2008 ballot measure lawsuits

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The main areas around which proponents and opponents of ballot initiatives face or file litigation are:

Taxpayer resources in ballot campaigns

Backers of Arizona Proposition 101 and California Proposition 2 have alleged that their opponents are illicitly using tax-funded government resources to campaign against their measures.

  • Arizona 101. 101's supporters filed a lawsuit October 3 in Maricopa County Superior Court asking a judge to block the director of the state's indigent care system, known as AHCCCS, from campaigning against it. They claim that Anthony Rodgers, director of AHCCCS, is illegally using his position and state resources to urge the defeat of Proposition 101. Rogers sent a three-page memo in September to editorial page writers and others saying that Prop. 101 could have "unintended consequences" and change how AHCCCS has to operate.[1]
  • California Proposition 2. Prop 2 backers believe that the University of California-Davis might have been funded by agriculture interests to produce a study saying that Prop 2 would hurt California's farms and raise the price of eggs.[2]
  • Massachusetts Marijuana Initiative. The Committee for Sensible Marijuana Policy, backers of the initiative, allege in a lawsuit that opposing district attorneys used public funds to post and house a statement urging voters to reject the decriminalization initiative on its Web site, a violation of Massachusetts election law, which prohibits public officials from using public resources to advocate for or against a ballot initiative. The statement on the state run Massachusetts District Attorneys Association website says that if the question is approved, "any person may carry and use marijuana at any time."[3]

Ballot title litigation

Arkansas

  • The title for the Severance Tax Increase (an initiative which ultimately did not turn in signatures) proposed by its sponsors was rejected by the Attorney General, which had the effect of halting the initiative.
  • Opponents announced in late August they would file a lawsuit against the Unmarried Couple Adoption Ban because the ballot title, they say, is misleading. In late September, opponents said they would not file the suit.[4]

Arizona

  • Proposition 102 (Proposed ban on same-sex marriage.) Arizona Secretary of State Jan Brewer and Attorney General Terry Goddard disagreed over how to describe on the ballot what the effect of a "no" vote would be. A lawsuit was filed by the "Yes on 102" campaign to block Brewer's way of describing it in the ballot title. However, the dispute was resolved short of the courtroom shortly before the ballot booklets went to press in late August.[6]
  • Arizona Proposition 200. Opponents of Proposition 200 filed a lawsuit against Secretary of State Jan Brewer asking her to clarify the descriptive language of the measure. A judge ruled that the group had filed their objection too late which means the ballot language can include the phrase, "This measure will bring dramatic pro-consumer reform to payday lending and preserve consumer choice."[7]
  • Arizona Proposition 201. The Homebuilders Association filed a lawsuit seeking to keep Proposition 201 off the ballot on the grounds that the ballot title for the proposition is "rife with errors and intentionally misleading."[8]
  • Arizona Proposition 203. Supporters of the TIME initiative filed a lawsuit against the ballot title written by the Arizona Legislative Council saying that the ALC's description of the effect of the proposition might confuse voters into thinking that the measure would increase taxes 17.8 cents rather than 17.8%. Judge Edward Burke agreed with the plaintiffs on August 1, saying the ALC's wording is "intended to exaggerate the tax increase" and constitutes an "editorial comment." The ALC planned to appeal Judge Burke's decision, but this was rendered unnecessary when it turned out that the initiative had insufficient signatures to qualify for the ballot.[9]

California

  • Supporters of Proposition 8 sued to have the ballot title of the proposition read "Only marriage between a man and a woman is valid or recognized in California" versus "Eliminates the Right of Same-Sex Couples to Marry."

