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Ballot Law Update: Proposed changes to I&R in four states and a precedent-setting court case on Alaska fishing

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May 1, 2014

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By Josh Altic

As of April 30, 2014, 74 laws concerning ballot measures in 20 states have been put before legislatures in 2014. There are 69 pending, of which 67 were carried over from 2013. Three have failed, and two have been approved.

The Ballot Law Update is released once a month.

Recent news

Colorado law makers try once again to make it harder to amend the Colorado Constitution:

See also: Laws governing the initiative process in Colorado

In a unique feature of Colorado law, ballot initiatives seeking to amend the Colorado Constitution require the same number of signatures to qualify for the ballot as an initiative simply seeking to enact a statute; both require five percent of votes cast for secretary of state in the last general election. Some Colorado lawmakers see this special feature of Colorado law to be harmful and easily abused, and critical legislators have tried nine times in the last decade to pass reform that would make it harder to put a constitutional amendment on the Colorado ballot. Only once, however, did supporters of restrictive reform succeed in getting a question before voters, but Referendum O, which sought tighter requirements for initiated constitutional amendments in 2008, failed with 52.5 percent of electors rejecting it.[1]

Undeterred, Rep. Don Coram (R-58) and Rep. Lois Court (D-6) are moving forward with a 2014 attempt in the form of House Concurrent Resolution 1002, which seeks to double the signatures required to qualify a constitutional amendment for the ballot to ten percent of the votes last cast for the Colorado Secretary of State. It would also introduce a distribution requirement that would necessitate ten percent of the signatures to come from each of the state’s seven congressional districts. Although HCR 1002 was approved by a House committee on April 21, 2014, it still requires a 2/3rds supermajority vote from both the Senate and the House and approval from voters in order to be enacted.[2]

Supporters of the proposed reform say that it will keep frivolous and unwanted amendments from being put on the ballot by a small number of extreme activists. Coram stated that his rural constituents are not even interested in many of the amendments that appear on the ballot. He said, "The complaint is something goes on the ballot out in Southwest Colorado, and all the signatures come from downtown Denver. The perception is they’re just cramming things down our throat that we don’t want and don’t need."[2]

Opponents of the reform argue that the additional restrictions would do nothing but keep grassroots, volunteer movements from achieving a successful initiative for an amendment, while hardly troubling large and well-funded campaigns. They say that this goes against the purpose of the initiative power. Marty Neilson, of the Colorado Union of Taxpayers, said, “It does nothing with the people who have deep pockets and can put something on the ballot." Thad Tecza, a political science professor at the University of Colorado at Boulder, also rejects the proposed restrictions. He said, “The public will isn’t as flighty as we think. People make as many good judgments as legislators do."[2]

Senate Bill 1253, seeking to increase transparency for initiatives, makes progress through the California legislature:

See also: Laws governing the initiative process in California
Senator Darrell Steinberg (D-6)

California Senate President pro Tempore Darrell Steinberg (D-6) authored SB 1253, known as the Ballot Initiative Transparency Act, in an effort to give greater clarity to voters on issues brought to the ballot through the 100-year old California initiative process. SB 1253 was approved in the State Senate’s Elections Committee on April 22, 2014, in a four to one vote. It then moved to the Senate Appropriations Committee. If it is ultimately enacted, it would require that more comprehensive information be made available for voters about initiatives. This includes the requirement that a clear summary of the initiative and a list of the top ten donors in support of the initiative be posted on the secretary of state website. It also requires public hearings on each initiative occurring at least 131 days before the election and would allow initiative proponents to withdraw the initiative at any time prior to certification.[3]

Senator Steinberg, author of the bill, said, “California’s commitment to direct democracy through its illustrious initiative process has given citizens a powerful voice in state governance and has enabled the people of California to outflank the corporate self-interests of billion-dollar industries like Big Tobacco. This bill offers the system greater transparency and greater collaboration, strengthening our direct democracy for another century to come.”[3]

