. 2:04-cv-1035) 

Supporters of an initiative to regulate marijuana filed a federal 

complaint claiming that Nevada had improperly disqualified signatures on their ballot petition. Three days later, the district judge enjoined the state from taking any action that would prevent the court 

from providing the plaintiffs with further injunctive relief. One 

month after that, the judge invalidated a state provision requiring a 

minimum number of signatures from a supermajority of counties 

for a ballot measure, because the provision favored voters in small 

counties. Because the judge left in place a provision that resulted in 

the disqualification of signatures by voters who may not have registered before signing the ballot petition, the initiative failed to qualify for the election. The court of appeals affirmed the district judge’s 

decisions. 

Subject: Ballot measures. Topics: Ballot measure; getting on the 

ballot; equal protection; registration procedures. 

Supporters of an initiative to regulate marijuana in Nevada filed a federal 

complaint on July 27, 2004, claiming that Nevada had improperly disqualified signatures on their ballot petition.1

 With their complaint, the plaintiffs 

filed a motion for a temporary restraining order and a preliminary injunction.2

 On the following day, Judge James C. Mahan set the matter for a hearing on August 13.3

On July 30, Judge Mahan issued a temporary restraining order: “defendants are restrained from nullifying, processing, and/or verifying the petitions 

and petition signatures submitted in support of the Regulation of Marijuana 

Initiative.”4

 In addition, Judge Mahan ordered “that defendants shall not take 

any action that would in any manner affect the ability of the court to grant 

plaintiffs’ request for preliminary injunction” and ordered the plaintiffs to 

post a nominal $100 bond.5

On August 20, Judge Mahan declared unconstitutional two provisions of 

Nevada’s initiative law.6

 First, he declared it unconstitutional for Nevada to 

1. Complaint, Comm. to Regulate & Control Marijuana v. Heller, No. 2:04-cv-1035 (D. 

Nev. July 27, 2004), D.E. 1; ACLU v. Lomax, 471 F.3d 1010, 1014 (9th Cir. 2006); see Carri 

Geer Thevenot, ACLU Sues, Tries to Save Initiative, Las Vegas Rev.-J., July 28, 2004, at 1B. 

2. Motion, Comm. to Regulate & Control Marijuana, No. 2:04-cv-1035 (D. Nev. July 27, 

2004), D.E. 4–5; ACLU, 471 F.3d at 1014. 

3. Order, Comm. to Regulate & Control Marijuana, No. 2:04-cv-1035 (D. Nev. July 28, 

2004), D.E. 6; ACLU, 471 F.3d at 1014. 

4. Temporary Restraining Order, Comm. to Regulate & Control Marijuana, No. 2:04-cv1035 (D. Nev. Aug. 2, 2004), D.E. 8. 

5. Id. 

6. Injunction, id. (Aug. 20, 2004), D.E. 21; ACLU, 471 F.3d at 1015; see Carri Geer 
Minimum County Requirements for Ballot Petitions 

2 Federal Judicial Center 7/12/2023 

require a minimum number of petition signatures from each of at least 75% 

of Nevada’s counties.7

 Second, he declared unconstitutional “the requirement 

that each document in a petition submitted in support of an Initiative must 

contain an affidavit of Document Signer that is executed by a person who 

signed the petition as a supporter of the Initiative.”8 Judge Mahan denied the 

plaintiffs’ request to nullify a rule disqualifying petition signatures by voters 

who may have registered after signing the petition.9

 As a result of this last 

holding, the initiative failed to qualify for the 2004 general-election ballot.10

On immediate appeal by the plaintiffs, the court of appeals affirmed on 

September 8, by a vote of two to one, Judge Mahan’s ruling against the plaintiffs.11 Nine days later, Nevada filed its notice of appeal, challenging Judge 

Mahan’s 75% holding.12 The court of appeals affirmed that holding on December 8, 2006.13

Both the district court’s and the court of appeals’ holdings were dictated 

by the court of appeals’ previously declaring unconstitutional Idaho’s requirement that ballot initiatives be promoted by 6% of the voters in at least 

half of the counties: “this geographic distribution requirement favors residents of sparsely populated areas over residents of more densely populated 

areas in their respective efforts to participate in the process of qualifying initiatives for the ballot.”14 The Idaho case, in turn, applied a 1969 holding by 

the Supreme Court in Moore v. Ogilvie declaring unconstitutional as a violation of equal protection an Illinois requirement that presidential nominating 

petitions include a minimum number of signatures from at least fifty of Illinois’s 102 counties, noting that “93.4% of the State’s registered voters reside 

in the 49 most populous counties, and only 6.6% are resident in the remaining 53 counties.”15

On August 1, 2007, Judge Mahan awarded the plaintiffs $107,511.99 in 

attorney fees and costs.16

Thevenot, Rules on Initiative Process Unconstitutional, Las Vegas Rev.-J., Aug. 14, 2004, at 

1A. 

7. Injunction, supra note 6; ACLU, 471 F.3d at 1015. 

8. Id.

9. Id.

10. Dissenting Opinion at 1–2, Comm. to Regulate & Control Marijuana v. Lomax, No. 

04-16626 (9th Cir. Sept. 8, 2004), filed as Judgment, Comm. to Regulate & Control Marijuana, No. 2:04-cv-1035 (D. Nev. Oct. 25, 2004), D.E. 34; see ACLU, 471 F.3d at 1013; see also

Ed Vogel, Petitions Fall Short in Support, Las Vegas Rev.-J., Sept. 2, 2004, at 1B. 

11. Opinion, Comm. to Regulate & Control Marijuana, No. 04-16626 (9th Cir. Sept. 8, 

2004), filed as Judgment, supra note 10; see ACLU, 471 F.3d at 1015; see also Ed Vogel, Ruling Sounds Petitions’ Death Knell, Las Vegas Rev.-J., Sept. 9, 2004, at 1A. 

12. Notice of Appeal, Comm. to Regulate & Control Marijuana, No. 2:04-cv-1035 (D. 

Nev. Sept. 17, 2004), D.E. 30; ACLU, 471 F.3d at 1015. 

13. ACLU, 471 F.3d 1010. 

14. Idaho Coal. United for Bears v. Cenarrussa, 342 F.3d 1073, 1074 (9th Cir. 2003). 

15. 394 U.S. 814, 816 (1969). 

16. Order, Comm. to Regulate & Control Marijuana, No. 2:04-cv-1035 (D. Nev. Aug. 2, 

2007), D.E. 70.