Colorado


Florida

  • A court in Leon County pulled Florida Amendment 5 (2008) from the ballot, stating "the ballot title and summary provided in the proposition for Amendment 5 fail to fairly inform the voter, in a clear and unambiguous language, of the chief purposes of the amendment and the language of the title and summary, as written, is misleading in the foregoing respects." The ruling was appealed by the state to the Florida Supreme Court, which struck the amendment from the ballot.[16] The ruling "doesn't mean anything," says Gov. Crist, a key backer of the amendment. "I was disappointed but not dismayed. It will be appealed — I think everybody knows that," Crist said. "I hope it stays on the ballot because I like the will of the people. I want them to weigh in. I want them to have that power, because they're the boss."[17] The 1st District Court of Appeal agreed to pass the case directly to the Supreme Court without a ruling to expediate the process.[18][19][20]

Illinois

The Chicago Bar Association, Lt. Gov. Pat Quinn and a group of voters sued the state elections board over the ballot title for the Illinois Constitutional Convention (2008); a lawsuit they won on October 2. They particularly objected to a paragraph that included the results of a failed 1988 constitutional convention vote and a separate sentence declaring that not voting on the question is the equivalent of a "no" vote.

Cook County Circuit Judge Nathaniel Howse Jr. in his ruling said, "I believe the language is not accurate [and] interferes with the rights of voters." He ordered lawyers to develop a new version of the ballot summary by October 3 which they may be ordered to print on separate paper that carries an official government seal for distribution at polling places on election day, since the state's official ballots had already been printed by the time of his decision.[21]

Maryland

The ballot title of the Maryland Casino Measure was challenged in court by opponents of the measure, who said the title was overstated the extent to which slots revenue would go to education. The Maryland Court of Appeals agreed with the opponents. The word "primary" was then added to the title, so that its final version says in the relevant part, that slots revenue would be used "for the primary purpose of raising revenue for education."[22][23][24]

Missouri

Nebraska

Opponents of the Nebraska Civil Rights Initiative filed a lawsuit in Lancaster County objecting to the measure's ballot title.[29] Lancaster County district judge Stephen Burns ruled that "The court finds that by and large the language of the attorney general should be used."[30]

The NCRI was also the subject of a post-certification signature challenge.

Nevada

The AFL-CIO filed a lawsuit against the Taxpayer Protection Act on March 26, 2008, calling the proposed ballot description false and misleading.[31]

North Dakota

North Dakota Secretary of State Al Jaeger approved a ballot title for the Income Tax Cut Initiative before circulation in July 2007. After signatures were turned in, Jaeger changed the title that will appear on the ballot. His change says that under the provisions of the initiative, income in two income tax brackets may not be taxed at all. The state's tax department says that this may be true of up to 325 taxpayers in the state out of 320,000 whil file tax returns. The initiave's sponsors objected, unsuccessfully, to the change in wording.[32][33]

Ohio

Washington

  • Duane French, an opponent of Washington I-1000 who is associated with the organization Not Dead Yet filed a lawsuit challenging the measure's ballot title. French wanted the title to have the phrase "assisted suicide" in it. The judge ruled against French, saying that neither "suicide" nor "death with dignity" (the term preferred by I-1000 supporters) are neutral, so the final ballot title describes the measure as "aid in dying" and says that terminally ill adults would be allowed to "request and self-administer lethal medication prescribed by a physician."[34][35][36]
  • Tim Eyman filed a lawsuit in late August against the ballot title for the King County Charter Amendments (2008), saying that the language on the ballot doesn't tell voters the charter would double the number of signatures required to qualify future citizen-initiated amendments. On September 11, a judge agreed with Eyman.[37][38][39]

Other ballot language issues

Some states publish official voter guides about the ballot propositions that will appear on the ballot. This means that in addition to lawsuits about ballot titles and summaries, lawsuits can also be filed about other aspects of the presentation of an initiative and its opposition in a government-produced voter guide.

California

Proposition 2

In the case Pacelle v. Bowen, supporters of Proposition 2 filed a lawsuit asking that parts of the ballot argument and the rebuttal to the "no" side's argument they had previously submitted be changed.[40][41]

Supporters and opponents of California Proposition 7 filed lawsuits in Sacramento Superior Court regarding the wording of ballot arguments that voters will see in the official voter's guide. Utimately, Sacramento Superior Court Judge Michael Kenny upheld both proponents and opponents arguments, essentially ruling both arguments were correct.[42]

Opponents of California Proposition 8 filed a lawsuit, Jenkins v. Bowen, in late July asking that a pro-8 argument set to appear in the official ballot booklet be removed.[43]

