[Note: This is part of a series.]

What do the words “fraud” and “unconstitutional” have in common? (Hint: It relates to my latest obsession.)

Give up?

Okay, the answer is that those words were used by courts in Nevada and Montana to describe the “takings” initiatives in those states. What’s perhaps even more interesting is that those words—and the legal reasoning that engendered them—could easily be applied to the mirror-image ballot measures in four other states.

Here’s what happened.

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  • First, a brief history. Voters in six western states were facing property rights ballot measures this November. The details are a little different in each state, but the upshot is the same: planning will be paralyzed by “pay-or-waive” schemes.

    Now, the story. All six initiatives are, for a variety of reasons, unwise public policy. But adding insult to injury, the initiatives’ backers engaged in deliberate acts of deception, blurring two technical-sounding but logically distinct issues: “eminent domain” and “regulatory takings.” The tactic was cynical, but clearly stated: use legitimate anger over eminent domain as a sugarcoating for the poison pill of “takings.”

    But the confusion tactic failed, at least in Nevada. Last week, the state supreme court got wise to the ploy and shot down half of Nevada’s so-called PISTOL measure, on the grounds that it dealt with more than a single subject and was therefore unconstitutional. (This should not come as huge surprise, since that was precisely the initiative’s strategy, as cunningly outlined by the Reason Foundation.)

    Meanwhile, in Montana, Initiative 154 got smacked down by a district court. Along with a pair of other dubious initiatives, 154 was tossed because backers had engaged in signature-gathering fraud and related deceptions. In an acidly worded ruling, the judge said:

    “The court finds that the signature-gathering process was permeated by a pervasive and general pattern and practice of deceit, fraud and procedural non-compliance.”

    The wholestory of the deception is somewhat long and complicated. But it’s worth trying to sort out because—just like the confusion strategy that got slapped in Nevada—the same fraudulent tactics were used by initiative backers in Washington, Idaho, California, and Arizona. Allegedly.

    So, next question: What does the future hold for initiatives in those four states?

    I’m guessing the answer rhymes with “lawsuits.”

    Oh right, the answer actually is “lawsuits.”