Ballot Law Update: Legal action ramps up against state I&R laws

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July 31, 2013

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By Eric Veram

Since the beginning of the year, we have tracked 171 proposed laws in 35 states affecting the initiative and referendum process. Please note that some of these are constitutional amendments requiring voter approval before going into effect. The Ballot Law Update is released on the last Wednesday of each month. Stay tuned to the Tuesday Count for weekly ballot law news.

Recent news

Fight not over regarding new North Dakota abortion laws: According to reports, the committee sponsoring referendums on three of the state's new abortion laws filed a request with Secretary of State Al Jaeger to extend the length of time they have to circulate petitions. Though Jaeger says such an extension would be unconstitutional, committee chairman Gary Hangsleben says he won't stop there. In a comment made to Forum News Service, Hangsleben said, "If we’re denied (the extension), we’ll fight it and bring it to the North Dakota Supreme Court. It could be dragged out for years. Our vote could be resolved in six months, one year." According to him, referendum supporters faced sizable resistance even from women's rights groups within the state. Red River Women’s Clinic, which has filed a lawsuit challenging the recently passed abortion restrictions, is one such group, and Tammi Kromenaker, the clinic's director, says that they believe a ballot measure is the wrong way to fight the laws.[1]

California labor unions back bill curtailing paid petitioners: Assembly Bill 857 is scheduled for a committee hearing on August 12. If passed by the legislature, this bill would require that twenty percent of signatures gathered for an initiative would have to be collected by volunteer circulators, meaning petitioners not receiving compensation for the specific purpose of collecting signatures. The bill would also require paid petition firms to register with the California secretary of state and to use petitions of a different color than those being circulated by volunteers. Reports indicate that the bill is being heavily supported by labor unions operating within the state, including the California Labor Federation, the California Professional Firefighters and the International Longshore and Warehouse Union. According to an editorial by the San Diego Union-Tribune, the bill includes loopholes that allow for petitions circulated by union employees to count towards the twenty percent requirement. The bill would also repeal the state’s residency requirement for petition circulators.[2][3]

Court actions

Alaska files brief in lawsuit challenging residency requirement for petitioners: On Friday, June 21, the state filed its brief in a case brought by Robert Raymond challenging the state's requirement that petition circulators be legal residents of Alaska. The state argues that Raymond lacks standing because he lives in Wisconsin and has never expressed any intention to circulate petitions for any initiative in Alaska. The case is being heard in the United States Court of Appeals for the Ninth Circuit.[4]

Lawsuit filed in Arkansas against 2004 ballot measure banning same-sex marriage: In addition to a recently filed ballot measure aimed at repealing it, Amendment 83 has also become the subject of a lawsuit. The lawsuit was filed by Cheryl Maples in response to the Supreme Court's recent decision overturning the Defense of Marriage Act. Maples said, "Because our constitutions – both federal and state – provide for due process of law and equal protection, we're asking that those be set aside because they are flagrantly violating a fundamental right these people have." In addition to contesting the constitutional amendment, the lawsuit also asks the court to overturn legislation making same-sex marriage illegal.[5]

Oregon judge affirms pay-per-signature penalty: On Friday, July 5, administrative law judge Alison Greene Webster affirmed a $65,000 fine against Robert Wolfe for paying petition circulators for the number of signatures they gathered. This practice has been outlawed since 2002, when voters approved Measure 26. The fine was issued by the secretary of state's office last year. The allegations against Wolfe were made by two of his employees during a marijuana legalization effort that failed to make the ballot. Wolfe's attorney says that the employees are lying and has vowed to appeal the ruling.[6]

Oregon Court of Appeals upholds law banning being both a paid and unpaid petition circulator: On Wednesday, July 10, a panel comprised of three judges from the state court of appeals ruled against Marquis Couey in a case over Oregon's 2009 law that bans anyone who is a paid circulator from also volunteering to circulate petitions for other ballot measures. Though Couey did not actually violate the law, he filed the lawsuit because he wanted to volunteer to gather signatures for an initiative amending the Oregon Forest Practices Act, despite the fact that he was already a paid circulator for both Measure 74 and Measure 76, both from 2010. Interestingly, the court did not actually rule on the constitutionality of the law, but instead ruled that Couey's challenge was moot as soon as he ceased to be a registered paid petition circulator, which in this case, was the 2010 signature filing deadline. In its ruling the court noted that Couey could have requested an expedited hearing for his case but did not.[7]

Lawsuit filed over SeaTac minimum wage initiative: A lawsuit has been filed with the King County Superior Court by Alaska Airlines and the Washington Restaurant Association that seeks to prevent the SeaTac City Council from allowing voters to weigh in on an initiative raising airport workers' minimum wage. The city council is set to vote in late July on whether or not to place the initiative on the fall ballot, unless the court grants the lawsuit's request for an injunction. According to reports, the measure would raise the minimum wage of workers employed in the transportation, tourism and hospitality industries in and around the airport in SeaTac to fifteen dollars per hour. The measure would also require paid sick leave, full-time work and some job security for the workers.[8]

Judge rules against petitioners in fight over Missouri Wal-Mart: After the Springfield City Council approved a zoning plan allowing a Wal-Mart Neighborhood Market to be constructed on property owned by the Life360 church, opponents of the plan submitted referendum petitions in an attempt to hold a vote on the issue. That referendum was countered by the church's filing of a lawsuit seeking to block any such vote. Following the recusal of all local judges, Vernon County Judge Gerald McBeth stepped in to preside over the case. On Tuesday, July 23, Judge McBeth issued his decision, a judgement in favor of the plaintiffs. Judge McBeth said that the referendum attempt was in "direct conflict" with the legal procedures outlined in state statutes on zoning and planning. Attorney Jason Umbarger, who represented opponents of the new Wal-Mart, said that there is a strong possibility that an appeal will be filed.[9]

Lawsuit filed against Nebraska's initiative laws: According to a press release published Tuesday, July 30, Omaha businessman Kent Bernbeck has filed a lawsuit challenging the constitutionality of certain restrictions on the petitioning process for initiatives in Nebraska. The lawsuit levels complaints against two separate mandates governing the process. One is a constitutional provision requiring that initiative petition signatures come from at least five percent of registered voters in each of at least 38 counties. The second is a state statute that bans the paying of petition circulators based on the number of names they gather, a practice commonly known as "pay-per-signature." The lawsuit claims that these restrictions have violated Berbeck's constitutional rights by preventing him from qualifying initiatives for the state ballot. The lawsuit was filed in the United States District Court for the District of Nebraska and names Nebraska Secretary of State John Gale and Charlotte TeBrink, clerk for the Village of Denton, as defendants.[10] The full complaint can be found here.

Legislative action

Missouri's initiative system receives overhaul: Earlier this month, Missouri governor Jay Nixon signed House Bill 117 into law. The bill, passed with bipartisan support, makes sweeping changes to the state's initiative system, especially in areas involving who may circulate petitions. More specifically, the new legislation requires circualtors to disclose whether or not they are paid, who is compensating them, swear that they have never been convicted of any offense involving forgery, and be at least eighteen years old. The bill further makes changes to the amount of time citizens have to challenge approved ballot titles, when initiatives may be filed and requires the secretary of state to post a summary of approved petitions online. Most of the law is set to take effect November 4, 2014. For the legislature's summary of the bill, please see here.[11]

See also