The pro-8 arguments that anti-8 groups wanted removed from the booklet say:

  • "It [Prop 8] protects our children from being taught in public schools that 'same-sex marriage' is the same as traditional marriage."
  • "In health education classes, state law requires teachers to instruct children as young as kindergartners about marriage. (Education Code 51890). If the gay marriage ruling is not overturned, TEACHERS WILL BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage." (Emphases and capitalization from original text.)[44]

On August 8, 2008, in response to the lawsuit, Superior Court Judge Timothy Frawley found that supporters of Prop. 8, in the ballot arguments they wrote for inclusion in the state's voter guide, did overstate the extent to which Prop. 8 would have an impact on what is taught in public schools, because public schools are not required to provide instruction on marriage and parents can withdraw their children.

Frawley's ruling requests that the ballot argument be re-worded to state that teachers "may" or "could" be required to tell children there is no difference between same-sex and opposite-sex marriage, rather than "will be."[45]

Proposition 4

Opponents of Proposition 4 sued to have references to "Sarah" or "Sarah's Law" deleted from the official voter's guide.

Proposition 7

Supporters and opponents of Proposition 7 are asking a judge to delete various arguments from the voter's guide made by the other side.

Proposition 8

Opponents of Proposition 8 filed a lawsuit, Jenkins v. Bowen, in late July asking that a pro-8 argument set to appear in the official ballot booklet that will be printed on August 11 and made available both on state websites and at polling places be removed.[46]

The pro-8 arguments that anti-8 groups want removed from the booklet say:

  • "It [Prop 8] protects our children from being taught in public schools that 'same-sex marriage' is the same as traditional marriage."
  • "In health education classes, state law requires teachers to instruct children as young as kindergartners about marriage. (Education Code 51890). If the gay marriage ruling is not overturned, TEACHERS WILL BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage." (Emphases and capitalization from original text.)[47]

On August 8, 2008, in response to the lawsuit, Superior Court Judge Timothy Frawley found that supporters of Prop. 8, in the ballot arguments they wrote for inclusion in the state's voter guide, did overstate the extent to which Prop. 8 would have an impact on what is taught in public schools, because public schools are not required to provide instruction on marriage and parents can withdraw their children.

Frawley's ruling requests that the ballot argument be re-worded to state that teachers "may" or "could" be required to tell children there is no difference between same-sex and opposite-sex marriage, rather than "will be."[48]

Post-certification signature challenges

Arizona

  • Arizona Proposition 104. Two opposing groups, By Any Means Necessary and Protect Arizona Freedom, filed separate lawsuits questioning the validity of signatures. However, these lawsuits were rendered moot when the Arizona Secretary of State determined that the number of signatures filed was insufficient.

California

Colorado

  • Colorado Right to Work Initiative. Protect Colorado's Future (PCF) filed a post-certification signature challenge lawsuit May 28, 2008, to block the measure from the ballot. The lawsuit alleged a "pattern of massive fraud."[50] On Aug. 6, 2008, District Court Judge Christina Habas dismissed 21 claims of the suit. Habas said state law does not require the Secretary of State to conduct a line-by-line review of all signatures gathered in the petition.[51] Habas dismissed eight additional claims because there were still enough signatures to place the initiative on the ballot even if they were true.[51] The court ruled Aug. 21 on the remaining eight counts, based on a narrower set of legal claims that relate only to the signatures verified by the state in its standard random-sampling process.[52] The court dismissed all counts.[53]

Hawaii

Maine

Maryland

The Montgomery County Gender Identity Referendum was removed, post-certification, from the ballot after opponents filed a signature challenge lawsuit.[54]

Nebraska

  • After it had been certified for the ballot by the Secretary of State, a post-certification lawsuit was filed against the Nebraska Civil Rights Initiative by Nebraskans United.[55]

Nevada

The AFL-CIO has been involved in several challenges in 2008, including an on-going challenge to Nevada Proposition 13, which a judge ordered removed from the ballot on September 9.[56][57]

