Ballot Law Update: Courts could restrict the scope of the initiative power in three states

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June 1, 2014

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By Josh Altic

In 2014 legislative sessions so far, there are at least 70 pending laws concerning ballot measures, of which 67 were carried over from 2013. At least five laws were proposed this year. Three laws were defeated and two were approved. The Ballot Law Update is released at the end of each month.

This edition features a court ruling that renders a proposed 2014 gay rights initiative largely irrelevant by ordering Ohio to recognize out-of-state marriages. The May report also discusses voters in two states, Montana and Massachusetts, that will see precedent-setting court decisions potentially restricting the power of initiatives with regard to taxes and casinos.[1][2][3]

Recent news

Montana Supreme Court poised to make a decision that could restrict the state's initiative power:


An education union is seeking to have Charter Communication's property tax initiative booted from the ballot in a move that Attorney General Tim Fox warns could severely restrict the scope of Montana's ballot initiative power.[1]

In December of 2013, the Montana Supreme Court upheld the Revenue Department's 2009 reclassification of property evaluation that increased Charter Communication's property tax bill from $1.7 million in 2009 to $7.3 million in 2010. In May of 2014, Charter started circulating an initiative, I-172, seeking to reverse the classification change and go back to the tax rules of 2009. The alliance of the Montana Education Association and the Montana Federation of Teachers, called the MEA-MFT, which is in favor of the increased revenue to education programs brought about by the tax reclassification, asked the supreme court to remove the initiative from the ballot. The MEA-MFT cited provisions of state law that prohibit the use of citizen initiatives to effect appropriations of state funds. Attorney General Tim Fox believes the supreme court should reject the case because it would allow for a precedent of generously interpreting "appropriations" and would severely limit the voters' power of initiative. Fox said, “Such a broad interpretation of ‘appropriations of money’ is not supported by Montana law and it would possibly exclude Montanans from voting on a number of issues through initiatives." He also proposed that just because a ballot measure has a fiscal impact does not mean that it automatically appropriates money.[1]

Courts to interpret Massachusetts Constitution on initiative restrictions with regard to casino repeal initiative:

A court case could decide whether or not Massachusetts voters can exercise direct democratic control over casinos in the state. Proponents of an initiative to repeal a state law allowing casino operation are arguing that the Attorney General Martha Coakley (D) unfairly blocked the Repeal the Casino Deal initiative through a convoluted application of constitutional law, ignoring multiple court rulings commanding the state's attorney general to treat citizen petitions generously and approve them unless it is reasonably clear that they violate restrictions found in state law.[4]

When the group Repeal the Casino Deal submitted their petition for a veto referendum targeting the 2011 law that allows casinos in the state, Coakley rejected it based on a provision in the Massachusetts Constitution prohibiting citizen initiatives and referendums from taking away an individual's "right to receive compensation from private property appropriated to public use." Coakley argued that the proposed referendum violated these rights of the companies that had paid $400,000 casino application fees according to the 2011 law. Coakly posited that the application for a casino license forms an implied contract with the state. Opponents of the casino deal seeking to repeal it in November argue that the state has long been able to change gambling rules at will - both through the legislature or the ballot box - and that Coakley is abusing a constitutional provision in order to remove the measure from the ballot.[4]

WLWT, "Judge rules Ohio must recognize out-of-state gay marriage," April 14, 2014

Court actions

Federal court considers case that could take decisions on same-sex marriage away from Ohio voters:

A ballot measure proposed by same-sex marriage supporters in Ohio for the 2014 ballot may be rendered irrelevant by a court ruling issued on April 14, 2014, by Timothy Black, a federal judge for the Southern District of Ohio. In 2004, 61.7 percent of Ohio voters approved Issue 1, which prohibited the state from recognizing as marriage any other relationship than that between one man and one woman. Proponents of same-sex marriage are currently circulating an initiative to overturn the 2004 amendment. This measure may be reduced to redundancy, however, by Judge Black's ruling, which orders the state to recognize all out-of-state marriages.[3]

After four same-sex couples filed a lawsuit seeking to require the state to recognize them as married, Judge Black ruled that the state must recognize any marriage between same-sex couples performed outside of Ohio. Judge Black immediately ordered the state to recognize the marriages of the four couples who filed the lawsuit. Black, however, issued a temporary abeyance of his ruling for all other couples as requested by the state, which is appealing Black's decision to the Sixth Circuit Appellate Court. State representatives said they wanted to avoid hasty reactions from same-sex couples, such as immediately traveling to another state to get married, in case the decision is overruled. Meanwhile, voters standby to see if the decision on this contentious issue will be taken from their hands or if they will, in fact, be revisiting the validity of same-sex marriage on the ballot in November. If Black's ruling is upheld, some will see it as the courts precluding the authority of citizen initiative on the topic of gay marriage.[3][5]

Approved legislation

See also: Changes in 2014 to laws governing ballot measures

The National Conference of State Legislatures did not update its database with any newly approved legislation regarding ballot measures or recall in the month of May.[6]

Failed legislation

The National Conference of State Legislatures did not update its database with any newly defeated or expired legislation regarding ballot measures or recall in the month of May.[6]

See also

External links

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