Ballot Law Update: Court decisions shape initiative and referendum
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By Tyler Millhouse
Since the beginning of the year, 201 laws have been proposed in 35 states affecting the initiative and referendum process, according to the National Conference of State Legislatures.
The Citizens in Charge Foundation (CICF), a non-profit that promotes initiative and referendum rights, identifies potential laws which either ease or tighten restrictions on ballot initiatives. So far in 2011, CICF has identified 52 laws that make getting a measure on the ballot more difficult. They have identified 40 laws that would make the process easier. Of the five laws that have been passed, two make the process harder, one easier, and two have no effect.
As stated last week, 2011 may be on track to top 2010 in the amount of I&R legislation introduced. However, legal decisions also play an important role in shaping the initiative and referendum process. For this reason, we are introducing a new section devoted to court decisions affecting initiative and referendum.
Court decisions concerning I&R
The following is a selection of relevant court decisions in 2011:
- California Residency Requirement Ruling: On February 4, a federal judge for the US District Court for the Central District of California declined to strike down California's petition circulator residency requirement. While both parties agree that the law is unconstitutional, the court found that the plaintiffs did not have standing since the Secretary of State assured the court that the law will not be enforced. The ruling can be found here.
- Washington Public Disclosure Ruling: On February 22, 2011, the US Supreme Court declined to review the case, upholding Washington State's requirement that organizations disclose donations of $25 or more given for or against a ballot proposition. The lawsuit against the state was brought by a pro-life organization seeking to overturn the state's assisted suicide initiative.
- Utah Signature Privacy Preliminary Injunction: In an order issued March 21, the United States District Court for the District of Utah ruled that signatures for the Utah Ethics Commission Initiative (2012) should remain private for the time being. Since the measure has not yet been certified for the ballot, the court found that the state did not have a legitimate reason to release the names of those who signed. The order can be found here.
- Maryland Signature Ruling: The Maryland Court of Appeals, the state's supreme court, ruled 5-2 on March 22 that illegible signatures can be valid. If the voter's printed name and address match his or her voter registration, then only the appearance of the voter's signature must match voter registration records. The decision can be found here.
- Boulder City Lawsuit Ruling: On April 1, 2011, a state court in Las Vegas, Nevada ruled that the City Council of Boulder City was wrong to sue the sponsors of two local initiatives. The initiatives, both passed by voters, imposed term-limits on members of city appointed boards and required the city to get voter approval before borrowing more than $1 million. The city council argued that the initiatives were invalid because they considered topics which are not subject to initiative. However, the court determined that the city was wrong to sue proponents of the measures since they could have sued to overturn the initiatives without targeting the proponents. The city was ordered to pay the defendants' legal fees, but the judge stayed the ruling in order to allow time for an appeal.
Bills to watch
- Arizona House Bill 2304: HB 2304 would alter the state's requirements for petition circulators, ease third-party primary access, and clarify laws regarding wearing political apparel at polling places. With respect to initiatives, the law would repeal the state's unconstitutional circulator residency requirement. However, it would replace this requirement with a requirement that out-of-state circulators register with the state. Citizens in Charge Foundation rating: Reduces initiative rights.
- Note: Gov. Jan Brewer signed HB 2304 into law on April 29, 2011.
- Illinois House Bill 0097: HB0097 would allow for the recall of local elected officials in Illinois. Citizens in Charge Foundation rating: Protects/expands initiative rights.
- Massachusetts House Bill 207: HB 207 would prohibit paying circulators, in any form, for collecting signatures. A similar law was found unconstitutional in Meyer v. Grant. Citizens in Charge Foundation rating: Reduces initiative rights.
- Missouri House Joint Resolution 16: HJR 16 is a proposed constitutional amendment that would change Missouri's geographic distribution requirement. Currently, petitioners must collect signatures equaling 8% of the vote cast for governor in six of the state's nine US Congressional districts. Under the proposed amendment, petitioners would have to collect these signatures in all nine of the districts. Citizens in Charge Foundation rating: Reduces initiative rights.
- Oregon House Bill 2258: HB 2258 would direct the Oregon Secretary of State to create an election law telephone hotline and empower the Elections Division to more rigorously investigate violations. In addition, the law would require petitioning organizations to collect extensive payroll information for petition circulators. Citizens in Charge Foundation rating: Reduces initiative rights.
- New York Senate Concurrent Resolution 00709: S00709 is a proposed constitutional amendment that would establish initiative and referendum in New York. The amendment would require petitioners to gather signatures equaling 5% of the vote in the last gubernatorial election. Petitioners would also have to collect a minimum of 5,000 signatures from 3/5 of New York's congressional districts. The bill will ultimately require voter approval in two consecutive elections in order to amend the state constitution. Citizens in Charge Foundation rating: Protects/expands initiative rights.
- Montana House Bill 391 (2011): HB 391 was passed by the Montana Legislature on March 28, 2011 and has since become law. The law prohibits local ballot measure from setting the enforcement priority of state laws. The law is seen as targeting a local ballot measure which instructed local law enforcement to make marijuana laws their lowest priority. Citizens in Charge Foundation rating: Reduces initiative rights.
- Utah Senate Bill 165 (2011): SB 165 changes the basis of Utah's signature requirements from the number of votes cast in the last gubernatorial election to the number of votes cast in the last presidential election. This will raise the number of signatures required. In addition, the bill bans electronic signatures for ballot initiatives. Citizens in Charge Foundation rating: Reduces initiative rights.
- Virginia Senate Bill 889 (2011): SB 889 removes the requirement that voters include the last four digits of their social security number when signing a petition. Citizens in Charge Foundation rating: Protects/expands initiative rights.
- NCSLnet, "Initiative & Referendum Legislation," accessed April 25, 2011
- This report is based on the April 19, 2011 edition of a weekly email sent out by CICF called the "Afternoon I&R Legislation Update"
- Ballot Access News, "U.S. District Court Judge Refuses to Strike Down California Residency Requirement for Circulators, on Standing Grounds," February 4, 2011
- Washington Office of the Secretary of State, Blog, "High court rejects challenge of campaign reporting law," February 22, 2011
- Ballot Access News, "Federal Court Lets Initiative Signers Keep Names and Addresses Private for Now," March 22, 2011
- Ballot Access News, "Court rules signatures can be valid, even if illegible," March 22, 2011
- Ballot Access News, "Nevada Court Says Boulder City Council Should Not Have Sued Proponents of Initiatives; Tells City to Pay Attorneys’ Fees," April 1, 2011
- Ballot Access News, "Arizona Bill, Improving Ballot Access and Making Other Changes, Passes House Judiciary Committee," February 10, 2011
- Bill Information, HB0097
- Ballot Access News, "Massachusetts Bills to Restrict Petition Circulators," February 23, 2011
- St. Louis Beacon, "Legislators propose tightening process for ballot initiatives," February 23, 2011
- Oregon Business, "Bills target initiatives, campaign finance," February 11, 2011
- CICF, "Afternoon I&R Legislation Update," April 19, 2011
- Bill History, HB 391
- Billings Gazette, "Missoula County attorney's attempt to override marijuana initiative creates uproar," January 20, 2011
- Utah Senate Bill 165, as enrolled