Signature recovery lawsuits

Arizona

  • Arizona Proposition 100. Supporters of this measure filed a lawsuit asking that signatures be re-verified after election officials announced they were finding a 35% rate of invalid signatures. The initiative was eventually put on the ballot.
  • [[Arizona Proposition 104 (2008)|Arizona Civil Rights Initiative] (dead link)]. Supporters filed this lawsuit on August 27, and then dropped it a day later, saying that they had insufficient time to prove their case.[60]

Colorado

  • [[Colorado Discrimination/Preferential Treatment Initiative (2008)|Colorado Amendment 82] (dead link)]. Supporters of this initiative filed a signature recovery lawsuit in early October 2008. Since it is too late for their effort to make the 2008 ballot, the relief they seek, if they win the lawsuit, is to be placed on the 2010 ballot. The group says that the Colorado Secretary of State's office disqualified 8,000 signatures that were in fact valid.[62]

Florida

Michigan

Missouri

Since 2002, supporters of at least three ballot measures in Missouri have filed successful signature recovery lawsuits. In 2006, a Missouri judge ruled in the case of Committee for a Healthy Future v. Carnahan that 1,004 signatures for Amendment 3, a tobacco tax initiative, should have been counted and the measure was subsequently placed on the November ballot. In 2002, in the case of Citizens for a Healthy Missouri v. Blunt, a judge ruled that additional valid signatures should have been counted in the Tobacco Tax Proposition and ordered it onto the November 2002 ballot. Similarly, supporters of Amendment 2, a collective bargaining initiative, filed a successful signature recovery lawsuit.[64]

Oregon

Single-subject rule litigation

Colorado

Opponents of the Colorado Civil Rights Initiative filed an unsuccessful lawsuit in 2007 challenging the amendment on the grounds that it violated Colorado's single-subject rule. In mid-September 2007, a split Colorado Supreme Court upheld the initiative's language.

Michigan

The Michigan Legislative and Judicial Restructuring Initiative (2008) was struck from the ballot in mid-August in response to the lawsuit, Pirich v. Land, while argued that the initiative tried to do too many things. Michigan doesn't have a single-subject rule per se, but a three-judge panel of the Michigan Court of Appeals ruled unanimously Aug. 20, 2008, that the proposed ballot measure was an illegal attempt to enact a general revision of the state constitution, something that must be done by calling a constitutional convention. The panel called the number and scope of the proposed changes "overarching" and unprecedented.[65][66]

Missouri

  • Two lawsuits were filed against Missouri Proposition A saying it violates the state's single subject rule. The lawsuits were consolidated and on October 22, a judge ruled against the plaintiffs, saying the proposition did not violate any state statutes.[67]

[68]

Nevada

On April 18, Carson City district judge Bill Maddox ruled that the Funding Nevada's Priorities Act did not violate Nevada's single-subject rule. Plaintiffs had argued that the measure violated the single-subject rule and that the description did not adequately explain the proposal to voters, but Judge Maddox ruled that the petitions were within legal guidelines. The Las Vegas Convention and Visitors Authority and every municipality in Clark County had filed the suit March 21, 2008.

The Education Enhancement Act Initiative was challenged in court on similar grounds and it also survived the challenge.[69]

Other litigation

Unconstitutional

  • On December 30, 2008, opponents of the Arkansas Unmarried Couple Adoption Ban (2008) filed a lawsuit in Pulaski County Circuit Court asking a judge to strike down the measure on the grounds that it violates federal and state constitutional rights to equal treatment and due process. The lawsuit has twenty-nine plaintiffs, including adults and children who could be impacted by the measure.[70]

Unfit for ballot

Alaska

Opponents of the Alaska Clean Water Initiative filed suit to keep it off the ballot on the grounds that the initiative usurps the Legislature's duty of allocating state resources. A superior court judge in Fairbanks agreed with that and struck it from the ballot. The matter was appealed to the Alaska Supreme Court, which put the initiative back on the ballot a few scant weeks before the state's August 26 statewide primary, where it lost.[71] The miners are arguing that, if enacted, the Clean Water Act will cost the state $10 billion in deposits from Pebble Beach alone and possibly halt future projects. Renewable Resources Coalition argues that just as much money could be made for the state from salmon sales.[72][73][74]