Jennifer Waggoner, President of the League of Women Voters of California, said, “SB 1253 is critical for engaging California voters. This bill creates the time and opportunity for potential negotiation and compromise with the Legislature and helps avoid voter confusion.”[3]

Kathay Feng, Executive Director of California Common Cause, said, “The Ballot Initiative Transparency Act speaks to the most basic concerns of California voters. They want reliable and clear information to understand the issues and proposed solutions, and ultimately want an initiative process that is fair and free of legal flaws.”[3]

Court actions

Plaintiffs say court ruling in Alaska to block an initiative on fishing could threaten the ability of voters to make decisions about fish and wildlife management through the statewide initiative power:

See also: Laws governing the initiative process in Alaska
Setnet fishing

The Alaska Fisheries Conservation Alliance (AFCA), which is behind an initiative that would have outlawed setnetting - a method of salmon fishing - in urban parts of the state, is arguing on behalf of their initiative in Anchorage Superior Court against Lt. Gov. Mead Treadwell (R), who rejected the initiative on the basis that it violated the state's rule against initiatives that make "appropriations." Both sides of the issue are now arguing over the significance of the word "appropriation" in state law. Alaska Assistant Attorney General Elizabeth Bakalar, who is defending Treadwell's decision, said that the initiative seeks to change the allocations of fisheries and appropriate fish harvesting from one group to another - namely from setnetters to people using other types of fishing methods. The plaintiffs, represented by attorney Matt Singer, argue that past precedents allow initiatives on fishing and wildlife. Singer also argued that the peoples' right to vote about fish and wildlife issues should be interpreted broadly while the restrictions against appropriations-related initiatives should be interpreted narrowly. Judge Catherine Easter said she would try to have a ruling ready within a couple of months. The AFCA believes an essential direct democracy right is being threatened by this case, while Treadwell is steadfast in upholding the illegality of the initiative. Either side could appeal the ruling to the Alaska Supreme Court, where an important precedent-setting decision concerning initiatives in Alaska would be inevitable.[4]

Approved legislation

See also: Changes in 2014 to laws governing ballot measures

Utah legislature approves House Bill 192 concerning petitions for initiatives and referendums:

On April 1, 2014, Gov. Gary R. Herbert (R) signed HB 192 into law. This bill adds a mandatory statement to a statewide or local initiative petition signature sheet stating that a signer has read, understands, and agrees to the law proposed by the petition. It also adds a statement to statewide or local referendum petition signature sheets stating that a signer has read and understands the law the petition seeks to overturn.[5][6]

HB 192 was sponsored by Rep. Jon E. Stanard (R-62) and passed in the Senate and House with the following votes:

HB 192 Senate Third Reading
Approveda Yes 23 56.09%

HB 192 House Third Reading
Approveda Yes 52 76.5%

Failed legislation

Wisconsin Senate Bill 114 seeking to severely restrict local recall fails in legislature:

See also: Laws governing recall in Wisconsin

Under current Wisconsin law, the application to circulate a recall petition must contain a statement clarifying the reason for the recall attempt against the official in question. SB 114, which was sponsored by Sen. Sheila Harsdorf (R-10), would have changed this restriction to require that a recall petition attempt could only be brought against any local officer if the officer has been charged with committing a criminal or code of ethics violation. It would require a copy of the criminal charge or civil complaint alleging the crime or civil violation to be included when filing to circulate a recall petition.[7]

Harsdorf said, “(The bill) really is intended to recognize that there is a place for recalls in the event that there are criminal violations or a violation of a code of ethics. It is a very dangerous road to go down to allow recalls when there’s a disagreement on an issue. You don’t want to discourage elected officials from making those tough decisions.”[8]

Sen. Harsdorf herself faced a successful recall attempt in 2011, but remained in office because she won the recall election against Shelly Moore (D).

See also

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