Ballot Law Update: Recent litigation raises complicated issues

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May 30, 2012

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By Tyler Millhouse

Since the beginning of the year, 49 laws have been proposed in 19 states affecting the initiative and referendum process, according to the National Conference of State Legislatures.[1] 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

Ohio repeals HB 194, lawsuit likely: On May 15, Ohio Governor John Kasich (R) signed SB 295, a partial repeal of the controversial HB 194. On December 9, a referendum was certified placing HB 194 on the fall ballot. However, Ohio Secretary of State Jon Husted (R) has said that the referendum will no longer appear before voters, given the repeal.[2]

Notably, proponents of the referendum strongly opposed the legislative repeal effort. They contend that SB 295 subverts the rights of voters to consider the full bill. Most importantly, SB 295 leaves intact restrictions on early voting contained in HB 194 but duplicated in separate legislation. This is the first time in Ohio that a bill subject to referendum has been repealed. Given the lack of legal precedent, SB 295 could trigger a lawsuit to determine the fate of the referendum vote.[3][4]

Keyser, WV passes costs to recall petition signers: In late April, election officials in Keyser, WV told potential recall sponsor Mark Tranum that, should his recall fail, the cost of the election could be charged to those who signed the petition. The rule appears to be a matter of local rather than state law. In the event that the targeted official survives the recall election, the cost to each signer would be approximately $10.[5][6]

Court actions

Maryland signature ruling: On May 21, Maryland's highest court issued a unanimous ruling affirming tough requirements for petition signatures. The court ruled that petition signatures must exactly match the name on voter registration records. (e.g., a person registered as "Johnathan Doe" may not sign as "John Doe.") As a consequence, over half of the signatures submitted by the Green and Libertarian parties were rejected. The court noted that it was not ruling on the constitutionality of the statute, only its interpretation. Although parties may still be able to qualify despite the ruling, petitions that require many more signatures, like referendum petitions, may be significantly harder to complete.[7][8]

  • The ruling can be found here.

Michigan referendum ruling appeal: Last month, the Michigan Board of Canvassers deadlocked and failed to certify a statewide referendum due to the size of fonts used on the petition form. On May 17, the proponents of the referendum appeared in a state Court of Appeals to defend the petition. Proponents argue that the font size is immaterial and that the Board's vote was politically motivated. Opponents of the referendum argue that the statute is clear and that supporters were entitled to a state review of their forms prior to circulation but did not take it.[9]

WA lawsuit may be predicament for privatization: On May 17, the Washington Supreme Court heard arguments in a single-subject rule lawsuit against Initiative 1183 (2011). The initiative privatized Washington's state-owned liquor stores. Since the stores have already been sold, it is not clear how the state could reverse the law's implementation.[10]

Colorado pay-per-signature lawsuit: On May 14, the trial began in the Independence Institute's lawsuit against Colorado's pay-per-signature ban. The Institute's president testified that the ban could raise the cost of an initiative by nearly half a million dollars. The Colorado restriction was approved in 2009.[11]

Libertarian Party challenges VA residency requirement: On May 14, the Libertarian Party filed a lawsuit challenging Virginia's in-state residency requirement for candidate petition circulators. Earlier this year, a U.S. District Court overturned the state's in-district residency requirement in Lux v. Judd. Although Virginia does not have initiative and referendum, an earlier ruling in Lux  has already had broader implications for ballot measure law.[12]

OK personhood amendment removed from ballot: In late March, the Center for Reproductive Rights filed a lawsuit against an Oklahoma initiative that would define personhood as beginning at the moment of conception. The group argued that the law is in violation of the U.S. Constitution. On April 30, the Oklahoma Supreme Court unanimously ruled against the amendment. Although the court did not find the proposed amendment in direct violation of Oklahoma Constitution, the state constitution forbids amendments that conflict with the U.S. Constitution. The court held that the U.S. Supreme Court's ruling in Planned Parenthood v. Casey governed in the case.[13][14]

  • The order in the case can be found here.


Missouri House passes initiative changes: On April 13, the Missouri House passed House Joint Resolution 47 which would lower the state's signature requirements but institute a distribution requirement. HJR 47 is a legislatively-referred constitutional amendment and must be approved by the Senate and the voters in order to take effect.[15] In addition, on April 26 the House approved House Bill 1869 revising a number of the state's ballot measure statutes. For a summary of HB 1869, see our recent news story on the bill here.

Colorado kills amendment restriction: Early this month, a proposed legislatively-referred constitutional amendment was killed in the Colorado Legislature. The amendment would have asked voters to impose a 60% supermajority requirement to pass constitutional amendments. However, it would have allowed voters to repeal amendments passed before 2013 with a simple majority. The bill's demise came after a co-sponsor of the bill accused a committee member of "hijacking" the legislation. 80 Colorado amendments have been approved in the past 45 years.[16]

See also


  1. NCSLnet, "Initiative & Referendum Legislation," accessed May 30, 2012
  2. KFVS, "Ohio gov signs bill to get rid of new election law," May 15, 2012
  3., "House Republicans postpone expected vote on legislation to repeal Ohio elections law scheduled for a referendum," April 25, 2012
  4., "Ohio House votes to repeal controversial election law," May 8, 2011
  5. News Tribune, "Call for recall vote is on agenda for tonight's Keyser City meeting," Apr 25, 2012
  6. Ballot-Access News, "Keyser, West Virginia, Interprets its Recall Law to Mean that Petition Signers are Liable to Pay for Election, if Recall Attempt Loses," April 26, 2012
  7. Ballot Access News, "Maryland’s Highest State Court Construes Law on Petition-Checking in an Unfavorable Manner," May 21, 2012
  8. Southern Maryland Online, "Appeals Court Rejects Ballot Access Petitions for Libertarians, Greens," May 22, 2012
  9. The Detroit News, "Michigan Court of Appeals hears plea for vote on emergency manager law," May 17, 2012 (dead link)
  10. KUOW, "Wash. Supreme Court Hears Challenge To Liquor Privatization," May 17, 2012
  11. Denver Post, "Colorado petitioners take arguments against law banning per-signature payments to federal judge," May 5, 2012
  12. Ballot Access News, "Libertarian Party Sues Virginia Over Ban on Out-of-State Circulators," May 14, 2012
  13. WISTV, "Okla. court halts 'personhood' rights for embryos," April 30, 2012
  14. Think Progress, "Center For Reproductive Rights Files A Lawsuit Against Oklahoma Personhood Initiative," April 2, 2012
  15. Springfield News Leader, "Missouri proposal would alter standards for initiatives," April 30, 2012
  16. Denver Post, "Bill to make it tougher to amend Colorado constitution killed," May 2, 2012