Massachusetts

Opponents filed a lawsuit against the Massachusetts Greyhound Protection Act saying the measure was unfit for the ballot because it singled out two racetracks, when it should apply to the whole state. The Supreme Judicial Court took the matter under advisement after a hearing May 7, ultimately rejecting the claim that the initiative shouldn't be on a statewide ballot because it was about two local racetracks by saying that racing amounts to a statewide concern[75][76]

Fatal flaw in drafting

Opponents of Washington Initiative 1029 (2008) sued to have it removed from the November ballot on the grounds that the petition that was circulated and signed described the measure as an Initiative to the Legislature rather than as a Initiative to the People, which is what its supporters intended. On September 5, the Washington Supreme Court by a majority vote said that the initiative can appear on the November ballot.[77]

See also

References

  1. East Valley Tribune, "Lawsuit: AHCCCS chief illegally using position", October 3, 2008
  2. UCSD Guardian, "UC Served Legal Threat After Prop. 2 Study", September 26, 2008
  3. Boston Globe, "Supporters of marijuana ballot question lodge complaint", September 18, 2008
  4. GayWired, "Arkansas Moves to Ban GLBTs from Fostering and Adopting", August 31, 2008
  5. Forbes, "Lawsuit filed to pull lottery off Arkansas ballot", September 19, 2008
  6. Arizona Republic, "Dispute over ballot description settled", August 27, 2008
  7. Inside Tucson Business, "2 propositions bounced, 2 parse words", September 1, 2008
  8. Arizona Capitol Times, "Homebuilders group files suit to block initiative", July 23, 2008 (dead link)
  9. TIME’s almost up: Ballot initiative description hinges on court battle (dead link)
  10. No on 98 Files Lawsuit to Ensure Ballot Title Summary Accurately Reflects Prop 98 Provisions
  11. State Superior Court rules in favor of California property owners, March 7, 2008
  12. State panel approves abortion curb's language
  13. Pro-affirmative action ballot question rejected by Title Setting Board March 5, 2008
  14. Florida Court Rejects Challenges to November Ballot Initiatives, Aug 5, 2008
  15. New York Times: "Court Blocks Florida Ballot Measures Intended to Help School Vouchers," Sep 4, 2008
  16. Orlando Business Journal: "Judge pulls Amendment 5 off the ballot," Aug 14, 2008
  17. pnj.com: "Amendment 5 is down, but it's far from out," Aug 19, 2008
  18. Tampa Bay Business Journal: "Amendment 5 goes to Florida Supreme Court," Aug 19, 2008
  19. http://www.bizjournals.com/tampabay/stories/2008/09/01/daily27.html Biz Journals, "High Court strikes down Amendment 5", September 3, 2008]
  20. Florida Supreme Court order affirming decision to remove Amendment 5 from ballot
  21. Chicago Sun Times, "Judge: Ballot question 'misleading and false'", October 2, 2008 (dead link)
  22. Washington Post, "The Shortfall and Slots", September 20, 2008
  23. Forbes, "Lawsuit: Md. slots referendum wording misleading", August 28, 2008 (dead link)
  24. Washington Times, "Slots foes sue to alter language on ballot", August 29, 2008
  25. Controversy over ballot title
  26. Statement by cloning ban supporters on their legal challenge (dead link)
  27. Judge rewrites contentious ballot summary for stem cell measure
  28. Southeast Missourian, "Two lawsuits challenging casino ballot measure", August 15, 2008
  29. Opponents of ban on affirmative action object to wording on ballot
  30. Omaha World Herald, "Judge OKs wording of affirmative action ballot measure", August 29, 2008
  31. Las Vegas Review-Journal: "AFL-CIO fights effort to change tax petitions," March 29, 2008
  32. The Jamestown Sun, "ND income tax cut backers plead for ballot changes", September 10, 2008
