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A case of first impression pending before the Nevada Supreme Court takes up the question of whether a federal official is answerable to state campaign laws. The lawsuit arose over a campaign by the White House Office of National Drug Control Policy to oppose a 2002 Nevada ballot initiative to regulate marijuana. Question 9 on Nevada’s 2002 general election ballot addressed the decriminalization of the possession of up to three ounces of marijuana. In the months before the election, White House Drug Czar John Walters visited Nevada to oppose the measure, which was eventually defeated. He made public speeches, held press conferences and ran television ads in opposition. But he didn’t file campaign expenses, as required by Nevada election laws. The Nevada Supreme Court case, Marijuana Policy Project v. Dean Heller, Secretary of State, No. 43173, presents a novel question about the scope of a federal actor’s immunity to state campaign laws, according to Victoria Thimmesch Oldenburg, Nevada’s senior deputy attorney general, who prepared the state’s June 7 answer to the lawsuit. Oldenburg said she came across a number of cases dealing with the supremacy clause that discuss taxation and regulatory matters, such as one in which federal employees did not need state driver’s licenses. But she found no cases specifically addressing campaign laws. “I did not come across any like this, where a federal official is advocating against a state ballot initiative,” Oldenburg said. Spending public money The group behind both the lawsuit and the ballot initiative is the Washington-based Marijuana Policy Project. MPP asserts that Walters should have to file campaign expenses, just like MPP had to. “The information they should be filing here is the same we could get from a [Freedom of Information Act request], assuming the drug czar’s office would respond,” said Steve Foggs, legal advisor at MPP. “There’s no way we’re affecting his ability to oppose legalization.” Foggs argues that Walters spent public money to become involved in a state election, and should have to report it. The attorney general’s legal position is outlined in its answer in opposition to MPP’s petition for writ of mandamus to the Nevada Supreme Court and a letter to the Nevada secretary of state. It asserts that the secretary of state cannot require Walters to report expenditures because he is immune as a federal official acting within the scope of his official duties. “We opposed the petition on the grounds of intergovernmental immunity which derives from the supremacy clause,” Oldenburg said. One of the test cases is In re Neagle, 135 U.S. 1 (1890), according to Oldenburg. That decision lays out two established principles. First, that in matters of dispute, federal law trumps state law. And second, that federal officials are not answerable to state laws when carrying out their official functions. Foggs, however, disputes that legal analysis. “The standard we found is that federal officials have to follow state laws as long as they don’t frustrate the federal actor’s purpose,” he said. Foggs argues that there must be a limit to a federal official’s immunity and where the court draws that line is important. Both sides express concern over a federal official’s ability to interfere with a state election. In his letter to the Nevada secretary of state, Attorney General Brian Sandoval stated: “The excessive federal intervention that was exhibited in this instance is particularly disturbing because it sought to influence the outcome of a Nevada election.” [NLJ, 5-5-03.] Foggs echoes the confusion over the boundaries of federal interference in state elections. “If you can tell people that under the Hatch Act, [a federal employee] can’t get involved in nonpartisan lobbying, then how can the drug czar get involved with nonpartisan elections?” he asked, referring to the Hatch Act, 5 U.S.C. 7323(a)(1). The question, Foggs said, may be ripe for the U.S. Supreme Court. “This is an area that the U.S. Supreme court hasn’t really laid down a clear standard on. We’re hoping the federal government gets involved.”

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