  33. Dickinson Press, "Jaeger still won’t change tax measure wording", Sept. 10, 2008 (dead link)
  34. End of life ballot measure faces fight from coalition
  35. Seattle Times, "Initiative 1000 would let patients get help ending their lives", September 22, 2008
  36. Duane French, "No on I-1000"
  37. Seattle Times, "Eyman plans to sue to change ballot title", August 28, 2008
  38. Ballot wording challenged
  39. Eyman wins court battle, September 11, 2008
  40. Here's a new one: Prop. 2 supporters sue themselves!
  41. Text of Pacelle v. Bowen (dead link)
  42. Ballot language battle could be key for Prop. 7, August 6, 2008
  43. Hearings Set In California's Proposition 8 Same Gender Marriage Battle
  44. Arguments in favor of Prop 8 proposed for official ballot book
  45. Judge refuses to order change in Prop. 8 title, August 9, 2008
  46. Hearings Set In California's Proposition 8 Same Gender Marriage Battle
  47. Arguments in favor of Prop 8 proposed for official ballot book
  48. Judge refuses to order change in Prop. 8 title, August 9, 2008
  49. Denver Daily News: "Ballot issue under fire," July 8, 2008
  50. Rocky Mountain News: "Right-to-work foes sue to block ballot issue," May 29, 2008
  51. 51.0 51.1 Denver Business Journal: "Opponents of amendment lose in court," Aug. 7, 2008
  52. Rocky Mountain News: "Judge partially dismisses challenge to right-to-work amendment," Aug. 7, 2008
  53. Denver Business Journal: "Judge dismisses lawsuit to stop right-to-work amendment," Aug. 21, 2008
  54. Washington Post, "Anti-Bias Law Wins In Md.'s High Court", September 10, 2008
  55. Associated Press, "Suit hits Neb. anti-affirmative action petitions", September 12, 2008
  56. Las Vegas Review-Journal, "Initiatives' success rate so far a big zero", September 1, 2008
  57. Mercury News, "Judge rejects tax proposal", September 9, 2008 (dead link)
  58. East Valley Tribune, "Ruling Puts Healthcare Initiative on Ballot", August 14, 2008
  59. [http://www.forbes.com/feeds/ap/2008/08/26/ap5360248.html Forbes.com, "ruling keeps roads, land measures off Arizona ballot", August 26, 2008.
  60. Affirmative-action foes give up on 2008 ballot, August 30, 2008
  61. [http://www.forbes.com/feeds/ap/2008/08/26/ap5360248.html Forbes.com, "ruling keeps roads, land measures off Arizona ballot", August 26, 2008.
  62. Rocky Mountain News, "Secretary of state's office sued over signature disqualifications", October 4, 2008
  63. Ozarks First: Group Sues To Put Initiative On Ballot, August 18, 2008
  64. Lawsuit Filed to Place Clean Energy Initiative on November Ballot
  65. Detroit Free Press: "State Court of Appeals: Proposal to reorganize government won’t see November ballot," Aug. 20, 2008
  66. Detroit News: "Reform ballot proposal rejected," Aug. 21, 2008
  67. Associated Press, "Judge rejects lawsuit against Missouri casino measure", October 23, 2008
  68. Southeast Missourian, "Two lawsuits challenging casino ballot measure", August 15, 2008
  69. Las Vegas Review-Journal: "Initiative backers dismiss resistance," March 22, 2008
  70. The Morning News, "Lawsuit Challenges Gay Adoption, Foster Parenting Ban", December 30, 2008 (dead link)
  71. Anchorage Daily News: "Miners, Natives seek to block initiatives," Feb. 12, 2008
  72. NewsMiner.com: "Ballot measures go to court, could halt Pebble Mine," Feb. 11, 2008
  73. Anchorage Daily News: "Judge rules against clean-water initiative," March 1, 2008
  74. Alaska Public Radio: "Clean water initiative under scrutiny in the courts," Feb. 29, 2008
  75. Boston.com: "Supporters amass signatures for dog racing ban," June 18, 2008
  76. Associated Press: "Court rejects challenge to dog-racing initiative", July 15, 2008
  77. The Olympian, "Supreme Court OKs initiative for ballot", September 5, 2008

Additional information about ballot litigation in 2008